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) July 2, 1999
DADE BEHRING INC.
(Exact name of registrant as specified in its charter)
Delaware 333-13523 36-3949533
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1717 Deerfield Road, Deerfield, Illinois 60015-0778
(Address of principal executive offices) (Zip Code)
<PAGE>
Item 5 Other Events
The Registrant announced on July 2, 1999 that it has closed
on June 29, 1999 under a new $1.25 billion senior bank
credit facility which replaces its current senior bank
credit facility. The new senior bank credit facility
consists of (i) a $275 million A term loan faclity, (ii) a
$300 million B term loan facility, (iii) a $300 million C
term loan facility, (iv) a $225 million A revolving loan
facility and (v) a $150 million B revolving loan facility.
Of the $1.25 billion senior credit facility, the Registrant
will use the $875 million term loan facilities and
approximately $37.5 million of the A revolving loan facility
to retire its old credit facility and pay fees and expenses,
in an aggregate amount of approximately $492.5 million, and
to repurchase shares of common stock from certain stock-
holders of Dade Behring Holdings, Inc., in an aggregate
amount of approximately $420 million.
The Registrant is a wholly-owned suibsidiary of Dade Behring
Holdings, Inc. which announced that it has repurchased
shares of common stock from certain stockholders with the
result that Hoechst AG's economic ownership in Dade Behring
Holdings, Inc. has increased to approximately 50% while the
Bain Capital and Goldman Sachs & Co. investment funds
continue to hold voting control.
Item 7 Financial Statements, Pro Forma Financial Information and
Exhibits
(c) Exhibits
See Index to Exhibits.
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, as amended, the Registrant has duly caused
this report to be signed on its behalf by the undersigned
hereunto duly authorized.
Dade Behring Inc.
(Registrant)
By: /s/ Glenn R. Richter
Name: Glenn R. Richter
Title: Senior Vice President and
Chief Financial Officer
(Duly Authorized Officer of
Registrant
Dated: July 26, 1999.
<PAGE>
Index to Exhibits
10.1 Credit Agreement dated as of June 29, 1999 by and
among Dade Behring Holdings, Inc., the Registrant,
Dade Behring Holdings GmbH, the lenders from time to
time a party thereto, Donaldson, Lufkin & Jenrette
Securities Corporation and Morgan Stanley Senior
Funding, Inc., as Co-Documentation Agents, Goldman
Sachs Credit Partners L.P., as Syndication Agent,
Co-Arranger and Co-Lead Book Runner, and Bankers
Trust Company, as Administrative Agent, Co-Arranger
and Co-Lead Book Runner.*
10.2 Pledge Agreement dated as of June 29, 1999 by and
between the Registrant and Bankers Trust Company, as
Collateral Agent.*
10.3 Amended and Restated Stockholders Agreement dated as
of April 14, 1999 by and among Dade Behring
Holdings, Inc., Hoechst AG and those investors
listed on the signature pages thereto.*
10.4 Recapitalization Agreement dated as of April 14,
1999 by and among Dade Behring Holdings, Inc.
Hoechst AG and those investors listed on the
signature pages thereto.*
99.1 Press Release related to the Dade Behring Holdings,
Inc. share repurchase program and the Dade Behring
Inc. proposed new senior bank credit facility.
* The Registrant agrees to furnish supplementally to
the Commission a copy of any omitted schedule or
exhibit to such agreement upon request by the
Commission.
N E W S R E L E A S E
DADE BEHRING
DADE BEHRING INC.
1717 Deerfield Road
P.O. Box 778
Deerfield, IL 60015-0778
847.267.5300
For Immediate Release
Contact: Fred Nachman for Dade Behring, 312-832-9300 x202
Joe Grillo for Bain Capital, 617-951-0000
Dade Behring Announces Closing of $1.25 Billion
Senior Secured Credit Facility
DEERFIELD, Ill. (July 2, 1999) - Dade Behring, a leading global
manufacturer and marketer of products and systems serving clinical
diagnostics, today announced it has closed a new $1.25 billion Senior
Secured Credit Facility. The bank credit facility replaces the
company's current senior bank credit facility.
Dade Behring has used a portion of the proceeds to complete a share
repurchase program announced on May 3, 1999. Under this program, Dade
Behring purchased outstanding stock from its non-Hoechst AG shareholders
and retired these shares, thus raising Hoechst AG's ownership in the
company to approximately 50 percent. Bain Capital and Goldman Sachs &
Co. will continue to hold voting control of the company.
With 1998 revenues of approximately $1.3 billion, Dade Behring is
among the largest clinical diagnostics companies worldwide and provides
the broadest available offering of products and systems for diagnostics
testing. Dade Behring is headquartered in Deerfield, Illinois, has
operations in 39 countries and works through distributors in other
regions.
# # #
/
CREDIT AGREEMENT
among
DADE BEHRING HOLDINGS, INC.,
DADE BEHRING INC.,
DADE BEHRING HOLDING GmbH,
VARIOUS LENDING INSTITUTIONS,
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
and
MORGAN STANLEY SENIOR FUNDING, INC.,
AS CO-DOCUMENTATION AGENTS,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
AS SYNDICATION AGENT, CO-ARRANGER AND CO-LEAD BOOK RUNNER,
and
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT,
CO-ARRANGER AND CO-LEAD BOOK RUNNER
___________________________________
Dated as of June 29, 1999
___________________________________
$1,100,000,000 Senior Secured Credit Facilities
E144,815,601.47 Senior Secured Multi-Currency Credit Facility
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit..........................1
1.01 Commitments..........................................1
1.02 Minimum Borrowing Amounts, etc.......................5
1.03 Notice of Borrowing..................................5
1.04 Disbursement of Funds................................6
1.05 Notes................................................7
1.06 Conversions..........................................9
1.07 Pro Rata Borrowings.................................10
1.08 Interest............................................10
1.09 Interest Periods....................................11
1.10 Increased Costs, Illegality, etc....................12
1.11 Compensation........................................15
1.12 Lending Offices; Changes Thereto....................16
1.13 Replacement of Banks................................16
1.14 Special Provisions Regarding B Revolving Loan
Commitments and Indemnifying Banks...................17
SECTION 2. Letters of Credit..................................20
2.01 Letters of Credit...................................20
2.02 Letter of Credit Requests; Notices of Issuance......22
2.03 Agreement to Repay Letter of Credit Drawings........22
2.04 Letter of Credit Participations.....................23
2.05 Increased Costs.....................................25
SECTION 3. Fees; Commitments..................................26
3.01 Fees................................................26
3.02 Voluntary Termination or Reduction of Total
Unutilized Revolving Loan Commitment..............27
3.03 Mandatory Adjustments of Commitments, etc...........27
SECTION 4. Payments...........................................29
4.01 Voluntary Prepayments...............................29
4.02 Mandatory Prepayments...............................30
4.03 Method and Place of Payment.........................37
4.04 Net Payments........................................38
SECTION 5. Conditions Precedent...............................40
5.01 Execution of Agreement; Notes.......................41
5.02 No Default; Representations and Warranties..........41
5.03 Officer's Certificate...............................41
5.04 Notice of Borrowing; Letter of Credit Request.......41
5.05 Corporate Proceedings...............................41
5.06 Adverse Change, etc.................................42
5.07 Litigation..........................................42
5.08 Approvals...........................................42
5.09 Consummation of the Transaction.....................42
5.10 Security Documents..................................43
5.11 Subsidiary Guaranty.................................45
5.12 Opinions of Counsel.................................45
5.13 Mortgages; Title Insurance; Surveys, etc............45
<PAGE>
5.14 Plans; Collective Bargaining Agreements; Existing
Indebtedness Agreements; Shareholders' Agreements;
Management Agreements; Employment Agreements; Non-
Compete Agreements; Tax Allocation Agreements;
Material Contracts.................................46
5.15 Solvency Certificate; Insurance Analyses............47
5.16 Pro Forma Balance Sheets............................47
5.17 Projections.........................................48
5.18 Existing Indebtedness...............................48
5.19 Payment of Fees.....................................48
5.20 Compliance With Senior Subordinated Note Indenture..48
SECTION 6. Representations, Warranties and Agreements.........49
6.01 Corporate Status....................................49
6.02 Corporate Power and Authority.......................49
6.03 No Violation........................................49
6.04 Litigation..........................................50
6.05 Use of Proceeds; Margin Regulations.................50
6.06 Governmental Approvals..............................50
6.07 Investment Company Act..............................51
6.08 Public Utility Holding Company Act..................51
6.09 True and Complete Disclosure........................51
6.10 Financial Condition; Financial Statements...........51
6.11 Security Interests..................................52
6.12 Representations and Warranties in Other Documents...52
6.13 Transaction.........................................53
6.14 Special Purpose Corporation.........................53
6.15 Compliance with ERISA...............................53
6.16 Capitalization......................................54
6.17 Subsidiaries........................................55
6.18 Intellectual Property...............................55
6.19 Compliance with Statutes, etc.......................55
6.20 Environmental Matters...............................55
6.21 Properties..........................................56
6.22 Labor Relations.....................................56
6.23 Tax Returns and Payments............................57
6.24 Existing Indebtedness...............................57
6.25 Subordination.......................................57
6.26 Year 2000 Compliance................................57
SECTION 7. Affirmative Covenants..............................58
7.01 Information Covenants...............................58
7.02 Books, Records and Inspections......................61
7.03 Insurance...........................................61
7.04 Payment of Taxes....................................61
7.05 Corporate Franchises................................62
7.06 Compliance with Statutes, etc.......................62
7.07 Compliance with Environmental Laws..................62
7.08 ERISA...............................................62
7.09 Good Repair.........................................63
7.10 End of Fiscal Years; Fiscal Quarters................64
7.11 Additional Security; Further Assurances.............64
7.12 Interest Rate Protection............................65
7.13 Register............................................65
7.14 Maintenance of Corporate Separateness...............65
7.15 Baxter PIK Notes; Baxter Preferred Stock;
Permitted Holdings PIK Securities..................66
7.16 Foreign Subsidiaries Security.......................66
7.17 Contributions; Payments.............................67
7.18 Accounts Receivable Facility Transaction............67
7.19 Year 2000 Compliance................................68
7.20 Excluded Pledge Subsidiaries........................68
<PAGE>
SECTION 8. Negative Covenants.................................68
8.01 Changes in Business.................................68
8.02 Consolidation, Merger, Sale or Purchase of
Assets, etc........................................69
8.03 Liens...............................................74
8.04 Indebtedness........................................76
8.05 Designated Senior Debt..............................79
8.06 Advances, Investments and Loans.....................79
8.07 Dividends, etc......................................83
8.08 Transactions with Affiliates........................86
8.09 Capital Expenditures................................86
8.10 Consolidated Interest Coverage Ratio................88
8.11 Adjusted Leverage Ratio.............................89
8.12 Limitation on Voluntary Payments and Modifications
of Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other
Agreements; Issuance of Capital Stock; etc.........90
8.13 Limitation on Certain Restrictions on Subsidiaries..91
8.14 Limitation on the Creation of Subsidiaries..........91
8.15 German Stock Corporation............................92
SECTION 9. Events of Default..................................92
9.01 Payments............................................92
9.02 Representations, etc................................92
9.03 Covenants...........................................92
9.04 Default Under Other Agreements......................92
9.05 Bankruptcy, etc.....................................93
9.06 ERISA...............................................93
9.07 Security Documents..................................93
9.08 Guaranties..........................................94
9.09 Judgments...........................................94
9.10 Ownership...........................................94
9.11 Accounts Receivable Facility........................94
SECTION 10. Definitions.......................................95
SECTION 11. The Agents.......................................136
11.01 Appointment.......................................136
11.02 Delegation of Duties..............................136
11.03 Exculpatory Provisions............................136
11.04 Reliance by Agents................................137
11.05 Notice of Default.................................137
11.06 Non-Reliance on Agents and Other Banks............137
11.07 Indemnification...................................138
11.08 Agents in their Individual Capacities.............138
11.09 Holders...........................................139
11.10 Resignation of an Agent; Successor Agents.........139
11.11 Other Agents......................................140
<PAGE>
SECTION 12. Miscellaneous....................................140
12.01 Payment of Expenses, etc..........................140
12.02 Right of Setoff; Collateral Matters...............140
12.03 Notices...........................................141
12.04 Benefit of Agreement..............................141
12.05 No Waiver; Remedies Cumulative....................144
12.06 Payments Pro Rata.................................145
12.07 Calculations; Computations........................145
12.08 Governing Law; Submission to Jurisdiction; Venue..146
12.09 Counterparts......................................147
12.10 Effectiveness.....................................147
12.11 Headings Descriptive..............................147
12.12 Amendment or Waiver; etc..........................147
12.13 Survival..........................................149
12.14 Domicile of Loans.................................149
12.15 Confidentiality...................................149
12.16 Waiver of Jury Trial..............................150
12.17 Judgment Currency.................................150
12.18 Euro..............................................150
12.19 Limitation on Additional Amounts, etc.............151
12.20 Post-Closing Actions..............................151
12.21 Senior Subordinated Notes.........................152
SECTION 13. Holdings Guaranty................................153
13.01 The Guaranty......................................153
13.02 Bankruptcy........................................153
13.03 Nature of Liability...............................153
13.04 Independent Obligation............................153
13.05 Authorization.....................................154
13.06 Reliance..........................................155
13.07 Subordination.....................................155
13.08 Waiver............................................155
13.09 Nature of Liability...............................157
13.10 Payment...........................................157
SECTION 14. U.S. Borrower Guaranty...........................157
14.01 The Guaranty......................................157
14.02 Bankruptcy........................................158
14.03 Nature of Liability...............................158
14.04 Independent Obligation............................158
14.05 Authorization.....................................158
14.06 Reliance..........................................159
14.07 Subordination.....................................159
14.08 Waiver............................................160
14.09 Nature of Liability...............................161
14.10 Payment...........................................162
<PAGE>
ANNEX I List of Banks
ANNEX II Bank Addresses
ANNEX III Real Properties
ANNEX IV Projections
ANNEX V Subsidiaries
ANNEX VI Insurance
ANNEX VII Existing Indebtedness
ANNEX VIII Existing Liens
ANNEX IX Taxes
ANNEX X Capital Stock
ANNEX XI Existing Investments
ANNEX XII Existing Letters of Credit
ANNEX XIII Excluded Pledge Subsidiaries
EXHIBIT A-1 -- Form of Notice of Borrowing
EXHIBIT A-2 -- Form of Letter of Credit Request
EXHIBIT B-1 -- Form of A Term Note
EXHIBIT B-2 -- Form of B Term Note
EXHIBIT B-3 -- Form of C Term Note
EXHIBIT B-4 -- Form of A Revolving Note
EXHIBIT B-5 -- Form of B Revolving Note
EXHIBIT B-6 -- Form of A Swingline Note
EXHIBIT B-7 -- Form of B Swingline Note
EXHIBIT C -- Form of Section 4.04(b)(ii) Certificate
EXHIBIT D -- Form of Officers' Certificate
EXHIBIT E -- Form of Pledge Agreement
EXHIBIT F -- Form of Security Agreement
EXHIBIT G -- Form of Subsidiary Guaranty
EXHIBIT H-1 -- Form of Opinion of Kirkland & Ellis
EXHIBIT H-2 -- Form of Opinion of Oppenhoff & Radler
EXHIBIT I -- Form of Solvency Certificate
EXHIBIT J -- Form of Subordination Provisions
EXHIBIT K -- Form of Assignment and Assumption Agreement
EXHIBIT L -- Form of Intercompany Note
EXHIBIT M -- Form of Baxter PIK Note
EXHIBIT N -- Form of Shareholder Subordinated Note
EXHIBIT O -- Form of Baxter Preferred Stock
EXHIBIT P -- Form of U.S. Borrower Subordinated Note
<PAGE>
CREDIT AGREEMENT, dated as of June 29, 1999 among DADE
BEHRING HOLDINGS, INC., a Delaware corporation ("Holdings"), DADE
BEHRING INC., a Delaware corporation (the "U.S. Borrower"), DADE
BEHRING HOLDING GmbH (the "German Borrower") (the U.S. Borrower and
the German Borrower, each a "Borrower" and together the "Borrowers"),
the lenders from time to time party hereto (each, a "Bank" and,
collectively, the "Banks"), DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION and MORGAN STANLEY SENIOR FUNDING, INC., as Co-
Documentation Agents (in such capacity, the "Co-Documentation
Agents"), GOLDMAN SACHS CREDIT PARTNERS L.P., as Syndication Agent,
Co-Arranger and Co-Lead Book Runner, and BANKERS TRUST COMPANY, as
Administrative Agent, Co-Arranger and Co-Lead Book Runner. 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 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 (each, a "U.S. Loan" and collectively, the "U.S.
