SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 or 15 (d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 21, 1998
FISHER SCIENTIFIC INTERNATIONAL INC.
(Exact name of registrant as specified in charter)
Delaware
(State or other jurisdiction of incorporation)
1-10920 02-0451017
(Commission File No.) (IRS employer
identification no.)
Liberty Lane, Hampton, New Hampshire 03842
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code (603) 926-5911
ITEM 1. CHANGES IN CONTROL OF REGISTRANT:
On January 21, 1998, FSI Merger Corp. ("Merger Sub"), a
Delaware corporation, organized and controlled by an investor group led
by Thomas H. Lee Company ("THL"), was merged (the "Merger") with and into
Fisher Scientific International Inc. ("Fisher" or the "Company") pursuant
to the Second Amended and Restated Agreement and Plan of Merger dated as
of November 14, 1997, as amended (the "Merger Agreement"), by and between
Merger Sub and the Company.
Holders of outstanding shares of Fisher Common Stock at
the effective time (the "Effective Time") of the Merger elected to retain
4,298,358 shares of Fisher Common Stock in the Merger. Because no more
than 746,114 shares of Fisher Common Stock could be retained in the
Merger by existing stockholders, the 4,298,358 shares elected to be
retained were subject to proration and each elected share was converted
into .173581167 retained shares of Fisher common stock, par value $.01
per share ("Fisher Common Stock"). All remaining shares of Fisher Common
Stock outstanding at the Effective Time, including the 3,552,244 shares
elected to be retained but which were subject to proration, were
converted into the right to receive $48.25 per share in cash. As provided
in the Merger Agreement, certain members of management (the "Management
Stockholders") elected to retain an additional 228,857 shares (the
"Management Shares") of Fisher Common Stock and elected to convert at the
Effective Time outstanding options into an additional 602,264 shares of
Fisher Common Stock.
At the Effective Time, shares of common stock of Merger
Sub owned by an investor group which includes (i) Thomas H. Lee Equity
Fund III, L.P, certain individuals associated with THL, THL-CCI Limited
Partnership, THL Foreign Fund III, L.P., and THL FSI Equity Investors,
L.P. (collectively , the "THL Entities"), (ii) DLJ Merchant Banking
Partners II, L.P., DLJ Offshore Partners II, C.V., DLJ Diversified
Partners, L.P., DLJMB Funding II, Inc., DLJ Merchant Banking Partners
II-A, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium Partners,
L.P., DLJ Millennium Partners-A, L.P., UK Investment Plan 1997 Partners,
DLJ EAB Partners, L.P., DLJ ESC II, L.P. and DLJ First ESC, L.P.
(collectively, the "DLJ Entities"), (iii) Chase Equity Associates, L.P.
("Chase Equity") and (iv) Merrill Lynch KECALP L.P. 1997, KECALP Inc.,
and ML IBK Positions, Inc. (collectively, the "Merrill Lynch Entities"
and together with the THL Entities, the DLJ Entities, Chase Equity, the
"Equity Investors") were converted into 6,278,915 shares of Fisher Common
Stock (6,507,772 shares less the Management Shares).
In connection with the Merger, the Equity Investors
received warrants to purchase 516,663 shares of Fisher Common Stock
having an exercise price of $48.25 and members of management were granted
options to purchase up to 1,653,322 shares of Fisher Common Stock at
exercise prices ranging from $48.25 per share to $144.75 per share.
At the Effective Time, the Company, the Equity Investors
and Management Stockholders entered into an Investors' Agreement that
provided for (i) restrictions on transfer of Fisher Common Stock owned by
the Equity Investors and Management, (ii) tag-along and drag-along rights
in the event of certain dispositions by the THL Entities, (iii) certain
preemptive rights in favor of the Equity Investors (other than the THL
Entities) and Management Stockholders, (iv) certain registration rights
to the Equity Investors and Management Stockholders and (v) a board of
directors consisting of 10 members, 7 members of which are to be chosen
by the THL Entities, 1 member of which is to be chosen by the DLJ
Entities, and 2 members of which shall consist of Messrs. Paul Montrone
and Paul Meister. The Board of Directors currently consists of Messrs.
Scott M. Sperling, Anthony J. DiNovi, David V. Harkins and Kent R.
Weldon, who are affiliates of one or more of the THL Entities; Paul
Meister; and Messrs. Michael D. Dingman, Paul Montrone and Robert A. Day,
each of whom was a member of the Board of Directors prior to the
Effective Time. One seat on the Board is currently vacant and will be
filled by a nominee selected by the DLJ Entities.
At the Effective Time, the Company entered into new debt
financing (the "New Credit Facility") consisting of (i) a $294.2 million
term facility consisting of a (a) $125 million tranche A term loan
("Tranche A"), (b) $100 million tranche B term loan ("Tranche B") and (c)
$69.2 million tranche C term loan ("Tranche C"); and (ii) a $175.0
million revolving credit facility (the "Revolving Credit Facility"). A
portion of Tranche A will be borrowed in U.S. dollars by the Company;
another portion of Tranche A will be borrowed in pounds sterling by a
subsidiary of the Company incorporated and domiciled in the United
Kingdom and the remaining portion of Tranche A will be borrowed in
Canadian dollars by a subsidiary of the Company incorporated and
domiciled in Canada. The Chase Manhattan Bank will act as administrative
agent for the syndicate of lenders providing the New Credit Facility,
Merrill Lynch Capital Corporation will act as syndication agent for the
New Credit Facility and DLJ Capital Funding, Inc. will act as
documentation agent. The Revolving Credit Facility will include a
sub-limit for the issuance of letters of credit. The New Credit Facility
will permit foreign subsidiaries of Fisher to borrow negotiated loans
denominated in their local currencies from individual lenders thereunder.
Such negotiated loans will reduce the availability of the Revolving
Credit Facility.
Borrowings made under the Revolving Credit Facility will
bear interest at a rate equal to, at Fisher's option, LIBOR plus 225
basis points, or the Prime Rate plus 125 basis points. The "Prime Rate"
is a fluctuating interest rate equal to the higher of (i) the rate of
interest announced publicly by a reference bank as its prime rate and
(ii) a rate equal to 1/2 of 1% per annum above the weighted average of
the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers.
Tranche A of the Term Facility will bear interest at a
rate equal to, at Fisher's option, LIBOR plus 225 basis points or the
Prime Rate plus 125 basis points; Tranche B of the Term Facility will
bear interest at a rate equal to, at Fisher's option, LIBOR plus 250
basis points or the Prime Rate plus 150 basis points; and Tranche C of
the Term Facility will bear interest at a rate equal to, at Fisher's
option, LIBOR plus 275 basis points or the Prime Rate plus 175 basis
points.
The LIBOR and Prime Rate margins will be subject to
reductions, based on various tests of the Company's financial
performance. Prime Rate interest will be payable monthly in arrears.
LIBOR interest will be payable in arrears at the earlier of (i) the end
of the applicable interest period and (ii) quarterly. LIBOR borrowings
are available in 1-, 2-, 3- or 6-month interest periods.
The Revolving Credit Facility expires six (6) years from
the consummation of the Merger. The Tranche A, B and C facilities will
amortize semi-annually and mature 6, 7 and 7.75 years, respectively,
after the closing date of the New Credit Facility.
The obligations of the Company and the subsidiary
borrowers under the New Credit Facility will be secured by substantially
all assets of the Company and each of its material domestic subsidiaries,
as well as a pledge of the capital stock of each domestic subsidiary of
the Company, each foreign subsidiary borrower and each of its
subsidiaries, and 65% of the capital stock of each other foreign
subsidiary of the Company which is a direct subsidiary of the Company or
of a domestic subsidiary of the Company and will be guaranteed by each
material domestic subsidiary of the Company.
The New Credit Facility agreement will contain customary
covenants of the Company, including, without limitation, restrictions on
(i) indebtedness, (ii) the sale of assets, (iii) mergers, acquisitions
and other business combinations, (iv) voluntary prepayment of certain
debt of the Company, (v) transactions with affiliates, (vi) capital
expenditures and (vii) loans and investments, as well as prohibitions on
the payment of cash dividends to, or the repurchase of redemption of
stock from, shareholders, and various financial covenants. Pursuant to
the terms of the New Credit Facility, and subject to applicable grace
periods, in certain circumstances, Fisher would be in default upon the
non-payment of principal or interest when due under such agreement or,
upon the non-fulfillment of the covenants described above, certain
changes in control of the ownership of Fisher or various other defaults
to be described therein. If such a default occurs, the lenders under the
New Credit Facility would be entitled to take all actions permitted to be
taken by a secured creditor under the Uniform Commercial Code and to
accelerate the amounts due under the New Credit Facility and may require
all such amounts to be immediately paid in full. Loans under the Term
Facility will be required to be prepaid with 50% of excess cash flow (as
defined in the New Credit Facility and subject to certain limits to be
specified therein) and certain equity issuances of Fisher, and 100% of
net-cash proceeds of certain asset sales and certain debt issuances of
Fisher.
The Company also issued $400 million principal amount of
9% senior subordinated notes due February 1, 2008 (the "Notes"). Interest
is payable on the Notes semi-annually on August 1 and February 1 of each
year commencing August 1, 1998. The Notes are unsecured senior
subordinated obligations of the Company, subordinated in right of payment
to all existing and future senior indebtedness of the Company, including
the Credit Facility.
On or after five years from the date of issue, the Company
may redeem the Notes in whole or in part pursuant tot the terms thereof.
At any time on or before three years from the date of issue, the Company
may redeem up to 40% of the original aggregate principal amount of the
Notes at an initial redemption price of 109% of the principal amount
thereof, provided that at least 60% of Notes remain outstanding
immediately after the occurrence of such redemption. Upon a Change of
Control (as defined in the Indenture pursuant to which the Notes were
issued (the "Indenture")), the Company will be required to make an offer
to purchase all outstanding Notes at 101% of the principal amount thereof
plus accrued and unpaid interest ("Change of Control Offer").
The Company will not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the Change
of Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth in the Indenture applicable to a Change
of Control Offer made by the Company and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
The Indenture restricts, among other things, the ability
of the Company and its subsidiaries to incur additional indebtedness, pay
dividends or make certain other restricted payments, incur liens, engage
in any sale and leaseback transaction, sell stock of subsidiaries, apply
net proceeds from certain asset sales, merge or consolidate with any
other person, sell, assign, transfer, lease, convey or otherwise dispose
of substantially all of the assets of the Company, enter into certain
transactions with affiliates, or incur indebtedness that is subordinate
in right of payment to any Indebtedness and senior in right of payment to
the Debt Securities.
The Company's existing 7 1/8% notes due 2005 (the "Senior
Notes") remain outstanding following the Merger and following the Merger
will constitute senior indebtedness under the Indenture and will be
equally and ratably secured with certain other Senior Indebtedness with
respect to certain collateral. Interest on the Senior Notes is payable
semi-annually on June 15 and December 15. The Senior Notes mature on
December 15, 2005. The Senior Notes are not entitled to any sinking fund
and are redeemable, in whole or in part, at the option of the Company at
any time, at a redemption price equal to the greater of (i) 100% of the
principal amount of such notes and (ii) the sum of the present values as
of the date of redemption of all remaining scheduled payments of
principal and interest on such notes due on or after the date of
redemption, discounted on a semi-annual basis at the relevant Treasury
rate plus 25 basis points.
The Company also entered into a five year receivables
securitization facility (the "Receivables Securitization Facility")
pursuant to which a subsidiary of Fisher would sell approximately $200
million of accounts receivable to a newly formed wholly-owned bankruptcy
remote special purpose subsidiary of Fisher which in turn would transfer
approximately $150 million of the receivables to Park Avenue Receivables
Corp ("PARCO"), a special purpose corporation formed by The Chase
Manhattan Bank solely for the purpose of issuing commercial paper rate
A-1/P-1 or higher. The Chase Manhattan Bank will act as funding agent and
with other commercial banks acceptable to PARCO will provide liquidity
funding to PARCO for the purchase of the receivables from the Company's
receivables subsidiary. The proceeds from the Receivables Securitization
Facility will be used to finance a portion of the conversion into cash of
shares of Fisher Common Stock and related fees and expenses associated
with the Merger. The Receivables Securitization Facility is expected to
carry an effective interest rate of LIBOR plus 50 basis points.
(b) The following table sets forth certain information
concerning the beneficial ownership of Fisher Common Stock (i) by each
stockholder who owns beneficially in excess of 5% of Fisher Common Stock,
(ii) by each director, and (iii) by all officers and directors as a
group. Except as otherwise indicated in the Investors' Agreement referred
to above, all persons listed below have (i) sole voting power and
investment power with respect to their shares of Fisher Common Stock,
except to the extent that authority is shared by spouses under applicable
law, and (ii) record and beneficial ownership with respect to their
shares of Fisher Common Stock.
Shares of Percent
Name of Beneficial Owner (1) Common Stock of Class
- ---------------------------- ------------ ---------
Thomas H. Lee Fund III and
affiliates of THL including
Anthony J. DiNovi, David V. Harkins,
Scott M. Sperling, Kent R. Weldon (2) 4,019,152 50.2%
DLJ Merchant Banking Partners II,
L.P. and affiliates (3 ) 1,210,587 15.1%
Chase Equity Associates, L.P.
including Mitchell J. Blutt (4) 807,058 10.1%
Paul M. Montrone 368,777 4.6%
Paul M. Meister 236,608 3.0%
Michael D. Dingman 153,368 1.9%
Robert A. Day 0 *
All directors and executive officers
as a group (14 individuals) (5) 6,835,747 85.4%
* Less than 1% of the issued and outstanding common stock of the Company.
(1) The business address for Messrs. Montrone and Meister is c/o Fisher
Scientific International Inc., One Liberty Lane, Hampton, New
Hampshire 03842. The address for Chase Equity Associates, L.P. is
380 Madison Avenue, New York, New York 10017. The address for DLJ
Merchant Banking Partners II, L.P. and affiliates is 277 Park
Avenue, New York, New York 10172.
(2) The business address of Thomas H. Lee Fund III is c/o Thomas H. Lee
Company, 75 State Street, Suite 2600, Boston, Massachusetts 02109.
All such voting securities are owned by Thomas H. Lee Equity Fund
III, L.P., THL FSI Equity Investors L.P. and certain individuals
associated with THL. Includes shares owned by Thomas H. Lee Fund III
and affiliates as to which each of Messrs. DiNovi, Harkins, Sperling
and Weldon disclaim beneficial interest.
(3) Includes shares owned by DLJ Merchant Banking Partners II, L.P., DLJ
Offshore Partners II, C.V., DLJ Diversified Partners-A, L.P., DLJ
Millennium Partners, L.P., DLJ Millennium Partners-A, L.P., UK
Investment Plan 1997 Partners, DLJ EAB Partners, L.P., DLJ ESC II,
L.P. and DLJ First ESC, L.P. DLJ has the right under the Investors'
Agreement to appoint one individual to the Board of Directors.
(4) Represents non-voting shares convertible into voting shares of
Fisher Common Stock under certain circumstances. Includes shares
owned by Chase Equity Associates, L.P. as to which Mr. Blutt
disclaims any beneficial interest.
(5) Includes shares owned by the entities identified in footnotes (2) -
(4) above, as to which each individual officer and director
disclaims beneficial interest.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
(c) Exhibits
(1) Investors Agreement dated January 21, 1998 among
(i) Thomas H. Lee Equity Fund III, L.P, certain
individuals associated with THL, THL-CCI Limited
Partnership, THL Foreign Fund III, L.P., and THL
FSI Equity Investors, L.P. (collectively , the "THL
Entities"), (ii) DLJ Merchant Banking Partners II,
L.P., DLJ Offshore Partners II, C.V., DLJ
Diversified Partners, L.P., DLJMB Funding II, Inc.,
DLJ Merchant Banking Partners II-A, L.P., DLJ
Diversified Partners-A, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium Partners-A, L.P., UK
Investment Plan 1997 Partners, DLJ EAB Partners,
L.P., DLJ ESC II, L.P. and DLJ First ESC, L.P.
(collectively, the "DLJ Entities"), (iii) Chase
Equity Associates, L.P. ("Chase Equity") and (iv)
Merrill Lynch KECALP L.P. 1997, KECALP Inc., and ML
IBK Positions, Inc. included as Exhibit 10.22 to
the Company's Post-Effective Amendment No. 1 to the
Registration Statement on Form S-4 dated February
2, 1998 and incorporated herein by reference.
(2) Form of Indenture dated as of January 21, 1998
between Fisher Scientific International Inc. and
State Street Bank and Trust Company N.A.*
(3) Credit Agreement dated as of January 21, 1998 among
the Company, certain subsidiaries of the Company,
various lending institutions, The Chase Manhattan
Bank, as Administrative Agent, The Chase Manhattan
Bank of Canada, as Canadian Administrative Agent,
Chase Manhattan International Limited, as U.K.
Administrative Agent, Merrill Lynch Capital
Corporation, as Syndication Agent, and DLJ Capital
Funding, Inc., as Documentation Agent.*
- --------------
* Filed herewith
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Company has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
Fisher Scientific International Inc.
By: /s/ Todd DuChene
_____________________________
Name: Todd DuChene
Title: Vice President, General
Counsel and Secretary
Dated: February 5, 1998
EXHIBIT INDEX
Exhibit Sequential
No. Description Page Number
1 Investors Agreement dated January 21, 1998
among (i) Thomas H. Lee Equity Fund III, L.P,,
certain individuals associated with THL, THL-
CCI Limited Partnership, THL Foreign Fund III,
L.P., and THL FSI Equity Investors, L.P.
(collectively , the "THL Entities"), (ii) DLJ
Merchant Banking Partners II, L.P., DLJ Offshore
Partners II, C.V., DLJ Diversified Partners, L.P.,
DLJMB Funding II, Inc., DLJ Merchant Banking
Partners II-A, L.P., DLJ Diversified Partners-A,
L.P., DLJ Millennium Partners, L.P., DLJ
Millennium Partners-A, L.P., UK Investment Plan
1997 Partners, DLJ EAB Partners, L.P., DLJ ESC
II, L.P. and DLJ First ESC, L.P. (collectively, the
"DLJ Entities"), (iii) Chase Equity Associates,
L.P. ("Chase Equity") and (iv) Merrill Lynch
KECALP L.P. 1997, KECALP Inc., and ML
ITSK Positions, Inc. incorporated by reference
from Exhibit 10.22 of the Company's Post-
Effective Amendments No. 1 to the Registration
Statement on Form S-4 dated February 2, 1998.
2 Form of Indenture dated as of January 21, 1998
between Fisher Scientific International Inc. and
State Street Bank and Trust Company N.A.*
3 Credit Agreement dated as of January 21, 1998
among the Company, certain subsidiaries of the
Company, various lending institutions, The Chase
Manhattan Bank, as Administrative Agent, The
Chase Manhattan Bank of Canada, as Canadian
Administrative Agent, Chase Manhattan
International Limited, as U.K. Administrative
Agent, Merrill Lynch Capital Corporation, as
Syndication Agent, and DLJ Capital Funding, Inc.,
as Documentation Agent.*
- --------------
* Filed herewith
FISHER SCIENTIFIC INTERNATIONAL INC., as Issuer
$400,000,000
9% Senior Subordinated Notes due 2008
---------------
INDENTURE
Dated as of January 21, 1998
---------------
STATE STREET BANK AND TRUST COMPANY, as Trustee
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1)..................................................... 7.10
(a)(2).................................................. 7.10
(a)(3).................................................. N.A.
(a)(4).................................................. N.A.
(b)..................................................... 7.8; 7.10
(c)..................................................... N.A.
311(a)........................................................ 7.11
(b)..................................................... 7.11
(c)..................................................... N.A.
312(a)........................................................ 2.5
(b)..................................................... N.A.
(c)..................................................... N.A.
313(a)........................................................ 7.6
(b)(1).................................................. N.A.
(b)(2).................................................. 7.6
(c)..................................................... 7.6
(d)..................................................... 7.6
314(a)........................................................ 4.18
4.19; 13.2
(b)..................................................... N.A.
(c)(1).................................................. 13.4
(c)(2).................................................. 13.4
(c)(3).................................................. N.A.
(d)..................................................... N.A.
(e)..................................................... 13.5
(f)..................................................... 4.19
315(a)........................................................ 7.1
(b)..................................................... 7.5; 13.2
(c)..................................................... 7.1
(d)..................................................... 7.1
(e)..................................................... 6.11
316(a)(last sentence)......................................... 13.6
(a)(1)(A)............................................... 6.5
(a)(1)(B)............................................... 6.4
(a)(2).................................................. N.A.
(b)..................................................... 6.7
317(a)(1)..................................................... 6.8
(a)(2).................................................. 6.9
(b)..................................................... 2.4
318(a)........................................................ 13.1
N.A. means Not Applicable
- ------------
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions...............................................1
SECTION 1.2. Other Definitions........................................28
SECTION 1.3. Incorporation by Reference of Trust Indenture Act........29
SECTION 1.4. Rules of Construction....................................30
ARTICLE II
THE SECURITIES
SECTION 2.1. Form and Dating..........................................30
SECTION 2.2. Execution and Authentication.............................32
SECTION 2.3. Registrar and Paying Agent...............................33
SECTION 2.4. Paying Agent to Hold Money in Trust......................33
SECTION 2.5. Securityholder Lists.....................................34
SECTION 2.6. Transfer and Exchange....................................34
SECTION 2.7. Replacement Securities...................................42
SECTION 2.8. Outstanding Securities...................................42
SECTION 2.9. Temporary Securities.....................................43
SECTION 2.10. Cancellation.............................................43
SECTION 2.11. Defaulted Interest.......................................44
SECTION 2.12. CUSIP Numbers............................................44
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee.......................................44
SECTION 3.2. Selection of Securities To be Redeemed...................45
SECTION 3.3. Notice of Redemption.....................................45
SECTION 3.4. Effect of Notice of Redemption...........................46
SECTION 3.5. Deposit of Redemption Price..............................47
SECTION 3.6. Securities Redeemed in Part..............................47
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities....................................47
SECTION 4.2. Limitation on Liens......................................48
SECTION 4.3. Limitation on Incurrence of Additional Indebtedness......48
SECTION 4.4. Limitation on Restricted Payments........................48
SECTION 4.5. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries................................51
SECTION 4.6. Limitation on Asset Sales................................52
SECTION 4.7. Limitation on Transactions with Affiliates...............55
SECTION 4.8. Change of Control........................................57
SECTION 4.9. Limitation on Incurrence of Senior Subordinated Debt.....58
SECTION 4.10. Limitation on Preferred Stock of Subsidiaries............58
SECTION 4.11. Limitation on Guarantees by Restricted Subsidiaries......58
SECTION 4.12. Conduct of Business......................................59
SECTION 4.13. Maintenance of Office or Agency..........................59
SECTION 4.14. Corporate Existence......................................59
SECTION 4.15. Payment of Taxes and Other Claims........................59
SECTION 4.16. Maintenance of Properties and Insurance..................60
SECTION 4.17. Compliance With Laws.....................................60
SECTION 4.18. Additional Information...................................60
SECTION 4.19. Further Instruments and Acts.............................61
ARTICLE V
SUCCESSOR COMPANY
SECTION 5.1. When Company May Merge or Transfer Assets................61
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default........................................63
SECTION 6.2. Acceleration.............................................65
SECTION 6.3. Other Remedies...........................................66
SECTION 6.4. Waiver of Past Defaults..................................66
SECTION 6.5. Control by Majority......................................67
SECTION 6.6. Limitation on Suits......................................67
SECTION 6.7. Rights of Holders to Receive Payment.....................67
SECTION 6.8. Collection Suit by Trustee...............................68
SECTION 6.9. Trustee May File Proofs of Claim.........................68
SECTION 6.10. Priorities...............................................68
SECTION 6.11. Undertaking for Costs....................................69
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee........................................69
SECTION 7.2. Rights of Trustee........................................71
SECTION 7.3. Individual Rights of Trustee.............................71
SECTION 7.4. Trustee's Disclaimer.....................................71
SECTION 7.5. Notice of Defaults.......................................72
SECTION 7.6. Reports by Trustee to Holders............................72
SECTION 7.7. Compensation and Indemnity...............................72
SECTION 7.8. Replacement of Trustee...................................73
SECTION 7.9. Successor Trustee by Merger..............................74
SECTION 7.10. Eligibility; Disqualification............................75
SECTION 7.11. Preferential Collection of Claims Against Company........75
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities.....................75
SECTION 8.2. Legal Defeasance and Covenant Defeasance.................77
SECTION 8.3. Conditions to Defeasance.................................78
SECTION 8.4. Application of Trust Money...............................80
SECTION 8.5. Repayment to Company.....................................81
SECTION 8.6. Reinstatement............................................81
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders...............................82
SECTION 9.2. With Consent of Holders..................................83
SECTION 9.3. Compliance With Trust Indenture Act......................84
SECTION 9.4. Revocation and Effect of Consents and Waivers............85
SECTION 9.5. Notation on or Exchange of Securities....................85
SECTION 9.6. Trustee to Sign Amendments...............................86
ARTICLE X
SUBORDINATION
SECTION 10.1. Agreement to Subordinate.................................86
SECTION 10.2. Liquidation, Dissolution, Bankruptcy.....................86
SECTION 10.3. Default on Senior Indebtedness...........................87
SECTION 10.4. Acceleration of Payment of Securities....................88
SECTION 10.5. When Distribution Must Be Paid Over......................88
SECTION 10.6. Subrogation..............................................88
SECTION 10.7. Relative Rights..........................................89
SECTION 10.8. Subordination May Not Be Impaired by Company.............89
SECTION 10.9. Rights of Trustee and Paying Agent.......................89
SECTION 10.10. Distribution or Notice to Representative.................90
SECTION 10.11. Article X Not To Prevent Events of Default
or Limit Right to Accelerate..........................90
SECTION 10.12. Trust Moneys Not Subordinated............................90
SECTION 10.13. Trustee Entitled to Rely.................................90
SECTION 10.14. Trustee to Effectuate Subordination......................91
SECTION 10.15. Trustee Not Fiduciary for Holders of
Senior Indebtedness..................................91
SECTION 10.16. Reliance by Holders of Senior Indebtedness
on Subordination Provisions..........................91
ARTICLE XI
[RESERVED]
ARTICLE XII
[RESERVED]
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Trust Indenture Act Controls.............................92
SECTION 13.2. Notices..................................................92
SECTION 13.3. Communication by Holders With Other Holders..............93
SECTION 13.4. Certificate and Opinion As To Conditions Precedent.......93
SECTION 13.5. Statements Required in Certificate or Opinion............93
SECTION 13.6. When Securities Disregarded..............................94
SECTION 13.7. Rules by Trustee, Paying Agent and Registrar.............94
SECTION 13.8. Legal Holidays...........................................94
SECTION 13.9. Governing Law............................................94
SECTION 13.10. No Recourse Against Others...............................94
SECTION 13.11. Successors...............................................95
SECTION 13.12. Multiple Originals.......................................95
SECTION 13.13. Variable Provisions......................................95
SECTION 13.14. Qualification of Indenture...............................95
SECTION 13.15. Table of Contents; Headings..............................95
EXHIBITS
EXHIBIT A FORM OF SECURITY
EXHIBIT B FORM OF EXCHANGE SECURITY
EXHIBIT C FORM OF TRANSFEREE LETTER OF REPRESENTATION
EXHIBIT D FORM OF SUPPLEMENTAL INDENTURE
INDENTURE dated as of January 21, 1998, between FISHER
SCIENTIFIC INTERNATIONAL INC., a Delaware corporation (as further defined
below, the "Company") and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts chartered trust company, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the
Company's 9% Senior Subordinated Notes due 2008 (the "Initial
Securities") and, if and when issued in exchange for Initial Securities
as provided in the Registration Rights Agreement (as hereinafter
defined), the Company's 9% Senior Subordinated Notes due 2008 (the
"Exchange Securities" and, together with the Initial Securities, the
"Securities"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness (i) of a Person
or any of its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary of the Company, or (ii) assumed in connection with
the acquisition of assets from such Person, in each case whether or not
incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary of the
Company or such acquisition. Acquired Indebtedness shall be deemed to
have been incurred, with respect to clause (i) of the preceding sentence,
on the date such Person becomes a Restricted Subsidiary of the Company
and, with respect to clause (ii) of the preceding sentence, on the date
of consummation of such acquisition of assets.
"Affiliate" means a Person who directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with, the respective Person. The term "control"
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
Notwithstanding the foregoing, no Person (other than the Company or any
Subsidiary of the Company) in whom a Receivables Entity makes an
Investment in connection with a Qualified Receivables Transaction shall
be deemed to be an Affiliate of the Company or any of its Subsidiaries
solely by reason of such Investment.
"all or substantially all" shall have the meaning given
such phrase in the Revised Model Business Corporation Act.
"Applicable Premium" means, with respect to a Security,
the greater of (i) 1.0% of the then outstanding principal amount of such
Security or (ii) the excess of (A) the present value of the required
interest and principal payments due on such Security, computed using a
discount rate equal to the Treasury Rate plus 50 basis points, over (B)
the then outstanding principal amount of such Security; provided that in
no event will the Applicable Premium exceed the amount of the applicable
redemption price upon an optional redemption less 100% at any time on or
after February 1, 2003.
"Asset Acquisition" means (a) an Investment by the Company
or any Restricted Subsidiary of the Company in any other Person pursuant
to which such Person shall become a Restricted Subsidiary of the Company
or any Restricted Subsidiary of the Company, or shall be merged with or
into the Company or any Restricted Subsidiary of the Company, or (b) the
acquisition by the Company or any Restricted Subsidiary of the Company of
the assets of any Person which constitute all or substantially all of the
assets of such Person, any division or line of business of such Person or
any other properties or assets of such Person other than in the ordinary
course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in
the ordinary course of business), assignment or other transfer for value
by the Company or any of its Restricted Subsidiaries (including any Sale
and Leaseback Transaction) to any Person other than the Company or a
Restricted Subsidiary of the Company of (a) any Capital Stock of any
Restricted Subsidiary of the Company; or (b) any other property or assets
of the Company or any Restricted Subsidiary of the Company other than in
the ordinary course of business; provided, however, that Asset Sales
shall not include (i) any transaction or series of related transactions
for which the Company or its Restricted Subsidiaries receive aggregate
consideration of less than $5 million, (ii) the sale, lease, conveyance,
disposition or other transfer of all or substantially all of the assets
of the Company as permitted under Article V, (iii) the sale or discount,
in each case without recourse, of accounts receivable arising in the
ordinary course of business, but only in connection with the compromise
or collection thereof, (iv) the factoring of accounts receivable arising
in the ordinary course of business pursuant to arrangements customary in
the industry, (v) the licensing of intellectual property, (vi) disposals
or replacements of obsolete equipment in the ordinary course of business,
(vii) the sale, lease, conveyance, disposition or other transfer by the
Company or any Restricted Subsidiary of assets or property in
transactions constituting Investments that are not prohibited under
Section 4.4, (viii) sales of accounts receivable and related assets of
the type specified in the definition of "Qualified Receivables
Transaction" to a Receivables Entity, (ix) transfers of accounts
receivable and related assets of the type specified in the definition of
"Qualified Receivables Transaction" (or a fractional undivided interest
therein) by a Receivables Entity in a Qualified Receivables Transaction,
(x) leases or subleases to third persons not interfering in any material
respect with the business of the Company or any of its Restricted
Subsidiaries and (xi) the sale, issuance or transfer of Capital Stock
representing up to 30% of the fully-diluted equity ownership of one or
more of (a) Fisher Technology Group Inc., (b) UniKix Technologies, (c)
Electronic Commerce Division and (d) Strategic Procurement Services to
one or more of their respective directors or employees in connection with
the compensation of such employees. For the purposes of clause (viii),
Purchase Money Notes shall be deemed to be cash.
"Bank Indebtedness" means any and all amounts, whether
outstanding on the Issue Date or thereafter incurred, payable under or in
respect of the New Credit Facility and any related notes, collateral
documents, letters of credit and guarantees, including principal, premium
(if any), interest (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization relating to the Company
or any Restricted Subsidiary of the Company whether or not a claim for
post-filing interest is allowed in such proceedings), fees, charges,
expenses, indemnities, reimbursement obligations, guarantees and all
other amounts payable thereunder or in respect thereof.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Business Day" means each day which is not a Legal
Holiday.
"Capitalized Lease Obligation" means, as to any Person,
the obligations of such Person under a lease that are required to be
classified and accounted for as capital lease obligations under GAAP and,
for purposes of this definition, the amount of such obligations at any
date shall be the capitalized amount of such obligations at such date,
determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that
is a corporation, any and all shares, interests, participations or other
equivalents (however designated) of corporate stock, including each class
of common stock and preferred stock of such Person and (ii) with respect
to any Person that is not a corporation, any and all partnership or other
equity interests of such Person.
"Cash Equivalents" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government
or issued by any agency thereof and backed by the full faith and credit
of the United States, in each case maturing within one year from 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 maturing within one year
from the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings obtainable from either S&P or
Moody's; (iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating
of at least A-1 from S&P or at least P-1 from Moody's; (iv) certificates
of deposit or bankers' acceptances (or, with respect to foreign banks,
similar instruments) maturing within one year from the date of
acquisition thereof issued by any bank organized under the laws of the
United States of America or any state thereof or the District of Columbia
or any U.S. branch of a foreign bank having at the date of acquisition
thereof combined capital and surplus of not less than $200 million; (v)
certificates of deposit or bankers' acceptances or similar instruments
maturing within one year from the date of acquisition thereof issued by
any foreign bank that is a lender under the New Credit Facility having at
the date of acquisition thereof combined capital and surplus of not less
than $500 million; (vi) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in
clause (i) above entered into with any bank meeting the qualifications
specified in clause (iv) or clause (v) above; and (vii) investments in
money market funds which invest substantially all their assets in
securities of the types described in clauses (i) through (vi) above.
"Change of Control" means the occurrence of one or more of
the following events: (i) any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all or
substantially all of the assets of the Company to any Person or group of
related Persons (other than one or more Permitted Holders) for purposes
of Section 13(d) of the Exchange Act (a "Group"), together with any
Affiliates thereof (whether or not otherwise in compliance with the
provisions of this Indenture); (ii) the approval by the holders of
Capital Stock of the Company of any plan or proposal for the liquidation
or dissolution of the Company (whether or not otherwise in compliance
with the provisions of this Indenture); (iii) any Person or Group (other
than one or more Permitted Holders) shall become the owner, directly or
indirectly, beneficially or of record, of shares representing 50% or more
of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock of the Company or (iv) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors.
"Change of Control Triggering Event" means the occurrence
of a Change of Control and the failure of the Securities to have a
Minimum Rating on the 30th day after the occurrence of such Change of
Control.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Company" means Fisher Scientific International Inc., a
Delaware corporation, until a successor replaces it and, thereafter,
means the successor and, for purposes of any provision contained herein
and required by the TIA, each other obligor on the indenture securities.
"Consolidated EBITDA" means, with respect to any Person,
for any period, the sum (without duplication) of (i) Consolidated Net
Income and (ii) to the extent Consolidated Net Income has been reduced
thereby, (A) all income taxes of such Person and its Restricted
Subsidiaries paid or accrued in accordance with GAAP for such period, (B)
Consolidated Interest Expense, (C) Consolidated Non-cash Charges, (D)
cash charges attributable to the exercise of employee options vesting
upon the consummation of the Recapitalization and (E) for any four
quarter period that includes one or more fiscal quarters of fiscal 1997
or 1998, cash restructuring or nonrecurring charges, in an aggregate
amount not to exceed $20 million.
"Consolidated Fixed Charge Coverage Ratio" means, with
respect to any Person, the ratio of Consolidated EBITDA of such Person
during the four full fiscal quarters (the "Four Quarter Period") ending
on or prior to the date of the transaction giving rise to the need to
calculate the Consolidated Fixed Charge Coverage Ratio (the "Transaction
Date") to Consolidated Fixed Charges of such Person for the Four Quarter
Period. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated EBITDA" and "Consolidated
Fixed Charges" shall be calculated after giving effect on a pro forma
basis for the period of such calculation to (i) the incurrence of any
Indebtedness of such Person or any of its Restricted Subsidiaries (and
the application of the proceeds thereof) giving rise to the need to make
such calculation and any incurrence or repayment of other Indebtedness
(and the application of the proceeds thereof) occurring during the Four
Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transactions Date, as if such
incurrence or repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter Period,
(ii) any Asset Sales or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary as
a result of the Asset Acquisition) incurring, assuming or otherwise being
liable for Acquired Indebtedness and also including any Consolidated
EBITDA (including pro forma adjustments for cost savings ("Cost Savings
Adjustments") that the Company reasonably believes in good faith could
have been achieved during the Four Quarter Period as a result of such
acquisition or disposition (provided that both (A) such cost savings were
identified and quantified in an Officers' Certificate delivered to the
Trustee at the time of the consummation of the acquisition or disposition
and (B) with respect to each acquisition or disposition completed prior
to the 90th day preceding such date of determination, actions were
commenced or initiated by the Company within 90 days of such acquisition
or disposition to effect such cost savings identified in such Officers'
Certificate and with respect to any other acquisition or disposition,
such Officers' Certificate sets forth the specific steps to be taken
within the 90 days after such acquisition or disposition to accomplish
such cost savings) attributable to the assets which are the subject of
the Asset Acquisition or Asset Sale during the Four Quarter Period)
occurring during the Four Quarter Period or at any time subsequent to the
last day of the Four Quarter Period and on or prior to the Transaction
Date, as if such Asset Sale or Asset Acquisition (including the
incurrence, assumption or liability for any such Indebtedness or Acquired
Indebtedness) occurred on the first day of the Four Quarter Period, (iii)
with respect to any such Four Quarter Period commencing prior to the
Recapitalization, the Recapitalization (including any Cost Savings
Adjustments), which shall be deemed to have taken place on the first day
of such Four Quarter Period, and (iv) any Asset Sales or Asset
Acquisitions (including any Consolidated EBITDA (including any Cost
Savings Adjustments) attributable to the assets which are the subject of
the asset acquisition or asset sale during the Four Quarter Period) that
have been made by any Person that has become a Restricted Subsidiary of
the Company or has been merged with or into the Company or any Restricted
Subsidiary of the Company during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior to
the Transactions Date that would have constituted Asset Sales or Asset
Acquisitions had such transactions occurred when such Person was a
Restricted Subsidiary of the Company or subsequent to such Person's
merger into the Company, as if such Asset Sale or Asset Acquisition
(including the incurrence, assumption or liability for any Indebtedness
or Acquired Indebtedness in connection therewith) occurred on the first
day of the Four Quarter Period; provided that to the extent that clause
(ii) or (iv) of this sentence requires that pro forma effect be given to
an Asset Sale or Asset Acquisition, such pro forma calculation shall be
based upon the four full fiscal quarters immediately preceding the
Transaction Date of the Person, or division or line of business of the
Person, that is acquired or disposed for which financial information is
available. If such Person or any of its Restricted Subsidiaries directly
or indirectly guarantees Indebtedness of a third Person, the preceding
sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if such Person or any Restricted Subsidiary of such
Person had directly incurred or otherwise assumed such guaranteed
Indebtedness. Furthermore, in calculating "Consolidated Fixed Charges"
for purposes of determining the denominator (but not the numerator) of
this "Consolidated Fixed Charge Coverage Ratio," (1) interest on
outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter
shall be deemed to have accrued at a fixed rate per annum equal to the
rate of interest on such Indebtedness in effect on the Transaction Date;
(2) if interest on an Indebtedness actually incurred on the Transaction
Date 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 rates, then the interest rate in effect on the Transactions Date
will be deemed to have been in effect during the Four Quarter Period; and
(3) notwithstanding clause (1) above, interest on Indebtedness determined
on a fluctuating basis, to the extent such interest is covered by
agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the
operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any
Person for any period, the sum, without duplication, of (i) Consolidated
Interest Expense (excluding amortization or write-off of debt issuance
costs relating to the Recapitalization and the financing therefor or
relating to retired or existing Indebtedness and amortization or
write-off of customary debt issuance costs relating to future
Indebtedness incurred in the ordinary course of business) plus (ii) the
product of (x) the amount of all dividend payments on any series of
Preferred Stock of such Person (other than dividends, paid in Qualified
Capital Stock) times (y) a fraction, the numerator of which is one and
the denominator of which is one minus the then current effective
consolidated Federal, state and local tax rate of such Person expressed
as a decimal.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum of, without duplication, (i) the aggregate
of all cash and non-cash interest expense with respect to all outstanding
Indebtedness of such Person and its Restricted Subsidiaries, including
the net costs associated with Interest Swap Obligations, for such period
determined on a consolidated basis in conformity with GAAP, and (ii) the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income" of the Company means, for any
period, the aggregate net income (or loss) of the Company and its
Restricted Subsidiaries for such period on a consolidated basis,
determined in accordance with GAAP; provided that there shall be excluded
therefrom (a) gains and losses from Asset Sales (without regard to the $5
million limitation set forth in the definition thereof) or abandonments
or reserves relating thereto and the related tax effects according to
GAAP, (b) gains and losses due solely to fluctuations in currency values
and the related tax effects according to GAAP, (c) items classified as
extraordinary, unusual or nonrecurring gains and losses, and the related
tax effects according to GAAP, (d) the net income (or loss) of any Person
acquired in a pooling of interests transaction accrued prior to the date
it becomes a Restricted Subsidiary of the Company or is merged or
consolidated with the Company or any Restricted Subsidiary of the
Company, (e) the net income of any Restricted Subsidiary of the Company
to the extent that the declaration of dividends or similar distributions
by that Restricted Subsidiary of the Company of that income is restricted
by contract, operation of law or otherwise, (f) the net loss of any
Person other than a Restricted Subsidiary of the Company, (g) the net
income of any Person, other than a Restricted Subsidiary of the Company,
except to the extent of cash dividends or distributions paid to the
Company or a Restricted Subsidiary of the Company by such Person unless,
in the case of a Restricted Subsidiary of the Company who receives such
dividends or distributions, such Restricted Subsidiary of the Company is
subject to clause (e) above, (h) one time non-cash compensation charges,
including any arising from existing stock options resulting from any
merger or recapitalization transaction and (i) bonus payments to be paid
to senior management of the Company following the Issue Date (but no
later than March 31, 1998) in an aggregate amount not to exceed $10
million.
"Consolidated Non-cash Charges" means, with respect to any
Person for any period, the aggregate depreciation, amortization and other
non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries of
the Company for such period, determined on a consolidated basis in
accordance with GAAP (excluding any such charges which require an accrual
of or a reserve for cash charges for any future period).
"Continuing Directors" means, as of any date of
determination, any member of the Board of Directors of the Company who
(i) was a member of such Board of Directors on the Issue Date, (ii) was
nominated for election or elected to such Board of Directors with, or
whose election to such Board of Directors was approved by, the
affirmative vote of a majority of the Continuing Directors who were
members of such Board of Directors at the time of such nomination or
election or (iii) is any designee of a Permitted Holder or was nominated
by a Permitted Holder or any designees of a Permitted Holder on the Board
of Directors.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement
designed to protect the Company or any Restricted Subsidiary of the
Company against fluctuations in currency values.
"Default" means an event or condition the occurrence of
which is, or with the lapse of time or the giving of notice or both would
be, an Event of Default.
"Depository" means The Depository Trust Company, its
nominees and their respective successors and assigns, or such other
depository institution hereinafter appointed by the Company.
"Designated Senior Indebtedness" means (i) Bank
Indebtedness and (ii) any other Senior Indebtedness which, at the date of
determination, has an aggregate principal amount outstanding of, or under
which, at the date of determination, the holders thereof, are committed
to lend up to, at least $25 million and is specifically designated by the
Company in the instrument evidencing or governing such Senior
Indebtedness or another writing as "Designated Senior Indebtedness" for
purposes of this Indenture.
"Disqualified Capital Stock" means that portion of any
Capital Stock which, by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable), or upon the
happening of any event (other than an event which would constitute a
Change of Control Triggering Event), matures (excluding any maturity as
the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the sole option of the holder thereof
(except, in each case, upon the occurrence of a Change of Control
Triggering Event) on or prior to the final maturity date of the
Securities.
"Equity Offering" means an offering of Qualified Capital
Stock of the Company.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"fair market value" means, unless otherwise specified,
with respect to any asset or property, the price which could be
negotiated in an arm's-length, free market transaction, for cash, between
a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a resolution of
the Board of Directors of the Company delivered to the Trustee.
"Fiscal 1998" means the year ended December 31, 1998.
"Foreign Subsidiary" means a Restricted Subsidiary of the
Company (i) that is organized in a jurisdiction other than the United
States of America or a state thereof or the District of Columbia and (ii)
with respect to which at least 90% of its sales (as determined in
accordance with GAAP) are generated by operations located in
jurisdictions outside the United States of America.
"GAAP" means generally accepted accounting principles in
the United States of America as in effect on the Issue Date, including,
without limitation, those 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 approved by a significant segment of the accounting profession.
"guarantee" means any obligation, contingent or otherwise,
of any Person directly or indirectly guaranteeing any Indebtedness of any
other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness of such other
Person (whether arising by virtue of partnership arrangements, or by
agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions
or otherwise) or (ii) entered into for purposes of assuring in any other
manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in
part); provided, however, that the term "guarantee" shall not include
endorsements for collection or deposit in the ordinary course of
business.
"Holder" or "Securityholder" means the Person in whose
name a Security is registered on the Registrar's books.
"Indebtedness" means with respect to any Person, without
duplication, (i) all obligations of such Person for borrowed money, (ii)
all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all Capitalized Lease Obligations of
such Person, (iv) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations and
all obligations under any title retention agreement (but excluding trade
accounts payable arising in the ordinary course of business), (v) all
obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction, (vi) guarantees and
other contingent obligations in respect of Indebtedness referred to in
clauses (i) through (v) above and clause (viii) below, (vii) all
obligations of any other Person of the type referred to in clauses (i)
through (vi) which are secured by any Lien on any property or asset of
such Person but which obligations are not assumed by such Person, the
amount of such obligation being deemed to be the lesser of the fair
market value of such property or asset or the amount of the obligation so
secured, (viii) all obligations under currency swap agreements and
interest swap agreements of such Person and (ix) all Disqualified Capital
Stock issued by such Person with the amount of Indebtedness represented
by such Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed
repurchase price, but excluding accrued dividends, if any. For purposes
hereof, (x) the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital
Stock as if such Disqualified Capital Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the fair
market value of such Disqualified Capital Stock, such fair market value
shall be determined reasonably and in good faith by the Board of
Directors of the issuer of such Disqualified Capital Stock and (y) any
transfer of accounts receivable or other assets which constitute a sale
for purposes of GAAP shall not constitute Indebtedness hereunder.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Interest Swap Obligations" means the obligations of any
Person, pursuant to any arrangement with any other Person, whereby,
directly or indirectly, such Person is entitled to receive from time to
time periodic payments calculated by applying either a floating or a
fixed rate of interest on a stated notional amount in exchange for
periodic payments made by such other Person calculated by applying a
fixed or a floating rate of interest on the same notional amount.
"Investment" by any Person in any other Person means, with
respect to any Person, any direct or indirect loan or other extension of
credit (including, without limitation, a guarantee) or capital
contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of
Indebtedness issued by, such other Person. "Investment" shall exclude
extensions of trade credit by the Company and its Restricted Subsidiaries
on commercially reasonable terms in accordance with normal trade
practices of the Company or such Restricted Subsidiary, as the case may
be. For the purposes of Section 4.4, (i) the Company shall be deemed to
have made an "Investment" equal to the fair market value of the net
assets of any Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary and the aggregate
amount of Investments made since the Issue Date shall exclude (to the
extent the designation as an Unrestricted Subsidiary was included as a
Restricted Payment) the fair market value of the net assets of any
Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is
designated a Restricted Subsidiary not to exceed the amount of the
Investment deemed made at the date of designation thereof as an
Unrestricted Subsidiary, and (ii) the amount of any Investment shall be
the original cost of such Investment plus the cost of all additional
Investments by the Company or any of its Restricted Subsidiaries, without
any adjustments for increases or decreases in value, or write-ups,
writedowns or write-offs with respect to such Investment, reduced by the
payment of dividends or distributions (including tax sharing payments) in
connection with such Investment or any other amounts received in respect
of such Investment; provided that no such payment of dividends or
distributions or receipt of any such other amounts shall reduce the
amount of any Investment if such payment of dividends or distributions or
receipt of any such amounts would be included in Consolidated Net Income.
If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Common Stock of any direct or indirect
Restricted Subsidiary of the Company such that, after giving effect to
any such sale or disposition, the Company no longer owns, directly or
indirectly, 100% (or 80% in the case of clause (ix) of the definition of
"Permitted Investments") of the outstanding Common Stock of such
Restricted Subsidiary, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair
market value of the Common Stock of such Restricted Subsidiary not sold
or disposed of.
"Investors" means one or more of (i) Merrill Lynch Kecalp
L.P. 1997, (ii) Kecalp Inc., (iii) ML IBK Positions, Inc., (iv) Chase
Equity Associates, L.P., (v) DLJ Merchant Banking Partners II, L.P., DLJ
Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJMB Funding
II, Inc., DLJ Merchant Banking Partners II-A, L.P., DLJ Diversified
Partners-A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium
Partners-A, L.P., UK Investment Plan 1997 Partners, DLJ EAB Partners,
L.P. and DLJ First ESC, LLC, (vi) members of management of the Company
and (vii) any Affiliate of any of the foregoing.
"Issue Date" means the date of original issuance of the
Securities.
"Joint Venture" means a corporation, partnership or other
business entity, other than a Subsidiary of the Company, engaged or
proposed to be engaged in the same or a similar line of business as the
Company in which the Company owns, directly or indirectly, not less than
30% of the total voting power of shares of Capital Stock or other
interests (including partnership interests) entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers and trustees thereof, with the balance of the ownership
interests being held by one or more investors.
"Lien" means any lien, mortgage, deed of trust, pledge,
security interest, charge or 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).
"Merger Agreement" means the Second Amended and Restated
Plan of Merger dated as of November 14, 1997 by and between FSI Merger
Corp. and the Company.
"Minimum Rating" means (i) a rating of at least BBB- (or
equivalent successor rating) by S&P and (ii) a rating of at least Baa3
(or equivalent successor rating) by Moody's.
"Moody's" means Moody's Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means, with respect to any Asset Sale,
the proceeds in the form of cash or Cash Equivalents including payments
in respect of deferred payment obligations when received in the form of
cash or Cash Equivalents (other than the portion of any such deferred
payment constituting interest) received by the Company or any of its
Restricted Subsidiaries from such Asset Sale net of (a) out-of-pocket
expenses and fees relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees and sales
commissions), (b) taxes paid or payable after taking into account any
reduction in consolidated tax liability due to available tax credits or
deductions and any tax sharing arrangements, (c) repayment of Senior
Indebtedness that is required to be repaid in connection with such Asset
Sale, (d) any portion of cash proceeds which the Company determines in
good faith should be reserved for post-closing adjustments, it being
understood and agreed that on the day that all such post-closing
adjustments have been determined, the amount (if any) by which the
reserved amount in respect of such Asset Sale exceeds the actual
post-closing adjustments payable by the Company or any of its
Subsidiaries shall constitute Net Cash Proceeds on such date; provided
that, in the case of the sale by the Company of an asset constituting an
Investment made after the Issue Date (other than a Permitted Investment),
the "Net Cash Proceeds" in respect of such Asset Sale shall not include
the lesser of (x) the cash received with respect to such Asset Sale and
(y) the initial amount of such Investment, less, in the case of clause
(y), all amounts (up to an amount not to exceed the initial amount of
such Investment) received by the Company with respect to such Investment,
whether by dividend, sale, liquidation or repayment, in each case prior
to the date of such Asset Sale.
"New Credit Facility" means the credit agreement to be
dated as of the Issue Date, among the Company, the other borrowers
thereto from time to time, if any, the lenders party thereto from time to
time and The Chase Manhattan Bank, as administrative agent, Merrill Lynch
Capital Corporation, as syndication agent and DLJ Capital Funding, Inc.,
as documentation agent, together with the related documents thereto
(including, without limitation, any guarantee agreements, promissory
notes and collateral documents), in each case as such agreements may be
amended, supplemented or otherwise modified from time to time, or
refunded, refinanced, restructured, replaced, renewed, repaid or extended
from time to time (whether with the original agents and lenders or other
agents and lenders or otherwise, and whether provided under the original
New Credit Facility or one or more other credit agreements or otherwise)
to increase the amount of available borrowings thereunder or to add
Restricted Subsidiaries as additional borrowers or guarantors or
otherwise.
"Obligations" means all obligations for principal,
premium, interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing
any Indebtedness, without duplication.
"Offering Memorandum" means the Offering Memorandum dated
January 13, 1998 relating to the Initial Securities; provided that after
the issuance of Exchange Securities, all references herein to "Offering
Memorandum" shall be deemed references to the prospectus relating to the
Exchange Securities.
"Officer" means the Chairman of the Board, the President,
any Vice President, the Treasurer or the Secretary of the Company, as
applicable.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be
an employee of or counsel to the Company or the Trustee.
"Permitted Holder" means and includes (i) the Principal or
any of its Affiliates, (ii) the Investors or any of their Affiliates,
(iii) any corporation the outstanding voting power of the Capital Stock
of which is beneficially owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as
their ownership of the voting power of the Capital Stock of the Company,
(iii) any Plan, (iv) any underwriter during the period engaged in a firm
commitment underwriting on behalf of the Company with respect to the
shares of Capital Stock being underwritten or (v) the Company or any
Subsidiary of the Company.
"Permitted Indebtedness" means, without duplication, (i)
the Securities, (ii) Indebtedness incurred pursuant to the New Credit
Facility in an aggregate principal amount at any time outstanding not to
exceed $469.2 million less (A) the amount of all mandatory principal
payments actually made by the Company in respect of term loans thereunder
(excluding any such payments to the extent refinanced at the time of
payment under a New Credit Facility) and (B) in the case of a revolving
facility, reduced by any required permanent repayments actually made
(which are accompanied by a corresponding permanent commitment reduction)
thereunder (excluding any such repayments and commitment reductions to
the extent refinanced and replaced at the time under a New Credit
Facility), (iii) Indebtedness of Foreign Subsidiaries incurred solely for
working capital purposes of such Foreign Subsidiaries, (iv) other
Indebtedness of the Company and its Restricted Subsidiaries outstanding
on the Issue Date reduced by the amount of any scheduled amortization
payments or mandatory prepayments when actually paid or permanent
reductions thereon, (v) Interest Swap Obligations of the Company or any
of its Restricted Subsidiaries covering Indebtedness of the Company or
any of its Restricted Subsidiaries; provided that any Indebtedness to
which any such Interest Swap Obligations correspond is otherwise
permitted to be incurred under this Indenture; provided, further, that
such Interest Swap Obligations are entered into, in the judgment of the
Company, to protect the Company and its Restricted Subsidiaries from
fluctuation in interest rates on their respective outstanding
Indebtedness, (vi) Indebtedness of the Company or any of its Restricted
Subsidiaries under Currency Agreements entered into, in the judgment of
the Company, to protect the Company or such Restricted Subsidiary of the
Company from foreign currency exchange rates, (vii) intercompany
Indebtedness owed by any Restricted Subsidiary of the Company to the
Company or any Restricted Subsidiary of the Company or by the Company to
any Restricted Subsidiary of the Company, (viii) Acquired Indebtedness of
the Company or any Restricted Subsidiary of the Company to the extent the
Company could have incurred such Indebtedness in accordance with Section
4.3 on the date such Indebtedness became Acquired Indebtedness; provided
that, in the case of Acquired Indebtedness of a Restricted Subsidiary of
the Company, such Acquired Indebtedness was not incurred in connection
with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company, (ix) Indebtedness arising from the
honoring by a bank or other financial institution of a check, draft or
other similar instrument inadvertently drawn against insufficient funds
in the ordinary course of business; provided that such Indebtedness is
extinguished within five Business Days of its incurrence, (x) any
refinancing, modification, replacement, renewal, restatement, refunding,
deferral, extension, substitution, supplement, reissuance or resale of
existing or future Indebtedness, including any additional Indebtedness
incurred to pay interest or premiums required by the instruments
governing such existing or future Indebtedness as in effect at the time
of issuance thereof ("Required Premiums") and fees in connection
therewith; provided that any such event shall not (1) result in an
increase in the aggregate principal amount of Permitted Indebtedness
(except to the extent such increase is a result of a simultaneous
incurrence of additional Indebtedness (A) to pay Required Premiums and
related fees or (B) otherwise permitted to be incurred under this
Indenture) of the Company and its Restricted Subsidiaries and (2) create
Indebtedness with a Weighted Average Life to Maturity at the time such
Indebtedness is incurred that is less than the Weighted Average Life to
Maturity at such time of the Indebtedness being refinanced, modified,
replaced, renewed, restated, refunded, deferred, extended, substituted,
supplemented, reissued or resold (except that this subclause (2) will not
apply in the event the Indebtedness being refinanced, modified, replaced,
renewed, restated, refunded, deferred, extended, substituted,
supplemented, reissued or resold was originally incurred in reliance upon
clause (vii) or (xvi) of this definition); provided that no Restricted
Subsidiary of the Company may refinance any Indebtedness pursuant to this
clause (x) other than its own Indebtedness, (xi) Indebtedness (including
Capitalized Lease Obligations) incurred by the Company 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
outstanding not to exceed $30 million at the time of any incurrence
thereof (which amount shall be deemed not to include any such
Indebtedness incurred in whole or in part under the New Credit Facility
to the extent permitted by clause (ii) above), (xii) the incurrence by a
Receivables Entity of Indebtedness in a Qualified Receivables Transaction
that is not recourse to the Company or any Restricted Subsidiary of the
Company (except for Standard Securitization Undertakings), (xiii)
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,
(xiv) Indebtedness arising from agreements of the Company or a Restricted
Subsidiary of the Company providing for indemnification, adjustment of
purchase price, earn out or other similar obligations, in each case,
incurred or assumed in connection with the disposition of any business,
assets or a Restricted Subsidiary of the Company, other than guarantees
of Indebtedness incurred by any Person acquiring all or any portion of
such business, assets or Restricted Subsidiary of the Company for the
purpose of financing such acquisition, provided that the maximum
assumable liability in respect of all such Indebtedness shall at no time
exceed the gross proceeds actually received by the Company and its
Restricted Subsidiaries in connection with such disposition, (xv)
obligations in respect of performance and surety bonds and completion
guarantees provided by the Company or any Restricted Subsidiary of the
Company in the ordinary course of business, (xvi) Indebtedness consisting
of guarantees (x) by the Company of Indebtedness, leases and any other
obligation or liability permitted to be incurred under this Indenture by
Restricted Subsidiaries of the Company, and (y) subject to Section 4.11,
by Restricted Subsidiaries of the Company of Indebtedness, leases and any
other obligation or liability permitted to be incurred under this
Indenture by the Company or other Restricted Subsidiaries of the Company,
and (xvii) additional Indebtedness of the Company or any Restricted
Subsidiary of the Company in an aggregate principal amount not to exceed
$20 million at any one time outstanding (which amount should not be
deemed to include any such Indebtedness incurred in whole or in part
under the New Credit Facility to the extent permitted by clause (ii)
above).
"Permitted Investments" means (i) Investments by the
Company or any Restricted Subsidiary of the Company in any Restricted
Subsidiary of the Company (whether existing on the Issue Date or created
thereafter) and Investments in the Company by any Restricted Subsidiary
of the Company; (ii) cash and Cash Equivalents; (iii) Investments
existing on the Issue Date and Investments made on the Issue Date
pursuant to the Merger Agreement; (iv) loans and advances to employees,
officers and directors of the Company and its Restricted Subsidiaries not
in excess of $1 million at any one time outstanding; (v) accounts
receivable owing to the Company or any Restricted Subsidiary of the
Company created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such concessionary
trade terms as the Company or such Restricted Subsidiary of the Company
deems reasonable under the circumstances; (vi) Currency Agreements and
Interest Swap Obligations entered into by the Company or any of its
Restricted Subsidiaries for bona fide business reasons and not for
speculative purposes and otherwise in compliance with this Indenture;
(vii) Investments in securities of trade creditors or customers received
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers; (viii)
guarantees by the Company or any of its Restricted Subsidiaries of
Indebtedness otherwise permitted to be incurred by the Company or any of
its Restricted Subsidiaries under this Indenture; (ix) Investments by the
Company or any Restricted Subsidiary of the Company in a Person, if as a
result of such Investment (A) such Person becomes a Restricted Subsidiary
of the Company or (B) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys all or substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary
of the Company; (x) additional Investments having an aggregate fair
market value, taken together with all other Investments made pursuant to
this clause (x) that are at the time outstanding, not exceeding $5
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), plus an amount equal to (A) 100% of the
aggregate net cash proceeds received by the Company from any Person
(other than a Subsidiary of the Company) from the issuance and sale
subsequent to the Issue Date of Qualified Capital Stock of the Company
(including Qualified Capital Stock issued upon the conversion of
convertible Indebtedness or in exchange for outstanding Indebtedness or
as capital contributions to the Company (other than from a Subsidiary))
and (B) without duplication of any amounts included in clause (x)(A)
above, 100% of the aggregate net cash proceeds of any equity contribution
received by the Company from a holder of the Company's Capital Stock,
that in the case of amounts described in clause (x)(A) or (x)(B) are
applied by the Company within 180 days after receipt, to make additional
Permitted Investments under this clause (x) (such additional Permitted
Investments being referred to collectively as "Stock Permitted
Investments"); (xi) any Investment by the Company or a Restricted
Subsidiary of the Company in a Receivables Entity or any Investment by a
Receivables Entity in any other Person in connection with a Qualified
Receivables Transaction, including investments of funds held in accounts
permitted or required by the arrangements governing such Qualified
Receivables Transaction or any related Indebtedness; provided that any
Investment in a Receivables Entity is in the form of a Purchase Money
Note, contribution of additional Receivables or an equity interest; (xii)
Investments received by the Company or its Restricted Subsidiaries as
consideration for asset sales, including Asset Sales; provided in the
case of an Asset Sale, (A) such Investment does not exceed 25% of the
consideration received for such Asset Sale and (B) such Asset Sale is
otherwise effected in compliance with Section 4.6; (xiii) Investments by
the Company or its Restricted Subsidiaries in Joint Ventures in an
aggregate amount not in excess of $25 million; and (xiv) that portion of
any Investment where the consideration provided by the Company is Capital
Stock of the Company (other than Disqualified Capital Stock). Any net
cash proceeds that are used by the Company or any of its Restricted
Subsidiaries to make Stock Permitted Investments pursuant to clause (x)
of this definition shall not be included in subclauses (x) and (y) of
clause (iii) of Section 4.4(a).
"Permitted Liens" means the following types of Liens:
(i) Liens securing the Securities;
(ii) Liens securing Acquired Indebtedness incurred in
reliance on clause (viii) of the definition of Permitted
Indebtedness; provided that such Liens do not extend to or cover
any property or assets of the Company or of any of its
Restricted Subsidiaries other than the property or assets that
secured the Acquired Indebtedness prior to the time such
Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary of the Company;
(iii) Liens existing on the Issue Date, together with any
Liens securing Indebtedness incurred in reliance on clause (xi)
of the definition of Permitted Indebtedness in order to
refinance the Indebtedness secured by Liens existing on the
Issue Date; provided that the Liens securing the refinancing
Indebtedness shall not extend to property other than that
pledged under the Liens securing the Indebtedness being
refinanced;
(iv) Liens in favor of the Company on the property or
assets, or any proceeds, income or profit therefrom, of any
Restricted Subsidiary of the Company; and
(v) other Liens securing Senior Subordinated Indebtedness,
provided that the maximum aggregate amount of outstanding
obligations secured thereby shall not at any time exceed $5
million.
"Person" means an individual, partnership, corporation,
unincorporated organization, trust or joint venture, or a governmental
agency or political subdivision thereof or any other entity.
"Plan" means any employee benefit plan, retirement plan,
deferred compensation plan, restricted stock plan, health, life,
disability or other insurance plan or program, employee stock purchase
plan, employee stock ownership plan, pension plan, stock option plan or
similar plan or arrangement of the Company or any Subsidiary of the
Company, or other successor plan thereof, and "Plans" shall have a
correlative meaning.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights to any other Capital Stock of
such Person with respect to dividends or redemptions or upon liquidation.
"Principal" means Thomas H. Lee Company and its
Affiliates.
"Productive Assets" means assets (including Capital Stock
of a Person that directly or indirectly owns assets) of a kind used or
usable in the businesses of the Company and its Restricted Subsidiaries
as, or related to such business, conducted on the date of the relevant
Asset Sale.
"Purchase Money Note" means a promissory note of a
Receivables Entity evidencing a line of credit, which may be irrevocable,
from the Company or any Subsidiary of the Company in connection with a
Qualified Receivables Transaction to a Receivables Entity, which note (a)
shall be repaid from cash available to the Receivables Entity, other than
(i) amounts required to be established as reserves pursuant to
agreements, (ii) amounts paid to investors in respect of interest, (iii)
principal and other amounts owing to such investors and amounts owing to
such investors and (iv) amounts paid in connection with the purchase of
newly generated receivables and (b) may be subordinated to the payments
described in (a).
"QIB" means any "qualified institutional buyer" (as
defined under the Securities Act).
"Qualified Capital Stock" means any stock that is not
Disqualified Capital Stock.
"Qualified Receivables Transaction" means any transaction
or series of transactions that may be entered into by the Company or any
of its Subsidiaries pursuant to which the Company or any or its
Subsidiaries may sell, convey or otherwise transfer to (a) a Receivables
Entity (in the case of a transfer by the Company or any of its
Subsidiaries) and (b) any other Person (in the case of a transfer by a
Receivables Entity), or may grant a security interest in, any accounts
receivable (whether now existing or arising in the future) of the Company
or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and all guarantees or other obligations in respect of such
accounts receivable, proceeds of such accounts receivable and other
assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving accounts receivable. The grant of a security
interest in any accounts receivable of the Company or any of its
Restricted Subsidiaries to secure Bank Indebtedness shall not be deemed a
Qualified Receivables Transaction.
"Recapitalization" means the transaction contemplated by
the Merger Agreement, together with the financings therefor.
"Receivables Entity" means a Wholly Owned Subsidiary of
the Company (or another Person in which the Company or any Subsidiary of
the Company makes an Investment and to which the Company or any
Subsidiary of the Company transfers accounts receivable and related
assets) which engages in no activities other than in connection with the
financing of accounts receivable, all proceeds thereof and all rights
(contractual or other), collateral and other assets relating thereto, and
any business or activities incidental or related to such business, and
which is designated by the Board of Directors of the Company (as provided
below) as a Receivables Entity (a) no portion of the Indebtedness or any
other Obligations (contingent or otherwise) of which (i) is guaranteed by
the Company or any Subsidiary of the Company (excluding guarantees of
Obligations (other than the principal of, and interest on, Indebtedness)
pursuant to Standard Securitization Undertakings), (ii) is recourse to or
obligates the Company or any Subsidiary of the Company in any way other
than pursuant to Standard Securitization Undertakings or (iii) subjects
any property or asset of the Company or any Subsidiary of the Company,
directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings, (b)
with which neither the Company nor any Subsidiary of the Company has any
material contract, agreement, arrangement or understanding other than on
terms which the Company reasonably believes to be no less favorable to
the Company or such Subsidiary than those that might be obtained at the
time from Persons that are not Affiliates of the Company, other than fees
payable in the ordinary course of business in connection with servicing
accounts receivable, and (c) to which neither the Company nor any
Subsidiary of the Company has any obligation to maintain or preserve such
entity's financial condition or cause such entity to achieve certain
levels of operating results other than through the contribution of
additional Receivables, related security and collections thereto and
proceeds of the foregoing. Any such designation by the Board of Directors
of the Company shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the resolution of the Board of Directors of
the Company giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions.
"Redemption Event" shall mean (i) an underwritten initial
public offering of the common stock of the Company or (ii) a Change of
Control.
"Registered Exchange Offer" shall have the meaning set
forth in the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration
Rights Agreement, dated January 21, 1998, among the Company, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Chase Securities Inc. and
Donaldson, Lufkin & Jenrette Securities Corporation.
"Representative" means the indenture trustee or other
trustee, agent or representative in respect of any Designated Senior
Indebtedness; provided that if, and for so long as, any Designated Senior
Indebtedness lacks such a representative, then the Representative for
such Designated Senior Indebtedness shall at all times constitute the
holders of a majority in outstanding principal amount of such Designated
Senior Indebtedness in respect of any Designated Senior Indebtedness.
"Restricted Subsidiary" of any Person means any Subsidiary
of such Person which at the time of determination is not an Unrestricted
Subsidiary.
"S&P" means Standard & Poor's Ratings Service, a division
of The McGraw-Hill Companies, Inc., and its successors.
"Sale and Leaseback Transaction" means any direct or
indirect arrangement with any Person or to which any such Person is a
party, providing for the leasing to the Company or a Restricted
Subsidiary of any property, whether owned by the Company or any
Restricted Subsidiary at the Issue Date or later acquired, which has been
or is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person or to any other Person from whom funds have
been or are to be advanced by such Person on the security of such
Property.
"Secured Indebtedness" means any Indebtedness of the
Company secured by a Lien.
"Securityholder" or "Holder" means the Person in whose
name a Security is registered on the Registrar's books.
"Securities Custodian" means the trustee as custodian for
the Depository.