Loans") to the U.S. Borrower, which loans shall be drawn, to the
extent such Bank has a commitment under such Facility, under the A
Term Loan Facility, the B Term Loan Facility, the C Term Loan
Facility, and the A Revolving Loan Facility, as set forth below:
(a) Loans under the A Term Loan Facility (each, an "A Term
Loan" and, collectively, the "A Term Loans") (i) shall be
incurred by the U.S. Borrower pursuant to a single drawing,
which shall be on the Initial Borrowing Date, (ii) shall be
denominated in U.S. Dollars, (iii) may, at the option of the
U.S. Borrower, be incurred and maintained as and/or converted
into Base Rate Loans or Eurodollar Loans, provided, that all A
Term Loans made by all Banks pursuant to the same Borrowing
shall, unless otherwise specifically provided herein, consist
entirely of A Term Loans of the same Type and (iv) shall not
exceed for any Bank at the time of incurrence thereof on the
Initial Borrowing Date that aggregate principal amount which
equals the A Term Loan Commitment, if any, of such Bank at such
time. Once repaid, A Term Loans may not be reborrowed.
<PAGE>
(b) Each loan under the B Term Loan Facility (each, a "B
Term Loan" and, collectively, the "B Term Loans") (i) shall be
incurred by the U.S. Borrower pursuant to a single drawing,
which shall be on the Initial Borrowing Date, (ii) shall be
denominated in U.S. Dollars, (iii) may, at the option of the
U.S. Borrower, be incurred and 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 (iv) 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.
(c) Each loan under the C Term Loan Facility (each, a "C
Term Loan" and, collectively, the "C Term Loans") (i) shall be
incurred by the U.S. Borrower pursuant to a single drawing,
which shall be on the Initial Borrowing Date, (ii) shall be
denominated in U.S. Dollars, (iii) may, at the option of the
U.S. Borrower, be incurred and 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 Term Loans of the same Type and (iv) 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.
(d) Each loan under the A Revolving Loan Facility (each, a
"A Revolving Loan" and, collectively, the "A Revolving Loans")
(i) may be incurred by the U.S. Borrower at any time and from
time to time on and after the Initial Borrowing Date and prior
to the A Revolving Loan Maturity Date, (ii) shall be denominated
in U.S. Dollars, (iii) may, at the option of the U.S. Borrower,
be incurred and maintained as and/or converted into Base Rate
Loans or Eurodollar Loans, provided, that all A Revolving Loans
made as part of the same Borrowing shall, unless otherwise
specifically provided herein, consist of A Revolving Loans of
the same Type, (iv) may be repaid and reborrowed in accordance
with the provisions hereof and (v) shall not exceed for any Bank
at any time outstanding that aggregate principal amount which,
when combined with (I) the aggregate principal amount of all
other then outstanding A Revolving Loans made by such Bank and
(II) such Bank's A RL Percentage, if any, of the A Swingline
Loans then outstanding and the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, A Revolving Loans
or A Swingline Loans) at such time, equals the A Revolving Loan
Commitment, if any, of such Bank at such time.
<PAGE>
(B) Subject to and upon the terms and conditions herein
set forth, BTCo in its individual capacity agrees to make at any time
and from time to time after the Initial Borrowing Date and prior to
the A Swingline Expiry Date, a loan or loans to the U.S. Borrower
(each, an "A Swingline Loan" and, collectively, the "A Swingline
Loans"), which A 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
A Revolving Loans then outstanding and the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, A Revolving
Loans or A Swingline Loans) at such time, an amount equal to the
Total A Revolving Loan Commitment then in effect and (v) shall not
exceed in aggregate principal amount at any time outstanding the
Maximum Swingline Amount. BTCo shall not be obligated to make any A
Swingline Loans at a time when a Bank Default exists unless BTCo has
entered into arrangements satisfactory to it and the U.S. Borrower to
eliminate BTCo's risk with respect to the Defaulting Bank's or Banks'
participation in such A Swingline Loans, including by cash
collateralizing such Defaulting Bank's or Banks' A RL Percentage of
the outstanding A Swingline Loans. BTCo will not make an A Swingline
Loan after it has received written notice from the U.S. Borrower or
the Required Banks stating that a Default or an Event of Default
exists until such time as BTCo shall have received a written notice
of (i) rescission of such notice from the party or parties originally
delivering the same or (ii) a waiver of such Default or Event of
Default from the Required Banks.
(C) On any Business Day, BTCo may, in its sole discretion,
give notice to the A RL Banks that its outstanding A Swingline Loans
shall be funded with a Borrowing of A 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 A
Revolving Loans constituting Base Rate Loans (each such Borrowing, a
"A RL Mandatory Borrowing") shall be made on the immediately
succeeding Business Day by all A RL Banks pro rata based on each A RL
Bank's A RL Percentage, and the proceeds thereof shall be applied
directly to repay BTCo for such outstanding A Swingline Loans. Each A
RL Bank hereby irrevocably agrees to make Base Rate Loans upon one
Business Day's notice pursuant to each A RL Mandatory Borrowing in
the amount and in the manner specified in the preceding sentence and
on the date specified in writing by BTCo, notwithstanding (i) that
the amount of the A RL 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 A RL Mandatory Borrowing and (v)
any reduction in the Total A Revolving Loan Commitment after any such
A Swingline Loans were made. In the event that any A RL 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 U.S. Borrower), each A RL Bank (other than BTCo) hereby agrees
that it shall forthwith purchase from BTCo (without recourse,
<PAGE>
representation or warranty, other than a representation and warranty
that such A Swingline Loans are transferred free and clear of any
liens) such assignment of the outstanding A Swingline Loans as shall
be necessary to cause the A RL Banks to share in such A Swingline
Loans ratably based upon their respective A RL Percentages, provided
that all interest payable on the A Swingline Loans shall be for the
account of BTCo until the date the respective assignment is purchased
and, to the extent attributable to the purchased assignment, shall be
payable to the A RL Bank purchasing same from and after such date of
purchase.
(D) Each B RL Bank severally agrees to make a loan or
loans to one or more of the Borrowers (on a several basis) under the
B Revolving Loan Facility (each, a "B Revolving Loan" and,
collectively, the "B Revolving Loans"), which B Revolving Loans (i)
may be incurred by the applicable Borrower at any time and from time
to time on and after the Initial Borrowing Date and prior to the B
Revolving Loan Maturity Date, (ii) shall be made and maintained in
such Approved Currency as is requested by the applicable Borrower,
(iii) shall, at the option of the applicable Borrower, be incurred
and maintained as and/or converted into, one or more Borrowings of B
Revolving Loans, provided, that all B Revolving Loans made as part of
the same Borrowing shall, unless otherwise specifically provided
herein, consist of B Revolving Loans of the same Type, (iv) may be
repaid and reborrowed in accordance with the provisions hereof, (v)
in the case of B Revolving Loans made to the U.S. Borrower, shall not
exceed E50,000,000 in Principal Amount at any time outstanding and
(vi) shall not exceed for any Bank at any time outstanding, that
aggregate Principal Amount which, when added to (I) the aggregate
Principal Amount of all other B Revolving Loans made by such Bank and
then outstanding, and (II) such Bank's B RL Percentage, if any, of
the B Swingline Loans then outstanding, equals the B Revolving Loan
Commitment of such Bank at such time.
(E) Subject to and upon the terms and conditions herein
set forth, BTCo in its individual capacity agrees to make at any time
and from time to time after the Initial Borrowing Date and prior to
the B Swingline Expiry Date, a loan or loans to one or more of the
Borrowers (on a several basis) (each, a "B Swingline Loan" and,
collectively, the "B Swingline Loans"), which B Swingline Loans (i)
shall be made and maintained in such Approved Currency as is
requested by the applicable Borrower, (ii) may be repaid and
reborrowed in accordance with the provisions hereof, (iii) shall not
exceed in aggregate Principal Amount at any time outstanding, when
combined with the aggregate Principal Amount of all B Revolving Loans
then outstanding, an amount equal to the Total B Revolving Loan
Commitment then in effect and (iv) shall not exceed in aggregate
principal amount at any time outstanding the Maximum Swingline
Amount. BTCo shall not be obligated to make any B Swingline Loans at
a time when a Bank Default exists unless BTCo has entered into
arrangements satisfactory to it and the relevant Borrower to
eliminate BTCo's risk with respect to the Defaulting Bank's or Banks'
participation in such B Swingline Loans, including by cash
collateralizing such Defaulting Bank's or Banks' B RL Percentage of
the outstanding B Swingline Loans. BTCo will not make a B Swingline
Loan after it has received written notice from either Borrower or the
Required Banks stating that a Default or an Event of Default exists
<PAGE>
until such time as BTCo shall have received a written notice of (i)
rescission of such notice from the party or parties originally
delivering the same or (ii) a waiver of such Default or Event of
Default from the Required Banks.
(F) On any Business Day, BTCo may, in its sole discretion,
give notice to the B RL Banks that its outstanding B Swingline Loans
shall be funded with a Borrowing of B 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 B
Revolving Loans in the relevant Approved Currency (each such
Borrowing, a "B RL Mandatory Borrowing") shall be made on the
immediately succeeding Business Day by all B RL Banks pro rata based
on each B RL Bank's B RL Percentage, and the proceeds thereof shall
be applied directly to repay BTCo for such outstanding B Swingline
Loans. Each B RL Bank hereby irrevocably agrees to make B Revolving
Loans upon one Business Day's notice pursuant to each B RL Mandatory
Borrowing in the amount, in the relevant Approved Currency and in the
manner specified in the preceding sentence and on the date specified
in writing by BTCo, notwithstanding (i) that the amount of the B RL
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 B RL
Mandatory Borrowing and (v) any reduction in the Total B Revolving
Loan Commitment after any such B Swingline Loans were made. In the
event that any B RL 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 U.S. Borrower), each B RL Bank (other than
BTCo) hereby agrees that it shall forthwith purchase from BTCo
(without recourse, representation or warranty, other than a
representation and warranty that such B Swingline Loans are
transferred free and clear of any liens) such assignment of the
outstanding B Swingline Loans as shall be necessary to cause the B RL
Banks to share in such B Swingline Loans ratably based upon their
respective B RL Percentages, provided that all interest payable on
the B Swingline Loans shall be for the account of BTCo until the date
the respective assignment is purchased and, to the extent
attributable to the purchased assignment, shall be payable to the B
RL Bank purchasing same from and after such date of purchase.
1.02 Minimum Borrowing Amounts, etc. The aggregate
principal amount of each Borrowing under a Facility shall not be less
than the Minimum Borrowing Amount for such Facility. More than one
Borrowing may be incurred on any day; provided, that at no time shall
there be outstanding more than 20 Borrowings of Eurodollar Loans and
more than 10 Borrowings of B Revolving Loans.
<PAGE>
1.03 Notice of Borrowing. (a) Whenever (I) the U.S.
Borrower desires to incur Loans under the A Term Loan Facility, the B
Term Loan Facility, the C Term Loan Facility or the A Revolving Loan
Facility (excluding Borrowings of A Swingline Loans and A RL
Mandatory Borrowings), it shall give the Administrative Agent at its
Notice Office, prior to 11:00 A.M. (New York time), at least three
Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of Eurodollar Loans and at
least one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing of Base Rate Loans
to be made hereunder and (II) a Borrower desires to incur B Revolving
Loans, it shall give the Administrative Agent at its Notice Office
prior to 11:00 A.M. (Local time) at least three Business Days' prior
written notice (or telephonic notice promptly confirmed in writing)
of each Borrowing of B Revolving Loans to be made hereunder. 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, in the
case of B Revolving Loans, the Approved Currency for such Loans, (ii)
the aggregate principal amount of the Loans to be made pursuant to
such Borrowing (stated in the applicable Approved Currency in the
case of B Revolving Loans), (iii) the date of such Borrowing (which
shall be a Business Day), (iv) in the case of U.S. Loans, whether the
respective Borrowing shall consist of Base Rate Loans or Eurodollar
Loans and, if Eurodollar Loans, the Interest Period to be initially
applicable thereto and (v) in case of B Revolving Loans, the Interest
Period to be initially applicable thereto. 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.
<PAGE>
(b) (i) Whenever (I) the U.S. Borrower desires to make a
Borrowing of A Swingline Loans hereunder, it shall give BTCo not
later than 12:00 Noon (New York time) on the day such A Swingline
Loan is to be made, written notice (or telephonic notice promptly
confirmed in writing) of each A Swingline Loan to be made hereunder
and (II) a Borrower desires to make a Borrowing of B Swingline Loans
hereunder, it shall give BTCo not later than 12:00 Noon (Local time)
on the day such B Swingline Loan is to be made, written notice (or
telephonic notice promptly confirmed in writing) of each B Swingline
Loan to be made hereunder. Each such notice shall be irrevocable and
shall specify in each case (w) whether such Borrowing shall consist
of A Swingline Loans or B Swingline Loans and, in the case of B
Swingline Loans, the Approved Currency therefor, (x) the date of
such Borrowing (which shall be a Business Day), (y) the aggregate
principal amount of the Swingline Loan to be made pursuant to such
Borrowing (stated in the applicable Approved Currency in the case of
B Swingline Loans) and (z) in the case of B Swingline Loans, the
Interest Period to be initially applicable thereto.
(ii) A RL Mandatory Borrowings shall be made upon the
notice specified in Section 1.01(C), with the U.S. Borrower
irrevocably agreeing, by its incurrence of any A Swingline Loan, to
the making of A RL Mandatory Borrowings as set forth in such Section.
(iii) B RL Mandatory Borrowings shall be made upon the
notice specified in Section 1.01(F), with each Borrower irrevocably
agreeing, by its incurrence of any B Swingline Loan, to the making of
B RL Mandatory Borrowings as set forth in such Section.
(c) Without in any way limiting the obligation of any
Borrower to confirm in writing any telephonic notice permitted to be
given hereunder, the Administrative Agent or BTCo (in the case of a
Borrowing of Swingline Loans) or the respective Letter of Credit
Issuer (in the case 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, BTCo or such Letter of Credit Issuer, as the case may be, in
good faith to be from an Authorized Officer of such Borrower. In
each such case, each Borrower hereby waives the right to dispute the
Administrative Agent's, BTCo's or such Letter of Credit Issuer's
record of the terms of such telephonic notice.
1.04 Disbursement of Funds. (a) No later than 1:00 P.M.
(Local time) on the date specified in each Notice of Borrowing (or
(x) in the case of Swingline Loans, not later than 2:00 P.M. (Local
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 (Local time) on
the date specified in Section 1.01(C) or (F), as applicable), 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 in the case of Swingline Loans, BTCo shall
make available the full amount thereof) in the manner provided below.
All amounts shall be made available to the Administrative Agent in
the relevant Approved Currency and 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 the aggregate of the amounts so made available in
the type of funds received. Unless the Administrative Agent shall
<PAGE>
have been notified by any Bank required to participate 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 the applicable
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 the
applicable 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
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, the
overnight Federal Funds Rate or (y) if paid by such 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 Notes. (a) A Borrower's obligation to pay the
principal of, and interest on, all the Loans made to it by each Bank
shall be set forth on the Register maintained by the Administrative
Agent pursuant to Section 7.13 and, subject to the provisions of
Section 1.05(j), shall be evidenced (i) if A Term Loans, by a
promissory note substantially in the form of Exhibit B-1 with blanks
appropriately completed in conformity herewith (each, an "A Term
Note" and, collectively, the "A Term Notes"), (ii) if B Term Loans,
by a promissory note substantially in the form of Exhibit B-2 with
blanks appropriately completed in conformity herewith (each, a "B
Term Note" and, collectively, the "B Term Notes"), (iii) if C Term
Loans, by a promissory note substantially in the form of Exhibit B-3
with blanks appropriately completed in conformity herewith (each, a
"C Term Note" and, collectively, the "C Term Notes"), (iv) if A
Revolving Loans, by a promissory note substantially in the form of
Exhibit B-4 with blanks appropriately completed in conformity
herewith (each, an "A Revolving Note" and, collectively, the "A
Revolving Notes"), (v) if B Revolving Loans, by a promissory note
substantially in the form of Exhibit B-5 with blanks appropriately
completed in conformity herewith (each, a "B Revolving Note" and,
collectively, the "B Revolving Notes"), (vi) if A Swingline Loans, by
a promissory note substantially in the form of Exhibit B-6 with
blanks appropriately completed in conformity herewith (the "A
Swingline Note") and (vii) if B Swingline Loans, by a promissory note
substantially in the form of Exhibit B-7 with blanks appropriately
completed in conformity herewith (the "B Swingline Note").
<PAGE>
(b) The A Term Note issued to each Bank shall (i) be
executed by the U.S. Borrower, (ii) be payable to the order of such
Bank or its registered assigns and be dated the Initial Borrowing
Date, (iii) be in a stated principal amount equal to the A Term Loans
made by such Bank, (iv) mature on the A Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08
in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in
Section 4.02, and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(c) The B Term Note issued to each Bank shall (i) be
executed by the U.S. Borrower, (ii) be payable to the order of such
Bank or its registered assigns and be dated the Initial Borrowing
Date, (iii) be in a stated principal amount equal to the B Term Loans
made by such Bank, (iv) mature on the B Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08
in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in
Section 4.02, and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(d) The C Term Note issued to each Bank shall (i) be
executed by the U.S. Borrower, (ii) be payable to the order of such
Bank or its registered assigns and be dated the Initial Borrowing
Date, (iii) be in a stated principal amount equal to the C Term Loans
made by such Bank, (iv) mature on the C Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08
in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in
Section 4.02, and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(e) The A Revolving Note issued to each Bank shall (i) be
executed by the U.S. Borrower, (ii) be payable to the order of such
Bank or its registered assigns and be dated the Initial Borrowing
Date, (iii) be in a stated principal amount equal to the A Revolving
Loan Commitment of such Bank and be payable in the principal amount
of the A Revolving Loans evidenced thereby, (iv) mature on the A
Revolving Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans
and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01, and
mandatory repayment as provided in Section 4.02, and (vii) be
entitled to the benefits of this Agreement and the other Credit
Documents.
<PAGE>
(f) The B Revolving Note issued to each Bank shall (i) be
executed by each Borrower, (ii) be payable to the order of such Bank
or its registered assigns and be dated the Initial Borrowing Date,
(iii) be in a stated principal amount equal to the B Revolving Loan
Commitment of such Bank and be payable by such Borrower in the
Principal Amount of the B Revolving Loans made to such Borrower and
evidenced thereby, (iv) mature on the B Revolving Loan Maturity Date,
(v) bear interest as provided in the appropriate clause of Section
1.08 in respect of the Euro Rate Loans evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01, and
mandatory repayment as provided in Section 4.02, and (vii) be
entitled to the benefits of this Agreement and the other Credit
Documents.
(g) The A Swingline Note issued to BTCo shall (i) be
executed by the U.S. Borrower, (ii) be payable to the order of BTCo
or its registered assigns and be dated the Initial Borrowing Date,
(iii) be in a stated principal amount equal to the relevant Maximum
Swingline Amount and be payable in the principal amount of the A
Swingline Loans evidenced thereby, (iv) mature on the A Swingline
Expiry Date, (v) bear interest as provided in Section 1.08 in respect
of the Base Rate Loans evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory
repayment as provided in Section 4.02, and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(h) The B Swingline Note issued to BTCo shall (i) be
executed by each Borrower, (ii) be payable to the order of BTCo or
its registered assigns and be dated the Initial Borrowing Date, (iii)
be in a stated principal amount equal to the relevant Maximum
Swingline Amount and be payable by such Borrower in the Principal
Amount of the B Swingline Loans made to such Borrower and evidenced
thereby, (iv) mature on the B Swingline Expiry Date, (v) bear
interest as provided in Section 1.08 in respect of the Euro Rate
Loans evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in
Section 4.02, and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(i) Each Bank will note on its internal records the amount
of each Loan made by it and each payment in respect thereof and will
prior to any transfer of any of its Notes endorse on the reverse side
thereof the outstanding principal amount of Loans evidenced thereby.
Failure to make any such notation and the inaccuracy of any such
notation shall not affect a Borrower's obligations in respect of such
Loans.
<PAGE>
(j) Notwithstanding anything to the contrary contained
above or elsewhere in this Agreement, Notes shall only be delivered
to Banks which at any time specifically request the delivery of such
Notes. No failure of any Bank to request or obtain a Note evidencing
its Loans to any Borrower shall affect or in any manner impair the
obligations of such Borrower to pay the Loans (and all related
Obligations) which would otherwise be evidenced thereby in accordance
with the requirements of this Agreement, and shall not in any way
affect the security or guaranties therefor provided pursuant to the
various Credit Documents. Any Bank which does not have a Note
evidencing its outstanding Loans shall in no event be required to
make the notations otherwise described in preceding clause (i). At
any time when any Bank requests the delivery of a Note to evidence
any of its Loans, the relevant Borrower shall promptly execute and
deliver to the respective Bank the requested Note in the appropriate
amount or amounts to evidence such Loans.
1.06 Conversions. The U.S. Borrower shall have the option
to convert on any Business Day all or a portion at least equal to the
applicable Minimum Borrowing Amount of the outstanding principal
amount of the U.S. Loans (other than Swingline Loans which at all
times shall be maintained as Base Rate Loans) owing by the U.S.
Borrower pursuant to a single Facility into a Borrowing or Borrowings
of another Type of Loan under such Facility; provided, that (i)
except as otherwise provided in Section 1.10(b), no partial
conversion of a Borrowing of Eurodollar Loans shall reduce the out-
standing 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 not be converted into Eurodollar
Loans if any Default or Event of Default exists on the date of
conversion pursuant to Section 9.05, (iii) Base Rate Loans may not be
converted into Eurodollar Loans if any other Default or any Event of
Default is in existence on the date of the conversion, if the
Required Banks have previously advised the Administrative Agent that
conversions will not be permitted while said Default or Event of
Default remains in existence, and (iv) Borrowings of Eurodollar Loans
resulting from this Section 1.06 shall be limited in number as
provided in Section 1.02. Each such conversion shall be effected by
the U.S. Borrower by giving the Administrative Agent at its Notice
Office, prior to 11:00 A.M. (New York time), at least three Business
Days' (or one Business Day's in the case of a conversion into Base
Rate Loans) prior written notice (or telephonic notice promptly
confirmed in writing) (each, a "Notice of Conversion") specifying the
Loans to be so converted, the 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 U.S. Loans.
1.07 Pro Rata Borrowings. All Borrowings of Loans (other
than Swingline Loans) under this Agreement shall be made by the Banks
pro rata on the basis of their A Term Loan Commitments, B Term Loan
Commitments, C Term Loan Commitments, A Revolving Loan Commitments or
B Revolving Loan 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.
<PAGE>
1.08 Interest. (a) The unpaid principal amount of each
Base Rate Loan shall bear interest from the date of the Borrowing
thereof until the earlier of (i) the maturity (whether by
acceleration or otherwise) of such Base Rate Loan and (ii) the
conversion of such Base Rate Loan to a Eurodollar Loan pursuant to
Section 1.06, at a rate per annum which shall at all times be the
relevant Applicable Margin plus the Base Rate in effect from time to
time.
(b) The unpaid principal amount of each Euro 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 Loan and (ii) the conversion of such Loan to a Base Rate Loan
pursuant to Section 1.06, 1.09 or 1.10(b), as (and to the extent)
applicable, at a rate per annum which shall at all times be the
Applicable Margin plus the relevant Euro Rate for such Interest
Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan shall bear interest at a
rate per annum equal to the rate which is 2% in excess of the rate
otherwise applicable to Base Rate Loans of the respective Facility
from time to time, provided that (x) principal in respect of U.S.
Loans constituting Euro Rate Loans shall bear interest from the date
same becomes due (whether by acceleration or otherwise) until the end
of the Interest Period applicable to such Euro Rate Loans at a rate
per annum equal to 2% in excess of the rate of interest applicable
thereto at such maturity and (y) principal in respect of B Revolving
Loans and B Swingline Loans shall bear interest from the date same
becomes due until paid in full at a rate equal to 2% in excess of the
Applicable Margin plus the respective Euro Rate for such successive
periods (not exceeding three months) as the Administrative Agent may
determine from time to time in respect of amounts comparable to the
amount not paid. Interest which accrues under this Section 1.08(c)
shall be payable on demand.
(d) Interest shall accrue from and including the date of
any Borrowing to but excluding the date of any repayment thereof and
shall be payable (i) in respect of each Base Rate Loan, quarterly in
arrears on each Quarterly Payment Date, (ii) in respect of each
Eurodollar Loan, on the date of any conversion into a Base Rate Loan
pursuant to Section 1.06, 1.09 or 1.10(b), as applicable (on the
amount converted), (iii) in respect of each Euro Rate Loan, on the
last day of each Interest Period applicable thereto and, in the case
of an Interest Period in excess of three months, on each date
occurring at three month intervals after the first day of such
Interest Period and (iv) in respect of each Loan, on any repayment or
prepayment (on the amount repaid or prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand;
provided that, in the case of A Revolving Loans maintained as Base
Rate Loans, interest shall not be payable pursuant to preceding
clause (iv) at the time of any repayment or prepayment thereof unless
the respective repayment or prepayment is made in conjunction with a
reduction to the Total A Revolving Loan Commitment.
(e) All computations of interest hereunder shall be made
in accordance with Section 12.07(b).
<PAGE>
(f) The Administrative Agent, upon determining the
interest rate for any Borrowing of Euro Rate Loans for any Interest
Period, shall promptly notify the applicable Borrower and the Banks
thereof.
1.09 Interest Periods. At the time a Borrower gives a
Notice of Borrowing (or the U.S. Borrower gives a Notice of
Conversion) in respect of the making of, or conversion into, a
Borrowing of Euro Rate Loans (in the case of the initial Interest
Period applicable thereto) or prior to 12:00 Noon (Local time) on the
third Business Day prior to the expiration of an Interest Period
applicable to a Borrowing of Euro Rate Loans, it shall have the right
to elect the Interest Period applicable to such Borrowing by giving
the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) thereof, which Interest Period shall,
at the option of such Borrower, be a one, two, three or six-month
period or, to the extent available to all Banks with a Commitment
and/or outstanding Loans, as the case may be, of the respective
Facility, a two-week, nine-month or twelve-month period; provided
that in the case of an Interest Period applicable to a Borrowing of B
Swingline Loans, the Interest Period therefor shall, at the option of
such Borrower, be a one-week (if available), two-week or one month
period. Notwithstanding anything to the contrary contained above:
(i) all Euro Rate Loans comprising a Borrowing shall have
the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Euro
Rate Loans shall commence on the date of such Borrowing
(including, in the case of U.S. 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 may be selected at any time when a
Default or Event of Default under Section 9.05 is in existence;
<PAGE>
(vii) no Interest Period may be selected if any Default or
Event of Default (other than a Default or Event of Default
described in preceding clause (vi)) is in existence if the
Required Banks have previously advised the Administrative Agent
that the selection of new Interest Periods will not be permitted
while said Default or Event of Default remains in existence; and
(viii) 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) or (iii), 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.