"Senior Indebtedness" means (i) Bank Indebtedness and (ii)
all Indebtedness of the Company including interest thereon (including
interest accruing on or after the filing of any petition in bankruptcy or
for reorganization relating to the Company or any Restricted Subsidiary
of the Company whether or not a claim for post-filing interest is allowed
in such proceedings), whether outstanding on the Issue Date or thereafter
incurred, unless in the instrument creating or evidencing the same or
pursuant to which the same is outstanding it is expressly provided that
such obligations are not superior in right of payment to the Securities;
provided, however, that Senior Indebtedness shall not include (1) any
obligation of the Company to any Subsidiary of the Company, (2) any
liability for Federal, state, local or other taxes owed or owing by the
Company, (3) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including guarantees thereof
or instruments evidencing such liabilities), (4) any Indebtedness of the
Company which is expressly subordinate in right of payment to any other
Indebtedness of the Company, including any Senior Subordinated
Indebtedness and any Subordinated Obligations, (5) any obligations with
respect to any Capital Stock or (6) that portion of any Indebtedness
incurred in violation of Section 4.3 (but, as to any such obligation, no
such violation shall be deemed to exist for purposes of this clause (6)
if the holders(s) of such obligation or their representative and the
Trustee shall have received an Officers' Certificate of the Company to
the effect that the incurrence of such Indebtedness does not (or, in the
case of revolving credit Indebtedness, that the incurrence of the entire
committed amount thereof at the date on which the initial borrowing
thereunder is made would not) violate such provisions of this Indenture).
"Senior Subordinated Indebtedness" means the Securities
and any other Indebtedness of the Company that specifically provides that
such Indebtedness is to rank pari passu with the Securities and is not by
its express terms subordinate in right of payment to any Indebtedness of
the Company which is not Senior Indebtedness.
"Shelf Registration Statement" has the meaning ascribed
thereto in the Registration Rights Agreement.
"Significant Subsidiary" means, as of any date of
determination, for any Person, each Restricted Subsidiary of such Person
which (i) for the most recent fiscal year of such Person accounted for
more than 10% of consolidated revenues or consolidated net income of such
Person or (ii) as at the end of such fiscal year, was the owner of more
than 10% of the consolidated assets of such Person.
"Standard Securitization Undertakings" means
representations, warranties, covenants and indemnities entered into by
the Company or any Subsidiary of the Company which the Company reasonably
believes to be customary in an accounts receivable transaction.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision.
"Subordinated Obligation" means any Indebtedness of the
Company (whether outstanding on the Issue Date or thereafter incurred)
which is expressly subordinate in right of payment to the Securities
pursuant to a written agreement.
"Subsidiary" means, with respect to any Person, (i) any
corporation of which the outstanding Capital Stock having at least a
majority of the votes entitled to be cast in the election of directors
under ordinary circumstances shall at the time be owned, directly or
indirectly, by such Person or (ii) any other Person of which at least a
majority of the voting interest under ordinary circumstances is at the
time, directly or indirectly, owned by such Person.
"Subsidiary Guarantor" means a Restricted Subsidiary of
the Company that executes and delivers a supplemental Indenture pursuant
to Section 4.11.
"THL Co." means Thomas H. Lee Company, a financial
investment firm.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
ss.ss. 77aaa-77bbbb) as in effect on the date of this Indenture.
"Transfer Restricted Securities" means Securities that
bear or are required to bear the legend set forth in Section 2.6 hereof.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity
(as compiled and published in the most recent Federal Reserve Statistical
Release H.15(519) which has become publicly available at least two
Business Days prior to the date fixed for prepayment (or, if such
Statistical Release is no longer published, any publicly available source
of similar market data)) most nearly equal to the then remaining term to
February 1, 2003; provided, however, that if the then remaining term to
February 1, 2003 is not equal to the constant maturity of a United States
Treasury security for which a weekly average yield is given, the Treasury
Rate shall be obtained by linear interpolation (calculated to the nearest
one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the
then remaining term to February 1, 2003 is less than one year, the weekly
average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used.
"Trust Officer" means any officer of the Trustee assigned
by the Trustee to administer this Indenture, or in the case of a
successor trustee, an officer assigned to the department, division or
group performing the corporation trust work of such successor and
assigned to administer this Indenture.
"Unrestricted Subsidiary" of any Person means (i) any
Subsidiary of such Person that at the time of determination shall be or
continue to be designated an Unrestricted Subsidiary by the Board of
Directors of such Person in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may
designate any Subsidiary (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns
any Capital Stock of, or owns or holds any Lien on any property of, the
Company or any other Subsidiary of the Company that is not a Subsidiary
of the Subsidiary to be so designated; provided that (x) the Company
certifies to the Trustee that such designation complies with Section 4.4
and (y) each Subsidiary to be so designated and each of 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 of the Company only
if (x) immediately after giving effect to such designation and treating
all Indebtedness of such Unrestricted Subsidiary as being incurred on
such date, the Company is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.3 and (y) immediately before and immediately after giving
effect to such designation, no Default or Event of Default shall have
occurred and be continuing. Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complies with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations of,
and obligations guaranteed by, the United States of America for the
payment of which the full faith and credit of the United States of
America is pledged.
"U.S. Legal Tender" means such coin or currency of the
United States of America as at the time of payment shall be legal tender
for the payment of public and private debts.
"Weighted Average Life to Maturity" means, when applied to
any Indebtedness at any date, the number of years obtained by dividing
(a) the then outstanding aggregate principal amount of such Indebtedness
into (b) the sum of the total of the products obtained by multiplying (i)
the amount of each then remaining installment, sinking fund, serial
maturity or other required payment of principal, including payment at
final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) which will elapse between such
date and the making of such payment.
"Wholly Owned Subsidiary" means any Restricted Subsidiary
of the Company all the outstanding voting securities of which (other than
directors, qualifying shares or an immaterial amount of shares required
to be owned by other Persons pursuant to applicable law) are owned,
directly or indirectly, by the Company.
SECTION 1.2. Other Definitions.
Defined in
Term Section
"Affiliate Transaction".............................. 4.7
"Agent Member"....................................... 2.1
"Bankruptcy Law"..................................... 6.1
"Blockage Notice".................................... 10.3
"Change of Control Offer"............................ 4.8
"Change of Control Payment Date"..................... 4.8(b)
"covenant defeasance option"......................... 8.1(b)
"Custodian".......................................... 6.1
"Definitive Securities".............................. 2.1
"Event of Default"................................... 6.1
"Exchange Securities"................................ Preamble
"Global Security".................................... 2.1(b)
"incur".............................................. 4.3
"Initial Securities"................................. Preamble
"legal defeasance option"............................ 8.1(b)
"Legal Holiday"...................................... 13.8
"Net Proceeds Offer"................................. 4.6
"Net Proceeds Offer Amount".......................... 4.6
"Net Proceeds Offer Trigger Date".................... 4.6
"Non-Global Purchaser"............................... 2.1
"Note Offer Amount".................................. 4.6(a)
"Offer".............................................. 4.6
"Other Debt"......................................... 6.1
"pay the Securities"................................. 10.3
"Paying Agent"....................................... 2.3
"Payment Blockage Period"............................ 10.3
"Reference Date"..................................... 4.4(a)
"Registrar".......................................... 2.3
"Restricted Payment"................................. 4.4
"Rule 144A".......................................... 2.1(b)
"Securities"......................................... Preamble
"Successor Company".................................. 5.1
"Trustee"............................................ Preamble
SECTION 1.3. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA
which are incorporated by reference in and made a part of this Indenture.
The following TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company
and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by the TIA reference to another statute or
defined by SEC rule have the meanings assigned to them by such
definitions.
SECTION 1.4. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in
the plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue
of its nature as unsecured Indebtedness;
(7) the principal amount of any non interest bearing or
other discount security at any date shall be the principal
amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be
(i) the maximum liquidation preference of such Preferred Stock
or (ii) the maximum mandatory redemption or mandatory repurchase
price with respect to such Preferred Stock, whichever is
greater.
ARTICLE II
THE SECURITIES
SECTION 2.1. Form and Dating. (a) The Initial Securities
and the Trustee's certificate of authentication shall be substantially in
the form of Exhibit A, which is hereby incorporated in and expressly made
a part of this Indenture. The Exchange Securities and the Trustee's
certificate of authentication shall be substantially in the form of
Exhibit B, which is hereby incorporated by reference and expressly made a
part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage, in addition
to those set forth on Exhibits A and B. The Company and the Trustee shall
approve the forms of the Securities and any notation, endorsement or
legend on them. Each Security shall be dated the date of its
authentication. The terms of the Securities set forth in Exhibit A and
Exhibit B are part of the terms of this Indenture and, to the extent
applicable, the Company, and the Trustee, by their execution and delivery
of this Indenture, expressly agree to be bound by such terms.
(b) GLOBAL SECURITIES. The Initial Securities are being
offered and sold by the Company pursuant to a Purchase Agreement, dated
January 21, 1998, among the Company, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Chase Securities Inc. and Donaldson, Lufkin &
Jenrette Securities Corporation (the "Purchase Agreement").
Initial Securities offered and sold to a QIB in reliance
on Rule 144A under the Securities Act ("Rule 144A") as provided in the
Purchase Agreement, shall be issued initially in the form of one or more
permanent global Securities in definitive, fully registered form without
interest coupons with the Global Securities Legend and Restricted
Securities Legend set forth in Exhibit A hereto (each, a "Global
Security"), which shall be deposited on behalf of the purchasers of the
Initial Securities represented thereby with the Trustee, at its corporate
trust office, as custodian for the Depository, and registered in the name
of the Depository or a nominee of the Depository, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Global Securities may from time to time
be increased or decreased by endorsements made on such Global Securities
by the Trustee, the Securities Custodian or the Depository or its nominee
as hereinafter provided.
(c) BOOK-ENTRY PROVISIONS. This Section 2.1(c) shall apply
only to Global Securities.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depository or by the Trustee
as the custodian of the Depository or under such Global Security, and the
Depository may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or an agent of the Company
or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices of
the Depository governing the exercise of the rights of a holder of a
beneficial interest in any Global Security.
(d) CERTIFICATED SECURITIES. Except as provided in Section
2.6, owners of beneficial interests in Global Securities will not be
entitled to receive Definitive Securities (as hereinafter defined).
Initial Securities offered and sold to Persons who are not QIBs (referred
to herein as the "Non-Global Purchasers"), as provided in the Purchase
Agreement, shall be issued initially to such Persons in the form of
certificated Initial Securities bearing the Restricted Securities Legend
set forth in Exhibit A hereto ("Definitive Securities"); provided,
however, that upon transfer of such Definitive Securities to a QIB, such
Definitive Securities will, unless the Global Security has previously
been exchanged, be exchanged for an interest in a Global Security
pursuant to the provisions of Section 2.6 hereof. Definitive Securities
will bear the Restricted Securities Legend set forth on Exhibit A unless
removed in accordance with Section 2.6(f) hereof.
SECTION 2.2. Execution and Authentication. Two Officers
shall sign the Securities for the Company by manual or facsimile
signature. The Company's seal shall be impressed, affixed, imprinted or
reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer
holds that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless.
A Security shall not be valid until an authorized
signatory of the Trustee manually authenticates the Security. The
signature of the Trustee on a Security shall be conclusive evidence that
such Security has been duly and validly authenticated and issued under
this Indenture.
The Trustee shall authenticate and deliver: (1) Initial
Securities for original issue in an aggregate principal amount of $400
million and (2) Exchange Securities for issue only in a Registered
Exchange Offer pursuant to the Registration Rights Agreement, and only in
exchange for Initial Securities of an equal principal amount, in each
case upon a written order of the Company signed by two Officers or by an
Officer and either an Assistant Treasurer or an Assistant Secretary of
the Company. Such order shall specify the amount of the Securities to be
authenticated and the date on which the original issue of Securities is
to be authenticated and whether the Securities are to be Initial
Securities or Exchange Securities. The aggregate principal amount of
Securities outstanding at any time may not exceed $400 million except as
provided in Section 2.7.
The Trustee may appoint an agent (the "Authenticating
Agent") reasonably acceptable to the Company to authenticate the
Securities. Unless limited by the terms of such appointment, any such
Authenticating Agent may authenticate Securities whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent.
SECTION 2.3. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar") and an office
or agency where Securities may be presented for payment (the "Paying
Agent"). The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar not a party to
this Indenture, which shall incorporate the terms of the TIA. The
agreement shall implement the provisions of this Indenture that relate to
such agent. The Company shall notify the Trustee of the name and address
of each such agent. If the Company fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.7. The Company or
any of its domestically incorporated Wholly Owned Restricted Subsidiaries
may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar
and Paying Agent for the Securities.
SECTION 2.4. Paying Agent to Hold Money in Trust. By at
least 10:00 A.M. (New York City time) on the date on which any principal
of or interest on any Security is due and payable, the Company shall
deposit with the Paying Agent a sum sufficient to pay such principal or
interest when due. The Company shall require each Paying Agent (other
than the Trustee) to agree in writing that such Paying Agent shall hold
in trust for the benefit of Securityholders or the Trustee all money held
by such Paying Agent for the payment of principal of or interest on the
Securities and shall notify the Trustee of any default by the Company in
making any such payment. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund. The Company at any time may require a Paying
Agent (other than the Trustee) to pay all money held by it to the Trustee
and to account for any funds disbursed by such Paying Agent. Upon
complying with this Section, the Paying Agent (if other than the Company
or a Subsidiary) shall have no further liability for the money delivered
to the Trustee. Upon any bankruptcy, reorganization or similar proceeding
with respect to the Company, the Trustee shall serve as Paying Agent for
the Securities.
SECTION 2.5. Securityholder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee, in writing at least seven Business Days before
each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.6. Transfer and Exchange.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When
Definitive Securities are presented by a Holder to the Registrar or a
co-registrar with a request:
(x) to register the transfer of such Definitive
Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such transaction
are met; provided, however, that:
(i) such Definitive Securities shall be duly endorsed or
accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar or
co-registrar, duly executed by such Holder or his attorney duly
authorized in writing; and
(ii) if such Definitive Securities are Transfer Restricted
Securities, such Definitive Securities shall also be accompanied
by the following additional information and documents, as
applicable:
(A) if such Transfer Restricted Securities are
being delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect (in the form set forth on the reverse of the
Security); or
(B) if such Transfer Restricted Securities are
being transferred (x) to the Company or to a QIB in
accordance with Rule 144A under the Securities Act or
(y) pursuant to an effective registration statement
under the Securities Act, a certification from such
Holder to that effect (in the form set forth on the
reverse of the Security); or
(C) if such Transfer Restricted Securities are
being transferred (w) pursuant to an exemption from
registration in accordance with Rule 144 or Regulation
S under the Securities Act; or (x) in reliance on
another exemption from the registration requirements of
the Securities Act: (i) a certification to that effect
from such Holder (in the form set forth on the reverse
of the Security) and (ii) if the Company or the Trustee
so requests, an Opinion of Counsel reasonably
acceptable to the Company and to the Trustee to the
effect that such transfer is in compliance with the
Securities Act.
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR
A BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Definitive Security may not
be exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a Definitive Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee,
together with:
(i) certification, in the form set forth on the reverse of
the Security, to the effect that such Definitive Security is
being transferred to a QIB in accordance with Rule 144A under
the Securities Act; and
(ii) written instructions from the Holder thereof
directing the Trustee to make, or to direct the Securities
Custodian to make, an endorsement on the Global Security to
reflect an increase in the aggregate principal amount of the
Securities represented by the Global Security,
then the Trustee shall cancel such Definitive Security and cause, or
direct the Securities Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depository and the
Securities Custodian, the aggregate principal amount of Securities
represented by the Global Security to be increased accordingly. If no
Global Securities are then outstanding, the Company shall issue and the
Trustee shall authenticate, upon written order of the Company in the form
of an Officers' Certificate, a new Global Security in the appropriate
principal amount. The Trustee shall deliver copies of each certification
and instruction received by it pursuant to clauses (i) and (ii) above to
the Depository and, upon receipt thereof, the Depository shall make
appropriate adjustments to its books and records to reflect exchange of
such Definitive Security for an interest in the Global Security in
accordance with Section 2.6(c).
(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. (i) The
transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depository, in accordance with this
Indenture (including applicable restrictions on transfer set forth
herein, if any) and the procedures of the Depository therefor.
(ii) A Global Security deposited with the Depository or
with the Trustee as custodian for the Depository pursuant to Section 2.1
shall be transferred to the beneficial owners thereof only if such
transfer complies with this Section 2.6 and (i) the Depository notifies
the Company that it is unwilling or unable to continue as Depository for
such Global Security or if at any time such Depository ceases to be a
"clearing agency" registered under the Exchange Act and a successor
depositary is not appointed by the Company within 90 days of such notice,
or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depository or the Trustee to
issue Definitive Securities.
(iii) Any Global Security that is transferable to the
beneficial owners thereof pursuant to this Section shall be surrendered
by the Depository to the Trustee to be so transferred, in whole or from
time to time in part, without charge, and the Company shall sign and the
Trustee shall authenticate and deliver, upon such transfer of each
portion of such Global Security, an equal aggregate principal amount of
Definitive Securities of authorized denominations. Each Definitive
Security delivered in exchange for any portion of a Global Security
transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple
thereof and shall be registered in such names as the Depository shall
direct. Any Definitive Security delivered in exchange for an interest in
the Global Security shall, except as otherwise provided in Section
2.6(f), bear the Restricted Securities Legend set forth in Exhibit A
hereto.
(iv) The registered Holder of a Global Security 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
Securities.
(v) In the event of the occurrence of either of the events
specified in Section 2.6(c)(ii), the Company will promptly make available
to the Trustee a reasonable supply of certificated Securities in
definitive, fully registered form without interest coupons.
(d) Restriction on Transfer of a Beneficial Interest in a
Global Security for a Definitive Security.
(i) Any person having a beneficial interest in a Global
Security may upon request exchange such beneficial interest for a
Definitive Security of the same aggregate principal amount; provided that
such request is accompanied by the information specified below. Upon
receipt by the Trustee of written instructions (or such other form of
instructions as is customary for the Depository) from the Depository or
its nominee on behalf of any Person having a beneficial interest in a
Global Security and, in the case of a Transfer Restricted Security, the
following additional information and documents (all of which may be
submitted by facsimile):
(A) if such beneficial interest is being transferred to
the Person designated by the Depository as being the owner of a
beneficial interest in a Global Security, a certification from
such Person to that effect (in the form set forth on the reverse
of the Security); or
(B) if such beneficial interest is being transferred (x)
to a QIB in accordance with Rule 144A under the Securities Act
and such QIB does not desire to hold such transferred interest
through beneficial ownership in a Global Security or (y)
pursuant to an effective registration statement under the
Securities Act, a certification from such person to that effect
(in the form set forth on the reverse of the Security); or
(C) if such beneficial interest is being transferred (w)
pursuant to an exemption from registration in accordance with
Rule 144 or Regulation S under the Securities Act; or (x) in
reliance on another exemption from the registration requirements
of the Securities Act: (i) a certification to that effect from
the transferee (in the form set forth on the reverse of the
Security) and (ii) if the Company or the Trustee so requests, an
Opinion of Counsel reasonably acceptable to the Company and to
the Trustee to the effect that such transfer is in compliance
with the Securities Act;
then the Securities Custodian, at the direction of the Trustee, will
cause, in accordance with the standing instructions and procedures
existing between the Depository and the Securities Custodian, the
aggregate principal amount of the Global Security to be reduced
accordingly and, following such reduction, the Company will execute and
the Trustee will authenticate and deliver to the transferee one or more
Definitive Securities in accordance with clause (ii) below.
(ii) Definitive Securities issued in exchange for a
beneficial interest in a Global Security pursuant to this Section 2.6(d)
shall be registered in such names and in such authorized denominations as
the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The
Trustee shall deliver such Definitive Securities to the Persons in whose
names such Definitive Securities are to be so registered in accordance
with the instructions of the Depository.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL
SECURITIES. Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in subsection (c) of this Section 2.6), a
Global Security may not be transferred as a whole except by the
Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee by the Depository or by
the Depository or any such nominee to a successor Depository or a nominee
of such successor Depository.
(f) Legend.
(i) Except as permitted by the following paragraph (ii)
each Security certificate evidencing Global Securities and Definitive
Securities (and all Securities issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the following
form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION AND SUBJECT TO
COMPLIANCE WITH OTHER APPLICABLE LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD THAT MAY
HEREAFTER BE PROVIDED UNDER RULE 144(K) (OR ANY SUCCESSOR
PROVISION THEREOF) AS PERMITTING THE RESALE BY NON-AFFILIATES OF
RESTRICTED SECURITIES WITHOUT RESTRICTION) AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE
RESTRICTION TERMINATION DATE"), ONLY (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND OTHERWISE IN COMPLIANCE
WITH OTHER APPLICABLE LAWS, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security that
is a Definitive Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legend set forth in
paragraph (i) above and rescind any restriction on the transfer
of such Security; and
(B) in the case of any such Transfer Restricted Security
represented by a Global Security, such Transfer Restricted
Security shall not be required to bear the legend set forth in
paragraph (i) above, although it shall continue to be subject to
the provisions of Section 2.6(c) hereof; provided, however, that
with respect to any request for an exchange of a Transfer
Restricted Security, that is represented by a Global Security
for a Definitive Security that does not bear the legend set
forth in paragraph (i) above, which request is made in reliance
upon Rule 144, the Holder thereof shall certify in writing to
the Trustee that such request is being made pursuant to Rule 144
(such certification to be in the form set forth on the reverse
of the Security).
(g) CANCELLATION OR ADJUSTMENT OF GLOBAL SECURITY. At such
time as all beneficial interests in a Global Security have either been
exchanged for Definitive Securities, redeemed, repurchased or canceled,
such Global Security shall be retained and canceled by the Trustee. At
any time prior to such cancellation, if any beneficial interest in a
Global Security is exchanged for Definitive Securities, redeemed,
repurchased or canceled, the principal amount of Securities represented
by such Global Security shall be reduced and an endorsement shall be made
on such Global Security by the Securities Custodian to reflect such
reduction.
(h) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges,
the Company shall, subject to the other terms and conditions of this
Article II, execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Registrar's or co-registrar's
request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company, Registrar or
co-registrar may require payment of a sum sufficient to cover any
transfer tax, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes or similar
governmental charges payable upon exchange or transfer pursuant to
Sections 4.6, 4.8 or 9.5 or pursuant to paragraph 5 of the Securities).
(iii) The Registrar or co-registrar shall not be required
to register the transfer of or exchange of (a) any Definitive Security
selected for redemption in whole or in part pursuant to Article III,
except the unredeemed portion of any Definitive Security being redeemed
in part, or (b) any Security for a period beginning (1) 15 Business Days
before the mailing of a notice of an offer to repurchase or redeem
Securities and ending at the close of business on the day of such mailing
or (2) 15 Business Days before an interest payment date and ending on
such interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the person in whose name
a Security is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and interest on such
Security and for all other purposes whatsoever, whether or not such
Security is overdue, and none of the Company, the Trustee, the Paying
Agent, the Registrar or any co-registrar shall be affected by notice to
the contrary.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt and
shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(vi) NO OBLIGATION OF THE TRUSTEE. (i) The Trustee shall
have no responsibility or obligation to any beneficial owner of a Global
Security, a member of, or a participant in, the Depository or other
Person with respect to the accuracy of the records of the Depository or
its nominee or of any participant or member thereof, with respect to any
ownership interest in the Securities or with respect to the delivery to
any participant, member, beneficial owner or other Person (other than the
Depository) of any notice (including any notice of redemption) or the
payment of any amount or delivery of any Securities (or other security or
property) under or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be made to
Holders in respect of the Securities shall be given or made only to or
upon the order of the registered Holders (which shall be the Depository
or its nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security shall be exercised only through
the Depository subject to the applicable rules and procedures of the
Depository. The Trustee may rely and shall be fully protected in relying
upon information furnished the Depository with respect to its members,
participants and any beneficial owners.
(vii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Security (including any
transfers between or among Depository participants, members or beneficial
owners in any Global Security other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms of
this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
SECTION 2.7. Replacement Securities. If a mutilated
Security is surrendered to the Registrar or if the Holder of a Security
claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the Uniform Commercial
Code are met and the Holder satisfies any other reasonable requirements
of the Trustee. If required by the Trustee or the Company, such Holder
shall furnish an indemnity bond sufficient in the judgment of the Company
and the Trustee to protect the Company, the Trustee, the Paying Agent,
the Registrar and any co-registrar from any loss which any of them may
suffer if a Security is replaced. The Company and the Trustee may charge
the Holder for their expenses in replacing a Security. Every replacement
Security is an additional obligation of the Company.
SECTION 2.8. Outstanding Securities. Securities
outstanding at any time are all Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation
and those described in this Section as not outstanding. A Security does
not cease to be outstanding because the Company or an Affiliate of the
Company holds the Security.
If a Security is replaced pursuant to Section 2.7, it
ceases to be outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date
money sufficient to pay all principal and interest payable on that date
with respect to the Securities (or portions thereof) to be redeemed or
maturing, as the case may be, and the Paying Agent is not prohibited from
paying such money to the Securityholders on that date pursuant to the
terms of this Indenture, then on and after that date such Securities (or
portions thereof) cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.9. Temporary Securities. Until Definitive
Securities are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of Definitive Securities but may have
variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate Definitive Securities. After the preparation
of Definitive Securities, the temporary Securities shall be exchangeable
for Definitive Securities upon surrender of the temporary Securities at
any office or agency maintained by the Company for that purpose and such
exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall
execute, and the Trustee shall authenticate and deliver in exchange
therefor, one or more Definitive Securities representing an equal
principal amount of Securities. Until so exchanged, the Holder of
temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as a holder of Definitive Securities.
SECTION 2.10. Cancellation. The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Securities surrendered to
them for registration of transfer, exchange or payment. The Trustee and
no one else shall cancel and destroy (subject to the record retention
requirements of the Exchange Act) all Securities surrendered for
registration of transfer, exchange, payment or cancellation and deliver a
certificate of such destruction to the Company unless the Company directs
the Trustee to deliver canceled Securities to the Company. The Company
may not issue new Securities to replace Securities it has redeemed, paid
or delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Company defaults
in a payment of interest on the Securities, the Company shall pay
defaulted interest (plus interest on such defaulted interest to the
extent lawful) in any lawful manner. The Company may pay the defaulted
interest to the persons who are Securityholders on a subsequent special
record date. The Company shall fix or cause to be fixed (or upon the
Company's failure to do so the Trustee shall fix) any such special record
date and payment date to the reasonable satisfaction of the Trustee which
specified record date shall not be less than 10 days prior to the payment
date for such defaulted interest and shall promptly mail or cause to be
mailed to each Securityholder a notice that states the special record
date, the payment date and the amount of defaulted interest to be paid.
The Company shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Security and the date of
the proposed payment, 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 so deposited to be held in trust for
the benefit of the Person entitled to such defaulted interest as provided
in this Section.
SECTION 2.12. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so,
the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders, provided, however, that any such notice may state
that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities, it shall
notify the Trustee in writing of the redemption date and the principal
amount of Securities to be redeemed.
The Company shall give each notice to the Trustee provided
for in this Section at least 60 days before the redemption date unless
the Trustee consents to a shorter period. Such notice shall be
accompanied by an Officers' Certificate from the Company to the effect
that such redemption will comply with the conditions herein. If fewer
than all the Securities are to be redeemed, the record date relating to
such redemption shall be selected by the Company and set forth in the
related notice given to the Trustee, which record date shall be not less
than 15 days after the date of such notice.
SECTION 3.2. Selection of Securities To be Redeemed. If
fewer than all the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed pro rata or by lot or by a method
that complies with applicable legal and securities exchange requirements,
if any, and that the Trustee considers fair and appropriate and in
accordance with methods generally used at the time of selection by
fiduciaries in similar circumstances; provided, however, that if a
partial redemption is made with the proceeds of an Equity Offering,
selection of the Securities or portion thereof for redemption shall be
made by the Trustee only on a pro rata basis, unless such method is
otherwise prohibited. The Trustee shall make the selection from
outstanding Securities not previously called for redemption. The Trustee
may select for redemption portions of the principal of Securities that
have denominations larger than $1,000. Securities and portions of them
the Trustee selects shall be in amounts of $1,000 or a whole multiple of
$1,000. Provisions of this Indenture that apply to the entirety of
Securities called for redemption also apply to portions of Securities
called for redemption. The Trustee shall notify the Company promptly of
the Securities or portions of Securities to be redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days but
not more than 60 days prior to the date fixed for redemption of
Securities, the Company shall mail a notice of redemption by first-class
mail, postage prepaid, to each Holder of Securities to be redeemed at the
last address for such Holder then shown on the Registrar's books.
The notice shall identify the Securities to be redeemed
and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(5) the subparagraph of the Securities pursuant to which
such redemption is being made;
(6) if fewer than all the outstanding Securities are to be
redeemed, the identification and principal amounts of the
particular Securities to be redeemed;
(7) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making
such payment pursuant to the terms of this Indenture , interest
on Securities (or portion thereof) called for redemption ceases
to accrue on and after the redemption date;
(8) the CUSIP number, if any, printed on the Securities
being redeemed; and
(9) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice
or printed on the Securities.
At the Company's request at least seven days prior to the
date on which such notice is to be given, the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense.
In such event, the Company shall provide the Trustee with the information
required by this Section.
SECTION 3.4. Effect of Notice of Redemption. Once notice
of redemption is mailed, Securities called for redemption become due and
payable on the redemption date and at the redemption price stated in the
notice. Upon surrender to the Paying Agent, such Securities shall be paid
at the redemption price stated in the notice, plus accrued interest to
the redemption date; provided that if the redemption date is after a
regular record date and on or prior to the interest payment date, the
accrued interest shall be payable to the Securityholder of the redeemed
Securities registered on the relevant record date. Failure to give notice
or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder.
SECTION 3.5. Deposit Of Redemption Price. By at least
10:00 A.M. (New York City time) on the date on which any principal of or
interest on any Security is due and payable, the Company shall deposit
with the Paying Agent (or, if the Company or a Subsidiary is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest on all Securities to be redeemed
on that date other than Securities or portions of Securities called for
redemption which are owned by the Company or a Subsidiary and have been
delivered by the Company or such Subsidiary to the Trustee for
cancellation.
If the Company complies with the preceding paragraph,
then, unless the Company defaults in the payment of such redemption price
or the Paying Agent is prohibited from making such payment, interest on
the Securities to be redeemed will cease to accrue on and after the
applicable redemption date, whether or not such Securities are presented
for payment.
SECTION 3.6. Securities Redeemed in Part. Upon surrender
of a Security that is redeemed in part, the Company shall execute and the
Trustee shall authenticate for the Holder (at the Company's expense) a
new Security equal in a principal amount to the unredeemed portion of the
Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities. The Company shall
promptly pay the principal of (and premium, if any) and interest on the
Securities on the dates and in the manner provided in the Securities and
in this Indenture. Principal (and premium, if any) and interest shall be
considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal (and premium, if any) and interest then due and the Trustee or
the Paying Agent, as the case may be, is not prohibited from paying such
money to the Securityholders on that date pursuant to the terms of this
Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this
Indenture, the Paying Agent may, to the extent it is required to do so by
law, deduct or withhold income or other similar taxes imposed by the
United States of America from principal or interest payments hereunder.
SECTION 4.2. Limitation on Liens. The Company will not,
and will not permit any of its Restricted Subsidiaries to, create, incur,
assume or suffer to exist any Liens (other than Permitted Liens) of any
kind against or upon any of their respective property or assets, or any
proceeds, income or profit therefrom which secure Senior Subordinated
Indebtedness or Subordinated Obligations, unless (i) in the case of Liens
securing Subordinated Obligations, the Securities are secured by a Lien
on such property, assets, proceeds, income or profit that is senior in
priority to such Liens and (ii) in the case of Liens securing Senior
Subordinated Indebtedness, the Securities are equally and ratably secured
by a Lien on such property, assets, proceeds, income or profit.
SECTION 4.3. Limitation on Incurrence of Additional
Indebtedness. The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur,
assume, guarantee, acquire, become liable, contingently or otherwise,
with respect to, or otherwise become responsible for payment of
(collectively, "incur") any Indebtedness (other than Permitted
Indebtedness); provided, however, that if no Default or Event of Default
shall have occurred and be continuing at the time or as a consequence of
the incurrence of any such Indebtedness, (i) the Company may incur
Indebtedness if on the date of the incurrence of such Indebtedness, after
giving effect to the incurrence thereof, the Consolidated Fixed Charge
Coverage Ratio of the Company is greater than 2.0 to 1.0 and (ii) any
Restricted Subsidiary of the Company may incur Indebtedness if on the
date of the incurrence of such Indebtedness, after giving effect to the
incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the
Company is greater than 3.0 to 1.0.
SECTION 4.4. Limitation on Restricted Payments. (a) The
Company shall not, and shall not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, (a) declare or pay any dividend
or make any distribution (other than dividends or distributions payable
in Qualified Capital Stock) on or in respect of shares of Capital Stock
of the Company to holders of such Capital Stock, (b) purchase, redeem or
otherwise acquire or retire for value any Capital Stock of the Company or
any warrants, rights or options to purchase or acquire shares of any
class of such Capital Stock, other than the exchange of such Capital
Stock for Qualified Capital Stock, or (c) make any Investment (other than
Permitted Investments) in any other Person (each of the foregoing actions
set forth in clauses (a), (b) and (c) (other than the exceptions thereto)
being referred to as a "Restricted Payment"), if at the time of such
Restricted Payment or immediately after giving effect thereto, (i) a
Default or an Event of Default shall have occurred and be continuing,
(ii) the Company is not able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.3 or (iii) the aggregate amount of Restricted Payments made
subsequent to the Issue Date shall exceed the sum of: (w) 50% of the
cumulative Consolidated Net Income (or if cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss) of the Company earned
subsequent to January 1, 1998 and on or prior to the date the Restricted
Payment occurs (the "Reference Date") (treating such period as a single
accounting period); plus (x) 100% of the aggregate net cash proceeds
received by the Company from any Person (other than a Subsidiary of the
Company) from the issuance and sale subsequent to the Issue Date and on
or prior to the Reference Date of Qualified Capital Stock of the Company
(including Capital Stock issued upon the conversion of convertible
Indebtedness or in exchange for outstanding Indebtedness but excluding
net cash proceeds from the sale of Capital Stock to the extent used to
repurchase or acquire shares of Capital Stock of the Company pursuant to
clause (2)(ii) of the next succeeding paragraph); plus (y) without
duplication of any amounts included in clause (iii)(x) above, 100% of the
aggregate net cash proceeds of any equity contribution received by the
Company from a holder of the Company's Capital Stock; plus (z) to the
extent that any Investment (other than a Permitted Investment) that was
made after the Issue Date is sold for cash or otherwise liquidated or
repaid for cash, the lesser of (A) the cash received with respect to such
sale, liquidation or repayment of such Investment (less the cost of such
sale, liquidation or repayment, if any) and (B) the initial amount of
such Investment, but only to the extent not included in the calculation
of Consolidated Net Income. Any net cash proceeds included in the
foregoing clauses (iii)(x) or (iii)(y) shall not be included in clause
(x)(A) or clause (x)(B) of the definition of "Permitted Investments" to
the extent actually utilized to make a Restricted Payment under this
paragraph.
(b) Notwithstanding paragraph (a) above, the provisions
set forth in the immediately preceding paragraph do not prohibit: (1) the
payment of any dividend or the consummation of any irrevocable redemption
within 60 days after the date of declaration of such dividend or notice
of such redemption if the dividend or payment of the redemption price, as
the case may be, would have been permitted on the date of declaration or
notice; (2) if no Event of Default shall have occurred and be continuing
as a consequence thereof, the acquisition of any shares of Capital Stock
of the Company, either (i) solely in exchange for shares of Qualified
Capital Stock of the Company, or (ii) through the application of net
proceeds of a substantially concurrent sale (other than to a Subsidiary
of the Company) of shares of Qualified Capital Stock of the Company; (3)
payments for the purpose of and in an amount equal to the amount required
to permit the Company to redeem or repurchase shares of its Capital Stock
or options in respect thereof, in each case in connection with the
repurchase provisions under employee stock option or stock purchase
agreements or other agreements to compensate management employees;
provided that such redemptions or repurchases pursuant to this clause (3)
shall not exceed $15 million in the aggregate after the Issue Date (which
amount shall be increased by the amount of any cash proceeds to the
Company from (x) sales of its Capital Stock to management employees
subsequent to the Issue Date and (y) any "key-man" life insurance
policies which are used to make such redemptions or repurchases); (4) the
payment of fees and compensation as permitted under clause (i) of Section
4.7(b); (5) so long as no Default or Event of Default shall have occurred
and be continuing, payments not to exceed $100,000 in the aggregate, to
enable the Company to make payments to holders of its Capital Stock in
lieu of issuance of fractional shares of its Capital Stock; (6)
repurchases of Capital Stock deemed to occur upon the exercise of stock
options if such Capital Stock represents a portion of the exercise price
thereof; (7) Restricted Payments made pursuant to the Merger Agreement;
(8) the Company or any Restricted Subsidiary from making payments in
respect of any redemption, repurchase, acquisition, cancellation or other
retirement for value of shares of Capital Stock of the Company or
options, stock appreciation or similar securities, in each case held by
then current or former officers, directors or employees of the Company or
any of its Subsidiaries (or their estates or beneficiaries under their
estates) or by an employee benefit plan, upon death, disability,
retirement or termination of employment, not to exceed $10 million in the
aggregate after the Issue Date; (9) repurchases of payment-in-kind
preferred stock; provided that (i) such repurchases do not exceed $15
million in the aggregate over the life of the Securities and (ii) such
preferred stock repurchased shall have been issued on or prior to the
Issue Date; and (10) the Company or any Restricted Subsidiary from
purchasing all (but not less than all), excluding directors' qualifying
shares, of the Capital Stock or other ownership interests in a Subsidiary
of the Company which Capital Stock or other ownership interests were not
theretofore owned by the Company or a Subsidiary of the Company, such
that after giving effect to such purchase such Subsidiary becomes a
Restricted Subsidiary of the Company. In determining the aggregate amount
of Restricted Payments made subsequent to the Issue Date in accordance
with clause (iii) of the immediately preceding paragraph, (a) amounts
expended (to the extent such expenditure is in the form of cash or other
property other than Qualified Capital Stock) pursuant to clauses (1),
(3), (8) and (9) of this Section 4.4(b) shall be included in such
calculation, provided that such expenditures pursuant to clause (3) shall
not be included to the extent of cash proceeds received by the Company
from any "key man" life insurance policies and (b) amounts expended
pursuant to clauses (2), (4), (5), (6), (7) and (10) shall be excluded
from such calculation.
SECTION 4.5. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries. The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly,
create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions on or in
respect of its Capital Stock; (b) make loans or advances or to pay any
Indebtedness or other obligation owed to the Company or any other
Restricted Subsidiary of the Company; or (c) transfer any of its property
or assets to the Company or any other Restricted Subsidiary of the
Company, except for such encumbrances or restrictions existing under or
by reason of: (1) applicable law; (2) this Indenture; (3) non-assignment
provisions of any contract or any lease entered into in the ordinary
course of business; (4) any instrument governing Acquired Indebtedness,
which encumbrance or restriction is not applicable to the Company or any
Restricted Subsidiary of the Company, or the properties or assets of any
such Person, other than the Person or the properties or assets of the
Person so acquired; provided, however, that such Acquired Indebtedness
was not incurred in connection with, or in anticipation or contemplation
of an acquisition by the Company or the Restricted Subsidiary; (5)
agreements existing on the Issue Date (including, without limitation, the
New Credit Facility and the Merger Agreement); (6) restrictions on the
transfer of assets subject to any Lien permitted under this Indenture
imposed by the holder of such Lien; (7) restrictions imposed by any
agreement to sell assets permitted under this Indenture to any Person
pending the closing of such sale; (8) any agreement or instrument
governing Capital Stock of any Person that is acquired after the Issue
Date; (9) Indebtedness or other contractual requirements of a Receivables
Entity in connection with a Qualified Receivables Transaction; provided
that such restrictions apply only to such Receivables Entity and such
Restricted Subsidiary is engaged in the Qualified Receivables
Transaction; or (10) an agreement effecting a refinancing, replacement or
substitution of Indebtedness issued, assumed or incurred pursuant to an
agreement referred to in clause (2), (4) or (5) above; provided, however,
that the provisions relating to such encumbrance or restriction contained
in any such refinancing, replacement or substitution agreement are no
less favorable to the Company or the Holders in any material respect as
determined by the Board of Directors of the Company than the provisions
relating to such encumbrance or restriction contained in agreements
referred to in such clause (2), (4) or (5).
SECTION 4.6. Limitation on Asset Sales. (a) The Company
will not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless (i) the Company or the applicable
Restricted Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors), (ii) at least 75% of the consideration
received by the Company or such Restricted Subsidiary, as the case may
be, from such Asset Sale shall be cash or Cash Equivalents and is
received at the time of such disposition; provided that the amount of (x)
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 such Restricted Subsidiary (other than liabilities that are by
their terms subordinated to the Securities) that are assumed by the
transferee of any such assets and from which the Company and its
Restricted Subsidiaries are unconditionally released and (y) any notes or
other obligations received by the Company or such Restricted Subsidiary
from such transferee that are promptly, but in no event more than 60 days
after receipt, converted by the Company or such Restricted Subsidiary
into cash or Cash Equivalents (to the extent of the cash or Cash
Equivalents received) shall be deemed to be cash for purposes of this
provision; and (iii) upon the consummation of an Asset Sale, the Company
shall apply, or cause such Restricted Subsidiary to apply, the Net Cash
Proceeds relating to such Asset Sale within 365 days of receipt thereof
either (A) to prepay Senior Indebtedness and, in the case of any Senior
Indebtedness under any revolving credit facility, effect a permanent
reduction in the availability under such revolving credit facility, (B)
to reinvest in Productive Assets, or (C) a combination of prepayment and
investment permitted by the foregoing clauses (iii)(A) and (iii)(B). On
the 366th day after an Asset Sale or such earlier date, if any, as the
Board of Directors of the Company or of such Restricted Subsidiary
determines not to apply the Net Cash Proceeds relating to such Asset Sale
as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) of the
immediately preceding sentence (each, a "Net Proceeds Offer Trigger
Date"), such aggregate amount of Net Cash Proceeds which have not been
applied on or before such Net Proceeds Offer Trigger Date as permitted in
clauses (iii)(A), (iii)(B) and (iii)(C) of the immediately preceding
sentence (each a "Net Proceeds Offer Amount") shall be applied by the
Company or such Restricted Subsidiary to make an offer to purchase for
cash (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer
Payment Date") not less than 30 nor more than 45 days following the
applicable Net Proceeds Offer Trigger Date, from all Holders on a pro
rata basis at least that amount of Securities equal to the Note Offer
Amount at a price in cash equal to 100% of the principal amount of the
Securities to be purchased, plus accrued and unpaid interest thereon, if
any, to the date of purchase; provided, however, that if at any time any
non-cash consideration received by the Company or any Restricted
Subsidiary of the Company, as the case may be, in connection with any
Asset Sale is converted into or sold or otherwise disposed of for cash
(other than interest received with respect to any such non-cash
consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof
shall be applied in accordance with this Section 4.6(a). Any offer to
purchase with respect to Other Debt shall be made and consummated
concurrently with any Net Proceeds Offer.
"Other Debt" shall mean other Indebtedness of the Company
that ranks pari passu with the Securities and requires that an offer to
purchase such Other Debt be made upon consummation of an Asset Sale.
"Note Offer Amount" means (i) if an offer to purchase
Other Debt is not being made, the amount of the Net Proceeds Offer Amount
and (ii) if an offer to purchase Other Debt is being made, an amount
equal to the product of (x) the Net Proceeds Offer Amount and (y) a
fraction the numerator of which is the aggregate amount of Securities
tendered pursuant to such offer to purchase and the denominator of which
is the aggregate amount of Securities and Other Debt tendered pursuant to
such offer to purchase.
Notwithstanding the foregoing, if a Net Proceeds Offer
Amount is less than $10 million, the application of the Net Cash Proceeds
constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may
be deferred until such time as such Net Proceeds Offer Amount plus the
aggregate amount of all Net Proceeds Offer Amounts arising subsequent to
the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds
Offer Amount from all Asset Sales by the Company and its Restricted
Subsidiaries aggregates at least $10 million, at which time the Company
or such Restricted Subsidiary shall apply all Net Cash Proceeds
constituting all Net Proceeds Offer Amounts that have been so deferred to
make a Net Proceeds Offer (the first date the aggregate of all such
deferred Net Proceeds Offer Amounts is equal to $10 million or more shall
be deemed to be a "Net Proceeds Offer Trigger Date").
Notwithstanding the immediately preceding paragraphs of
this Section 4.6(a), the Company and its Restricted Subsidiaries will be
permitted to consummate an Asset Sale without complying with such
paragraphs to the extent (i) at least 75% of the consideration for such
Asset Sale constitutes Productive Assets and (ii) such Asset Sale is for
at least fair market value (as determined in good faith by the Company's
Board of Directors); provided that any consideration not constituting
Productive Assets received by the Company or any of its Restricted
Subsidiaries in connection with any Asset Sale permitted to be
consummated under this paragraph shall constitute Net Cash Proceeds and
shall be subject to the provisions of the preceding paragraphs; provided,
that at the time of entering into such transaction or immediately after
giving effect thereto, no Default or Event of Default shall have occurred
or be continuing or would occur as a consequence thereof.
(b) Each Net Proceeds Offer will be mailed to the record
Holders as shown on the register of Holders within 25 days following the
Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall
comply with the procedures set forth in this Indenture. Upon receiving
notice of the Net Proceeds Offer, Holders may elect to tender their
Securities in whole or in part in integral multiples of $1,000 in
exchange for cash. To the extent Holders properly tender securities in an
amount exceeding the Note Offer Amount, Securities of tendering Holders
will be purchased on a pro rata basis (based on amounts tendered). A Net
Proceeds Offer shall remain open for a period of 20 Business Days or such
longer period as may be required by law. To the extent that the aggregate
amount of Securities tendered pursuant to a Net Proceeds Offer is less
than the Net Proceeds Offer Amount, the Company may use any remaining Net
Proceeds Offer Amount for general corporate purposes. Upon completion of
any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset
at zero.
(c) The Company will 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 Securities pursuant to a
Net Proceeds Offer. To the extent that the provisions of any securities
laws or regulations conflict with this Section 4.6, the Company shall
comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.6 by
virtue thereof.
SECTION 4.7. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist
any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its
Affiliates (an "Affiliate Transaction"), other than (x) Affiliate
Transactions permitted under paragraph (b) below and (y) Affiliate
Transactions entered into on terms that are fair and reasonable to, and
in the best interests of, the Company or such Restricted Subsidiary, as
the case may be, as determined in good faith by the Company's Board of
Directors; provided, however, that for a transaction or series of related
transactions with an aggregate value of $5 million or more, at the
Company's option (i) such determination shall be made in good faith by a
majority of the disinterested members of the Board of the Directors of
the Company or (ii) the Board of Directors of the Company or any such
Restricted Subsidiary party to such Affiliate Transaction shall have
received a favorable opinion from a nationally recognized investment
banking firm that such Affiliate Transaction is fair from a financial
point of view to the Company or such Restricted Subsidiary; provided,
further, that for a transaction or series of related transactions with an
aggregate value of $15 million or more, the Board of Directors of the
Company shall have received a favorable opinion from a nationally
recognized investment banking firm that such Affiliate Transaction is
fair from a financial point of view to the Company or such Restricted
Subsidiary.
(b) The foregoing restrictions shall not apply to (i)
reasonable fees and compensation paid to, and indemnity provided on
behalf of, officers, directors, employees or consultants of the Company
or any Subsidiary of the Company as determined in good faith by the
Company's Board of Directors; (ii) transactions exclusively between or
among the Company and any of its Restricted Subsidiaries or exclusively
between or among such Restricted Subsidiaries, provided such transactions
are not otherwise prohibited by this Indenture; (iii) transactions
effected as part of a Qualified Receivables Transaction; (iv) any
agreement as in effect as of the Issue Date or any amendment thereto or
any transaction contemplated thereby (including pursuant to any amendment
thereto) in any replacement agreement thereto so long as any such
amendment or replacement agreement is not more disadvantageous to the
Holders in any material respect than the original agreement as in effect
on the Issue Date; (v) Restricted Payments permitted by this Indenture;
(vi) any Permitted Investment; (vii) transactions permitted by, and
complying with the provisions of Section 5.1; (viii) any payment,
issuance of securities or other payments, awards or grants, in cash or
otherwise, pursuant to, or the funding of, employment arrangements and
Plans approved by the Board of Directors of the Company; (ix) the grant
of stock options or similar rights to employees and directors of the
Company and its Subsidiaries pursuant to Plans and employment contracts
approved by the Board of Directors of the Company; (x) loans or advances
to officers, directors or employees of the Company or its Restricted
Subsidiaries not in excess of $5 million at any one time outstanding;
(xi) the granting or performance of registration rights under a written
registration rights agreement approved by the Board of Directors of the
Company; (xii) transactions with Persons solely in their capacity as
holders of Indebtedness or Capital Stock of the Company or any of its
Restricted Subsidiaries, where such Persons are treated no more favorably
than holders of Indebtedness or Capital Stock of the Company or such
Restricted Subsidiary generally; (xiii) any agreement to do any of the
foregoing; (xiv) the payment, on a quarterly basis, of management fees to
THL Co. and/or any Affiliate of THL Co. in accordance with the management
arrangements to be entered into in January 1998 between THL Co. and/or
any Affiliate of THL Co. and the Company in an aggregate amount (for all
such Persons taken together) not to exceed $250,000 in any fiscal quarter
of the Company; (xv) reimbursement of THL Co. and/or any Affiliate of THL
Co. for their reasonable out-of-pocket expenses incurred by them in
connection with performing management services for the Company and its
Subsidiaries; (xvi) the payment of one time fees to THL Co. and/or
Affiliates of THL Co. in connection with each acquisition of a company or
a line of business by the Company or its Subsidiaries, such fees to be
payable at the time of each such acquisition and not to exceed 1% of the
aggregate consideration paid by the Company and its Subsidiaries for any
such acquisition; and (xvii) transactions entered into on the Issue Date
in connection with the Recapitalization and the financing therefor.
SECTION 4.8. Change of Control. (a) Upon the occurrence of
a Change of Control Triggering Event, each Holder will have the right to
require that the Company purchase for cash all or a portion of such
Holder's Securities pursuant to the offer described below (the "Change of
Control Offer"), at a purchase price in cash equal to 101% of the
principal amount thereof plus accrued interest to the date of purchase.
Prior to the mailing of the notice referred to below, but in any event
within 30 days following the date the Company obtains actual knowledge of
any Change of Control Triggering Event, the Company covenants to (i)
repay in full and terminate all commitments under the Bank Indebtedness
or offer to repay in full and terminate all commitments under all Bank
Indebtedness and to repay the Bank Indebtedness owed to each holder of
Bank Indebtedness which has accepted such offer or (ii) obtain the
requisite consents under the New Credit Facility to permit the repurchase
of the Securities as provided below. The Company shall first comply with
the covenant in the immediately preceding sentence before it shall be
required to repurchase Securities pursuant to the provisions described
below. The Company's failure to comply with this Section 4.8 shall
constitute an Event of Default under Section 6.1(4) and not under 6.1(2).
(b) Within 30 days following the date the Company obtains
actual knowledge that a Change of Control Triggering Event has occurred,
the Company must send, by first class mail, a notice to each Holder, with
a copy to the Trustee, which notice shall govern the terms of the Change
of Control Offer. Such notice shall state, among other things, the
purchase date, which must be no earlier than 30 days nor later than 45
days from the date such notice is mailed, other than as may be required
by law (the "Change Of Control Payment Date"). Holders electing to have a
Security purchased pursuant to a Change of Control Offer will be required
to surrender the Security, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Security completed, to the Paying
Agent at the address specified in the notice prior to the close of
business on the third business day prior to the Change of Control Payment
Date.
(c) The Company will 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 Securities pursuant to a
Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.8, the
Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this
Section 4.8 by virtue thereof.
SECTION 4.9. Prohibition on Incurrence of Senior
Subordinated Debt. Neither the Company nor any Subsidiary Guarantor will
incur or suffer to exist Indebtedness that is senior in right of payment
to the Securities or such Subsidiary Guarantor's Guarantee and
subordinate in right of payment to any other Indebtedness of the Company
or such Subsidiary Guarantor, as the case may be.
SECTION 4.10. Limitation on Preferred Stock of
Subsidiaries. The Company will not permit any of its Restricted
Subsidiaries to issue any Preferred Stock (other than to the Company or
to a Restricted Subsidiary of the Company) or permit any Person (other
than the Company or a Restricted Subsidiary of the Company) to own any
Preferred Stock of any Restricted Subsidiary of the Company.
SECTION 4.11. Limitation on Guarantees by Restricted
Subsidiaries. The Company will not permit any of its Restricted
Subsidiaries, directly or indirectly, to guarantee the payment of any
Indebtedness of the Company, other than guarantees incurred pursuant to
clause (ii) of the definition of "Permitted Indebtedness" unless such
Restricted Subsidiary, the Company and the Trustee execute and deliver a
supplemental indenture evidencing such Restricted Subsidiary's guarantee
of the Securities (a "Guarantee"), such Guarantee to be a senior
subordinated unsecured obligation of such Restricted Subsidiary; provided
that if any Subsidiary Guarantor is released from its guarantee with
respect to Indebtedness outstanding under the New Credit Facility and all
other Indebtedness of the Company, such Subsidiary Guarantor shall
automatically be released from its obligations as a Subsidiary Guarantor.
Neither the Company nor any such Subsidiary Guarantor shall be required
to make a notation on the Securities to reflect any such Guarantee.
Nothing in this Section 4.11 shall be construed to permit any Restricted
Subsidiary of the Company to incur Indebtedness otherwise prohibited by
Section 4.3.
SECTION 4.12. Conduct of Business. The Company and its
Restricted Subsidiaries will not engage in any businesses which are not
the same, similar, related or ancillary to the businesses in which the
Company and its Restricted Subsidiaries are engaged on the Issue Date.
SECTION 4.13. Maintenance of Office or Agency. The Company
shall maintain the office or agency required under Section 2.3. The
Company shall give prior 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 address of the Trustee set forth in Section 13.2.
SECTION 4.14. Corporate Existence. Except as otherwise
permitted by Article V, the Company shall do or cause to be done, at its
own cost and expense, all things necessary to preserve and keep in full
force and effect its corporate existence and the corporate existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of each such Restricted Subsidiary and the
material rights (charter and statutory) and franchises of the Company and
each such Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve, with respect to itself, any material
right or franchise and, with respect to any of its Restricted
Subsidiaries, any such existence, material right or franchise, if the
Board of Directors of the Company shall determine in good faith that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and the Subsidiaries, taken as a whole.
SECTION 4.15. Payment of Taxes and Other Claims. The
Company shall pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (i) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon it or any of its
Restricted Subsidiaries or properties of it or any of its Restricted
Subsidiaries and (ii) any lawful claims for labor, materials and supplies
that, if unpaid, might by law become a Lien upon the property of it or
any of its Restricted Subsidiaries; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted for which
adequate reserves, to the extent required under GAAP, have been taken.
SECTION 4.16. Maintenance of Properties and Insurance. (a)
The Company shall, and shall cause each of its Restricted Subsidiaries
to, maintain its material properties in good working order and condition
(subject to ordinary wear and tear) and make all necessary repairs,
renewals, replacements, additions, betterments and improvements thereto
and actively conduct and carry on its business; provided, however, that
nothing in this Section 4.16 shall prevent the Company or any of its
Restricted Subsidiaries from discontinuing the operation and maintenance
of any of its properties, if such discontinuance is, in the good faith
judgment of the Board of Directors of the Company or the Restricted
Subsidiary, as the case may be, desirable in the conduct of their
respective businesses and is not disadvantageous in any material respect
to the Holders.
(b) The Company shall provide or cause to be provided, for
itself and each of its Restricted Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in
the good faith judgment of the Board of Directors of the Company, are
adequate and appropriate for the conduct of the business of the Company
and such Restricted Subsidiaries of the Company in a prudent manner, with
reputable insurers or with the government of the United States of America
or any agency or instrumentality thereof, in such amounts, with such
deductibles, and by such methods as shall be customary, in the good faith
judgment of the Board of Directors of the Company, for companies
similarly situated in the industry.
SECTION 4.17. Compliance With Laws. The Company shall
comply, and shall cause each of its Restricted 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 department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in
respect of the conduct of their respective businesses and the ownership
of their respective properties, except for such noncompliances as are not
in the aggregate reasonably likely to have a material adverse effect on
the financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole.
SECTION 4.18. Additional Information. The Company will
deliver to the Trustee within 15 days after the filing of the same with
the Commission, copies of the quarterly and annual reports and of the
information, documents and other reports, if any, which the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act. Notwithstanding that the Company may not be subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act,
the Company will file with the Commission, to the extent permitted, and
provide the Trustee and Holders with such annual reports and such
information, documents and other reports specified in Sections 13 and
15(d) of the Exchange Act. The Company will also comply with the other
provisions of TIA Section 314(a).
SECTION 4.19. Further Instruments and Acts. Upon request
of the Trustee, the Company will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
ARTICLE V
SUCCESSOR COMPANY
SECTION 5.1. When Company May Merge or Transfer Assets.
(a) The Company will not, in a single transaction or a series of related
transactions, consolidate with or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all
of its assets to, another Person or Persons unless:
(i) either (A) the Company shall be the survivor of such
merger or consolidation or (B) the surviving Person is a
corporation existing under the laws of the United States, any
state thereof or the District of Columbia and such surviving
Person shall expressly assume all the obligations of the Company
under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction
(on a pro forma basis, including any Indebtedness incurred or
anticipated to be incurred in connection with such transaction
and the other adjustments referred to in the definition of
"Consolidated Fixed Charge Coverage Ratio"), the Company or the
surviving Person is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance
with Section 4.3;
(iii) immediately before and immediately after giving
effect to such transaction (including any Indebtedness incurred
or anticipated to be incurred in connection with the
transaction), no Default or Event of Default shall have occurred
and be continuing; and
(iv) the Company has delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with this Indenture,
that the surviving Person agrees to be bound thereby and by the
Securities and the Registration Rights Agreement, and that all
conditions precedent in this Indenture relating to such
transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise, in a single transaction or series of transactions) of all
or substantially all of the properties and assets of one or more
Subsidiaries of the Company, the Capital Stock of which constitutes all
or substantially all of the properties and assets of the Company, shall
be deemed to be the transfer of all or substantially all of the
properties and assets of the Company. Notwithstanding the foregoing
clauses (ii) and (iii) above, (a) any Restricted Subsidiary of the
Company 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 that is (x) a corporation that has no material assets or
liabilities and which was incorporated solely for the purpose of
reincorporating the Company in another jurisdiction or (y) a Restricted
Subsidiary of the Company so long as all assets of the Company and the
Restricted Subsidiaries immediately prior to such transaction are owned
by such Restricted Subsidiary and its Restricted Subsidiaries immediately
after the consummation thereof.
(b) Upon any consolidation, combination or merger or any
transfer of all or substantially all of the assets of the Company in
accordance with the foregoing, the surviving entity shall succeed to, and
be substituted for, and may exercise every right and power of, the
Company under this Indenture and the Securities with the same effect as
if such surviving entity had been named as such.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. An "Event of Default"
occurs if:
(1) the Company defaults in any payment of interest
(including liquidated damages, if any, under the Registration
Rights Agreement) on any Security when the same becomes due and
payable, whether or not such payment shall be prohibited by
Article X, and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal
of any Security when the same becomes due and payable at its
Stated Maturity, upon redemption or otherwise (including the
failure to make a payment to purchase Securities tendered,
pursuant to a Change of Control Offer or a Net Proceeds Offer),
whether or not such payment shall be prohibited by Article X;
(3) the Company defaults in the observance or performance
of the covenant set forth in Section 5.1;
(4) the Company defaults in the observance or performance
of any other covenant or agreement contained in this Indenture
which default continues for a period of 30 days after the
Company receives written notice specifying the default (and
demanding that such default be remedied) from the Trustee or the
Holders of at least 25% of the outstanding principal amount of
the Securities;
(5) the Company fails to pay at final maturity (giving
effect to any applicable grace periods and any extensions
thereof) the principal amount of any Indebtedness of the Company
or any Restricted Subsidiary (other than a Receivables Entity)
of the Company, or the acceleration of the final stated maturity
of any such Indebtedness if the aggregate principal amount of
such Indebtedness, together with the principal amount of any
other such Indebtedness in default or failure to pay principal
at final maturity or which has been accelerated, aggregates $15
million or more at any time;
(6) one or more judgments in an aggregate amount in excess
of $15 million shall have been rendered against the Company or
any of its Significant Subsidiaries and such judgments remain
undischarged, unpaid or unstayed for a period of 60 days after
such judgment or judgments become final and non-appealable, and
in the event such judgment is covered by insurance, an
enforcement proceeding has been commenced by any creditor upon
such judgment which is not promptly stayed;
(7) the Company or a Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of judgment, decree or
order for relief against it in an involuntary case or
proceeding;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors;
(E) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it;
(F) takes any corporate action to authorize or effect
any of the foregoing;
or takes any comparable action under any foreign laws relating
to insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its
property; or
(C) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the
order, decree or relief remains unstayed and in effect for 60
days.
The foregoing will constitute Events of Default whatever
the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant any judgment,
decree or order of any to court or any order, rule or regulation of any
administrative or governmental body.
The term "Bankruptcy Law" means Title 11, UNITED STATES
CODE, or any similar Federal or state law for the relief of debtors. The
term "Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
The Company shall deliver to the Trustee, within 30 days
after the occurrence thereof, written notice in the form of an Officers'
Certificate of any Event of Default.
SECTION 6.2. Acceleration. (a) If an Event of Default
(other than an Event of Default specified in 6.1(7) or (8) with respect
to the Company) occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of outstanding Securities may declare
the principal of and accrued interest on all the Securities to be due and
payable by notice in writing to the Company and the Trustee specifying
the respective Event of Default and that it is a "notice of
acceleration", and the same shall become immediately due and payable.
(b) If an Event of Default specified in Sections 6.1(7)
and (8) with respect to the Company occurs and is continuing, then the
principal of and accrued interest on all the Securities 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 of Securities.
(c) At any time after a declaration of acceleration with
respect to the Securities as described in Section 6.2(a) or (b) above,
the Holders of a majority in principal amount of the Securities may
rescind and cancel such declaration and its consequences (i) if the
rescission would not conflict with any judgment or decree, (ii) if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which
has become due otherwise than by such declaration of acceleration, has
been paid, (iv) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses, disbursements
and advances and (v) in the event of the cure or waiver of an Event of
Default of the type described in Section 6.1(6), (7) or (8), the Trustee
shall have received an Officers' Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived.
SECTION 6.3. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect
the payment of principal of or interest on the Securities or to enforce
the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative.
SECTION 6.4. Waiver of Past Defaults. Subject to Sections
6.7 and 9.2, the holders of a majority in principal amount of the
Securities may waive any existing Default or Event of Default under this
Indenture, and its consequences, except (i) a default in the payment of
the principal of or interest on any Securities or (ii) a Default or Event
of Default in respect of a provision that under Section 9.2 cannot be
amended without the consent of each Securityholder affected. When a
Default or Event of Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or Event of
Default or impair any consequent right. This paragraph of this Section
6.4 shall be in lieu of ss. 316(a)(1)(B) of the TIA and such ss.
316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture
and the Securities, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist
and be deemed to have been cured and not to have occurred, and any Event
of Default arising therefrom shall be deemed to have been cured and not
to have occurred for every purpose of this Indenture and the Securities,
but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
SECTION 6.5. Control by Majority. The Holders of a
majority in principal amount of the Securities may direct the time,
method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or, subject to Section 7.1, that the Trustee
determines is unduly prejudicial to the rights of other Securityholders
or would involve the Trustee in personal liability; provided, however,
that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by
taking or not taking such action. This Section 6.5 shall be in lieu of
ss. 316(a)(1)(A) of the TIA, and such ss. 316(a)(1)(A) of the TIA is
hereby expressly excluded from this Indenture and the Securities, as
permitted by the TIA.
SECTION 6.6. Limitation on Suits. A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities
unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25%; in outstanding principal
amount of the Securities make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 45
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with
the request during such 45-day period.
A Securityholder may not use this Indenture to prejudice
the rights of another Securityholder or to obtain a preference or
priority over another Securityholder.
SECTION 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Securities
held by such Holder, on or after the respective due dates expressed in
the Securities, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of
Default specified in Section 6.1(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) and
the amounts provided for in Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relative to the
Company, its Subsidiaries or their respective creditors or properties
and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make 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 to the Trustee
any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its counsel,
and any other amounts due the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any
money or property pursuant to this Article VI, it shall pay out the money
or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to holders of Senior Indebtedness to the extent
required by Article X;
THIRD: to Securityholders for amounts due and unpaid on
the Securities far principal and interest, ratably, without
preference or priority of any kind, according to the amounts due
and payable on the Securities for principal and interest,
respectively; and
FOURTH: to the Company or any other obligors on the
Securities as their interests may appear, or as a court of
competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days
before such record date, the Trustee shall mail to each Securityholder
and the Company a notice that states the record date, the payment date
and amount to be paid.
SECTION 6.11. Undertaking for Costs. 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 or omitted by it as Trustee, a
court in its discretion may require the filing by any party litigant in
the suit of an undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.7 or a suit by Holders of more
than 10% in outstanding principal amount of the Securities.
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise 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 such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith 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. However, the Trustee shall
examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
(e) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur 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 to believe that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(h) 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 and to the
provisions of the TIA.
SECTION 7.2. Rights of Trustee. (a) The Trustee may rely
on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact
or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on the Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized
or within its rights or powers; provided, however, that the Trustee's
conduct does not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.
SECTION 7.3. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not
be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable
for the Company's use of the proceeds from the Securities, and it shall
not be responsible for any statement of the Company in this Indenture or
in any document issued in connection with the sale of the Securities or
in the Securities other than the Trustee's certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default or Event of
Default occurs and is continuing the Trustee shall mail to each
Securityholder notice of the Default or Event of Default within 30 days
after it occurs. Except in the case of a Default or Event of Default in
payment of principal of or interest on any Security (including payments
pursuant to the optional redemption or required repurchase provisions of
such Security, if any), the Trustee may withhold the notice if and so
long as its board of directors, the Executive Committee of its board of
directors or a committee of its Trust Officers in good faith determines
that withholding the notice is in the interests of Securityholders.
SECTION 7.6. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the
date of this Indenture, and in any event prior to July 15 in each year,
the Trustee shall mail to each Securityholder a brief report dated as of
such May 15 that complies with TIA Section 313(a) if such a report is
required by that section. The Trustee also shall comply with TIA Section
313(b). The Trustee shall also transmit by mail all reports required by
TIA Section 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC if required by law and each
stock exchange (if any) on which the Securities are listed. The Company
agrees to notify promptly the Trustee whenever the Securities become
listed on any stock exchange and of any delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time reasonable compensation for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred or made by it, including costs of collection, costs of
preparing and reviewing reports, certificates and other documents, costs
of preparation and mailing-of notices to Securityholders and reasonable
costs of counsel retained by the Trustee in connection with the delivery
of an Opinion of Counsel or otherwise, in addition to the compensation
for its services. Such expenses shall include the reasonable compensation
and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Company shall indemnify the Trustee
against any and all loss, liability or expense (including reasonable
attorneys' fees) incurred by it in connection with the administration of
this trust and the performance of its duties hereunder, including the
costs and expenses of enforcing this Indenture (including this Section
7.7) and of defending itself against any claims (whether asserted by any
Securityholder, the Company or otherwise). The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee
may have separate counsel and the Company shall pay the fees and expenses
of such counsel. The Company need not reimburse any expense or indemnify
against any loss, liability or expense incurred by the Trustee through
the Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this
Section, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee other than money or
property held in trust to pay principal of and interest on particular
Securities. The Trustee's right to receive payment of any amounts due
under this Section 7.7 shall not be subordinate to any other liability or
indebtedness of the Company.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs
expenses after the occurrence of a Default specified in Section 6.1(7) or
(8) with respect to the Company, the expenses are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may
resign at any time by so notifying the Company. The Holders of a majority
in principal amount of the securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee. The Company
shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or (4) the Trustee otherwise becomes
incapable of acting.
If the Trustee resigns or is removed by the Company or by
the Holders of a majority in principal amount of the Securities and such
Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in
such event being referred to herein as the retiring Trustee), the Company
shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective,
and the successor Trustee shall have all the rights, powers and duties of
the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Securityholders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.7.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or
the Holders of 10% in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.7 shall continue
for the benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor
Trustee.
In case at the time such successor or successors by
merger, conversion, consolidation or transfer to the Trustee shall
succeed to the trusts created by this Indenture, any of the Securities
shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been
authenticated, an successor to the Trustee may authenticate such
Securities either in the name of an predecessor hereunder or in the name
of the successor to the Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in
this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The
Trustee shall have a combined capital and surplus of at least $50 million
as set forth in its most recent published annual report of condition. The
Trustee shall comply with TIA Section 310(b); provided, however, that
there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of
interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA
Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding an
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shal1 be subject to TIA Section 311(a) to the
extent indicated.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities. (a) The
Company may terminate its obligations under the Securities and this
Indenture, except those obligations referred to in Section 8.1(b), if all
Securities previously authenticated and delivered (other than destroyed,
lost or stolen Securities which have been replaced or paid or Securities
for whose payment money has theretofore been deposited with the Trustee
or the Paying Agent in trust or segregated and held in trust by the
Company and thereafter repaid to the Company, as provided in Section 8.5)
have been delivered to the Trustee for cancellation and the Company has
paid all sums payable by it hereunder, or if:
(i) either (A) pursuant to Article III, the Company shall
have given notice to the Trustee and mailed a notice of
redemption to each Holder of the redemption of all of the
Securities under arrangements satisfactory to the Trustee for
the giving of such notice or (B) all Securities have otherwise
become due and payable hereunder;
(ii) the Company shall have irrevocably deposited or
caused to be deposited with the Trustee or a trustee
satisfactory to the Trustee, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the
Trustee, as trust funds in trust solely for the benefit of the
Holders for that purpose, money in such amount as is sufficient
without consideration of reinvestment of such money, to pay
principal of, premium on, if any, and interest on the
outstanding Securities to maturity or redemption, as the case
may be; provided that the Trustee shall have been irrevocably
instructed to apply such money to the payment of said principal,
premium, if any, and interest with respect to the Securities
and, provided, further, that from and after the time of deposit,
the money deposited shall not be subject to the rights of
holders of Senior Indebtedness pursuant to the provisions of
Article X;
(iii) no Default or Event of Default with respect to this
Indenture or the Securities 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 is a party or by which it is
bound;
(iv) the Company shall have paid all other sums payable by
it hereunder; and
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent providing for the termination of
the Company's obligations under the Securities and this
Indenture have been satisfied. Such Opinion of Counsel shall
also state that such satisfaction and discharge does not result
in a default under the New Credit Facility (if then in effect)
or any other agreement or instrument then known to such counsel
that binds or affects the Company.
(b) Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.2, 2.5, 2.6, 2.7, 2.8, 4.1, 4.13, 4.14, 4.15,
4.17, 7.7, 8.4, 8.5, and 8.6 shall survive until the Securities are no
longer outstanding pursuant to the last paragraph of Section 2.8. After
the Securities are no longer outstanding, the Company's obligations in
Sections 7.7, 8.4, 8.5, and 8.6 shall survive.
After such delivery or irrevocable deposit, the Trustee
upon request shall acknowledge in writing the discharge of the Company's
obligations under the Securities and this Indenture except for those
surviving obligations specified above.
SECTION 8.2. Legal Defeasance and Covenant Defeasance. (a)
The Company may, at its option by Board Resolution of the Board of
Directors of the Company, at any time, elect to have either paragraph (b)
or (c) below be applied to all outstanding Securities upon compliance
with the conditions set forth in Section 8.3.
(b) Upon the Company's exercise under paragraph (a) hereof
of the option applicable to this paragraph (b), the Company shall,
subject to the satisfaction of the conditions set forth in Section 8.3,
be deemed to have been discharged from its obligations with respect to
all outstanding Securities on the date the conditions-set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.4 hereof and the other Sections of this
Indenture referred to in (i) through (iv) below, and to have satisfied
all its other obligations under such Securities and this Indenture (and
the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging the same), and the following
provisions shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Securities to receive
solely from the trust fund described in Sections 8.3 and 8.4 hereof, and
as more fully set forth in such Sections, payments in respect of the
principal of (and premium, if any, on) and interest on such Securities
when such payments are due, (ii) the Company's obligations with respect
to such Securities under Article II and Section 4.13 hereof, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company's obligations in connection therewith and (iv) this
Article VIII. The Holders of the Securities and any amounts deposited
under Section 8.3 hereof shall cease to be subject to any obligations to,
or the rights of, any holder of Senior Indebtedness or Guarantor Senior
Indebtedness under Article X or otherwise. Subject to compliance with
this Article VIII, the Company may exercise its option under this
paragraph (b) notwithstanding the prior exercise of its option under
paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof
of the option applicable to this paragraph (c), the Company shall,
subject to the satisfaction of the conditions set forth in section 8.3
hereof, be released from its obligations under the covenants contained in
Sections 4.2 through 4.12 and Article V hereof with respect to the
outstanding Securities on and after the date the conditions set forth
below are satisfied (hereinafter, "Covenant Defeasance"), and the
Securities shall thereafter be deemed not "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 Securities shall not be deemed
outstanding for accounting purposes) and Holders of the Securities and
any amounts deposited under Sections 8.3 and 8.4 hereof shall cease to be
subject to any obligations to, or the rights of, any holder of Senior
Indebtedness under Article X or otherwise. For this purpose, such
Covenant Defeasance means that, with respect to the outstanding
Securities, 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 any 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 6.1(3) hereof, but, except as
specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 8.3. Conditions to Defeasance. The Company may
exercise its Legal Defeasance option or its Covenant Defeasance option
only if:
(1) the Company irrevocably deposits with the Trustee, in
trust, for the benefit of the holders of the Securities cash in
U.S. dollars, non-callable U.S. Government Obligations, or a
combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay the principal of, premium, if
any, and interest on the Securities on the stated date for
payment thereof or on the applicable redemption date, as the
case may be;
provided that the Trustee shall have received an irrevocable written
order from the Company instructing the Trustee to apply such cash in U.S.
dollars or the proceeds of such U.S. Government Obligations to said
payments with respect to the Securities;
(2) in the case of a 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 (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii)
since the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm
that, the Securityholders will not recognize income, gain or
loss for Federal income tax purposes as a result of such
defeasance and will be subject to 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;
(3) in the case of a 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 the Securityholders will not recognize income, gain or loss
for Federal income tax purposes as a result of such Covenant
Defeasance and will be subject to Federal income 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;
(4) no Default or Event of Default or event which with
notice or lapse of time or both would become a Default or an
Event of Default with respect to the Securities shall have
occurred and be continuing on the date of such deposit (other
than a Default or Event of Default with respect to this
Indenture resulting from the incurrence of Indebtedness, all or
a portion of which will be used to defease the Securities
concurrently with such incurrence) or insofar as Sections 6.1(7)
and 6.1(8) hereof are concerned, at any time in the period
ending on the 91st day after the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under this Indenture or any other material agreement or
instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is
bound;
(6) 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 preferring the Holders over any
other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the
Company or others;
(7) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the
Securities and this Indenture as contemplated by this Article
VIII have been complied with;
(8) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that (A) the trust funds will
not be subject to any rights of holders of Indebtedness of the
Company other than the Securities and (B) assuming no
intervening bankruptcy of the Company between the date of
deposit and the 91st day following the deposit and that no
Holder is an insider of the Company, after the 91st day
following the deposit, the trust funds will not be subject to
the effect of an applicable bankruptcy insolvency,
reorganization or similar laws affecting creditors' rights
generally; and
(9) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit
does not constitute, or is qualified as, a regulated investment
company under the Investment Company Act of 1940.
Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities
at a future date in accordance with Article III.
SECTION 8.4. Application of Trust Money. The Trustee or
Paying Agent shall hold in trust U.S. Legal Tender or U.S. Government
Obligations deposited with it pursuant to this Article VIII, and shall
apply the deposited U.S. Legal Tender and the money from U.S. Government
Obligations in accordance with this Indenture to the payment of principal
of, premium, if any, and interest on the Securities. The Trustee shall be
under no Obligation to invest said U.S. Legal Tender or U.S. Government
obligations except as it may agree with the Company.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the U.S.
Legal Tender or U.S. Government Obligations deposited pursuant to Section
8.3 hereof or the principal, premium, if any, 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 Securities.
Anything in this Article VIII to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from
time to time upon the Company's request any U.S. Legal Tender or U.S.
Government Obligations held by it as provided in Section 8.3 hereof
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 that would then be
required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
SECTION 8.5. Repayment to Company. Subject to Article
VIII, the Trustee and the Paying Agent shall promptly pay to the Company,
upon request any excess U.S. Legal Tender or U.S. Government Obligations
held by them at any time and thereupon shall be relieved from all
liability with respect to such money. The Trustee and the Paying Agent
shall pay to the Company upon request any money held by them for the
payment of principal or interest that remains unclaimed for two years;
provided that the Trustee or such Paying Agent, before being required to
make any payment, may at the expense of the Company cause to be published
once in a newspaper of general circulation in the City of New York or
mail to each Holder entitled to such money notice that such money remains
unclaimed and that after a date specified therein which shall be at least
30 days from the date of such publication or mailing any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable law
designates another Person.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent
is unable to apply any U.S. Legal Tender or U.S. Government Obligations
in accordance with Article VIII 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 obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to
Article VIII until such time as the Trustee or Paying Agent is permitted
to apply all such U.S. Legal Tender or U.S. Government Obligations in
accordance with Article VIII; provided that if the Company has made any
payment of interest on or principal of any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
U.S. Legal Tender or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders. The Company and
the Trustee may amend this Indenture or the Securities without notice to
or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency; provided that such amendment does not in the
opinion of the Trustee, adversely affect the rights of any
Holder in any material respect;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition
to or in place of certificated Securities; provided, however,
that the uncertificated Securities are issued in registered form
for purposes of Section 163(f) of the Code or in a manner such
that the uncertificated Securities are described in Section
163(f)(2)(B) of the Code;
(4) to make any change in Article X that would limit or
terminate the benefits available to any holder of Senior
Indebtedness (or Representatives therefor) under Article X;
(5) to add Guarantees with respect to the Securities or to
secure the Securities;
(6) to add to the covenants of the Company for the benefit
of the Holders or to surrender any right or power herein
conferred upon the Company;
(7) to comply with any requirements of the SEC in
connection with qualifying this Indenture under the TIA;
(8) to make any change that does not adversely affect the
rights of any Securityholder;
(9) to provide for the issuance of the Exchange
Securities, which will have terms substantially identical in all
material respects to the Initial Securities (except that the
transfer restrictions contained in the Initial Securities and
provisions relating to an increase in interest rates in the
event the Securities are not registered under the Securities Act
will be modified or eliminated, as appropriate), and which will
be treated together with any outstanding Initial Securities, as
a single issue of securities; or
(10) to secure the Securities pursuant to the requirements
of Section 4.2 or otherwise;
provided, however, that the Company has delivered to the Trustee an
Opinion of Counsel stating that such amendment or supplement complies
with the provisions of this Section 9.1.
SECTION 9.2. With Consent of Holders. Subject to Section
6.7, the Company, when authorized by a resolution of its Board of
Directors, and the Trustee may amend or supplement this Indenture or the
Securities with the written consent of the Holders of a majority in
principal amount of the outstanding Securities. Subject to Section 6.7,
the Holders of a majority in principal amount of the outstanding
Securities may waive compliance by the Company with any provision of this
Indenture or the Securities. However, without the consent of the Holder
of each Security affected, an amendment, supplement or waiver, including
a waiver pursuant to Section 6.4, may not:
(1) change the maturity of the principal of any such
Security;
(2) reduce the amount of Securities whose Holders must
consent to an amendment;
(3) reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted
interest, on any Security;
(4) reduce the principal of or change or have the effect
of changing the Stated Maturity of any Security, or change the
date on which any Securities may be subject to redemption or
repurchase, or reduce the redemption or repurchase price
therefor;
(5) make any Security payable in money other than that
stated in the Security;
(6) make an change in provisions of this Indenture
protecting the right of each Holder to receive payment of
principal of, premium, if any, and interest on such Security on
or after the due date thereof or to bring suit to enforce such
payment or permitting holders of a majority in principal amount
of the Securities to waive Defaults or Events of Default (other
than Defaults or Events of Default with respect to the payment
of principal of, premium, if any, or interest on the
Securities);
(7) amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of
Control Offer or make and consummate a Net Proceeds Offer with
respect to any Asset Sale that has been consummated or modify
any of the provisions or definitions with respect thereto; or
(8) modify Article X or the definitions used in Article X
of this Indenture to adversely affect the Holders in any
material respect.
It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent approves the
substance thereof.
An amendment under this Section may not make any change
that adversely affects the rights under Article X of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or any group or representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section becomes effective,
the Company shall mail to Securityholders a notice briefly describing
such amendment. The failure to give such notice to all Securityholders,
or any defect therein, shall not impair or affect the validity of an
amendment under this Section.
SECTION 9.3. Compliance With Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the Trust
Indenture Act of 1939, as amended as then in effect.
SECTION 9.4. Revocation and Effect of Consents and
Waivers. A consent to an amendment or a waiver by a Holder of a Security
shall bind the Holder and every subsequent Holder of that Security or
portion of the Security that evidences the same debt as the consenting
Holder's Security, even if notation of the consent or waiver is not made
on the Security. However, any such Holder or subsequent Holder may revoke
the consent or waiver as to such Holder's Security or portion of the
Security if the Trustee receives the notice of revocation before the date
the amendment or waiver becomes effective. After an amendment or waiver
becomes effective, it shall bind every Securityholder, unless it makes a
change described in any of clauses (1) through (8) of Section 9.2, in
which case, the amendment or waiver shall bind only each Securityholder
who has consented to it and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting
Holder; provided that any such waiver shall not impair or affect the
right of any Holder to receive payment of principal of, premium, if any,
and interest on a Security, on or after the respective due dates
expressed in such Security, or to bring suit for the enforcement of any
such payment on or after such respective dates without the consent of
such Holder.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Securityholders entitled
to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If a record
date is fixed, then notwithstanding the immediately preceding paragraph,
those Persons who were Securityholders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to give
such consent or to revoke any consent previously given or to take any
such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall become valid or effective more
than 120 days after such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the
Holder of the Security to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security regarding the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security that reflects the changed
terms. Failure to make the appropriate notation or to issue a new
Security shall not affect the validity of such amendment.
SECTION 9.6. Trustee to Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may but need not sign
it. In signing such amendment the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and to receive, and (subject to
Section 7.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture.
ARTICLE X
SUBORDINATION
SECTION 10.1. Agreement to Subordinate. The Company
agrees, and each Securityholder by accepting a Security agrees, that the
Indebtedness evidenced by the Securities is subordinated in right of
payment, to the extent and in the manner provided in this Article X, to
the prior payment of all Senior Indebtedness and that the subordination
is for the benefit of and enforceable by the holders of Senior
Indebtedness. The Securities will also be effectively subordinated to any
Secured Indebtedness of the Company to the extent of the value of the
assets securing such Indebtedness, and to all existing and future
obligations of the Company's Subsidiaries. The Securities shall in all
respects rank pari passu with all other Senior Subordinated Indebtedness
of the Company and only Indebtedness of the Company which is Senior
Indebtedness will rank senior to the Securities in accordance with the
provisions set forth herein. All provisions of this Article X shall be
subject to Section 10.12.
SECTION 10.2. Liquidation, Dissolution, Bankruptcy. Upon
any payment or distribution of the assets or securities of the Company to
creditors upon a total or partial liquidation or dissolution or
reorganization or similar proceeding of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating
to the Company or its properties, or in an assignment for the benefit of
creditors or any marshalling of the assets and liabilities of the
Company, whether voluntary or involuntary:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full in cash or Cash Equivalents of all
Senior Indebtedness before Securityholders shall be entitled to
receive any payment of principal of, premium, if any, or
interest on or other amounts with respect to the Securities; and
(2) until the Senior Indebtedness is paid in full in cash
or Cash Equivalents, any payment or distribution to which
Securityholders would be entitled but for this Article X shall
be made to holders of Senior Indebtedness as their interests may
appear.
SECTION 10.3. Default on Senior Indebtedness. The Company
may not pay principal of, premium (if any) or interest on, or any other
amount in respect of, the Securities or make any deposit pursuant to
Article VIII and may not otherwise purchase, redeem or otherwise retire
any Securities (collectively, "pay the Securities") if any amount due in
respect of any Senior Indebtedness (including, without limitation any
amount due as a result of acceleration of the maturity thereof by reason
of default or otherwise) has not been paid in full in cash or Cash
Equivalents unless the default has been cured or waived and any such
acceleration has been rescinded or such Senior Indebtedness has been paid
in full in cash or Cash Equivalents. However, the Company may pay the
Securities without regard to the foregoing if the Company and the Trustee
receive written notice approving such payment from the Representative of
the holders of the Designated Senior Indebtedness with respect to which
the events set forth in the immediately preceding sentence have occurred
and are continuing.
In addition, during the continuance of any default (other
than a payment default described in the first sentence of the immediately
preceding paragraph) with respect to any Designated Senior Indebtedness
pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect
such acceleration) or the expiration of any applicable grace periods, the
Company may not pay the Securities for a period (a "Payment Blockage
Period") commencing upon the receipt by the Trustee (with a copy to the
Company) of written notice (a "Blockage Notice") of such default from the
Representative of the holders of such Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period and ending 179
days thereafter (or earlier if such Payment Blockage Period is terminated
(i) by written notice to the Trustee and the Company from the Person or
Persons who gave such Blockage Notice, (ii) because the default giving
rise to such Blockage Notice and all other defaults with respect to such
Designated Senior Indebtedness shall have been cured or shall have ceased
to exist or (iii) because such Designated Senior Indebtedness has been
repaid in full in cash or Cash Equivalents).
Notwithstanding the provisions described in the
immediately preceding paragraph, unless any payment default described in
the first sentence of the second immediately preceding paragraph has
occurred and is then continuing, the Company may resume payments on the
Securities after the end of such Payment Blockage Period, including any
missed payments. Not more than one Blockage Notice may be given in any
consecutive 360-day period, irrespective of the number of defaults with
respect to Designated Senior Indebtedness during such period. However, if
any Blockage Notice within such 360-day period is given by or on behalf
of any holders of Designated Senior Indebtedness other than the Bank
Indebtedness, a Representative of holders of Bank Indebtedness may give
another 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 360 consecutive
day period.
SECTION 10.4. Acceleration of Payment of Securities. If
payment of the Securities is accelerated because of an Event of Default,
the Company shall promptly notify the holders of the Designated Senior
Indebtedness or the Representative of such holders of the acceleration
and provide copies of such notices to the Trustee.
If any Designated Senior Indebtedness is outstanding at
the time of such acceleration, the Company may not pay the Securities
until the earlier of five Business Days after the holder or
Representative of such Designated Senior Indebtedness receives notice of
such acceleration or the date of acceleration of such Designated Senior
Indebtedness and, thereafter, may pay the Securities only if this Article
X otherwise permits payments at that time.
SECTION 10.5. When Distribution Must Be Paid Over. If a
payment or distribution is made to Securityholders that because of this
Article X should not have been made to them, the Securityholders who
receive the distribution shall hold it in trust for holders of Senior
Indebtedness and promptly pay it over to them as their respective
interests may appear.
SECTION 10.6. Subrogation. After all Senior Indebtedness
is paid in full in cash and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness.
A distribution made under this Article X to holders of Senior
Indebtedness which otherwise would have been made to Securityholders is
not, as between the Company and Securityholders, a payment by the Company
of Senior Indebtedness.
SECTION 10.7. Relative Rights. This Article X defines the
relative rights of Securityholders and holders of Senior Indebtedness.
Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders,
the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the
Securities in accordance with their terms; or
(2) prevent the Trustee or any Securityholder from
exercising its available remedies upon a Default or Event of
Default, subject to the rights of holders of Senior Indebtedness
to receive distributions otherwise payable to Securityholders.
SECTION 10.8. Subordination May Not Be Impaired by
Company. No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Securities shall be
impaired by any act or failure to act by the Company or by the failure of
the Company to comply with this Indenture.
SECTION 10.9. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.3, the Trustee or Paying Agent may continue to
make payments on the Securities and shall not be charged with knowledge
of the existence of facts that would prohibit the making of any such
payments unless, not less than two Business Days prior to the date of
such payment, a Trust Officer of the Trustee receives written notice
satisfactory to it specifically stating that payments may not be made
under this Article X. The Company, the Registrar or co-registrar, the
Paying Agent, a Representative or a holder of Senior Indebtedness may
give the notice.
The Trustee in its individual or any other capacity may
hold Senior Indebtedness with the same rights it would have if it were
not Trustee. The Registrar and co-registrar and the Paying Agent may do
the same with like rights. The Trustee shall be entitled to all the
rights set forth in this Article X 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 Article VII shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article X shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.7.
SECTION 10.10. 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 (if any).
SECTION 10.11. Article X Not To Prevent Events of Default
or Limit Right to Accelerate. The failure to make a payment in respect of
the Securities by reason of any provision in this Article X shall not be
construed as preventing the occurrence of a Default or Event of Default.
Nothing in this Article X shall have an effect on the right of the
Securityholders or the Trustee to accelerate the maturity of the
Securities.
SECTION 10.12. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
money or the proceeds of U.S. Legal Tender or U.S. Government Obligations
held in trust under Article VIII by the Trustee for the payment of
principal of and interest on the Securities shall not be subordinated to
the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article X, and none of the Securityholders
shall be obligated to pay over any such amount to the Company, any holder
of Senior Indebtedness of the Company or any other creditor of the
Company.
SECTION 10.13. Trustee Entitled to Rely. Upon any payment
or distribution pursuant to this Article X, the Trustee and the
Securityholders shall be entitled to rely (i) upon any order or decree of
a court of competent jurisdiction in which any proceedings of the nature
referred to in Section 10.2 are pending, (ii) upon a certificate of the
liquidating trustee or agent or other Person making such payment or
distribution to the Trustee or to the Securityholders or (iii) upon the
Representatives for the holders of Senior Indebtedness 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 X. In the event that the Trustee determines, in good
faith, that 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 X, 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 other facts pertinent to the rights of such Person under
this Article X, 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. The provisions of Sections
7.1 and 7.2 shall be applicable to all actions or omissions of actions by
the Trustee pursuant to this Article X.
SECTION 10.14. Trustee to Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee
on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Securityholders
and the holders of Senior Indebtedness as provided in this Article X and
appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness. 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 it shall mistakenly pay over or distribute to Securityholders
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 X or
otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness
on Subordination Provisions. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are,
and are intended to be, an inducement and a consideration to each holder
of any Senior Indebtedness, whether such Senior Indebtedness was created
or acquired before or after the issuance of the Securities, to acquire
and continue to hold, or to continue to hold, such Senior Indebtedness
and such holder of Senior Indebtedness shall be deemed conclusively to
have relied on such subordination provisions in acquiring and continuing
to hold, or in continuing to hold, such Senior Indebtedness.
ARTICLE XI
[RESERVED]
ARTICLE XII
[RESERVED]
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA,
the provision required by the TIA shall control.
SECTION 13.2. Notices. Any notice or communication shall
be in writing and delivered in person or mailed by first-class mail
addressed as follows:
if to the Company:
Fisher Scientific International Inc.
Liberty Lane
Hampton, NH 03842
Attention of General Counsel
if to the Trustee:
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut 06103
Attention of Corporate Trust Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder
shall be mailed to the Securityholder at the Securityholder's address as
it appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency with
respect to other Securityholders. If a notice or communication is mailed
in the manner provided above, it is duly given, whether or not the
addressee receives it.
SECTION 13.3. Communication by Holders With Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
SECTION 13.4. Certificate and Opinion As To Conditions
Precedent. Upon any request or application by the Company to the Trustee
to take or refrain from taking any action under this Indenture, the
Company, upon request, shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.5. Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(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 such individual,
he has made such examination or investigation as is necessary to
enable him 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 or not, in the opinion of
such individual, such covenant or condition has been complied
with.
SECTION 13.6. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the
Company or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company shall be
disregarded and deemed not to be outstanding, except that, for the
purpose of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities which the
Trustee knows are so owned shall be so disregarded. Also, subject to the
foregoing, only Securities outstanding at the time shall be considered in
any such determination.
SECTION 13.7. Rules by Trustee, Paying Agent and
Registrar. The Trustee may make reasonable rules for action by or a
meeting of Securityholders. The Registrar and the Paying Agent may make
reasonable rules for their functions.
SECTION 13.8. Legal Holidays. A "LEGAL HOLIDAY" is a
Saturday, a Sunday or a day on which banking institutions are not
required to be open in the State of New York or in the state in which the
corporate trust office of the Trustee is located. If a payment date is a
Legal Holiday, payment shall be made on the next succeeding lay that is
not a Legal Holiday, and no interest shall accrue for the intervening
period. If a regular record date is a Legal Holiday, the record date
shall not be affected.
SECTION 13.9. Governing Law. This Indenture and the
Securities shall be governed by, and construed in accordance with, the
laws of the State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application of the
laws of another jurisdiction would be required thereby.
SECTION 13.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company shall not have
an liability for any obligations of the Company under the Securities or
this Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Security, each
Securityholder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the
Securities.
SECTION 13.11. Successors. All agreements of the Company
and the Subsidiary Guarantors in this Indenture and the Securities shall
bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 13.12. Multiple Originals. The parties may sign
any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
SECTION 13.13. Variable Provisions. The company initially
appoints the Trustee as Paying Agent and Registrar and custodian with
respect to any Global Securities.
SECTION 13.14. Qualification Of Indenture. The Company
shall qualify this Indenture under the TIA in accordance with the terms
and conditions of the Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys' fees for the Company,
the Trustee and the Holders) incurred in connection therewith, including,
but not limited to, costs and expenses of qualification of this Indenture
and the Securities and printing this Indenture and the Securities. The
Trustee shall be entitled to receive from the Company any such Officers'
Certificates, Opinions of Counsel or other documentation as it may
reasonably request in connection with any such qualification of this
Indenture under the TIA.
SECTION 13.15. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections
of this Indenture have been inserted for convenience of reference only,
are not intended to be considered a part hereof and shall not modify or
restrict any of the terms or provisions hereof.
[SIGNATURE PAGE FOLLOWS]
[SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have caused this Indenture
to be duly executed as of the date first written above.
FISHER SCIENTIFIC INTERNATIONAL INC.
By: /s/ Paul M. Meister
___________________________________
Name: Paul M. Meister
Title: Senior Vice President and
Chief Financial Officer
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Philip G. Kane, Jr.
__________________________________
Name: Philip G. Kane, Jr.
Title: Vice President
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, 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 NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT 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 INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC 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 THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION AND SUBJECT TO COMPLIANCE WITH
OTHER APPLICABLE LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD THAT MAY HEREAFTER BE
PROVIDED UNDER RULE 144(K) (OR ANY SUCCESSOR PROVISION THEREOF) AS
PERMITTING THE RESALE BY NON-AFFILIATES OF RESTRICTED SECURITIES WITHOUT
RESTRICTION) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY, ANY GUARANTOR OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) (THE "RESALE RESTRICTION TERMINATION DATE"), ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND OTHERWISE IN COMPLIANCE WITH OTHER APPLICABLE LAWS, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
FISHER SCIENTIFIC INTERNATIONAL INC.
No. __ Principal Amount $_____________
CUSIP NO. _________
9% Senior Subordinated Note due 2008
Fisher Scientific International Inc., a Delaware
corporation, promises to pay to __________, or registered assigns, the
principal sum of ___________________________ Dollars on February 1, 2008.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Additional provisions of this Security are set forth on
the other side of this Security.
IN WITNESS WHEREOF, the Company has caused this Security
to be signed manually or by facsimile by its duly authorized officers and
a facsimile of its corporate seal to be affixed hereto and imprinted
hereon.
Dated: January 21, 1998 FISHER SCIENTIFIC INTERNATIONAL INC.
By: _______________________________
Name:
Title
By: _______________________________
Name:
Title
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by __________________________
Authorized Signatory
(Reverse of Security)
9% Senior Subordinated Note due 2008
1. Interest
Fisher Scientific International Inc., a Delaware
corporation (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "Company"),
promises to pay interest on the principal amount of this Security at the
rate per annum shown above.
The Company will pay interest semiannually on February 1
and August 1 of each year, commencing August 1, 1998. Interest on the
Securities will accrue from the most recent date to which interest has
been paid on the Securities or, if no interest has been paid, from the
date of issuance. The Company shall pay interest on overdue principal or
premium, if any, and interest at the rate borne by the Securities to the
extent lawful. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
2. Method of Payment
By at least 10:00 A.M. (New York City time) on the date on
which any principal of or interest on any Security is due and payable,
the Company shall irrevocably deposit with the Trustee or the Paying
Agent money sufficient to pay such principal, premium, if any, and/or
interest. The Company will pay interest (except defaulted interest) to
the Persons who are registered Holders of Securities at the close of
business on the January 15 and July 15 immediately preceding the interest
payment date even if Securities are cancelled, repurchased or redeemed
after the record date and on or before the interest payment date. Holders
must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal and
interest by check payable in such money. It may mail an interest check to
a Holder's registered address.
3. Paying Agent and Registrar
Initially, State Street Bank and Trust Company, a
Massachusetts chartered trust company (the "Trustee"), will act as Paying
Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice to any Securityholder. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries
may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated
as of January 21, 1998 (as it may be amended or supplemented from time to
time in accordance with the terms thereof, the "Indenture"), among the
Company and the Trustee. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect
on the date of the Indenture (the "Act"). Capitalized terms used herein
and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement
of those terms.
The Securities are general unsecured senior subordinated
obligations of the Company limited to $400 million aggregate principal
amount (subject to Section 2.7 of the Indenture). This Security is one of
the Initial Securities referred to in the Indenture. The Securities
include the Initial Securities and any Exchange Securities issued in
exchange for the Initial Securities pursuant to the Indenture and the
Registration Rights Agreement. The Initial Securities and the Exchange
Securities are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the incurrence of
Indebtedness by the Company and its Restricted Subsidiaries, the payment
of dividends and other distributions on the Capital Stock of the Company
and its Restricted Subsidiaries, the sale or transfer of assets and
Capital Stock of Restricted Subsidiaries, the investments of the Company,
its Subsidiaries and transactions with Affiliates, Liens, dividends and
other payment restrictions affecting Subsidiaries, incurrence of senior
subordinated Indebtedness, preferred stock of Subsidiaries and future
guarantees. In addition, the Indenture limits the ability of the Company
and its Restricted Subsidiaries to restrict distributions and dividends
from Restricted Subsidiaries.
5. Optional Redemption
Except as set forth in this paragraph 5, the Securities
will not be redeemable at the option of the Company prior to February 1,
2003. On and after such date, the Securities will be redeemable, at the
Company's option, in whole or in part, upon not less than 30 nor more
than 60 days' prior notice mailed by first class mail to each Holder's
registered address, at the following redemption prices (expressed as
percentages of principal amount) if redeemed during the twelve month
period commencing on February 1 of the year set forth below plus, in each
case, accrued and unpaid interest to the redemption date (subject to the
right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date):
Year Redemption Price
---- ----------------
2003.................................... 104.50%
2004.................................... 103.00%
2005.................................... 101.50%
2006 and thereafter..................... 100.00%
Notwithstanding the foregoing, at any time, or from time
to time, on or prior to February 1, 2001, the Company may, at its option,
use the net cash proceeds of one or more Equity Offerings to redeem up to
40% of the aggregate principal amount of Securities originally issued at
a redemption price equal to 109% of the principal amount thereof plus
accrued interest to the date of redemption; provided that at least 60% of
the original principal amount of Securities remains outstanding
immediately after any such redemption (excluding any Securities owned by
the Company). In order to effect the foregoing redemption with the
proceeds of any Equity Offering, the Company must mail a notice of
redemption no later than 60 days after the related Equity Offering and
must consummate such redemption within 90 days of the closing of the
Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his registered address. If fewer than all
the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies
with applicable legal and securities exchange requirements, if any, and
that the Trustee considers fair and appropriate and in accordance with
methods generally used at the time of selection by fiduciaries in similar
circumstances; provided, however, that if a partial redemption is made
with the proceeds of an Equity Offering, selection of the Securities or
portion thereof for redemption shall be made by the Trustee only on a pro
rata basis, unless such method is otherwise prohibited. Securities in
denominations of principal amount larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000. If money sufficient to pay
the redemption price of and accrued and unpaid interest on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited
with the Paying Agent on or before the redemption date and certain other
conditions are satisfied, on and after such date interest ceases to
accrue on such Securities (or such portions thereof) called for
redemption.
7. Option of Holder to Elect Purchase
Upon a Change of Control Triggering Event, any Holder of
Securities will have the right to require that the Company purchase all
or a portion of such Holder's Securities pursuant to the Indenture at a
purchase price in cash equal to 101% of the principal amount thereof plus
accrued interest to the date of repurchase as provided in, and subject to
the terms of, the Indenture.
Under certain circumstances, in the event the Net Cash
Proceeds received by the Company or a Restricted Subsidiary from an Asset
Sale are not used (a) to prepay any Senior Indebtedness and, in the case
of any Senior Indebtedness under any revolving credit facility, effect a
permanent reduction in the availability under such revolving credit
facility, (b) to reinvest in Productive Assets or (c) a combination of
prepayment and investment permitted by the foregoing clauses (a) and (b),
then such aggregate amount of Net Cash Proceeds which have not been
applied on or before such Net Proceeds Offer Trigger Date shall be
applied by the Company or such Restricted Subsidiary to make an offer to
purchase on a date not less than 30 nor more than 45 days following the
applicable Net Proceeds Offer Trigger Date from all Holders on a pro rata
basis that amount of Securities equal to the Note Offer Amount at a price
in cash equal to 100% of the principal amount of the Securities to be
purchased, plus accrued and unpaid interest thereon, if any, to the date
of purchase.
8. Subordination
The Securities are subordinated to Senior Indebtedness, as
defined in the Indenture. To the extent provided in the Indenture, Senior
Indebtedness must be paid before the Securities may be paid. The Company
agrees, and each Securityholder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and authorizes the
Trustee to give them effect and appoints the Trustee as attorney-in-fact
for such purpose.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of
$1,000. A Holder may transfer or exchange Securities in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements or transfer documents and to pay any
taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange of any Security
for a period beginning (i) 15 Business Days before the mailing of a
notice of an offer to repurchase or redeem Securities and ending at the
close of business on the day of such mailing or (b) 15 Business Days
before an interest payment date and ending on such interest payment date.
10. Persons Deemed Owners
The registered holder of this Security may be treated as
the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money
back to the Company at its request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to
the money must look only to the Company and not to the Trustee for
payment.
12. Defeasance
Subject to certain conditions set forth in the Indenture,
the Company at any time may terminate some or all of its obligations
under the Securities and the Indenture if the Company deposits with the
Trustee money or U.S. Government Obligations for the payment of principal
of, premium, if any, and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture,
(i) the Indenture or the Securities may be amended with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities and (ii) any default or noncompliance with any
provision may be waived with the written consent of the Holders of a
majority in principal amount of the outstanding Securities. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company, and the Trustee may amend the Indenture or
the Securities to, among other things set forth in the Indenture, cure
any ambiguity, omission, defect or inconsistency, or to comply with
Article V of the Indenture, or to make certain changes in Article X of
the Indenture or to provide for uncertificated Securities in addition to
or in place of certificated Securities, or to add guarantees with respect
to the Securities or to secure the Securities, or to add additional
covenants or surrender rights and powers conferred on the Company, or to
comply with any request of the SEC in connection with qualifying the
Indenture under the Act, or to make any change that does not adversely
affect the rights of any Securityholder, or to provide for the issuance
of Exchange Securities.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default
for 30 days in payment of interest on the Securities; (ii) default in
payment of principal on the Securities at maturity, upon redemption
pursuant to paragraph 5 of the Securities, upon required repurchase, upon
declaration or otherwise; (iii) failure by the Company to comply with
other agreements in the Indenture or the Securities, in certain cases
subject to notice and lapse of time; (iv) failure to pay at final
maturity (giving effect to any applicable grace period and any extensions
thereof) the principal amount of any Indebtedness of the Company or any
Restricted Subsidiary (other than a Receivables Entity) of the Company,
or the acceleration of the final maturity of any such Indebtedness, if
the aggregate principal amount of any such Indebtedness, together with
the principal amount of any such other Indebtedness in default for
failure to pay principal at final maturity or which has been accelerated,
aggregates $15.0 million or more at any time; (v) certain events of
bankruptcy or insolvency with respect to the Company or any Significant
Subsidiary; and (vi) certain final, non-appealable judgments or decrees
for the payment of money in excess of $15.0 million against the Company
or any Significant Subsidiary. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal
amount of the Securities may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are
Events of Default which will result in the Securities being due and
payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of a
majority in principal amount of the Securities may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
15. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture,
the Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with
and collect obligations owed to it by the Company or its affiliates and
may otherwise deal with the Company or its affiliates with the same
rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder waives and releases all such
liability. The waiver and release are part of the consideration for the
issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent acting on its
behalf) manually signs the certificate of authentication on the other
side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN
ENT (=tenants by the entirety), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A
(=Uniform Gift to Minors Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures the Company has caused
CUSIP numbers to be printed on the Securities and has directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such
numbers either as printed on the Securities or as contained in any notice
of redemption and reliance may be placed only on the other identification
numbers placed thereon.
20. Governing Law
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving
effect to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be required
thereby.
The Company will furnish to any Securityholder upon
written request and without charge to the Securityholder a copy of the
Indenture which has in it the text of this Security in larger type.
Requests may be made to: Fisher Scientific International Inc., Liberty
Lane, Hampton, New Hampshire 03842, Attention: General Counsel.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
(Print or type assignee's name, address and zip code)
_____________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute
another to act for him.
_________________________________________________________________________
Date: ______________ Your Signature: ______________________
Signature Guarantee: ______________________________
(Signature must be guaranteed)
________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer or exchange of any of the Securities
evidenced by this certificate occurring prior to the date that is two
years after the later of the date of original issuance of such Securities
and the last date, if any, on which such Securities were owned by the
Company or any Affiliate of the Company, the undersigned confirms that
such Securities are being:
CHECK ONE BOX BELOW:
1 [ ] acquired for the undersigned's own account, without
transfer (in satisfaction of Section 2.6(a)(ii)(A)
or Section 2.6(d)(i)(A) of the Indenture); or
2 [ ] transferred to the Company; or
3 [ ] transferred pursuant to and in compliance with Rule
144A under the Securities Act of 1933; or
4 [ ] transferred pursuant to an effective registration
statement under the Securities Act; or
5 [ ] transferred pursuant to and in compliance with
Regulation S under the Securities Act of 1933; or
6 [ ] transferred to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933), that has furnished to
the Trustee a signed letter containing certain
representations and agreements (the form of which
letter appears as Exhibit C to the Indenture); or
7 [ ] transferred pursuant to another available exemption
from the registration requirements of the Securities
Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however, that
if box (5), (6) or (7) is checked, the Trustee or the Company may
require, prior to registering any such transfer of the Securities, in
their sole discretion, such legal opinions, certifications and other
information as the Trustee or the Company may reasonably request to
confirm that such transfer is being made pursuant to an exemption from,
or in a transaction not subject to, the registration requirements of the
Securities Act of 1933, such as the exemption provided by Rule 144 under
such Act.
____________________________
Signature
Signature Guarantee:
___________________________ _____________________________
Signature
(Signature must be guaranteed)
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global
Security have been made:
<TABLE>
<CAPTION>
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized officer of
Date of Principal Amount of Principal Amount of following such Trustee or Securities
Exchange this Global Security this Global Security decrease or increase Custodian
<S> <C> <C> <C> <C>
</TABLE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by
the Company pursuant to Section 4.6 or 4.8 of the Indenture, check the
box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.6 or 4.8 of the Indenture,
state the amount in principal amount (must be integral multiple of
$1,000): $
Date: __________ Your Signature ___________________________
(Sign exactly as your name appears on the
other side of the Security)
Signature Guarantee: _____________________________________
(Signature must be guaranteed)
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, 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 NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT 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 INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC 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 THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.
FISHER SCIENTIFIC INTERNATIONAL INC.
No. __ Principal Amount $_____________
CUSIP NO. ___________
9% Senior Subordinated Note due 2008
Fisher Scientific International Inc., a Delaware
corporation, promises to pay to __________, or registered assigns, the
principal sum of ___________________________ Dollars on February 1, 2008.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Additional provisions of this Security are set forth on
the other side of this Security.
IN WITNESS WHEREOF, the Company has caused this Security
to be signed manually or by facsimile by its duly authorized officers and
a facsimile of its corporate seal to be affixed hereto and imprinted
hereon.
Dated: January 21, 1998 FISHER SCIENTIFIC INTERNATIONAL INC.
By:_________________________________
Name:
Title
By: _______________________________
Name:
Title
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by __________________________
Authorized Signatory
(Reverse of Security)
9% Senior Subordinated Note due 2008
1. Interest
Fisher Scientific International Inc., a Delaware
corporation (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "Company"),
promises to pay interest on the principal amount of this Security at the
rate per annum shown above.
The Company will pay interest semiannually on February 1
and August 1 of each year, commencing August 1, 1998. Interest on the
Securities will accrue from the most recent date to which interest has
been paid on the Securities or, if no interest has been paid, from the
date of issuance. The Company shall pay interest on overdue principal or
premium, if any, and interest at the rate borne by the Securities to the
extent lawful. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
2. Method of Payment
By at least 10:00 A.M. (New York City time) on the date on
which any principal of or interest on any Security is due and payable,
the Company shall irrevocably deposit with the Trustee or the Paying
Agent money sufficient to pay such principal, premium, if any, and/or
interest. The Company will pay interest (except defaulted interest) to
the Persons who are registered Holders of Securities at the close of
business on the January 15 and July 15 immediately preceding the interest
payment date even if Securities are canceled, repurchased or redeemed
after the record date and on or before the interest payment date. Holders
must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal and
interest by check payable in such money. It may mail an interest check to
a Holder's registered address.
3. Paying Agent and Registrar
Initially, State Street Bank and Trust Company,
Massachusetts chartered trust company (the "Trustee"), will act as Paying
Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice to any Securityholder. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries
may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated
as of January 21, 1998 (as it may be amended or supplemented from time to
time in accordance with the terms thereof, the "Indenture"), among the
Company and the Trustee. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect
on the date of the Indenture (the "Act"). Capitalized terms used herein
and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement
of those terms.
The Securities are general unsecured senior subordinated
obligations of the Company limited to $400 million aggregate principal
amount (subject to Section 2.7 of the Indenture). This Security is one of
the Initial Securities referred to in the Indenture. The Securities
include the Initial Securities and any Exchange Securities issued in
exchange for the Initial Securities pursuant to the Indenture and the
Registration Rights Agreement. The Initial Securities and the Exchange
Securities are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the incurrence of
Indebtedness by the Company and its Restricted Subsidiaries, the payment
of dividends and other distributions on the Capital Stock of the Company
and its Restricted Subsidiaries, the sale or transfer of assets and
Capital Stock of Restricted Subsidiaries, the investments of the Company,
its Subsidiaries and transactions with Affiliates, Liens, dividends and
other payment restrictions affecting Subsidiaries, incurrence of senior
subordinated Indebtedness, preferred stock of Subsidiaries and future
guarantees. In addition, the Indenture limits the ability of the Company
and its Restricted Subsidiaries to restrict distributions and dividends
from Restricted Subsidiaries.
5. Optional Redemption
Except as set forth in this paragraph 5, the Securities
will not be redeemable at the option of the Company prior to February 1,
2003. On and after such date, the Securities will be redeemable, at the
Company's option, in whole or in part, upon not less than 30 nor more
than 60 days' prior notice mailed by first class mail to each Holder's
registered address, at the following redemption prices (expressed as
percentages of principal amount) if redeemed during the twelve month
period commencing on February 1 of the year set forth below plus, in each
case, accrued and unpaid interest to the redemption date (subject to the
right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date):
Year Redemption Price
---- ----------------
2003.................................. 104.50%
2004.................................. 103.00%
2005.................................. 101.50%
2006 and thereafter................... 100.00%
Notwithstanding the foregoing, at any time, or from time
to time, on or prior to February 1, 2001, the Company may, at its option,
use the net cash proceeds of one or more Equity Offerings to redeem up to
40% of the aggregate principal amount of Securities originally issued at
a redemption price equal to 109% of the principal amount thereof plus
accrued interest to the date of redemption; provided that at least 60% of
the original principal amount of Securities remains outstanding
immediately after any such redemption (excluding any Securities owned by
the Company). In order to effect the foregoing redemption with the
proceeds of any Equity Offering, the Company must mail a notice of
redemption no later than 60 days after the related Equity Offering and
must consummate such redemption within 90 days of the closing of the
Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his registered address. If fewer than all
the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies
with applicable legal and securities exchange requirements, if any, and
that the Trustee considers fair and appropriate and in accordance with
methods generally used at the time of selection by fiduciaries in similar
circumstances; provided, however, that if a partial redemption is made
with the proceeds of an Equity Offering, selection of the Securities or
portion thereof for redemption shall be made by the Trustee only on a pro
rata basis, unless such method is otherwise prohibited. Securities in
denominations of principal amount larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000. If money sufficient to pay
the redemption price of and accrued and unpaid interest on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited
with the Paying Agent on or before the redemption date and certain other
conditions are satisfied, on and after such date interest ceases to
accrue on such Securities (or such portions thereof) called for
redemption.
7. Option of Holder to Elect Purchase
Upon a Change of Control Triggering Event, any Holder of
Securities will have the right to require that the Company purchase all
or a portion of such Holder's Securities pursuant to the Indenture at a
purchase price in cash equal to 101% of the principal amount thereof plus
accrued interest to the date of repurchase as provided in, and subject to
the terms of, the Indenture.
Under certain circumstances, in the event the Net Cash
Proceeds received by the Company or a Restricted Subsidiary from an Asset
Sale are not used (a) to prepay any Senior Indebtedness and, in the case
of any Senior Indebtedness under any revolving credit facility, effect a
permanent reduction in the availability under such revolving credit
facility, (b) to reinvest in Productive Assets or (c) a combination of
prepayment and investment permitted by the foregoing clauses (a) and (b),
then such aggregate amount of Net Cash Proceeds which have not been
applied on or before such Net Proceeds Offer Trigger Date shall be
applied by the Company or such Restricted Subsidiary to make an offer to
purchase on a date not less than 30 nor more than 45 days following the
applicable Net Proceeds Offer Trigger Date from all Holders on a pro rata
basis that amount of Securities equal to the Note Offer Amount at a price
equal in cash to 100% of the principal amount of the Securities to be
purchased, plus accrued and unpaid interest thereon, if any, to the date
of purchase.
8. Subordination
The Securities are subordinated to Senior Indebtedness, as
defined in the Indenture. To the extent provided in the Indenture, Senior
Indebtedness must be paid before the Securities may be paid. The Company
agrees, and each Securityholder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and authorizes the
Trustee to give them effect and appoints the Trustee as attorney-in-fact
for such purpose.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of
$1,000. A Holder may transfer or exchange Securities in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements or transfer documents and to pay any
taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange of any Security
for a period beginning (i) 15 Business Days before the mailing of a
notice of an offer to repurchase or redeem Securities and ending at the
close of business on the day of such mailing or (b) 15 Business Days
before an interest payment date and ending on such interest payment date.
10. Persons Deemed Owners
The registered holder of this Security may be treated as
the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money
back to the Company at its request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to
the money must look only to the Company and not to the Trustee for
payment.
12. Defeasance
Subject to certain conditions set forth in the Indenture,
the Company at any time may terminate some or all of its obligations
under the Securities and the Indenture if the Company deposits with the
Trustee money or U.S. Government Obligations for the payment of principal
of, premium, if any, and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture,
(i) the Indenture or the Securities may be amended with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities and (ii) any default or noncompliance with any
provision may be waived with the written consent of the Holders of a
majority in principal amount of the outstanding Securities. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company, and the Trustee may amend the Indenture or
the Securities to, among other things set forth in the Indenture, cure
any ambiguity, omission, defect or inconsistency, or to comply with
Article V of the Indenture, or to make certain changes in Article X of
the Indenture or to provide for uncertificated Securities in addition to
or in place of certificated Securities, or to add guarantees with respect
to the Securities or to secure the Securities, or to add additional
covenants or surrender rights and powers conferred on the Company, or to
comply with any request of the SEC in connection with qualifying the
Indenture under the Act, or to make any change that does not adversely
affect the rights of any Securityholder, or to provide for the issuance
of Exchange Securities.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default
for 30 days in payment of interest on the Securities; (ii) default in
payment of principal on the Securities at maturity, upon redemption
pursuant to paragraph 5 of the Securities, upon required repurchase, upon
declaration or otherwise; (iii) failure by the Company to comply with
other agreements in the Indenture or the Securities, in certain cases
subject to notice and lapse of time; (iv) failure to pay at final
maturity (giving effect to any applicable grace period and any extensions
thereof) the principal amount of any Indebtedness of the Company or any
Restricted Subsidiary (other than a Receivables Entity) of the Company,
or the acceleration of the final maturity of any such Indebtedness, if
the aggregate principal amount of any such Indebtedness, together with
the principal amount of any such other Indebtedness in default for
failure to pay principal at final maturity or which has been accelerated,
aggregates $15.0 million or more at any time; (v) certain events of
bankruptcy or insolvency with respect to the Company or any Significant
Subsidiary; and (vi) certain final, non-appealable judgments or decrees
for the payment of money in excess of $15.0 million against the Company
or any Significant Subsidiary. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal
amount of the Securities may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are
Events of Default which will result in the Securities being due and
payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of a
majority in principal amount of the Securities may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
15. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture,
the Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with
and collect obligations owed to it by the Company or its affiliates and
may otherwise deal with the Company or its affiliates with the same
rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder waives and releases all such
liability. The waiver and release are part of the consideration for the
issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent acting on its
behalf) manually signs the certificate of authentication on the other
side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN
ENT (=tenants by the entirety), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A
(=Uniform Gift to Minors Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures the Company has
caused CUSIP numbers to be printed on the Securities and has directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such
numbers either as printed on the Securities or as contained in any notice
of redemption and reliance may be placed only on the other identification
numbers placed thereon.
20. Governing Law
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving
effect to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be required
thereby.
The Company will furnish to any Securityholder upon
written request and without charge to the Securityholder a copy of the
Indenture which has in it the text of this Security in larger type.
Requests may be made to: Fisher Scientific International Inc., Liberty
Lane, Hampton, New Hampshire 03842, Attention: General Counsel.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Print or type assignee's name, address and zip code)
_________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute
another to act for him.
__________________________________________________________________________
Date: ____________________ Your Signature: _________________
Signature Guarantee: ______________________________
(Signature must be guaranteed)
__________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global
Security have been made:
<TABLE>
<CAPTION>
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized officer of
Date of Principal Amount of Principal Amount of following such Trustee or Securities
Exchange this Global Security this Global Security decrease or increase Custodian
<S> <C> <C> <C> <C>
</TABLE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by
the Company pursuant to Section 4.6 or 4.8 of the Indenture, check the
box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.6 or 4.8 of the Indenture,
state the amount in principal amount (must be integral multiple of
$1,000): $
Date: __________ Your Signature ___________________________
(Sign exactly as your name appears on the other
side of the Security)
Signature Guarantee: _____________________________________
(Signature must be guaranteed)
EXECUTION COPY
CREDIT AGREEMENT
among
FISHER SCIENTIFIC INTERNATIONAL INC.,
CERTAIN SUBSIDIARIES OF
FISHER SCIENTIFIC INTERNATIONAL INC.,
VARIOUS LENDING INSTITUTIONS,
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT,
THE CHASE MANHATTAN BANK OF CANADA,
AS CANADIAN ADMINISTRATIVE AGENT,
CHASE MANHATTAN INTERNATIONAL LIMITED,
AS U.K. ADMINISTRATIVE AGENT,
MERRILL LYNCH CAPITAL CORPORATION,
AS SYNDICATION AGENT,
AND
DLJ CAPITAL FUNDING, INC.
AS DOCUMENTATION AGENT,
Dated as of January 21, 1998
TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit..............................-1-
1.01 Commitments..............................................-1-
1.02 Minimum Borrowing Amounts, etc...........................-4-
1.03 Notice of Borrowing......................................-4-
1.04 Disbursement of Funds....................................-6-
1.05 Evidence of Debt.........................................-7-
1.06 Conversions..............................................-8-
1.07 Pro Rata Borrowings......................................-8-
1.08 Interest.................................................-9-
1.09 Interest Periods........................................-10-
1.10 Increased Costs, Illegality, etc........................-11-
1.11 Compensation............................................-14-
1.12 Change of Lending Office................................-15-
1.13 Replacement of Banks....................................-15-
1.14. Local Currency Loans...................................-16-
1.15 Currency Fluctuations, etc..............................-19-
1.16 European Monetary Union.................................-20-
1.17 Implementation of CAM...................................-21-
1.18 Subsidiary Borrowers....................................-23-
1.19 B/A Rate Loans..........................................-23-
SECTION 2. Letters of Credit.......................................-24-
2.01 Letters of Credit.......................................-24-
2.02 Letter of Credit Requests; Notices of Issuance..........-25-
2.03 Agreement to Repay Letter of Credit Drawings............-25-
2.04 Letter of Credit Participations.........................-26-
2.05 Increased Costs.........................................-28-
2.06 Replacement of the Letter of Credit Issuer..............-28-
2.07 Local Letters of Credit.................................-29-
2.08 Existing Letters of Credit..............................-30-
SECTION 3. Fees, Commitments.......................................-30-
3.01 Fees....................................................-30-
3.02 Voluntary Termination or Reduction of Commitments.......-31-
3.03 Mandatory Adjustments of Commitments, etc...............-32-
SECTION 4. Payments................................................-33-
4.01 Voluntary Prepayments...................................-33-
4.02 Mandatory Repayments and Prepayments....................-34-
4.03 Method and Place of Payment.............................-41-
4.04 Net Payments............................................-42-
SECTION 5. Conditions Precedent....................................-45-
5.01 Execution of Agreement; Notes...........................-45-
5.02 No Default; Representations and Warranties..............-45-
5.03 Officer's Certificate...................................-45-
5.04 Opinions of Counsel.....................................-45-
5.05 Corporate Proceedings...................................-45-
5.06 Adverse Change, etc.....................................-46-
5.07 Litigation..............................................-46-
5.08 Approvals...............................................-46-
5.09 Consummation of the Transaction.........................-46-
5.10 Security Documents......................................-47-
5.11 Fees and Expenses.......................................-49-
5.12 Mortgages; Title Insurance..............................-49-
5.13 Existing Indebtedness Agreements; Shareholders'
Agreements; Management Agreements; Tax Allocation
Agreements............................................-49-
5.14 Solvency Opinions; Evidence of Insurance................-50-
5.15 Pro Forma Balance Sheet.................................-50-
5.16 Existing Indebtedness...................................-51-
5.17 Payment of Fees.........................................-51-
5.18 Notice of Borrowing; Letter of Credit Request...........-51-
5.19 Equity Financing........................................-51-
5.20 Borrowings by Subsidiary Borrowers......................-51-
SECTION 6. Representations, Warranties and Agreements..............-52-
6.01 Corporate Status........................................-52-
6.02 Corporate Power and Authority...........................-52-
6.03 No Violation............................................-52-
6.04 Litigation..............................................-53-
6.05 Use of Proceeds; Margin Regulations.....................-53-
6.06 Governmental Approvals..................................-53-
6.07 Investment Company Act..................................-54-
6.08 Public Utility Holding Company Act......................-54-
6.09 True and Complete Disclosure............................-54-
6.10 Financial Condition, Financial Statements...............-54-
6.11 Security Interests......................................-55-
6.12 Representations and Warranties in Other Documents.......-55-
6.13 Transaction.............................................-56-
6.14 Compliance with ERISA...................................-56-
6.15 Capitalization..........................................-57-
6.16 Subsidiaries............................................-57-
6.17 Intellectual Property...................................-57-
6.18 Compliance with Statutes, etc...........................-58-
6.19 Environmental Matters...................................-58-
6.20 Properties..............................................-58-
6.21 Labor Relations.........................................-59-
6.22 Tax Returns and Payments................................-59-
6.23 Existing Indebtedness...................................-60-
6.24 Outstanding Letters of Credit...........................-60-
6.25 Senior Subordinated Notes...............................-60-
SECTION 7. Affirmative Covenants...................................-60-
7.01 Information Covenants...................................-60-
7.02 Books, Records and Inspections..........................-62-
7.03 Insurance...............................................-63-
7.04 Payment of Taxes........................................-63-
7.05 Corporate Franchises....................................-63-
7.06 Compliance with Statutes, etc...........................-63-
7.07 Compliance with Environmental Laws......................-64-
7.08 ERISA...................................................-64-
7.09 Good Repair.............................................-65-
7.10 End of Fiscal Years; Fiscal Quarters....................-65-
7.11 Additional Security; Further Assurances.................-65-
7.12 Foreign Subsidiaries Security...........................-66-
SECTION 8. Negative Covenants......................................-67-
8.01 Changes in Business.....................................-67-
8.02 Consolidation, Merger, Sale or Purchase of
Assets, etc..........................................-68-
8.03 Liens...................................................-70-
8.04 Indebtedness............................................-72-
8.05 Designated Senior Debt..................................-74-
8.06 Advances, Investments and Loans.........................-74-
8.07 Dividends, etc..........................................-76-
8.08 Transactions with Affiliates............................-77-
8.09 Capital Expenditures....................................-77-
8.10 Minimum Consolidated EBITDA.............................-78-
8.11 Interest Coverage Ratio.................................-79-
8.12 Leverage Ratio..........................................-79-
8.13 Limitation on Voluntary Payments and Modifications
of Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements;
Issuances of Capital Stock, etc.......................-80-
8.14 Limitation on Certain Restrictions on
Subsidiaries..........................................-81-
8.15 Limitation on the Creation of Subsidiaries..............-81-
8.16 Maintenance of Corporate Separateness, etc..............-82-
SECTION 9. Events of Default.......................................-82-
9.01 Payments................................................-82-
9.02 Representations, etc....................................-82-
9.03 Covenants...............................................-82-
9.04 Default Under Other Agreements..........................-82-
9.05 Bankruptcy, etc.........................................-82-
9.06 ERISA...................................................-83-
9.07 Security Documents......................................-83-
9.08 Guaranties..............................................-84-
9.09 Judgments...............................................-84-
9.10 Ownership...............................................-84-
9.11 Pledge of Company's Stock...............................-84-
SECTION 10. Definitions............................................-84-
SECTION 11. The Agents............................................-119-
11.01 Appointment...........................................-119-
11.02 Delegation of Duties..................................-119-
11.03 Exculpatory Provisions................................-119-
11.04 Reliance by Administrative Agent......................-120-
11.05 Notice of Default.....................................-121-
11.06 Nonreliance on Administrative Agent and Other
Banks...............................................-121-
11.07 Indemnification.......................................-122-
11.08 Administrative Agent in its Individual Capacity.......-122-
11.09 Holders...............................................-123-
11.10 Resignation of the Administrative Agent;
Successor Administrative Agent......................-123-
11.11 Documentation Agent, Syndication Agent and
Co-Agents...........................................-123-
11.12 Letter of Credit Issuer...............................-123-
SECTION 12. Miscellaneous.........................................-123-
12.01 Payment of Expenses, etc..............................-123-
12.02 Right of Setoff.......................................-124-
12.03 Notices...............................................-124-
12.04 Benefit of Agreement..................................-125-
12.05 No Waiver, Remedies Cumulative........................-127-
12.06 Payments Pro Rata.....................................-127-
12.07 Calculations; Computations............................-128-
12.08 Governing Law; Submission to Jurisdiction; Venue......-128-
12.09 Counterparts..........................................-129-
12.10 Effectiveness.........................................-129-
12.11 Headings Descriptive..................................-129-
12.12 Amendment or Waiver, etc..............................-129-
12.13 Survival..............................................-131-
12.14 Domicile of Loans.....................................-131-
12.15 Confidentiality.......................................-131-
12.16 Waiver of Jury Trial..................................-132-
12.17 Integration...........................................-132-
12.18. Currency of Account; Judgment Currency...............-132-
ANNEX I List of Banks and Commitments
ANNEX II Bank Addresses
ANNEX III B/A Rate Loans
SCHEDULE I Subsidiary Borrowers
SCHEDULE 6.04 Litigation
SCHEDULE 6.10 Projections
SCHEDULE 6.15 Capital Stock of the Borrower
SCHEDULE 6.16 Subsidiaries
SCHEDULE 6.20 Real Properties
SCHEDULE 6.23 Existing Indebtedness
SCHEDULE 6.24 Existing Letters of Credit
SCHEDULE 8.03 Existing Liens
SCHEDULE 8.06 Existing Investments
EXHIBIT A-1 Form of Notice of Borrowing
EXHIBIT A-2 Form of Letter of Credit Request
EXHIBIT B-1 Form of U.S. Dollar A Term Note
EXHIBIT B-2 Form of B Term Note
EXHIBIT B-3 Form of C Term Note
EXHIBIT B-4 Form of Revolving Note
EXHIBIT B-5 Form of Swingline Note
EXHIBIT B-6 Form of Canadian Dollar A Term Note
EXHIBIT B-7 Form of U.K. A Term Note
EXHIBIT B-8 Form of Local Currency Note
EXHIBIT C Form of Section 4.04(b)(ii) Certificate
EXHIBIT D-1 Form of Opinion of Skadden, Arps, Slate, Meagher & Flom
EXHIBIT D-2 Form of Opinion of Local Counsel
EXHIBIT D-3 Form of Opinion of Subsidiary Borrowers' Counsel
EXHIBIT E Form of Officers' Certificate
EXHIBIT F Form of Pledge Agreement
EXHIBIT G Form of Security Agreement
EXHIBIT H Form of Guaranty
EXHIBIT I Form of Subordination Provisions
EXHIBIT J Form of Assignment and Assumption Agreement
EXHIBIT K Form of Intercompany Note
EXHIBIT L Form of Indemnity, Subrogation and Contribution Agreement
EXHIBIT M Form of Competitive Bid
EXHIBIT N-1 Form of Competitive Bid Request
EXHIBIT N-2 Form of Notice of Competitive Bid Request
EXHIBIT O Form of Competitive Bid Accept/Reject Letter
EXHIBIT P Form of Election to Participate
EXHIBIT Q Form of Election to Terminate
EXHIBIT R Form of Opinion of Subsidiary Borrower
EXHIBIT S Calculation of the MLA Cost
CREDIT AGREEMENT, dated as of January 21, 1998, among FISHER
SCIENTIFIC INTERNATIONAL INC., a Delaware corporation (the "Company"),
the Subsidiaries of the Company listed in Schedule I hereto and such
other Subsidiaries of the Company as shall become Subsidiary Borrowers
hereunder as provided herein, the lenders from time to time party hereto
(each a "Bank" and, collectively, the "Banks"), THE CHASE MANHATTAN BANK,
as Administrative Agent (in such capacity, the "Administrative Agent"),
THE CHASE MANHATTAN BANK OF CANADA, as Canadian Administrative Agent (in
such capacity, the "Canadian Administrative Agent"), CHASE MANHATTAN
INTERNATIONAL LIMITED, as U.K. Administrative Agent (in such capacity,
the "U.K. Administrative Agent"), MERRILL LYNCH CAPITAL CORPORATION, as
Syndication Agent (in such capacity the "Syndication Agent"), and DLJ
CAPITAL FUNDING, INC., as Documentation Agent (in such capacity, the
"Documentation Agent"). Unless otherwise defined herein, all capitalized
terms used herein and defined in Section 10 are used herein as so
defined.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Banks are willing to make available the credit facilities
provided for herein.
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 Commitments. (A) Subject to and upon the terms and
conditions herein set forth, each Bank severally agrees to make a loan or
loans to one or more of the Borrowers entitled hereunder to borrow such
loans, which loans shall be drawn, to the extent such Bank has a
commitment under such Facility, under the U.S. Dollar A Term Loan
Facility, the Canadian Dollar A Term Loan Facility, the U.K. A Term Loan
Facility, the B Term Loan Facility, the C Term Loan Facility and the
Revolving Credit Facility, as set forth below:
(a) Each loan under the U.S. Dollar A Term Loan Facility
(each a "U.S. Dollar A Term Loan" and, collectively, the "U.S.
Dollar A Term Loans") (i) shall be made to the Company as the
Borrower thereof, (ii) shall be made pursuant to a single drawing,
which shall be on the Initial Borrowing Date, (iii) shall be
denominated in U.S. Dollars, (iv) shall be made as Base Rate Loans
or Eurodollar Loans and, except as hereinafter provided, may, at
the option of the Company, be maintained as and/or converted into
Base Rate Loans or Eurodollar Loans, provided that all U.S. Dollar
A Term Loans made by all U.S. Dollar A Term Loan Banks pursuant to
the same Borrowing shall, unless otherwise specifically provided
herein, consist entirely of U.S. Dollar A Term Loans of the same
Type and (v) shall not exceed for any U.S. Dollar A Term Loan Bank
at the time of incurrence thereof on the Initial Borrowing Date
that aggregate principal amount which equals the U.S. Dollar A Term
Loan Commitment of such U.S. Dollar A Term Loan Bank at such time.
Once repaid, U.S. Dollar A Term Loans may not be reborrowed.
(b) Each loan under the Canadian Dollar A Term Loan Facility
(each a "Canadian Dollar A Term Loan" and, collectively, the
"Canadian Dollar A Term Loans") (i) shall be made to the Canadian
Borrower as the Borrower thereof, (ii) shall be made pursuant to a
single drawing, which shall be on the Initial Borrowing Date, (iii)
shall be denominated in Canadian Dollars, (iv) subject to Annex
III, shall be made as Canadian Prime Loans or B/A Rate Loans and
shall be maintained as Canadian Prime Loans or B/A Rate Loans and
(v) shall not exceed for any Canadian Dollar A Term Loan Bank at
the time of incurrence thereof on the Initial Borrowing Date that
aggregate principal amount which equals the Canadian Dollar A Term
Loan Commitment of such Canadian Dollar A Term Loan Bank at such
time. Once repaid, Canadian Dollar A Term Loans may not be
reborrowed.
(c) Each loan under the U.K. A Term Loan Facility (each a
"U.K. A Term Loan" and, collectively, the "U.K. A Term Loans") (i)
shall be made to the U.K. Borrower as the Borrower thereof, (ii)
shall be made pursuant to a single drawing, which shall be on the
Initial Borrowing Date, (iii) shall be denominated in Sterling,
(iv) shall be made as Eurodollar Loans and shall be maintained as
Eurodollar Loans and (v) shall not exceed for any U.K. A Term Loan
Bank at the time of incurrence thereof on the Initial Borrowing
Date that aggregate principal amount which equals the U.K. A Term
Loan Commitment of such U.K. A Term Loan Bank at such time. Once
repaid, U.K. A Term Loans may not be reborrowed.
(d) Each loan under the B Term Loan Facility (each a "B Term
Loan" and, collectively, the "B Term Loans") (i) shall be made to
the Company as the Borrower thereof, (ii) shall be made pursuant to
a single drawing, which shall be on the Initial Borrowing Date,
(iii) shall be denominated in U.S. Dollars, (iv) shall be made as
Base Rate Loans or Eurodollar Loans and, except as hereinafter
provided, may, at the option of the Company, be maintained as
and/or converted into Base Rate Loans or Eurodollar Loans, provided
that all B Term Loans made by all Banks pursuant to the same
Borrowing shall, unless otherwise specifically provided herein,
consist entirely of B Term Loans of the same Type and (v) shall not
exceed for any Bank at the time of incurrence thereof on the
Initial Borrowing Date that aggregate principal amount which equals
the B Term Loan Commitment, if any, of such Bank at such time. Once
repaid, B Term Loans may not be reborrowed.
(e) Each loan under the C Term Loan Facility (each a "C Term
Loan" and, collectively, the "C Term Loans") (i) shall be made to
the Company as the Borrower thereof, (ii) shall be made pursuant to
a single drawing, which shall be on the Initial Borrowing Date,
(iii) shall be denominated in U.S. Dollars, (iv) shall be made as
Base Rate Loans or Eurodollar Loans and, except as hereinafter
provided, may, at the option of the Company, be maintained as
and/or converted into Base Rate Loans or Eurodollar Loans, provided
that all C Term Loans made by all Banks pursuant to the same
Borrowing shall, unless otherwise specifically provided herein,
consist entirely of C Term Loans of the same Type and (v) shall not
exceed for any Bank at the time of incurrence thereof on the
Initial Borrowing Date that aggregate principal amount which equals
the C Term Loan Commitment, if any, of such Bank at such time. Once
repaid, C Term Loans may not be reborrowed.
(f) Each loan under the Revolving Credit Facility (each a
"Revolving Loan" and, collectively, the "Revolving Loans") (i)
shall be made to the Company as the Borrower thereof, (ii) shall be
made at any time and from time to time on or after the Initial
Borrowing Date and prior to the Revolving Loan Maturity Date, (iii)
shall be denominated in U.S. Dollars, (iv) except as hereinafter
provided, may, at the option of the Company, be incurred and
maintained as and/or converted into Base Rate Loans or Eurodollar
Loans, provided that all Revolving Loans made as part of the same
Borrowing shall, unless otherwise specifically provided herein,
consist of Revolving Loans of the same Type and (v) may be repaid
and reborrowed in accordance with the provisions hereof.
Notwithstanding anything to the contrary contained in this
Agreement, in no event may Revolving Loans be borrowed if after
giving effect thereto (and to any concurrent repayment or
prepayment of Revolving Loans), (i) the sum of the Total Revolving
Extensions of Credit and the aggregate Local Currency Loan
Exposures would exceed the Total Revolving Credit Commitments then
in effect or (ii) the Revolving Extensions of Credit of any
Revolving Bank would exceed such Revolving Bank's Revolving Credit
Commitment.
(g) Each Local Currency Loan (i) shall be made at any time
and from time to time on or after the Initial Borrowing Date in
accordance with the procedures set forth in Section 1.14 and prior
to the Revolving Loan Maturity Date and (ii) shall be denominated
in any Local Currency. Local Currency Loans may be borrowed by any
Borrower. Notwithstanding anything to the contrary contained in
this Agreement, in no event may Local Currency Loans be borrowed
under Section 1.14 if after giving effect thereto (and to any
concurrent repayment or prepayment of Local Currency Loans) (A) the
Dollar Equivalent of the aggregate principal amount of all
outstanding Local Currency Loans would exceed the Local Currency
Sublimit or (B) the sum of the Total Revolving Extensions of Credit
and the aggregate Local Currency Loan Exposures would exceed the
Total Revolving Credit Commitments then in effect.