Prior to the termination of any Interest Period applicable to B
Revolving Loans, the relevant Borrower may, at its option, designate
that the respective Borrowing subject thereto be split into more than
one Borrowing (for purposes of electing multiple Interest Periods to
be subsequently applicable thereto), so long as each such Borrowing
resulting from the action taken pursuant to this sentence meets the
Minimum Borrowing Amount for B Revolving Loans. If upon the
expiration of any Interest Period, the applicable Borrower has failed
to elect, or is not permitted to elect by virtue of the application
of clause (vi) or (vii) above, a new Interest Period to be applicable
to the respective Borrowing of Loans as provided above, such Borrower
shall be deemed to have elected (x) in the case of Eurodollar Loans,
to convert such Borrowing into a Borrowing of Base Rate Loans
effective as of the expiration date of such current Interest Period,
and (y) in the case of B Revolving Loans and B Swingline Loans, to
select a one-month Interest Period for such B Revolving Loans
effective as of the expiration of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event
that (x) in the case of clauses (i) and (iv) below, the
Administrative Agent or (y) in the case of clauses (ii) and (iii)
below, any Bank, shall have determined (which determination shall,
absent manifest error, be final and conclusive and binding upon all
parties hereto):
(i) on any date for determining any Euro Rate for any
Interest Period, that, by reason of any changes arising after
the Effective Date affecting the relevant interbank market,
adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the
definition of the respective Euro Rate; or
<PAGE>
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder
with respect to any Euro Rate 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 or similar charges) because of (x) any change since the
Effective Date 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 (I) reserves
required under Regulation D to the extent included in the
computation of the Eurodollar Rate and (II) reserves covered by
Section 1.10(d) in the case of B Revolving Loans or B Swingline
Loans) and/or (y) other circumstances affecting such Bank, the
relevant interbank market or the position of such Bank in such
market;
(iii) at any time since the Effective Date, that the making
or continuance of any Euro Rate 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 Effective Date which materially
and adversely affects the relevant interbank market; or
(iv) at any time that any Foreign Currency is not available
in sufficient amounts, as determined in good faith by the
Administrative Agent, to fund any Borrowing of B Revolving Loans
or B Swingline Loans denominated in such Foreign Currency;
<PAGE>
then, and in any such event, such Bank (or the Administrative Agent
in the case of clause (i) or (iv) above) shall (x) on such date and
(y) as promptly as practicable (and in any event within 10 Business
Days) after the date on which such event no longer exists, give
notice (by telephone confirmed in writing) to the respective Borrower
and (except in the case of clause (i) or (iv)) to the Administrative
Agent of such determination (which notice the Administrative Agent
shall promptly transmit to each of the other Banks). Thereafter, (w)
in the case of clause (i) above, (A) in the event that Eurodollar
Loans are so affected, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the U.S.
Borrower and the Banks that the circumstances giving rise to such
notice by the Administrative Agent no longer exist, and any Notice of
Borrowing or Notice of Conversion given by the U.S. Borrower with
respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the
U.S. Borrower, and (B) in the event that any B Revolving Loan or B
Swingline Loan is so affected, the applicable Euro Rate shall be
determined on the basis provided in the last sentence of the
definition of such applicable Euro Rate, (x) in the case of clause
(ii) above, such Borrower agrees, subject to the provisions of
Section 12.19 (to the extent applicable), 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 applicable
Borrower by such Bank shall, absent manifest error, be final and
conclusive and binding upon all parties hereto), (y) in the case of
clause (iii) above, the applicable Borrower shall take one of the
actions specified in Section 1.10(b) as promptly as possible and, in
any event, within the time period required by law and (z) in the case
of clause (iv) above, B Revolving Loans and B Swingline Loans in the
affected Foreign Currency (other than any such B Revolving Loans
which have theretofore been funded) shall no longer be available
until such time as the Administrative Agent notifies the Borrowers
and the Banks that the circumstances giving rise to such notice by
the Administrative Agent no longer exist in accordance with clause
(y) of the preceding sentence, and any Notice of Borrowing given by a
Borrower with respect to such Foreign Currency Loans which have not
yet been incurred shall be deemed rescinded by such Borrower.
<PAGE>
(b) At any time that any Euro Rate Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the
applicable Borrower may (and in the case of a Euro Rate Loan affected
pursuant to Section 1.10(a)(iii) the applicable Borrower shall)
either (i) if the affected Euro Rate Loan is then being made
initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice
(confirmed promptly in writing) thereof on the same date that the
respective Borrower was notified by a Bank pursuant to Section
1.10(a)(ii) or (iii)), or (ii) if the affected Euro Rate Loan is then
outstanding, upon at least three Business Days' notice to the
Administrative Agent, (A) in the case of a Eurodollar Loan, 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)) and
(B) in the case of any B Revolving Loan or B Swingline Loan, repay
such B Revolving Loans or B Swingline Loans, as the case may be, in
full; provided, that (i) if the circumstances described in Section
1.10(a)(iii) apply to any B Revolving Loan or B Swingline Loan, the
applicable Borrower may, in lieu of taking the actions described
above, maintain such B Revolving Loans or B Swingline Loans, as the
case may be, outstanding, in which case the applicable Euro Rate
shall be determined on the basis provided in the last sentence of the
definition of the applicable Euro Rate, unless the maintenance of
such B Revolving Loans or B Swingline Loans, as the case may be,
outstanding on such basis would not stop the conditions described in
Section 1.10(iii) from existing (in which case the actions described
above, without giving effect to the proviso, shall be required to be
taken) and (ii) 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
Effective Date, the adoption or effectiveness of any applicable law,
rule or regulation regarding capital adequacy, or any change therein,
or any change in the interpretation or administration thereof by the
National Association of Insurance Commissioners ("NAIC") or any
governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by
such Bank or any corporation controlling such Bank with any request
or directive regarding capital adequacy (whether or not having the
force of law) of the NAIC or 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 U.S. Borrower agrees,
subject to the provisions of Section 12.19 (to the extent
applicable), to 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 U.S. Borrower, 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 any Borrower's obligations to pay
additional amounts pursuant to this Section 1.10(c) upon the
subsequent receipt of such notice.
<PAGE>
(d) In the event that any Bank shall in good faith
determine (which determination shall, absent manifest error, be final
and conclusive and binding on all parties hereto) at any time that
such Bank is required to maintain reserves (including, without
limitation, any marginal, emergency, supplemental, special or other
reserves required by applicable law) which have been established by
any Federal, state, local or foreign court or governmental agency,
authority, instrumentality or regulatory body with jurisdiction over
such Bank (including any branch, Affiliate or funding office thereof)
in respect of any B Revolving Loans or B Swingline Loans or any
category of liabilities which includes deposits by reference to which
the interest rate on any B Revolving Loan or B Swingline Loan is
determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of any Bank to
non-United States residents, then, unless such reserves are included
in the calculation of the interest rate applicable to such B
Revolving Loans or B Swingline Loans or in Section 1.10(a)(ii), such
Bank shall promptly notify the German Borrower in writing specifying
the additional amounts required to indemnify such Bank against the
cost of maintaining such reserves (such written notice to provide in
reasonable detail a computation of such additional amounts) and the
German Borrower shall, and shall be obligated to, pay to such Bank
such specified amounts as additional interest at the time that the
German Borrower is otherwise required to pay interest in respect of
such B Revolving Loan or B Swingline Loan or, if later, on written
demand therefor by such Bank.
1.11 Compensation. Each Borrower agrees, subject to the
provisions of Section 12.19 (to the extent applicable), to compensate
each Bank, promptly upon its written request (which request shall set
forth the basis for requesting such compensation and shall be made
through the Administrative Agent), 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
any Euro Rate Loans but excluding loss of anticipated profit with
respect to any Euro Rate 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 Euro Rate Loans does not occur
on a date specified therefor in a Notice of Borrowing or Notice of
Conversion (whether or not withdrawn by such Borrower or deemed
withdrawn pursuant to Section 1.10(a)); (ii) if any repayment
(including any repayment made pursuant to Section 4.02 or as a result
of an acceleration of the Loans pursuant to Section 9) or conversion
of any Euro Rate Loans occurs on a date which is not the last day of
an Interest Period applicable thereto; (iii) if any prepayment of any
Euro Rate Loans is not made on any date specified in a notice of
prepayment given by such Borrower; or (iv) as a consequence of (x)
any other default by such Borrower to repay its Euro Rate Loans when
required by the terms of this Agreement or (y) an election made
pursuant to Section 1.10(b).
<PAGE>
1.12 Lending Offices; Changes Thereto. (a) Each Bank may
at any time or from time to time designate, by written notice to the
Administrative Agent to the extent not already reflected on Annex II,
one or more lending offices (which, for this purpose, may include
Affiliates of the respective Bank) for the various Loans made, and
Letters of Credit participated in, by such Bank (including by
designating a separate lending office (or Affiliate) to act as such
with respect to U.S. Loans and Letter of Credit Outstandings versus B
Revolving Loans); provided that, for designations made after the
Initial Borrowing Date, to the extent such designation shall result
in increased costs under Section 1.10, 2.05 or 4.04 in excess of
those which would be charged in the absence of the designation of a
different lending office (including a different Affiliate of the
respective Bank), then the Borrowers shall not be obligated to pay
such excess increased costs (although the Borrowers, in accordance
with and pursuant to the other provisions of this Agreement, shall be
obligated to pay the costs which would apply in the absence of such
designation and any subsequent increased costs of the type described
above resulting from changes after the date of the respective
designation). Each lending office and Affiliate of any Bank
designated as provided above shall, for all purposes of this
Agreement, be treated in the same manner as the respective Bank (and
shall be entitled to all indemnities and similar provisions in
respect of its acting as such hereunder).
(b) 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), 1.10(d), 2.05 or 4.04 with respect to such Bank, it will, if
requested by the U.S. Borrower, use reasonable efforts (subject to
overall policy considerations of such Bank) to designate another
lending office for any Loans or Letters of Credit affected by such
event; provided, that such designation is made on such terms that, in
the sole judgment of such Bank, such Bank and its lending office
suffer no economic, legal or regulatory disadvantage, with the object
of avoiding the consequences of the event giving rise to the
operation of any such Section. Nothing in this Section 1.12 shall
affect or postpone any of the obligations of any Borrower or the
right of any Bank provided in Section 1.10, 2.05 or 4.04.
<PAGE>
1.13 Replacement of Banks. (x) If any Bank becomes a
Defaulting Bank, (y) upon the occurrence of any event giving rise to
the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c),
Section 1.10(d), Section 2.05 or Section 4.04 with respect to any
Bank which results in such Bank charging to any Borrower increased
costs in excess of those being generally charged by the other Banks
or (z) in the case of a refusal by a Bank to consent to a proposed
change, waiver, discharge or termination with respect to this
Agreement which has been approved by the Required Banks as provided
in Section 12.12(b), the U.S. Borrower shall have the right, if no
payment Default, or Event of Default, then exists, to replace such
Bank (the "Replaced Bank") with one or more Eligible Transferee or
Transferees, none of whom shall constitute a Defaulting Bank at the
time of such replacement (collectively, the "Replacement Bank")
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, outstanding Loans and Indemnity
Participations (if applicable) of, and in each case participations in
Letters of Credit by, the Replaced Bank and, in connection therewith,
shall pay to (x) the Replaced Bank in respect thereof an amount equal
to the sum of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Loans 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 respective Letter of Credit Issuer
an amount equal to such Replaced Bank's A RL Percentage of any Unpaid
Drawing (which at such time remains an Unpaid Drawing) with respect
to a Letter of Credit issued by it to the extent such amount was not
theretofore funded by such Replaced Bank and (z) BTCo an amount equal
to the sum of (I) such Replaced Bank's A RL Percentage of any A RL
Mandatory Borrowing to the extent same was not theretofore funded by
such Replaced Bank, (II) such Replaced Bank's B RL Percentage of any
B RL Mandatory Borrowing to the extent same was not theretofore
funded by such Replaced Bank and (III) the amount (if any) owing by
such Replaced Bank under Section 1.14 at such time, and (ii) all
obligations (including, without limitation, all such amounts, if any,
owing under Sections 1.10, 1.11, 2.05 and 12.01) of all Borrowers
owing to the Replaced Bank (other than those specifically described
in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) 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 7.13 and, if so requested by the
Replacement Bank, delivery to the Replacement Bank of the appropriate
Note or Notes executed by the relevant Borrowers, (x) 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, which shall survive
as to such Replaced Bank and (y) Annex I hereto shall be deemed
modified to reflect the changed Commitments (and/or outstanding Term
<PAGE>
Loans, as the case may be) and Indemnity Amounts (if applicable)
resulting from the assignment from the Replaced Bank to the
Replacement Bank. In connection with any replacement of Banks
pursuant to, and as contemplated by, this Section 1.13, the German
Borrower hereby irrevocably authorizes the U.S. Borrower to take all
necessary action, in the name of the German Borrower, as described
above in this Section 1.13 in order to effect the replacement of the
respective Bank or Banks in accordance with the preceding provisions
of this Section 1.13.
1.14 Special Provisions Regarding B Revolving Loan
Commitments and Indemnifying Banks. (a) Upon the execution of this
Agreement or an Assignment and Assumption Agreement, as the case may
be, (1) each Indemnifying Bank shall be deemed to, and hereby agrees
to, have irrevocably purchased a participation (each, an "Indemnity
Participation") from the Fronting Bank in the B Revolving Loan
Commitment of the Fronting Bank (including, without limitation, the B
Revolving Loans of the Fronting Bank), in a proportionate amount
based on such Indemnifying Bank's Indemnity Amount. Upon the
occurrence of a Triggering Event, each Indemnifying Bank, upon one
Business Day's notice from the Fronting Bank, shall deliver to the
Fronting Bank by wire transfer in immediately available funds and in
the relevant Approved Currency its proportionate share based on its
Indemnity Amount of the aggregate unpaid principal amount of the
Fronting Bank's B Revolving Loans. Each Indemnifying Bank's
obligations under this Section 1.14 shall be absolute and
unconditional and shall not be affected by any circumstance,
including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which the Administrative Agent,
the Fronting Bank or any Bank may have against the Fronting Bank, any
Credit Party or any other Person for any reason whatsoever; (b) the
occurrence or continuance of a Default or an Event of Default; (c)
any adverse change in the condition (financial or otherwise) of any
Credit Party; (d) any breach of this Agreement by any Credit Party,
the Administrative Agent, the Fronting Bank or any Bank; or (e) any
other circumstance, happening, or event whatsoever, whether or not
similar to any of the foregoing.
(b) The Fronting Bank shall promptly pay by wire transfer
of immediately available funds and in the relevant Approved Currency
to each applicable Indemnifying Bank, as an indemnity fee for the
Indemnity Participation provided to the Fronting Bank by such
Indemnifying Bank in this Section 1.14, the following amounts, in
each case in proportion to such Indemnifying Bank's Indemnity Amount:
(i) an amount equal to (x) the excess of the interest received by the
Fronting Bank pursuant to Section 1.08 from a Borrower over the
applicable Euro Rate on such B Revolving Loans less (y) 0.125% per
annum to be retained by the Fronting Bank as an Indemnity
Participation fee; and (ii) the B RL Commitment Fees received by the
Fronting Bank pursuant to Section 3.01(b) from the Administrative
Agent; provided that if any such indemnity fee is less than $10,000,
the Fronting Bank shall not be required to so promptly pay such
indemnity fee to an Indemnifying Bank until the aggregate unpaid
amount of indemnity fees accumulates to an amount exceeding $10,000.
The excess, if any, of the interest payable to the Fronting Bank on
the B Revolving Loans over the interest distributable to an
Indemnifying Bank under this Section 1.14(b) in respect thereof, and
the excess, if any, of the B RL Commitment Fees payable to the
<PAGE>
Fronting Bank over and in addition to the B RL Commitment Fees
distributable to such Indemnifying Bank under this Section 1.14(b),
shall be retained by the Fronting Bank.