(B) Subject to and upon the terms and conditions herein set
forth, Chase in its individual capacity agrees to make at any time and
from time to time after the Initial Borrowing Date and prior to the
Swingline Expiry Date, a loan or loans to the Company (each a "Swingline
Loan" and, collectively, the "Swingline Loans"), which Swingline Loans
(i) shall be made and maintained as Base Rate Loans, (ii) shall be
denominated in U.S. Dollars, (iii) may be repaid and reborrowed in
accordance with the provisions hereof, (iv) shall not exceed in aggregate
principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans then outstanding and
the Letter of Credit Outstanding (exclusive of Unpaid Drawings relating
to Letters of Credit which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of such
Swingline Loans) and the aggregate Local Currency Loan Exposures at such
time, an amount equal to the Total Revolving Credit Commitment then in
effect and (v) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount. Chase shall not be obligated to
make any Swingline Loans at a time when a Bank Default exists unless
Chase has entered into arrangements satisfactory to it and the Company to
eliminate Chase's risk with respect to the Defaulting Bank's or Banks'
participation in such Swingline Loans, including by cash collateralizing
such Defaulting Bank's or Banks' Revolving Percentage of the outstanding
Swingline Loans. Chase will not make a Swingline Loan after it has
received written notice from the Company or the Majority Banks under the
Revolving Credit Facility stating that a Default or an Event of Default
exists until such time as Chase shall have received a written notice of
(i) rescission of such notice from the party or parties originally
delivering the same or (ii) a waiver of such Default or Event of Default
from the Majority Banks under the Revolving Credit Facility.
(C) On any Business Day, Chase may, in its sole discretion,
give notice to the Revolving Banks that its outstanding Swingline Loans
shall be funded with a Borrowing of Revolving Loans (provided that each
such notice shall be deemed to have been automatically given upon the
occurrence of a Default or an Event of Default under Section 9.05 or upon
the exercise of any of the remedies provided in the last paragraph of
Section 9), in which case a Borrowing of Revolving Loans constituting
Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be
made on the immediately succeeding Business Day by all Revolving Banks
pro rata based on each Revolving Bank's Revolving Percentage, and the
proceeds thereof shall be applied directly to repay Chase for such
outstanding Swingline Loans. Each Revolving Bank hereby irrevocably
agrees to make Base Rate Loans upon one Business Day's notice pursuant to
each Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the date specified in writing by Chase
notwithstanding (i) that the amount of the Mandatory Borrowing may not
comply with the Minimum Borrowing Amount otherwise required hereunder,
(ii) whether any conditions specified in Section 5 are then satisfied,
(iii) whether a Default or an Event of Default has occurred and is
continuing, (iv) the date of such Mandatory Borrowing and (v) any
reduction in the Total Revolving Credit Commitment after any such
Swingline Loans were made. In the event that any Mandatory Borrowing
cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code in respect of the Company), each
Revolving Bank (other than Chase) hereby agrees that it shall forthwith
purchase from Chase (without recourse or warranty) such assignment of the
outstanding Swingline Loans as shall be necessary to cause the Revolving
Banks to share in such Swingline Loans ratably based upon their
respective Revolving Percentages, provided that all interest payable on
the Swingline Loans shall be for the account of Chase until the date the
respective assignment is purchased and, to the extent attributable to the
purchased assignment, shall be payable to the Revolving Bank purchasing
same from and after such date of purchase.
1.02 Minimum Borrowing Amounts, etc. Subject to Annex III,
the aggregate principal amount of each Borrowing under a
Facility shall not be less than the Minimum Borrowing Amount (or the
Alternative Currency Equivalent of such Minimum Borrowing Amount as
determined on the Initial Borrowing Date) for such Facility. More than
one Borrowing may be incurred on any day; provided that at no time shall
there be outstanding more than twenty (20) Borrowings of Eurodollar
Loans.
1.03 Notice of Borrowing. (a) Subject to Annex III, whenever
a Borrower desires to incur Loans under any Facility (excluding
Borrowings of Swingline Loans, Mandatory Borrowings or Local Currency
Borrowings), the Company shall give the Administrative Agent at its
Notice Office (i) in the case of each Borrowing of Eurodollar Loans and
Alternative Currency Loans, not later than 3:00 P.M. New York time, at
least three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing), and (ii) in the case of each Borrowing of
Base Rate Loans or Canadian Prime Loans, not later than 3:00 P.M. New
York time, at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing). Subject to Annex III,
each such notice (each a "Notice of Borrowing") shall, except as provided
in Section 1.10, be irrevocable, and, in the case of each written notice
and each confirmation of telephonic notice, shall be in the form of
Exhibit A-1, appropriately completed to specify (i) the Facility pursuant
to which such Borrowing is to be made and the identity of the applicable
Borrower (which must be the Canadian Borrower in the case of the Canadian
Dollar A Term Loan Facility, the U.K. Borrower in the case of the U.K. A
Term Loan Facility and the Company in each other case), (ii) the
aggregate principal amount of the Loans to be made pursuant to such
Borrowing, which in the case of an Alternative Currency Borrowing, shall
be expressed in Dollars, (iii) the date of such Borrowing (which shall be
a Business Day), (iv) whether the respective Borrowing shall consist of
Base Rate Loans or, to the extent permitted hereunder, Eurodollar Loans
or (in the case of the Canadian Dollar A Term Loan Facility) Canadian
Prime Loans or B/A Rate Loans, (v) if such Borrowing is to be an
Alternative Currency Borrowing, the Alternative Currency in which such
Borrowing is to be denominated and the number and location of the account
to which funds are to be disbursed and (vi) if such Borrowing is to be a
Eurodollar Borrowing, the Interest Period with respect thereto. If no
election as to the Type of Borrowing is specified in any such notice,
then the requested Borrowing shall be a Base Rate Borrowing if
denominated in U.S. Dollars or a Eurodollar Borrowing if denominated in
Sterling or a Canadian Prime Loan if denominated in Canadian Dollars. If
no Interest Period with respect to any Eurodollar Borrowing is specified
in any such notice, then the applicable Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Administrative
Agent shall promptly give each Bank written notice (or telephonic notice
promptly confirmed in writing) of each proposed Borrowing, of such Bank's
proportionate share thereof, if any, and of the other matters covered by
the Notice of Borrowing. If such Borrowing is to be an Alternative
Currency Borrowing, the Administrative Agent shall determine (i) in the
case of Sterling, the amount of the Alternative Currency Equivalent of
Sterling three Business Days prior to the Initial Borrowing Date and (ii)
in the case of Canadian Dollars, the amount of the Alternative Currency
Equivalent of Canadian Dollars two Business Days prior to the Initial
Borrowing Date, and, in each case, shall notify the Banks in the same
manner as set forth in the preceding sentence.
(b) (i) Whenever the Company desires to borrow Swingline
Loans hereunder, it shall give Chase not later than 12:00 Noon (New York
time) on the day such Swingline Loan is to be made, written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Loan
to be made hereunder. Each such notice shall be irrevocable and shall
specify in each case (x) the date of such Borrowing (which shall be a
Business Day) and (y) the aggregate principal amount of the Swingline
Loan to be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(C) with the Company irrevocably agreeing, by
its incurrence of any Swingline Loan, to the making of Mandatory
Borrowings as set forth in such Section 1.01(C).
(c) Each Local Currency Loan shall be made in accordance with
the procedures set forth in Section 1.14. Each Competitive Loan shall be
a Eurocurrency Competitive Loan or a Fixed Rate Loan in any Local
Currency. As of the date such Loans are made, the Loans comprising any
Local Currency Borrowing shall be in an aggregate principal amount the
Dollar Equivalent of which is an integral multiple of $100,000 and not
less than an amount the Dollar Equivalent of which is $500,000. Local
Currency Loans made hereunder may only be made in a Local Currency.
(d) Each Bank may at its option make any Local Currency Loan
by causing any domestic or foreign branch, agency or Affiliate of such
Bank to make such Loan; provided that any exercise of such option shall
not affect the obligation of the applicable Borrower to repay such Loan
in accordance with the terms of this Agreement. Each Bank making a
Canadian Dollar A Term Loan shall make such Loan by causing a branch,
agency, office or Affiliate of such Bank which is organized under the
laws of Canada or a political subdivision thereof to make such Loan.
(e) Without in any way limiting the obligation of the Company
to confirm in writing any telephonic notice permitted to be given
hereunder, the Administrative Agent or Chase (in the case of a Borrowing
of Swingline Loans) or the Letter of Credit Issuer (in the case of the
issuance of Letters of Credit), as the case may be, may prior to receipt
of written confirmation act without liability upon the basis of such
telephonic notice, believed by the Administrative Agent, Chase or the
Letter of Credit Issuer, as the case may be, in good faith to be from an
Authorized Officer of the Company. In each such case, the Company hereby
waives the right to dispute the Administrative Agent's, Chase's or the
Letter of Credit Issuer's record of the terms of such telephonic notice
(except in the case of gross negligence or bad faith).
1.04 Disbursement of Funds. (a) Not later than 12:00 Noon
(New York time) on the date specified in each Notice of Borrowing (or (x)
in the case of Swingline Loans, not later than 12:00 Noon (New York time)
on the date specified in Section 1.03(b)(i) or (y) in the case of
Mandatory Borrowings, not later than 12:00 Noon (New York time) on the
date specified in Section 1.01(C)), each Bank with a Commitment under the
respective Facility will make available its pro rata share, if any, of
each Borrowing requested to be made on such date (or (x) in the case of
Swingline Loans, Chase shall make available the full amount thereof or
(y) in the case of Local Currency Loans, the applicable Revolving Banks
shall make available the amount thereof to be made by such Banks pursuant
to Section 1.14) in the manner provided below; provided, however, that
any Revolving Bank that agrees to make a Negotiated Local Currency Loan
may make such Loan directly to the applicable Borrower if such Bank shall
notify the Administrative Agent that it is doing so. All amounts shall be
made available to the Administrative Agent in immediately available funds
at the Payment Office and the Administrative Agent promptly will make
available to the applicable Borrower by depositing to its account at the
Payment Office (or if such Borrowing is an Alternative Currency Borrowing
or a Local Currency Borrowing, by depositing to such account as specified
in the Notice of Borrowing) the aggregate of the amounts so made
available in the type of funds received; provided that any account in
which a currency other than U.S. Dollars is to be funded to or by the
Administrative Agent must be approved by the Administrative Agent. All
amounts to be funded in a currency other than U.S. Dollars will be funded
in the applicable Alternative Currency or Local Currency in an amount
equal to the amount of the Dollar Equivalent (or, in the case of Local
Letters of Credit, U.S. Dollar Amount) of such Alternative Currency or
Local Currency requested. Competitive Loans shall be made by the Bank or
Banks whose Competitive Bids therefor are accepted pursuant to Section
1.14 in the amounts so accepted. Unless the Administrative Agent shall
have been notified by any Bank prior to the date of Borrowing that such
Bank does not intend to make available to the Administrative Agent its
portion of the Borrowing or Borrowings to be made on such date, the
Administrative Agent may assume that such Bank has made such amount
available to the Administrative Agent on such date of Borrowing, and the
Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the
applicable Borrower a corresponding amount. If such corresponding amount
is not in fact made available to the Administrative Agent by such Bank
and the Administrative Agent has made available same to such Borrower,
the Administrative Agent shall be entitled to recover such corresponding
amount from such Bank. If such Bank does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify such Borrower, and such
Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to
recover from the Bank or such applicable Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Administrative
Agent to such Borrower to the date such corresponding amount is recovered
by the Administrative Agent, at a rate per annum equal to (x) if paid by
such Bank, a rate determined by the Administrative Agent to represent its
cost of overnight or short-term funds in the relevant currency (which
determination shall be conclusive absent manifest error) or (y) if paid
by such applicable Borrower, the then applicable rate of interest,
calculated in accordance with Section 1.08, for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Bank from
its obligation to fulfill its commitments hereunder or to prejudice any
rights which any Borrower may have against any Bank as a result of any
default by such Bank hereunder.
1.05 Evidence of Debt. (a) Each Bank shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of each of the Borrowers to such Bank resulting from each
Loan of such Bank from time to time, including the amounts and currency
of principal and interest payable and paid to such Bank from time to time
under this Agreement.
(b) The Administrative Agent shall maintain the Register
pursuant to subsection 12.04(c), and a subaccount therein for each Bank
in which shall be recorded (i) the amount and currency of each Revolving
Loan, Local Currency Loan and Term Loan made hereunder, the Type thereof
and each Interest Period or B/A Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and
payable from each of the Borrowers to each Bank hereunder and (iii) both
the amount of any sum received by the Administrative Agent hereunder from
each of the Borrowers and each Bank's share thereof.
(c) The entries made in the Register and the accounts of each
Bank maintained pursuant to subsection 1.05(a) shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrowers therein recorded; provided,
however, that the failure of any Bank or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall
not in any manner affect the obligation of each Borrower to repay (with
applicable interest) the Loans made to such Borrower by such Bank in
accordance with the terms of this Agreement.
(d) Each of the Borrowers agrees that, upon the request to
the Administrative Agent by any Bank, the applicable Borrower will
execute and deliver to such Bank (i) a promissory note of the Company
evidencing the Revolving Loans of such Bank, substantially in the form of
Exhibit B-4 with appropriate insertions as to date and principal amount
(a "Revolving Note"), (ii) a promissory note of the Company evidencing
the U.S. Dollar A Term Loan of such U.S. Dollar A Term Loan Bank,
substantially in the form of Exhibit B-1 with appropriate insertions as
to date and principal amount (a "U.S. Dollar A Term Note"), (iii) a
promissory note of the Company evidencing the B Term Loan of such Bank,
substantially in the form of Exhibit B-2 with appropriate insertions as
to date and principal amount (a "B Term Note"), (iv) a promissory note of
the Company evidencing the C Term Loan of such Bank, substantially in the
form of Exhibit B-3 with appropriate insertions as to date and principal
amount (a "C Term Note"), (v) a promissory note of the Company evidencing
the Swingline Loan of such Bank, substantially in the form of Exhibit B-5
with appropriate insertions as to date and principal amount (a "Swingline
Note"), (vi) a promissory note of the Canadian Borrower evidencing the
Canadian Dollar A Term Loan of such Canadian Dollar A Term Loan Bank,
substantially in the form of Exhibit B-6 with appropriate insertions as
to date and principal amount (a "Canadian Dollar A Term Note"), (vii) a
promissory note of the U.K. Borrower evidencing the U.K. A Term Loan of
such U.K. A Term Loan Bank, substantially in the form of Exhibit B-7 with
appropriate insertions as to date and principal amount (a "U.K. A Term
Note") and (viii) a promissory note of the applicable Borrower evidencing
the Local Currency Loan of such Bank, substantially in the form of
Exhibit B-8 with appropriate insertions as to date and principal amount
(a "Local Currency Note").
1.06 Conversions. Subject to Annex III, each of the
applicable Borrowers shall have the option to convert on any Business Day
occurring on or after the Initial Borrowing Date, all or a portion at
least equal to the applicable Minimum Borrowing Amount of the outstanding
principal amount of the Loans (other than (x) Swingline Loans which at
all times shall be maintained as Base Rate Loans, or (y) U.K. A Term
Loans denominated in Sterling which at all times shall be maintained as
Eurodollar Loans) owing by such Borrower pursuant to a single Facility
into a Borrowing or Borrowings of another Type of Loan under such
Facility; provided that, in each case, (i) except as otherwise provided
in Section 1.10(b), no partial conversion of a Borrowing of Eurodollar
Loans shall reduce the outstanding principal amount of the Eurodollar
Loans made pursuant to such Borrowing to less than the Minimum Borrowing
Amount applicable thereto, (ii) Base Rate Loans may only be converted
into Eurodollar Loans and Canadian Prime Loans may only be converted into
B/A Rate Loans if no Default or Event of Default is in existence on the
date of the conversion unless the Required Banks otherwise agree and
(iii) Borrowings of Eurodollar Loans resulting from this Section 1.06
shall be limited in number as provided in Section 1.02. Subject to Annex
III, each such conversion shall be effected by the applicable Borrower by
giving the Administrative Agent at its Notice Office, prior to 3:00 P.M.
(New York time), at least three Business Days' (or one Business Day in
the case of a conversion into Base Rate Loans or Canadian Prime Loans)
prior written notice (or telephonic notice promptly confirmed in writing)
(each a "Notice of Conversion") specifying the Loans to be so converted,
the Type of Loans to be converted into and, if to be converted into a
Borrowing of Eurodollar Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each Bank prompt
notice of any such proposed conversion affecting any of its Loans. This
Section 1.06 shall not apply to Local Currency Loans, which shall not be
converted. Notwithstanding the foregoing, (i) the Borrowers may not elect
to convert the currency in which any Loans are denominated and (ii) a
Borrower may not be replaced with a different Borrower pursuant to any
conversion.
1.07 Pro Rata Borrowings. All Borrowings of Loans (other than
Swingline Loans and Local Currency Loans) under this Agreement shall be
made by the Banks pro rata on the basis of their U.S. Dollar A Term Loan
Commitments, Canadian Dollar A Term Loan Commitments, U.K. A Term Loan
Commitments, B Term Loan Commitments, C Term Loan Commitments or
Revolving Credit Commitments, as the case may be. It is understood that
no Bank shall be responsible for any default by any other Bank of its
obligation to make Loans hereunder and that each Bank shall be obligated
to make the Loans to be made by it hereunder regardless of the failure of
any other Bank to fulfill its commitments hereunder.
1.08 Interest. (a) The unpaid principal amount of each Base
Rate Loan shall bear interest from the date of the Borrowing thereof
until the earlier of (i) the maturity (whether by acceleration or
otherwise) of such Base Rate Loan and (ii) the conversion of such Base
Rate Loan to a Eurodollar Loan pursuant to Section 1.06, at a rate per
annum which shall at all times be the Applicable Rate plus the Base Rate
in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall
bear interest from the date of the Borrowing thereof until the earlier of
(i) the maturity (whether by acceleration or otherwise) of such
Eurodollar Loan and (ii) the conversion of such Eurodollar Loan to a Base
Rate Loan pursuant to Section 1.06, 1.09 or 1.10(b), as applicable, at a
rate per annum which shall at all times be the Applicable Rate plus the
relevant Eurodollar Rate plus, in the case of each U.K.
A Term Loan, the MLA Cost.
(c) The unpaid principal amount of each Canadian Prime Loan
shall bear interest from the date of the Borrowing thereof until the
earlier of (i) the maturity (whether by acceleration or otherwise) of
such Canadian Prime Loan and (ii) the conversion of such Canadian Prime
Loan to a B/A Rate Loan pursuant to Section 1.06 at a rate per annum
which shall at all times be the Applicable Rate for Base Rate Loans plus
the Canadian Prime Rate in effect from time to time.
(d) The unpaid principal amount of each Eurocurrency
Competitive Loan shall bear interest from the date of the Borrowing
thereof until the maturity (whether by acceleration or otherwise) of such
Eurocurrency Competitive Loan at a rate per annum which shall at all
times be the Eurocurrency Rate plus the Margin offered by the Bank making
such Loan and accepted by the Borrower pursuant to Section 1.14.
(e) The unpaid principal amount of each Fixed Rate Loan shall
bear interest from the date of Borrowing thereof until the maturity
(whether by acceleration or otherwise) of such Fixed Rate Loan at a rate
per annum (computed on the basis of the actual number of days elapsed
over a year of 360 days) equal to the fixed rate of interest offered by
the Bank making such Loan and accepted by the Borrower pursuant to
Section 1.14.
(f) The unpaid principal amount of each Negotiated Local
Currency Loan shall bear interest from the date of Borrowing thereof
until the maturity (whether by acceleration or otherwise) of such
Negotiated Local Currency Loan at the rate per annum agreed between the
Bank making such Loan and the applicable Borrower pursuant to Section
1.14.
(g) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and other amounts (which other
amounts are overdue more than five days) owed by any Credit Party under
the Credit Documents shall bear interest at a rate per annum equal to (x)
in the case of principal of any Loans, the rate which is 2% in excess of
the rate then borne by such Loans, (y) in the case of interest, the rate
which is 2% in excess of the rate otherwise applicable to Base Rate Loans
of the applicable Facility (or, in the case of interest owing under the
Canadian Dollar A Term Loan Facility or any other amounts owing in
Canadian Dollars, 2% in excess of the rate otherwise applicable to
Canadian Prime Loans) from time to time and (z) in the case of such other
amounts, the rate which is 2% in excess of the rate otherwise applicable
to Base Rate Loans of the Revolving Facility from time to time. Interest
which accrues under this Section 1.08(g) shall be payable on demand.
(h) Subject to Annex III in respect of B/A Rate Loans,
interest shall accrue from and including the date of any Borrowing to but
excluding the date of any repayment thereof and shall be payable (i) in
respect of each Base Rate Loan or Canadian Prime Loan, quarterly in
arrears on each Quarterly Payment Date, (ii) in respect of each
Eurodollar Loan on (x) the date of any prepayment or repayment thereof
(on the amount prepaid or repaid), (y) the date of any conversion
pursuant to Section 1.06, 1.09 or 1.10(b), as applicable (on the amount
converted) and (z) the last day of each Interest Period applicable
thereto and, in the case of an Interest Period in excess of three months,
on each date occurring at three month intervals after the first day of
such Interest Period, (iii) in respect of each Local Currency Loan the
last day of each Interest Period applicable thereto and, in the case an
Interest Period in excess of three months, on each date occurring at
three month intervals after the first day of such Interest Period and
(iv) in respect of each Loan, at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.
(i) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(j) The Administrative Agent, upon determining the interest
rate for any Borrowing of Eurodollar Loans for any Interest Period, shall
promptly notify the Borrower and the Banks thereof.
(k) The unpaid principal amount of each B/A Rate Loan shall
bear interest as provided in Annex III.
1.09 Interest Periods. At the time the Company gives a Notice
of Borrowing or the applicable Borrower gives Notice of Conversion in
respect of the making of, or conversion into, a Borrowing of Eurodollar
Loans (in the case of the initial Interest Period applicable thereto) or
prior to 3:00 P.M. (New York time) on the third Business Day prior to the
expiration of an Interest Period applicable to a Borrowing of Eurodollars
Loans, it shall have the right to elect by giving the Administrative
Agent written notice (or telephonic notice promptly confirmed in writing)
of the Interest Period applicable to such Borrowing, which Interest
Period shall, at the option of such applicable Borrower, be a one, two,
three or six month period. Notwithstanding anything to the contrary
contained above:
(i) all Eurodollar Loans comprising a Borrowing
shall have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of
Eurodollar Loans shall commence on the date of such Borrowing
(including, in the case of Eurodollar Loans, the date of any
conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period
expires;
(iii) if any Interest Period begins on a day for which there
is no numerically corresponding day in the calendar month at the
end of such Interest Period, such Interest Period shall end on the
last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day, provided that if any Interest
Period would otherwise expire on a day which is not a Business Day
but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) no Interest Period for a Borrowing under a Facility may
be elected if it would extend beyond the respective Maturity Date
for such Facility,
(vi) no Interest Period for a Borrowing of Eurodollar Loans
may be elected at any time when a Default or an Event of Default is
then in existence unless the Required Banks otherwise agree; and
(vii) no Interest Period with respect to any Borrowing of
Term Loans shall extend beyond any date upon which a mandatory
prepayment of such Term Loans is required to be made under Section
4.02(A)(b) (i), (ii), (iii), (iv) or (v), as the case may be, if,
after giving effect to the selection of such Interest Period, the
aggregate principal amount of such Term Loans maintained as
Eurodollar Loans with Interest Periods ending after such date of
mandatory repayment would exceed the aggregate principal amount of
such Term Loans permitted to be outstanding after such mandatory
prepayment.
If upon the expiration of any Interest Period, the Borrower has failed to
elect, or in the case of Eurodollar Loans is not permitted to elect by
virtue of the application of clause (vi) above, a new Interest Period to
be applicable to the respective Borrowing of Eurodollar Loans, as
provided above, the Borrower shall be deemed to have elected (x) to
convert such Borrowing into a Borrowing of Base Rate Loans effective as
of the expiration date of such current Interest Period, in the case of a
Borrowing of Eurodollar Loans other than under the U.K. A Term Loan
Facility, or (y) to convert such Borrowing into a borrowing of Eurodollar
Loans with an Interest Period of one month effective as of the expiration
date of such current Interest Period, in the case of a Borrowing of
Eurodollar Loans under the U.K. A Term Loan Facility. This Section 1.09
shall not apply to Local Currency Loans.
1.10 Increased Costs, Illegality, etc. (a) In the event that
(x) in the case of clause (i) below, the Administrative Agent or (y) in
the case of clauses (ii) and (iii) below, any Bank, shall determine
(which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate or the
Eurocurrency Rate, as the case may be, for any Interest Period,
that, by reason of any changes arising after the date of this
Agreement affecting the interbank eurodollar market or the
interbank eurocurrency market, as the case may be, adequate and
fair means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of Eurodollar Rate
or Eurocurrency Rate, as the case may be; or
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loans (other than any increased cost or
reduction in the amount received or receivable resulting from the
imposition of or a change in the rate of net income taxes,
assessments or similar charges imposed in lieu of net income taxes)
because of (x) any change since the date of this Agreement in any
applicable law, governmental rule, regulation, guideline, order or
request (whether or not having the force of law), or in the
interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation,
guideline, order or request (such as, for example, but not limited
to, a change in official reserve requirements, but, in all events,
excluding reserves required under Regulation D to the extent
included in the computation of the Eurodollar Rate) and/or (y)
other circumstances affecting such Bank or the interbank eurodollar
market, as the case may be, or the position of such Bank in such
market; or
(iii) at any time since the date of this Agreement, that the
making or continuance of any Eurodollar Loan has become unlawful by
compliance by such Bank in good faith with any law, governmental
rule, regulation, guideline or order (or would conflict with any
such governmental rule, regulation, guideline or order not having
the force of law but with which such Bank customarily complies even
though the failure to comply therewith would not be unlawful), or
has become impracticable as a result of a contingency occurring
after the date of this Agreement which materially and adversely
affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent in
the case of clause (i) above) shall (x) promptly, and in any event,
within five Business Days of such date and (y) within five Business Days
of the date on which such event no longer exists give notice (by
telephone confirmed in writing) to the Company and (except in the case of
clause (i)) to the Administrative Agent of such determination (which
notice the Administrative Agent shall promptly transmit to each of the
other Banks). Thereafter, (A) in the case of clause (i) above, (1)
Eurodollar Loans or Eurocurrency Competitive Loans, as applicable, shall
no longer be available until such time as the Administrative Agent
notifies the Company and the Banks that the circumstances giving rise to
such notice by the Administrative Agent no longer exist, (2) any Notice
of Borrowing or Notice of Conversion given by any Borrower with respect
to Eurodollar Loans or Eurocurrency Competitive Loans, as applicable,
which have not yet been incurred shall be deemed rescinded by the
applicable Borrower and (3) in the case of any such circumstance relating
to Eurocurrency Competitive Loans, until the Administrative Agent shall
have advised the Company and the Banks that the circumstances giving rise
to such notice no longer exist, any request by any Borrower for
Eurocurrency Competitive Loans pursuant to Section 1.14 shall be of no
force and effect and shall be denied by the Administrative Agent, (B) in
the case of clause (ii) above, the Company agrees to pay to such Bank,
upon written demand therefor (accompanied by the written notice referred
to below), such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Bank
in its sole discretion shall determine) as shall be required to
compensate such Bank, for such increased costs or reductions in amounts
received or receivable hereunder (a written notice as to the additional
amounts owed to such Bank, showing the basis for the calculation thereof,
submitted to the Company by such Bank shall constitute prima facie
evidence of such amounts due) and (C) in the case of clause (iii) above,
the Company shall take one of the actions specified in Section 1.10(b) as
promptly as possible and, in any event, within the time period required
by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Company may
(and in the case of a Eurodollar Loan affected pursuant to Section
1.10(a)(iii) the Company shall) either (i) if the affected Eurodollar
Loan is then being made pursuant to a Borrowing, cancel said Borrowing by
giving the Administrative Agent telephonic notice (confirmed promptly in
writing) thereof on the same date that the Company was notified by a Bank
pursuant to Section 1.10(a)(ii) or (iii)), or (ii) if the affected
Eurodollar Loan is then outstanding, upon at least three Business Days'
notice to the Administrative Agent, require the affected Bank to convert
each such Eurodollar Loan into a Base Rate Loan (which conversion, in the
case of the circumstances described in Section 1.10(a)(iii), shall occur
no later than the last day of the Interest Period then applicable to such
Eurodollar Loan (or such earlier date as shall be required by applicable
law)); provided that if more than one Bank is affected at any time, then
all affected Banks must be treated the same pursuant to this Section
1.10(b).
(c) If any Bank shall have determined that after the date
hereof, the adoption or effectiveness of any applicable law, rule,
official directive or guideline (whether or not having the force of law)
or regulation regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by such Bank
or any corporation controlling such Bank with any request, guideline or
directive regarding capital adequacy issued after the date hereof
(whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's or such other corporation's capital or
assets as a consequence of such Bank's Commitments or obligations
hereunder to a level below that which such Bank or such other corporation
could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Bank's or such other
corporation's policies with respect to capital adequacy), then from time
to time, upon written demand by such Bank (with a copy to the
Administrative Agent), accompanied by the notice referred to in the last
sentence of this clause (c), the Company shall pay to such Bank such
additional amount or amounts as will compensate such Bank or such other
corporation for such reduction. Each Bank, upon determining in good faith
that any additional amounts will be payable pursuant to this Section
1.10(c), will give prompt written notice thereof to the Company, which
notice shall set forth the basis of the calculation of such additional
amounts, although the failure to give any such notice shall not release
or diminish the Company's obligations to pay additional amounts pursuant
to this Section 1.10(c) upon the subsequent receipt of such notice.
(d) In the event that any Revolving Bank shall determine
(which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto), at any time, that such
Revolving Bank shall incur increased costs or reductions in the amounts
received or receivable hereunder with respect to any Local Currency Loan
(other than any increased cost or reduction in the amount received or
receivable resulting from the imposition of or a change in the rate of
net income taxes, assessments or similar charges imposed in lieu of net
income taxes) because of (i) any change since the date such Bank
submitted its Competitive Bid for such Loan (in the case of a Competitive
Loan) or agreed to make such Loan (in the case of a Negotiated Local
Currency Loan) in any applicable law, governmental rule, regulation,
guideline, order or request (whether or not having the force of law), or
in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline,
order or request (such as, for example, but not limited to, a change in
official reserve requirements, but, in the case of a Eurocurrency
Competitive Loan, excluding reserves required under Regulation D to the
extent included in the computation of the Eurocurrency Rate) and/or (ii)
other circumstances affecting such Revolving Bank, the interbank market
in the applicable Local Currency or the position of such Bank in such
market, then, and in any such event, such Revolving Bank shall (x) on
such date and (y) within five Business Days of the date on which such
event no longer exists give notice (by telephone confirmed in writing) to
the Company and to the Administrative Agent of such determination.
Thereafter, each Borrower in respect of an affected Local Currency Loan
from such Revolving Bank agrees to pay to such Revolving Bank, upon
written demand therefor (accompanied by the written notice referred to
below), such additional amounts (in the form of an increased rate of, or
a different method of calculating, interest or otherwise as such
Revolving Bank in its sole discretion shall determine) as shall be
required to compensate such Revolving Bank, for such increased costs or
reductions in amounts received or receivable hereunder (a written notice
as to the additional amounts owed to such Revolving Bank, showing the
basis for the calculation thereof, submitted to the Company by such
Revolving Bank shall, absent manifest error, be presumed to be final and
conclusive and binding upon all parties hereto).
1.11 Compensation. The applicable Borrower shall compensate
each Bank, upon its written request (which request shall set forth the
basis for requesting such compensation), for all reasonable losses,
expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or
reemployment of deposits or other funds required by such Bank to fund its
Eurodollar Loans or Local Currency Loans, as the case may be, but
excluding loss of anticipated profit with respect to any Eurodollar Loans
or Local Currency Loans) which such Bank may sustain: (i) if for any
reason (other than a default by such Bank or the Administrative Agent) a
Borrowing of Eurodollar Loans or Local Currency Loans does not occur on a
date specified therefor in a Notice of Borrowing or Notice of Conversion
or, in the case of Local Currency Loans, the date determined pursuant to
Section 1.14 (whether or not withdrawn by the applicable Borrower or
deemed withdrawn pursuant to Section 1.10(a)); (ii) if any repayment
(including any repayment made pursuant to Section 4.01 or 4.02 or as a
result of an acceleration of the Loans pursuant to Section 9) or
conversion of any Eurodollar Loans or Local Currency Loans occurs on a
date which is not the last day of an Interest Period applicable thereto;
(iii) if any prepayment of any Eurodollar Loans or Local Currency Loan is
not made on any date specified in a notice of prepayment given by the
Borrower; or (iv) as a consequence of (x) any other default by the
applicable Borrower to repay its Eurodollar Loans or Local Currency
Loans, when required by the terms of this Agreement or (y) an election
made pursuant to Section 1.10(b). Calculation of all amounts payable to a
Bank under this Section 1.11 shall be made as though that Bank had
actually funded its relevant Eurodollar Loan or Local Currency Loan (i)
in the case of a Eurodollar Loan, through the purchase of a Eurodollar
deposit bearing interest at the Eurodollar Rate in an amount equal to the
amount of that Loan, having a maturity comparable to the relevant
Interest Period and through the transfer of such Eurodollar deposit from
an offshore office of that Bank to a domestic office of that Bank in the
United States of America, (ii) in the case of a Eurocurrency Competitive
Loan, through the purchase of a eurocurrency deposit with leading banks
in the interbank eurocurrency market for the applicable currency bearing
interest at the Eurocurrency Base Rate in an amount equal to the amount
of that Loan, having a maturity comparable to the relevant Interest
Period and through the transfer of such eurocurrency deposit from an
offshore office of that Bank to an office of that Bank in the
jurisdiction in which the applicable Borrower is located, (iii) in the
case of any other Local Currency Loan, through the purchase of a deposit
with leading banks in the interbank market for the applicable currency
bearing interest at a rate determined by such Bank to be representative
of rates available to it in such market in an amount equal to the amount
of that Loan, having a maturity comparable to the relevant Interest
Period and through the transfer of such deposit from an offshore office
of that Bank to an office of that Bank in the jurisdiction in which the
applicable Borrower is located and (iv) shall also include any costs
associated with the termination by any Bank of any foreign currency
exchange arrangements made in connection with any Loan in a currency
other than U.S. Dollars; provided, however, that each Bank may fund each
of its Eurodollar Loans or Local Currency Loans in any manner it sees fit
and the foregoing assumption shall be utilized only for the calculation
of amounts payable under this Section 1.11. It is further understood and
agreed that if any repayment of Eurodollar Loans or Local Currency Loans,
as the case may be, pursuant to Section 4.01 or any conversion of
Eurodollar Loans pursuant to Section 1.06 in either case occurs on a date
which is not the last day of an Interest Period applicable thereto, such
repayment or conversion shall be accompanied by any amounts owing to any
Bank pursuant to this Section 1.11.
1.12 Change of Lending Office. Each Bank agrees that, upon
the occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or (iii), 1.10(c), 2.05 or 4.04 with respect to such Bank, it
will, if requested by the Company, use reasonable efforts (subject to
overall policy considerations of such Bank) to designate another lending
office for any Loans or Letters of Credit affected by such event or, upon
the occurrence of any event giving rise to the operation of Section
4.04(a), use such other reasonable efforts to eliminate or reduce such
increased Taxes; provided that such designation or other actions are made
on such terms that, in the sole judgment of such Bank, such Bank and its
lending office suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequences of the event giving rise to the
operation of any such Section. Nothing in this Section 1.12 shall affect
or postpone any of the obligations of the Company or any other Borrower
or the right of any Bank provided in Section 1.10, 2.05 or 4.04.
1.13 Replacement of Banks. (x) If any Bank becomes a
Defaulting Bank, (y) upon the occurrence of any event (other than an
event affecting only Local Currency Loans) giving rise to the operation
of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or Section
4.04 with respect to any Bank which results in such Bank charging to the
Company or any other Borrower increased costs in excess of those being
generally charged by the other Banks having Loans to the same Borrower or
(z) in the case of a refusal by a Bank to consent to a proposed change,
waiver, discharge or termination with respect to this Agreement which has
been approved by the Required Banks as provided in Section 12.12(b), the
Company shall have the right, if no Default or Event of Default then
exists or, in the case of clause (z) above, would exist after giving
effect to such replacement, to replace such Bank (the "Replaced Bank")
with one or more other Eligible Transferee or Eligible Transferees, none
of whom shall constitute a Defaulting Bank at the time of such
replacement (collectively, the "Replacement Bank") and each of whom shall
be reasonably acceptable to the Administrative Agent; provided that (i)
at the time of any replacement pursuant to this Section 1.13, the
Replacement Bank shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 12.04(b) (and with all fees payable
pursuant to said Section 12.04(b) to be paid by the Replacement Bank)
pursuant to which the Replacement Bank shall acquire all of the
Commitments and outstanding Loans (other than outstanding Local Currency
Loans) of, and in each case participations in Letters of Credit and
Swingline Loans by, the Replaced Bank and, in connection therewith, shall
pay to (x) the Replaced Bank in respect thereof an amount equal to the
sum of (A) an amount equal to the principal of, and all accrued interest
on, all outstanding Loans (other than outstanding Local Currency Loans)
of the Replaced Bank, (B) an amount equal to all Unpaid Drawings that
have been funded by (and not reimbursed to) such Replaced Bank, together
with all then unpaid interest with respect thereto at such time and (C)
an amount equal to all accrued, but theretofore unpaid, Fees owing to the
Replaced Bank pursuant to Section 3.01, (y) the Letter of Credit Issuer
an amount equal to such Replaced Bank's Revolving Percentage of any
Unpaid Drawing (or, with respect to Local Letters of Credit, the U.S.
Dollar Amount of such Unpaid Drawing) relating to a Letter of Credit
(which at such time remains an Unpaid Drawing) to the extent such amount
was not theretofore funded by such Replaced Bank and (z) the
Administrative Agent an amount equal to such Replaced Bank's Revolving
Percentage of any Mandatory Borrowing to the extent such amount was not
theretofore funded by such Replaced Bank, and (ii) all obligations of the
Borrowers owing to the Replaced Bank (other than (A) those specifically
described in clause (i) above in respect of which the assignment purchase
price has been, or is concurrently being, paid and (B) any outstanding
Local Currency Loans of the Replaced Bank, which shall remain with the
Replaced Bank and be paid when due by the applicable Borrowers) shall be
paid in full to such Replaced Bank concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption
Agreements, the payment of amounts referred to in clauses (i) and (ii)
above, recordation of the assignment on the Register by the
Administrative Agent pursuant to Section 12.04 (c) and, if so requested
by the Replacement Bank, delivery to the Replacement Bank of the
appropriate Note or Notes executed by the applicable Borrowers, the
Replacement Bank shall become a Bank hereunder and the Replaced Bank
shall cease to constitute a Bank hereunder, except with respect to
indemnification provisions under this Agreement and any outstanding Local
Currency Loans held by the Replaced Bank, which shall survive as to such
Replaced Bank on the terms specified herein.
1.14. Local Currency Loans. (A) Subject to the provisions of
this Section 1.14, the Borrowers may borrow Local Currency Loans in the
form of (x) Competitive Loans, (y) Negotiated Local Currency Loans or (z)
a combination of Competitive Loans and Negotiated Local Currency Loans;
provided, however, that (i) the Dollar Equivalent of the aggregate
principal amount of all Local Currency Loans outstanding at any time
shall not exceed the Local Currency Sublimit and (ii) the sum of the
Total Revolving Extensions of Credit and the Local Currency Loan
Exposures shall not at any time exceed the Total Revolving Credit
Commitments then in effect.
(B) Negotiated Local Currency Loans. (a) Any Revolving Bank
may in its sole discretion (but shall not have any obligation to) make a
loan (a "Negotiated Local Currency Loan") to any Subsidiary Borrower
requesting such a loan from such Revolving Bank; provided, however, that
such Negotiated Local Currency Loan (i) shall be denominated in a Local
Currency, (ii) shall mature within six months after the date that such
Loan is made (subject to the right of such Revolving Bank and the
applicable Borrower to agree to extend such maturity at any time to a
date within six months after the date of such extension) and in any event
shall mature on or prior to the Revolving Loan Maturity Date, (iii) shall
be in an aggregate principal amount the Dollar Equivalent of which, on
the date such Loan is made, is an integral multiple of $100,000 and not
less than $500,000 and (iv) shall otherwise comply with the applicable
requirements of this Agreement. For purposes of clause (iii) above, a
Negotiated Local Currency Loan may be aggregated with other Negotiated
Local Currency Loans being made by other Revolving Banks on the same date
to the same Borrower in the same Local Currency and with the same
maturity.
(b) Prior to making any Negotiated Local Currency Loan, the
Revolving Bank making such Loan shall deliver a written notice to the
Administrative Agent (countersigned or acknowledged by the applicable
Borrower or by the Company on behalf of such Borrower) specifying (i) the
aggregate principal amount of such Loan expressed in U.S. Dollars (which
shall comply with clause (iii) of paragraph (a) above) and expressed in
the applicable units of Local Currency (determined by such Revolving Bank
based on the Exchange Rate), (ii) the date on which such Loan is to be
made, (iii) the Borrower of such Loan and (iv) the interest rate (or
basis for determining the interest rate) and maturity of such Loan.
Thereafter, such Revolving Bank shall notify the Administrative Agent of
each payment received in respect of such Loan and of any change in the
interest rate or maturity of such Loan or any other terms of such Loan,
as well as any change in the Dollar Equivalent of such Loan as provided
in Section 1.15. Such Revolving Bank also shall deliver to the
Administrative Agent copies of any agreements and other documents
("Negotiated Local Currency Agreements") entered into with the applicable
Borrower or the Company in connection with such Loan, including any
promissory note evidencing such Loan, as well as all amendments and
modifications thereto.
(c) All Negotiated Local Currency Loans shall be subject to
the terms and conditions of this Agreement and, in the event of any
inconsistency between the terms of this Agreement and the terms of any
Negotiated Local Currency Agreement, the terms of this Agreement shall
prevail.
(C) Competitive Bid Procedure. (a) In order to request
Competitive Bids, the Company shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request, to be
received by the Administrative Agent (i) in the case of a Eurocurrency
Competitive Loan, not later than 10:00 a.m., New York City time, five
Business Days before a proposed Competitive Borrowing and (ii) in the
case of a Fixed Rate Borrowing in any Local Currency, not later than
10:00 a.m., New York City time, two Business Days before a proposed
Competitive Borrowing. No Base Rate or Eurodollar Rate Loan shall be
requested in, or made pursuant to, a Competitive Bid Request. A
Competitive Bid Request that does not conform substantially to the format
of Exhibit N-1 may be rejected in the Administrative Agent's sole
discretion, and the Administrative Agent shall promptly notify the
Company of such rejection by telecopy. Each Competitive Bid Request shall
refer to this Agreement and specify (i) the identity of the applicable
Borrower and whether the Borrowing then being requested is to be a
Eurocurrency Competitive Borrowing or a Fixed Rate Borrowing in a Local
Currency, (ii) the requested currency of such Borrowing, which must be in
Local Currency, (iii) the date of such Borrowing (which shall be a
Working Day) and the aggregate principal amount thereof which shall be
expressed in U.S. Dollars in an integral multiple of $100,000 and equal
to or greater than $500,000, (iv) the Interest Period with respect
thereto (which may not end after the Revolving Loan Maturity Date), (v)
the maturity date of such Competitive Borrowing, which (1) in the case of
a Fixed Rate Loan, shall be no less than seven and no more than 180 days
from the requested drawdown date of such Competitive Borrowing and (2) in
the case of a Eurocurrency Competitive Loan, one, two, three or six
months from the requested drawdown date of such Competitive Borrowing and
(vi) the location and number of the applicable Borrower's account to
which funds are to be disbursed (which must comply with Section 1.04),
and such Competitive Bid Request shall be signed by the Company. Promptly
after its receipt of a Competitive Bid Request that is not rejected as
aforesaid, the Administrative Agent shall telecopy to the Revolving Banks
a Notice of Competitive Bid Request inviting the Revolving Banks to bid,
on the terms and conditions of this Agreement, to make Competitive Loans.
(b) Each Revolving Bank may, in its sole discretion, make one
or more Competitive Bids to the Company responsive to the Company's
Competitive Bid Request. Each Competitive Bid by a Revolving Bank must be
received by the Administrative Agent by telecopy (i) in the case of a
Eurocurrency Competitive Loan, not later than 9:30 a.m., New York City
time, four Business Days before a proposed Competitive Borrowing and (ii)
in the case of a Fixed Rate Borrowing in any Local Currency, not later
than 9:30 a.m., New York City time, one Business Day before a proposed
Competitive Borrowing. A Bank may submit multiple bids to the
Administrative Agent. Competitive Bids that do not conform substantially
to the format of Exhibit M may be rejected by the Administrative Agent,
and the Administrative Agent shall notify the Revolving Bank making such
nonconforming bid of such rejection as soon as practicable. Each
Competitive Bid shall refer to this Agreement and specify (x) the
principal amount (which shall be expressed in U.S. Dollars in a minimum
principal amount of $500,000 and in an integral multiple of $100,000 and
which may equal the entire principal amount of the Competitive Borrowing
requested) of the Competitive Loan or Loans that the Revolving Bank is
willing to make, (y) the Competitive Bid Rate or Rates at which the
Revolving Bank is prepared to make the Competitive Loan or Loans and (z)
the Interest Period and the last day thereof. If the Administrative Agent
shall not have received a Competitive Bid from any Bank by the time
required above, such Bank shall be deemed to have elected not to make a
Competitive Bid; provided, however, that failure by any Bank to give such
notice shall not cause such Bank to be obligated to make any Competitive
Loan as part of such Competitive Borrowing. A Competitive Bid submitted
by a Revolving Bank pursuant to this paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall notify the Company, by
telecopy, of all the Competitive Bids made, the Competitive Bid Rate and
the principal amount of each Competitive Loan in respect of which a
Competitive Bid was made and the identity of the Revolving Bank that made
each bid by 12:00 noon (i) in the case of a Eurocurrency Competitive
Borrowing, four Business Days before a Competitive Borrowing and (ii) in
the case of a Fixed Rate Borrowing in any Local Currency, one Business
Day before a proposed Competitive Borrowing. The Administrative Agent
shall send a copy of all Competitive Bids to the Company for its records
as soon as practicable after completion of the bidding process set forth
in this Section 1.14(C).
(d) The Company may in its sole discretion, subject only to
the provisions of this paragraph (d), accept or reject any Competitive
Bid referred to in paragraph (c) above. The Company shall notify the
Administrative Agent by telephone, confirmed by telecopy (which shall be
signed by the Company) in the form of a Competitive Bid Accept/Reject
Letter, whether and to what extent it has decided to accept or reject any
of or all the Competitive Bids referred to in paragraph (c) above not
more than one hour after it shall have been notified of such Competitive
Bids by the Administrative Agent pursuant to such paragraph (c);
provided, however, that (i) the failure of the Company to give such
notice shall be deemed to be a rejection of all the Competitive Bids
referred to in paragraph (c) above, (ii) the Company shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if it has
decided to reject a Competitive Bid made at a lower Competitive Bid Rate,
(iii) the aggregate amount of the Competitive Bids accepted by the
Company shall not exceed the principal amount specified in the
Competitive Bid Request, (iv) if the Company shall accept a Competitive
Bid or Competitive Bids made at a particular Competitive Bid Rate but the
amount of such Competitive Bid or Competitive Bids shall cause the total
amount of Competitive Bids to be accepted to exceed the amount specified
in the Competitive Bid Request, then the Company shall accept a portion
of such Competitive Bid or Competitive Bids in an amount equal to the
amount specified in the Competitive Bid Request less the amount of all
other Competitive Bids accepted with respect to such Competitive Bid
Request, which acceptance, in the case of multiple Competitive Bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the
amount of each such Competitive Bid at such Competitive Bid Rate, and (v)
except pursuant to clause (iv) above, no Competitive Bid shall be
accepted for a Competitive Loan unless such Competitive Loan is in a
minimum principal amount the Dollar Equivalent of which is $500,000, and
in an integral multiple of units of the relevant Local Currency the
Dollar Equivalent of which is $100,000; provided further, that if a
Competitive Loan must be in an amount the Dollar Equivalent of which is
less than $500,000 because of the provisions of clause (iv) above, such
Competitive Loan may be for a minimum amount the Dollar Equivalent of
which is $100,000 or any integral multiple thereof and in calculating the
pro rata allocation of acceptances of portions of multiple Competitive
Bids at a particular Competitive Bid Rate pursuant to clause (iv) the
amounts shall be rounded to integral multiples the Dollar Equivalent of
which is $100,000 in a manner which shall be in the discretion of the
Company. A notice given pursuant to this paragraph (d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Bank whether or not its Competitive Bid has been accepted (and if
so, in what amount and at which Competitive Bid Rate) by telecopy, and
each successful bidder will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Loan in respect of
which its Competitive Bid has been accepted.
(f) No Competitive Borrowing shall be requested or made
hereunder if after giving effect thereto any of the conditions applicable
to Revolving Loans set forth in Section 1.01(A)(f) would not be met.
(g) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Revolving Bank, it shall submit such
Competitive Bid directly to the Company one quarter of an hour earlier
than the latest time at which the other Revolving Banks are required to
submit their Competitive Bids to the Administrative Agent pursuant to
paragraph (b) above.
(h) All notices required by this Section 1.14(C) shall be
given in accordance with Section 12.03.
(i) The amount of any Competitive Loan shall be funded in the
applicable Local Currency in an amount equal to the Local Currency
Equivalent of the amount of such Competitive Loan expressed in U.S.
Dollars as provided above, as determined by the Administrative Agent.
1.15 Currency Fluctuations, etc. (a) Not later than 1:00
p.m., New York City time, on each Calculation Date, the Administrative
Agent shall (i) determine the Spot Exchange Rate as of such Calculation
Date with respect to each Local Currency for which there are at such time
outstanding Local Letters of Credit, (ii) determine the Exchange Rate as
of such Calculation Date with respect to each Local Currency for which
there are at such time outstanding Local Currency Loans and (iii) give
notice thereof to the Revolving Banks and the Company. The Spot Exchange
Rates and the Exchange Rates so determined shall become effective on the
first Working Day immediately following the relevant Calculation Date (a
"Reset Date") and shall remain effective until the next succeeding Reset
Date.
(b) Not later than 5:00 p.m., New York City time, on each
Reset Date and each Borrowing Date, the Administrative Agent shall (i)
determine the Dollar Equivalent of the Local Currency Loans and Local
Letters of Credit in each Local Currency then outstanding (after giving
effect to any Loans to be made or repaid on such date) and (ii) notify
the Revolving Banks and the Company of the results of such determination.
(c) If, on any Reset Date, the Dollar Equivalent of the Local
Currency Loans outstanding exceeds 105% of the Local Currency Sublimit,
then the applicable Borrowers shall, within three Business Days after
notice thereof to the Company from the Administrative Agent, prepay Local
Currency Loans in an aggregate amount such that, after giving effect
thereto, the Dollar Equivalent of all outstanding Local Currency Loans
shall be equal to or less than the Local Currency Sublimit.
(d) If, on any Reset Date, the sum of the Total Revolving
Extensions of Credit and the Local Currency Loan Exposure exceeds 105% of
the Total Revolving Credit Commitments, then, within three Business Days
after notice thereof from the Administrative Agent, the Company shall
prepay the Revolving Loans in accordance with this Agreement, in an
aggregate amount such that, after giving effect thereto, the sum of the
Total Revolving Extensions of Credit and the Local Currency Loan Exposure
shall be equal to or less than the Total Revolving Credit Commitments.
(e) If any prepayment pursuant to paragraph (c) or (d) above
occurs on a day which is not the last day of the then current Interest
Period with respect thereto, the Company shall pay to the Revolving Banks
such amounts, if any, as may be required pursuant to Section 1.11.
1.16 European Monetary Union. If, as a result of the
implementation of European monetary union, (i) any currency that is a
Local Currency ceases to be lawful currency of the nation issuing the
same and is replaced by a European common currency, or (ii) any currency
that is a Local Currency and a European common currency are at the same
time recognized by the central bank or comparable authority of the nation
issuing such currency as lawful currency of such nation and the
Administrative Agent or the Majority Banks shall so request in a notice
delivered to the Company, then any amount payable hereunder by any party
hereto in such currency shall instead be payable in the European common
currency and the amount so payable shall be determined by translating the
amount payable in such currency to such European common currency at the
exchange rate recognized by the European Central Bank for the purpose of
implementing European monetary union. Prior to the occurrence of the
event or events described in clause (i) or (ii) of the preceding
sentence, each amount payable hereunder in any currency will continue to
be payable only in that currency. Each of the Borrowers agrees, at the
request of the Majority Banks, at the time of or at any time following
the implementation of European monetary union, to enter into an agreement
amending this Agreement in such manner as the Majority Banks shall
reasonably request in order to reflect the implementation of such
monetary union and to place the parties hereto in the position they would
have been in had such monetary union not been implemented.
1.17 Implementation of CAM. (A) (a) On the CAM Exchange Date,
(i) the Commitments shall be terminated as provided in Section 9 and (ii)
the Banks shall automatically and without further act be deemed to have
exchanged interests in the Facilities and Local Currency Loans such that
in lieu of the interest of each Bank in each Facility and Local Currency
Loan in which it shall participate as of such date (including such Bank's
interest in the Designated Obligations of each Credit Party in respect of
each such Facility and Local Currency Loan), such Bank shall hold an
interest in every one of the Facilities and Local Currency Loans
(including the Designated Obligations of each Credit Party in respect of
each such Facility and Local Currency Loan and each L/C Reserve Account
established pursuant to Section 1.17(B) below), whether or not such Bank
shall previously have participated therein, equal to such Bank's CAM
Percentage thereof. Each Bank hereby consents and agrees to the CAM
Exchange and agrees that the CAM Exchange shall be binding upon its
successors and assigns and any person that acquires a participation in
its interests in any Facility or any Local Currency Loan. Each Credit
Party agrees from time to time to execute and deliver to the
Administrative Agent all such Notes and other instruments and documents
as the Administrative Agent shall reasonably request to evidence and
confirm the respective interests of the Banks after giving effect to the
CAM Exchange, and each Bank agrees to surrender the Notes originally
received by it in connection with its Loans hereunder to the
Administrative Agent against delivery of new Notes evidencing its
interests in the Facilities and Local Currency Loans; provided, however,
that the failure of any Credit Party to execute or deliver or of any Bank
to accept any such Note, instrument or document shall not affect the
validity or effectiveness of the CAM Exchange.
(b) As a result of the CAM Exchange, upon and after the CAM
Exchange Date, each payment received by the Administrative Agent or the
Collateral Agent pursuant to any Document in respect of the Designated
Obligations, and each distribution made by the Collateral Agent pursuant
to any Security Document in respect of the Designated Obligations, shall
be distributed to the Banks pro rata in accordance with their respective
CAM Percentages. Any direct payment received by a Bank upon or after the
CAM Exchange Date, including by way of setoff, in respect of a Designated
Obligation shall be paid over to the Administrative Agent for
distribution to the Banks in accordance herewith.
(B) Letters of Credit. (a) In the event that on the CAM
Exchange Date any Letter of Credit shall be outstanding and undrawn in
whole or in part, or any amount drawn under a Letter of Credit shall not
have been reimbursed either by the Company or with the proceeds of a
Revolving Credit Borrowing, each Revolving Bank shall promptly pay over
to the Administrative Agent, in immediately available funds, an amount
equal to such Revolving Bank's Revolving Percentage of such undrawn face
amount or (to the extent it has not already done so) such unreimbursed
drawing (or in the case of a Local Letter of Credit, the U.S. Dollar
Amount of such undrawn face amount or unreimbursed drawing), as the case
may be, together with interest thereon from the CAM Exchange Date to the
date on which such amount shall be paid to the Administrative Agent at
the rate that would be applicable at the time to a Base Rate Revolving
Loan in a principal amount equal to such amount. In the event that any
Local Letter of Credit is outstanding on the CAM Exchange Date, if there
is any subsequent drawing under any such Local Letter of Credit and if
the U.S. Dollar Amount of such drawing exceeds the U.S. Dollar Amount
thereof on the CAM Exchange Date, then each Revolving Bank shall promptly
pay over to the Administrative Agent, in immediately available funds, an
amount equal to such Revolving Bank's Revolving Percentage of such
excess, together with interest thereon from the date of such drawing to
the date on which such amount shall be paid to the Administrative Agent
at the rate specified in the preceding sentence. The Administrative Agent
shall establish a separate account or accounts for each Bank (each, an
"L/C Reserve Account") for the amounts received with respect to each such
Letter of Credit pursuant to the preceding sentences. The Administrative
Agent shall deposit in each Bank's L/C Reserve Account such Bank's CAM
Percentage of the amounts received from the Revolving Banks as provided
above. The Administrative Agent shall have sole dominion and control over
each L/C Reserve Account, and the amounts deposited in each L/C Reserve
Account shall be held in such L/C Reserve Account until withdrawn as
provided in paragraph (b), (c), (d) or (e) below. The Administrative
Agent shall maintain records enabling it to determine the amounts paid
over to it and deposited in the L/C Reserve Accounts in respect of each
Letter of Credit and the amounts on deposit in respect of each Letter of
Credit attributable to each Bank's CAM Percentage. The amounts held in
each Bank's L/C Reserve Account shall be held as a reserve against Unpaid
Drawings, shall be the property of such Bank, shall not constitute Loans
to or give rise to any claim of or against any Credit Party and shall not
give rise to any obligation on the part of any Credit Party to pay
interest to such Bank, it being agreed that reimbursement obligations in
respect of Letters of Credit shall arise only at such times as drawings
are made thereunder, as provided in Section 2.04(c).
(b) In the event that after the CAM Exchange Date any drawing
shall be made in respect of a Letter of Credit, the Administrative Agent
shall, at the request of the Letter of Credit Issuer, withdraw from the
L/C Reserve Account of each Bank any amounts, up to the amount of such
Bank's CAM Percentage of such drawing (or in the case of a drawing in
respect to a Local Letter of Credit, the U.S. Dollar Amount of such
drawing), deposited in respect of such Letter of Credit and remaining on
deposit and deliver such amounts to the Letter of Credit Issuer in
satisfaction of the reimbursement obligations of the Banks under Section
2.04 (but not of the Company under Section 2.03). In the event any
Revolving Bank shall default on its obligation to pay over any amount to
the Administrative Agent in respect of any Letter of Credit as provided
in Section 1.17(B)(a), the Letter of Credit Issuer shall, in the event of
a drawing thereunder, have a claim against such Revolving Bank to the
same extent as if such Revolving Bank had defaulted on its obligations
under Section 2.04, but shall have no claim against any other Bank in
respect of such defaulted amount, notwithstanding the exchange of
interests in the Company's reimbursement obligations pursuant to Section
1.17(A). Each other Bank shall have a claim against such defaulting
Revolving Bank for any damages sustained by it as a result of such
default, including, in the event such Letter of Credit shall expire
undrawn, its CAM Percentage of the defaulted amount.
(c) In the event that after the CAM Exchange Date any Letter
of Credit shall expire undrawn, the Administrative Agent shall withdraw
from the L/C Reserve Account of each Bank the amount remaining on deposit
therein in respect of such Letter of Credit and distribute such amount to
such Bank.
(d) With the prior written approval of the Administrative
Agent and the Letter of Credit Issuer (not to be unreasonably withheld),
any Bank may withdraw the amount held in its L/C Reserve Account in
respect of the undrawn amount of any Letter of Credit. Any Bank making
such a withdrawal shall be unconditionally obligated, in the event there
shall subsequently be a drawing under such Letter of Credit, to pay over
to the Administrative Agent, for the account of the Letter of Credit
Issuer, on demand, its CAM Percentage of such drawing (or in the case of
a drawing under a Local Letter of Credit, the U.S. Dollar Amount of such
drawing).
(e) Pending the withdrawal by any Bank of any amounts from
its L/C Reserve Account as contemplated by the above paragraphs, the
Administrative Agent will, at the direction of such Bank and subject to
such rules as the Administrative Agent may prescribe for the avoidance of
inconvenience, invest such amounts in Cash Equivalents. Each Bank that
has not withdrawn its CAM Percentage of amounts in its L/C Reserve
Account as provided in paragraph (d) above shall have the right, at
intervals reasonably specified by the Administrative Agent, to withdraw
the earnings on investments so made by the Administrative Agent with
amounts in its L/C Reserve Account and to retain such earnings for its
own account.
(C) Conversion. In the event the CAM Exchange Date shall
occur, Obligations owed by the Credit Parties denominated in any currency
other than U.S. Dollars shall, automatically and with no further act
required, be converted to obligations of the same Credit Parties
denominated in U.S. Dollars. Such conversion shall be effected based upon
the Exchange Rates in effect with respect to the relevant currencies on
the CAM Exchange Date. On and after any such conversion, all amounts
accruing and owed to any Bank in respect of its Obligations shall accrue
and be payable in U.S. Dollars at the rates otherwise applicable
hereunder (and, in the case of interest on Loans, at the default rate
applicable to Base Rate Loans hereunder). Notwithstanding the foregoing
provisions of this Subsection 1.17(C), any Bank may, by notice to the
Company and the Administrative Agent prior to the CAM Exchange Date,
elect not to have the provisions of this Subsection 1.17(C) apply with
respect to all Obligations owed to such Bank immediately following the
CAM Exchange Date, and, if such notice is given, all Obligations owed to
such Bank immediately following the CAM Exchange Date shall remain
designated in their original currencies.
1.18 Subsidiary Borrowers. The Company may from time to time
cause any Foreign Subsidiary of the Company to become eligible to borrow
Local Currency Loans under Section 1.14 by delivering to the
Administrative Agent an Election to Participate with respect to such
Subsidiary; provided however that the Dollar Equivalent of the aggregate
principal amount of Loans outstanding at any one time to all Subsidiaries
which are not Wholly Owned Subsidiaries shall be no greater than
$20,000,000. The eligibility of any such Subsidiary to borrow under said
Section shall terminate when the Administrative Agent receives a Notice
of Termination with respect to such Subsidiary. Each Election to
Participate delivered to the Administrative Agent shall be duly executed
on behalf of the relevant Subsidiary and the Company, and each Election
to Terminate delivered to the Administrative Agent shall be duly executed
on behalf of the Company, in such number of copies as the Administrative
Agent may request. The delivery of an Election to Terminate shall not
affect any obligation of the relevant Subsidiary theretofore incurred.
The Administrative Agent shall promptly give notice to the Banks of its
receipt of any Election to Participate or Election to Terminate.
Notwithstanding the foregoing, the provisions of clause (ii) of the
second paragraph of Section 4.04(b) and the final proviso to Section
12.14 will not apply to any Foreign Subsidiary domiciled or incorporated
in the United Kingdom who delivers an Election to Participate
("Additional U.K. Subsidiary Borrower") unless such Additional U.K.
Subsidiary Borrower notifies the Administrative Agent in its Election to
Participate that all Loans made to such Additional U.K. Subsidiary
Borrower would be subject to clause (ii) of the second paragraph of
Section 4.04(b) and/or the final proviso to Section 12.14.
1.19 B/A Rate Loans. The Canadian A Term Loan Banks hereby
agree to lend B/A Rate Loans as provided in Annex III and the Canadian
Borrower and the Company hereby agree to be bound by the terms of Annex
III. Annex III is incorporated herein by reference and forms a part of
this Agreement.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Company may request the Letter of Credit
Issuer at any time and from time to time on or after the Initial
Borrowing Date and prior to the fifth Business Day (or the 30th day in
the case of trade Letters of Credit) preceding the Revolving Loan
Maturity Date to issue, for the account of the Company and in support of
(i) trade obligations of the Company or any of its Subsidiaries that
arise in the ordinary course of business and are in respect of general
corporate purposes of the Company or any of its Subsidiaries, as the case
may be, (ii) on a standby basis, L/C Supportable Indebtedness of the
Company or any of its Subsidiaries to any other Person, irrevocable
letters of credit in such form as may be approved by the Letter of Credit
Issuer, and/or (iii) backstopping local lenders for local loans, and
subject to and upon the terms and conditions herein set forth, the Letter
of Credit Issuer in each case agrees to issue from time to time letters
of credit (each such letter of credit issued pursuant to this paragraph
(a), as well as any Existing Letter of Credit, a "Letter of Credit" and,
collectively, the "Letters of Credit"). Notwithstanding the foregoing,
the Letter of Credit Issuer shall not be under any obligation to issue
any Letter of Credit if at the time of such issuance:
(x) the Letter of Credit Issuer shall obtain knowledge that
any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain the
Letter of Credit Issuer from issuing such Letter of Credit or any
requirement of law applicable to the Letter of Credit Issuer or any
request or directive (whether or not having the force of law) from
any governmental authority with jurisdiction over the Letter of
Credit Issuer shall prohibit, or request that the Letter of Credit
Issuer refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the Letter
of Credit Issuer with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which the Letter
of Credit Issuer is not otherwise compensated) not in effect on the
date hereof, or any unreimbursed loss, cost or expense which was
not applicable, in effect or known to the Letter of Credit Issuer
as of the date hereof and which the Letter of Credit Issuer in good
faith deems material to it; or
(y) the Letter of Credit Issuer shall have received notice
from the Company or the Required Banks prior to the issuance of
such Letter of Credit of the type described in clause (vi) of
Section 2.01(b).
(b) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of
Credit Outstanding (exclusive of Unpaid Drawings relating to Letters of
Credit which are repaid on the date of, and prior to the issuance of, the
respective Letter of Credit) at such time, would exceed either (x)
$150,000,000 or (y) when added to the aggregate principal amount of all
Revolving Loans and Swingline Loans then outstanding, the Total Revolving
Credit Commitment minus the Local Currency Loan Exposure at such time;
(ii) each trade Letter of Credit shall have an expiry date occurring not
later than 360 days after such Letter of Credit's date of issuance;
(iii)(x) no standby Letter of Credit shall have an expiry date occurring
later than the fifth Business Day next preceding the Revolving Loan
Maturity Date and (y) no trade Letter of Credit shall have an expiry date
occurring later than 30 days prior to the Revolving Loan Maturity Date;
(iv) each Letter of Credit shall be denominated in U.S. Dollars or,
subject to Section 2.07, a Local Currency; (v) the Stated Amount of each
Letter of Credit shall not be less than $10,000 or such lesser amount as
is acceptable to the Letter of Credit Issuer; (vi) the Letter of Credit
Issuer will not issue any Letter of Credit after it has received written
notice from the Company or the Required Banks stating that a Default or
an Event of Default exists until such time as the Letter of Credit Issuer
shall have received a written notice of (x) rescission of such notice
from the party or parties originally delivering the same or (y) a waiver
of such Default or Event of Default by the Majority Banks under the
Revolving Credit Facility and (vii) no Local Letter of Credit shall be
issued the U.S. Dollar Amount of which, when added to the U.S. Dollar
Amount of the Letter of Credit Outstanding in respect of all other Local
Letters of Credit (exclusive of Unpaid Drawings relating to Local Letters
of Credit which are repaid or terminated on the date of, and prior to the
issuance of, the respective Local Letter of Credit) at such time, would
exceed the Local Letter of Credit Sublimit.
(c) Except as provided in Section 2.07, all Letters of Credit
shall be denominated in, and all payments in respect thereof shall be
made in, U.S. Dollars.
2.02 Letter of Credit Requests; Notices of Issuance. (a)
Whenever it desires that a Letter of Credit be issued, the Company shall
give the Administrative Agent and the Letter of Credit Issuer written
notice (or telephonic notice confirmed in writing or, if arrangements
therefor have been approved by the Letter of Credit Issuer, electronic
communication) thereof prior to 12:00 Noon (New York time) at least five
Business Days (or such shorter period as may be acceptable to the Letter
of Credit Issuer) prior to the proposed date of issuance (which shall be
a Business Day) which written notice shall be in the form of Exhibit A-2
(each, a "Letter of Credit Request"). Each Letter of Credit Request shall
include any other documents as the Letter of Credit Issuer customarily
requires in connection therewith. The Administrative Agent shall promptly
transmit copies of each Letter of Credit Request to each Bank.
(b) The Letter of Credit Issuer shall, on the date of each
issuance of, or amendment or modification to, a Letter of Credit issued
by it, give the Administrative Agent, each Bank and the Company written
notice of the issuance of, or amendment or modification to, such Letter
of Credit, accompanied by a copy to the Administrative Agent of the
Letter of Credit or Letters of Credit issued by it and each such
amendment or modification thereto. The Letter of Credit Issuer shall, on
the date of each issuance of, or amendment or modification to, a Letter
of Credit providing for the payment of drawings in a Local Currency and
periodically as provided in Section 2.07, provide the Administrative
Agent and the Company written notice of the U.S. Dollar Amount of such
Letter of Credit.
2.03 Agreement to Repay Letter of Credit Drawings. (a) The
Company hereby agrees to reimburse the Letter of Credit Issuer, by making
payment to the Administrative Agent in immediately available funds at the
Payment Office, for any payment or disbursement made by the Letter of
Credit Issuer under any Letter of Credit issued by it (each such amount
so paid or disbursed until reimbursed, an "Unpaid Drawing") no later than
two Business Days following the date of such payment or disbursement,
with interest on the amount so paid or disbursed by the Letter of Credit
Issuer, to the extent not reimbursed prior to 1:00 P.M. (New York time)
on the date of such payment or disbursement, from and including the date
paid or disbursed to but not including the date the Letter of Credit
Issuer is reimbursed therefor at a rate per annum which shall be the
Applicable Rate plus the Base Rate as in effect from time to time for
Revolving Loans that are Base Rate Loans (plus an additional 2% per annum
if not reimbursed by the third Business Day after the date of such
payment or disbursement), such interest also to be payable on demand. The
Letter of Credit Issuer shall provide the Company prompt notice of any
payment or disbursement made by it under any Letter of Credit issued by
it, although the failure of, or delay in, giving any such notice shall
not release or diminish the obligations of the Company under this Section
2.03(a) or under any other Section of this Agreement.
(b) The Company's obligation under this Section 2.03 to
reimburse the Letter of Credit Issuer with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment which the Company or any of
its Subsidiaries may have or have had against the Letter of Credit
Issuer, any Agent or any Bank, including, without limitation, any defense
based upon the failure of any drawing under a Letter of Credit to conform
to the terms of the Letter of Credit or any nonapplication or
misapplication by the beneficiary of the proceeds of such drawing;
provided, however, that the Company shall not be obligated to reimburse
the Letter of Credit Issuer for any wrongful payment made by the Letter
of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part
of the Letter of Credit Issuer.
2.04 Letter of Credit Participations. (a) Effective
immediately upon the issuance by the Letter of Credit Issuer of any
Letter of Credit, the Letter of Credit Issuer in respect of such Letter
of Credit shall be deemed to have sold and transferred to each other
Revolving Bank, and each such Revolving Bank (each a "Participant") shall
be deemed irrevocably and unconditionally to have purchased and received
from such Letter of Credit Issuer, without recourse or warranty, an
undivided interest and participation, to the extent of such Participant's
Revolving Percentage, in such Letter of Credit, each substitute letter of
credit, each drawing made thereunder and the obligations of the Company
under this Agreement with respect thereto (although Letter of Credit Fees
shall be payable directly to the Administrative Agent for the account of
the Revolving Banks as provided in Section 3.01(b) and the Participants
shall have no right to receive any portion of any Fronting Fees with
respect to such Letters of Credit) and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Credit Commitments
of the Revolving Banks pursuant to Section 1.13 or 12.04(b), it is hereby
agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings with respect thereto, there shall be an automatic adjustment to
the participations pursuant to this Section 2.04 to reflect the new
Revolving Percentages of the assigning and assignee Bank.
(b) In determining whether to pay under any Letter of Credit,
the Letter of Credit Issuer shall not have any obligation relative to the
respective Participants other than to determine that any documents
required to be delivered under such Letter of Credit have been delivered
and that they appear to substantially comply on their face with the
requirements of such Letter of Credit. Any action taken or omitted to be
taken by the Letter of Credit Issuer under or in connection with any
Letter of Credit if taken or omitted in the absence of gross negligence
or willful misconduct, shall not create for the Letter of Credit Issuer
any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any
payment under any Letter of Credit and the Company shall not have
reimbursed such amount in full to the Letter of Credit Issuer pursuant to
Section 2.03(a), the Letter of Credit Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify
each Participant of such failure, and each such Participant shall
promptly and unconditionally pay to the Administrative Agent for the
account of the Letter of Credit Issuer, the amount of such Participant's
Revolving Percentage of such payment in U.S. Dollars and in same day
funds; provided, however, that no Participant shall be obligated to pay
to the Administrative Agent its Revolving Percentage of such unreimbursed
amount for any wrongful payment made by the Letter of Credit Issuer under
a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit
Issuer. If the Administrative Agent so notifies any Participant prior to
11:00 A.M. (New York time) on any Business Day, such Participant shall
make available to the Administrative Agent for the account of the Letter
of Credit Issuer such Participant's Revolving Percentage of the amount of
such payment on such Business Day in same day funds. If and to the extent
such Participant shall not have so made its Revolving Percentage of the
amount of such payment available to the Administrative Agent for the
account of the Letter of Credit Issuer, such Participant agrees to pay to
the Administrative Agent for the account of the Letter of Credit Issuer,
forthwith on demand such amount, together with interest thereon, for each
day from such date until the date such amount is paid to the
Administrative Agent for the account of the Letter of Credit Issuer at
the overnight Federal Funds rate. The failure of any Participant to make
available to the Administrative Agent for the account of the Letter of
Credit Issuer its Revolving Percentage of any payment under any Letter of
Credit shall not relieve any other Participant of its obligation
hereunder to make available to the Administrative Agent for the account
of the Letter of Credit Issuer its Revolving Percentage of any payment
under any Letter of Credit on the date required, as specified above, but
no Participant shall be responsible for the failure of any other
Participant to make available to the Administrative Agent for the account
of the Letter of Credit Issuer such other Participant's Revolving
Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment
of a reimbursement obligation as to which the Administrative Agent has
received for the account of the Letter of Credit Issuer any payments from
the Participants pursuant to clause (c) above, the Letter of Credit
Issuer shall pay to the Administrative Agent and the Administrative Agent
shall promptly pay to each such Participant which has paid its Revolving
Percentage thereof, in U.S. Dollars and in same day funds, an amount
equal to such Participant's Revolving Percentage of the principal amount
thereof and interest thereon accruing after the purchase of the
respective Participations.
(e) The obligations of the Participants to make payments to
the Administrative Agent for the account of the Letter of Credit Issuer
with respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, setoff or other defense or any other qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of
this Agreement or any of the
other Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Company or any of its Subsidiaries may have at any
time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, the
Letter of Credit Issuer, any Bank, or other Person, whether in
connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Company or any of
its Subsidiaries and the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or other document presented
under the Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Increased Costs. If after the date hereof, the adoption
or effectiveness of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the
Letter of Credit Issuer or any Participant with any request or directive
issued after the date hereof (whether or not having the force of law) by
any such authority, central bank or comparable agency shall either (i)
impose, modify or make applicable any reserve, deposit, capital adequacy
or similar requirement against Letters of Credit issued by the Letter of
Credit Issuer or such Participant's participation therein, or (ii) impose
on the Letter of Credit Issuer or any Participant any other conditions
affecting this Agreement, any Letter of Credit or such Participant's
participation therein; and the result of any of the foregoing is to
increase the cost to the Letter of Credit Issuer or such Participant of
issuing, maintaining or participating in any Letter of Credit, or to
reduce the amount of any sum received or receivable by the Letter of
Credit Issuer or such Participant hereunder, then, upon written demand to
the Company by the Letter of Credit Issuer or such Participant (a copy of
which notice shall be sent by the Letter of Credit Issuer or such
Participant to the Administrative Agent), accompanied by the certificate
described in the last sentence of this Section 2.05, the Company shall
pay to the Letter of Credit Issuer or such Participant such additional
amount or amounts as will compensate the Letter of Credit Issuer or such
Participant for such increased cost or reduction. A certificate submitted
to the Company by the Letter of Credit Issuer or such Participant, as the
case may be (a copy of which certificate shall be sent by the Letter of
Credit Issuer or such Participant to the Administrative Agent), setting
forth the basis for the determination of such additional amount or
amounts necessary to compensate the Letter of Credit Issuer or such
Participant as aforesaid shall be final and conclusive and binding on the
Company absent manifest error, although the failure to deliver any such
certificate shall not release or diminish the Borrower's obligations to
pay additional amounts pursuant to this Section 2.05 upon subsequent
receipt of such certificate.
2.06 Replacement of the Letter of Credit Issuer. The Letter
of Credit Issuer may be replaced at any time by written agreement among
the Company, the Administrative Agent, the replaced Letter of Credit
Issuer and the successor Letter of Credit Issuer. The Administrative
Agent shall notify the Banks of any such replacement of the Letter of
Credit Issuer. From and after the effective date of any such replacement,
(a) the successor Letter of Credit Issuer shall have all the rights and
obligations of the Letter of Credit Issuer under this Agreement with
respect to Letters of Credit to be issued thereafter and (b) references
herein to the term "Letter of Credit Issuer" shall be deemed to refer to
such successor or to any previous Letter of Credit Issuer, or to such
successor and all previous Letter of Credit Issuers, as the context shall
require. After the replacement of a Letter of Credit Issuer hereunder,
the replaced Letter of Credit Issuer shall remain a party hereto and
shall continue to have all the rights and obligations of a Letter of
Credit Issuer under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.
2.07 Local Letters of Credit. The Company may request the
issuance of a Local Letter of Credit subject to the terms and conditions
of this Section 2.07, in addition to the other conditions applicable to
the issuance of Letters of Credit hereunder. The issuance of any Local
Letter of Credit shall be subject to the approval of the Letter of Credit
Issuer. If any Local Letter of Credit is issued, the following provisions
shall apply:
(i) For purposes of determining the Letter of Credit
Outstanding and for purposes of calculating fees payable under
Section 3.01(b), (c) and (d), the Stated Amount of any Local Letter
of Credit and of any Unpaid Drawings in respect thereof shall be
deemed to be, as of any date of determination, the U.S. Dollar
Amount thereof at such date. The initial U.S. Dollar Amount of any
Local Letter of Credit shall be determined by the Letter of Credit
Issuer on the date of issuance thereof and adjusted from time to
time thereafter as provided below. The U.S. Dollar Amount of each
Local Letter of Credit outstanding shall be adjusted by the Letter
of Credit Issuer on each Reset Date. If a payment or disbursement
is made by the Letter of Credit Issuer under any Local Letter of
Credit, the U.S. Dollar Amount of such payment or disbursement
shall be determined by the Letter of Credit Issuer on the date that
such payment or disbursement is made. The Letter of Credit Issuer
shall make each such determination to be made by it by calculating
the amount in U.S. Dollars that would be required in order for the
Letter of Credit Issuer to purchase an amount of the applicable
Local Currency equal to the amount of the relevant Local Letter of
Credit or Unpaid Drawing, as the case may be, on the date of
determination at the Spot Exchange Rate, with respect to such Local
Currency on such date of determination. The Letter of Credit Issuer
shall notify the Administrative Agent and the Company promptly of
each such U.S. Dollar Amount determined by it, on the date that
such determination is required to be made.
(ii) Subject to paragraph (iv) below, the obligation of the
Company to reimburse the Letter of Credit Issuer for any payment or
disbursement under any Local Letter of Credit, and to pay interest
thereon, shall be payable only in the Local Currency in which such
payment or disbursement is made, and shall not be discharged by
paying an amount in U.S. Dollars or any other currency; provided
that the Letter of Credit Issuer may agree, in its sole discretion,
to accept reimbursement in another currency, but any such agreement
shall not affect the obligations of the Participants or the Company
under paragraphs (iii) and (iv) below if such reimbursement is not
actually made to the Letter of Credit Issuer when due.
(iii) The obligations of each Participant under Section
2.04(c) to pay its Revolving Percentage of any Unpaid Drawing under
any Local Letter of Credit shall be payable only in U.S. Dollars
and shall be in an amount equal to such Revolving Percentage of the
U.S. Dollar Amount of such Unpaid Drawing determined as provided in
clause (i) above. Under no circumstances shall the provisions
hereof permitting the issuance of Letters of Credit in a Local
Currency be construed, by implication or otherwise, as imposing any
obligation upon any Participant to make any Loan or other payment
under any Credit Document, or to accept any payment from the
Company in respect of any Unpaid Drawing, in any currency other
than U.S. Dollars, it being understood that the parties intend all
Obligations (other than the Obligations related to the Canadian
Dollar A Term Loans, the U.K. A Term Loans and the Local Currency
Loans as set forth in this Agreement) to be denominated and payable
only in U.S. Dollars except as expressly provided in paragraph (ii)
above.
(iv) If and to the extent that any Participant pays its
Revolving Percentage of any Unpaid Drawing under any Local Letter
of Credit, then, notwithstanding paragraph (ii) above, the
obligation of the Company to reimburse the portion of such Unpaid
Drawing funded by such Participant shall be converted to, and shall
be payable only in, U.S. Dollars (in an amount equal to the U.S.
Dollar amount funded by such Participant as provided above) and
shall not be discharged by paying an amount in any other currency.
Interest accrued on such unreimbursed Unpaid Drawing to and
excluding the date of such payment by such Participant shall be for
the account of the Letter of Credit Issuer and be payable in the
applicable Local Currency, but interest thereafter shall accrue on
the U.S. Dollar amount owed to such Participant and shall be
payable in U.S. Dollars.
2.08 Existing Letters of Credit. On the Effective Date, (a)
TD shall deliver to the Administrative Agent a schedule identifying all
Existing Letters of Credit and (b) each Existing Letter of Credit shall
be deemed to be a Letter of Credit issued hereunder on the Effective
Date. TD also shall notify the Administrative Agent of any drawing under
or payment of, or any expiration, termination, amendment or renewal of,
any Existing Letter of Credit. TD shall be deemed to be the Letter of
Credit Issuer for purposes of the Existing Letters of Credit, but shall
not have any obligation to issue any other Letters of Credit.
SECTION 3. Fees, Commitments.
3.01 Fees. (a) The Company shall pay (or cause to be paid) to
the Administrative Agent for distribution to each Bank a commitment fee
(the "Commitment Fee"), computed at the rate of 1/2 of 1% per annum on
the daily Aggregate Unutilized Commitment of such Bank, commencing to
accrue upon the Borrower's acceptance of such Bank's Commitment. Accrued
Commitment Fees shall be due and payable quarterly in arrears on the
Initial Borrowing Date, each Quarterly Payment Date and the date upon
which the Total Commitment is terminated. From and after the first day of
any Margin Reduction Period (the "Start Date") to and including the last
day of such Margin Reduction Period, the Commitment Fee shall be the
respective percentage per annum set forth in clause (A) or (B) below if,
but only if, as of the last day of the most recent fiscal quarter or
year, as the case may be, ended immediately prior to such Start Date (the
"Test Date"), the conditions set forth in clause (A) or (B) below are
met:
(A) 1/2 of 1% per annum if the Leverage Ratio on such Test
Date is greater than or equal to 4.00:1.00; or
(B) 3/8 of 1% per annum if the Leverage Ratio on
such Test Date is less
than 4.00:1.00.
Notwithstanding anything to the contrary contained in the immediately
preceding sentence, the Commitment Fee shall be 1/2 of 1% per annum at
any time when an Event of Default shall exist.
(b) The Company shall pay to the Administrative Agent for the
account of the Revolving Banks pro rata on the basis of their Revolving
Percentages, a fee in respect of each Letter of Credit (the "Letter of
Credit Fee") computed at a rate per annum equal to the Applicable Rate
then in effect for Eurodollar Loans that are Revolving Loans on the daily
Stated Amount of such Letter of Credit. Accrued Letter of Credit Fees
shall be due and payable quarterly in arrears on each Quarterly Payment
Date and upon the first day on or after the termination of the Total
Revolving Credit Commitment upon which no Letters of Credit remain
outstanding.
(c) The Company shall pay to the Administrative Agent for the
account of the Letter of Credit Issuer a fee in respect of each Letter of
Credit issued by the Letter of Credit Issuer (the "Fronting Fee")
computed at the rate of 1/4 of 1% per annum on the daily Stated Amount of
such Letter of Credit. Accrued Fronting Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date and upon the first
day on or after the termination of the Total Commitment upon which no
Letters of Credit remain outstanding.
(d) The Company shall pay directly to the Letter of Credit
Issuer upon each issuance of, drawing under, and/or amendment of, a
Letter of Credit such amount as shall at the time of such issuance,
drawing or amendment be the administrative charge which the Letter of
Credit Issuer is customarily charging for issuances of, drawings under or
amendments of, letters of credit issued by it.
(e) The Company shall pay (or cause to be paid) to each
Agent, for its own account, such fees as may be agreed to from time to
time between the Company and such Agent, when and as due.
(f) All computations of Fees shall be made in accordance with
Section 12.07(b).
3.02 Voluntary Termination or Reduction of Commitments. (a)
Upon at least two Business Days' prior written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent at its
Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks), the Company shall have the right, without
premium or penalty, to terminate or partially reduce the Total Unutilized
Revolving Credit Commitment, provided that (i) any such termination or
partial reduction shall apply to proportionately and permanently reduce
the Revolving Credit Commitment of each of the Revolving Banks and (ii)
any partial reduction pursuant to this Section 3.02 shall be in the
amount of at least $1,000,000 and increments of $1,000,000 in excess
thereof. If, following any partial reduction of the Revolving Credit
Commitments, the Total Revolving Credit Commitment (as so reduced) shall
be less than the Local Currency Sublimit, the Local Currency Sublimit
shall be automatically reduced so as to equal the Total Revolving Credit
Commitment.
(b) In the event of certain refusals by a Bank to consent to
certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Required Banks
as provided in Section 12.12(b), the Company shall have the right, upon
five Business Days' prior written notice to the Administrative Agent at
its Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks), to (i) require such Bank to assign its
entire Revolving Credit Commitment and all Loans (other than outstanding
Local Currency Loans), Fees and other amounts owing to such Bank to
another Bank or Banks (which would agree to provide the consent refused
by the assignor Bank) pursuant to subsection 12.04(b), if such other Bank
or Banks consent to such assignment, or (ii) terminate the entire
Revolving Credit Commitment of such Bank, so long as all Loans (other
than outstanding Local Currency Loans), together with accrued and unpaid
interest, Fees and all other amounts, owing to such Bank are repaid
concurrently with the effectiveness of such termination (other than any
outstanding Local Currency Loans, which shall remain with such Bank and
be paid when due by the applicable Borrowers) pursuant to Section 4.01(b)
and the Company shall pay to the Administrative Agent at such time an
amount in cash and/or Cash Equivalents equal to such Bank's Revolving
Percentage of the outstanding Letters of Credit (which cash and/or Cash
Equivalents shall be held by the Administrative Agent as security for the
obligations of the Company hereunder in respect of the outstanding
Letters of Credit pursuant to a cash collateral agreement to be entered
into in form and substance reasonably satisfactory to the Administrative
Agent, which shall permit certain investments in Cash Equivalents
reasonably satisfactory to the Administrative Agent until the proceeds
are applied to the secured obligations or are released to the Company
upon termination of the respective Letter of Credit) (at which time Annex
I shall be deemed modified to reflect such changed amounts), and at such
time, such Bank shall no longer constitute a "Bank" for purposes of this
Agreement, except with respect to indemnifications under this Agreement
and any outstanding Local Currency Loans held by such Bank (including,
without limitation, Sections 1.10, 1.11, 2.05, 4.04, 12.01 and 12.06),
which shall survive as to such repaid Bank on the terms specified herein.
3.03 Mandatory Adjustments of Commitments, etc. (a) The Total
Commitment shall terminate in its entirety on January 31, 1998, unless
the Initial Borrowing Date has occurred on or before such date.
(b) Each of the Total U.S. Dollar A Term Loan Commitment,
Total Canadian Dollar A Term Loan Commitment, Total U.K. A Term Loan
Commitment, the Total B Term Loan Commitment and the Total C Term Loan
Commitment shall terminate in its entirety on the Initial Borrowing Date,
after giving effect to the making of the respective Term Loans on such
date.
(c) The Total Revolving Credit Commitment (and the Revolving
Credit Commitment of each Revolving Bank) shall terminate in their
entirety on the earlier of (i) the date on which a Change of Control
Event occurs and (ii) the Revolving Loan Maturity Date.
(d) From and after payment in full of the Term Loans, on each
date upon which a mandatory repayment of Term Loans pursuant to Section
4.02(A)(c), (d), (e), (f) or (g) would otherwise be required, the Total
Revolving Credit Commitment shall be permanently reduced by the amount,
if any, required to be applied pursuant to said Sections.
(e) Each reduction of the Total U.S. Dollar A Term Loan
Commitment, Total Canadian Dollar A Term Loan Commitment, Total U.K. A
Term Loan Commitment, the Total B Term Loan Commitment, the Total C Term
Loan Commitment or the Total Revolving Credit Commitment pursuant to this
Section 3.03 shall apply proportionately to the U.S. Dollar A Term Loan
Commitment, Canadian Dollar A Term Loan Commitment, U.K. A Term Loan
Commitment, the B Term Loan Commitment, the C Term Loan Commitment or the
Revolving Credit Commitment, as the case may be, of each Bank.
SECTION 4. Payments.
4.01 Voluntary Prepayments. (a) Subject to Annex III, each
Borrower shall have the right to prepay its Loans (other than a Local
Currency Loan), in whole or in part, without premium or penalty except as
otherwise provided in this Agreement, from time to time on the following
terms and conditions: (i) the Company shall give the Administrative Agent
at its Notice Office written notice (or telephonic notice promptly
confirmed in writing) of any Borrower's intent to prepay its Loans,
whether such Loans are U.S. Dollar A Term Loans, Canadian Dollar A Term
Loans, U.K. A Term Loans, B Term Loans, C Term Loans, Revolving Loans or
Swingline Loans, the amount of such prepayment and (in the case of
Eurodollar Loans) the specific Borrowing(s) pursuant to which made, which
notice shall be given by the Company prior to 3:00 P.M. (New York time)
(x) at least one Business Day prior to the date of such prepayment in the
case of Term Loans or Revolving Loans and (y) on the date of such
prepayment in the case of Swingline Loans, which notice shall, except in
the case of Swingline Loans, promptly be transmitted by the
Administrative Agent to each of the Banks; (ii) each prepayment shall be
in an aggregate principal amount (or the Dollar Equivalent amount
determined as of the Initial Borrowing Date for the relevant Alternative
Currency Loan or Loans) of at least $1,000,000 (or $100,000 in the case
of Swingline Loans) and in increments of $1,000,000 (or $100,000, in the
case of Swingline Loans) in excess thereof, provided that no partial
prepayment of Eurodollar Loans made pursuant to a Borrowing shall reduce
the aggregate principal amount of the Loans outstanding pursuant to such
Borrowing (or the Dollar Equivalent amount determined prior to the
Initial Borrowing Date for the relevant Alternative Currency Loan or
Loans) to an amount less than the Minimum Borrowing Amount applicable
thereto; (iii) each prepayment in respect of any Loans made pursuant to a
Borrowing shall be applied pro rata among such Loans, provided that at
the Company's election in connection with any prepayment of Revolving
Loans pursuant to this Section 4.01(a), such prepayment shall not be
applied to any Revolving Loans of a Defaulting Bank at any time when the
aggregate amount of Revolving Loans of any Non-Defaulting Bank exceeds
such Non-Defaulting Bank's Revolving Percentage of all Revolving Loans
then outstanding; (iv) each prepayment of Term Loans pursuant to this
Section 4.01(a) must consist of a prepayment of U.S. Dollar A Term Loans
(in an amount equal to the U.S. Dollar A TL Percentage of such
prepayment), Canadian Dollar A Term Loans (in an amount equal to the
Canadian Dollar A TL Percentage of such prepayment), U.K. A Term Loans
(in an amount equal to the U.K. A TL Percentage of such prepayment), B
Term Loans (in an amount equal to the B TL Percentage of such prepayment)
and C Term Loans (in an amount equal to the C TL Percentage of such
prepayment); (v) each prepayment of U.S. Dollar A Term Loans pursuant to
this Section 4.01(a) shall reduce the then remaining Scheduled U.S.
Dollar A Repayments on a pro rata basis (based upon the then remaining
principal amount of each such Scheduled U.S. Dollar A Repayment); (vi)
each prepayment of Canadian Dollar A Term Loans pursuant to this Section
4.01(a) shall reduce the then remaining Scheduled Canadian Dollar A
Repayments on a pro rata basis (based upon the then remaining principal
amount of each such Scheduled Canadian Dollar A Repayment); (vii) each
prepayment of U.K. A Term Loans pursuant to this Section 4.01(a) shall
reduce the then remaining Scheduled U.K. A Repayments on a pro rata basis
(based upon the then remaining principal amount of each such Scheduled
U.K. A Repayment); (viii) each prepayment of B Term Loans pursuant to
this Section 4.01(a) shall reduce the then remaining Scheduled B
Repayments on a pro rata basis (based upon the then remaining principal
amount of each such Scheduled B Repayment); (ix) each prepayment of C
Term Loans pursuant to this Section 4.01(a) shall reduce the then
remaining Scheduled C Repayments on a pro rata basis (based upon the then
remaining principal amount of each such Scheduled C Repayment). A
Borrower shall not have the right to prepay its Local Currency Loans
without the prior consent of the Revolving Bank holding such Loan.
(b) In the event of certain refusals by a Bank to consent to
certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Required Banks
as provided in Section 12.12(b), the Borrowers shall have the right, upon
five Business Days' prior written notice to the Administrative Agent at
its Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks) to repay or prepay all Loans (other than
outstanding Local Currency Loans), together with accrued and unpaid
interest, Fees and all other amounts owing to such Bank in accordance
with said Section 12.12(b) so long as (A) in the case of the repayment of
Revolving Loans of any Revolving Bank pursuant to this paragraph (b) the
Revolving Credit Commitment of such Revolving Bank is terminated
concurrently with such repayment pursuant to Section 3.02(b) (at which
time Annex I shall be deemed modified to reflect the changed Revolving
Credit Commitments) and (B) in the case the repayment of Loans (other
than outstanding Local Currency Loans) of any Bank the consents required
by Section 12.12(b) in connection with the repayment pursuant to this
paragraph (b) shall have been obtained.
4.02 Mandatory Repayments and Prepayments.
(A) Requirements:
(a) If on any date the sum of the Total Revolving Extension
of Credit plus the aggregate Local Currency Loan Exposures exceeds the
Total Revolving Credit Commitment as then in effect, the Company shall
repay on such date the principal of Swingline Loans, and if no Swingline
Loans are or remain outstanding, Revolving Loans in an aggregate amount
equal to such excess; provided that if such excess is solely attributable
to a redetermination of Dollar Equivalents pursuant to Section 1.15, then
such repayment shall not be required unless so required under Section
1.15. If, after giving effect to the prepayment of all outstanding
Swingline Loans and Revolving Loans, the sum of the aggregate amount of
Letter of Credit Outstandings plus the aggregate Local Currency Loan
Exposures exceeds the Total Revolving Credit Commitment as then in
effect, the Company shall pay to the Administrative Agent on such date an
amount in cash and/or Cash Equivalents equal to such excess (up to the
aggregate amount of Letter of Credit Outstanding at such time) and the
Administrative Agent shall hold such payment as security for the
obligations of the Borrowers hereunder pursuant to a cash collateral
agreement to be entered into in form and substance reasonably
satisfactory to the Administrative Agent (which shall permit certain
investments in Cash Equivalents reasonably satisfactory to the
Administrative Agent until the proceeds are applied to the secured
obligations or are released to the Company upon termination of the
applicable Letter of Credit).
(b) (i) The Company shall be required to repay the principal
amount of U.S. Dollar A Term Loans on each date set forth below in the
amount set forth opposite such date below (each such repayment, as the
same may be reduced as provided in Sections 4.01 and 4.02(B)(b), a
"Scheduled U.S. Dollar A Repayment"):
Scheduled U.S. Dollar A Repayment Date Amount
- -------------------------------------- ------
the last Business Day in June, 1999 $1,360,000
the last Business Day in December, 1999 $1,360,000
the last Business Day in June, 2000 $4,080,000
the last Business Day in December, 2000 $4,080,000
the last Business Day in June, 2001 $5,440,000
the last Business Day in December, 2001 $5,440,000
the last Business Day in June, 2002 $9,520,000
the last Business Day in December, 2002 $9,520,000
the last Business Day in June, 2003 $13,600,000
U.S. Dollar A Term Loan Maturity Date $13,600,000
(ii) The Canadian Borrower shall be required to repay the
principal amount of Canadian Dollar A Term Loans on each date set forth
below in a principal amount equal to the amount determined by multiplying
the percentage set forth opposite such date by the original aggregate
principal amount of the Canadian Dollar A Term Loans borrowed on the
Initial Borrowing Date (each such repayment, as the same may be reduced
as provided in Sections 4.01 and 4.02(B)(b), a "Scheduled Canadian Dollar
A Repayment"):
Scheduled Canadian Dollar A Repayment Date Percentage of
- ------------------------------------------ Aggregate Principal
Amount of Canadian
Dollar A Term Loans
-------------------
the last Business Day in June, 1999 2%
the last Business Day in December, 1999 2%
the last Business Day in June, 2000 6%
the last Business Day in December, 2000 6%
the last Business Day in June, 2001 8%
the last Business Day in December, 2001 8%
the last Business Day in June, 2002 14%
the last Business Day in December, 2002 14%
the last Business Day in June, 2003 20%
Canadian Dollar A Term Loan Maturity Date 20%
(iii) The U.K. Borrower shall be required to repay the
principal amount of U.K. A Term Loans on each date set forth below in a
principal amount equal to the amount determined by multiplying the
percentage set forth opposite such date by the original aggregate
principal amount of the U.K. A Term Loans borrowed on the Initial
Borrowing Date (each such repayment, as the same may be reduced as
provided in Sections 4.01 and 4.02(B)(b), a "Scheduled U.K. A
Repayment"):
Scheduled U.K. A Repayment Date Percentage of
- ------------------------------- Aggregate Principal
Amount of U.K. A
Term Loans
-------------------
the last Business Day in June, 1999 2%
the last Business Day in December, 1999 2%
the last Business Day in June, 2000 6%
the last Business Day in December, 2000 6%
the last Business Day in June, 2001 8%
the last Business Day in December, 2001 8%
the last Business Day in June, 2002 14%
the last Business Day in December, 2002 14%
the last Business Day in June, 2003 20%
U.K. A Term Loan Maturity Date 20%
(iv) The Company shall be required to repay the principal
amount of B Term Loans on each date set forth below in the amount set
forth opposite such date below (each such repayment, as the same may be
reduced as provided in Sections 4.01 and 4.02(B)(b), a "Scheduled B
Repayment"):
Scheduled B Repayment Date Amount
- -------------------------- ------
the last Business Day in June, 1999 $250,000
the last Business Day in December, 1999 $250,000
the last Business Day in June, 2000 $500,000
the last Business Day in December, 2000 $500,000
the last Business Day in June, 2001 $500,000
the last Business Day in December, 2001 $500,000
the last Business Day in June, 2002 $500,000
the last Business Day in December, 2002 $500,000
the last Business Day in June, 2003 $500,000
the last Business Day in December, 2003 $500,000
the last Business Day in June, 2004 $47,750,000
B Term Loan Maturity Date $47,750,000
(v) The Company shall be required to repay the principal
amount of C Term Loans on each date set forth below in the amount set
forth opposite such date below (each such repayment, as the same may be
reduced as provided in Sections 4.01 and 4.02(B)(b), a "Scheduled C
Repayment"):
Scheduled C Repayment Date Amount
- -------------------------- ------
the last Business Day in June, 1999 $250,000
the last Business Day in December, 1999 $250,000
the last Business Day in June, 2000 $500,000
the last Business Day in December, 2000 $500,000
the last Business Day in June, 2001 $500,000
the last Business Day in December, 2001 $500,000
the last Business Day in June, 2002 $500,000
the last Business Day in December, 2002 $500,000
the last Business Day in June, 2003 $500,000
the last Business Day in December, 2003 $500,000
the last Business Day in June, 2004 $500,000
the last Business Day in December, 2004 $500,000
C Term Loan Maturity Date $63,700,000
(c) On the Business Day after the date of receipt thereof by
the Company and/or any of its Subsidiaries of Cash Proceeds from any
Asset Sale (or such later date, not to exceed five Business Days after
the date of such receipt of Cash Proceeds, as shall be necessary in order
to permit the Company and the Administrative Agent to comply with the
notification requirements set forth in Section 4.02(C)), an amount equal
to 100% of the Net Cash Proceeds from such Asset Sale shall be applied as
a mandatory repayment of principal of the Term Loans (with the U.S.
Dollar A TL Percentage of such amount to be applied as a repayment of the
U.S. Dollar A Term Loans by the Company, the Canadian Dollar A TL
Percentage of such amount to be applied as a repayment of the Canadian
Dollar A Term Loans by the Canadian Borrower, the U.K. A TL Percentage of
such amount to be applied as a repayment of the U.K. A Term Loans by the
U.K. Borrower, the B TL Percentage of such amount to be applied as a
repayment of the B Term Loans by the Company and the C TL Percentage of
such amount to be applied as a repayment of the C Term Loans by the
Company, in each case subject to the required prior notification of the
Administrative Agent and modification of such application as set forth in
Section 4.02(C)), provided that (i) with respect to no more than
$25,000,000 in the aggregate of such Net Cash Proceeds in any fiscal year
of the Company, such Net Cash Proceeds shall not be required to be so
applied on such date to the extent that no Default or Event of Default
then exists and the Company delivers a certificate to the Administrative
Agent on or prior to such date stating that such Net Cash Proceeds shall
be used to purchase assets used or to be used in the businesses referred
to in Section 8.01(a) within 360 days following the date of such Asset
Sale (which certificate shall set forth the estimates of the proceeds to
be so expended) and (ii) the Company shall not be required to comply with
this clause (c) until such time as the cumulative Net Cash Proceeds from
all Asset Sales not yet applied as a mandatory repayment hereunder equals
or exceeds $5,000,000, and provided further, that (1) if all or any
portion of such Net Cash Proceeds not so applied to the repayment of Term
Loans are not so used (or contractually committed to be used to purchase
assets) within such 360 day period, such remaining portion shall be
applied on the last day of such period as a mandatory repayment of
principal of outstanding Term Loans as provided above in this Section
4.02(A)(c) and (2) if all or any portion of such Net Cash Proceeds are
not required to be applied on the 360th day referred to in clause (1)
above because such amount is contractually committed to be used and
subsequent to such date such contract is terminated or expires without
such portion being so used, then such remaining portion shall be applied
on the date of such termination or expiration as a mandatory repayment of
principal of outstanding Term Loans as provided above in this Section
4.02(A)(c). Notwithstanding the foregoing, and in addition to the
exemption from repayment described in the immediately preceding sentence,
(i) Net Cash Proceeds from any Asset Sale in the ordinary course of
business shall not be required to be applied to the making of mandatory
repayments pursuant to this paragraph (c) as long as no Default or Event
of Default then exists or would exist after giving effect thereto and
(ii) (A) so long as any U.S. Dollar A Term Loans remain outstanding, Net
Cash Proceeds from any Asset Sale of assets owned by the Company and/or
any of its Subsidiaries which is incorporated or domiciled in the United
States shall not be applied to prepay the Canadian Dollar A Term Loans or
the U.K. A Term Loans and the amounts which would be applied to
prepayment of such Loans shall be applied to prepay the U.S. Dollar A
Term Loans until the U.S. Dollar A Term Loans have been repaid in full,
(B) so long as any U.K. A Term Loans remain outstanding, Net Cash
Proceeds from any Asset Sale of assets owned by the U.K. Borrower and/or
any of its Subsidiaries which is incorporated or domiciled in the United
Kingdom shall not be applied to prepay any Loans other than the U.K. A
Term Loans until the U.K. A Term Loans have been repaid in full and (C)
so long as any Canadian Dollar A Term Loans remain outstanding, Net Cash
Proceeds from any Asset Sale of assets owned by the Canadian Borrower
and/or any of its Subsidiaries which is incorporated or domiciled in
Canada shall not be applied to prepay any Loans other than the Canadian
Dollar A Term Loans until the Canadian Dollar A Term Loans have been
repaid in full.
(d) On the Business Day after the date of the receipt thereof
by the Company and/or any of its Subsidiaries, an amount equal to 100% of
the cash proceeds (net of underwriting discounts and commissions and
other reasonable costs associated therewith) of the incurrence of
Indebtedness by the Company and/or any of its Subsidiaries (other than
Indebtedness permitted to be incurred by Section 8.04) shall be applied
as a mandatory repayment of principal of the Term Loans (with the U.S.
Dollar A TL Percentage of such amount to be applied as a repayment of the
U.S. Dollar A Term Loans by the Company, the Canadian Dollar A TL
Percentage of such amount to be applied as a repayment of the Canadian
Dollar A Term Loans by the Canadian Borrower, the U.K. A TL Percentage of
such amount to be applied as a repayment of the U.K. A Term Loans by the
U.K. Borrower, the B TL Percentage of such amount to be applied as a
repayment of the B Term Loans by the Company and the C TL Percentage of
such amount to be applied as a repayment of the C Term Loans by the
Company, in each case subject to the required prior notification of the
Administrative Agent and modification of such application as set forth in
Section 4.02(C)).
(e) On the Business Day after the date of the receipt thereof
by the Company and/or any of its Subsidiaries, an amount equal to 50% of
the cash proceeds (net of underwriting discounts and commissions and
other reasonable costs associated therewith) of the issuance or sale of
equity securities by the Company and/or any of its Subsidiaries shall be
applied as a mandatory repayment of principal of the Term Loans (with the
U.S. Dollar A TL Percentage of such amount to be applied as a repayment
of the U.S. Dollar A Term Loans by the Company, the Canadian Dollar A TL
Percentage of such amount to be applied as a repayment of the Canadian
Dollar A Term Loans by the Canadian Borrower, the U.K. A TL Percentage of
such amount to be applied as a repayment of the U.K. A Term Loans by the
U.K. Borrower, the B TL Percentage of such amount to be applied as a
repayment of the B Term Loans by the Company and the C TL Percentage of
such amount to be applied as a repayment of the C Term Loans by the
Company, in each case subject to the required prior notification of the
Administrative Agent and modification of such application as set forth in
Section 4.02(C)); provided, however, that the Company shall not be
required to comply with this Section 4.02(A)(e) until such time as the
net proceeds from all issuances of equity securities exceeds $5,000,000.
Notwithstanding the foregoing, the provisions of this Section 4.02(A)(e),
shall not apply to the net proceeds received (i) from the exercise of
stock options granted to management or (ii) by a Subsidiary from the
issuance or sale of equity securities to the Company or to any
Wholly-Owned Subsidiary of the Company.
(f) On each Excess Cash Payment Date, an amount equal to 50%
of Excess Cash Flow of the Company and its Subsidiaries for the most
recent Excess Cash Flow Period ending prior to such Excess Cash Payment
Date shall be applied as a mandatory repayment of principal of the Term
Loans (with the U.S. Dollar A TL Percentage of such amount to be applied
as a repayment of the U.S. Dollar A Term Loans by the Company, the
Canadian Dollar A TL Percentage of such amount to be applied as a
repayment of the Canadian Dollar A Term Loans by the Canadian Borrower,
the U.K. A TL Percentage of such amount to be applied as a repayment of
the U.K. A Term Loans by the U.K. Borrower, the B TL Percentage of such
amount to be applied as a repayment of the B Term Loans by the Company
and the C TL Percentage of such amount to be applied as a repayment of
the C Term Loans by the Company, in each case subject to the required
prior notification of the Administrative Agent and modification of such
application as set forth in Section 4.02(C)).
(g) Within 30 days following each date on which the Company
or any of its Subsidiaries receives any proceeds from any Recovery Event,
an amount equal to 100% of the proceeds of such Recovery Event (net of
reasonable costs and taxes incurred in connection with such Recovery
Event) shall be applied as a mandatory repayment of principal of the Term
Loans (with the U.S. Dollar A TL Percentage of such amount to be applied
as a repayment of the U.S. Dollar A Term Loans by the Company, the
Canadian Dollar A TL Percentage of such amount to be applied as a
repayment of the Canadian Dollar A Term Loans by the Canadian Borrower,
the U.K. A TL Percentage of such amount to be applied as a repayment of
the U.K. A Term Loans by the U.K. Borrower, the B TL Percentage of such
amount to be applied as a repayment of the B Term Loans by the Company
and the C TL Percentage of such amount to be applied as a repayment of
the C Term Loans by the Company, in each case subject to modification of
such application as set forth in Section 4.02(C)), provided that so long
as no Default or Event of Default then exists, such proceeds shall not be
required to be so applied on such date to the extent that the Company has
delivered a certificate to the Administrative Agent on or prior to such
date stating that such proceeds shall be used to replace or restore any
properties or assets in respect of which such proceeds were paid within
360 days following the date of the receipt of such proceeds (which
certificate shall set forth the estimates of the proceeds to be so
expended), and provided further, that (i) if all or any portion of such
proceeds not required to be applied to the repayment of Term Loans
pursuant to the preceding proviso are not so used (or contractually
committed to be used) within 360 days after the date of the receipt of
such proceeds, such remaining portion shall be applied on the last day of
such period as a mandatory repayment of principal of the Term Loans as
provided above in this Section 4.02(A)(g) and (ii) if all or any portion
of such proceeds are not required to be applied on the 360th day referred
to in clause (i) above because such amount is contractually committed to
be used and subsequent to such date such contract is terminated or
expires without such portion being so used, then such remaining portion
shall be applied on the date of such termination or expiration as a
mandatory repayment of principal of outstanding Term Loans as provided in
this Section 4.02(A)(g).
(h) The applicable Borrower shall repay the principal amount
of each Local Currency Loan on the last day of the Interest Period of
such Local Currency Loan.
(i) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (i) all then outstanding Swingline Loans
shall be repaid in full on the Swingline Expiry Date and (ii) all other
then outstanding Loans of the respective Facility shall be repaid in full
on the Maturity Date for such Facility.
(B) Application
(a) Any amount required to be applied to U.S. Dollar A Term
Loans, Canadian Dollar A Term Loans, U.K. A Term Loans, B Term Loans or C
Term Loans, as the case may be, shall apply to the repayment of the
outstanding principal amount of U.S. Dollar A Term Loans, Canadian Dollar
A Term Loans, U.K. A Term Loans, B Term Loans and C Term Loans,
respectively, of the respective Facility.
(b) All repayments of U.S. Dollar A Term Loans, Canadian
Dollar A Term Loans, U.K. A Term Loans, B Term Loans and C Term Loans
pursuant to Section 4.02(A)(c), (d), (e), (f) or (g) shall be applied to
reduce the then remaining Scheduled Repayments of the respective Facility
pro rata based on the then remaining Scheduled Repayments of the
respective Facility.
(c) With respect to each repayment of Loans required by this
Section 4.02, subject to Annex III, the Company may designate the Types
of Loans which are to be repaid and the specific Borrowing(s) under the
affected Facility pursuant to which made; provided that (i) in the event
of a repayment of any Eurodollar Loan or Alternative Currency Loan (other
than Canadian Dollar A Term Loans) other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), then in such case, the applicable Borrower shall compensate
each Bank pursuant to Section 1.11; (ii) if any repayment of Eurodollar
Loans made pursuant to a single Borrowing shall reduce the outstanding
Loans made pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount, such Borrowing shall be immediately converted into Base
Rate Loans; and (iii) each repayment of any Loans made pursuant to a
Borrowing shall be applied pro rata among such Loans; provided that no
repayment pursuant to Section 4.02(A)(a) shall be applied to any
Revolving Loans of a Defaulting Bank at any time when the aggregate
amount of the Revolving Loans of any Non- Defaulting Bank exceeds such
Non-Defaulting Bank's Revolving Percentage of Revolving Loans then
outstanding. In the absence of a designation by the Company as described
in the preceding sentence, the Administrative Agent shall, subject to the
above, make such designation in its sole discretion with a view, but no
obligation, to minimize breakage costs owing under Section 1.11.
(d) Each payment of principal of any Competitive Borrowing
shall be allocated pro rata among the Banks participating in such
Borrowing in accordance with the respective principal amounts of their
outstanding Competitive Loans comprising such Borrowing. Each payment of
interest on any Competitive Borrowing shall be allocated pro rata among
the Banks participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing.
(C) Waiver of Certain Mandatory Repayments by B Banks and C
Banks
Notwithstanding anything to the contrary contained in this
Section 4.02 or elsewhere in this Agreement (including, without
limitation, in Section 12.12), Banks with outstanding B Term Loans (the
"B Banks"), and Banks with outstanding C Term Loans (the "C Banks") may
waive a mandatory repayment of such Loans pursuant to Section 4.02(A)(c),
(d), (e), (f) and/or (g) (each such repayment, a "Waivable Mandatory
Repayment") upon the terms and provisions set forth in this Section
4.02(C). The Company shall give to the Administrative Agent written
notice of its intention to make a Waivable Mandatory Repayment at least
five Business Days prior to such repayment, which notice the
Administrative Agent shall promptly forward to all B Banks and C Banks
(indicating in such notice the amount of such repayment to be applied to
each such Bank's outstanding Term Loans under such Facilities). Any B
Bank or C Bank may waive all or any part of any such Waivable Mandatory
Repayment. In the event any such B Bank or C Bank desires to waive such
Bank's right to receive any such Waivable Mandatory Repayment in whole or
in part, such Bank shall so advise the Administrative Agent no later than
the close of business two Business Days after the date of such notice
from the Administrative Agent, which notice shall also include the amount
such Bank desires to receive in respect of such repayment. If any Bank
does not reply to the Administrative Agent within the two Business Days,
it will be deemed not to have waived any part of such repayment. If any
Bank does not specify an amount it wishes to receive, it will be deemed
to have accepted 100% of the total payment. In the event that any such
Bank waives all or part of such right to receive any such Waivable
Mandatory Repayment, the Administrative Agent shall apply 100% of the
amount so waived by such Bank to the U.S. Dollar A Term Loans, the
Canadian Dollar A Term Loans and the U.K. A Term Loans in accordance with
Section 4.02(B).
4.03 Method and Place of Payment. (a) Except as otherwise
specifically provided herein, all payments under this Agreement shall be
made to the Administrative Agent for the ratable account of the Banks
entitled thereto, not later than 12:00 Noon (local time of the applicable
Payment Office) on the date when due and shall be made at the Payment
Office, it being understood that written, telex or facsimile transmission
notice by the Company to the Administrative Agent to make a payment from
the funds in a Borrower's account at the Payment Office shall constitute
the making of such payment to the extent of such funds held in such
account. Any payments under this Agreement which are made later than
12:00 Noon (local time of the applicable Payment Office) shall be deemed
to have been made on the next succeeding Business Day. Whenever any
payment to be made hereunder shall be stated to be due on a day which is
not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in
effect immediately prior to such extension.
(b) Except as otherwise specifically provided herein, all
payments under this Agreement, including without limitation, payments of
principal, interest, fees, and other charges, shall only be made in U.S.
Dollars; provided that (i) the payment of principal and interest of any
Loan denominated in any Alternative Currency shall be made in such
Alternative Currency and (ii) the payment of principal and interest of
any Loan denominated in any Local Currency shall be made in such Local
Currency.
4.04 Net Payments. (a) All payments made by any Borrower
hereunder, or by any Guarantor on behalf of any Borrower, or under any
Note will be made without setoff, counterclaim or other defense. Except
as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future
taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any
political subdivision or taxing authority thereof or therein with respect
to such payments (but excluding any Excluded Taxes) and all interest,
penalties or similar liabilities with respect thereto (all such
nonexcluded taxes, levies, imposts, duties, fees, assessments or other
charges being referred to collectively as "Taxes"). If any Taxes are so
levied or imposed, (i) the sum payable shall be increased by the amount
necessary so that every payment of all amounts due under this Agreement
or under any Note, after withholdings or deductions for or on account of
Taxes will not be less than the amount provided for herein or in such
Note, (ii) the applicable Borrower or Guarantor, shall make such
deductions and (iii) the applicable Borrower or Guarantor, shall pay the
full amount of such Taxes to the relevant taxing authority in accordance
with applicable law. If any amounts are payable in respect of Taxes
pursuant to the preceding sentence, each of the Borrowers agrees to
reimburse each Bank lending to such Borrower, upon the written request of
such Bank, for taxes relating to such amounts imposed on or measured by
the net income or net profits of such Bank pursuant to the laws of the
jurisdiction in which the principal office or applicable lending office
of such Bank is located or under the laws of any political subdivision or
taxing authority of any such jurisdiction in which the principal office
or applicable lending office of such Bank is located and for any
withholding of taxes as such Bank shall determine are payable by, or
withheld from, such Bank in respect of such amounts so paid to or on
behalf of such Bank pursuant to the preceding sentence and in respect of
any amounts paid to or on behalf of such Bank pursuant to this sentence.
The applicable Borrower or Guarantor will furnish to the Administrative
Agent within 45 days after the date the payment of any Taxes is due
certified copies of tax receipts, if any, issued by such taxing
authority, or other evidence reasonably acceptable to the Administrative
Agent evidencing such payment by such Borrower or Guarantor (or, if such
Borrower or Guarantor has not received such certified copies of tax
receipts within such time period, then such Borrower or Guarantor shall
furnish such certified copies of tax receipts to the Administrative Agent
within 15 days after such Borrower or Guarantor has received such
certified copies of tax receipts). Each Borrower agrees to indemnify and
hold harmless each Bank lending to such Borrower, and reimburse such Bank
upon its written request, for the amount of any Taxes so levied or
imposed and paid by such Bank, other than penalties, additions to tax,
interest and expenses arising as a result of the willful misconduct or
gross negligence of such Bank. Such indemnification shall be made within
30 days after the date upon which such Bank makes written demand
therefor, which demand shall identify the nature and amount of Taxes for
which indemnification is sought and shall include a copy of any written
assessment thereof (provided that if such Bank determines that such
assessment contains any confidential information, such Bank shall be
entitled to redact such confidential information from such assessment).
In addition, the Company agrees to pay any present and future stamp,
documentary taxes or any other excise, property, transfer or similar
taxes, and any charges relating thereto, arising from any payment made
hereunder or from the execution, delivery enforcement or registration of,
or otherwise in connection with, this Agreement.
(b) Each Bank that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees to deliver to
the Company and the Administrative Agent on or prior to the Effective
Date, or in the case of a Bank that is an assignee or transferee of an
interest under this Agreement pursuant to Section 1.13 or 12.04 (unless
the respective Bank was already a Bank hereunder immediately prior to
such assignment or transfer), on the date of such assignment or transfer
to such Bank, (i) two accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001 (or successor forms)
certifying to such Bank's entitlement to a complete exemption from United
States withholding tax with respect to payments to be made under this
Agreement and under any Note, or (ii) if the Bank is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above,
(x) a certificate substantially in the form of Exhibit C (any such
certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate
and complete original signed copies of Internal Revenue Service Form W-8
(or successor form) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement and under any Note. In addition,
each Bank agrees that from time to time after the Effective Date, when a
lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will,
but only so long as such Lender or Eligible Transferee remains lawfully
able to do so, deliver to the Company and the Administrative Agent two
new accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001, or Form W-8 and a Section 4.04(b)(ii)
Certificate, as the case may be, and such other forms as may be required
in order to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States withholding tax
with respect to payments under this Agreement and any Note, or it shall
immediately notify the Company and the Administrative Agent of its
inability to deliver any such Form or Certificate. Notwithstanding any
other provision of this Section 4.04(b) and Section 12.04, a Bank or
Eligible Transferee shall be required to deliver any form and/or
certification pursuant to this Section 4.04(b) only if such Bank or
Eligible Transferee is lawfully able to do so and is legally entitled to
claim an exemption from United States withholding and is otherwise
legally entitled to provide such form and/or certification.
Notwithstanding anything to the contrary contained in Section 4.04(a),
but subject to Section 12.04(b) and the immediately succeeding sentence,
(x) the Company shall be entitled, to the extent it is required to do so
by law, to deduct or withhold income or similar taxes imposed by the
United States (or any political subdivision or taxing authority thereof
or therein) from interest, fees or other amounts payable hereunder for
the account of any Bank which is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for U.S. Federal income
tax purposes to the extent that such Bank has not provided to the Company
U.S. Internal Revenue Service Forms that establish a complete exemption
from or reduction in such deduction or withholding except if such Bank or
Eligible Transferee is not lawfully able to deliver such forms and (y)
the Company shall not be obligated pursuant to Section 4.04(a) hereof to
gross-up payments to be made to a Bank in respect of income or similar
taxes imposed by the United States if such Bank has not provided to the
Company the Internal Revenue Service Forms required to be provided to the
Company pursuant to this Section 4.04(b)except if such Bank or Eligible
Transferee is not lawfully able to deliver such forms. Subject to Section
12.04(b), the Company agrees to pay additional amounts and to indemnify
each Bank in the manner set forth in Section 4.04(a) (without regard to
the identity of the jurisdiction requiring the deduction or withholding)
in respect of any amounts deducted or withheld by it as described in the
immediately preceding sentence as a result of any changes after the
Effective Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof,
relating to the deducting or withholding of income or similar Taxes.
The Borrowers shall not be required to indemnify any Bank, or
to pay any additional amounts to any Bank, (i) in respect of United
States Federal withholding tax pursuant to Section 4.04 (a) above, to the
extent that the obligation to withhold such amounts was in effect and
would apply on the date such Bank became a party to this Agreement, (or,
in the case of a new lending office, the date upon which such new lending
office is designated) except to the extent that (A) such Bank (or its
assignor, if any) was entitled, at the time of assignment or at the time
of designation of a new lending office, to receive additional amounts
from the Borrowers with respect to any withholding tax pursuant to
Section 4.04(a) and (B) Section 4.04(a) would apply to such Banks solely
as a result of a CAM exchange pursuant to Section 1.17 of this Agreement,
in which case such Banks would be entitled to receive additional amounts
from the Borrowers with respect to any withholding tax pursuant to
Section 4.04(A), (ii) pursuant to Section 4.04(a) above in respect of
United Kingdom withholding taxes imposed on payments of interest under
the U.K. A Term Loan or under any Local Currency Loan made to an
Additional U.K. Subsidiary Borrower that has notified the Administrative
Agent that this Section 4.04(b)(ii) is applicable pursuant to Section
1.18 to a U.K. A Term Loan Bank which is not a U.K. Qualifying Bank
except to the extent that such additional amount does not exceed that
which would have been payable under Section 4.04(a) had the relevant Bank
been a U.K. Qualifying Bank; provided that if a Bank becomes a lender
under any Loan solely due to a CAM Exchange pursuant to Section 1.17 of
this Agreement, such Bank shall be entitled to receive additional amounts
under Section 4.04(a) whether or not it is a U.K. Qualifying Bank;
provided further that any Bank to which this clause (ii) applies shall
promptly notify the Borrower and the Administrative Agent upon becoming
aware that it is not or has ceased to be U.K. Qualifying Bank or (iii) in
respect of Canadian withholding tax pursuant to Section 4.04 (a) above,
to the extent that the obligation to pay such withholding taxes is as a
result of any Bank not being or ceasing to be a Bank which is organized
under the laws of Canada or a political subdivision thereof in relation
to any Loan to the Canadian Borrower, in which case such Bank shall
promptly notify that Borrower and the Administrative Agent upon becoming
aware of the same and that Borrower shall not be liable to pay to such
Bank under clause 4.04(a) above or any other clause in this Agreement any
amount in excess of the amount it would have been obliged to pay if such
Bank was or had not ceased to be a Bank which is organized under the laws
of Canada or a political subdivision thereof, except to the extent
Section 4.04(a) would apply to such Bank solely as a result of a CAM
Exchange pursuant to Section 1.17 of this Agreement, in which case such
Bank would be entitled to receive additional amounts from the Borrowers
with respect to any Canadian withholding tax pursuant to Section 4.04(a).
If any Bank receives a refund in respect of any Taxes as to
which it has been indemnified by any of the Borrowers pursuant to this
Section 4.04, it shall promptly notify the Company of such refund and,
within 30 days of receipt, pay over such refund to the applicable
Borrower (to the extent of amounts that have been paid by any of the
Borrowers under this Section 4.04 with respect to such refund and not
previously reimbursed), net of all reasonably documented out-of-pocket
expenses of such Bank and without interest (other than the interest, if
any, included in such refund net of any Taxes payable with respect to
receipt of such refund), provided that such Borrower, upon written
request of the Bank agrees to return such refund (plus penalties,
interest or other charges) to such Bank in the event such bank is
required to repay such refund.
SECTION 5. Conditions Precedent. The obligation of each Bank
to make each Loan hereunder, and the obligation of the Letter of Credit
Issuer to issue each Letter of Credit hereunder, is subject, at the time
of each such Credit Event (except as otherwise hereinafter indicated), to
the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the
Initial Borrowing Date, (i) the Effective Date shall have occurred and
(ii) there shall have been delivered to the Administrative Agent for the
account of each Bank which has requested such Notes, the appropriate U.S.
Dollar A Term Note, Canadian Dollar A Term Note, U.K. A Term Note, B Term
Note, C Term Note and Revolving Note, if any, Local Currency Note, if
any, and to Chase, the Swingline Note, in each case executed by the
applicable Borrower and in the amount, maturity and as otherwise provided
herein.
5.02 No Default; Representations and Warranties. At the time
of each Credit Event and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and
warranties contained herein and in the other Credit Documents in effect
at such time shall be true and correct in all material respects with the
same effect as though such representations and warranties had been made
on and as of the date of such Credit Event, unless stated to relate to a
specific earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier
date.
5.03 Officer's Certificate. On the Initial Borrowing Date,
the Administrative Agent shall have received a certificate dated such
date signed by an appropriate officer of the Company stating that all of
the applicable conditions set forth in Sections 5.02, 5.07, 5.08 and 5.09
have been satisfied as of such date.
5.04 Opinions of Counsel. On the Initial Borrowing Date, the
Administrative Agent shall have received opinions, addressed to the
Administrative Agent and each of the Banks and dated the Initial
Borrowing Date, from (i) Skadden, Arps, Slate, Meagher & Flom LLP,
counsel to the Credit Parties, which opinion shall cover the matters
contained in Exhibit D-1 and such other matters incident to the
transactions contemplated herein as the Administrative Agent may
reasonably request, (ii) local and other counsel to the Credit Parties
and/or the Administrative Agent reasonably satisfactory to the
Administrative Agent which opinions shall cover the matters contained in
Exhibit D-2 and such other matters incident to the transactions
contemplated herein as the Administrative Agent may reasonably request
and (iii) foreign counsel to the Company and each of the Subsidiary
Borrowers reasonably satisfactory to the Administrative Agent, which
opinions shall cover the matters contained in Exhibit D- 3 and such
matters incident to the transactions contemplated herein and in the other
Credit Documents as the Administrative Agent may reasonably request and
shall be in form and substance reasonably satisfactory to the
Administrative Agent.
5.05 Corporate Proceedings. (a) On the Initial Borrowing
Date, the Administrative Agent shall have received from each Credit Party
a certificate, dated the Initial Borrowing Date, signed by the chairman,
a vice chairman, the president or any vice-president of such Credit
Party, and attested to by the secretary or any assistant secretary of
such Credit Party, in the form of Exhibit E with appropriate insertions,
together with copies of the Certificate of Incorporation and By-Laws (or
corresponding charter documents) of such Credit Party and the resolutions
of such Credit Party referred to in such certificate and all of the
foregoing (including each such Certificate of Incorporation and By-Laws)
shall be reasonably satisfactory to the Administrative Agent.
(b) On the Initial Borrowing Date, all corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall
be reasonably satisfactory in form and substance to the Administrative
Agent, and the Administrative Agent shall have received all information
and copies of all certificates, documents and papers, including good
standing certificates, bring-down certificates and any other records of
corporate proceedings and governmental approvals, if any, which the
Administrative Agent reasonably may have requested in connection
therewith, such documents and papers, where appropriate, to be certified
by proper corporate or governmental authorities.
5.06 Adverse Change, etc. Except as (a) set forth in the
Disclosure Schedule to the Recapitalization Agreement, (b) permitted or
contemplated by the Recapitalization Agreement or (c) publicly disclosed
by the Company, in each case prior to the execution of this Agreement, no
material adverse change in the business, assets, operations, properties,
financial condition, reasonably foreseeable prospects or material
agreements of the Company and its Subsidiaries, taken as a whole, shall
have occurred since March 31, 1997.
5.07 Litigation. Except as set forth on Schedule 6.04, on the
Initial Borrowing Date, there shall be no actions, suits or proceedings
pending or threatened (a) with respect to this Agreement or any other
Document or (b) which the Administrative Agent or the Banks shall
determine could reasonably be expected to (i) have a Material Adverse
Effect or (ii) have a material adverse effect on the Transaction, the
rights or remedies of the Banks or the Administrative Agent hereunder or
under any other Credit Document or on the ability of any Credit Party to
perform its respective obligations to the Banks or the Administrative
Agent hereunder or under any other Credit Document.
5.08 Approvals. On or prior to the Initial Borrowing Date,
all necessary governmental (domestic and foreign) and third party
approvals in connection with the Transaction, the transactions
contemplated by the Documents and otherwise referred to herein or therein
shall have been obtained and remain in effect (other than any such
approvals with respect to the Recapitalization which the Company
reasonably believes both individually and in the aggregate are not
material to the operations of the Company and its Subsidiaries taken as a
whole), and all applicable waiting periods shall have expired without any
action being taken by any competent authority which restrains, prevents
or imposes materially adverse conditions upon the consummation of the
Transaction, the transactions contemplated by the Documents and otherwise
referred to herein or therein. Additionally, there shall not exist any
judgment, order, injunction or other restraint issued or filed or a
hearing seeking injunctive relief or other restraint pending or notified
prohibiting or imposing materially adverse conditions upon the
consummation of the Transaction or the making of Loans or the issuance of
the Letters of Credit.
5.09 Consummation of the Transaction. (a) On the Initial
Borrowing Date, the Recapitalization shall have been consummated in
accordance with the Recapitalization Documents and all applicable laws,
and each of the conditions precedent to the consummation of the
Recapitalization (including, without limitation, the accuracy in all
material respects of the representations and warranties contained in the
Recapitalization Agreement) shall have been satisfied and not waived,
except with the consent of the Administrative Agent and the Banks, to the
satisfaction of the Administrative Agent and the Banks.
(b) On or prior to the Initial Borrowing Date (i) the Company
shall have received at least $400,000,000 of gross cash proceeds from the
sale or issuance of the Senior Subordinated Notes and the Banks shall
have received complete and correct copies of all documents executed and
delivered in connection with such sale and issuance or borrowing, as the
case may be, each of which shall be in full force and effect and in form
and substance reasonably satisfactory to the Administrative Agent and the
Banks (including but not limited to terms and provisions with respect to
the interest rate, fees, maturity, subordination, covenants, events of
default and remedies) and (ii) the Company shall have received at least
$295,000,000 of gross cash proceeds from the Equity Financing.
(c) On or prior to the Initial Borrowing Date, the Credit
Parties shall have repaid in full the principal of all loans outstanding,
interest thereon and other amounts due and payable under the Existing
Loan Agreement and under each other agreement related thereto, and the
Administrative Agent shall have received duly executed documentation
either evidencing or necessary for (i) the termination of the Existing
Loan Agreement and each other agreement related thereto, (ii) the
cancelation of all commitments thereunder and (iii) the termination of
all related agreements and guarantees and security interests granted by
any Credit Party or any Subsidiary or any other person in connection
therewith and the discharge of all obligations or interests thereunder.
After giving effect to the Transaction, neither the Company nor any of
its Subsidiaries shall have outstanding any shares of preferred stock
(excluding preferred stock owned by the Company or its Subsidiaries) or
any Indebtedness, other than (i) Indebtedness incurred under the Credit
Documents, (ii) the Senior Subordinated Notes, (iii) the Preferred Stock,
(iv) the Existing Senior Notes and (v) other indebtedness permitted under
Section 8.04.
(d) On or prior to the Initial Borrowing Date, there shall
have been delivered to the Administrative Agent true and correct copies
of all Documents entered into on or prior to such date in connection with
the Transaction, and all of the terms and conditions of such Documents,
as well as the structure of the Transaction and the ownership interests
in MergerCo and the Company prior to and after giving effect to the
Transaction, shall be in form and substance satisfactory to the Agents
and the Banks (it being acknowledged that the terms and conditions of the
Recapitalization Agreement as in effect on the date of execution of this
Agreement is satisfactory to the Agents).
(e) INTENTIONALLY OMITTED
(f) On the Initial Borrowing Date, the Agents shall have
received evidence in form, scope and substance reasonably satisfactory to
them that the matters set forth in this Section 5.09 have been satisfied
on such date.
(g) The initial closing under the Receivables Purchase
Agreement, the Receivables Transfer Agreement and the Asset Purchase
Agreement shall have been consummated and the Company shall have received
not less than $145,000,000 as consideration for the initial sale of
receivables thereunder.
5.10 Security Documents. (a) On the Initial Borrowing Date
the Company and each domestic Material Subsidiary shall have duly
authorized, executed and delivered a Pledge Agreement in the form of
Exhibit F-1 and the U.K. Holding Company shall have duly authorized,
executed and delivered a Pledge Agreement in the form of Exhibit F-2
(collectively, as modified, amended or supplemented from time to time in
accordance with the terms thereof and hereof, the "Pledge Agreement") and
shall have delivered to the Collateral Agent, as pledgee thereunder, all
of the Pledged Securities referred to therein, endorsed in blank in the
case of promissory notes or accompanied by executed and undated stock
powers in the case of capital stock, and the Pledge Agreement shall be in
full force and effect.
(b) On the Initial Borrowing Date, the Company and each
domestic Material Subsidiary shall have duly authorized, executed and
delivered a Security Agreement in the form of Exhibit G (as modified,
amended or supplemented from time to time in accordance, with the terms
thereof and hereof, the "Security Agreement") covering all of the
Security Agreement Collateral, together with:
(A) executed copies of Financing Statements (Form UCC-1) or
appropriate local equivalent in appropriate form for filing under
the UCC or appropriate local equivalent of each jurisdiction as may
be necessary to perfect the security interests purported to be
created by the Security Agreement;
(B) certified copies of Requests for Information or Copies
(Form UCC- 11), or equivalent reports, each of a recent date
listing all effective financing statements that name MergerCo, the
Company or any of their Domestic Subsidiaries as debtor and that
are filed in the jurisdictions referred to in clause (A) above,
together with copies of such financing statements that name
MergerCo, the Company or any of their Domestic Subsidiaries as
debtor (none of which shall cover the Collateral except (x) those
with respect to which appropriate termination statements executed
by the secured lender thereunder have been delivered to the
Administrative Agent and (y) to the extent evidencing Permitted
Liens);
(C) delivery to the Collateral Agent of all other recordings
and filings of, or with respect to, the Security Agreement as may
be necessary or, in the reasonable opinion of the Collateral Agent,
desirable, to perfect the security interests purported to be
created by the Security Agreement; and
(D) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable, to perfect
the security interests purported to be created by the Security
Agreement have been taken;
and the Security Agreement shall be in full force and effect.
(c) On the Initial Borrowing Date, (i) the Company and each
of the domestic Material Subsidiaries, if any, other than the Receivables
Subsidiary, shall have duly authorized, executed and delivered a Guaranty
in the form of Exhibit H (as modified, amended or supplemented from time
to time in accordance with the terms thereof and hereof, the "Guaranty"),
and (ii) the Company and each of its domestic Material Subsidiaries, if
any, other than the Receivables Subsidiary, shall have duly authorized,
executed and delivered an Indemnity, Subrogation and Contribution
Agreement in the form of Exhibit L (as modified, amended or supplemented
from time to time in accordance with the terms thereof and hereof, the
"Indemnity, Subrogation and Contribution Agreement").
5.11 Fees and Expenses. The aggregate amount of all fees and
expenses to be paid in connection with the Transaction shall not exceed
$90,000,000.
5.12 Mortgages; Title Insurance. (a) On the Initial Borrowing
Date, the Collateral Agent shall have received fully executed
counterparts of deeds of trust, mortgages and similar documents in each
case in form and substance satisfactory to the Collateral Agent (as
amended, modified or supplemented from time to time in accordance with
the terms thereof and hereof, each a "Mortgage" and, collectively, the
"Mortgages") with respect to each of the Mortgaged Properties, and
arrangements reasonably satisfactory to the Collateral Agent shall be in
place to provide that counterparts of such Mortgages shall be recorded on
the Initial Borrowing Date in all places to the extent necessary or
desirable, in the judgment of the Collateral Agent, effectively to create
a valid and enforceable first priority mortgage Lien, subject only to
Permitted Encumbrances, on each such Mortgaged Property in favor of the
Collateral Agent (or such other trustee as may be required or desired
under local law) for the benefit of the Secured Creditors and, to the
extent required under the Existing Senior Notes Indenture, the holders of
the Existing Senior Notes.
(b) On the Initial Borrowing Date, the Collateral Agent shall
have received mortgagee title insurance policies (or binding commitments
to issue such title insurance policies) issued by title insurers
reasonably satisfactory to the Collateral Agent (the "Mortgage Policies")
in amounts reasonably satisfactory to the Collateral Agent and assuring
the Collateral Agent that the Mortgages are valid and enforceable first
priority mortgage Liens on the respective Mortgaged Properties, free and
clear of all defects and encumbrances except Permitted Encumbrances. Such
Mortgage Policies shall be in form and substance reasonably satisfactory
to the Collateral Agent and (i) shall include (to the extent available in
the respective jurisdiction of each Mortgaged Property) an endorsement
for future advances under this Agreement, the Notes and the Mortgages,
and for such other matters that the Collateral Agent in its discretion
may reasonably request, (ii) shall not include an exception for
mechanics' liens, and (iii) shall provide for affirmative insurance and
such reinsurance (including direct access agreements) as the Collateral
Agent in its discretion may reasonably request.
(c) On the Initial Borrowing Date (and to the extent deemed
necessary by the Collateral Agent), the Collateral Agent shall have
received surveys in form and substance reasonably satisfactory to the
Collateral Agent of each Mortgaged Property designated as "owned" on
Schedule 6.20, dated a recent date reasonably acceptable to the
Collateral Agent, certified in a manner reasonably satisfactory to the
Collateral Agent by a licensed professional surveyor reasonably
satisfactory to the Collateral Agent. At the time of the delivery of such
surveys for such Mortgaged Properties, the Mortgage Policies with respect
to such Mortgaged Properties shall be amended in a manner reasonably
satisfactory to the Collateral Agent to remove therefrom any "survey
exception" noted therein or cause the title company providing such
Mortgage Policies to insure over the same in a manner reasonably
satisfactory to the Collateral Agent.
5.13 Existing Indebtedness Agreements; Shareholders'
Agreements; Management Agreements; Tax Allocation Agreements. On or prior
to the Initial Borrowing Date, there shall have been delivered to the
Administrative Agent copies, certified as true and correct by an
appropriate officer of the Company, of:
(a) all agreements evidencing or relating to the Existing
Indebtedness that are to remain in effect after giving effect to
the consummation of the Transaction (collectively, the "Existing
Indebtedness Agreements");
(b) all agreements entered into by MergerCo, the Company or
any of their Subsidiaries governing the terms and relative rights
of its capital stock, and any agreements entered into by
shareholders relating to any such entity with respect to their
capital stock, in each case that are to remain in effect after
giving effect to the consummation of the Transaction (collectively,
the "Shareholders' Agreements");
(c) any material agreements (or the forms thereof) with
members of, or with respect to, the management of the Company or
any of its Subsidiaries that are to remain in effect after giving
effect to the consummation of the Transaction (collectively, the
"Management Agreements"); and
(d) any tax sharing or tax allocation agreements entered
into by the Company or any of its Subsidiaries (collectively, the
"Tax Allocation Agreements");
all of which Existing Indebtedness Agreements, Shareholders' Agreements,
Management Agreements and Tax Allocation Agreements shall be in form and
substance reasonably satisfactory to the Administrative Agent and shall
be in full force and effect on the Initial Borrowing Date.