(c) Provided that an Indemnifying Bank shall have made any
payments to the Fronting Bank required by this Section 1.14,
including the payments required to be made upon the occurrence of a
Triggering Event pursuant to Section 1.14(a), the Fronting Bank shall
promptly pay by wire transfer of immediately available funds to such
Indemnifying Bank any principal or other payments thereafter
recovered by the Fronting Bank from either Borrower, to the extent
allocable to such Indemnifying Bank's Indemnity Participation. If
the Fronting Bank shall pay any amount to an Indemnifying Bank
pursuant to this Section 1.14 in the belief or expectation that a
related payment has been or will be received or collected and such
related payment is not received or collected by the Fronting Bank,
then such Indemnifying Bank will promptly on demand by the Fronting
Bank return such amount to the Fronting Bank, together with interest
thereon at such rate as the Fronting Bank shall determine to be
customary between banks for correction of errors. If the Fronting
Bank determines at any time that any amount received or collected by
the Fronting Bank pursuant to this Agreement is to be returned to
either Borrower under this Agreement or paid to any other Person or
entity pursuant to any insolvency law, any sharing clause in this
Agreement, or otherwise then, notwithstanding any other provision of
this Agreement, the Fronting Bank shall not be required to distribute
any portion thereof to any Indemnifying Bank, and each Indemnifying
Bank will promptly on demand by the Fronting Bank repay any portion
that the Fronting Bank shall have distributed to such Indemnifying
Bank, together with interest thereon at such rate, if any, as the
Fronting Bank shall pay to a Borrower or such Person or entity with
respect thereto. If any amounts returned by the Fronting Bank to a
Borrower pursuant to this Section 1.14 are later recouped by the
Fronting Bank, the Fronting Bank shall promptly pay to each
Indemnifying Bank a proportionate amount based on such Indemnifying
Bank's Indemnity Amount.
(d) If the Fronting Bank incurs any costs or expenses
(including, without limitation, in indemnifying the Administrative
Agent pursuant to Section 11.07) in connection with any effort to
enforce or protect the Fronting Bank's or any Indemnifying Bank's
rights or interests with respect to this Agreement or the other
Credit Documents, then, other than in the case of the Fronting Bank's
gross negligence or willful misconduct, each Indemnifying Bank will
reimburse the Fronting Bank on demand for each such Indemnifying
Bank's proportionate share based on such Indemnifying Bank's
Indemnity Amount of any portion of such costs or expenses which is
not reimbursed by or on behalf of a Borrower. If the Fronting Bank
recovers any amounts for which the Fronting Bank has previously been
reimbursed by an Indemnifying Bank hereunder, the Fronting Bank shall
promptly distribute to such Indemnifying Bank such Indemnifying
Bank's proportionate share thereof based on such Indemnifying Bank's
Indemnity Amount.
<PAGE>
(e) Each Indemnifying Bank agrees to deliver to the
Administrative Agent and the Fronting Bank from time to time upon
request such certificates, statements, documents, forms or other
evidence, properly completed and executed by such Indemnifying Bank,
as may be required at any time in order to comply with any applicable
tax laws or regulations or to confirm or maintain in effect such
Indemnifying Bank's entitlement to exemption from or reduction of any
applicable withholding tax on any payments hereunder. Each
Indemnifying Bank hereby agrees to indemnify and hold harmless the
Fronting Bank from any applicable taxes, penalties, interest and
other expenses, costs and losses incurred or payable by the Fronting
Bank as a result of either (i) such Indemnifying Bank's failure to
submit any statement, document, form or certificate or other evidence
that such Indemnifying Bank is required to provide pursuant to this
Section 1.14(e) or (ii) the Fronting Bank's reliance on any such
statement, document, form or certificate or other evidence which such
Indemnifying Bank has provided to the Fronting Bank pursuant to this
Section 1.14(e).
(f) Notwithstanding any provision to the contrary
contained in this Agreement or the other Credit Documents and so long
as an Indemnifying Bank has not failed to make any payments required
to be made by such Indemnifying Bank under this Section 1.14 or is
not otherwise in default under its obligations under this Section
1.14, the Fronting Bank hereby agrees that, to the extent of but only
to the extent of such Indemnifying Bank's proportionate share based
on its Indemnity Amount, the Fronting Bank will not agree to any
amendment, modification, termination or waiver of any provision of
this Agreement or the other Credit Documents, or to any departure by
either Borrower therefrom, in each case related to the Indemnity
Participation without the prior written consent of such Indemnifying
Bank. Nothing herein contained shall prevent the Fronting Bank from
consenting to any amendment, modification, termination or waiver of
any provision of this Agreement or the other Credit Documents, or to
any departure by either Borrower therefrom, to the extent unrelated
to the Indemnity Participation or to the extent that the Fronting
Bank's interests are not related to the Indemnity Participation or
the Indemnity Amount.
(g) In the event that any Person obligated to make a
payment to any other Person pursuant to this Section 1.14 fails to
make available to the Person entitled to receive such payment the
amount of such payment, the Person entitled to receive such payment
shall be entitled to recover such amount on demand from such other
Person, together with interest at the customary rate set by the
Administrative Agent for the correction of errors among the Banks for
three Business Days and thereafter at the sum of the Base Rate plus
1.50% per annum.
(h) The Fronting Bank may from time to time sell or
transfer to other Persons assignments or participations or other
interests in the Fronting Bank's B Revolving Loans and B Revolving
Loan Commitment, but not in the portion thereof allocated to the
Indemnity Participation hereunder. An Indemnifying Bank's Indemnity
Participation may not be sold, pledged, assigned, or otherwise
transferred without the Fronting Bank's and the Administrative
Agent's prior written consent; provided that this restriction shall
not apply to any such transfer to any of such Indemnifying Bank's
Affiliates.
<PAGE>
(i) In no event shall the Indemnity Participation be
construed as a loan or other extension of credit by an Indemnifying
Bank to the Fronting Bank. In no event shall this Agreement be
construed to require an Indemnifying Bank to make any Loans or to
otherwise extend any credit to either Borrower or to the Fronting
Bank under this Agreement or under the other Loan Documents. In no
event shall this Agreement be construed to require an Indemnifying
Bank to fund or pay to the Fronting Bank such Indemnifying Bank's
Indemnity Amount except upon the occurrence of a Triggering Event
pursuant to Section 1.14(a). Each Indemnifying Bank agrees that the
Fronting Bank may take legal action to enforce or protect an
Indemnifying Bank's or the Fronting Bank's interests in respect of
this Agreement and the other Credit Documents.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the
terms and conditions herein set forth, the U.S. Borrower may request
a Letter of Credit Issuer at any time and from time to time on or
after the Initial Borrowing Date and prior to the A Revolving Loan
Maturity Date to issue, for the account of the U.S. Borrower and in
support of, (x) trade obligations of the U.S. Borrower or any of its
Subsidiaries that arise in the ordinary course of business and are in
respect of general corporate purposes of the U.S. Borrower or its
Subsidiaries, as the case may be, and/or (y) on a standby basis, L/C
Supportable Indebtedness, and subject to and upon the terms and
conditions herein set forth each Letter of Credit Issuer agrees to
issue from time to time, irrevocable sight letters of credit in such
form as may be approved by such Letter of Credit Issuer (each such
letter of credit, a "Letter of Credit" and, collectively, the
"Letters of Credit"). Notwithstanding the foregoing, no Letter of
Credit Issuer shall be under any obligation to issue any Letter of
Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain such Letter of Credit Issuer from issuing such Letter
of Credit or any requirement of law applicable to such Letter of
Credit Issuer or any request or directive (whether or not having
the force of law) from any governmental authority with
jurisdiction over such Letter of Credit Issuer shall prohibit,
or request that such Letter of Credit Issuer refrain from, the
issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon such Letter of Credit Issuer
with respect to such Letter of Credit any restriction or reserve
or capital requirement (for which such Letter of Credit Issuer
is not otherwise compensated) not in effect on the Effective
Date, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Letter of Credit Issuer
as of the Effective Date, and which such Letter of Credit Issuer
in good faith deems material to it; or
(ii) such Letter of Credit Issuer shall have received
notice from the Required Banks prior to the issuance of such
Letter of Credit of the type described in clause (vi) of Section
2.01(b).
<PAGE>
(b) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter
of Credit Outstandings (exclusive of Unpaid Drawings which are repaid
on the date of, and prior to the issuance of, the respective Letter
of Credit) at such time, would exceed either (x) $55,000,000 or (y)
when added to the aggregate principal amount of all A Revolving Loans
and A Swingline Loans then outstanding, the Total A Revolving Loan
Commitment at such time; (ii) (x) each standby Letter of Credit shall
have an expiry date occurring not later than one year after such
standby Letter of Credit's date of issuance, provided, that any
standby Letter of Credit may be automatically renewable for periods
of up to one year so long as such standby Letter of Credit provides
that the respective Letter of Credit Issuer retains an option,
satisfactory to such Letter of Credit Issuer, to terminate such
standby Letter of Credit within a specified period of time prior to
each scheduled renewal date and (y) each trade Letter of Credit shall
have an expiry date occurring not later than 180 days after such
trade Letter of Credit's date of issuance; (iii) (x) no standby
Letter of Credit shall have an expiry date occurring later than the
Business Day next preceding the A Revolving Loan Maturity Date and
(y) no trade Letter of Credit shall have an expiry date occurring
later than 30 days prior to the A Revolving Loan Maturity Date; (iv)
each Letter of Credit shall be denominated in U.S. Dollars; (v) the
Stated Amount of each Letter of Credit shall not be less than
$100,000 or such lesser amount as is acceptable to the Letter of
Credit Issuer; (vi) no Letter of Credit Issuer will issue any Letter
of Credit after it has received written notice from any Borrower or
the Required Banks stating that a Default or an Event of Default
exists until such time as such Letter of Credit Issuer shall have
received a written notice of (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 by the Required Banks; and (vii)
each trade Letter of Credit shall be issued on a sight basis only.
(c) Notwithstanding the foregoing, in the event a Bank
Default exists, no Letter of Credit Issuer shall be required to issue
any Letter of Credit unless the respective Letter of Credit Issuer
has entered into arrangements satisfactory to it and the U.S.
Borrower to eliminate such Letter of Credit Issuer's risk with
respect to the participation in Letters of Credit of the Defaulting
Bank or Banks, including by cash collateralizing such Defaulting
Bank's or Banks' A RL Percentage of the Letter of Credit
Outstandings.
(d) Annex XII hereto contains a description of all letters
of credit issued pursuant to the Existing Credit Agreement and
outstanding on the Effective Date. Each such letter of credit,
including any extension or renewal thereof (each, as amended from
time to time in accordance with the terms thereof and hereof, an
"Existing Letter of Credit") shall constitute a "Letter of Credit"
for all purposes of this Agreement, issued, for purposes of Section
2.04(a), on the Initial Borrowing Date. Any Bank hereunder to the
extent it has issued an Existing Letter of Credit that is to remain
outstanding on the Effective Date shall constitute a "Letter of
Credit Issuer" for all purposes of this Agreement.
<PAGE>
2.02 Letter of Credit Requests; Notices of Issuance. (a)
Whenever it desires that a Letter of Credit be issued, the U.S.
Borrower shall give the Administrative Agent and the respective
Letter of Credit Issuer written notice thereof prior to 12:00 Noon
(New York time) at least five Business Days (or such shorter period
as may be acceptable to such 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 such notice,
a "Letter of Credit Request"). Each Letter of Credit Request shall
include any other documents as the respective Letter of Credit Issuer
customarily requires in connection therewith.
(b) Each Letter of Credit Issuer shall, on the date of
each issuance of or amendment or modification to a standby Letter of
Credit by it, give the Administrative Agent, each A RL Bank and the
U.S. Borrower written notice of the issuance of, or amendment or
modification to, such standby Letter of Credit, accompanied by a copy
of the standby Letter of Credit or Letters of Credit issued by it and
each such amendment or modification thereto.
(a) Each Letter of Credit Issuer (other than BTCo) shall
deliver to the Administrative Agent, promptly on the first Business
Day of each week, by facsimile transmission, the aggregate daily
Stated Amount available to be drawn under the outstanding trade
Letters of Credit issued by such Letter of Credit Issuer for the
previous week. The Administrative Agent shall, within 10 days after
the last Business Day of each calendar month, deliver to each
Participant a report setting forth for such preceding calendar month
the aggregate daily Stated Amount available to be drawn under all
outstanding trade Letters of Credit during such calendar month.
2.03 Agreement to Repay Letter of Credit Drawings. (a)
The U.S. Borrower hereby agrees to reimburse the respective 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 such Letter of Credit Issuer under any Letter of
Credit issued by it (each such amount so paid or disbursed until
reimbursed, an "Unpaid Drawing") no later than one Business Day
following the date of such payment or disbursement, with interest on
the amount so paid or disbursed by such Letter of Credit Issuer, to
the extent not reimbursed prior to 1:00 P.M. (New York time) on the
date of such payment or disbursement, from and including the date
paid or disbursed to but not including the date such Letter of Credit
Issuer is reimbursed therefor at a rate per annum which shall be the
relevant Applicable Margin plus the Base Rate as in effect from time
to time for A Revolving 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. Each
Letter of Credit Issuer shall provide the U.S. Borrower prompt notice
of any payment or disbursement made by it under any Letter of Credit
issued by it, although the failure of, or delay in, giving any such
notice shall not release or diminish the obligations of any Borrower
under this Section 2.03(a) or under any other Section of this
Agreement.
<PAGE>
(b) The U.S. Borrower's obligation under this Section 2.03
to reimburse the respective Letter of Credit Issuer with respect to
Unpaid Drawings (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which
the U.S. Borrower may have or have had against such Letter of Credit
Issuer, the Administrative Agent or any Bank, including, without
limitation, any defense based upon the failure of any drawing under a
Letter of Credit issued by it to conform to the terms of the Letter
of Credit or any non-application or misapplication by the beneficiary
of the proceeds of such drawing; provided, however, that the U.S.
Borrower shall not be obligated to reimburse such Letter of Credit
Issuer for any wrongful payment made by such Letter of Credit Issuer
under a Letter of Credit issued by it as a result of acts or
omissions constituting willful misconduct or gross negligence on the
part of such Letter of Credit Issuer.
2.04 Letter of Credit Participations. (a) Immediately
upon the issuance by a Letter of Credit Issuer of any Letter of
Credit, such Letter of Credit Issuer shall be deemed to have sold and
transferred to each other A RL Bank, and each such A RL 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 A RL Percentage,
in such Letter of Credit, each substitute letter of credit, each
drawing made thereunder and the obligations of the U.S. Borrower
under this Agreement with respect thereto (although Letter of Credit
Fees shall be payable directly to the Administrative Agent for the
account of the A RL Banks as provided in Section 3.01(c) and the
Participants shall have no right to receive any portion of any Facing
Fees) and any security therefor or guaranty pertaining thereto. Upon
any change in the A Revolving Loan Commitments of the A RL Banks
pursuant to Section 1.13 or 12.04(b) or otherwise, it is hereby
agreed that, with respect to all outstanding Letters of Credit and
Unpaid Drawings, there shall be an automatic adjustment to the
participations pursuant to this Section 2.04 to reflect the new A RL
Percentages of the assigning and assignee Banks.