5.14 Solvency Opinions; Evidence of Insurance. On the Initial
Borrowing Date, the Administrative Agent shall have received:
(a) a solvency opinion from Valuation Research Corporation,
addressed to the Agents and each of the Banks and dated the Initial
Borrowing Date and supporting the conclusions that, after giving
effect to the Transaction and the incurrence of all financings
contemplated herein, the Company (on a stand alone basis) and the
Company and its Subsidiaries (on a consolidated basis) are not
insolvent and will not be rendered insolvent by the indebtedness
incurred in connection herewith, will not be left with unreasonably
small capital with which to engage in their respective businesses
and will not have incurred debts beyond their ability to pay such
debts as they mature and become due; and
(b) evidence of insurance complying with the requirements of
Section 7.03 for the business and properties of the Company and its
Subsidiaries, in scope, form and substance reasonably satisfactory
to the Administrative Agent and the Banks and naming the Collateral
Agent as an additional insured and/or loss payee, and stating that
such insurance shall not be canceled or revised without at least 30
days' (or 10 days' in the case of non-payment of premium) prior
written notice by the insurer to the Collateral Agent.
5.15 Pro Forma Balance Sheet. On or prior to the Initial
Borrowing Date, there shall have been delivered to the Administrative
Agent, an unaudited pro forma consolidated balance sheet of the Company
and its Subsidiaries dated as of the date of the most recently available
quarterly financial statements after giving effect to the Transaction and
prepared in accordance with GAAP and the Banks shall be satisfied that
such balance sheet is not materially inconsistent with the projections
previously furnished to the Banks.
5.16 Existing Indebtedness. On the Initial Borrowing Date and
after giving effect to the Transaction and the Loans incurred on the
Initial Borrowing Date, neither the Company nor any of its Subsidiaries
shall have any preferred stock or Indebtedness (including any letters of
credit) outstanding except for (a) the Loans, and Letters of Credit
hereunder, (b) the Senior Subordinated Notes and (c) the Indebtedness
shown on Schedule 6.23 or otherwise permitted pursuant to Section 8.04.
On and as of the Initial Borrowing Date, the Administrative Agent and the
Banks shall be satisfied with the terms and conditions of any preferred
stock and the amount of and the terms and conditions of all Existing
Indebtedness.
5.17 Payment of Fees. On the Initial Borrowing Date, all
costs, fees and expenses, and all other compensation contemplated by this
Agreement, due to the Agents or the Banks (including, without limitation,
legal fees and expenses) shall have been paid to the extent due.
5.18 Notice of Borrowing; Letter of Credit Request. The
Administrative Agent shall have received a Notice of Borrowing satisfying
the requirements of Section 1.03 (or in the case of B/A Rate Loans,
satisfying the requirements of Annex III) with respect to each incurrence
of Loans; and the Administrative Agent and the Letter of Credit Issuer
shall have received a Letter of Credit Request satisfying the
requirements of Section 2.02 with respect to each issuance of a Letter of
Credit (other than the Existing Letters of Credit).
5.19 Equity Financing. On or prior to the Initial Borrowing
Date, the Equity Financing shall have been consummated. In connection
with the Equity Financing, the Investors, the largest of which will be
THL Affiliates, shall own and control not less than a majority of the
voting power of the capital stock of MergerCo and the Company and THL
Affiliates shall have an economic interest of not less than $185,000,000
therein.
5.20 Borrowings by Subsidiary Borrowers. The obligation of
any Bank to make a Loan to any Subsidiary Borrower is subject to the
satisfaction of the following further conditions:
(a) receipt by the Administrative Agent of one or more
opinions of counsel for such Subsidiary Borrower reasonably
acceptable to the Administrative Agent, which taken together cover
the matters set forth in Exhibit R hereto; and
(b) receipt by the Administrative Agent of all documents
which it may reasonably request relating to the existence of such
Subsidiary Borrower, the corporate authority for and the validity
of the Election to Participate of such Subsidiary Borrower, this
Agreement and the Notes of such Subsidiary Borrower, and any other
matters relevant thereto, all in form and substance reasonably
satisfactory to the Administrative Agent.
The acceptance of the benefits of each Credit Event shall
constitute a representation and warranty by each Credit Party to the
Administrative Agent and each of the Banks that all of the applicable
conditions specified above are satisfied as of the date of such Credit
Event. All of the certificates, legal opinions and other documents and
papers referred to in this Section 5, unless otherwise specified, shall
be delivered to the Administrative Agent at its Notice Office for the
account of each of the Banks and, except for the Notes, in sufficient
counterparts for each of the Banks and shall be satisfactory in form and
substance to the Administrative Agent and the Banks.
SECTION 6. Representations, Warranties and Agreements. In
order to induce the Banks to enter into this Agreement and to make the
Loans and issue and/or participate in the Letters of Credit provided for
herein, each of the Borrowers makes the following representations,
warranties and agreements with the Banks in each case after giving effect
to the Transaction, all of which shall survive the execution and delivery
of this Agreement, the making of the Loans and the issuance of the
Letters of Credit (with the occurrence of each Credit Event being deemed
to constitute a representation and warranty that the matters specified in
this Section 6 are true and correct in all material respects on and as of
the date of each such Credit Event, unless stated to relate to a specific
earlier date, in which case all representations and warranties
specifically relating to an earlier date shall be true and correct in all
material respects as of such earlier date):
6.01 Corporate Status. Each of the Borrowers and each of the
Company's Material Subsidiaries (i) is a duly organized and validly
existing corporation (or, in the case of any Material Subsidiary that is
not a corporation, other form of legal entity) in good standing under the
laws of the jurisdiction of its organization, (ii) has the corporate or
other power and authority to own its property and assets and to transact
the business in which it is engaged and presently proposes to engage and
(iii) is duly qualified and is authorized to do business and is in good
standing in all jurisdictions where it is required to be so qualified and
where the failure to be so qualified would have a Material Adverse
Effect.
6.02 Corporate Power and Authority. Each Credit Party has the
corporate or other power and authority to execute, deliver and carry out
the terms and provisions of the Credit Documents to which it is a party
and has taken all necessary corporate or other action to authorize the
execution, delivery and performance of the Credit Documents to which it
is a party. Each Credit Party has duly executed and delivered each
Document to which it is a party and each such Document constitutes the
legal, valid and binding obligation of such Credit Party enforceable in
accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is
sought in equity or at law).
6.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Documents to which it is a party
nor compliance by any Credit Party with the terms and provisions thereof,
nor the consummation of the transactions contemplated herein or therein,
(i) will materially contravene any applicable provision of any law,
statute, rule or regulation, or any order, writ, injunction or decree of
any court or governmental instrumentality, (ii) will materially conflict
or be inconsistent with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a default under, or
(other than pursuant to the Security Documents) result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any
of the property or assets of the Company or any of its Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, loan
agreement, credit agreement or any other material agreement or instrument
to which the Company or any of its Subsidiaries is a party or by which it
or any of its property or assets are bound or to which it may be subject,
except for such conflicts, inconsistencies, breaches or defaults which,
either individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect, or (iii) will violate any provision of
the Certificate of Incorporation or By-Laws of the Company or any of its
Subsidiaries.
6.04 Litigation. Except as set forth on Schedule 6.04, there
are no actions, suits or proceedings pending or, to the knowledge of the
Company or any of its Subsidiaries, threatened, with respect to the
Company or any of its Subsidiaries (i) that are likely to have a Material
Adverse Effect or (ii) that could reasonably be expected to have a
material adverse effect on the rights or remedies of any Agent or the
Banks or on the ability of any Credit Party to perform its respective
obligations to the Agents or the Banks hereunder and under the other
Credit Documents to which it is, or will be, a party. Additionally, there
does not exist any judgment, order or injunction prohibiting or imposing
material adverse conditions upon the occurrence of any Credit Event.
6.05 Use of Proceeds; Margin Regulations. (a) The proceeds of
all Term Loans incurred on the Initial Borrowing Date, together with the
proceeds from the initial sale of receivables under the Permitted
Receivables Transaction, shall be utilized directly or indirectly (i) to
finance a portion of the cash consideration to be paid in connection with
the Recapitalization, (ii) to pay the fees and expenses incurred in
connection therewith and (iii) to refinance existing Indebtedness of
Fisher and its Subsidiaries in an amount not to exceed $125,000,000;
provided that the proceeds of the U.K. A Term Loans shall be utilized
solely to repay existing Indebtedness of the U.K. Borrower as provided in
clause (iii) above.
(b) The proceeds of all Loans (other than those referred to
in paragraph (a) above) shall be utilized for working capital purposes
and other general corporate purposes of the Company and its Subsidiaries;
provided that the proceeds of Borrowings of Local Currency Loans by the
U.K. Borrower shall be utilized for working capital purposes and other
general corporate purposes of the U.K. Borrower. Letters of Credit shall
be utilized solely in the ordinary course of business of the Company and
its Subsidiaries.
(c) Neither the making of any Loan, nor the use of the
proceeds thereof, will violate the provisions of Regulation G, T, U or X
of the Board and no part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock.
6.06 Governmental Approvals. All orders, consents, approvals,
licenses, authorizations, or validations of, or filings, recordings or
registrations with, or exemptions by, any foreign or domestic
governmental or public body or authority, or any subdivision thereof,
which may be required to authorize (i) the execution, delivery and
performance by the Company or any Subsidiary of any Document or (ii) the
legality, validity, binding effect or enforceability of any Document have
been obtained or made (or have been prepared to be obtained or made).
6.07 Investment Company Act. Neither the Company nor any of
its Subsidiaries is an "investment company" or a company "controlled" by
an "investment company," within the meaning of the Investment Company Act
of 1940, as amended.
6.08 Public Utility Holding Company Act. Neither the Company
nor any of its Subsidiaries is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company," within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
6.09 True and Complete Disclosure. All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on
behalf of MergerCo, the Company or any of its Subsidiaries in writing to
any Agent or any Bank (including, without limitation, all information
contained in the Documents) for purposes of or in connection with this
Agreement or any transaction contemplated herein is, and all other such
factual information (taken as a whole) hereafter furnished by or on
behalf of any such Persons in writing to any Agent or any Bank will be,
true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state
any material fact necessary to make such information (taken as a whole)
not misleading at such time in light of the circumstances under which
such information was provided; provided that, with respect to projected
financial information, the Company represents only that such information
was prepared in good faith based on assumptions believed to be reasonable
at the time.
6.10 Financial Condition, Financial Statements. (a) On and as
of the Initial Borrowing Date, on a pro forma basis after giving effect
to the Transaction and to all Indebtedness incurred, and to be incurred,
and Liens created, and to be created, by each Credit Party in connection
therewith, with respect to the Company and its Subsidiaries (on a
consolidated basis) and of the Company (on a stand alone basis) (x) the
sum of the assets, at a fair valuation, of each of the Company and its
Subsidiaries (on a consolidated basis) and of the Company (on a stand
alone basis) will exceed its debts, (y) it has not incurred nor intended
to, nor believes that it will, incur debts beyond its ability to pay such
debts as such debts mature and (z) it will have sufficient capital with
which to conduct its business. For purposes of this Section 6.10, "debt"
means any liability on a claim, and "claim" means (i) right to payment
whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured or unsecured.
(b) The consolidated balance sheets of Fisher and its
Subsidiaries at each of December 31, 1996 and September 30, 1997 and the
related consolidated statements of income, stockholders' equity and cash
flows of Fisher and its Subsidiaries for the fiscal year or nine-month
period, as the case may be, ended as of said dates (which December 31,
1996 financial statements have been audited by Deloitte & Touche LLP and
which September 30, 1997 financial statements have been certified by the
chief financial officer of the Company), copies of which have heretofore
been furnished to each Bank, are true and correct in all material
respects and present fairly in all material respects the combined
financial position of Fisher and its Subsidiaries at the dates of said
statements and the results for the periods covered thereby. All such
financial statements have been prepared in accordance with GAAP
consistently applied except to the extent provided in the notes to said
financial statements and subject, in the case of the September 30, 1997
statements, to normal year-end audit adjustments and the absence of
footnotes.
(c) Since December 31, 1996, except as set forth in the
Disclosure Schedule to the Recapitalization Agreement or permitted or
contemplated by the Recapitalization Agreement or publicly disclosed as
of the Initial Borrowing Date, nothing has occurred that has had or could
reasonably be expected to have a Material Adverse Effect.
(d) Except as fully reflected in the financial statements
described in Sections 5.15 and 6.10(b) and the Indebtedness incurred
under this Agreement, there were as of the Initial Borrowing Date (and
after giving effect to any Loans made on such date), no liabilities or
obligations (excluding current obligations incurred in the ordinary
course of business) with respect to the Company or any of its
Subsidiaries (whether absolute, accrued, contingent or otherwise and
whether or not due), and neither the Company nor any of its Subsidiaries
know of any basis for the assertion against the Company or any of its
Subsidiaries of any such liability or obligation, which, either
individually or in the aggregate, are or would be reasonably likely to
have, a Material Adverse Effect.
(e) The financial projections set forth on Schedule 6.10 (the
"Projections"), which include the projected results of the Company and
its Subsidiaries for the 5 years ended after the Initial Borrowing Date,
are based on good faith estimates and assumptions made by the management
of the Company believed reasonable at the time of execution of this
Agreement, and on the Initial Borrowing Date such management believed
that the Projections were reasonable and attainable, it being recognized
by the Agents and the Banks, however, that projections as to future
events are not to be viewed as facts and that the actual results during
the period or periods covered by the Projections probably will differ
from the projected results.
6.11 Security Interests. On and after the Initial Borrowing
Date, each of the Security Documents creates (or after the execution and
delivery thereof will create), as security for the Obligations, a valid
and enforceable (and, after being filed and recorded, perfected) security
interest in and Lien on all of the Collateral subject thereto, superior
to and prior to the rights of all third Persons, and subject to no other
Liens (except that the Security Agreement Collateral, the Mortgaged
Properties and the Collateral covered by the Additional Security
Documents may be subject to Permitted Liens relating thereto), in favor
of the Collateral Agent. No filings or recordings are required in order
to perfect the security interests created under any Security Document
except for filings or recordings required in connection with any such
Security Document which will be prepared for filing and delivered to the
Collateral Agent or which shall have been made on or prior to the Initial
Borrowing Date as contemplated by Section 5.10(b) or on or prior to the
execution and delivery thereof as contemplated by Sections 7.11, 7.12 and
8.15.
6.12 Representations and Warranties in Other Documents. All
representations and warranties of the Credit Parties set forth in the
other Documents were true and correct in all material respects as of the
time such representations and warranties were made and shall be true and
correct in all material respects as of the Initial Borrowing Date as if
such representations and warranties were made on and as of such date,
unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date.
6.13 Transaction. At the time of consummation thereof, the
Transaction shall have been consummated in accordance with the terms of
the respective Documents and all applicable laws. At the time of
consummation thereof, all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required to make or consummate
the Transaction have been obtained, given, filed or taken or waived and
are or will be in full force and effect (or effective judicial relief
with respect thereto has been obtained) except where the failure to
obtain, give, file, or take would not reasonably be expected to have a
Material Adverse Effect. All applicable waiting periods with respect
thereto have or, prior to the time when required, will have, expired
without, in all such cases, any action being taken by any competent
authority which restrains, prevents, or imposes material adverse
conditions upon the Transaction. Additionally, there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon the Transaction, or the occurrence of any Credit Event or
the performance by any Credit Party of their obligations under the
Documents and all applicable laws. The Transaction has been consummated
in accordance with the respective Documents and all applicable laws.
6.14 Compliance with ERISA. (a) Except for any noncompliance,
liabilities and obligations that would not individually or in the
aggregate have a Material Adverse Effect: each Plan is in substantial
compliance with ERISA and the Code; no Reportable Event has occurred with
respect to a Plan during the five year period prior to the date on which
this representation is made or deemed made with respect to any Plan; no
Multiemployer Plan is insolvent or in reorganization; no Plan has an
Unfunded Current Liability; no Plan has an accumulated or waived funding
deficiency, has permitted decreases in its funding standard account or
has applied for a waiver of the minimum funding standard or an extension
of any amortization period within the meaning of Section 412 of the Code
during the five year period prior to the date on which this
representation is made or deemed made with respect to any Plan; all
contributions required to be made with respect to each Plan,
Multiemployer Plan and Foreign Pension Plan have been timely made;
neither the Company nor any of its Subsidiaries nor any ERISA Affiliate
has incurred any material liability to or on account of a Plan pursuant
to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204
or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the Code or
reasonably expects to incur any material liability (including any
indirect, contingent or secondary liability) under any of the foregoing
Sections with respect to any Plan (other than liabilities of any ERISA
Affiliate which could not, by operation of law or otherwise, become a
liability of the Company or any of its Subsidiaries); no proceedings have
been instituted to terminate, or to appoint a trustee to administer, any
Plan; no condition exists which presents a material risk to the Company
or any of its Subsidiaries or any ERISA Affiliate of incurring a
liability to or on account of a Plan pursuant to the foregoing provisions
of ERISA and the Code; using actuarial assumptions and computation
methods consistent with subpart 1 of subtitle E of Title IV of ERISA, the
aggregate liabilities of the Borrower and its Subsidiaries and its ERISA
Affiliates to all Plans which are multiemployer plans (as defined in
Section 4001(a)(3) of ERISA) in the event of a complete withdrawal
therefrom, as of the close of the most recent fiscal year of each such
Plan ended prior to the date of the most recent Credit Event, would not
result in a Material Adverse Effect; no lien imposed under the Code or
ERISA on the assets of the Company or any of its Subsidiaries or any
ERISA Affiliate exists or is likely to arise on account of any Plan; and
the Company and its Subsidiaries do not maintain or contribute to any
Retiree Welfare Plan.
(b) Except for any noncompliance, liabilities and obligations
that would not individually or in the aggregate have a Material Adverse
Effect: (i) any Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all
applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable regulatory
authorities and (ii) the Company and all of its Subsidiaries have
performed all obligations to be performed in connection with any Foreign
Pension Plan and any funding agreements therefor in a timely fashion.
Neither the Company nor any of its Subsidiaries has incurred any material
obligation in connection with the termination of or withdrawal from any
Foreign Pension Plan. The present value of the accrued benefit
liabilities (whether or not vested) under any Foreign Pension Plan which
is funded, determined as of the end of the most recently ended fiscal
year of the Company on the basis of actuarial assumptions, each of which
is reasonable, did not exceed the current value of the assets of such
Foreign Pension Plan, and for any Foreign Pension Plan which is not
funded, the obligations of such Foreign Pension Plan are properly
accrued. To the extent required by applicable law, all Foreign Pension
Plans are fully funded (using actuarial methods and assumptions which are
consistent with valuations last filed with applicable Governmental
Authorities and which are consistent with generally accepted actuarial
principles), except for any under-funding which could not reasonably be
expected to have a Material Adverse Effect.
6.15 Capitalization. On the Initial Borrowing Date and after
giving effect to the Transaction and the other transactions contemplated
hereby, the authorized and issued capital stock of the Company shall be
as set forth on Schedule 6.15. All outstanding shares of capital stock of
the Company have been duly and validly issued, and are fully paid and
nonassessable. On the Initial Borrowing Date and after giving effect to
the Transaction, the Company does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any
rights to subscribe for or to purchase, or any options for the purchase
of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character
relating to, its capital stock, except as set forth on Schedule 6.15.
6.16 Subsidiaries. (a) Prior to the consummation of the
Transaction (i) MergerCo has no direct Subsidiaries and (ii) the Company
has no Subsidiaries other than as set forth on Schedule 6.16; and
(b) On and as of the Initial Borrowing Date and after giving
effect to the consummation of the Transaction, MergerCo shall have been
merged into the Company in accordance with the Recapitalization Documents
and the Company shall have no Subsidiaries other than the Subsidiaries
listed on Schedule 6.16 as Subsidiaries remaining after the Initial
Borrowing Date. Schedule 6.16 correctly sets forth, as of the Initial
Borrowing Date and after giving effect to the Transaction, the percentage
ownership (direct and indirect) of the Company in each class of capital
stock of each of its Subsidiaries and also identifies the direct owner
thereof and whether such Subsidiary is a Domestic Subsidiary or Foreign
Subsidiary and whether such Subsidiary is a Material Subsidiary.
6.17 Intellectual Property. Each of the Company and each of
its Subsidiaries owns or holds, free from Liens, a valid license or
otherwise has the right to use all the patents, trademarks, service
marks, trade names, technology, know-how and formulas or other rights
with respect to the foregoing that are used in the operation of the
business of the Company and each of its Subsidiaries as presently
conducted except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
6.18 Compliance with Statutes, etc. The Company and each of
its Subsidiaries is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by,
all governmental bodies, domestic or foreign, in respect of the conduct
of its business and the ownership of its property (including compliance
with all applicable Environmental Laws with respect to any Real Property
or governing its business and the requirements of any permits issued
under such Environmental Laws with respect to any such Real Property or
the operations of the Company or any of its Subsidiaries), except such
non-compliance as is not likely to, individually or in the aggregate,
have a Material Adverse Effect.
6.19 Environmental Matters. (a) Each of the Company and each
of its Subsidiaries has complied with, and on the date of each Credit
Event is in compliance with, all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws. There
are no pending or, to the best knowledge of the Company, past or
threatened Environmental Claims against the Company or any of its
Subsidiaries or any Real Property owned or operated by the Company or any
of its Subsidiaries. There are no facts, circumstances, conditions or
occurrences on any Real Property owned or operated by the Company or any
of its Subsidiaries or, to the best knowledge of the Company, on any
property adjoining or in the vicinity of any such Real Property that
would reasonably be expected (i) to form the basis of an Environmental
Claim against the Company or any of its Subsidiaries or any such Real
Property or (ii) to cause any such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such
Real Property by the Company or any of its Subsidiaries under any
applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated,
treated or stored on, or transported to or from, any Real Property owned
or operated by the Company or any of its Subsidiaries where such
generation, use, treatment or storage has violated any Environmental Law.
Hazardous Materials have not at any time been Released on or from any
Real Property owned or operated by the Company or any of its Subsidiaries
in a manner that have formed or would reasonably be expected to form the
basis for an Environmental Claim against the Company or any of its
Subsidiaries.
(c) Notwithstanding anything to the contrary in this Section
6.19, the representations made in this Section 6.19 shall only be untrue
if the aggregate effect of all conditions, failures, noncompliances,
Environmental Claims, Releases and presence of underground storage tanks,
in each case of the types described above, would reasonably be expected
to have a Material Adverse Effect.
(d) The representations and warranties in this Section 6.19
and Section 6.18 are the sole and exclusive representations and
warranties in this Agreement relating
to environmental matters.
6.20 Properties. All Real Property owned by the Company or
any of its Subsidiaries and all material Leaseholds leased by the
Borrower or any of its Subsidiaries, in each case as of the Initial
Borrowing Date and after giving effect to the Transaction, and the nature
of the interest therein, is correctly set forth in Schedule 6.20. Each of
the Company and each of its Subsidiaries has good and marketable title
to, or a validly subsisting leasehold interest in, all material
properties owned or leased by it, including all Real Property reflected
in Schedule 6.20 or in the financial statements referred to in Section
6.10(b) (in each case, except as disposed of after the Initial Borrowing
Date in accordance with this Agreement), free and clear of all Liens,
other than Permitted Liens.
6.21 Labor Relations. Neither the Company nor any of its
Subsidiaries is engaged in any unfair labor practice that could
reasonably be expected to have a Material Adverse Effect. There is (i) no
unfair labor practice complaint pending against the Company or any of its
Subsidiaries or, to the best knowledge of the Company, threatened against
any of them, before the National Labor Relations Board or any other
applicable Government Authority, and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is
so pending against the Company or any of its Subsidiaries or, to the best
knowledge of the Company, threatened against any of them, (ii) no strike,
labor dispute, slowdown or stoppage pending against the Company or any of
its Subsidiaries or, to the best knowledge of the Company, threatened
against the Company or any of its Subsidiaries and (iii) to the best
knowledge of the Company, no union representation question existing with
respect to the employees of the Company or any of its Subsidiaries and,
to the best knowledge of the Company, no union organizing activities are
taking place, except (with respect to any matter specified in clause (i),
(ii) or (iii) above, either individually or in the aggregate) such as is
not reasonably likely to have a Material Adverse Effect.
6.22 Tax Returns and Payments. All domestic and foreign
Federal, material state, provincial and other material returns,
statements, forms and reports for taxes (the "Returns") required to be
filed by or with respect to the income, properties or operations of the
Company and/or any of its Subsidiaries have been timely filed (taking
into account all extensions of due dates) with the appropriate taxing
authority. The Returns accurately reflect all material liabilities for
taxes of the Company and its Subsidiaries for the periods covered
thereby. The Company and each of its Subsidiaries have paid all taxes
payable by them other than immaterial taxes and other taxes which are not
yet due and payable, and other than taxes contested in good faith and for
which adequate reserves have been established in accordance with GAAP.
Except as disclosed in the financial statements referred to in Section
6.10 (b) and in Schedule 3.12 of the Recapitalization Agreement, there is
no material action, suit, proceeding, investigation, audit, or claim now
pending or, to the knowledge of the Company, threatened by any authority
regarding any material taxes relating to the Company or any of its
Subsidiaries. As of the Initial Borrowing Date, and except as disclosed
in Schedule 3.12 of the Recapitalization Agreement, neither the Company
nor any of its Subsidiaries has entered into an agreement or waiver or
been requested to enter into an agreement or waiver extending any statute
of limitations relating to the payment or collection of material taxes of
the Company or any of its Subsidiaries, or is aware of any circumstances
that would cause the taxable years or other taxable periods of the
Company or any of its Subsidiaries not to be subject to the normally
applicable statute of limitations. Neither the Company nor any of its
Subsidiaries has provided, with respect to themselves or property held by
them, any consent under Section 341 of the Code. Neither the Company nor
any of its Subsidiaries has incurred, or will incur, any material tax
liability in connection with the Transaction and the other transactions
contemplated hereby.
6.23 Existing Indebtedness. Schedule 6.23 sets forth a true
and complete list of all Indebtedness of the Company and its Subsidiaries
as of the Initial Borrowing Date and which is to remain outstanding after
giving effect to the Transaction and the incurrence of Loans on such date
(excluding the Loans and the Letters of Credit, the "Existing
Indebtedness"), in each case showing the aggregate principal amount
thereof and the name of the respective borrower and any other entity
which directly or indirectly guaranteed such debt.
6.24 Outstanding Letters of Credit. Schedule 6.24 accurately
and completely describes each letter of credit outstanding immediately
prior to the Effective Date and issued for the account of the Company and
its Subsidiaries.
6.25 Senior Subordinated Notes. On and after the issuance
thereof, the subordination provisions contained in the Senior
Subordinated Note Documents are enforceable against the Company, the
respective Guarantors and the holders thereof, and all Obligations and
Guaranteed Obligations (as defined herein and in the Guaranty) are within
the definition of "Senior Indebtedness" or "Guarantor Senior
Indebtedness," as the case may be, included in such subordination
provisions.
SECTION 7. Affirmative Covenants. The Company hereby
covenants and agrees that as of the Effective Date and thereafter for so
long as this Agreement is in effect and until the Commitments have
terminated, no Letters of Credit (other than Letters of Credit, together
with all Fees that have accrued and will accrue thereon through the
stated termination date of such Letters of Credit, which have either been
(a) cash collateralized in a manner reasonably satisfactory to the Letter
of Credit Issuer or (b) backstopped by a letter of credit or other
security acceptable to the Letter of Credit Issuer) or Notes are
outstanding and the Loans and Unpaid Drawings, together with interest,
Fees and all other Obligations (other than any indemnities described in
Section 12.13 which are not then due and payable) incurred hereunder, are
paid in full:
7.01 Information Covenants. The Company will furnish to the
Administrative Agent (with copies sufficient for each Bank):
(a) Quarterly Financial Statements. Within the earlier of (A)
50 days after the close of each quarterly accounting period in each
fiscal year of the Company or (B) one Business Day following the
filing of such quarterly financial statements with the SEC, the
consolidated balance sheet of the Company and its Subsidiaries as
at the end of such quarterly accounting period and the related
consolidated statements of income and retained earnings and of cash
flows for such quarterly accounting period and for the elapsed
portion of the fiscal year ended with the last day of such
quarterly accounting period; all of which shall be in reasonable
detail and certified by the chief financial officer or other
Authorized Officer of the Company that they fairly present in all
material respects the financial condition of the Company and its
Subsidiaries as of the dates indicated and the results of their
operations and changes in their cash flows for the periods
indicated, subject to normal year-end audit adjustments and the
absence of footnotes;
(b) Annual Financial Statements. (i) Within the earlier of
(A) 100 days after the close of each fiscal year of the Company or
(B) one Business Day following the filing of such annual financial
statements with the SEC, the consolidated balance sheet of the
Company and its Subsidiaries as at the end of such fiscal year and
the related consolidated statements of income and retained earnings
and of cash flows for such fiscal year and setting forth
comparative consolidated figures for the preceding fiscal year and
certified by Deloitte & Touche LLP or such other independent
certified public accountants of recognized national standing as
shall be reasonably acceptable to the Administrative Agent, in each
case to the effect that such statements fairly present the
financial condition of the Company and its Subsidiaries as of the
dates indicated and the results of their operations and changes in
cash flows, together with a certificate of such accounting firm
stating that in the course of its regular audit of the business of
the Company and its Subsidiaries, which audit was conducted in
accordance with generally accepted auditing standards, no Default
or Event of Default which has occurred and is continuing has come
to their attention, or if such a Default or an Event of Default has
come to their attention a statement as to the nature thereof; and
(ii) Within 100 days after the close of each fiscal year of
the Company, a schedule setting forth the calculation of
Consolidated EBITDA for such fiscal year; all of which shall be in
reasonable detail and certified by the chief financial officer or
other Authorized Officer of the Company that they fairly present
the information contained therein for the periods indicated;
(c) Officer's Certificates. At the time of the delivery of
the financial statements provided for in Section 7.01(a) and (b), a
certificate of the chief financial officer or other Authorized
Officer of the Company to the effect that no Default or Event of
Default exists or, if any Default or Event of Default does exist,
specifying the nature and extent thereof, which certificate shall
set forth the calculations required to establish whether the
Company and its Subsidiaries were in compliance with the provisions
of Sections 8.09 through and including 8.12, as at the end of such
fiscal quarter or year, as the case may be (including a schedule
setting forth the calculations with respect to compliance of such
sections, which shall be in reasonable detail and certified by the
chief financial officer or other Authorized Officer). In addition,
at the time of the delivery of the financial statements provided
for in Section 7.01(b)(i), a certificate of the chief financial
officer or other Authorized Officer of the Company setting forth
(i) the amount of, and calculations required to establish the
amount of, Excess Cash Flow for the Excess Cash Flow Period ending
on the last day of the respective fiscal year and (ii) the
calculations required to establish whether the Company was in
compliance with Section 4.02(A)(c) for the respective fiscal year;
(d) Notice of Default or Litigation. Promptly, and in any
event within three Business Days (or 10 Business Days in the case
of clause (y) below) after any officer of the Company obtains
knowledge thereof, notice of (x) the occurrence of any event which
constitutes a Default or an Event of Default, which notice shall
specify the nature thereof, the period of existence thereof and
what action the Company proposes to take with respect thereto and
(y) the commencement of, or threat of, or any significant
development in, any litigation or governmental proceeding pending
against the Company or any of its Subsidiaries (i) in which the
amount involved is $10,000,000 or more or (ii) where there is a
reasonable possibility of an adverse determination and which is
likely to have a Material Adverse Effect, or a material adverse
effect on the ability of any Credit Party to perform its respective
obligations hereunder or under any other Credit Document;
(e) Auditors' Reports. Promptly upon receipt thereof, a copy
of each final report or "management letter", if any, submitted to
the Company or any of its Subsidiaries by its independent
accountants in connection with any annual, interim or special audit
made by them of the books of the Company of any of its
Subsidiaries;
(f) Environmental Matters. Promptly after obtaining knowledge
of any of the following, written notice of:
(i) any pending or threatened material Environmental
Claim against the Company or any of its Subsidiaries or any
Real Property owned or operated by the Company or any of its
Subsidiaries that could reasonably be expected to have a
Material Adverse Effect; and
(ii) any condition or occurrence on any Real Property
owned or operated by the Company or any of its Subsidiaries
that (x) results in material noncompliance by the Company or
any of its Subsidiaries with any applicable Environmental Law
or (y) could reasonably be anticipated to form the basis of a
material Environmental Claim against the Company or any of
its Subsidiaries or any such Real Property but only where
such condition or occurrence could reasonably be expected to
have a Material Adverse Effect; and
(iii) any condition or occurrence on any Real Property
owned or operated by the Company or any of its Subsidiaries
that could reasonably be anticipated to result in any
liability under Environmental Law, but only where such
condition or occurrence could reasonably be expected to have
a Material Adverse Effect.
All such notices shall describe in reasonable detail the nature of
the Environmental Claim, investigation, condition or occurrence and
the Company's response thereto. In addition, the Company agrees to
provide the Banks with copies of all material written
communications by the Company or any of its Subsidiaries with any
Person (other than its counsel), or Governmental Authority relating
to any of the matters set forth in clauses (i)-(iii) above, and
such detailed reports relating to any of the matters set forth in
clauses (i)-(iii) above as may reasonably be requested by the
Administrative Agent or the Required Banks; and
(g) Other Information. Promptly upon transmission thereof,
copies of any filings and registrations with, and reports to, the
SEC by the Company or any of its Subsidiaries and copies of all
financial statements, proxy statements, notices and reports as the
Company or any of its Subsidiaries shall send generally to
analysts, the holders of their capital stock or of the Senior
Subordinated Notes in their capacity as such holders (in each case
to the extent not theretofore delivered to the Banks pursuant to
this Agreement) and, with reasonable promptness, such other
information or documents (financial or otherwise) as the
Administrative Agent on its own behalf or on behalf of the Required
Banks may reasonably request from time to time.
7.02 Books, Records and Inspections. The Company will, and
will cause each of its Subsidiaries to, permit, upon two Business Days'
prior notice to the chief financial officer or other Authorized Officer
of the Company (except when a Default or Event of Default has occurred
and is continuing, in which case, no notice shall be required), officers
and designated representatives of any Agent or any Bank (after notice to,
and coordination with, the Administrative Agent) (at the expense of the
applicable Agent or Bank, except when a Default or Event of Default has
occurred and is continuing, in which case the Company shall pay such
expenses), to visit and inspect any of the properties or assets of the
Company and any of its Subsidiaries in whomsoever's possession, and to
examine the books of account of the Company and any of its Subsidiaries
and discuss the affairs, finances and accounts of the Company and of any
of its Subsidiaries with, and be advised as to the same by, their
officers and independent accountants, all at such reasonable times and to
such reasonable extent as any Agent or any Bank may desire, provided that
all such visits and inspections by each Bank shall be limited to one such
inspection and visit per Bank in each year (except when a Default or
Event of Default has occurred and is continuing, in which case there
shall be no limitations on such inspections and visits).
7.03 Insurance. The Company will, and will cause each of its
Subsidiaries to, at all times from and after the Effective Date maintain
in full force and effect insurance with reputable and solvent insurance
carriers in such amounts, covering such risks and liabilities and with
such deductibles or self-insured retentions as are in accordance with
normal industry practice, and shall furnish to the Administrative Agent
upon written request full information as to the insurance so carried.
7.04 Payment of Taxes. The Company and each of its
Subsidiaries will file all income tax returns and other material tax
returns required to be filed by it, and pay and discharge all tax
liabilities reflected thereon, and will cause each of its Subsidiaries to
pay and discharge, all other taxes, assessments and governmental charges
or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, prior to the date on which material penalties
attach thereto, and all lawful claims for sums that have become due and
payable which, if unpaid, might become a Lien not otherwise permitted
under Section 8.03(a) or charge upon any properties of the Company or any
of its Subsidiaries; provided that neither the Company nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge,
levy or claim (i) which is being contested in good faith and by proper
proceedings if it has maintained adequate reserves with respect thereto
in accordance with GAAP, or (ii) where the failure to pay such tax,
assessment, charge, levy or claim would not result in a Material Adverse
Effect.
7.05 Corporate Franchises. The Company will do, and will
cause each of its Material Subsidiaries to do, or cause to be done, all
things necessary to preserve and keep in full force and effect (a) its
existence and (b) except where the failure to do so would not,
individually or in the aggregate, have a Material Adverse Effect or a
material adverse effect on the ability of any Credit Party to perform its
obligations under any Credit Document to which it is a party or its
rights, franchises and authority to do business; provided, however, that
any transaction permitted by Section 8.02 will not constitute a breach of
this Section 7.05.
7.06 Compliance with Statutes, etc. The Company will, and
will cause each of its Subsidiaries to, comply with all applicable
statutes, regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of
the conduct of its business and the ownership of its property (including
applicable statutes, regulations, orders and restrictions relating to
environmental standards and controls) except for such noncompliance as
would not have a Material Adverse Effect or a material adverse effect on
the ability of any Credit Party to perform its obligations under any
Credit Document to which it is a party.
7.07 Compliance with Environmental Laws. (a) The Company will
pay, and will cause each of its Subsidiaries to pay, all costs and
expenses incurred by it in keeping in compliance with all Environmental
Laws, and will keep or cause to be kept all Real Properties owned or
operated by the Company or any of its Subsidiaries free and clear of any
Liens imposed pursuant to such Environmental Laws; and (b) neither the
Company nor any of its Subsidiaries will generate, use, treat, store,
release or dispose of, or permit the generation, use, treatment, storage,
release or disposal of, Hazardous Materials on any Real Property owned or
operated by the Company or any of its Subsidiaries, or transport or
permit the transportation of Hazardous Materials to or from any such Real
Property, unless the failure to comply with the requirements specified in
clause (a) or (b) above, either individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect. If the
Company or any of its Subsidiaries, or any tenant or occupant of any Real
Property owned or operated by the Company or any of its Subsidiaries,
cause or permit any intentional or unintentional act or omission
resulting in the presence or Release of any Hazardous Material (except in
compliance with applicable Environmental Laws), the Company agrees to
undertake, and/or to cause any of its Subsidiaries, tenants or occupants
to undertake, without any expense to the Banks, any clean up, removal,
remedial or other action required pursuant to Environmental Laws to
remove and clean up any Hazardous Materials from any Real Property except
where the failure to do so would not reasonably be expected to have a
Material Adverse Effect, provided that neither the Company nor any of its
Subsidiaries shall be required to comply with any such order or directive
which is being contested in good faith and by proper proceedings so long
as it has maintained adequate reserves with respect to such compliance to
the extent required in accordance with GAAP.
7.08 ERISA. As soon as possible and, in any event, within 10
days after the Company or any Subsidiary of the Company or any ERISA
Affiliate knows or has reason to know of the occurrence of any of the
following events to the extent that one or more of such events is
reasonably likely to result in a liability to any one or more of the
Company and its Subsidiaries in an aggregate amount in excess of
$10,000,000, the Company will deliver to each of the Banks a certificate
of the chief financial officer or other Authorized Officer of the Company
setting forth details as to such occurrence and the action, if any, which
the Company, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be
given to or filed with or by the Borrower, the Subsidiary, the ERISA
Affiliate, the PBGC, a Plan participant or the Plan administrator with
respect thereto: that a Reportable Event has occurred, that an
accumulated funding deficiency has been incurred or an application may be
or has been made to the Secretary of the Treasury for a waiver or
modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under
Section 412 of the Code with respect to a Plan; that a contribution
required to be made to a Plan, Multiemployer Plan or Foreign Pension Plan
has not been timely made; that a Plan has been or may be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA;
that a Plan has an Unfunded Current Liability giving rise to a lien under
ERISA or the Code; that proceedings may be or have been instituted by the
PBGC to terminate or appoint a trustee to administer a Plan; that a
proceeding has been instituted pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Multiemployer Plan; that the
Company, any Subsidiary of the Company or any ERISA Affiliate will or
could reasonably be expected to incur any material liability (including
any contingent or secondary liability) to or on account of the
termination of or withdrawal from a Plan or Multiemployer Plan under
Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the
Code or Section 409, 502(i) or 502(l) of ERISA; or that the Company or
any Subsidiary of the Company has or may incur any material liability
under any Retiree Welfare Plan or Foreign Pension Plan. At the request of
any Bank, the Company will deliver to such Bank a complete copy of the
annual report (Form 5500) of each Plan required to be filed with the
Internal Revenue Service. In addition to any certificates or notices
delivered to the Banks pursuant to the first sentence hereof, copies of
annual reports and any notices received by the Company or any Subsidiary
of the Company or any ERISA Affiliate with respect to any Plan or Foreign
Pension Plan shall be delivered to the Banks no later than 10 days after
the date such report has been filed with the Internal Revenue Service or
received by the Company or the Subsidiary or the ERISA Affiliate. The
Company and each of its applicable Subsidiaries shall ensure that all
Foreign Pension Plans administered by it or into which it makes payments
obtains or retains (as applicable) registered status under and as
required by applicable law and is administered in a timely manner in all
respects in compliance with all applicable laws except where the failure
to do any of the foregoing is not reasonably likely to result in a
Material Adverse Effect.
7.09 Good Repair. The Company will, and will cause each of
its Subsidiaries to, ensure that its material properties and equipment
used in its business are kept in good repair, working order and
condition, normal wear and tear and damage by casualty excepted, and,
subject to Section 8.09, that from time to time there are made in such
properties and equipment all needful and proper repairs, renewals,
replacements, extensions, additions, betterments and improvements
thereto, to the extent and in the manner consistent with prior practice.
7.10 End of Fiscal Years; Fiscal Quarters. The Company will,
for financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', fiscal years to end on FYE of each year and (ii) each of
its, and each of its Subsidiaries', fiscal quarters to end on FQE1, FQE2,
FQE3 and FYE of each year.
7.11 Additional Security; Further Assurances. (a) The Company
will, and will cause each of its Material Subsidiaries to, grant, to the
extent permitted by applicable law, to the Collateral Agent security
interests and mortgages in such assets and properties of the Company and
its Material Subsidiaries as are not covered by the original Security
Documents, and as may be requested from time to time by the
Administrative Agent or the Required Banks (collectively, and as may be
amended, modified or supplemented from time to time, the "Additional
Security Documents") except for Receivables of the Company and its
Subsidiaries which are sold pursuant to the Permitted Receivables
Financing. All such security interests and mortgages shall be granted
pursuant to documentation reasonably satisfactory in form and substance
to the Administrative Agent and shall constitute valid and enforceable
perfected security interests and mortgages superior to and prior to the
rights of all third Persons and subject to no other Liens except for
Permitted Liens. The Additional Security Documents or instruments related
thereto shall be duly recorded or filed in such manner and in such places
as are required by law to establish, perfect, preserve and protect the
Liens in favor of the Collateral Agent required to be granted pursuant to
the Additional Security Documents (it being understood that perfection of
Liens on intellectual property shall not be required outside the United
States) and all taxes, fees and other charges payable in connection
therewith shall be paid in full by the Company.
(b) The Company will, and will cause each of its Subsidiaries
to, at the expense of the Company, make, execute, endorse, acknowledge,
file and/or deliver to the Collateral Agent from time to time such
vouchers, invoices, schedules, confirmatory assignments, conveyances,
financing statements, transfer endorsements, powers of attorney,
certificates, real property surveys, reports and other assurances or
instruments and take such further steps relating to the Collateral
covered by any of the Security Documents as the Collateral Agent may
reasonably require. Furthermore, the Company shall cause to be delivered
to the Collateral Agent such opinions of counsel, title insurance and
other related documents as may be reasonably requested by the
Administrative Agent to assure themselves that this Section 7.11 has been
complied with.
(c) If the Administrative Agent or the Required Banks
determine that they are required by law or regulation to have appraisals
prepared in respect of the Real Property of the Company and its
Subsidiaries constituting Collateral, the Company shall provide to the
Administrative Agent appraisals which satisfy the applicable requirements
of the Real Estate Appraisal Reform Amendments of the Financial
Institution Reform, Recovery and Enforcement Act of 1989 and which shall
be in form and substance reasonably satisfactory to the Administrative
Agent.
(d) The Company agrees that each action required above by
this Section 7.11 shall be completed within 90 days after such action is
either requested to be taken by the Administrative Agent or the Required
Banks or required to be taken by the Company and its Subsidiaries
pursuant to the terms of this Section 7.11, provided that in no event
shall the Company be required to take any action, other than using its
reasonable commercial efforts, to obtain consents from third parties with
respect to its compliance with this Section 7.11.
7.12 Foreign Subsidiaries Security. (a) If following a change
in the relevant sections of the Code or the regulations, rules, rulings,
notices or other official pronouncements issued or, promulgated
thereunder, counsel for the Company reasonably acceptable to the
Administrative Agent does not within 60 days after a written request from
the Administrative Agent or the Required Banks deliver evidence, in form
and substance mutually satisfactory to the Administrative Agent and the
Company, with respect to any Foreign Subsidiary of the Company which has
not already had all of its stock pledged pursuant to the Pledge Agreement
that (i) a pledge (x) of 66-2/3% or more of the total combined voting
power of all classes of capital stock of such Foreign Subsidiary entitled
to vote, and (y) of any Promissory note issued by such Foreign Subsidiary
to the Company or any of its Domestic Subsidiaries, (ii) the entering
into by such Foreign Subsidiary of a security agreement in substantially
the form of the Security Agreement and (iii) the entering into by such
Foreign Subsidiary of a guaranty in substantially the form of the
Guaranty, in any such case would cause all or any portion of the
undistributed earnings of such Foreign Subsidiary as determined for
Federal income tax purposes to be treated as a deemed dividend to such
Foreign Subsidiary's United States parent for Federal income tax purposes
or otherwise would have any adverse effect on the Company with respect to
Taxes, then in the case of a failure to deliver the evidence described in
clause (i) above, that portion of such Foreign Subsidiary's outstanding
capital stock or any promissory notes so issued by such Foreign
Subsidiary, in each case not theretofore pledged pursuant to the Pledge
Agreement shall be pledged to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Pledge Agreement (or another pledge
agreement in substantially similar form, if needed), and in the case of a
failure to deliver the evidence described in clause (ii) above, such
Foreign Subsidiary shall execute and deliver the Security Agreement (or
another security agreement in substantially similar form, if needed),
granting the Secured Creditors a security interest in all of such Foreign
Subsidiary's assets and securing the Obligations of the Borrowers under
the Credit Documents and under any Interest Rate Protection Agreement or
Other Hedging Agreement and, in the event the Guaranty shall have been
executed by such Foreign Subsidiary, the obligations of such Foreign
Subsidiary thereunder, and in the case of a failure to deliver the
evidence described in clause (iii) above, such Foreign Subsidiary shall
execute and deliver the Guaranty (or another guaranty in substantially
similar form, if needed), guaranteeing the Obligations of the Borrowers
under the Credit Documents and under any Interest Rate Protection
Agreement or Other Hedging Agreement, in each case to the extent that the
entering into such Security Agreement or Guaranty is permitted by the
laws of the respective foreign jurisdiction and with all documents
delivered pursuant to this Section 7.13 to be in form and substance
reasonably satisfactory to the Administrative Agent.
(b) Any portion of the Revolving Credit Facility borrowed by
any Foreign Subsidiary of the Company will be secured (i) by a pledge of
such Foreign Subsidiary's outstanding capital stock or any promissory
note so issued by such Foreign Subsidiary (in each case not theretofore
pledged pursuant to the Pledge Agreement) for the benefit of the Secured
Creditors pursuant to the Pledge Agreement (or another pledge agreement
in substantially similar form, if needed) and (ii) by executing and
delivering the Security Agreement (or another security agreement in
substantially similar form, if needed), granting the Secured Creditors a
security interest in all of such Foreign Subsidiary's assets and securing
the Obligations of such Foreign Subsidiary under the Credit Documents.
SECTION 8. Negative Covenants. The Company hereby covenants
and agrees that as of the Effective Date and thereafter for so long as
this Agreement is in effect and until the Commitments have terminated, no
Letters of Credit (other than Letters of Credit, together with all Fees
that have accrued and will accrue thereon through the stated termination
date of such Letters of Credit, which have either been (a) cash
collateralized in a manner reasonably satisfactory to the Letter of
Credit Issuer or (b) backstopped by a letter of credit or other security
acceptable to the Letter of Credit Issuer) or Notes are outstanding and
the Loans, together with interest, Fees and all other Obligations (other
than any indemnities described in Section 12.13 which are not then due
and payable) incurred hereunder, are paid in full:
8.01 Changes in Business. (a) The Company and its
Subsidiaries (other than the Receivables Subsidiary) will not engage in
any businesses which are not the same, similar, related or ancillary to
the businesses in which the Company and its Subsidiaries are engaged on
the Initial Borrowing Date; and (b) the Receivables Subsidiary will not
engage in any business other than the purchase and sale or other transfer
of Receivables (or participation interests therein) in connection with
any Permitted Receivables Financing, together with activities directly
related thereto.
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc.
The Company will not, and will not permit any of its Subsidiaries to,
wind up, liquidate or dissolve its affairs or enter into any transaction
of merger or consolidation, or convey, sell, lease or otherwise dispose
of all or any part of its property or assets (other than inventory in the
ordinary course of business), or enter into any partnerships, joint
ventures or sale-leaseback transactions, or purchase or otherwise acquire
(in one or a series of related transactions) any part of the property or
assets (other than purchases or other acquisitions of inventory,
materials, equipment and databases in the ordinary course of business) of
any Person, except that the following shall be permitted:
(a) the consummation of the Merger and Recapitalization;
(b) the Company and its Subsidiaries may, as lessee, enter
into operating leases in the ordinary course of business with
respect to real or personal property;
(c) Capital Expenditures by the Company and its Subsidiaries
to the extent not in violation of Section 8.09;
(d) the advances, investments and loans permitted pursuant to
Section 8.06;
(e) the Company and its Subsidiaries may sell assets,
provided that (i) the aggregate sale proceeds from all assets
subject to such sales pursuant to this clause (e) (other than in
the ordinary course of business, the Net Cash Proceeds of which are
not required to be applied to the making of mandatory prepayments
pursuant to the last sentence of Section 4.02(A)(c)) shall not
exceed $25,000,000 in any fiscal year of the Company and (ii) the
Net Cash Proceeds from sales described in (i) above are either
applied to repay Term Loans as provided in Section 4.02(A)(c) or
reinvested in replacement assets to the extent permitted by Section
4.02(A)(c); provided further that the Net Cash Proceeds from the
sale of warehouses, customer service and other administrative
facilities shall be excluded from the limitations set forth in
clause (i) above to the extent such sales (A) would not result in a
Material Adverse Effect, (B) shall be made for fair market value
and (C) the Net Cash Proceeds from such sales are applied to repay
Term Loans as provided in Section 4.02(A)(c) ;
(f) the Company and its Subsidiaries may sell other assets,
provided that the aggregate sale proceeds from all such asset sales
pursuant to this clause (f) does not exceed $1,000,000 in any
fiscal year of the Borrower;
(g) the Company and its Subsidiaries may sell or discount, in
each case without recourse (other than customary representations,
warranties and retained interests), Receivables to the Receivables
Subsidiary, and the Receivables Subsidiary may sell Receivables or
an undivided interest therein to any other Person, pursuant to any
Permitted Receivables Financing, and convert or exchange
Receivables into or for notes receivable in connection with the
compromise or collection thereof;
(h) the Company and its Subsidiaries may sell or exchange any
item of equipment, so long as the purpose of each such sale or
exchange is to acquire (and results within 360 days before or after
such sale or exchange in the acquisition of) replacement items of
equipment which are the functional equivalent of the item of
equipment so sold or exchanged;
(i) the Company and its Subsidiaries may, in the ordinary
course of business, license patents, trademarks, servicemarks,
trade names, technology, know-how and formulas or other rights to
third Persons and to one another, so long as each such license is
permitted to be assigned by the Company or any of its Subsidiaries
pursuant to the Security Agreement (to the extent that a security
interest in such patents, trademarks, servicemarks, trade names,
technology, know-how and formulas or other rights is granted
thereunder) and does not otherwise prohibit the granting of a Lien
by the Company or any of its Subsidiaries pursuant to the Security
Agreement in the intellectual property covered by such license;
(j) any Subsidiary of the Company may be merged or
consolidated with or into the Company (provided that the Company
shall be the continuing or surviving corporation) or with or into
any one or more wholly owned Subsidiary Guarantors (provided that
the wholly owned Subsidiary or Subsidiaries shall be the continuing
or surviving company);
(k) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Company or any other wholly owned
Subsidiary Guarantor;
(l) so long as no Default or Event of Default then exists or
would result therefrom, the Company and its Wholly-Owned
Subsidiaries may acquire assets or the capital stock of any Person
(any such acquisition permitted by this clause (l), a "Permitted
Acquisition"), provided that (i) such Person (or the assets so
acquired) was, immediately prior to such acquisition, engaged (or
used) primarily in the business permitted pursuant to Section 8.01,
(ii) if such acquisition is structured as a stock acquisition, then
either (A) the Person so acquired becomes a Wholly-Owned Subsidiary
of the Company or (B) such Person is merged with and into a
Wholly-Owned Subsidiary of the Company (with such Wholly-Owned
Subsidiary being the surviving corporation of such merger), and in
any case, all of the provisions of Section 8.15 have been complied
with in respect of such Person, (iii) any Liens or Indebtedness
assumed or issued in connection with such acquisition are otherwise
permitted under Section 8.03 or 8.04., as the case may be, and (iv)
the Company and its Subsidiaries are in compliance, on a pro forma
basis after giving effect to such acquisition, with the covenants
contained in Sections 8.09, 8.10, 8.11 and 8.12 ; provided further
that if such acquisition is structured as a stock acquisition, the
Person so acquired shall not be required to become a Wholly-Owned
Subsidiary or to be merged into a Wholly-Owned Subsidiary as
required by clause (ii) above if (A) such Person so acquired
becomes a Subsidiary and (B) the aggregate consideration for, and
other investments in, all Subsidiaries so acquired since the date
of this Agreement that are not Wholly-Owned Subsidiaries shall not
exceed $50,000,000;
(m) leases or subleases granted by the Company or any of its
Subsidiaries to third Persons not interfering in any material
respect with the business of the Company or any of its
Subsidiaries;
(n) any Subsidiary that is not a Material Subsidiary and is
not a Borrower may liquidate or dissolve; and
(o) the Company and its Subsidiaries may sell, transfer or
otherwise dispose of all or a portion of the Fisher Technology
Group, including, but not limited to, an initial public offering of
stock in one or more of the entities comprising the Fisher
Technology Group; provided that the following conditions shall be
satisfied in connection with each such sale or offering: (i) at the
time thereof and after giving effect thereto the assets and
properties comprising the Fisher Technology Group or applicable
portion thereof (including the assets and properties of each Person
included therein) shall include only those assets and properties
comprising the Fisher Technology Group prior to the date of this
Agreement and any assets and properties acquired by the Fisher
Technology Group in the ordinary course of its business subsequent
to the date of this Agreement; (ii) at the time thereof and after
giving effect thereto no Person included in the Fisher Technology
Group or applicable portion thereof shall be a party to or
otherwise bound by any contract or other transaction involving the
Company or any other Subsidiary that would not be permitted under
Section 8.08 if entered into at such time (determined on the basis
that such Person is an Affiliate); and (iii) after giving effect
thereto neither the Company nor any Subsidiary thereof shall be
obligated upon any Indebtedness to or of any Person included in the
Fisher Technology Group or applicable portion thereof.
To the extent the Required Banks waive the provisions of this Section
8.02 with respect to the sale or other disposition of any Collateral
(other than to the Company or a Subsidiary), or any Collateral is sold or
otherwise disposed of as permitted by this Section 8.02 (other than to
the Company or a Subsidiary), such Collateral in each case shall be sold
or otherwise disposed of free and clear of the Liens created by the
Security Documents and the Administrative Agent shall take such actions
(including, without limitation, directing the Collateral Agent to take
such actions) as are appropriate in order to effectuate the release and
discharge of such Liens as to such Collateral.
8.03 Liens. The Company will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon or with respect to any property or assets of any kind (real or
personal, tangible or Intangible) of the Company or any of its
Subsidiaries, whether now owned or hereafter acquired, or sell any such
property or assets subject to an understanding or agreement, contingent
or otherwise, to repurchase such property or assets (including sales of
accounts receivable or notes with recourse to the Company or any of its
Subsidiaries) or assign any right to receive income, except for the
following (collectively, the "Permitted Liens"):
(a) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been
established in accordance with GAAP;
(b) Liens in respect of property or assets of the Company or
any of its Subsidiaries imposed by law which were incurred in the
ordinary course of business and which have not arisen to secure
Indebtedness for borrowed money, such as carriers', warehousemen's
and mechanics' Liens, statutory landlord's Liens, and other similar
Liens arising in the ordinary course of business, and which either
(x) do not in the aggregate materially detract from the value of
such property or assets or materially impair the use thereof in the
operation of the business of the Company or any of its Subsidiaries
or (y) are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement and the
Security Documents;
(d) Liens in existence on the Initial Borrowing Date which
are listed, and the property subject thereto described, in Schedule
8.03; provided that such Liens shall secure only those obligations
which they secure on the date hereof and extensions, renewals and
replacements thereof do not increase the outstanding principal
amount thereof;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section
9.09;
(f) Liens incurred or deposits made (x) 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, 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
the payment for borrowed money); and (y) to secure the performance
of leases of Real Property, to the extent incurred or made in the
ordinary course of business;
(g) licenses, sublicenses, leases or subleases granted to
third Persons not interfering in any material respect with the
business of the Company or any of its Subsidiaries;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances
not interfering in any material respect with the ordinary conduct
of the business of the Company or any of its Subsidiaries;
(i) Liens arising from precautionary UCC financing statements
regarding operating leases permitted by this Agreement;
(j) any interest or title of a licensor, lessor, sublicensor
or sublessor under any license or lease permitted by this
Agreement;
(k) Liens created pursuant to Capital Leases permitted
pursuant to Section 8.04(e);
(1) Permitted Encumbrances;
(m) Liens arising pursuant to purchase money mortgages or
security interests securing Indebtedness representing the purchase
price (or financing of the purchase price within 90 days after the
respective purchase) of assets acquired after the Initial Borrowing
Date, provided that (i) any such Liens attach only to the assets so
purchased, (ii) the Indebtedness secured by any such Lien does not
exceed 100%, nor is less than 70%, of the lesser of the fair market
value or the purchase price of the property being purchased at the
time of the incurrence of such Indebtedness and (iii) the
Indebtedness secured thereby is permitted to be incurred pursuant
to Section 8.04(e);
(n) Liens on property or assets acquired pursuant to a
Permitted Acquisition, or on property or assets of a Subsidiary of
the Company in existence at the time such Subsidiary is acquired
pursuant to a Permitted Acquisition, provided that (i) any
Indebtedness that is secured by such Liens is permitted to
exist under Section 8.04(j), and (ii) such Liens are not incurred
in connection with, or in contemplation or anticipation of, such
Permitted Acquisition and do not attach to any other asset of the
Company or any of its Subsidiaries;
(o) additional Liens incurred by the Company and its
Subsidiaries so long as the value of the property subject to such
Liens, and the Indebtedness and other obligations secured thereby,
do not exceed $30,000,000 in the aggregate at any time;
(p) Liens on Receivables sold or financed in connection with
any Permitted Receivables Financing permitted by this
Agreement;
(q) Liens securing obligations under Interest Rate Protection
Agreements and Other Hedging Agreements established with any Bank;
and
(r) Liens arising under Environmental Laws which are being
contested in good faith and by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP.
8.04 Indebtedness. The Company will not, and will not permit
any of its Subsidiaries to, contract, create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(b) Existing Indebtedness outstanding on the Initial
Borrowing Date and listed on Schedule 6.23; provided that any
subsequent extension, renewal or refinancing thereof does not
increase the outstanding principal amount thereof;
(c) Indebtedness of the Company and the Guarantors incurred
under one or more Senior Subordinated Note Indentures and Senior
Subordinated Notes and the other Senior Subordinated Note Documents
delivered in connection therewith; provided that (A) all of the
terms and conditions (and the documentation) of the Senior
Subordinated Notes (including, without limitation, the issuer,
amortization, maturities, interest rates, limitations on cash
interest payable, covenants, defaults, remedies, sinking fund
provisions, subordination provisions and other terms), taken as a
whole, are not materially less favorable to the Company, (B) the
subordination provisions are not less favorable to the Banks, than
those described in the Offering Memorandum dated January 13, 1998,
relating to the Senior Subordinated Notes and (C) the aggregate
principal amount of outstanding Senior Subordinated Notes under the
Senior Subordinated Note Indenture shall not exceed $400,000,000 at
any time plus, in the case of the Senior Subordinated Notes, the
amount of additional Senior Subordinated Notes issued to pay
interest in lieu of payment of interest in cash;
(d) Indebtedness under Interest Rate Protection Agreements
entered into to protect the Company against fluctuations in
interest rates in respect of the Obligations;
(e) Capitalized Lease Obligations and Indebtedness of the
Company and its Subsidiaries representing the purchase price (or
financing of the purchase price within 90 days before or after the
respective purchase) of assets acquired after the Initial Borrowing
Date and secured by purchase money Liens permitted under Section
8.03(m), provided that (i) all such Capitalized Lease Obligations
are permitted under Section 8.09, and (ii) the sum of (x) the
aggregate Capitalized Lease Obligations outstanding at any time
plus (y) the aggregate principal amount of such purchase money
Indebtedness outstanding at such time shall not exceed $60,000,000;
(f) Indebtedness constituting Intercompany Loans to the
extent permitted by Section 8.06(h);
(g) Indebtedness under Other Hedging Agreements (provided
that such Agreements shall be non-speculative) providing protection
against fluctuations in currency values in connection with the
Company's or any of its Subsidiaries' operations so long as
management of the Company or such Subsidiary, as the case may be,
has determined that the entering into of such Other Hedging
Agreements are bona fide hedging activities;
(h) Indebtedness of Foreign Subsidiaries to the Company or
any of its Domestic Subsidiaries as a result of any investment made
pursuant to Section 8.06(l);
(i) Indebtedness consisting of guaranties (x) by the Company
of Indebtedness, leases and any other obligation or liability
permitted to be incurred by Wholly-Owned Domestic Subsidiaries of
the Company, (y) by Domestic Subsidiaries of the Company of
Indebtedness, leases and any other obligation or liability
permitted to be incurred by the Company or other Wholly-Owned
Domestic Subsidiaries of the Company, and (z) by Foreign
Subsidiaries of the Company of Indebtedness, leases and any other
obligation or liability permitted to be incurred by other
Wholly-Owned Foreign Subsidiaries of the Company; provided that the
aggregate principal amount of Indebtedness permitted by this clause
(i) shall not exceed $80,000,000 at anytime outstanding;
(j) Indebtedness of a Subsidiary acquired pursuant to a
Permitted Acquisition (or Indebtedness assumed at the time of a
Permitted Acquisition of an asset securing such Indebtedness),
provided that (i) such Indebtedness was not incurred in connection
with, or in anticipation or contemplation of, such Permitted
Acquisition and (ii) the Company and its Subsidiaries are in
compliance, on a pro forma basis after giving effect to such
Permitted Acquisition, with the covenants contained in Sections
8.09, 8.10, 8.11 and 8.12;
(k) additional Indebtedness of the Company and its
Subsidiaries not otherwise permitted hereunder not exceeding
$30,000,000 in aggregate principal
amount at any time outstanding;
(l) Indebtedness of the Company and its Subsidiaries incurred
pursuant to any Permitted Receivables Financing; and
(m) Indebtedness constituting local loans from local lenders
in jurisdictions outside the United States; provided that (i) the
entire outstanding principal amount of such loans are backed by
Letters of Credit as permitted under Section 2.01(a)(iii) and (ii)
the sum of the aggregate principal amount of such loans plus the
aggregate principal amount of all Indebtedness resulting from
guaranties permitted under clause (i) of this Section 8.04 shall
not exceed $60,000,000 at any time.
8.05 Designated Senior Debt. The Company will not, and will
not permit any of its Subsidiaries to, designate any Indebtedness (other
than the Obligations) as "Designated Senior Indebtedness" for purposes
of, and as defined in, the Senior Subordinated Note Documents.
8.06 Advances, Investments and Loans. The Company will not,
and will not permit any of its Subsidiaries to, lend money or credit or
make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any
capital contribution to, any Person, or purchase or own a futures
contract or otherwise become liable for the purchase or sale of currency
or other commodities at a future date in the nature of a futures
contract, or hold any cash, Cash Equivalents or Foreign Cash Equivalents,
except:
(a) the Company and its Subsidiaries may invest in cash and
Cash Equivalents, and Foreign Subsidiaries of the Company may
invest in Foreign
Cash Equivalents;
(b) the Company and its Subsidiaries may acquire and hold
receivables owing to them, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms (including the dating of receivables and
extensions of payment in the ordinary course of business consistent
with past practices) of the Company or such Subsidiary;
(c) the Company and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers
and in settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of
business;
(d) Interest Rate Protection Agreements entered into in
compliance with Section 8.04(d) shall be permitted;
(e) advances, loans and investments in existence on the
Initial Borrowing Date and listed on Schedule 8.06 shall be
permitted, without giving effect to any additions thereto or
replacements thereof;
(f) (i) the Company may acquire and hold obligations of one
or more officers or other employees of the Company or its
Subsidiaries in connection with such officers' or employees'
acquisition of shares of the Company Common Stock so long as no
cash is paid by the Company or any of its Subsidiaries in
connection with the acquisition of any such obligations, (ii) the
Company may extend loans to officers and employees of the Company
and its Subsidiaries on or after the date on which any such
officers and employees exercise their options to purchase capital
stock of the Company issued to them in connection with the
Transaction so long as the proceeds of such loans are required to
be promptly used by such officers and employees to pay taxes
payable by them as a result of such exercise and (iii) investments
consisting of loans by the Company or its Subsidiaries to employees
of the Company or its Subsidiaries made solely for the purpose of
funding purchases by such employees of Company Common Stock;
provided that the aggregate principal amount at any time
outstanding of the obligations and loans extended pursuant to
clauses (i), (ii) and (iii) shall not exceed $10,000,000;
(g) deposits made in the ordinary course of business to
secure the performance of leases shall be permitted;
(h) the Company may make intercompany loans and advances to
any of its Subsidiaries and any Subsidiary of the Company may make
intercompany loans and advances to the Company or any other
Subsidiary of the Company (collectively, "Intercompany Loans"),
provided that (w) at no time shall the aggregate outstanding
principal amount of all Intercompany Loans made to non- Subsidiary
Guarantors pursuant to this clause (h) when added to the aggregate
amount of investments made after the Initial Borrowing Date in the
capital stock of non-Subsidiary Guarantors pursuant to clause (l)
below exceed $80,000,000 (determined without regard to any
write-downs or write-offs of such loans and advances), (x) each
Intercompany Loan made by a Foreign Subsidiary or a non-
Wholly-Owned Domestic Subsidiary to the Company or a Wholly-Owned
Domestic Subsidiary of the Company shall contain the subordination
provisions set forth on Exhibit I, (y) each Intercompany Loan shall
be evidenced by an Intercompany Note and (z) each such Intercompany
Note (other than (1) Intercompany Notes issued by Foreign
Subsidiaries of the Company to the Company or any of its Domestic
Subsidiaries and (2) Intercompany Notes held by Foreign
Subsidiaries of the Company, in each case except to the extent
provided in Section 7.12) shall be pledged to the Collateral Agent
pursuant to the Pledge Agreement;
(i) loans and advances by the Company and its Subsidiaries to
employees of the Company and its Subsidiaries for moving and travel
expenses and other similar expenses, in each case incurred in the
ordinary course of business, in an aggregate outstanding principal
amount not to exceed $5,000,000 at any time (determined without
regard to any write-downs or write-offs of such loans and
advances), shall be permitted;
(j) Other Hedging Agreements entered into in compliance with
Section 8.04(g) shall be permitted;
(k) Permitted Acquisitions shall be permitted;
(l) the Company and its Subsidiaries may own the capital
stock of their respective Subsidiaries created or acquired in
accordance with the terms of this Agreement; provided that the
aggregate amount of investments in the capital stock of
non-Subsidiary Guarantors under this clause (l) (excluding such
equity investments in such Subsidiaries existing on the Initial
Borrowing Date) when added to the aggregate outstanding principal
amount of all Intercompany Loans made to non-Subsidiary Guarantors
pursuant to clause (h) above shall not exceed in the aggregate at
any time outstanding $80,000,000;
(m) the Recapitalization;
(n) investments by the Company or any Subsidiary in (i) the
Capital Stock of the Receivables Subsidiary and (ii) other
interests in the Receivables Subsidiary, in each case to the extent
determined by the Company in its judgment to be reasonably
necessary in connection with or required by the terms of the
Permitted Receivables Financing; and
(o) The Company and its Subsidiaries may invest in Persons
primarily engaged in businesses which are the same, similar,
related or ancillary to any of the businesses in which the Company
and its Subsidiaries are primarily engaged in on the Initial
Borrowing Date; provided that the aggregate amount of all such
investments shall not exceed $50,000,000.
8.07 Dividends, etc. The Company will not, and will not
permit any of its Subsidiaries to, declare or pay any dividends (other
than dividends payable solely in common stock of the Company or any such
Subsidiary, as the case may be) or return any capital to, its
stockholders or authorize or make any other distribution, payment or
delivery of property or cash to its stockholders as such, or redeem,
retire, purchase or otherwise acquire, directly or indirectly, for a
consideration, any shares of any class of its capital stock, now or
hereafter outstanding (or any warrants for or options or stock
appreciation rights in respect of any of such shares), or set aside any
funds for any of the foregoing purposes, and the Company will not permit
any of its Subsidiaries to purchase or otherwise acquire for
consideration any shares of any class of the capital stock of the Company
or any Subsidiary, as the case may be, now or hereafter outstanding (or
any options or warrants or stock appreciation rights issued by such
Person with respect to its capital stock) (all of the foregoing
"Dividends"), except that:
(a) (i) any Subsidiary of the Company may pay Dividends to
the Company or any Wholly-Owned Subsidiary of the Company and (ii)
any Subsidiary of the Company which is not a Wholly-Owned
Subsidiary may pay Dividends to its shareholders ratably with
respect to each such shareholder's ownership interest in such
Subsidiary;
(b) Preferred Stock may be issued as a dividend on other
Preferred Stock;
(c) the Company will be permitted to redeem or repurchase,
shares of its common stock or options in respect thereof, in each
case, in connection with the repurchase provisions under employee
stock option or stock purchase agreements or other agreements to
compensate management employees; provided that such redemptions or
repurchases pursuant to this clause (d) shall not exceed
$15,000,000 in the aggregate (which amount shall be increased by
the amount of any cash proceeds to the Company from (i) the sales
of its common stock to management employees subsequent to the
Initial Borrowing Date and (ii) the sale of any "key-man" life
insurance policies which are used to make such redemptions or
repurchases);
(d) the Company will be permitted to repurchase its common
stock upon the exercise of stock options if such common stock
represents a portion of the exercise price thereof;
(e) the Company will be permitted to repurchase
payment-in-kind preferred stock; provided that (i) such repurchases
pursuant to this clause (e) shall not exceed $15,000,000 during the
term of this Agreement and (ii) all such preferred stock
repurchased shall have been issued on or prior to the Initial
Borrowing Date; and
(f) the Company and each Subsidiary will be permitted to make
payments in respect of any redemption, repurchase, acquisition,
cancelation or other retirement for value of shares of capital
stock of the Company or options, stock appreciation or similar
securities, in each case held by then current or former officers,
directors or employees of the Company or any of its Subsidiaries
(or their estates or beneficiaries under their estates) or by an
employee benefit plan, upon the death, disability, retirement or
termination of employment of such officers, directors and
employees, not to exceed $10,000,000 in the aggregate after the
Initial Borrowing Date.
8.08 Transactions with Affiliates. The Company will not, and
will not permit any of its Subsidiaries to, enter into any transaction or
series of transactions with any Affiliate other than on terms and
conditions substantially as favorable to the Company or such Subsidiary
as would be reasonably expected to be obtainable by the Company or such
Subsidiary at the time in a comparable arm's-length transaction with a
Person other than an Affiliate; provided that the following shall in any
event be permitted: (i) the Transaction; (ii) the payment, on a quarterly
basis, of management fees to THL and/or THL Affiliates in accordance with
the management agreement between THL and/or THL Affiliates and the
Company in an aggregate amount (for all such Persons taken together) not
to exceed $500,000 in any fiscal quarter of the Company, provided that if
during any fiscal quarter of the Company a Default or an Event of Default
exists, only one-half of such fee for such fiscal quarter may be paid and
the remaining one-half of such fee may be paid at such time as all
Defaults and Events of Default have been cured or waived; (iii) the
reimbursement of THL and/or THL Affiliates for their reasonable
out-of-pocket expenses incurred by them in connection with performing
management services to the Company and its Subsidiaries; (iv) the payment
of one time fees to THL and/or the THL Affiliates in connection with each
acquisition of a company or a line of business by the Company or its
Subsidiaries, such fees to be payable at the time of each such
acquisition and not to exceed 1% of the aggregate consideration paid by
the Company and its Subsidiaries for any such acquisition; and (v) any
Permitted Receivables Financing. Notwithstanding anything to the contrary
contained in this Section 8.08, at no time will the Company or any of its
Subsidiaries make any payments to THL and/or any of its Affiliates in an
amount which would exceed that amount permitted to be paid pursuant to
the Senior Subordinated Note Indenture at such time.
8.09 Capital Expenditures. (a) The Company will not, and will
not permit any of its Subsidiaries to, make any Capital Expenditures,
except that during any fiscal year set forth below, the Company and its
Subsidiaries may make Capital Expenditures so long as the aggregate
amount of such Capital Expenditures does not exceed in any fiscal year
set forth below the amount set forth opposite such fiscal year below:
Fiscal Year Ending Amount
------------------ ------
FYE 1998 $75,000,000
FYE 1999 and each fiscal year $60,000,000
thereafter
(b) Notwithstanding the foregoing, in the event that the
amount of Capital Expenditures permitted to be made by the Company and
its Subsidiaries pursuant to clause (a) above in any fiscal year (before
giving effect to any increase in such permitted expenditure amount
pursuant to this clause (b)) is greater than the amount of such Capital
Expenditures made by the Company and its Subsidiaries during such fiscal
year, such excess (the "Rollover Amount") may be carried forward and
utilized to make Capital Expenditures in succeeding fiscal years,
provided that in no event shall the aggregate amount of Capital
Expenditures made by the Company and its Subsidiaries during any fiscal
year pursuant to Section 8.09(a) exceed 150% of the amount set forth
opposite such fiscal year as set forth in the table in such Section
8.09(a).
(c) Notwithstanding the foregoing, the Company and its
Subsidiaries may make Capital Expenditures (which Capital Expenditures
will not be included in any determination under the foregoing clause (a))
with the Net Cash Proceeds of Asset Sales to the extent such proceeds are
not required to be applied to repay Term Loans pursuant to Section
4.02(A)(c).
(d) Notwithstanding the foregoing, the Company and its
Subsidiaries may make Capital Expenditures (which Capital Expenditures
will not be included in any determination under the foregoing clause (a))
with the insurance proceeds received by the Company or any of its
Subsidiaries from any Recovery Event so long as such Capital Expenditures
are to replace or restore any properties or assets in respect of which
such proceeds were paid within 180 days following the date of the receipt
of such insurance proceeds to the extent such insurance proceeds are not
required to be applied to repay Term Loans pursuant to Section
4.02(A)(g).
(e) Notwithstanding the foregoing, the Company may make
Capital Expenditures (which Capital Expenditures will not be included in
any determination under the foregoing clause (a)) constituting Permitted
Acquisitions.
(f) Notwithstanding the foregoing, the Company may make
Capital Expenditures (which Capital Expenditures will not be included in
any determination under the foregoing clause (a)) in an amount equal to
the net cash proceeds of any equity offering by the Company not required
to be applied to repay Term Loans pursuant to Section 4.02(A)(e) and not
applied to repay Senior Subordinated Notes as contemplated by the last
sentence of Section 8.13.
8.10 Minimum Consolidated EBITDA. Subject to Section 10(B),
the Company will not permit Consolidated EBITDA for any Test Period
ending on a date set forth below to be less than the amount set forth
opposite
such date:
Date Amount
---- ------
FQE2 1998 $120,000,000
FQE3 1998 $125,000,000
FYE 1998 $130,000,000
FQE1 1999 $140,000,000
FQE2 1999 $140,000,000
FQE3 1999 $150,000,000
FYE 1999 $150,000,000
FQE1 2000 $160,000,000
FQE2 2000 $160,000,000
FQE3 2000 and the last day of any $170,000,000
fiscal quarter thereafter
8.11 Interest Coverage Ratio. Subject to Section 10(B), the
Company will not permit the Interest Coverage Ratio for any Test Period
ending on any date set forth below to be less than the ratio set forth
opposite such date:
Date Ratio
---- -----
FQE2 1998 1.35:1.00
FQE3 1998 1.40:1.00
FYE 1998 1.50:1.00
FQE1 1999 1.60:1.00
FQE2 1999 1.60:1.00
FQE3 1999 1.75:1.00
FYE 1999 1.75:1.00
FQE1 2000 1.75:1.00
FQE2 2000 1.75:1.00
FQE3 2000 and the last day of any 2.00:1.00
fiscal quarter thereafter
8.12 Leverage Ratio. Subject to Section 10(B), the Company
will not permit the Leverage Ratio as of any date set forth below to be
more than the ratio set forth opposite such date:
Period Ratio
------ -----
FQE3 1998 7.35:1.00
FYE 1998 7.00:1.00
FQE1 1999 6.75:1.00
FQE2 1999 6.75:1.00
FQE3 1999 6.50:1.00
FYE 1999 6.50:1.00
FQE1 2000 6.00:1.00
FQE2 2000 6.00:1.00
FQE3 2000 5.50:1.00
FYE 2000 5.50:1.00
FQE1 2001 5.00:1.00
FQE2 2001 5.00:1.00
FQE3 2001 5.00:1.00
FYE 2001 5.00:1.00
FQE1 2002 4.50:1.00
FQE2 2002 4.50:1.00
FQE3 2002 4.50:1.00
FYE 2002 4.50:1.00
FQE1 2003 and the last day of any 4.00:1.00
fiscal quarter thereafter
8.13 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and
Certain Other Agreements; Issuances of Capital Stock, etc. The Company
will not, and will not permit any of its Subsidiaries to:
(a) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption or defeasance or
acquisition for value of (including, without limitation, by way of
depositing with the trustee with respect thereto or any other
Person money or securities before due for the purpose of paying
when due) any Existing Indebtedness or any Senior Subordinated
Note;
(b) make (or give any notice in respect of) any prepayment
or redemption or acquisition for value or defeasance as a result of
any asset sale, change of control or similar event (including,
without limitation, by way of depositing with the trustee with
respect thereto or any other Person money or securities before due
for the purpose of paying when due) with respect to any Senior
Subordinated Note; or pay interest in cash on any Senior
Subordinated Note to the extent the relevant obligor has an option
to make such payment by the issuance of additional Senior
Subordinated Notes;
(c) amend or modify, or permit the amendment or modification
of, any provision of any Senior Subordinated Note Document, the
Existing Senior Note Indenture, the Receivables Purchase Agreement,
the Receivables Transfer Agreement or the Asset Purchase Agreement
which is in any way adverse to the interests of the Banks in the
opinion of the Administrative Agent in its sole discretion;
(d) amend, modify or change in any way adverse to the
interests of the Banks, any Tax Allocation Agreement, any
Management Agreement, any Recapitalization Document, its
Certificate of Incorporation (including, without limitation, by the
filing or modification of any certificate of designation), ByLaws
or any agreement entered into by it, with respect to its capital
stock (including any Shareholders' Agreement), or enter into any
new agreement with respect to its capital stock which in any way
could be adverse to the interests of the Banks; or
(e) issue any class of capital stock other than
non-redeemable common stock and the Preferred Stock; provided that
the Subsidiaries of the Company, direct and indirect, may issue
preferred stock to the Company and its Subsidiaries; provided
further that the aggregate amount of preferred stock issued by
non-Subsidiary Guarantors under this clause (e) shall not exceed
the aggregate amount of investments in the capital stock of
non-Subsidiary Guarantors permitted under Section 8.06(l).
Notwithstanding the foregoing (a) the Senior Subordinated Notes may be
refinanced by the issuance of additional Senior Subordinated Notes in
accordance with the provisions of Section 8.04(c) without limitation by
this Section 8.13 and (b) so long as no Default or Event of Default
exists or would result after giving effect thereto and to the extent
there are net proceeds remaining after the mandatory repayments required
by Section 4.02(A)(e), the Senior Subordinated Notes and accrued interest
thereon may be repaid with the proceeds of the issuance of common stock
by the Company to the extent permitted by the "equity clawback"
provisions of the Senior Subordinated Note Indenture; provided that in
the case of any repayment with proceeds of common stock under the
foregoing clause (b), after giving pro forma effect to the sale of such
common stock and such repayment as if such events had occurred on the
last day of the most recently ended Test Period, the Leverage Ratio would
have been less than or equal to 5.25 to 1.00.
8.14 Limitation on Certain Restrictions on Subsidiaries. The
Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any
such Subsidiary to (a) pay dividends or make any other distributions on
its capital stock or any other interest or participation in its profits
owned by the Company any Subsidiary of the Company or pay any
Indebtedness owed to the Company or a Subsidiary of the Company, (b) make
loans or advances to the Company or any of the Company's Subsidiaries or
(c) transfer any of its properties or assets to the Company or any of its
Subsidiaries, except for such encumbrances or restrictions existing under
or by reason of (i) applicable law , (ii) this Agreement and the other
Credit Documents, (iii) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the Company or
a Subsidiary of the Company, (iv) customary provisions restricting
assignment of any licensing agreement entered into by the Company or a
Subsidiary of the Company in the ordinary course of business, (v) the
Senior Subordinated Note Documents, (vi) the Existing Indebtedness
Agreements, (vii) customary provisions restricting the transfer of assets
subject to Liens permitted under Sections 8.03(k) and (m) and (viii)
restrictions and conditions imposed by any Permitted Receivables
Transaction.
8.15 Limitation on the Creation of Subsidiaries.
Notwithstanding anything to the contrary contained in this Agreement, the
Company will not, and will not permit any of its Subsidiaries to,
establish, create or acquire after the Initial Borrowing Date any
Subsidiary; provided that (a) the Company and its Wholly-Owned
Subsidiaries shall be permitted to establish or create Wholly-Owned
Subsidiaries (or, to the extent contemplated by the second proviso to
clause (l) of Section 8.02, Subsidiaries that are not Wholly-Owned
Subsidiaries) so long as (i) at least 30 days' prior written notice
thereof is given to the Administrative Agent, (ii) the capital stock of
such new Subsidiary is pledged pursuant to, and to the extent required
by, the Pledge Agreement and the certificates representing such stock,
together with stock powers duly executed in blank, are delivered to the
Collateral Agent, (iii) such new Subsidiary (other than a Foreign
Subsidiary except to the extent otherwise required pursuant to Section
7.12) executes a counterpart of the Guaranty, the Pledge Agreement, the
Indemnity, Subrogation and Contribution Agreement and the Security
Agreement, and (iv) to the extent requested by the Administrative Agent
or the Required Banks, takes all actions required pursuant to Section
7.11. and (b) a Subsidiary of the Canadian Borrower may acquire a
majority interest in Fisher Scientific of the Netherlands B.V. In
addition, each new Wholly- Owned Subsidiary shall execute and deliver, or
cause to be executed and delivered, all other relevant documentation of
the type described in Section 5 as such new Subsidiary would have had to
deliver if such new Subsidiary were a Credit Party on the Initial
Borrowing Date.
8.16 Maintenance of Corporate Separateness, etc. The Company
will not, and will not permit any of its Subsidiaries to, (a) fail to
satisfy customary corporate formalities, including, without limitation,
(i) the holding of regular board of directors' and shareholders'
meetings, (ii) the maintenance of separate corporate offices and records
and (iii) the maintenance of separate bank accounts in its own name; or
(b) fail to act solely in its own corporate name and through its
authorized officers and agents.
SECTION 9. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
9.01 Payments. Any of the Borrowers shall (i) default in the
payment when due of any principal of the Loans or (ii) default, and such
default shall continue for three or more days, in the payment when due of
any Unpaid Drawing, any interest on the Loans or any Fees or any other
amounts owing hereunder or under any other Credit Document.
9.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document
or in any statement or certificate delivered pursuant hereto or thereto
shall prove to be untrue in any material respect on the date as of which
made or deemed made.
9.03 Covenants. Any Credit Party shall (a) default in the
due performance or observance by it of any term, covenant or agreement
contained in Section 7.01(d), 7.11 or 8, or (b) default in the due
performance or observance by it of any term, covenant or agreement (other
than those referred to in Section 9.01, 9.02 or clause (a) of this
Section 9.03) contained in this Agreement and such default shall continue
unremedied for a period of at least 30 days after notice to the
defaulting party by any Agent or the Required Banks.
9.04 Default Under Other Agreements. (a) The Company or any
of its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if
any, provided in the instrument or agreement under which Indebtedness was
created or (ii) default in the observance or performance of any agreement
or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default
or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause any such Indebtedness to become due prior to
its stated maturity; (b) any Indebtedness (other than the Obligations) of
the Company or any of its Subsidiaries shall be declared to be due and
payable, or shall be required to be prepaid other than by a regularly
scheduled required prepayment or as a mandatory prepayment (unless such
required prepayment or mandatory prepayment results from a default
thereunder or an event of the type that constitutes an Event of Default),
prior to the stated maturity thereof, provided that it shall not
constitute an Event of Default pursuant to clause (a) or (b) of this
Section 9.04 unless the principal amount of any one issue of such
Indebtedness, or the aggregate amount of all such Indebtedness referred
to in clauses (a) and (b) above, exceeds $10,000,000 at any one time; or
(c) any default or other event shall have occurred under the Receivables
Purchase Agreement, the Receivables Transfer Agreement or any other
document governing any Permitted Receivables Financing if the effect of
such default or other event is to cause, or to permit the holder or
holders of interests in the Receivables purchased thereunder or a trustee
on its or their behalf (with or without the giving of notice, the lapse
of time or both) to cause, the termination of any Permitted Receivables
Financing.
9.05 Bankruptcy, etc. The Company or any of its Material
Subsidiaries shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy", as now or
hereafter in effect, or any successor thereto (the "Bankruptcy Code"); or
an involuntary case is commenced against the Company or any of its
Material Subsidiaries and the petition is not controverted within 10
days, or is not dismissed within 60 days, after commencement of the case;
or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of the Company
or any of its Material Subsidiaries; or the Company or any of its
Material Subsidiaries commences any other proceeding under any
reorganization, bankruptcy, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Company
or any of its Material Subsidiaries, or there is commenced against the
Company or any of its Material Subsidiaries any such proceeding which
remains undismissed for a period of 60 days; or the Company or any of its
Material Subsidiaries is adjudicated insolvent or bankrupt; or any order
of relief or other order approving any such case or proceeding is
entered; or the Company or any of its Material Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part
of its property to continue undischarged or unstayed for a period of 60
days; or the Company or any of its Material Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate action is taken
by the Company or any of its Material Subsidiaries for the purpose of
effecting any of the foregoing.
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof or a waiver
of such standard or extension of any amortization period is sought or
granted under Section 412 of the Code, any Plan shall have had a trustee
appointed to administer such Plan, any Plan is terminated or shall have
been terminated or the subject of termination proceedings under ERISA,
any Plan shall have an Unfunded Current Liability, a contribution
required to be made to a Plan or a Foreign Pension Plan has not been
timely made, the Company or any of its Subsidiaries or any ERISA
Affiliate has incurred or is likely to incur a liability to or on account
of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of
the Code, or the Company or any of its Subsidiaries has incurred
liabilities pursuant to one or more Retiree Welfare Plan or Foreign
Pension Plans; (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability
or a material risk of incurring a liability; and (c) which lien, security
interest or liability which arises from such event or events will have a
Material Adverse Effect.
9.07 Security Documents. (a) Except in each case to the
extent resulting from the failure of the Collateral Agent to retain
possession of the applicable Pledged Securities, any Security Document
shall cease to be, or shall be asserted by any Credit Party not to be, in
full force and effect, or shall cease to give the Collateral Agent the
Liens, rights, powers and privileges purported to be created thereby in
favor of the Collateral Agent, (including, without limitation, a
perfected security interest in, and Lien on, all of the Collateral, other
than Collateral with an aggregate value of less than or equal to
$5,000,000), or (b) any Credit Party shall default in the due performance
or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any such Security Document and such
default (except to the extent that same will adversely affect the
continued perfection and priority of the Liens created by any such
Security Document in Collateral with an aggregate value in excess of
$500,000, in which case clause (a) of this Section 9.07 will be
applicable) shall continue unremedied for a period of 30 days.
9.08 Guaranties. The Guaranties or any provision thereof
shall cease to be in full force and effect, or any Guarantor or any
Person acting by or on behalf of such Guarantor shall deny or disaffirm
such Guarantor's obligations under any Guaranty or any Guarantor shall
default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any
Guaranty.
9.09 Judgments. One or more judgments or decrees shall be
entered against the Company or any of its Subsidiaries involving a
liability (to the extent not paid or not fully covered by insurance) in
excess of $10,000,000 for all such judgments and decrees and all such
judgments or decrees shall not have been vacated, discharged or stayed or
bonded pending appeal within 60 days from the entry thereof.
9.10 Ownership. A Change of Control Event shall have
occurred.
9.11 Pledge of Company's Stock. In the event that, at any
time after the Initial Borrowing Date, a holding company shall be formed
to own all or substantially all of the voting stock of the Company, and
the Company has not, within 30 days of notice by any Agent or the
Required Banks, caused such holding company to pledge to the Collateral
Agent, for the benefit of the Secured Creditors, all voting stock of the
Company owned by such holding company pursuant to documentation
(including legal opinions related thereto) reasonably satisfactory to the
Collateral Agent.
Then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Administrative Agent shall, upon
the written request of the Required Banks, by written notice to the
Company, take any or all of the following actions, without prejudice to
the rights of any Agent or any Bank to enforce its claims against any
Guarantor or any Borrower, except as otherwise specifically provided for
in this Agreement (provided, that if an Event of Default specified in
Section 9.05 shall occur with respect to the Company, the U.K. Borrower,
the Canadian Borrower or Fisher Scientific Company, the result which
would occur upon the giving of written notice by the Administrative Agent
as specified in clauses (i) and (ii) below shall occur automatically
without the giving of any such notice): (i) declare the Total Commitment
terminated, whereupon the Commitment of each Bank shall forthwith
terminate immediately and any Commitment Fees shall forthwith become due
and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans and other
Obligations owing hereunder (including Unpaid Drawings) to be, whereupon
the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
waived by each Borrower; (iii) enforce, as Collateral Agent (or direct
the Collateral Agent to enforce), any or all of the Liens and security
interests created pursuant to the Security Documents; (iv) terminate any
Letter of Credit which may be terminated in accordance with its terms;
and (v) direct the Company to pay (and the Company hereby agrees upon
receipt of such notice, or upon the occurrence of any Event of Default
specified in Section 9.05, to pay) to the Collateral Agent at the Payment
Office such additional amounts of cash, to be held as security for the
Company's reimbursement obligations in respect of Letters of Credit then
outstanding, equal to the aggregate Stated Amount of all Letters of
Credit then outstanding.
SECTION 10. Definitions. (A) As used herein. the following
terms shall have the meanings herein specified unless the context
otherwise requires. Any capitalized terms used in this Agreement which
are defined in Annex III shall have the meanings given to them in Annex
III. Defined terms in this Agreement shall include in the singular number
the plural and in the plural the singular:
"Additional Security Documents" shall have the meaning
provided in Section 7.11(a).
"Additional U.K. Subsidiary Borrower" shall have the meaning
provided in Section 1.18.
"Administrative Agent" shall mean The Chase Manhattan Bank
and shall include any successor to it appointed pursuant to Section
11.10; provided that (a) with reference to any payment of principal,
interest, fees, expenses or other amounts to be made or notice,
instruction or direction to be given, any action to be performed or any
other matter, in respect of a Canadian Dollar A Term Loan,
"Administrative Agent" shall mean the Canadian Administrative Agent and
(b) with reference to any payment of principal, interest, fees, expenses
or other amounts to be made or notice, instruction or direction to be
given, any action to be performed or any other matter, in respect of a
U.K. A Term Loan, "Administrative Agent" shall mean the U.K.
Administrative Agent.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to
all directors and officers of such Person), controlled by, or under
direct or indirect common control with such Person. A Person shall be
deemed to control a corporation if such Person possesses, directly or
indirectly, the power (i) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such corporation
or (ii) to direct or cause the direction of the management and policies
of such corporation, whether through the ownership of voting securities,
by contract or otherwise. In addition, for the purpose of this Agreement,
an Affiliate of THL shall include any THL Investor or any investment fund
under common control with the THL Investors. Notwithstanding the
foregoing, none of the Banks or any of their respective affiliates shall
be deemed to be Affiliates of the Company or its Subsidiaries.
"Agents" shall mean the Administrative Agent, the Canadian
Administrative Agent, the U.K. Administrative Agent, the Collateral
Agent, the Documentation Agent and the Syndication Agent.
"Aggregate Unutilized Commitment" with respect to any Bank
at any time shall mean the sum of (i) such Bank's U.S. Dollar A Term Loan
Commitment at such time, if any, (ii) such Bank's Canadian Dollar A Term
Loan Commitment at such time, if any, (iii) such Bank's U.K. A Term Loan
Commitment at such time, if any, (iv) such Bank's B Term Loan Commitment
at such time, if any, (v) such Bank's C Term Loan Commitment at such
time, if any, and (vi) such Bank's Revolving Credit Commitment at such
time, if any, less the sum of (x) the aggregate outstanding principal
amount of all Revolving Loans made by such Bank and (y) such Bank's
Revolving Percentage of the Letter of Credit Outstanding at such time.
"Agreement" shall mean this Credit Agreement, as the same
may be from time to time modified, amended and/or supplemented.
"Alternative Currency" shall mean Sterling or Canadian
Dollars.
"Alternative Currency Borrowing" shall mean a Borrowing
comprised of Alternative Currency Loans.
"Alternative Currency Equivalent" shall mean, with respect to
an amount of U.S. Dollars on any date in relation to any specified
Alternative Currency, the amount of such specified Alternative Currency
that may be purchased with such amount of U.S. Dollars at the Spot
Exchange Rate with respect to U.S. Dollars on such date. The term
"Alternative Currency Equivalent" may be preceded by a reference to an
Alternative Currency (e.g., "C$ Alternative Currency Equivalent"), in
which case the Alternative Currency so referenced shall be the
"specified" Alternative Currency.
"Alternative Currency Loan" shall mean either (a) a Canadian
Dollar A Term Loan denominated in Canadian Dollars or (b) a U.K. A Term
Loan denominated in Sterling.
"Applicable Rate" shall mean, for any day (a) with respect
to any Base Rate Loan or Eurodollar Loan that is a C Term Loan, the
applicable rate per annum set forth in the appropriate table below under
the caption "Base Rate Spread" or "Eurodollar Spread", as the case may
be, based upon the Leverage Ratio as of the most recent determination
date, (b) with respect to any Base Rate Loan or Eurodollar Loan that is a
B Term Loan, the applicable rate per annum set forth in the appropriate
table below under the caption "Base Rate Spread" or "Eurodollar Spread",
as the case may be, based upon the Leverage Ratio as of the most recent
determination date and (c) (i) with respect to any Base Rate Loan or
Eurodollar Loan that is a Revolving Loan, a U.S. Dollar A Term Loan or a
U.K. A Term Loan, as the case may be, the applicable rate per annum set
forth in the appropriate table below under the caption "Base Rate Spread"
or "Eurodollar Spread", as the case may be, (ii) with respect to any
Canadian Prime Loan that is a Canadian Dollar A Term Loan, the applicable
rate per annum set forth in the appropriate table below under the caption
"Base Rate Spread" and (iii) with respect to any B/A Rate Loan that is a
Canadian Dollar A Term Loan, the applicable rate per annum set forth in
the appropriate table below under the caption "Eurodollar Spread", based
upon the Leverage Ratio as of the most recent determination date;
provided that until the delivery of the financial statements for FQE1
1998, the "Applicable Rate" for purposes of clause (a) shall be the
applicable rate per annum set forth below in Category 2, for purposes of
clause (b) shall be the applicable rate per annum set forth below in
Category 2, and for purposes of clause (c) shall be the applicable rate
per annum set forth below in Category 5:
C Term Loans
------------
Base Rate Eurodollar
Leverage Ratio: Spread Spread
--------------- --------- ----------
Category 1
Ratio is less than 5.50 to
1.00 1.50 2.50
Category 2 1.75 2.75
Ratio is greater than or
equal to 5.50
to 1.00
B Term Loans
------------
Base Rate Eurodollar
Leverage Ratio: Spread Spread
--------------- --------- ----------
Category 1
Ratio is less than 5.50 to
1.00 1.25 2.25
Category 2 1.50 2.50
Ratio is greater than or
equal to 5.50
to 1.00
U.S. Dollar A Term Loans, Canadian Dollar A Term
Loans, U.K. A Term Loans and Revolving Loans
------------------------------------------------
Base Rate Eurodollar
Leverage Ratio: Spread Spread
--------------- --------- ----------
Category 1
Ratio is less than
4.25 to 1.00 .25 1.25
Category 2
Ratio is greater than or
equal to 4.25 to 1.00 but
less than 4.75 to 1.00 .50 1.50
Category 3
Ratio is greater than or
equal to 4.75 to 1.00 but
less than 5.25 to 1.00 .75 1.75
Category 4
Ratio is greater than or
equal to 5.25 to 1.00 but
less than 5.75 to 1.00 1.00 2.00
Category 5
Ratio is greater than or
equal to 5.75 to 1.00 1.25 2.25
For purposes of the foregoing, (a) subject to Section 10(B), the Leverage
Ratio shall be determined as of the end of each fiscal quarter of the
Company's fiscal year based upon the Company's consolidated financial
statements delivered pursuant to Section 7.01(a) or (b)(i) and (b) each
change in the Applicable Rate resulting from a change in the Leverage
Ratio shall be effective during the period commencing on the date of
delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately
preceding the effective date of the next such change. Notwithstanding
anything to the contrary contained in this definition, the Leverage Ratio
shall be deemed to be in Category 2 for purposes of clause (a) above, to
be in Category 2 for purposes of clause (b) above and to be in Category 5
for purposes of clause (c) above at any time that (A) an Event of Default
has occurred and is continuing or (B) if the Company fails to deliver the
consolidated financial statements required to be delivered by it pursuant
to Section 7.01(a) or (b)(i), during the period from the expiration of
the time for delivery thereof until such consolidated financial
statements are delivered (and, if such consolidated financial statements
are delivered in accordance with Section 7.01, the Leverage Ratio shall
be deemed to be Category 5 for the purposes of clause (c) above for a
scintilla of time until adjusted in accordance with this definition).
"Approved Fund" shall mean, with respect to any Bank that is
a fund that invests in commercial loans in the ordinary course of
business, any other fund that invests in commercial loans in the ordinary
course of business that is managed by the same investment advisor as such
Bank or by an Affiliate of such investment advisor.
"Asset Purchase Agreement" shall mean the Asset Purchase
Agreement, dated as of January 21, 1998, by and among Park Avenue
Receivables Corporation, The Chase Manhattan Bank, as funding agent, the
Receivables Subsidiary and certain financial institutions party thereto,
as the same may be amended, modified or supplemented from time to time.
"Asset Sale" shall mean any sale, transfer or other
disposition by the Company or any of its Subsidiaries to any Person other
than the Company or any Wholly-Owned Subsidiary of the Company of any
asset (including, without limitation, any capital stock or other
securities of another Person, but excluding the sale by such Person of
its own capital stock) of the Company or any such Subsidiary other than
(i) sales, transfers or other dispositions of inventory made in the
ordinary course of business, (ii) any sale of accounts receivable under
any Permitted Receivables Financing and (iii) sales of assets pursuant to
Sections 8.02(f), (g), (h), (i) and (k).
"Assignment and Assumption Agreement" shall mean an
Assignment and Assumption Agreement substantially in the form of Exhibit
J (appropriately completed).
"Authorized Officer" shall mean any senior officer of the
Company or a Subsidiary Borrower designated as such in writing to the
Administrative Agent by the Company, in each case to the extent
reasonably acceptable to the Agent.
"B/A Period" shall have the meaning provided in Annex III.
"B/A Rate" shall have the meaning provided in Annex III.
"B/A Rate Loan" shall have the meaning provided in Annex
III.
"B Banks" shall have the meaning provided in Section 4.02(C).
"B Term Loan" shall have the meaning provided in
Section 1.01(A)(d).
"B Term Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name in Annex I directly
below the column entitled "B Term Loan Commitment," as the same may be
terminated pursuant to Section 3.03 and/or Section 9.
"B Term Loan Facility" shall mean the Facility evidenced by
the Total B Term Loan Commitment.
"B Term Loan Maturity Date" shall mean the seventh
anniversary of the Initial Borrowing Date.
"B Term Note" shall have the meaning provided in Section
1.05(d).
"B TL Percentage" shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is equal to the
aggregate principal amount of all B Term Loans outstanding at such time
and the denominator of which is equal to the sum of the aggregate
principal amount of all Term Loans outstanding at such time.
"Bank" shall have the meaning provided in the first paragraph
of this Agreement.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Revolving Bank to make available its portion of any
Borrowing (including any Mandatory Borrowing) or to fund its portion of
any unreimbursed payment under Section 2.04(c) or (ii) a Revolving Bank
having notified the Administrative Agent and/or the Company that it does
not intend to comply with the obligations under Section 1.01(A)(f),
1.01(C) or 2.04(c), in the case of either clause (i) or (ii) above as a
result of the appointment of a receiver or conservator with respect to
such Bank at the direction or request of any regulatory agency or
authority.
"Bankruptcy Code" shall have the meaning provided in
Section 9.05.
"Base Rate" for any day shall mean the higher of (x) the rate
which is 1/2 of 1% in excess of the Federal Funds Effective Rate in
effect on such day and (y) the Prime Rate in effect on such day.
"Base Rate Loan" shall mean each Loan bearing interest at the
rates provided in Section 1.08(a).
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States (or any successor).
"Borrowers" shall mean the Company and the Subsidiary
Borrowers.
"Borrowing" shall mean the incurrence of one Type of Loan
pursuant to a single Facility by any applicable Borrower from all of the
Banks (or, in the case of a Local Currency Borrowing, by the Revolving
Bank or Banks whose Competitive Bid has been accepted or who have agreed
to make such Loan pursuant to Section 1.14) having Commitments with
respect to such Facility on a pro rata basis on a given date (or
resulting from conversions on a given date), having in the case of
Eurodollar Loans the same Interest Period and having in the case of B/A
Rate Loans the same B/A Period; provided that Base Rate Loans incurred
pursuant to Section 1.10(b) shall be considered part of any related
Borrowing of Eurodollar Loans.
"Borrowing Date" shall mean any Business Day specified by the
Company as a date on which the Company requests the relevant Banks to
make Loans to a
Borrower hereunder.
"Business Day" shall mean any day (other than a day which is
a Saturday, Sunday or legal holiday in the State of New York) on which
banks are open for business in New York City; provided, however, that (i)
when used in connection with a Eurodollar Loan, the term "Business Day"
shall also exclude any day on which banks are not open for dealings in
U.S. Dollar deposits in the interbank Eurodollar market, (ii) when used
in connection with a U.K. A Term Loan, "Business Day" shall also exclude
any day on which commercial banks are not open for foreign exchange
business in London or, if such reference relates to the date on which any
amount is to be paid or made available in an Alternative Currency, in the
principal financial center in the country of such Alternative Currency,
(iii) when used in connection with a Eurocurrency Competitive Loan, the
term "Business Day" shall also exclude any day on which banks are not
open for dealings in U.S. Dollar deposits in the interbank Eurocurrency
market and (iv) when used in connection with a Canadian Dollar A Term
Loan, "Business Day" shall also exclude any day on which commercial banks
are required or permitted to be closed in the city of Toronto.
"C Banks" shall have the meaning provided in Section 4.02(C).
"C Term Loan" shall have the meaning provided in Section
1.01(A)(e).
"C Term Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name in Annex I directly
below the column entitled "C Term Loan Commitment," as the same may be
terminated pursuant to Section 3.03 and/or Section 9.
"C Term Loan Facility" shall mean the Facility evidenced by
the Total C Term Loan Commitment.
"C Term Loan Maturity Date" shall mean the date that is seven
years and nine months following of the Initial Borrowing Date.
"C Term Note" shall have the meaning provided in Section
1.05(d).
"C TL Percentage" shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is equal to the
aggregate principal amount of all C Term Loans outstanding at such time
and the denominator of which is equal to the sum of the aggregate
principal amount of all Term Loans outstanding at such time.
"Calculation Date" shall mean (a) the last Business Day of
each March, June, September and December and (b) at any time when the sum
of the Total Revolving Extensions of Credit and the Total Local Currency
Loan Exposure exceeds 85% of the Total Revolving Credit Commitments, any
other date that the Administrative Agent may determine, in its
discretion, to be a Calculation Date (but not more than one day during
any calendar week).
"CAM" shall mean the mechanism for the allocation and
exchange of interests in the Facilities and Local Currency Loans and
collections thereunder established under Section 1.17.
"CAM Exchange" shall mean the exchange of the Bank's
interests provided for in Section 1.17.
"CAM Exchange Date" shall mean the first date after the
Initial Borrowing Date on which any event referred to in Section 9.05
shall occur in respect of the Company, the Canadian Borrower or the U.K.
Borrower.
"CAM Percentage" shall mean, as to each Bank, a fraction,
expressed as a decimal, of which (a) the numerator shall be the sum of
(i) the aggregate Designated Obligations owed to such Bank and (ii) the
Unpaid Drawings of such Bank, in each case immediately prior to the CAM
Exchange Date and (b) the denominator shall be the sum of (i) the
aggregate Designated Obligations owed to all the Banks and (ii) the
aggregate Unpaid Drawings of all the Banks, in each case immediately
prior to such CAM Exchange Date. For purposes of computing each Bank's
CAM Percentage, all Designated Obligations and Unpaid Drawings which
shall be denominated in Alternative Currencies or Local Currencies shall
be translated into U.S. Dollars at the Spot Exchange Rate or Exchange
Rate, respectively, in effect on the CAM Exchange Date.
"Canadian Administrative Agent" shall have the meaning
provided in the first paragraph of this Agreement and shall include any
successor to the Canadian Administrative Agent appointed pursuant to
Section 11.10.
"Canadian Borrower" shall mean Fisher Scientific Limited, a
corporation organized under the laws of Ontario which is a Wholly-Owned
Foreign Subsidiary of the
Company.
"Canadian Dollars" or "C$" shall mean lawful money of
Canada.
"Canadian Dollar A TL Percentage" shall mean, at any time, a
fraction (expressed as a percentage) the numerator of which is equal to
the sum of the aggregate principal amount of all Canadian Dollar A Term
Loans outstanding at such time and the denominator of which is equal to
the sum of the aggregate principal amount of all Term Loans outstanding
at such time.
"Canadian Dollar A Term Loan" shall have the meaning provided
in Section 1.01(A)(b).
"Canadian Dollar A Term Loan Bank" shall mean a Bank with a
Canadian Dollar A Term Loan Commitment.
"Canadian Dollar A Term Loan Commitment" shall mean, with
respect to each Canadian Dollar A Term Loan Bank, the amount set forth
opposite such Bank's name in Annex I directly below the column entitled
"Canadian Dollar A Term Loan Commitment," as the same may be terminated
pursuant to Section 3.03 and/or Section 9.
"Canadian Dollar A Term Loan Facility" shall mean the
Facility evidenced by the Total Canadian Dollar A Term Loan Commitment.
"Canadian Dollar A Term Loan Maturity Date" shall mean the
sixth anniversary of the Initial Borrowing Date.
"Canadian Dollar A Term Note" shall have the meaning provided
in Section 1.05(d).
"Canadian Prime Loan" shall mean any Canadian Dollar A Term
Loan bearing interest at a rate determined by reference to the Canadian
Prime Rate in accordance with the provisions of Section 1.08.
"Canadian Prime Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to
the higher of (i) the rate per annum publicly announced from time to time
by The Chase Manhattan Bank of Canada as its prime rate in effect at its
principal office in Toronto and (ii) the CDOR Rate plus 100 basis points
per annum. The term "CDOR Rate" shall mean, on any day, the annual rate
of interest which is the rate determined as being the arithmetic average
of the "BA 1 month" rates applicable to Canadian Dollar bankers'
acceptances displayed and identified as such on the "Reuters' Screen CDOR
Page" at approximately 10:00 a.m. on such day for Schedule I chartered
banks, or if such day is not a Canadian Business Day then on the
immediately preceding Canadian Business Day (as adjusted by The Chase
Manhattan Bank of Canada after 10:00 a.m. to reflect any error in a
posted rate of interest or in the posted average annual rate of
interest). Each change in the Canadian Prime Rate shall be effective on
the date such change is publicly announced.
"Capital Expenditures" shall mean, with respect to any
Person, all expenditures by such Person for plant, property and equipment
which should be capitalized in accordance with GAAP (including, without
limitation, expenditures for maintenance and repairs which should be
capitalized in accordance with GAAP).
"Capital Lease," as applied to any Person, shall mean any
lease of any property (whether real, personal or mixed) by that Person as
lessee which, in conformity with GAAP, is accounted for as a capital
lease on the balance sheet of that Person.
"Capitalized Lease Obligations" shall mean all obligations
under Capital Leases of the Company or any of its Subsidiaries in each
case taken at the amount thereof accounted for as liabilities in
accordance with GAAP.
"Cash Equivalents" shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States of America
or any agency or instrumentality thereof provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than one year from the date of acquisition,
(ii) U.S. Dollar denominated time deposits, certificates of deposit and
bankers acceptances of (x) any Bank or (y) any bank, or holding company
of such bank, whose short-term commercial paper rating or that of its
parent company from S&P is at least A-1 or the equivalent thereof or from
Moody's is at least P-1 or the equivalent thereof (any such bank or Bank,
an "Approved Bank"), in each case with maturities of not more than one
year from the date of acquisition, (iii) commercial paper issued by any
Approved Bank or by the parent company of any Approved Bank and
commercial paper issued by, or guaranteed by, any industrial or financial
company with a short-term commercial paper rating of at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody's, or guaranteed by any industrial company with a long term
unsecured debt rating of at least A or A2, or the equivalent of each
thereof, from S&P or Moody's, as the case may be, and in each case
maturing within one year after the date of acquisition, (iv) 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 maturing within one year from the date of acquisition thereof
and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody's and (v) investments in money market
funds substantially all the assets of which are comprised of securities
of the types described in clauses (i) through (iv) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale,
the aggregate cash payments (including any cash received by way of
deferred payment pursuant to a note receivable issued in connection with
such Asset Sale, other than the portion of such deferred payment
constituting interest, but only as and when so received) received by the
Company and/or any of its Subsidiaries from such Asset Sale.
"Change of Control Event" shall mean (a) prior to the date of
an initial registered public offering by the Company of its common stock,
the Permitted Holders shall cease to own on a fully diluted basis in the
aggregate at least 51% of the economic and voting interest in the
Company's capital stock free of Liens except Liens created by the Pledge
Agreement and liens granted by individuals who are employees of THL to
secure personal financing arrangements, (b) on or after the date of an
initial registered public offering by the Company of its common stock,
(A) any other Person or "group" (within the meaning of Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, as in effect on the
Initial Borrowing Date) shall own more than 20% of the voting and/or
economic interest in the Company's capital stock, (B) the Board of
Directors of the Company shall cease to consist of a majority of
Continuing Directors or (C) the Permitted Holders shall cease to own on a
fully diluted basis in the aggregate at least 30% of the economic and
voting interest in the Company's capital stock free of Liens except Liens
created by the Pledge Agreement and liens granted by individuals who are
employees of THL to secure personal financing arrangements, or (c) a
"change of control" or similar event shall occur as provided in the
Senior Subordinated Note Indenture.
"Chase" shall mean The Chase Manhattan Bank, in its
individual capacity, and any successor corporation thereto by merger,
consolidation or otherwise.
"Chase Canada" shall mean The Chase Manhattan Bank of Canada,
in its individual capacity, and any successor corporation thereto by
merger, consolidation or otherwise.
"Chase U.K." shall mean Chase Manhattan International
Limited, in its individual capacity, and any successor corporation
thereto by merger, consolidation or otherwise.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to the Code are to the Code, as in
effect at the date of this Agreement and any subsequent provisions of the
Code amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in
each of the Security Documents.
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Secured Creditors.
"Company" shall have the meaning provided in the first
paragraph of this Agreement.
"Company Common Stock" shall be as described in Schedule
6.15.
"Commitment" shall mean, with respect to each Bank, such
Bank's U.S. Dollar A Term Loan Commitment, Canadian Dollar A Term Loan
Commitment, U.K. A Term Loan Commitment, B Term Loan Commitment, C Term
Loan Commitment and Revolving Credit Commitment.
"Commitment Fee" shall have the meaning provided in Section
3.01(a).
"Competitive Bid" shall mean an offer by a Revolving Bank to
make a Competitive Loan pursuant to Section 1.14 in the form of Exhibit
M.
"Competitive Bid Accept/Reject Letter" shall mean a
notification made by the Company pursuant to Section 1.14 in the form of
Exhibit O.
"Competitive Bid Rate" shall mean as to any Competitive Bid,
(a) in the case of a Eurocurrency Competitive Loan, the Margin, and (b)
in the case of a Fixed Rate Loan in a Local Currency, the fixed rate of
interest offered by the Revolving Bank making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant
to Section 1.14 in the form of Exhibit N.
"Competitive Borrowing" shall mean a Borrowing consisting of
a Competitive Loan or concurrent Competitive Loans from the Bank or Banks
whose Competitive Bids for such Borrowing have been accepted under the
bidding procedure described in Section 1.14.
"Competitive Loan" shall mean a loan made pursuant to the
bidding procedure described in Section 1.14. Each Competitive Loan shall
be a Eurocurrency Competitive Loan or a Fixed Rate Loan.
"Confidential Information Memorandum" shall mean the
Confidential Information Memorandum dated September 24, 1997, relating to
the Facilities.
"Consolidated Current Assets" shall mean, at any time, the
current assets (other than cash, Cash Equivalents and deferred income
taxes to the extent included in current assets) of the Company and its
Subsidiaries at such time determined on a consolidated basis.
"Consolidated Current Liabilities" shall mean, at any time,
the current liabilities of the Company and its Subsidiaries determined on
a consolidated basis, but excluding deferred income taxes and the current
portion of and accrued but unpaid interest on any Indebtedness under this
Agreement and any other long-term Indebtedness which would otherwise be
included therein.
"Consolidated EBIT" shall mean, for any period, Consolidated
Net Income of the Company and its Subsidiaries, before total interest
expense (whether cash or non-cash and including interest-equivalent costs
associated with any Permitted Receivables Financing, whether accounted
for as interest expense or loss on the sale of receivables) and
provisions for taxes based on income, and determined (i) without giving
effect to any extraordinary gains or losses but with giving effect to
gains or losses from sales of assets sold in the ordinary course of
business, (ii) without giving effect to nonrecurring cash charges (in
addition to those referred to in clause (v) below) in an aggregate amount
not to exceed $15,000,000 (for all periods combined), (iii) without
giving effect to any noncash charge (other than depreciation or
amortization) deducted in determining Consolidated Net Income for such
period, including noncash charges related to the issuance by the Company
or any of its Subsidiaries of stock, warrants or options to management
(or any exercise of any such warrants or options), (iv) without giving
effect to any compensation expense incurred in connection with the
Recapitalization, (v) without giving effect to nonrecurring charges,
noncash charges or documented cash charges, in each case deducted in
determining Consolidated Net Income for such period and related to the
Transaction, including (A) cash charges in an amount not to exceed
$10,000,000 related to repurchases of common stock under the Company's
employee stock option agreements and (B) a restructuring charge and other
nonrecurring charges, including both cash and noncash charges, in the
fourth quarter of fiscal year 1997 in an amount not to exceed
$60,000,000, and (vi) without giving effect to management fees permitted
to be paid to THL and the THL Affiliates pursuant to Section 8.08.
"Consolidated EBITDA" shall mean, for any period,
Consolidated EBIT, adjusted by adding thereto the amount of all
depreciation expense, amortization expense and other non-cash charges
that were deducted in determining Consolidated EBIT for such period.
"Consolidated Interest Expense" shall mean, for any period,
total interest expense (including that attributable to Capital Leases in
accordance with GAAP) of the Company and its Subsidiaries determined on a
consolidated basis with respect to all outstanding Indebtedness of the
Company and its Subsidiaries, including, without limitation, (i) all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing, (ii) net costs or
benefits under Interest Rate Protection Agreements and (iii)
interest-equivalent costs that are associated with any Permitted
Receivables Financing, whether accounted for as interest expense or loss
on the sale of receivables, but excluding, however, amortization of
original issue discount, any payments made to obtain any Interest Rate
Protection Agreement, deferred financing costs and any interest expense
on deferred compensation arrangements and any other non-cash interest to
the extent included in total interest expense.
"Consolidated Net Income" shall mean, for any period, the net
income (or loss) after provision for taxes and before any pay-in-kind or
non-cash accumulating dividend on Preferred Stock, of the Company and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period, but excluding any unrealized losses and gains for such
period resulting from mark-to-market of Other Hedging Agreements.
"Contingent Obligations" shall mean as to any Person any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (a) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (x) for the purchase or
payment of any such primary obligation or (y) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (d) otherwise to assure or hold
harmless the owner of such primary obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection or standard
contractual indemnities entered into, in each case in the ordinary course
of business. The amount of any Contingent Obligation shall be deemed to
be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if
not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the directors of the
Company on the Effective Date and each other director if such director's
nomination for the election to the Board of Directors of the Company is
recommended by a majority of the then Continuing Directors.
"Credit Documents" shall mean this Agreement, the Notes, the
Guaranties and each Security Document.
"Credit Event" shall mean making of a Loan (other than a
Revolving Loan made pursuant to a Mandatory Borrowing) or the issuance of
a Letter of Credit.
"Credit Party" shall mean each Borrower and each Guarantor.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Designated Obligations" shall mean all Obligations of the
Credit Parties in respect of (a) principal of and interest on the Loans
and (b) Fees, whether or not the same shall at the time of any
determination be due and payable under the terms of the Credit Documents.
"Dividends" shall have the meaning provided in Section 8.07.
"Documentation Agent" shall mean DLJ Capital Funding, Inc.
"Documents" shall mean the Credit Documents, the
Recapitalization Documents and the Senior Subordinated Note Documents.
"Dollar Equivalent" shall mean, in respect of any Alternative
Currency Loan or Local Currency Loan, the amount thereof as expressed in
U.S. Dollars in either the initial Notice of Borrowing or initial
Competitive Bid Request or (in the case of a Negotiated Local Currency
Loan) notice to the Administrative Agent from the applicable Revolving
Bank, as the case may be. Thereafter, Dollar Equivalent shall mean, (a)
with respect to any amount of Alternative Currency, the amount of such
Alternative Currency expressed in U.S. Dollars as determined on the most
recent Reset Date based on the Spot Exchange Rate and (b) with respect to
any amount of Local Currency, the amount of such Local Currency expressed
in U.S. Dollars as determined on the most recent Reset Date based on the
Exchange Rate.
"Domestic Subsidiary" shall mean each Subsidiary of the
Company incorporated or organized in the United States or any State or
territory thereof.
"Effective Date" shall have the meaning provided in Section
12.10.
"Election to Participate" shall mean an Election to
Participate substantially in the form of Exhibit P hereto.
"Election to Terminate" shall mean an Election to Terminate
substantially in the form of Exhibit Q hereto.
"Eligible Transferee" shall mean and include (i) a commercial
bank financial institution or fund which is regularly engaged in making,
purchasing or investing in loans of the type provided for herein or other
"qualified institutional buyer" (as defined in Rule 144A of the
Securities Act) and (ii) any other Person approved by the Company (such
approval not to be unreasonably withheld).
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of non-compliance or violation, investigations or
proceedings relating in any way to any violation (or alleged violation)
by the Company or any of its Subsidiaries under any Environmental Law
(hereafter "Claims") or any permit issued to the Company or any of its
Subsidiaries under any such law, including, without limitation, (a) any
and all Claims by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant
to any applicable Environmental Law, and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief arising from alleged injury
or threat of injury to health, safety or the environment, as a result of
a release or threatened release of Hazardous Materials.
"Environmental Law" shall mean any domestic or foreign,
federal, state, provincial or local statute, law, rule, regulation,
ordinance, code or applicable and binding rule of common law now or
hereafter in effect and in each case as amended, and any applicable
judicial or administrative order, consent, decree or judgment (for
purposes of this definition (collectively, "Laws")), relating to the
environment, or Hazardous Materials or health and safety to the extent
such health and safety issues arise under the Occupational Safety and
Health Act of 1970, as amended, or any such similar Laws.
"Equity Financing" shall mean the contribution of cash to
MergerCo as common equity by the Investors of an amount not less than
$295,000,000.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the regulations
promulgated and the rulings issued thereunder. Section references to
ERISA are to ERISA as in effect at the date of this Agreement and any
subsequent provisions of ERISA amendatory thereof, supplemental thereto
or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with the Company or any of its
Subsidiaries would be deemed, at any time following the Initial Borrowing
Date, to be a "single employer" within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"Eurocurrency" when used in reference to any Loan or
Borrowing shall refer to whether such Loan is, or Loans comprising such
Borrowing are, denominated in a Local Currency and are bearing interest
at a rate determined by reference to Eurocurrency Rate.
"Eurocurrency Base Rate" shall mean with respect to any
Eurocurrency Borrowing for any Interest Period, an interest rate per
annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to
the rate at which deposits in the applicable Local Currency,
approximately equal in principal amount to, in the case of a Local
Currency Borrowing, the amount of such Borrowing, and for a maturity
comparable to such Interest Period, are offered to the Administrative
Agent in immediately available funds in the interbank eurocurrency market
where the Administrative Agent's foreign currency and exchange operations
in respect of the relevant currency are then being conducted for delivery
on the first day of such Interest Period for the number of days comprised
therein at approximately 11:00 a.m., London time, two Business Days (or
such other time as is customary for the relevant jurisdiction and
currency) prior to the commencement of such Interest Period.
"Eurocurrency Borrowing" shall mean a Borrowing composed of
Eurocurrency Competitive Loans.
"Eurocurrency Competitive Loans" shall mean any Competitive
Loan bearing interest at a rate determined by reference to the
Eurocurrency Rate in accordance with the provisions of Section 1.14.
"Eurocurrency Rate" shall mean with respect to each day
during each Interest Period pertaining to a Eurocurrency Competitive
Loan, a rate per annum for the applicable Local Currency determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurocurrency Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Reserve Requirements"shall mean, for any day,
the aggregate (without duplication) of the maximum rates (expressed as a
decimal fraction) of reserve requirements in effect on such day
(including, without limitation, any basic, marginal, emergency,
supplemental, special or other reserves under any regulations of the
Board or other Governmental Authority having jurisdiction with respect
thereto) dealing with reserve requirements prescribed for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal
Reserve System.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loans" shall mean each Loan bearing interest at
the rates provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest
Period for a Eurodollar Loan, (i) the rate per annum equal to the rate at
which Chase is offered U.S. Dollar (or, in the case of U.K. A Term Loans,
Sterling) deposits at or about 10:00 A.M. New York City time (or, in the
case of U.K. A Term Loans, 11:00 A.M. London time, on the first day of
such Interest Period), two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar
and foreign currency and exchange operations in respect of its Eurodollar
Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be outstanding during
such Interest Period (and rounded upward to the next whole multiple of
1/16 of 1%) divided by (ii) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without
limitation, any basic, marginal, emergency, supplemental, special or
other reserves under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to
an "Eurocurrency Liabilities" in Regulation D of the Board) maintained by
a member bank of the Federal Reserve System.
"Event of Default" shall have the meaning provided in
Section 9.
"Excess Cash Flow" shall mean, for any period (i) the sum of
(A) Consolidated Net Income for such period plus (B) the amount of all
non-cash charges (including, without limitation or duplication,
depreciation, amortization and non-cash interest expense, but excluding
those non-cash charges that had the effect of decreasing Working Capital
for such period) included in determining Consolidated Net Income for such
period plus (C) the decrease, if any, in Working Capital from the first
day to the last day of such period, minus (ii) the sum of (A) any
non-cash credits (including from sales or other dispositions of assets)
included in determining Consolidated Net Income for such period, (B)
gains from sales or other dispositions of assets (other than sales of
inventory in the ordinary course of business) included in determining
Consolidated Net income for such period, (C) an amount equal to (1) all
Capital Expenditures (other than Capital Expenditures made pursuant to
Section 8.09(d), (e) or (f)) made during such period that are not
financed by Indebtedness (including Capitalized Lease Obligations but
excluding Loans hereunder) plus (or minus, if negative) (2) the Rollover
Amount for such period to be carried forward to the next period less the
Rollover Amount (if any) for the preceding period carried forward to the
current period, (D) the amount expended in respect of Permitted
Acquisitions during such period, except to the extent constituting
Capital Expenditures, (E) the aggregate principal amount of permanent
principal payments of Indebtedness for borrowed money of the Company and
its Subsidiaries (other than repayments of Loans, provided that
repayments of Loans shall be deducted in determining Excess Cash Flow if
such repayments were (x) required as a result of a Scheduled U.S. Dollar
A Repayment, a Scheduled Canadian Dollar A Repayment, a Scheduled U.K. A
Repayment, a Scheduled B Repayment or a Scheduled C Repayment under
Section 4.02(A)(b) or (y) made as a voluntary prepayment with internally
generated funds (but in the case of a voluntary prepayment of Revolving
Loans, only to the extent accompanied by a voluntary reduction to the
Total Revolving Credit Commitment)) during such period, (F) non-cash
charges added back in a previous period pursuant to clause (i)(B) above
to the extent any such charge has become a cash item in the current
period (including interest-equivalent costs that are associated with any
Permitted Receivables Financing, whether accounted for as interest
expense or loss on the sale of receivables), (G) the amount of
expenditures which are not classified Capital Expenditures but which were
capitalized and not expensed during such period, (H) the increase, if
any, in Working Capital from the first day to the last day of such
period, (I) any cash disbursements made against noncurrent liabilities
(such as transition reserves and deferred taxes) to the extent not
deducted in determining Consolidated Net Income for such period and (J)
the amount of unusual or non-recurring charges that decreased Working
Capital during such period.
"Excess Cash Flow Period" shall mean each fiscal year of the
Company commencing with the fiscal year ending December 31, 1998.
"Excess Cash Payment Date" shall mean the date occurring 90
days after the last day of a fiscal year of the Company (beginning with
its fiscal year ending December 31, 1998).
"Exchange Rate" shall mean, with respect to any Local
Currency on a particular date, the rate at which such Local Currency may
be exchanged into U.S. Dollars in London, as set forth on the display
page of the Reuters System applicable to such Local Currency as
reasonably determined by the Administrative Agent. In the event that such
rate does not appear on any Reuters display page, the Exchange Rate with
respect to such Local Currency shall be determined by reference to such
other publicly available service for displaying exchange rates as may be
agreed upon by the Administrative Agent and the Company or, in the
absence of such agreement, such Exchange Rate shall instead be determined
by reference to the Administrative Agent's spot rate of exchange in the
London interbank market where its foreign currency exchange operations in
respect of such Local Currency are then being conducted, at or about
Noon, local time, at such date for the purchase of U.S. Dollars with such
Local Currency, for delivery two Working Days later; provided, however,
that if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Administrative Agent may use any
reasonable method it deems applicable to determine such rate, and such
determination shall be conclusive absent manifest error.
"Excluded Taxes" shall mean (a) all franchise taxes and all
taxes, levies, imposts, duties, charges, fees, deductions and
withholdings imposed on or measured by net income or capital, in each
case, imposed:
(i) by the United States or any political subdivision
or taxing
authority thereof or therein; or
(ii) by any jurisdiction under the laws of which any
Agent, Bank or lending office is organized or controlled, or
in which its lending office is located, or in which its
principal office is located or any political subdivision or
taxing authority thereof or therein; or
(b) any withholding tax imposed by reason of the failure of any Agent or
Bank to comply with its obligations, if any, under Section 4.04 hereof.
"Existing Indebtedness" shall have the meaning provided in
Section 6.23.
"Existing Indebtedness Agreements" shall have the meaning
provided in
Section 5.13.
"Existing Letters of Credit" shall mean all letters of credit
issued by TD under the Existing Loan Agreement and outstanding as of the
Effective Date.
"Existing Loan Agreement" shall mean the Credit Agreement
dated as of October 16, 1995, as amended or otherwise modified from time
to time, among Fisher, the financial institutions from time to time party
thereto and TD as agent.
"Existing Senior Notes" shall mean the $150,000,000 of 71/8%
Senior Notes of the Company due 2005.
"Existing Senior Notes Indenture" shall mean the indenture
under which the Existing Senior Notes are issued.
"FQE1", "FQE2" or "FQE3" shall mean, respectively, the last
day of March, June and September of any fiscal year.
"FYE" shall mean the end of the designated fiscal year of the
Company. Each fiscal year ends on December 31.
"Facility" shall mean any of the credit facilities
established under this Agreement, i.e., the U.S. Dollar A Term Loan
Facility, the Canadian Dollar A Term Loan Facility, the U.K. A Term Loan
Facility, the B Term Loan Facility, the C Term Loan Facility or the
Revolving Credit Facility.
"Federal Funds Effective Rate" shall mean, for any day, 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 on the next succeeding 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 the day of
such transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it. Any change in the
Base Rate due to a change in the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such
change in the Federal Funds Effective Rate.
"Fees" shall mean all amounts payable pursuant to, or
referred to in, Section 3.01.
"Fisher" shall mean Fisher Scientific International, Inc., a
Delaware corporation.
"Fisher Scientific Company" shall mean Fisher Scientific
Company LLC, a Delaware limited liability company.
"Fisher Technology Group" shall mean, collectively, Fisher
Technology Group Inc., a Delaware corporation and a Wholly-Owned
Subsidiary, and Strategic Procurement Services Holdings Inc., a Delaware
corporation and a Wholly-Owned Subsidiary, Strategic Procurement Services
Inc., a Delaware corporation and a Wholly- Owned Subsidiary, and
Electronic Commerce Division, a division of Fisher Scientific Company.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of
Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (the "Fixed Rate")
(expressed in the form of a decimal to no more than four decimal places)
specified by the Revolving Bank making such Loan in its Competitive Bid.
"Foreign Cash Equivalents" shall mean certificates of deposit
or bankers acceptances of any bank organized under the laws of Canada,
Japan or any country that is a member of the European Economic Community,
whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Moody's is at least P-1 or the equivalent
thereof, in each case with maturities of not more than six months from
the date of acquisition.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by the
Company or any one or more of its Subsidiaries or any Governmental
Authority primarily for the benefit of employees of the Company or such
Subsidiaries residing outside the United States of America and into which
the Company or any of its Subsidiaries makes, or is obliged by law on
behalf of its employees to make, payments which plan, fund or other
similar program provides, or results in, retirement income, a deferral of
income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the
Code.
"Foreign Subsidiary" shall mean each Subsidiary of the
Company other than a Domestic Subsidiary.
"Fronting Fee" shall have the meaning provided in
Section 3.01(c).
"Funded Debt" shall mean, as of any date, the sum of (a) the
aggregate principal amount of all indebtedness outstanding as of such
date that would appear as indebtedness on a consolidated balance sheet of
the Company prepared as of such date in accordance with GAAP, plus (b)
the amount received from the sale of Receivables to an un-affiliated
purchaser pursuant a Permitted Receivables Financing by the Receivables
Subsidiary, plus (c) the aggregate principal amount of all indebtedness
outstanding as of such date of Persons other than the Company and its
consolidated Subsidiaries that would appear as indebtedness on a
consolidated balance sheet of such Persons prepared as of such date in
accordance with GAAP, to the extent guaranteed by any of the Company and
its Subsidiaries.
"GAAP" shall mean generally accepted accounting principles in
the United States of America as promulgated by FASB (or the applicable
accounting body in a foreign jurisdiction) and as in effect from time to
time; it being understood and agreed that determinations in accordance
with GAAP for purposes of Section 8, including defined terms as used
therein, are subject (to the extent provided therein) to Section
12.07(a).
"Governmental Authority" shall mean the government of the
United States of America, any other nation or any political subdivision
thereof, whether state, provincial, or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guaranteed Creditors" shall mean and include each of the
Administrative Agent, the Documentation Agent, the Collateral Agent, the
Banks and each party (other than any Credit Party) party to an Interest
Rate Protection Agreement or Other Hedging Agreement to the extent that
such party constitutes a Secured Creditor under the Security Documents.
"Guaranteed Obligations" shall mean (i) the principal and
interest on each Note issued by any of the Borrowers to each Bank, and
Loans made, under this Agreement and all reimbursement obligations and
Unpaid Drawings with respect to Letters of Credit, together with all the
other obligations (including obligations which, but for the automatic
stay under Section 362(a) of the Bankruptcy Code, would become due) and
liabilities (including, without limitation, indemnities, fees and
interest thereon) of any Borrower to each Bank, the Administrative Agent,
the Documentation Agent and the Collateral Agent now existing or
hereafter incurred under, arising out of or in connection with this
Agreement or any other Credit Document and the due performance and
compliance with all the terms, conditions and agreements contained in the
Credit Documents by any Borrower and (ii) all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of each of the
Borrowers or any of their Subsidiaries owing under any Interest Rate
Protection Agreement or Other Hedging Agreement entered into by such
Borrower or any of its Subsidiaries with any Bank or any affiliate
thereof (even if such Bank subsequently ceases to be a Bank under this
Agreement for any reason) so long as such Bank or affiliate participates
in such Interest Rate Protection Agreement or Other Hedging Agreement,
and their subsequent assigns, if any, whether now in existence or
hereafter arising, and the due performance and compliance with all terms,
conditions and agreements contained therein.
"Guarantor" shall mean the Company and each Subsidiary of the
Company (other than the Receivables Subsidiary and any Foreign Subsidiary
except to the extent otherwise provided in Section 7.12) that is or
becomes a party to the Guaranty.
"Guaranty" shall have the meaning set forth in Section
5.10(c).
"Hazardous Materials" shall mean (a) any petrochemical or
petroleum products, radioactive materials, asbestos in any form that is
or could become friable, urea, formaldehyde foam insulation, transformers
or other equipment that contain dielectric fluid containing levels of
polychlorinated biphenyls, and radon gas; and (b) any chemicals,
materials or substances defined as or included in the definition of
"hazardous substances," "hazardous wastes," "hazardous materials,"
"restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar meaning and
regulatory effect.
"Immaterial Subsidiary" shall mean any subsidiary, direct or
indirect, that (a) has less than 5% of the consolidated assets of the
Company and its consolidated Subsidiaries as of the last day of the most
recently ended Test Period and (b) has less than 5% of the Consolidated
EBITDA of the Company and its consolidated Subsidiaries for the Test
Period most recently ended; provided that if more than one subsidiary is
deemed an Immaterial Subsidiary pursuant to this definition, all
Immaterial Subsidiaries shall be considered to be a single consolidated
subsidiary for purposes of determining whether the conditions specified
above are satisfied.
"Indebtedness" of any Person shall mean, without duplication,
(i) all indebtedness of such Person for borrowed money, (ii) the deferred
purchase price of assets or services payable to the sellers thereof or
any of such seller's assignees which in accordance with GAAP would be
shown on the liability side of the balance sheet of such Person, (iii)
the face amount of all letters of credit issued for the account of such
Person and, without duplication, all drafts drawn thereunder, (iv) all
Indebtedness of a second Person secured by any Lien on any property owned
by such first Person, whether or not such Indebtedness has been assumed,
(v) all Capitalized Lease Obligations of such Person, (vi) all
obligations of such Person to pay a specified purchase price for goods or
services whether or not delivered or accepted, i.e., take-or-pay and
similar obligations, (vii) all obligations under Interest Rate Protection
Agreements and Other Hedging Agreements and (viii) all Contingent
Obligations of such Person, provided that Indebtedness shall not include
trade payables and accrued expenses, in each case arising in the ordinary
course of business.
"Indemnity, Subrogation and Contribution Agreement" shall
have the meaning provided in Section 5.10(c).
"Initial Borrowing Date" shall mean the date upon which the
Term Loans are incurred hereunder.
"Intercompany Loan" shall have the meaning provided in
Section 8.06(h).
"Intercompany Notes" shall mean promissory notes, in the form
of Exhibit K, evidencing Intercompany Loans.
"Interest Coverage Ratio" shall mean, for any period, the
ratio of Consolidated EBITDA to Consolidated Interest Expense for such
period.
"Interest Period" with respect to (a) any Eurodollar Loan
shall mean the interest period applicable thereto, as determined pursuant
to Section 1.09, (b) any Fixed Rate Loan, shall mean the period
commencing from the requested drawdown date of such Competitive Borrowing
and ending on a date, which shall not be earlier than seven days or later
than 180 days after the requested drawdown date, (c) any Eurocurrency
Competitive Loan, shall mean the period commencing from the requested
drawdown date of such Competitive Borrowing and ending on a date, which
shall be either one, two, three or six months after the requested
drawdown date and, (d) any Negotiated Local Currency Loan, shall mean the
period commencing with the drawdown date of such Negotiated Local
Currency Loan and ending on such date, which shall not be earlier than
six months after such drawdown date, as shall be agreed between the Bank
making such Loan and the applicable Borrower.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedging agreement or other similar agreement or
arrangement.
"Investors" shall mean THL and THL Affiliates and THL
Investors and certain investors, including Chase, DLJ Capital Funding,
Inc., Merrill Lynch & Co. and their respective Affiliates and certain
members of the management of
the Company.
"Judgment Currency" shall have the meaning set forth in
Section 12.18.
"L/C Reserve Account" shall have the meaning provided in
Section 1.17.
"L/C Supportable Indebtedness" shall mean (i) obligations of
the Company or its Subsidiaries incurred in the ordinary course of
business with respect to insurance obligations and workers' compensation,
surety bonds and other similar statutory obligations and (ii) such other
obligations of the Company or any of its Subsidiaries as are reasonably
acceptable to the Administrative Agent and the Letter of Credit Issuer
and otherwise permitted to exist pursuant to the terms of this Agreement.
"Leasehold" of any Person shall mean all of the tight, title
and interest of such Person as lessee or licensee in, to and under leases
or licenses of land, improvements and/or fixtures.
"Lease Expense" means, for any period, the aggregate amount
of fixed and contingent rentals payable by the Company and its
Subsidiaries on a consolidated basis for such period with respect to
operating leases of real or
personal property.
"Letter of Credit" shall have the meaning provided in
Section 2.01(a)
.
"Letter of Credit Fees" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Issuer" shall mean Chase Manhattan Bank
Delaware, in its capacity as the issuer of Letters of Credit hereunder,
and its successors in such capacity as provided in 2.06 or, solely with
respect to the Existing Letters of Credit, TD. The Letter of Credit
Issuer may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of the Letter of Credit Issuer, in which case
the term "Letter of Credit Issuer" shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.
"Letter of Credit Outstanding" shall mean, at any time, the
sum of, without duplication, (i) the aggregate Stated Amount of all
outstanding Letters of Credit and (ii) the aggregate amount of all Unpaid
Drawings in respect of all Letters of Credit. Any portion of the Letter
of Credit Outstanding denominated in a Local Currency shall be the U.S.