(b) In determining whether to pay under any Letter of
Credit, no Letter of Credit Issuer shall have any obligation relative
to the Participants other than to determine that any documents
required to be delivered under such Letter of Credit have been
delivered and that they appear substantially to comply on their face
with the requirements of such Letter of Credit. Any action taken or
omitted to be taken by any Letter of Credit Issuer under or in
connection with any Letter of Credit issued by it if taken or omitted
in the absence of gross negligence or willful misconduct, shall not
create for such Letter of Credit Issuer any resulting liability.
<PAGE>
(c) In the event that any Letter of Credit Issuer makes
any payment under any Letter of Credit issued by it and the U.S.
Borrower shall not have reimbursed such amount in full to such Letter
of Credit Issuer pursuant to Section 2.03(a), such Letter of Credit
Issuer shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify each Participant of such
failure, and each Participant shall promptly and unconditionally pay
to the Administrative Agent for the account of such Letter of Credit
Issuer, the amount of such Participant's A RL 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 A RL Percentage of such unreimbursed amount for any
wrongful payment made by such Letter of Credit Issuer under a Letter
of Credit issued by it as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of such Letter of
Credit Issuer. If the Administrative Agent so notifies any
Participant required to fund a payment under a Letter of Credit prior
to 11:00 A.M. (New York time) on any Business Day, such Participant
shall make available to the Administrative Agent for the account of
the respective Letter of Credit Issuer such Participant's A RL
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 A RL Percentage of the amount of such payment available to
the Administrative Agent for the account of the respective Letter of
Credit Issuer, such Participant agrees to pay to the Administrative
Agent for the account of such Letter of Credit Issuer, forthwith on
demand such amount, together with interest thereon, for each day from
such date until the date such amount is paid to the Administrative
Agent for the account of such 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
respective Letter of Credit Issuer its A RL Percentage of any payment
under any Letter of Credit issued by it shall not relieve any other
Participant of its obligation hereunder to make available to the
Administrative Agent for the account of such Letter of Credit Issuer
its A RL Percentage of any payment under any such Letter of Credit on
the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make
available to the Administrative Agent for the account of such Letter
of Credit Issuer such other Participant's A RL Percentage of any such
payment.
(d) Whenever any Letter of Credit Issuer receives a
payment of a reimbursement obligation as to which the Administrative
Agent has received for the account of such Letter of Credit Issuer
any payments from the Participants pursuant to clause (c) above, such
Letter of Credit Issuer shall promptly pay to the Administrative
Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its A RL Percentage thereof, in U.S.
Dollars and in same day funds, an amount equal to such Participant's
A RL Percentage of the principal amount thereof and interest thereon
accruing after the purchase of the respective participations.
<PAGE>
(e) The obligations of the Participants to make payments
to the Administrative Agent for the account of the respective Letter
of Credit Issuer with respect to Letters of Credit issued by it shall
be irrevocable and not subject to counterclaim, set-off or other
defense or any other qualification or exception whatsoever and shall
be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other
right which any Borrower 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 Agents, the Co-Documentation Agents, the
Collateral Agent, any Letter of Credit Issuer, any Bank, or
other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any
unrelated transactions (including any underlying transaction
between the U.S. Borrower 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 Effective Date, 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 any Letter of Credit Issuer or any
Participant with any request or directive (whether or not having the
force of law) by any such authority, central bank or comparable
agency shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against
Letters of Credit issued by such Letter of Credit Issuer or such
Participant's participation therein, or (ii) impose on any Letter of
Credit Issuer or any Participant any other conditions affecting this
Agreement, any Letter of Credit or such Participant's participation
therein; and the result of any of the foregoing is to increase the
cost to such Letter of Credit Issuer or such Participant of issuing,
maintaining or participating in any Letter of Credit, or to reduce
the amount of any sum received or receivable by such Letter of Credit
Issuer or such Participant hereunder, then, upon written demand to
the U.S. Borrower by such Letter of Credit Issuer or such Participant
(a copy of which notice shall be sent by such Letter of Credit Issuer
or such Participant to the Administrative Agent), accompanied by the
<PAGE>
certificate described in the last sentence of this Section 2.05, the
U.S. Borrower agrees, subject to the provisions of Section 12.19 (to
the extent applicable), to pay to such Letter of Credit Issuer or
such Participant such additional amount or amounts as will compensate
such Letter of Credit Issuer or such Participant for such increased
cost or reduction. A certificate submitted to the U.S. Borrower by
such Letter of Credit Issuer or such Participant, as the case may be
(a copy of which certificate shall be sent by such Letter of Credit
Issuer or such Participant to the Administrative Agent), setting
forth the basis for the determination of such additional amount or
amounts necessary to compensate such Letter of Credit Issuer or such
Participant as aforesaid shall be final and conclusive and binding on
the U.S. Borrower absent manifest error, although the failure to
deliver any such certificate shall not release or diminish the U.S.
Borrower's obligations to pay additional amounts pursuant to this
Section 2.05 upon subsequent receipt of such certificate.
SECTION 3. Fees; Commitments.
3.01 Fees. (a) The U.S. Borrower shall pay to the
Administrative Agent for distribution to each Non-Defaulting Bank a
commitment fee (the "U.S. Commitment Fee") for the period from and
including the Effective Date to, but not including, the date upon
which the Total A Revolving Loan Commitment has been terminated,
computed at a rate for each day equal to the Applicable Commitment
Fee Percentage (as in effect from time to time) per annum on the
daily Aggregate Unutilized U.S. Commitment of such Bank. Accrued
U.S. Commitment Fees shall be due and payable in arrears on each
Quarterly Payment Date and the date upon which the Total A Revolving
Loan Commitment is terminated.
(b) The U.S. Borrower and the German Borrower jointly and
severally agree to pay to the Administrative Agent for distribution
to each Non-Defaulting Bank a commitment fee (the "B RL Commitment
Fee") for the period from and including the Effective Date to, but
not including, the day upon which the Total B Revolving Loan
Commitment has been terminated, computed at a rate for each day equal
to the Applicable Commitment Fee Percentage per annum on the daily
Aggregate Unutilized B Revolving Loan Commitment of such Bank.
Accrued B RL Commitment Fees shall be due and payable in arrears on
each Quarterly Payment Date and on the date upon which the Total B
Revolving Loan Commitment is terminated.
(c) The U.S. Borrower shall pay to the Administrative
Agent for the account of each Non-Defaulting Bank pro rata on the
basis of their A RL Percentages, a fee in respect of each Letter of
Credit (the "Letter of Credit Fee") computed at a rate per annum
equal to the relevant Applicable Margin then in effect with respect
to A Revolving Loans outstanding as Eurodollar Loans, less 0.125%, 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 after the termination
of the Total A Revolving Loan Commitment upon which no Letters of
Credit remain outstanding.
<PAGE>
(d) The U.S. Borrower shall pay to the Administrative
Agent for the account of the respective Letter of Credit Issuer a fee
in respect of each Letter of Credit issued by such Letter of Credit
Issuer (the "Facing Fee") computed at the rate of 0.125% per annum on
the daily Stated Amount of such Letter of Credit; provided, that in
no event shall the annual Facing Fee with respect to each Letter of
Credit be less than $500; it being agreed that, on the date of
issuance of any Letter of Credit and on each anniversary thereof
prior to the termination of such Letter of Credit, if $500 will
exceed the amount of Facing Fees that will accrue with respect to
such Letter of Credit for the immediately succeeding 12-month
period, the full $500 shall be payable on the date of issuance of
such Letter of Credit and on each such anniversary thereof prior to
the termination of such Letter of Credit. Except as provided in the
immediately preceding sentence, accrued Facing Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and upon
the first day after the termination of the Total A Revolving Loan
Commitment upon which no Letters of Credit remain outstanding.
(e) The U.S. Borrower hereby agrees to pay directly to the
respective Letter of Credit Issuer upon each issuance of, payment
under, and/or amendment of, a Letter of Credit issued by it such
amount as shall at the time of such issuance, payment or amendment be
the administrative charge which such Letter of Credit Issuer is
customarily charging for issuances of, payments under or amendments
of, letters of credit issued by it.
(f) The U.S. Borrower shall pay to the Administrative
Agent, for its own account, such fees as may be agreed to from time
to time between the U.S. Borrower and the Administrative Agent, when
and as due.
(g) All computations of Fees shall be made in accordance
with Section 12.07(b).
3.02 Voluntary Termination or Reduction of Total
Unutilized Revolving Loan Commitment. (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 U.S. Borrower shall have the right,
without premium or penalty, to terminate or partially reduce the
Total Unutilized A Revolving Loan Commitment and/or the Total
Unutilized B Revolving Loan Commitment; provided that (x) any such
termination or partial reduction shall apply to proportionately and
permanently reduce the A Revolving Loan Commitment and/or the B
Revolving Loan Commitment of each of the A RL Banks or the B RL
Banks, as the case may be, and (y) any partial reduction pursuant to
this Section 3.02 shall be in the amount of at least (i) $1,000,000
in the case of the Total Unutilized A Revolving Loan Commitment and
(ii) E1,000,000 in the case of the Total Unutilized B Revolving Loan
Commitment.
<PAGE>
(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 U.S. Borrower 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 terminate the entire Revolving Loan Commitment of such Bank, so
long as all Loans, together with accrued and unpaid interest, Fees
and all other amounts, due and owing to such Bank are repaid
concurrently with the effectiveness of such termination pursuant to
Section 4.01(b) and the U.S. Borrower shall pay to the Administrative
Agent at such time an amount in cash and/or Cash Equivalents equal to
such Bank's A RL 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 U.S. Borrower
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) (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 (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.
3.03 Mandatory Adjustments of Commitments, etc. (a) The
Total Commitment shall terminate in its entirety on July 31, 1999
unless the Initial Borrowing Date has occurred on or before such
date.
(b) Each of the Total A Term Loan Commitment, the Total B
Term Loan Commitment and the Total C Term Loan Commitment shall
terminate on the Initial Borrowing Date, after giving effect to the
making of Term Loans on such date.
(c) The Total A Revolving Loan Commitment (and the A
Revolving Loan Commitment of each Bank) shall terminate on the
earlier of (x) the date on which a Change of Control Event occurs and
(y) the A Revolving Loan Maturity Date.
(d) The Total B Revolving Loan Commitment (and the B
Revolving Loan Commitment of each Bank) shall terminate on the
earlier of (x) the date on which a Change of Control Event occurs and
(y) the B Revolving Loan Maturity Date.
<PAGE>
(e) The Total A Revolving Loan Commitment shall be reduced
(i) on the second Business Day following the Accounts Receivable
Facility Transaction Date, by an amount equal to the Accounts
Receivable Facility Proceeds and (ii) on the second Business Day
after each date after the Accounts Receivable Facility Transaction
Date on which the holders of Investor Certificates fund any increase
in the net invested amount of such Investor Certificates, by the
respective increase; provided that after the aggregate reduction to
the Total A Revolving Loan Commitment pursuant to clauses (i) and/or
(ii) above is in an amount equal to $50,000,000, no such further
reduction shall be required pursuant to this Section 3.03(e) unless
and until the sum (such sum, the "Aggregate Net Invested Amount") of
(x) the Accounts Receivable Facility Proceeds plus (y) the sum of the
respective increases under clause (ii) above exceeds $75,000,000;
provided further, that on the second Business Day following any date
on which the Aggregate Net Invested Amount is increased above
$75,000,000, an amount equal to such increase above $75,000,000 shall
be applied (at the option of the U.S. Borrower) either to (A) reduce
the Total A Revolving Loan Commitment and/or (B) prepay the A Term
Loans pursuant to Section 4.02(A)(i) (such election (which may be to
apply all or part of such increase to the Total A Revolving Loan
Commitment and/or all or part of such increase to the A Term Loans,
so long as the full amount of such increase is applied) to be
evidenced by a written notice to be delivered by the U.S. Borrower to
the Administrative Agent on or prior to the second Business Day
following the date of such increase, which notice shall specify the
amount of such increase to be applied to each of the Total A
Revolving Loan Commitment and the A Term Loans, it being understood
that if the U.S. Borrower fails to give such notice then the full
amount of such increase shall be applied to reduce the Total A
Revolving Loan Commitment).
(f) On each date upon which a mandatory repayment of Term
Loans pursuant to Section 4.02(A)(c), (d), (e), (f) or (g) is
required (and exceeds in amount the aggregate principal amount of
Term Loans then outstanding) or would be required if an unlimited
amount of Term Loans were then outstanding, an amount, if any, by
which the amount required to be applied pursuant to said Sections
(determined as if an unlimited amount of Term Loans were actually
outstanding) exceeds the aggregate principal amount of Term Loans
then outstanding shall be applied to permanently reduce the Total
Revolving Loan Commitment, with such reduction to apply to the Total
A Revolving Loan Commitment and/or the Total B Revolving Loan
Commitment, as the U.S. Borrower shall elect (or, absent such
election, pro rata to the Total A Revolving Loan Commitment and the
Total B Revolving Loan Commitment).
(g) On the date occurring nine months following the
Initial Borrowing Date, the Total B Revolving Loan Commitment shall
be permanently reduced by an amount equal to the sum of all
commitments to provide lines of credit for borrowed money for working
capital purposes to the German Borrower or any of its Subsidiaries or
any other Subsidiary of the U.S. Borrower organized under the laws of
Germany (other than the B Revolving Loan Commitments and any
commitments under overdraft facilities of any such Persons) as of
such date (determined based on the Euro Equivalent of such
commitments in the case of any such commitments denominated in
currencies other than Euros and certified to on such date by an
officer of the German Borrower).
<PAGE>
(h) Each reduction or adjustment of the Total A Term Loan
Commitment, the Total B Term Loan Commitment, the Total C Term Loan
Commitment, the Total A Revolving Loan Commitment or the Total B
Revolving Loan Commitment pursuant to this Section 3.03 (or pursuant
to Section 4.02) shall apply proportionately to the A Term Loan
Commitment, the B Term Loan Commitment, the C Term Loan Commitment,
the A Revolving Loan Commitment or the B Revolving Loan Commitment,
as the case may be, of each Bank with such a Commitment.
SECTION 4. Payments.
4.01 Voluntary Prepayments. (a) Each of the U.S. Borrower and
the German Borrower shall have the right to prepay the Loans made to
it, in whole or in part, without premium or penalty except as
otherwise provided in this Agreement, from time to time on the
following terms and conditions: (I) such Borrower shall give the
Administrative Agent at its Notice Office written notice (or
telephonic notice promptly confirmed in writing) of its intent to
prepay such Loans, whether such Loans are A Term Loans, B Term Loans,
C Term Loans, A Revolving Loans, B Revolving Loans, A Swingline Loans
or B Swingline Loans, the amount of such prepayment, the currency in
which such Loans are denominated and (in the case of Euro Rate Loans)
the specific Borrowing(s) pursuant to which made, which notice shall
be given by such Borrower prior to 11:00 A.M. (Local time) (x) at
least one Business Day prior to the date of such prepayment in the
case of Base Rate Loans, (y) on the date of such prepayment in the
case of Swingline Loans and (z) at least three Business Days prior to
the date of such prepayment in the case of Euro Rate Loans (other
than B 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 of at least (w) $1,000,000 in the case of U.S.