Dollar Amount thereof as provided in Section 1.15.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean, at any time, the ratio of (x)
Funded Debt at such time to (y) Consolidated EBITDA for the Test Period
then last
ended.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the
UCC or any similar recording or notice statute, and any lease having
substantially the same effect as the foregoing).
"Loan" shall mean each and every loan made by any Bank
hereunder, including U.S. Dollar A Term Loans, Canadian Dollar A Term
Loans, U.K. A Term Loans, B Term Loans, C Term Loans, Revolving Loans,
Swingline Loans or Local Currency Loans.
"Local Currency" shall mean any currency other than U.S.
Dollars as to
which an Exchange Rate may be calculated.
"Local Currency Borrowing" shall mean a Borrowing comprised
of Local Currency Loans.
"Local Currency Equivalent" shall mean, with respect to an
amount of U.S. Dollars on any date in relation to any specified Local
Currency, the amount of such specified Local Currency that may be
purchased with such amount of U.S. Dollars at the Spot Exchange Rate with
respect to U.S. Dollars on such date.
"Local Currency Loan" shall mean (a) any Competitive Loan and
(b) any Negotiated Local Currency Loan made in accordance with the
provisions of Section 1.14.
"Local Currency Loan Exposure" shall mean at any time the
Dollar Equivalent of the aggregate principal amount of all outstanding
Local Currency Loans at
such time.
"Local Currency Note" shall have the meaning provided in
Section 1.05(d).
"Local Currency Sublimit" shall mean $60,000,000.
"Local Letter of Credit" shall mean any Letter of Credit
which provides for the payment of drawings in a Local Currency.
"Local Letter of Credit Sublimit" shall mean $30,000,000.
"Management Agreements" shall have the meaning provided in
Section 5.13.
"Mandatory Borrowing" shall have the meaning provided in
Section 1.01(C).
"Majority Banks" of any Facility shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and
as defined in, this Agreement if all outstanding Obligations of the other
Facilities under this Agreement were repaid in full and all Commitments
with respect thereto were terminated.
"Margin" shall mean, as to any Eurocurrency Competitive Loan,
the marginal rate of interest, if any, to be added to or subtracted from
the Eurocurrency Rate to determine the rate of interest applicable to
such Loan, as specified by the Revolving Bank making such Loan in its
Competitive Bid.
"Margin Reduction Period" shall mean each period which shall
commence on a date on which the financial statements are delivered
pursuant to Section 7.01(a) or (b)(i), as the case may be, and which
shall end on the earlier of (i) the date of actual delivery of the next
financial statements pursuant to Section 7.01(a) or (b)(i), as the case
may be, and (ii) the latest date on which the next financial statements
are required to be delivered pursuant to Section 7.01(a) or (b)(i), as
the case may be.
"Margin Stock" shall have the meaning provided in
Regulation U.
"Material Adverse Effect" shall mean a material adverse
effect on the business, properties, assets, liabilities or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a
whole.
"Material Subsidiary" means any Subsidiary of the Company,
direct or indirect other than an Immaterial Subsidiary.
"Maturity Date" with respect to any Facility shall mean
either the U.S. Dollar A Term Loan Maturity Date, the Canadian Dollar A
Term Loan Maturity Date, the U.K. A Term Loan Maturity Date, the B Term
Loan Maturity Date, the C Term Loan Maturity Date or the Revolving Loan
Maturity Date, as the case may be.
"Maximum Swingline Amount" shall mean $30,000,000.
"Merger" shall mean the merger of MergerCo with and into
Fisher, with Fisher as the surviving company.
"MergerCo" shall mean FSI Merger Co., a Delaware
corporation.
"Minimum Borrowing Amount" shall mean (i) for Term Loans,
$5,000,000; (ii) for Revolving Loans, $5,000,000, and (iii) for Swingline
Loans, $100,000.
"MLA Cost" shall mean the cost incurred by the U.K. A Term
Loan Banks in connection with the U.K. A Term Loans denominated in
Sterling in compliance with the Mandatory Liquid Asset requirements of
the Bank of England during an Interest Period (or part of an Interest
Period), expressed as a rate per annum and determined in accordance with
Exhibit S.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgage " shall have the meaning provided in
Section 5.12(a).
"Mortgage Policies" shall have the meaning provided in
Section 5.12(b).
"Mortgaged Properties" shall mean and include the Real
Properties owned by the Company and its Domestic Subsidiaries to the
extent designated as such on
Schedule 6.20.
"Multiemployer Plan" shall mean any multiemployer plan
(within the meaning of Section 4001(a)(3) of ERISA) to which the Company
or any of its Subsidiaries has any liability or contributes (or has at
any time within the past five years contributed to or had any liability
to contribute).
"Negotiated Local Currency Loan" shall have the meaning
provided in Section 1.14.
"Negotiated Local Currency Loan Agreement" shall have the
meaning provided in Section 1.14.
"Net Cash Proceeds" shall mean, with respect to any Asset
Sale, the Cash Proceeds resulting therefrom net of (a) cash expenses of
sale (including brokerage fees, if any, transfer taxes and payment of
principal, premium and interest of Indebtedness other than the Loans
required to be repaid as a result of such Asset Sale), (b) all taxes paid
or payable as a result thereof, (c) the amount of all payments required
to be made by the Company and the Subsidiaries as a result of such Asset
Sale to repay Indebtedness (other than Loans) secured by such asset or
otherwise subject to mandatory prepayment as a result of such Asset Sale
and (d) the amount of any reserves established by the Company and its
Subsidiaries to fund contingent liabilities reasonably estimated to be
payable during the year that such Asset Sale occurred or the next
succeeding year that are directly attributable to such Asset Sale;
provided that if any such reserves are terminated or the amount thereof
is reduced, the amount of such eliminated reserves shall be deemed Net
Cash Proceeds.
"Non-Defaulting Bank" shall mean each Bank other than a
Defaulting Bank.
"Note" shall mean each U.S. Dollar A Term Note, each Canadian
Dollar A Term Note, each U.K. A Term Note, each B Term Note, each C Term
Note, each Revolving Note, the Swingline Note and each Local Currency
Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at One Chase Manhattan Plaza, New York, NY 10081 or such
other office as the Administrative Agent may designate to the Company and
the Banks from time to time; provided that, (a) with reference to any
notice to be given in respect of a Canadian Dollar A Term Loan "Notice
Office" shall mean the office of The Chase Manhattan Bank of Canada
located at 1 First Canadian Place, Suite 6900, 100 King St. West,
Toronto, Ontario M5X1A4 and (b) with reference to any notice to be given
in respect of a U.K. A Term Loan "Notice Office" shall mean the office of
Chase Manhattan International Limited located at Trinity Tower, Nine
Thomas More Street, London E1 9TY, England.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time
existing, owing to any Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Other Hedging Agreements" shall mean any foreign exchange
contracts, currency swap agreements or other similar agreements or
arrangements designed to protect against fluctuations in currency values.
"Participant" shall have the meaning provided in
Section 2.04(a).
"Payment Office" shall mean (a) in the case of payments in
U.S. Dollars, the office of the Administrative Agent located at One Chase
Manhattan Plaza, New York, New York 10081 or such other office as the
Administrative Agent may designate to the Borrower and the Banks from
time to time or (b) in the case of payment in currencies other than U.S.
Dollars, the place of payment customary for the settlement of
international transaction relevant to such currency as designated to the
Company and the Banks by the Administrative Agent, (c) in the case of
payments in relation to a Canadian Dollar A Term Loan, the office of The
Chase Manhattan Bank of Canada located at 1 First Canadian Place, Suite
6900, 100 King St. West, Toronto, Ontario M5X1A4 or (d) in the case of
payments in relation to a U.K. A Term Loan, the office of Chase Manhattan
International Limited located at Trinity Tower, Nine Thomas More Street,
London E1 9TY, England.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall have the meaning provided in
Section 8.02(l).
"Permitted Encumbrances" shall mean (i) those liens,
encumbrances and other matters affecting title to any Mortgaged Property
listed in the Mortgage Policies in respect thereof and found reasonably
acceptable by the Administrative Agent, (ii) as to any particular
Mortgaged Property at any time, such easements, encroachments, covenants,
rights of way, minor defects, irregularities or encumbrances on title
which do not, in the reasonable opinion of the Administrative Agent,
materially impair such Mortgaged Property for the purpose for which it is
held by the mortgagor thereof, or the lien held by the Collateral Agent,
(iii) zoning and other municipal ordinances which are not violated in any
material respect by the existing improvements and the present use made by
the mortgagor thereof of the Premises (as defined in the respective
Mortgage), (iv) general real estate taxes and assessments not yet
delinquent, and (v) such other items as the Administrative Agent may
consent to (such consent not to be unreasonably withheld).
"Permitted Holders" shall mean (a) THL and THL Affiliates and
THL Investors and each of Chase, DLJ Capital Funding, Inc., Merrill Lynch
& Co. and each of their respective Affiliates and those certain members
of the management of the Company who are Investors as of the Effective
Date, (b) senior management employees and directors of the Company who
acquire common stock of the Company within 90 days after the Initial
Borrowing Date for an aggregate purchase price not the excess of
$15,000,000, (c) other Persons to which THL and the THL Affiliates may
transfer common stock of the Company for and aggregate purchase price not
exceeding $20,000,000 and (d) any Person controlled by one or more of the
foregoing .
"Permitted Liens" shall have the meaning provided in
Section 8.03.
"Permitted Receivables Financing" shall mean any transaction
entered into pursuant to and in accordance with the Receivables Purchase
Agreement, the Receivables Transfer Agreement and the Asset Purchase
Agreement.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, limited liability company, association, trust
or other enterprise or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" shall mean any employee pension benefit plan (within
the meaning of Section 3(2) of ERISA) which is maintained or contributed
to by the Company or any of its Subsidiaries, or for which the Company or
any of its Subsidiaries has any liability or contingent liability, other
than a Multiemployer Plan.
"Pledge Agreement" shall have the meaning provided in
Section 5.10(a).
"Pledge Agreement Collateral" shall mean all "Collateral"
as defined in
the Pledge Agreement.
"Pledged Securities" shall mean all the Pledged Securities as
defined in the Pledge Agreement.
"Preferred Stock" shall mean the Cumulative Redeemable
Preferred Stock, par value $.01, of the Company as described in Schedule
6.15; provided that such preferred stock shall only pay non-cash
dividends.
"Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by Chase as its prime rate in effect
at its principal office in New York City, the Prime Rate to change when
and as such publicly announced rate changes. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Chase may make commercial loans or
other loans at rates of interest at, above or below the Prime Rate.
"Projections" shall have the meaning provided in Section 6.10.
"Quarterly Payment Date" shall mean the last Business Day of
each March, June, September and December.
"Real Property" of any Person shall mean all of the right,
title and interest of such Person in and to land, improvements and
fixtures, including Leaseholds.
"Recapitalization" shall mean the Merger and recapitalization
of the Company pursuant to, and in accordance with the terms of, the
Recapitalization Documents.
"Recapitalization Agreement" shall mean the Agreement and
Plan of Merger dated as of August 7, 1997, as amended and as in effect on
the Initial Borrowing Date by and between the Company and MergerCo.
"Recapitalization Documents" shall mean the Recapitalization
Agreement and all other agreements and documents relating to the
Recapitalization.
"Receivables" shall mean the indebtedness owed to the Company
or any of its Subsidiaries by an obligor under a contract and rights of
payment and other payment obligations, whether constituting an account,
chattel paper, instrument, investment property or general intangible, in
each case arising in connection with the sale or lease of merchandise or
the rendering of services by the Company or any of its Subsidiaries in
the ordinary course of business and includes the right to payment of any
finance charges and any other obligations of such obligor with respect
thereto; notwithstanding, the foregoing, once a Receivable has been
deemed collected pursuant to Section 2.09 of the Receivable Transfer
Agreement, it shall no longer constitute a receivable under the
Receivable Transfer Agreement.
"Receivables Purchase Agreement" shall mean the Receivables
Purchase Agreement dated as of January 21, 1998 between the Receivables
Subsidiary and a Subsidiary of the Company, as the same may be amended,
modified or supplemented from time to time.
"Receivables Subsidiary" shall mean FSI Receivables Corp.
"Receivables Transfer Agreement" shall mean the Transfer
Agreement, dated as of January 21, 1998, by and among the Receivables
Subsidiary, Park Avenue Receivables Corporation ,a Subsidiary of the
Company as a servicer, and The Chase Manhattan Bank, as funding agent, as
the same may be amended, modified or supplemented from time to time.
"Recovery Event" shall mean the receipt by the Company or any
of its Subsidiaries of any insurance or condemnation proceeds payable (i)
by reason of theft, physical destruction or damage or any other similar
event with respect to any properties or assets of the Company or any of
its Subsidiaries, (ii) by reason of any condemnation, taking, seizing or
similar event with respect to any properties or assets of the Company or
any of its Subsidiaries and (iii) under any policy of insurance required
to be maintained under Section 7.03.
"Register" shall have the meaning provided in subsection
12.04(c).
"Regulation D" shall mean Regulation D of the Board as from
time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and any successor to all or a portion thereof.
"Release" means disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying,
seeping, placing, pouring and the like, into or upon any land or water or
air, or otherwise entering into the environment.
"Replaced Bank" shall have the meaning provided in Section
1.13.
"Replacement Bank" shall have the meaning provided in
Section 1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
"Required Banks" shall mean collectively (and not
individually) Non- Defaulting Banks the sum of whose outstanding Term
Loans, Term Loan Commitments, Revolving Credit Commitments (or, after the
Total Revolving Credit Commitment has been terminated, outstanding
Revolving Loans, Local Currency Loans and Revolving Percentages of
outstanding Swingline Loans and Letter of Credit Outstanding) constitute
greater than 50% of the sum of (i) the total outstanding Term Loans of
Non-Defaulting Banks, or the Total Term Loan Commitment then in effect
and (ii) the Total Revolving Credit Commitment less the aggregate
Revolving Credit Commitments of Defaulting Banks (or, after the Total
Revolving Credit Commitment has been terminated, the total outstanding
Revolving Loans and Local Currency Loans of Non-Defaulting Banks and the
aggregate Revolving Percentages of all Non-Defaulting Banks of the total
outstanding Swingline Loans and Letter of Credit Outstanding at such
time).
"Required Currency" shall have the meaning provided in
Section 12.18.
"Reset Date" shall have the meaning provided in Section 1.15.
"Retiree Welfare Plan" shall mean any employee welfare
benefit plan (within the meaning of section 3(l) of ERISA) which provides
benefits to retired or other former employees of the Borrower or any of
its Subsidiaries (other than continuation of group health plan coverage
under the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, or pursuant to applicable State law).
"Returns" shall have the meaning provided in Section 6.22.
"Revolving Bank" shall mean at any time each Bank with a
Revolving Credit Commitment or with outstanding Revolving Loans.
"Revolving Credit Borrowing" shall mean a Borrowing comprised
of Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to
each Bank, the amount set forth opposite such Bank's name in Annex I
directly below the column entitled "Revolving Credit Commitment," as the
same may be reduced from time to time pursuant to Section 3.02, Section
3.03 and/or Section 9.
"Revolving Credit Facility" shall mean the Facility evidenced
by the Total Revolving Credit Commitment.
"Revolving Extensions of Credit" shall mean as to any
Revolving Bank at any time, an amount equal to the sum of (a) the
aggregate principal amount of all Revolving Loans made by such Bank then
outstanding, (b) such Bank's Revolving Percentage of the Letters of
Credit Outstanding and (c) such Bank's Revolving Percentage of the
aggregate principal amount of Swingline Loans then outstanding.
"Revolving Loan" shall have the meaning provided in Section
1.01(A)(f).
"Revolving Loan Maturity Date" shall mean the sixth
anniversary of the Initial Borrowing Date.
"Revolving Note" shall have the meaning provided in Section
1.05(d).
"Revolving Percentage" shall mean at any time for each
Revolving Bank, with respect to Revolving Loans, Swingline Loans and
Letters of Credit, the percentage obtained by dividing such Revolving
Bank's Revolving Credit Commitment by the Total Revolving Credit
Commitment, provided that if the Total Revolving Credit Commitment has
been terminated, the Revolving Percentage of each Revolving Bank shall be
determined by dividing such Revolving Bank's Revolving Credit Commitment
immediately prior to such termination by the Total Revolving Credit
Commitment immediately prior to such termination.
"Rollover Amount" shall have the meaning provided in
Section 8.09(b).
"S&P" shall mean Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc.
"Scheduled U.S. Dollar A Repayment" shall have the meaning
provided in Section 4.02(A)(b)(i).
"Scheduled Canadian Dollar A Repayment" shall have the
meaning provided in Section 4.02(A)(b)(ii).
"Scheduled U.K. A Repayment" shall have the meaning provided
in Section 4.02(A)(b)(iii).
"Scheduled B Repayment" shall have the meaning provided in
Section 4.02(A)(b)(iv).
"Scheduled C Repayment" shall have the meaning provided in
Section 4.02(A)(b)(v).
"Scheduled Repayment" shall mean any Scheduled U.S. Dollar A
Repayment, Scheduled Canadian Dollar A Repayment, Scheduled U.K. A
Repayment, Scheduled B Repayment or any Scheduled C Repayment.
"SEC" shall mean the Securities and Exchange Commission or
any successor thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning provided in the
Security Agreement.
"Security Agreement" shall have the meaning provided in
Section 5.10(b).
"Security Agreement Collateral" shall mean all "Collateral"
as defined in the Security Agreement.
"Security Documents" shall mean and include the Security
Agreement, the Pledge Agreement, the Indemnity, Subrogation and
Contribution Agreement, the Guaranty, each Mortgage, and each Additional
Security Document, if any.
"Senior Subordinated Note Documents" shall mean and include
each of the Senior Subordinated Note Indenture and the Senior
Subordinated Notes, as the same may be entered into, modified,
supplemented or amended from time to time pursuant to the terms hereof
and thereof.
"Senior Subordinated Note Indenture" shall mean one or more
Indentures that will be entered into by and between the Company and the
Subsidiary Guarantors and the trustee for the holders of the Senior
Subordinated Notes or the purchasers of the Senior Subordinated Notes, as
applicable, in the form referred to in, or having the terms permitted by,
Section 8.04(c), as the same may be entered into, modified, amended or
supplemented from time to time in accordance with the terms hereof and
thereof.
"Senior Subordinated Notes" shall mean the senior
subordinated notes of the Company that may be issued pursuant to a Senior
Subordinated Note Indenture and as the same may be modified, supplemented
or amended from time to time pursuant to the terms hereof and thereof.
"Shareholders' Agreements" shall have the meaning set forth
in Section 5.13.
"Spot Exchange Rate" shall mean, on any day, with respect to
any Alternative Currency or Local Currency, the spot rate at which U.S.
Dollars are offered on such day by The Chase Manhattan Bank in London for
such Alternative Currency or Local Currency at approximately 11:00 A.M.
(London time).
"Stated Amount" of each Letter of Credit shall mean the
maximum amount available to be drawn thereunder (regardless of whether
any conditions for drawing could then be met).
"Sterling" or "(pound)" shall mean the lawful money of the
United Kingdom.
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having
by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the time
stock of any class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at
the time owned by such Person directly or indirectly through Subsidiaries
and (ii) any partnership, association, joint venture or other entity
(other than a corporation) in which such Person directly or indirectly
through Subsidiaries, has more than a 50% equity interest at the time.
"Subsidiary Borrowers" shall mean (i) each Subsidiary of the
Company listed in Schedule I hereto and (ii) each other Subsidiary as to
which an Election to Participate has been delivered and an Election to
Terminate has not
been delivered.
"Subsidiary Guarantor" shall mean each Subsidiary of the
Company that is or becomes a party to the Guaranty.
"Swingline Expiry Date" shall mean the date which is five
Business Days prior to the Revolving Loan Maturity Date.
"Swingline Loan" shall have the meaning provided in
Section 1.01(B).
"Swingline Note" shall have the meaning provided in
Section 1.05(a).
"Syndication Agent" shall mean Merrill Lynch Capital
Corporation.
"Tax Allocation Agreements" shall have the meaning provided
in Section 5.13.
"Taxes" shall have the meaning provided in Section 4.04.
"TD" shall mean Toronto Dominion (Texas) Inc.
"Term Loan" shall mean each U.S. Dollar A Term Loan, each
Canadian Dollar A Term Loan, each U.K. A Term Loan, each B Term Loan and
each C Term Loan.
"Term Loan Commitment" shall mean, with respect to each Bank
at any time, the sum of the U.S. Dollar A Term Loan Commitment, the
Canadian Dollar A Term Loan Commitment, the U.K. A Term Loan Commitment,
the B Term Loan Commitment and the C Term Loan Commitment of such Bank at
such time.
"Term Loan Facilities" shall mean the U.S. Dollar A Term Loan
Facility, the Canadian Dollar A Term Loan Facility, the U.K. A Term Loan
Facility, the B Term Loan Facility and the C Term Loan Facility.
"Test Period" shall mean for any determination made on a
specific date, the four consecutive fiscal quarters of the Company then
last ended (taken as one accounting period) except as otherwise
specifically set forth in Section 10(B).
"THL" shall mean Thomas H. Lee Company, a sole proprietorship
located in Massachusetts.
"THL Affiliates" shall mean any Affiliate of THL, provided
that for purposes of the definition of "Change of Control Event", the
term THL Affiliate shall not include any portfolio company of either THL
or any Affiliate of THL.
"THL Investor" shall mean and include Thomas H. Lee Equity
Fund, III L.P., Thomas H. Lee Foreign Fund III, L.P. and THL-CCI Limited
Partnership, THL FSI Equity Investors, L.P., or any limited or general
partner, stockholder, officer, employee or consultant of such THL
Investor or any officer, employee or consultant of THL; provided that for
the purposes of making calculations under the definition of "Change of
Control Event", the aggregate amount of equity of the Company
attributable to consultants of THL and consultants of THL Investors may
not exceed $3,000,000.
"Total B Term Loan Commitment" shall mean the sum of the B
Term Loan Commitments of each of the Banks.
"Total C Term Loan Commitment" shall mean the sum of the C
Term Loan Commitments of each of the Banks.
"Total Canadian Dollar A Term Loan Commitment" shall mean the
sum of the Canadian Dollar A Term Loan Commitments of each of the
Canadian Dollar A Term Loan Banks.
"Total Commitment" shall mean the sum of the Total Term Loan
Commitment and the Total Revolving Credit Commitment.
"Total Local Currency Loan Exposure" shall mean at any time,
the aggregate amount of the Local Currency Loan Exposures at such time.
"Total Revolving Credit Commitment" shall mean the sum of the
Revolving Credit Commitments of each of the Banks.
"Total Revolving Extensions of Credit" shall mean at any
time, the aggregate amount of the Revolving Extensions of Credit at such
time.
"Total Term Loan Commitment" shall mean the sum of the Total
U.S. Dollar A Term Loan Commitment, the Total Canadian Dollar A Term Loan
Commitment, the Total U.K. A Term Loan Commitment, the Total B Term Loan
Commitment and the Total C Term Loan Commitment.
"Total U.K. A Term Loan Commitment" shall mean the sum of the
U.K. A Term Loan Commitments of each of the U.K. A Term Loan Banks.
"Total U.S. Dollar A Term Loan Commitment" shall mean the sum
of the U.S. Dollar A Term Loan Commitments of each of the U.S. Dollar A
Term Loan Banks.
"Total Unutilized Revolving Credit Commitment" shall mean, at
any time, (i) the Total Revolving Credit Commitment at such time less
(ii) the sum of the Total Revolving Extensions of Credit and the
aggregate Local Currency Loan Exposure at such time.
"Transaction" shall mean, collectively, (i) the
Recapitalization, (ii) the incurrence of Loans and the issuance of
Letters of Credit on the Initial Borrowing Date, (iii) the entering into
of the Senior Subordinated Note Documents and the issuance of the Senior
Subordinated Notes pursuant thereto, (iv) the refinancing of the Existing
Loan Agreement, (v) the payment of fees and expenses in connection with
the foregoing and (vi) the Permitted Receivables Financing.
"Type" shall mean any type of Loan determined with respect to
the interest option applicable thereto, i.e., a Base Rate Loan or a
Eurodollar Loan or, in the case of Canadian Dollar A Term Loans, a
Canadian Prime Loan or a B/A Rate Loan only.
"UCC" shall mean the Uniform Commercial Code as in effect
from time to time in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the actuarial present value of the accumulated
plan benefits under the Plan as of the close of its most recent plan year
exceeds the fair market value of the assets allocable thereto, each
determined in accordance with Statement of Financial Accounting Standards
No. 35, based upon the actuarial assumptions used by the Plan's actuary
in the most recent annual valuation of the Plan.
"Unpaid Drawing" shall have the meaning provided in Section
2.03(a).
"U.K. A TL Percentage" shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is equal to the sum of
the aggregate principal amount of all U.K. A Term Loans outstanding at
such time and the denominator of which is equal to the sum of the
aggregate principal amount of all Term Loans outstanding at such time.
"U.K. A Term Loan" shall have the meaning provided in
Section 1.01(A)(c).
"U.K. A Term Loan Bank" shall mean a Bank with a U.K. A Term
Loan Commitment.
"U.K. A Term Loan Commitment" shall mean, with respect to
each U.K. A Term Loan Bank, the amount set forth opposite such Bank's
name in Annex I directly below the column entitled "U.K. A Term Loan
Commitment," as the same may be terminated pursuant to Section 3.03
and/or Section 9.
"U.K. A Term Loan Facility" shall mean the Facility evidenced
by the Total U.K. A Term Loan Commitment.
"U.K. A Term Loan Maturity Date" shall mean the sixth
anniversary of the Initial Borrowing Date.
"U.K. A Term Note" shall have the meaning provided in
Section 1.05(d).
"U.K. Administrative Agent" shall have the meaning provided
in the first paragraph of this Agreement and shall include any successor
to the U.K. Administrative Agent appointed pursuant to Section 11.10.
"U.K. Borrower" shall mean Fisher Scientific U.K., Limited, a
company incorporated under the laws of the United Kingdom and a
Wholly-Owned Foreign Subsidiary.
"U.K. Holding Company" shall mean Fisher Scientific Holding
U.K. Limited, a company incorporated in England and a Wholly-Owned
Foreign Subsidiary of the Company.
"U.K. Qualifying Bank" means any Bank (or proposed Eligible
Transferee) which:
(a) is a bank for the purposes of section 349 of the UK
Income and Corporation Taxes Act 1988; and
(b) with respect to any interest payable to any Bank
hereunder, or which would be payable to any proposed
Eligible Transferee, such Bank or proposed Eligible
Transferee is, or would be, within the charge to UK
corporation tax as respects such interest at the time
when such interest is paid.
"U.S. Dollars" and the sign "$" shall each mean freely
transferable lawful money of the United States of America.
"U.S. Dollar Amount" means, in relation to any Letter of
Credit that provides for payment of any drawing thereunder in a Local
Currency, the amount determined as provided in Section 2.07.
"U.S. Dollar A TL Percentage" shall mean, at any time, a
fraction (expressed as a percentage) the numerator of which is equal to
the sum of the aggregate principal amount of all U.S. Dollar A Term Loans
outstanding at such time and the denominator of which is equal to the sum
of the aggregate principal amount of all Term Loans outstanding at such
time.
"U.S. Dollar A Term Loan" shall have the meaning provided in
Section 1.01(A)(a).
"U.S. Dollar A Term Loan Bank" shall mean a Bank with a U.S.
Dollar A Term Loan Commitment.
"U.S. Dollar A Term Loan Commitment" shall mean, with respect
to each U.S. Dollar A Term Loan Bank, the amount set forth opposite such
Bank's name in Annex I directly below the column entitled "U.S. Dollar A
Term Loan Commitment," as the same may be terminated pursuant to Section
3.03 and/or Section 9.
"U.S. Dollar A Term Loan Facility" shall mean the Facility
evidenced by the Total U.S. Dollar A Term Loan Commitment.
"U.S. Dollar A Term Loan Maturity Date" shall mean the sixth
anniversary of the Initial Borrowing Date.
"U.S. Dollar A Term Note" shall have the meaning provided in
Section 1.05(d).
"Waivable Mandatory Repayment" shall have the meaning
provided in Section 4.02(C).
"Wholly-Owned Domestic Subsidiary" shall mean, as to any
Person, any Wholly-Owned Subsidiary of such Person which is a Domestic
Subsidiary.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any
Person, any Wholly-Owned Subsidiary of such Person which is a Foreign
Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's
qualifying shares and/or other nominal amounts of shares required to be
held other than by such Person under applicable law) is at the time owned
by such Person and/or one or more Wholly-Owned Subsidiaries of such
Person and (ii) any partnership, association, joint venture or other
entity in which such Person and/or one or more Wholly-Owned Subsidiaries
of such Person has a 100% equity interest at such time.
"Working Capital" shall mean the excess of Consolidated
Current Assets over Consolidated Current Liabilities.
"Working Day" shall mean, with respect to Borrowings in any
Alternative Currency or Local Currency, any Business Day other than a
Business Day on which commercial banks in the principal financial center
of such Alternative Currency or Local Currency are authorized or required
by law to close.
"Written" (whether lower or upper case) or "in writing" shall
mean any form of written communication or a communication by means of
telex, facsimile device, telegraph or cable.
(B) Interim Financial Calculations. For purposes of
determining the Leverage Ratio and Interest Coverage Ratio and
determining compliance with Sections 8.10, 8.11 and 8.12:
(a) for determinations made prior to the end of FYE 1998 in
connection with the Interest Coverage Ratio, minimum consolidated
EBITDA in Section 8.10 and the Leverage Ratio, Consolidated EBITDA
for the period of four consecutive fiscal quarters ended (i) FQE1
1998, shall be deemed to be equal to the product of Consolidated
EBITDA for the fiscal quarter then ended multiplied by four, (ii)
FQE2 1998, shall be deemed to be equal to the product of
Consolidated EBITDA for the two consecutive fiscal quarters then
ended multiplied by two and (iii) FQE3 1998, shall be deemed to be
equal to the product of Consolidated EBITDA for the three
consecutive fiscal quarters then ended multiplied by four- thirds;
and
(b) for determinations made prior to the end of FYE 1998,
Consolidated Interest Expense for the period of four consecutive
fiscal quarters ended (i) FQE2 1998, shall be deemed to be equal to
the product of Consolidated Interest Expense for the two
consecutive fiscal quarters then ended multiplied by two and (ii)
FQE3 1998, shall be deemed to be equal to the product of
Consolidated Interest Expense for the three consecutive fiscal
quarters then ended multiplied by four- thirds.
SECTION 11. The Agents.
11.01 Appointment. Each Bank hereby irrevocably designates
and appoints each of Chase, Chase Canada and Chase U.K. as Administrative
Agent, Canadian Administrative Agent and U.K. Administrative Agent,
respectively, of such Bank (such term to include for purposes of this
Section 11, Chase acting as Collateral Agent) to act as specified herein
and in the other Credit Documents, and each such Bank hereby irrevocably
authorizes each of Chase, Chase Canada and Chase U.K. as the
Administrative Agent, Canadian Administrative Agent and U.K.
Administrative Agent, respectively, to take such action on its behalf
under the provisions of this Agreement and the other Credit Documents and
to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent, Canadian Administrative Agent and
U.K. Administrative Agent, respectively, by the terms of this Agreement
and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. The Administrative Agent, the Canadian
Administrative Agent and the U.K. Administrative Agent agree to act as
such upon the express conditions contained in this Section 11.
Notwithstanding any provision to the contrary elsewhere in this Agreement
or in any other Credit Document, the Administrative Agent, the Canadian
Administrative Agent and the U.K. Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth herein or in
the other Credit Documents, or any fiduciary relationship with any Bank,
and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise
exist against the Administrative Agent, the Canadian Administrative Agent
or the U.K. Administrative Agent. The provisions of this Section 11 are
solely for the benefit of the Administrative Agent, the Canadian
Administrative Agent and the U.K. Administrative Agent and the Banks, and
neither the Company nor any of its Subsidiaries shall have any rights as
a third party beneficiary of any of the provisions hereof. In performing
its functions and duties under this Agreement, the Administrative Agent,
the Canadian Administrative Agent and the U.K. Administrative Agent shall
act solely as agents of the Banks and the Administrative Agent, the
Canadian Administrative Agent and the U.K. Administrative Agent do not
assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for the Company or any of its
Subsidiaries.
11.02 Delegation of Duties. The Administrative Agent, the
Canadian Administrative Agent and the U.K. Administrative Agent may
execute any of their respective duties under this Agreement or any other
Credit Document by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent, the Canadian Administrative Agent and
the U.K. Administrative Agent shall not be responsible for the negligence
or misconduct of any agents or attorneys-in-fact selected by either of
them with reasonable care except to the extent otherwise required by
Section 11.03.
11.03 Exculpatory Provisions. None of the Administrative
Agent, the Canadian Administrative Agent, the U.K. Administrative Agent
or any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by either of them or such Person
under or in connection with this Agreement or the other Credit Documents
(except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by the Company,
any of its Subsidiaries or any of their respective officers contained in
this Agreement or the other Credit Documents, any other Document or in
any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent, the Canadian
Administrative Agent or the U.K. Administrative Agent under or in
connection with, this Agreement or any other Document or for any failure
of the Company or any of its Subsidiaries or any of their respective
officers to perform its obligations hereunder or thereunder. The
Administrative Agent, the Canadian Administrative Agent and the U.K.
Administrative Agent shall not be under any obligation to any Bank to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of this Agreement or the other
Documents, or to inspect the properties, books or records of the Company
or any of its Subsidiaries. The Administrative Agent, the Canadian
Administrative Agent and the U.K. Administrative Agent shall not be
responsible to any Bank for the effectiveness, genuineness, validity,
enforceability, collectability or sufficiency of this Agreement or any
other Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral
statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by the Administrative Agent, the Canadian
Administrative Agent or the U.K. Administrative Agent to the Banks or by
or on behalf of the Company or any of its Subsidiaries to the
Administrative Agent, the Canadian Administrative Agent or the U.K.
Administrative Agent or any Bank or be required to ascertain or inquire
as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained herein or therein or as to
the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default.
11.04 Reliance by Administrative Agent. The Administrative
Agent, the Canadian Administrative Agent and the U.K. Administrative
Agent shall be entitled to rely, and shall be fully protected in relying,
upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, facsimile, telex or teletype
message, statement, order or other document or conversation believed by
either of them to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Company or
any of its Subsidiaries), independent accountants and other experts
selected by the Administrative Agent, the Canadian Administrative Agent
or the U.K. Administrative Agent. Each of the Administrative Agent, the
Canadian Administrative Agent and the U.K. Administrative Agent shall be
fully justified in failing or refusing to take any action under this
Agreement or any other Credit Document unless it shall first receive such
advice or concurrence of the Required Banks or, when expressly required
hereby or thereby, all the Banks as it deems appropriate or it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent, the
Canadian Administrative Agent and the U.K. Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Credit Documents in accordance with a
request of the Required Banks or, when expressly required hereby or
thereby, all the Banks, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Banks.
11.05 Notice of Default. The Administrative Agent, the
Canadian Administrative Agent and the U.K. Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default unless the Administrative Agent, the Canadian
Administrative Agent or the U.K. Administrative Agent has actually
received notice from a Bank or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice
is a "notice of default." In the event that the Administrative Agent, the
Canadian Administrative Agent or the U.K. Administrative Agent receives
such a notice, the Administrative Agent, the Canadian Administrative
Agent or the U.K. Administrative Agent shall give prompt notice thereof
to the Banks. The Administrative Agent, the Canadian Administrative Agent
and the U.K. Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Banks; provided that, unless and until the Administrative Agent,
the Canadian Administrative Agent or the U.K. Administrative Agent shall
have received such directions, the Administrative Agent, the Canadian
Administrative Agent and the U.K. Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
11.06 Nonreliance on Administrative Agent and Other Banks.
Each Bank expressly acknowledges that none of the Administrative Agent,
the Canadian Administrative Agent, the U.K. Administrative Agent or any
of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates have made any representations or
warranties to it and that no act by the Administrative Agent, the
Canadian Administrative Agent or the U.K. Administrative Agent
hereinafter taken, including any review of the affairs of the Company or
any of its Subsidiaries, shall be deemed to constitute any representation
or warranty by the Administrative Agent, the Canadian Administrative
Agent or the U.K. Administrative Agent to any Bank. Each Bank represents
to the Administrative Agent, the Canadian Administrative Agent and the
U.K. Administrative Agent that it has, independently and without reliance
upon the Administrative Agent, the Canadian Administrative Agent or the
U.K. Administrative Agent or any other Bank, and based on such documents
and information as it has deemed appropriate, made its own appraisal of
and investigation into the business, assets, operations, property,
financial and other condition, prospects and creditworthiness of the
Company and its Subsidiaries and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Bank also represents that
it will, independently and without reliance upon the Administrative
Agent, the Canadian Administrative Agent or the U.K. Administrative Agent
or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, assets, operations, property, financial
and other condition, prospects and creditworthiness of the Company and
its Subsidiaries. The Administrative Agent, the Canadian Administrative
Agent and the U.K. Administrative Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, operations, assets, property, financial and
other condition, prospects or creditworthiness of the Company or any of
its Subsidiaries which may come into the possession of the Administrative
Agent, the Canadian Administrative Agent or the U.K. Administrative Agent
or any of their officers, directors, employees, agents, attorneys-in-fact
or affiliates.
11.07 Indemnification. The Banks agree to indemnify the
Administrative Agent, the Canadian Administrative Agent and the U.K.
Administrative Agent in their respective capacities as such ratably
according to the Banks' respective "percentages" as used in determining
the Required Banks at such time (with such "percentages" to be determined
as if there are no Defaulting Banks), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, reasonable expenses or disbursements of any kind whatsoever
which may at any time (including, without limitation, at any time
following the payment of the Obligations) be imposed on, incurred by or
asserted against the Administrative Agent, the Canadian Administrative
Agent or the U.K. Administrative Agent in their respective capacities as
such in any way relating to or arising out of this Agreement or any other
Credit Document, or any documents contemplated by or referred to herein
or the transactions contemplated hereby or any action taken or omitted to
be taken by the Administrative Agent, the Canadian Administrative Agent
or the U.K. Administrative Agent under or in connection with any of the
foregoing, but only to the extent that any of the foregoing is not paid
by the Company or any of its Subsidiaries, provided that no Bank shall be
liable to the Administrative Agent, the Canadian Administrative Agent or
the U.K. Administrative Agent for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements to the extent resulting from the
gross negligence or willful misconduct of the Administrative Agent, the
Canadian Administrative Agent or the U.K. Administrative Agent . To the
extent any Bank would be required to indemnify the Administrative Agent,
the Canadian Administrative Agent or the U.K. Administrative Agent
pursuant to the immediately preceding sentence but for the fact that it
is a Defaulting Bank, such Defaulting Bank shall not be entitled to
receive any portion of any payment or other distribution hereunder until
each other Bank shall have been reimbursed for the excess, if any, of the
aggregate amount paid by such Bank under this Section 11.07 over the
aggregate amount such Bank would have been obligated to pay had such
first Bank not been a Defaulting Bank. If any indemnity furnished to the
Administrative Agent, the Canadian Administrative Agent or the U.K.
Administrative Agent for any purpose shall, in the opinion of the
Administrative Agent, the Canadian Administrative Agent or the U.K.
Administrative Agent be insufficient or become impaired, the
Administrative Agent, the Canadian Administrative Agent or the U.K.
Administrative Agent may call for additional indemnity (subject to the
proviso of the first sentence hereof) and cease, or not commence, to do
the acts indemnified against until such additional indemnity is
furnished. The agreements in this Section 11.07 shall survive the payment
of all Obligations.
11.08 Administrative Agent in its Individual Capacity. The
Administrative Agent and its affiliates, including, without limitation,
the Canadian Administrative Agent and the U.K. Administrative Agent, may
make loans to, accept deposits from and generally engage in any kind of
business with the Company and its Subsidiaries as though the such Agents
were not the Administrative Agent, the Canadian Administrative Agent or
the U.K. Administrative Agent, respectively, hereunder. With respect to
the Loans made by each of them and all Obligations owing to each of them,
each of the Administrative Agent, the Canadian Administrative Agent and
the U.K. Administrative Agent shall have the same rights and powers under
this Agreement as any Bank and may exercise the same as though it were
not such Agent and the terms "Bank" and "Banks" shall include the such
Agent in its individual capacity.
11.09 Holders. The Administrative Agent, the Canadian
Administrative Agent and the U.K. Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment, transfer or endorsement
thereof, as the case may be, shall have been filed with the
Administrative Agent, the Canadian Administrative Agent or the U.K.
Administrative Agent, as applicable. Any request, authority or consent of
any Person or entity who, at the time of making such request or giving
such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or indorsee,
as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
11.10 Resignation of the Administrative Agent; Successor
Administrative Agent. The Administrative Agent, the Canadian
Administrative Agent and the U.K. Administrative Agent may resign as such
Agents upon 20 days' notice to the Banks. Upon the resignation of such
Agents, the Required Banks shall appoint from among the Banks a successor
Administrative Agent, Canadian Administrative Agent and U.K.
Administrative Agent which are banks or trust companies for the Banks
subject to prior approval by the Company (such approval not to be
unreasonably withheld), whereupon such successor agents shall succeed to
the rights, powers and duties of such Agents, and the terms
"Administrative Agent", "Canadian Administrative Agent" and "U.K.
Administrative Agent" shall include such successor agents effective upon
their appointment, and the resigning Agents' rights, powers and duties as
such Agents shall be terminated, without any other or further act or deed
on the part of such former Agents or any of the parties to this
Agreement. After the resignation of such Agents hereunder, the provisions
of this Section 11 shall inure to its benefit as to any actions taken or
omitted to be taken by either of them while they were Agents under this
Agreement.
11.11 Documentation Agent and Syndication Agent. The
Documentation Agent and the Syndication Agent shall have no duties or
liabilities under the Credit Documents in such capacity.
11.12 Letter of Credit Issuer. The provisions of this Section
11 shall apply to the Letter of Credit Issuer in its capacity as such,
mutatis mutandis.
SECTION 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Company agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay
all reasonable out-of-pocket costs and expenses of each Agent (including,
without limitation, the reasonable fees and disbursements of Cravath,
Swaine & Moore and local counsel) in connection with the negotiation,
preparation, execution and delivery of the Credit Documents and the
documents and instruments referred to therein and any amendment, waiver
or consent relating thereto and requested by any Credit Party and in
connection with the Agents' syndication efforts with respect to this
Agreement; (ii) pay all reasonable out-of-pocket costs and expenses of
each Agent and each of the Banks in connection with the enforcement of
the Credit Documents and the documents and instruments referred to
therein and, after an Event of Default shall have occurred and be
continuing, the protection of the rights of each of the Agents and each
of the Banks thereunder (including, without limitation, the reasonable
fees and disbursements of counsel for the Agents and the Banks), provided
that the Company shall be obligated to pay the fees and disbursements of
only one counsel to the Agents and the Banks pursuant to this clause (ii)
unless an Agent or Bank notifies the Company that it reasonably believes
that its legal position differs from the other Agents or Banks or that it
may be subject to different claims or defenses than the other Agents and
Banks, in which case the Company will also pay the reasonable fees and
disbursements of counsel of such Agent or Bank; (iii) pay and hold each
of the Banks harmless from and against any and all present and future
stamp, transfer, documentary and other similar taxes and all charges,
penalties or levies relating thereto with respect to the foregoing
matters and save each of the Banks harmless from and against any and all
liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to such Bank) to pay such taxes;
and (iv) indemnify each Agent and each Bank, their respective officers,
directors, trustees, employees, representatives, affiliates and agents
from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a
result of, or arising out of, or in any way related to, or by reason of,
(a) any investigation, litigation or other proceeding (whether or not any
Agent or any Bank is a party thereto) related to the entering into and/or
performance of this Agreement or any other Document or the use of the
proceeds of any Loans hereunder or the Transaction or the consummation of
any other transactions contemplated in any Document (but excluding any
such losses, liabilities, claims, damages or expenses to the extent
incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified), or (b) the actual or alleged presence of
Hazardous Materials in the air, surface water or groundwater or on the
surface or subsurface of any Real Property or any Environmental Claim, in
each case, including, without limitation, the reasonable fees and
disbursements of counsel and independent consultants incurred in
connection with any such investigation, litigation or other proceeding.
12.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the
continuation of an Event of Default, each Agent and each Bank is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Credit Party or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any
other Indebtedness at any time held or owing by such Agent or such Bank
(including, without limitation, to the extent permitted by applicable
law, by branches and agencies of such Agent and such Bank wherever
located) to or for the credit or the account of any Credit Party against
and on account of the Obligations and liabilities of such Credit Party to
such Agent or such Bank under this Agreement or under any of the other
Credit Documents, including, without limitation, all interests in
Obligations of such Credit Party purchased by such Bank pursuant to
Section 12.06(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Bank shall have made any
demand hereunder and although said Obligations, liabilities or claims, or
any of them, shall be contingent or unmatured. Notwithstanding anything
to the contrary contained in this Section 12.02, no Bank shall exercise
any such right of set-off without the prior consent of the Administrative
Agent or the Required Banks so long as the Obligations shall be secured
by any Real Property located in the State of California, it being
understood and agreed, however, that this sentence is for the sole
benefit of the Banks and may be amended, modified or waived in any
respect by the Required Banks without the requirement of prior notice to
or consent by any Credit Party and does not constitute a waiver of any
rights against any Credit Party or against any Collateral.
12.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex, facsimile or cable communication)
and mailed, telegraphed, telexed, telecopied, cabled or delivered, if to
any Credit Party, at the address specified opposite the Company's
signature below, or in the other relevant Credit Documents, as the case
may be; if to any Bank, at its address specified for such Bank on Annex
II; or, at such other address as shall be designated by any party in a
written notice to the other parties hereto. All such notices and
communications shall be mailed, telegraphed, telexed, telecopied or
cabled or sent by overnight courier, and shall be effective when
received.
12.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto; provided,
however, none of the Borrowers may assign or transfer any of its rights,
obligations or interest hereunder or under any other Credit Document
without the prior written consent of all of the Banks and, provided
further, that, although any Bank may transfer, assign or grant
participations in its rights hereunder, subject to Section 12.04(b) such
Bank shall remain a "Bank" for all purposes hereunder (and may not
transfer or assign all or any portion of its Commitments hereunder except
as provided in Section 12.04(b)) and the transferee, assignee or
participant, as the case may be, shall not constitute a "Bank" hereunder
and, provided further, that no Bank shall transfer or grant any
participation under which the participant shall have rights to approve
any amendment to or waiver of this Agreement or any other Credit Document
except to the extent such amendment or waiver would (i) extend the final
scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Revolving Loan Maturity Date)
in which such participant is participating, or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection
with a waiver of applicability of any post-default increase in interest
rates) or reduce the principal amount thereof, or increase the amount of
the participant's participation over the amount thereof then in effect
(it being understood that a waiver of any Default or Event of Default or
of a mandatory reduction in the Total Commitment shall not constitute a
change in the terms of such participation, and that an increase in any
Commitment or Loan shall be permitted without the consent of any
participant if the participant's participation is not increased as a
result thereof), (ii) consent to the assignment or transfer by any of the
Borrowers of any of their rights and obligations under this Agreement or
(iii) release all or substantially all of the Collateral under all of the
Security Documents (except as expressly provided in the Credit Documents)
supporting the Loans hereunder in which such participant is
participating. In the case of any such participation, the participant
shall not have any rights under this Agreement or any of the other Credit
Documents (the participant's rights against such Bank in respect of such
participation to be those set forth in the agreement executed by such
Bank in favor of the participant relating thereto) and all amounts
payable by each of the Borrowers hereunder shall be determined as if such
Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign or transfer all or
a portion of its Revolving Credit Commitment (and related outstanding
Obligations hereunder) and/or its outstanding Term Loans to its parent
company and/or any affiliate of such Bank which is at least 50% owned by
such Bank or its parent company or to one or more other Banks or Approved
Funds or (y) assign or transfer all, or if less than all, a portion equal
to at least $5,000,000 (or at least $1,000,000 in the case of any
assignment by Chase within fourteen Business Days of the Initial
Borrowing Date) in the aggregate for the assigning Bank or assigning
Banks, of such Revolving Credit Commitments and/or outstanding principal
amount of Term Loans hereunder to one or more Eligible Transferees, each
of which assignees shall become a party to this Agreement as a Bank by
execution of an Assignment and Assumption Agreement, provided that (i) at
such time Annex I shall be deemed modified to reflect the Commitments
(and/or outstanding Term Loans, as the case may be) of such new Bank and
of the existing Banks, (ii) upon surrender of the old Notes, new Notes
will be issued, at the applicable Borrower's expense, to such new Bank
and to the assigning Bank to the extent it is retaining any Commitments
or Loans, such new Notes to be in conformity with the requirements of
Section 1.05 (with appropriate modifications) to the extent needed to
reflect the revised Commitments (and/or outstanding Term Loans, as the
case may be), (iii) except in the case of a transfer of interest as part
of the CAM Exchange, the consent of the Administrative Agent shall be
required in connection with any such assignment pursuant to clause (y) of
this Section 12.04(b) (which consent shall not be unreasonably withheld)
and (iv) the Administrative Agent shall receive at the time of each such
assignment other than an involuntary transfer of assignment pursuant to a
CAM Exchange, from the assigning or assignee Bank, the payment of a
non-refundable assignment fee of $3,500 (except that only one fee shall
be payable in the case of contemporaneous assignments to more than one
fund managed or advised by the same investment advisor or an affiliate of
such investment advisor) and, provided further, that such transfer or
assignment will not be effective until recorded by the Administrative
Agent on the Register pursuant to Section 12.04(c). To the extent of any
assignment pursuant to this Section 12.04(b), the assigning Bank shall be
relieved of its obligations hereunder with respect to its assigned
Commitments and/or Loans but shall continue to be entitled to the benefit
of all indemnities hereunder as specified herein with respect to matters
arising out of the prior involvement of such assignor as a Bank
hereunder. At the time of each assignment pursuant to this Section
12.04(b) or replacement of a Bank pursuant to Section 1.13 to an Eligible
Transferee which is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Bank shall provide to the Company and the
Administrative Agent the appropriate Internal Revenue Service Forms (and,
if applicable a Section 4.04(b)(ii) Certificate) if required pursuant to
Section 4.04(b). To the extent that an assignment of all or any portion
of a Bank's Commitments and related outstanding Obligations pursuant to
Section 1.13 or this Section 12.04(b) would, at the time of such
assignment, result in increased costs and/or Taxes under Section 1.10,
1.11, 2.05 or 4.04 greater than those being charged by the respective
assigning Bank prior to such assignment, then the Company shall not be
obligated to pay such increased costs and/or Taxes in excess of the
amounts charged by the respective assigning Bank prior to the assignment
or indemnify such Eligible Transferee for such increased costs and/or
such increased amount of Taxes in excess of the amounts charged by the
respective assigning Bank prior to the assignment, unless such assignment
was made pursuant to the Company's request (although the Company shall be
obligated to pay any other increased costs and/or Taxes, of the type
described above and indemnify such Eligible Transferee for such increased
costs and/or Taxes resulting from changes after the date of the
respective assignment).
(c) Each of the Borrowers hereby designates the
Administrative Agent to serve as such Borrower's agent, solely for
purposes of this Section 12.04(c), to maintain a register (the
"Register") on which it will record the names and addresses of the Banks
and the Commitments from time to time of each of the Banks, the Loans
made by each of the Banks and each repayment in respect of the principal
amount of the Loans of each Bank. Failure to make any such recordation,
or any error in such recordation, shall not affect the Borrowers'
obligations in respect of such Loans. With respect to any Bank, the
transfer of the Commitments of such Bank and the rights to the principal
of, and interest on, any Loan made pursuant to such Commitments shall not
be effective until such transfer is recorded on the Register maintained
by the Administrative Agent with respect to ownership of such Commitments
and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitments and Loans shall remain owing
to the transferor. The registration of assignment or transfer of all or
part of any Commitments and Loans shall be recorded by the Administrative
Agent on the Register only upon the acceptance by the Administrative
Agent of a properly executed and delivered Assignment and Assumption
Agreement pursuant to Section 12.04(b). Coincident with the delivery of
such an Assignment and Assumption Agreement to the Administrative Agent
for acceptance and registration of assignment or transfer of all or part
of a Loan, or as soon thereafter as practicable, the assigning or
transferor Bank, shall surrender the Note evidencing such Loan, and
thereupon one or more new Notes in the same aggregate principal amount
shall be issued to the assigning or transferor Bank and/or the new Bank.
Each of the Borrowers agrees to indemnify the Administrative Agent, the
Canadian Administrative Agent and the U.K. Administrative Agent, as
applicable, from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent, the Canadian
Administrative Agent or the U.K. Administrative Agent in performing its
duties under this Section 12.04(c) except when caused by the gross
negligence or willful misconduct of the Administrative Agent, the
Canadian Administrative Agent or the U.K. Administrative Agent.
(d) Nothing in this Agreement shall prevent or prohibit any
Bank (without having to obtain the consent of Borrowers and/or the
Administrative Agent) from pledging all or any portion of its Loans and
Notes hereunder to secure obligations of such Bank, including any pledge
or assignments to a Federal Reserve Bank in support of borrowings made by
such Bank from such Federal Reserve Bank.
12.05 No Waiver, Remedies Cumulative. No failure or delay on
the part of any Agent or any Bank in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of
dealing between any Credit Party and any Agent or any Bank shall operate
as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and
remedies herein expressly provided are cumulative and not exclusive of
any rights or remedies which any Agent or any Bank would otherwise have.
No notice to or demand on any Credit Party in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agents or the
Banks to any other or further action in any circumstances without notice
or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees
that promptly after its receipt of each payment from or on behalf of any
Credit Party in respect of any Obligations of such Credit Party, it
shall, except as otherwise provided in this Agreement, distribute such
payment to the Banks (other than any Bank that has consented in writing
to waive its pro rata share of such payment) pro rata based upon their
respective shares, if any, of the Obligations with respect to which such
payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon
security, by the exercise of the right of setoff or banker's lien, by
counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise) which is applicable to the payment of the
principal of, or interest on, the Loans, Unpaid Drawings or Fees, of a
sum which with respect to the related sum or sums received by other Banks
is in a greater proportion than the total of such Obligation then owed
and due to such Bank bears to the total of such Obligation then owed and
due to all of the Banks immediately prior to such receipt, then such Bank
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Banks an interest in the Obligations of the
respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all of the Banks in such amount; provided
that if all or any portion of such excess amount is thereafter recovered
from such Bank, such purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without interest.
12.07 Calculations; Computations. (a) The financial
statements to be furnished to the Banks pursuant hereto shall be made and
prepared in accordance with GAAP consistently applied throughout the
periods involved (except as set forth in the notes thereto or as
otherwise disclosed in writing by the Company to the Banks); provided
that except as otherwise specifically provided herein; all computations
determining compliance with Sections 4.02 and 8, including definitions
used therein, shall utilize accounting principles and policies in effect
at the time of the preparation of, and in conformity with those used to
prepare, the FYE 1996 financial statements delivered to the Banks
pursuant to Section 7.01(c) except that such computations shall not in
any event (i) give effect to purchase accounting adjustments required or
permitted by APB 16 (including non-cash write-ups and non-cash charges
relating to inventory and fixed assets, in each case arising in
connection with the Company) and APB 17 (including non-cash charges
relating to intangibles and goodwill arising in connection with the
Company) or (ii) give effect to any charges in connection with accounting
for the Recapitalization.
(b) All computations of interest and Fees hereunder shall be
made on the actual number of days elapsed over a year of 360 days,
provided that interest on Base Rate Loans based on the Prime Rate shall
be computed on the actual number of days elapsed over a year of 365 or
366 days, as the case may be and interest on Canadian Prime Loans, B/A
Rate Loans and U.K. A Term Loans shall be computed on the actual number
of days elapsed over a year of 365 days.
12.08 Governing Law; Submission to Jurisdiction; Venue. (a)
THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any
legal action or proceeding with respect to this Agreement or any other
Credit Document may be brought in the courts of the State of New York or
of the United States for the Southern District of New York, and, by
execution and delivery of this Agreement, each Credit Party hereby
irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. Each
Credit Party hereby further irrevocably waives any claim that any such
courts lack jurisdiction over such Credit Party, and agrees not to plead
or claim, in any legal action or proceeding with respect to this
Agreement or any other Credit Document brought in any of the aforesaid
courts, that any such court lacks jurisdiction over such Credit Party.
Each Credit Party irrevocably consents to the service of process in any
such action or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to such Credit Party, at its address
for notices pursuant to Section 12.03, such service to become effective
30 days after such mailing. Each Credit Party hereby irrevocably waives
any objection to such service of process and further irrevocably waives
and agrees not to plead or claim in any action or proceeding commenced
hereunder or under any other Credit Document that service of process was
in any way invalid or ineffective. Nothing herein shall affect the right
of any Agent, any Bank or the holder of any Note to serve process in any
other manner permitted by law or to commence legal proceedings or
otherwise proceed against any Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Agreement or any other Credit Document brought in the courts
referred to in clause (a) above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient
forum.
12.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A complete set of counterparts executed by all the parties
hereto shall be lodged with the Borrower and the Administrative Agent.
12.10 Effectiveness. This Agreement shall become effective on
the date (the "Effective Date") on which each of the Borrowers, the
Administrative Agent, the Canadian Administrative Agent, the U.K.
Administrative Agent, the Syndication Agent, the Documentation Agent and
each of the Banks shall have signed a counterpart hereof (whether the
same or different counterparts) and shall have delivered the same to the
Administrative Agent at the Notice Office or, in the case of the Banks,
shall have given to the Administrative Agent telephonic (confirmed in
writing), written, telex or facsimile notice (actually received) at such
office that the same has been signed and mailed to it. The Administrative
Agent will give the Company and each Bank prompt written notice of the
occurrence of the Effective Date.
12.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
12.12 Amendment or Waiver, etc. (a) Neither this Agreement
nor any other Credit Document nor any terms hereof or thereof may be
changed, waived, discharged or terminated unless such change, waiver,
discharge or termination is in writing signed by the respective Credit
Parties party thereto and the Required Banks, provided that no such
change, waiver, discharge or termination shall, without the consent of
each Bank (other than a Defaulting Bank) (with Obligations being directly
affected thereby in the case of the following clause (i)), (i) extend the
final scheduled maturity of any Loan or Note or extend the stated
maturity of any Letter of Credit beyond the Revolving Loan Maturity Date,
or reduce the rate or extend the time of payment of interest or Fees
thereon, or reduce the principal amount thereof, (ii) release all or
substantially all of the Collateral (except as expressly provided in the
Security Documents) under all the Security Documents, (iii) amend, modify
or waive any provision of this Section 12.12, (iv) reduce the percentage
specified in the definition of Required Banks (it being understood that,
with the consent of the Required Banks, additional extensions of credit
pursuant to this Agreement may be included in the determination of the
Required Banks on substantially the same basis as the extensions of Term
Loans and Revolving Credit Commitments are included on the Effective
Date), (v) consent to the assignment or transfer by any Borrower of any
of its rights and obligations under this Agreement or (vi) release the
Company or any material Subsidiary Guarantor from its guarantee under the
Guaranty (except as expressly provided in the Guaranty), or limit its
liability in respect of such Guaranty; provided further, that no such
change, waiver, discharge or termination shall (u) increase the
Commitments of any Bank over the amount thereof then in effect without
the consent of such Bank (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of
Default or of a mandatory reduction in the Total Commitment shall not
constitute an increase of the Commitment of any Bank, and that an
increase in the available portion of any Commitment of any Bank shall not
constitute an increase in the commitment of such Bank), (v) without the
consent of Chase or the Letter of Credit Issuer, as the case may be,
amend, modify or waive any provision of Section 2 or alter its rights or
obligations with respect to Letters of Credit or Swingline Loans, (w)
without the consent of any Agent, amend, modify or waive any provision of
Section 11 as same applies to such Agent or any other provision as same
relates to the rights or obligations of such Agent, (x) without the
consent of the Collateral Agent, amend, modify or waive any provision
relating to the rights or obligations of the Collateral Agent, (y)
without the consent of the Majority Banks of each Facility which is being
allocated a lesser prepayment or commitment reduction as a result of the
actions described below, alter the required application of any
prepayments (or commitment reduction), as between the various Facilities
pursuant to Section 4.01(a) and 4.02(B)(b) (although the Required Banks
may waive, in whole or in part, any such prepayment, repayment or
commitment reduction so long as the application, as amongst the various
Facilities, of any such prepayment, repayment or commitment reduction
which is still required to be made is not altered), (z) without the
consent of the Majority Banks of the respective Facility, amend the
definition of Majority Banks or amend, modify or waive the order of the
application of any payment or prepayment or (aa) without the consent of
the Majority Banks of each Facility, amend, modify or waive any Scheduled
Repayment of any Facility (without extending the final scheduled maturity
thereof). A waiver or amendment to cure any Default or Event of Default
shall not be effective for purposes of Section 5.02 unless such waiver or
amendment has been consented to by the Majority Banks under the Revolving
Credit Facility.
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clause (a)(i) through (v), inclusive, of the first
proviso to Section 12.12(a), the consent of the Required Banks is
obtained but the consent of one or more of such other Banks whose consent
is required is not obtained, then the Company shall have the right, so
long as all non-consenting banks whose individual consent is required are
treated as described in either clause (A) or (B) below, to either (A)
replace each such non-consenting Bank or Banks with one or more
Replacement Banks pursuant to Section 1.13 so long as at the time of such
replacement, each such Replacement Bank consents to the proposed change,
waiver, discharge or termination or (B) terminate such non-consenting
Bank's Commitments and repay in full its outstanding Loans, in accordance
with Sections 3.02(b) and/or 4.01(b), provided that, unless the
Commitments terminated and Loans repaid pursuant to preceding clause (B)
are immediately replaced in full at such time through the addition of new
Banks or the increase of the Commitments and/or outstanding Loans of
existing Banks (who in each case must specifically consent thereto), then
in the case of any action pursuant to preceding clause (B) the Required
Banks (determined before giving effect to the proposed action) shall
specifically consent thereto, provided further, that the Company shall
not have the right to replace a Bank solely as a result of the exercise
of such Bank's rights (and the withholding of any required consent by
such Bank) pursuant to the second proviso to Section 12.12(a).
12.13 Survival. All indemnities set forth herein including,
without limitation, in Section 1.10, 1.11, 2.05, 4.04, 11.07 or 12.01,
shall survive the execution and delivery of this Agreement and the
making, repayment and assignment of the Loans.
12.14 Domicile of Loans. Each Bank may transfer and carry its
Loans (other than (a) Canadian Dollar A Term Loans, which, at all times,
shall be carried by and for the account of Canadian lending offices and
(b) U.K. Dollar A Term Loans which, at all times, shall be carried by and
for the account of U.K. lending offices) at, to or for the account of any
branch office, subsidiary or affiliate of such Bank; provided, that the
Company shall not be responsible for costs arising under Section 1.10,
1.11, 2.05 or 4.04 resulting from any such transfer (other than a
transfer pursuant to Section 1.12) to the extent such costs would not
otherwise be applicable to such Bank in the absence of such transfer. If
a Bank changes its applicable lending office, the Company shall not be
required to indemnify any Bank, or to pay any additional amounts to any
Bank, in respect of United States Federal withholding tax pursuant to
Section 4.04(a) on payments to the new lending office, to the extent that
the obligation to withhold such amounts existed on the date such Bank
designated such new lending office as its applicable lending office;
provided, however, that this sentence shall not apply to the extent the
indemnity payment or additional amounts such Bank, through such new
lending office, would be entitled to receive (without regard to this
sentence) does not exceed the indemnity payment or additional amounts
such Bank would have been entitled to receive in the absence of such
designation; provided further that, notwithstanding any other provision
in this Agreement, the U.K. A Term Loan to the U.K. Borrower or any Local
Currency Loan made to an Additional U.K. Subsidiary Borrower that has
notified the Administrative Agent pursuant to Section 1.18 that Section
12.14 is applicable shall be made by a U.K. Qualifying Bank, except to
the extent any Bank other than a U.K. Qualifying Bank would be entitled
to payment under this Agreement solely as a result of a CAM Exchange
pursuant to Section 1.17 of this Agreement, in which case any such
non-U.K. Qualifying Bank would be entitled to payment under the U.K. A
Term Loan to the U.K. Borrower.
12.15 Confidentiality. (a) Each of the Banks agrees that it
will use its reasonable efforts not to disclose without the prior consent
of the Company (other than to its employees, auditors, counsel or other
professional advisors, to affiliates or to another Bank if the Bank or
such Bank's holding or parent company in its sole discretion determines
that any such party should have access to such information) any
information with respect to the Company or any of its Subsidiaries which
is furnished pursuant to this Agreement, provided, that any Bank may
disclose any such information (a) as has become generally available to
the public, (b) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Bank or
to the Federal Reserve Board or the Federal Deposit Insurance Corporation
or similar organizations (whether in the United States or elsewhere) or
their successors or to the National Association of Insurance
Commissioners (to the extent necessary to receive the benefits of any law
or regulation governing such Bank's investments), (c) as may be required
or appropriate in response to any summons or subpoena or in connection
with any litigation, (d) to comply with any law order, regulation or
ruling applicable to such Bank, (e) to the National Association of
Insurance Commissioners or any similar organization or any nationally
recognized rating agency that requires access to information abut such
Bank's investment portfolio in connection with ratings issued with
respect to such Bank, (f) to any prospective transferee or participant in
connection with any contemplated assignment, grant of a participation or
transfer of any of the Commitments and/or Loans or any interest therein
by such Bank and (g) any direct or indirect counterparty with a Bank or
its affiliate in a swap agreement with respect to such Bank's Loans;
provided, that, in the case of clauses (f) and (g), such prospective
transferee or contractual counterparty executes an agreement with such
Bank, for the benefit of such Bank and the applicable Borrower,
containing provisions substantially identical to those contained in this
Section.
(b) Each of the Borrowers hereby acknowledges and agrees that
each Bank may share with any of its affiliates any information related to
the Company or any of its Subsidiaries (including, without limitation,
any nonpublic customer information regarding the creditworthiness of any
Credit Party, provided that such Persons shall be subject to the
provisions of this Section 12.15 to the same extent as such Bank).
12.16 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR
THEREBY.
12.17 Integration. This Agreement, together with all Annexes
and Schedules hereto, and the other Credit Documents represent the entire
agreement of the Credit Parties, the Agents and the Banks with respect to
the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by any Credit Party, any
Agent or any Bank relative to subject matter hereof or thereof not
expressly set forth or referred to herein or in the other Annexes,
Schedules or Credit Documents.
12.18. Currency of Account; Judgment Currency. Except to the
extent this Agreement expressly permits otherwise, U.S. Dollars are the
sole currency of account and payment for all sums payable by any Borrower
or any Bank under or in connection with the Obligations and this
Agreement, and Letters of Credit, Unpaid Drawings and Loans hereunder
shall be denominated in U.S. Dollars. The obligations of each Borrower in
respect of this Agreement due to any party hereto shall, notwithstanding
any judgment in a currency (the "Judgment Currency") other than the
currency in which such obligations are required to be paid hereunder (the
"Required Currency"), be discharged only to the extent that on the
Business Day following receipt by such party of any sum adjudged to be so
due in the Judgment Currency such party may in accordance with normal
banking procedures purchase the Required Currency with the Judgment
Currency; if the amount of the Required Currency so purchased is less
than the sum originally due to such party in the Required Currency, each
of the Borrowers agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such party against such loss, and if the
amount of the Required Currency so purchased exceeds the sum originally
due to any party to this Agreement, such party agrees to remit to such
Borrower such excess; provided that such party shall not have any
obligation to remit any such excess to such Borrower as long as a Default
by such Borrower under this Agreement has occurred and is continuing, in
which case such excess may be applied by such party to the Obligations.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date
first above written.
FISHER SCIENTIFIC INTERNATIONAL INC.
By: /s/ Todd DuChene
__________________________________
Name: Todd DuChene
Title: Vice President, General
Counsel and Secretary
Address for Notices:
Fisher Scientific International Inc.
Liberty Lane
Hampton, New Hampshire 03842
Facsimile No.: (603) 929-2703
Attn: Todd Duchene, General Counsel
FISHER SCIENTIFIC U.K., LIMITED
By: /s/ Rick Lukianuk
__________________________________
Name: Rick Lukianuk
Title: Director
Address for Notices:
Fisher Scientific U.K., Limited
Bishop's Meadow Rd.
Loughborough LE11 5RG U.K.
Attn: Sally Reynolds, Corporate
Secretary
FISHER SCIENTIFIC LIMITED
By: /s/ Todd DuChene
__________________________________
Name: Todd DuChene
Title: Vice President
Address for Notices:
Fisher Scientific Limited
112 Colonnade Rd.
Napean, Ontario
Canada
Attn: Corporate Secretary
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Bank
By: /s/ Bruce Borden
__________________________________
Name: Bruce Borden
Title: Vice President
THE CHASE MANHATTAN BANK OF
CANADA, as Canadian Administrative
Agent,
By: /s/ Christine Chan
__________________________________
Name: Christine Chan
Title: Vice President
CHASE MANHATTAN
INTERNATIONAL LIMITED, as U.K.
Administrative Agent,
By: /s/ Clarke S. Hurford
__________________________________
Name: Clarke S. Hurford
Title:
THE CHASE MANHATTAN BANK
DELAWARE, as Letter of Credit Issuer,
By: /s/ Michael Handago
__________________________________
Name: Michael Handago
Title: Vice President
MERRILL LYNCH CAPITAL
CORPORATION, as Syndication Agent
and as a Bank
By: /s/ Michael Zupon
__________________________________
Name: Michael Zupon
Title: Managing Director
DLJ CAPITAL FUNDING, INC., as
Documentation Agent and as a Bank
By: /s/ Harold Philipps
__________________________________
Name: Harold Philipps
Title: Managing Director