Loans, (x) $500,000 in the case of A Swingline Loans, (y) E1,000,000
(or the Euro Equivalent thereof) in the case of B Revolving Loans and
(z) E500,000 (or the Euro Equivalent thereof) in the case of B
Swingline Loans; provided, that no partial prepayment of Euro Rate
Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of the Euro Rate Loans outstanding pursuant to such
Borrowing 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 (x) at the U.S. Borrower's election in
connection with any prepayment of A Revolving Loans pursuant to this
Section 4.01, such prepayment shall not be applied to any A Revolving
Loans of a Defaulting Bank at any time when the aggregate amount of A
Revolving Loans of any Non-Defaulting Bank exceeds such Non-
Defaulting Bank's A RL Percentage of all A Revolving Loans then
outstanding and (y) at the applicable Borrower's election in
connection with any prepayment of B Revolving Loans pursuant to this
Section 4.01, such prepayment shall not be applied to any B Revolving
Loans of a Defaulting Bank at any time when the aggregate amount of B
Revolving Loans of any Non-Defaulting Bank exceeds such Non-
Defaulting Bank's B RL Percentage of all B Revolving Loans then
outstanding; (iv) each prepayment of Term Loans pursuant to this
Section 4.01 shall be applied to the A Term Loans, B Term Loans and C
Term Loans in such manner as the U.S. Borrower shall direct; and (v)
each prepayment of A Term Loans, B Term Loans and C Term Loans
pursuant to this Section 4.01 shall reduce the then remaining
<PAGE>
Scheduled Repayments of the respective Facility of Term Loans on a
pro rata basis (based upon the then remaining principal amount of
each such Scheduled Repayment of the respective Facility after giving
effect to all prior reductions thereto); provided that unless the
U.S. Borrower notifies the Administrative Agent in writing that it
does not desire that prepayments be applied as provided in this
proviso, any such prepayment of the respective Facility of Term Loans
shall first be applied in direct order of maturity to the next eight
succeeding Scheduled Repayments of the respective Facility which are
then due after the date of such prepayment (based upon the then
remaining principal amounts of such Scheduled Repayments after giving
effect to all prior reductions thereto), with any excess amount of
such prepayment to be applied to the then remaining Scheduled
Repayments of the respective Facility of Term Loans on a pro rata
basis as otherwise provided in this clause (v) above.
(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 U.S. Borrower 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 all Loans, together with accrued and unpaid interest, Fees and
all other amounts due and 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 Bank pursuant to this clause (b), the
Revolving Loan Commitment of such 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 Loan
Commitments) and (B) in the case of the repayment of Loans of any
Bank, the consents required by Section 12.12(b) in connection with
the repayment pursuant to this clause (b) shall have been obtained.
In connection with any repayment of Loans pursuant to and as
contemplated by this Section 4.01, the German Borrower hereby
irrevocably authorizes the U.S. Borrower to take all necessary
action, in the name of the German Borrower, as described above in
this Section 4.01, in order to effect the repayment of the respective
Bank or Banks in accordance with the preceding provisions of this
Section 4.01.
<PAGE>
4.02 Mandatory Prepayments.
(A) Requirements:
(a) (i) If on any date the sum of (x) the aggregate
outstanding principal amount of A Revolving Loans and A Swingline
Loans (after giving effect to all other repayments thereof on such
date) plus (y) the Letter of Credit Outstandings on such date exceeds
the Total A Revolving Loan Commitment as then in effect, the U.S.
Borrower shall repay on such date the principal of A Swingline Loans,
and if no A Swingline Loans are or remain outstanding, A Revolving
Loans, in an aggregate amount equal to such excess. If, after giving
effect to the prepayment of all outstanding A Swingline Loans and A
Revolving Loans, the aggregate amount of Letter of Credit
Outstandings exceeds the Total A Revolving Loan Commitment as then in
effect, the U.S. Borrower agrees to pay to the Administrative Agent
an amount in cash and/or Cash Equivalents equal to such excess (up to
the aggregate amount of Letter of Credit Outstandings at such time)
and the Administrative Agent shall hold such payment as security for
the obligations of the U.S. Borrower 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 satisfactory to the
Administrative Agent until the proceeds are applied to the secured
obligations).
(ii) If on (x) any date on which Euro Equivalents are
determined pursuant to Section 12.07(c) or (y) any date on which a
reduction to the Total B Revolving Loan Commitment occurs, the sum of
the aggregate outstanding Principal Amount of B Revolving Loans and B
Swingline Loans exceeds the Total B Revolving Loan Commitment as then
in effect, the U.S. Borrower and/or the German Borrower shall repay
on such date the principal of B Swingline Loans, and if no B
Swingline Loans are or remain outstanding, B Revolving Loans, in an
aggregate Principal Amount equal to such excess.
(b) (i) The U.S. Borrower shall be required to repay the
principal amount of 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), a
"Scheduled A Repayment"):
<PAGE>
Scheduled A Repayment Date Amount
the last Business Day in March, 2001 $6,875,000
the last Business Day in June, 2001 $6,875,000
the last Business Day in September, 2001 $6,875,000
the last Business Day in December, 2001 $6,875,000
the last Business Day in March, 2001 $10,312,500
the last Business Day in June, 2002 $10,312,500
the last Business Day in September, 2001 $10,312,500
the last Business Day in December, 2001 $10,312,500
the last Business Day in March, 2002 $13,750,000
the last Business Day in June, 2003 $13,750,000
the last Business Day in September, 2003 $13,750,000
the last Business Day in December, 2003 $13,750,000
the last Business Day in March, 2004 $17,187,500
the last Business Day in June, 2004 $17,187,500
the last Business Day in September, 2004 $17,187,500
the last Business Day in December, 2004 $17,187,500
the last Business Day in March, 2005 $41,250,000
A Term Loan Maturity Date $41,250,000
<PAGE>
(ii) The U.S. Borrower 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), a
"Scheduled B Repayment"):
Scheduled B Repayment Date Amount
the last Business Day in September, 1999 $750,000
the last Business Day in December, 1999 $750,000
the last Business Day in March, 2000 $750,000
the last Business Day in June, 2000 $750,000
the last Business Day in September, 2000 $750,000
the last Business Day in December, 2000 $750,000
the last Business Day in March, 2001 $750,000
the last Business Day in June, 2001 $750,000
the last Business Day in September, 2001 $750,000
the last Business Day in December, 2001 $750,000
the last Business Day in March, 2002 $750,000
the last Business Day in June, 2002 $750,000
the last Business Day in September, 2002 $750,000
the last Business Day in December, 2002 $750,000
the last Business Day in March, 2003 $750,000
the last Business Day in June, 2003 $750,000
the last Business Day in September, 2003 $750,000
the last Business Day in December, 2003 $750,000
the last Business Day in March, 2004 $750,000
the last Business Day in June, 2004 $750,000
the last Business Day in September, 2004 $750,000
the last Business Day in December, 2004 $750,000
the last Business Day in March, 2005 $750,000
the last Business Day in June, 2005 $750,000
the last Business Day in September, 2005 $70,500,000
the last Business Day in December, 2005 $70,500,000
the last Business Day in March, 2006 $70,500,000
B Term Loan Maturity Date $70,500,000
<PAGE>
(iii) The U.S. Borrower 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), a
"Scheduled C Repayment"):
Scheduled C Repayment Date Amount
the last Business Day in September, 1999 $750,000
the last Business Day in December, 1999 $750,000
the last Business Day in March, 2000 $750,000
the last Business Day in June, 2000 $750,000
the last Business Day in September, 2000 $750,000
the last Business Day in December, 2000 $750,000
the last Business Day in March, 2001 $750,000
the last Business Day in June, 2001 $750,000
the last Business Day in September, 2001 $750,000
the last Business Day in December, 2001 $750,000
the last Business Day in March, 2002 $750,000
the last Business Day in June, 2002 $750,000
the last Business Day in September, 2002 $750,000
the last Business Day in December, 2002 $750,000
the last Business Day in March, 2003 $750,000
the last Business Day in June, 2003 $750,000
the last Business Day in September, 2003 $750,000
the last Business Day in December, 2003 $750,000
the last Business Day in March, 2004 $750,000
the last Business Day in June, 2004 $750,000
the last Business Day in September, 2004 $750,000
the last Business Day in December, 2004 $750,000
the last Business Day in March, 2005 $750,000
the last Business Day in June, 2005 $750,000
the last Business Day in September, 2005 $750,000
the last Business Day in December, 2005 $750,000
the last Business Day in March, 2006 $750,000
the last Business Day in June, 2006 $750,000
the last Business Day in September, 2006 $69,750,000
the last Business Day in December, 2006 $69,750,000
the last Business Day in March, 2007 $69,750,000
C Term Loan Maturity Date $69,750,000
<PAGE>
(c) On the Business Day after the date of receipt thereof
by Holdings and/or any of its Subsidiaries of Proceeds from any Asset
Sale, an amount equal to the Applicable Prepayment Percentage of the
Net Proceeds from such Asset Sale shall be applied as a mandatory
repayment of principal of the Term Loans (with the A TL Percentage of
such amount to be applied as a repayment of the A Term Loans, the B
TL Percentage of such amount to be applied as a repayment of the B
Term Loans and the C TL Percentage of such amount to be applied as a
repayment of the C Term Loans, in each case subject to modification
of such application as set forth in Section 4.02(C)), provided that
with respect to no more than $100,000,000 in the aggregate of such
Proceeds received by Holdings and its Subsidiaries after the
Effective Date, the Net Proceeds therefrom shall not be required to
be so applied on such date to the extent that no payment Default, or
Event of Default, then exists and the U.S. Borrower delivers a
certificate to the Administrative Agent on or prior to such date
stating that such Net Proceeds shall be used to purchase assets used
or to be used in the businesses referred to in Section 8.01(a)
(including, without limitation, capital stock of a corporation
engaged in any such business) within 365 days following the date of
such Asset Sale (which certificate shall set forth the estimates of
the proceeds to be so expended), provided, that (1) if all or any
portion of such Net Proceeds not so applied to the repayment of Term
Loans are not so used (or contractually committed to be used) within
such 365 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 and (2) if all or any portion of such Net
Proceeds are not required to be applied on the 365th 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 in this Section 4.02(A)(c).
(d) On the Business Day after the date of the receipt
thereof by Holdings 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 any
publicly registered sale or issuance of preferred or common equity of
Holdings or any of its Subsidiaries (other than (x) issuances of
Holdings Common Stock and Permitted Holdings PIK Securities by
Holdings as consideration in connection with, or the net proceeds of
which are used to finance, any Permitted Acquisition, and (y)
issuances of Holdings Common Stock or Permitted Holdings PIK
Securities the net proceeds of which are used to redeem or repurchase
Senior Subordinated Notes (either pursuant to the terms of the Senior
Subordinated Note Documents or through open-market purchases,
including by tender offer)) shall be applied as a mandatory repayment
of principal of the Term Loans (with the A TL Percentage of such
amount to be applied as a repayment of the A Term Loans, the B TL
Percentage of such amount to be applied as a repayment of the B Term
Loans and the C TL Percentage of such amount to be applied as a
repayment of the C Term Loans, in each case subject to modification
of such application as set forth in Section 4.02(C)).
<PAGE>
(e) On the date of the receipt thereof by Holdings and/or
any of its Subsidiaries, an amount equal to 100% of the proceeds (net
of underwriting discounts and commissions and other reasonable costs
associated therewith) of the incurrence of Indebtedness by Holdings
and/or any of its Subsidiaries (other than Indebtedness permitted to
be incurred by Section 8.04 as in effect on the Effective Date) shall
be applied as a mandatory repayment of principal of the Term Loans
(with the A TL Percentage of such amount to be applied as a repayment
of the A Term Loans, the B TL Percentage of such amount to be applied
as a repayment of the B Term Loans and the C TL Percentage of such
amount to applied as a repayment of the C Term Loans, in each case
subject to modification of such application as set forth in Section
4.02(C)).
(f) On each Excess Cash Payment Date, an amount equal to
the Applicable Prepayment Percentage of Excess Cash Flow of Holdings
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 A TL
Percentage of such amount to be applied as a repayment of the A Term
Loans, the B TL Percentage of such amount to be applied as a
repayment of the B Term Loans and the C TL Percentage of such amount
to be applied as a repayment of the C Term Loans, in each case
subject to modification of such application as set forth in Section
4.02(C)).
(g) Within 10 days following each date on which Holdings
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 A TL Percentage of such amount
to be applied as a repayment of the A Term Loans, the B TL Percentage
of such amount to be applied as a repayment of the B Term Loans and
the C TL Percentage of such amount to be applied as a repayment of
the C Term Loans, 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 and such proceeds do
not exceed $200,000,000, such proceeds shall not be required to be so
applied on such date to the extent that the U.S. Borrower 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 365 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 the
amount of such proceeds exceeds $200,000,000, then the entire amount
and not just the portion in excess of $200,000,000 shall be applied
as a mandatory repayment of Term Loans as provided above in this
Section 4.02(A)(g), (ii) if all or any portion of such proceeds not
required to be applied to the repayment of Term Loans pursuant to the
<PAGE>
preceding proviso are not so used (or contractually committed to be
used) within 365 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 in this Section 4.02(A)(g) and (iii) if all or any portion
of such proceeds are not required to be applied on the 365th day
referred to in clause (ii) 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) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (i) all then outstanding A Swingline
Loans and B Swingline Loans shall be repaid in full on the A
Swingline Expiry Date or the B Swingline Expiry Date, as the case may
be, and (ii) all other then outstanding Loans of the respective
Facility shall be repaid in full on the Maturity Date for such
Facility.
(i) On the second Business Day following each date on
which the Aggregate Net Invested Amount in respect of the Accounts
Receivable Facility is increased to an amount in excess of
$75,000,000, all or a portion of such increase shall be applied as a
mandatory prepayment of the A Term Loans (as and to the extent
elected by the U.S. Borrower pursuant to Section 3.03(e)).
(B) Application:
(j) All repayments of A Term Loans, B Term Loans and C
Term Loans pursuant to Section 4.02(A)(c), (d), (e), (f), (g) or (i)
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.
(k) With respect to each repayment of Loans required by
this Section 4.02, the applicable Borrower 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)
Eurodollar Loans made pursuant to a specific Facility may be
designated for repayment pursuant to this Section 4.02 only on the
last day of an Interest Period applicable thereto unless all
Eurodollar Loans made pursuant to such Facility with Interest Periods
ending on such date of required prepayment and all Base Rate Loans
made pursuant to such Facility have been paid in full; (ii) if any
repayment of Euro Rate 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 (or repaid in the
case of B Revolving Loans and B Swingline Loans); and (iii) each
repayment of any Loans made pursuant to a Borrowing shall be applied
pro rata among such Loans; provided, that (x) no repayment pursuant
to Section 4.02(A)(a)(i) shall be applied to any A Revolving Loans of
a Defaulting Bank at any time when the aggregate amount of the A
Revolving Loans of any Non-Defaulting Bank exceeds such Non-
<PAGE>
Defaulting Bank's A RL Percentage of all A Revolving Loans then
outstanding and (y) no repayment pursuant to Section 4.02(A)(a)(ii)
shall be applied to any B Revolving Loans of a Defaulting Bank at any
time when the aggregate amount of the B Revolving Loans of any Non-
Defaulting Bank exceeds such Non-Defaulting Bank's B RL Percentage of
all B Revolving Loans then outstanding. In the absence of a
designation by a Borrower 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.
(C) Waiver of Certain Mandatory Repayments by B 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), the U.S. Borrower shall have the
option, in its sole discretion, to give the Banks with outstanding B
Terms Loans (the "B Banks") and C Term Loans (the "C Banks") the
option to 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). If the U.S. Borrower elects to
exercise the option referred to in the preceding sentence, the U.S.
Borrower shall give to the Administrative Agent written notice of its
intention to give the B Banks and the C Banks the right to waive 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). The U.S. Borrower's
offer to permit such Banks to waive any such Waivable Mandatory
Repayment may apply to all or part of such repayment, provided that
any offer to waive part of such repayment must be made ratably to
such Banks on the basis of their outstanding B Term Loans and C Term
Loans. In the event any such B Bank and 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 A Term Loans in accordance with Section 4.02(B).
<PAGE>
4.03 Method and Place of Payment. 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) on the
date when due and shall be made in immediately available funds at the
Payment Office and in: (x) U.S. Dollars, if such payment is made in
respect of any obligation of any of the Borrowers under this
Agreement except as otherwise provided in the immediately succeeding
clause (y) or (z); (y) the appropriate Foreign Currency, if such
payment is made in respect of principal of or interest on Foreign
Currency Loans; and (z) Euros, if such payment is made in respect of
B RL Commitment Fees, it being understood that written, telex or
facsimile transmission notice by the relevant Borrower to the
Administrative Agent to make a payment from the funds in such
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) 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.
4.04 Net Payments. (a) All payments made by each
Borrower hereunder or under any Note will be made without setoff,
counterclaim or other defense. Except as provided in Section 4.04(b)
and (c), all such payments will be made free and clear of, and
without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by
any political subdivision or taxing authority thereof or therein with
respect to such payments (but excluding, except as provided in the
second succeeding sentence, any tax imposed on or measured by the net
income or net profits of a Bank pursuant to the laws of the
jurisdiction in which it is organized or the jurisdiction in which
the principal office or applicable lending office of such Bank is
located or any subdivision thereof or therein) and all interest,
penalties or similar liabilities with respect thereto (all such non-
excluded taxes, levies, imposts, duties, fees, assessments or other
charges being referred to collectively as "Taxes"). If any Taxes are
so levied or imposed, the relevant Borrower agrees to pay the full
amount of such Taxes, and such additional amounts as may be necessary
so that every payment of all amounts due under this Agreement or
under any Note, after withholding or deduction for or on account of
any Taxes, will not be less than the amount provided for herein or in
such Note. If any amounts are payable in respect of Taxes pursuant
to the preceding sentence, the relevant Borrower agrees to reimburse
each Bank, upon the written request of such Bank, for taxes imposed
on or measured by the net income or net profits of such Bank pursuant
to the laws of the jurisdiction in which such Bank is organized or in
which the principal office or applicable lending office of such Bank
is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which such Bank is organized or
in which the principal office or applicable lending office of such
<PAGE>
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. Each Borrower will furnish
to the Administrative Agent within 45 days after the date the payment
of any Taxes is due pursuant to applicable law certified copies of
tax receipts evidencing such payment by such Borrower. Each Borrower
agrees to indemnify and hold harmless each Bank, and reimburse such
Bank upon its written request, for the amount of any Taxes so levied
or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) lending to the
U.S. Borrower agrees to deliver to the U.S. Borrower and the
Administrative Agent on or prior to the Effective Date, or in the
case of a Bank lending to the U.S. Borrower that is an assignee or
transferee of an interest under this Agreement pursuant to Section
1.13 or 12.04 (unless the respective Bank lending to the U.S.
Borrower was already a Bank lending to the U.S. Borrower hereunder
immediately prior to such assignment or transfer), on the date of
such assignment or transfer to such Bank lending to the U.S.
Borrower, (i) two accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to
a complete exemption under an income tax treaty) (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 lending
to the U.S. Borrower is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete
exemption under an income tax treaty) 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-8BEN (with respect to the portfolio interest
exemption) (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 that is not a United States
person lending to the U.S. Borrower 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 deliver to the U.S.
Borrower and the Administrative Agent two new accurate and complete
original signed copies of Internal Revenue Service Form W-8ECI or
Form W-8BEN (with respect to the benefits of any income tax treaty),
or Form W-8BEN (with respect to the portfolio interest exemption) and
a Section 4.04(b)(ii) Certificate, or any successor form, as the case
may be, and such other forms as may be required in order to confirm
or establish the entitlement of such Bank lending to the U.S.
Borrower 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 U.S. Borrower and the
Administrative Agent of its inability to deliver any such Form or
Certificate in which case such Bank lending to the U.S. Borrower
shall not be required to deliver any such Form or Certificate
pursuant to this Section 4.04(b). Notwithstanding anything to the
contrary contained in Section 4.04(a), but subject to Section
12.04(b) and the immediately succeeding sentence, (x) the U.S.
<PAGE>
Borrower shall be entitled, to the extent it is required to do so by
law, to deduct or withhold income or similar taxes imposed by the
United States (or any political subdivision or taxing authority
thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Bank lending to the U.S. Borrower
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 lending to the U.S. Borrower has not
provided to the U.S. Borrower U.S. Internal Revenue Service Forms
that establish a complete exemption from such deduction or
withholding and (y) the U.S. Borrower shall not be obligated pursuant
to Section 4.04(a) hereof to gross-up payments to be made to a Bank
lending to the U.S. Borrower in respect of income or similar taxes
imposed by the United States if (I) such Bank has not provided to the
U.S. Borrower the Internal Revenue Service Forms required to be
provided to the U.S. Borrower pursuant to this Section 4.04(b) or
(II) in the case of a payment, other than interest, to a Bank lending
to the U.S. Borrower described in clause (ii) above, to the extent
that such Forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 4.04
and except as set forth in Section 12.04(b), the U.S. Borrower agrees
to pay additional amounts and to indemnify each Bank lending to the
U.S. Borrower 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 that are effective 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.
(c) Each Bank that is not a resident of the Federal
Republic of Germany for Federal Republic of Germany tax purposes
lending to the German Borrower agrees to (i) deliver to the German
<PAGE>
Borrower and the Administrative Agent such declaration of non-
residence or other similar certificate as shall be requested by the
German Borrower (giving the Bank lending to the German Borrower
sufficient time to satisfy such requirement), as is required by
statute, treaty or regulation of the Federal Republic of Germany
existing on the date hereof or which are not substantially more
onerous than those existing on the date hereof and which do not
impose an unreasonable burden (in time, resources or otherwise) on
the Bank lending to the German Borrower, or (ii) within 45 days after
the day hereof, make the requisite filing with the taxing authority
of the Federal Republic of Germany in order to certify that such Bank
lending to the German Borrower is subject to income tax on a net
basis in the United States (and/or the taxing authority of the
jurisdiction in which such Bank's principal office is located) as
required to establish its entitlement to an exemption from Federal
Republic of Germany withholding under the double tax treaty currently
in force between the United States (or the jurisdiction in which such
Lender's principal office is located) and the Federal Republic of
Germany. Notwithstanding anything to the contrary contained in
Section 4.04(a), but subject to the immediately succeeding sentence,
(x) the German Borrower shall be entitled, to the extent required to
do so by law, to deduct and withhold income or similar taxes imposed
<PAGE>
by the Federal Republic of Germany on interest, Fees or other amounts
payable hereunder for the account of any Bank lending to the German
Borrower which is not a resident of the Federal Republic of Germany
for Federal Republic of Germany tax purposes to the extent that (I)
such Bank lending to the German Borrower has not provided forms,
declarations or other certification required to establish a complete
exemption from such deduction or withholding or (II) the German
Borrower is required to do so by any thin capitalization laws or
regulations in the Federal Republic of Germany which recharacterize
the interest payments as dividends and (y) the German Borrower shall
not be obligated pursuant to Section 4.04(a) hereof to gross-up
payments to be made to a Bank lending to the German Borrower in
respect of income or similar taxes imposed by the Federal Republic of
Germany if such Bank lending to the German Borrower has not provided
to the German Borrower the forms or declarations required to be
provided by such Bank lending to the German Borrower pursuant to the
preceding sentence. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section
4.04, the German Borrower agrees to pay any additional amounts and to
indemnify each Bank lending to the German Borrower in the manner set
forth in Section 4.04(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of
any Taxes deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes after the Effective
Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the
deducting or withholding of such Taxes. For the avoidance of doubt,
nothing herein shall require any Bank lending to the German Borrower
to disclose any information regarding its tax affairs or computations
to the German Borrower or any of its Affiliates and no Bank lending
to the German Borrower shall be obligated to disclose any of its tax
returns to the German Borrower or any of its Affiliates or any agent
of the foregoing.
(d) The provisions of this Section 4.04 are subject to the
provisions of Section 12.19 (to the extent applicable).
SECTION 5. Conditions Precedent. The obligation of each
Bank to make each Loan hereunder, and the obligation of any 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:
<PAGE>
5.01 Execution of Agreement; Notes. On or prior to the
Initial Borrowing Date, (i) this Agreement shall have been executed
and delivered as provided in Section 12.10 and (ii) there shall have
been delivered to the Administrative Agent for the account of each
Bank which has requested the same the appropriate A Term Note, B Term
Note, C Term Note, A Revolving Note and B Revolving Note, if any, and
to BTCo if so requested, the A Swingline Note and the B Swingline
Note, in each case executed by the relevant Borrower or Borrowers 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 or 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 each Borrower
stating that all of the applicable conditions set forth in Sections
5.02, 5.06, 5.07, 5.08 and 5.09 exist as of such date.
5.04 Notice of Borrowing; Letter of Credit Request. The
Administrative Agent shall have received a Notice of Borrowing
satisfying the requirements of Section 1.03 with respect to each
incurrence of Loans, and the Administrative Agent and the respective
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.
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 D with
appropriate insertions, together with copies of the Certificate of
Incorporation and By-Laws (or equivalent organizational 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 or equivalent documents)
shall be reasonably satisfactory to each of the Agents.
<PAGE>
(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 Transaction
Documents shall be reasonably satisfactory in form and substance to
each of the Agents, 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.
(c) On the Initial Borrowing Date, unless and to the
extent otherwise agreed by the Administrative Agent, the
Administrative Agent shall have received evidence of the amendment to
the certificate of incorporation (or equivalent organizational
document) and by-laws of each Foreign Subsidiary whose capital stock
is to be pledged pursuant to the Pledge Agreement permitting the
granting of a security interest in such Foreign Subsidiary's capital
stock pursuant to the Pledge Agreement, in form and substance
satisfactory to each of the Agents and local counsel to each of the
Agents.
5.06 Adverse Change, etc. On or prior to the Initial
Borrowing Date, nothing shall have occurred since December 31, 1998
(and neither the Banks nor any of the Agents shall have become aware
of any facts or conditions not previously known) which the Required
Banks or any of the Agents shall determine (a) has, or could
reasonably be expected to have, a material adverse effect on the
rights or remedies of the Banks or such Agent, or on the ability of
any Credit Party to perform its obligations to them hereunder or
under any other Credit Document or (b) has, or could reasonably be
expected to have, a Material Adverse Effect.
5.07 Litigation. 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 any
of the Agents or the Required Banks shall determine could reasonably
be expected to (i) have a Material Adverse Effect or (ii) have a
material adverse effect on the Transaction, the rights or remedies of
the Banks or any 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 any Agent hereunder or under any other
Credit Document.
<PAGE>
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 Transaction Documents and otherwise referred to
herein or therein shall have been obtained and remain in effect, 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 Transaction
Documents and otherwise referred to herein or therein. Additionally,
on the Initial Borrowing Date, 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.
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 set forth in the Recapitalization Documents shall
have been satisfied and not waived except with the consent of the
Agents and the Required Banks to the reasonable satisfaction of the
Agents and the Required Banks.
(b) On the Initial Borrowing Date, the total commitments
in respect of the Indebtedness to be Refinanced shall have been
terminated, and all loans with respect thereto shall have been repaid
in full, together with interest thereon, all letters of credit issued
thereunder shall have been terminated (or incorporated hereunder as
existing Letters of Credit pursuant to Section 2.01(d)) and all other
amounts owing pursuant to the Indebtedness to be Refinanced shall
have been repaid in full and all documents in respect of the
Indebtedness to be Refinanced and all guarantees with respect thereto
shall have been terminated (except as to indemnification provisions,
which may survive) and to be of no further force and effect.
<PAGE>
(c) On the Initial Borrowing Date, the creditors in
respect of the Indebtedness to be Refinanced shall have terminated
and released all security interests and Liens on the assets owned by
Holdings and its Subsidiaries. The Administrative Agent shall have
received such releases of security interests in and Liens on the
assets owned by Holdings and its Subsidiaries as may have been
requested by the Administrative Agent, which releases shall be in
form and substance reasonably satisfactory to each of the Agents.
Without limiting the foregoing, there shall have been delivered (i)
proper termination statements (Form UCC-3 or the appropriate
equivalent) for filing under the UCC of each jurisdiction where a
financing statement (Form UCC-1 or the appropriate equivalent) was
filed with respect to Holdings or any of its Subsidiaries in
connection with the security interests created with respect to the
Indebtedness to be Refinanced and the documentation related thereto,
(ii) termination or reassignment of any security interest in, or Lien
on, any patents, trademarks, copyrights, or similar interests of
Holdings or any of its Subsidiaries on which filings have been made,
(iii) terminations of all mortgages, leasehold mortgages, deeds of
trust and leasehold deeds of trust created with respect to property
of Holdings or any of its Subsidiaries, in each case, to secure the
obligations in respect of the Indebtedness to be Refinanced, all of
which shall be in form and substance reasonably satisfactory to each
of the Agents, and (iv) all collateral owned by Holdings or any of
its Subsidiaries in the possession of any of the creditors in respect
of the Indebtedness to be Refinanced or any collateral agent or
trustee under any related security document shall have been returned
to Holdings or such Subsidiary.
(d) On the Initial Borrowing Date, each of the Agents
shall have received evidence in form, scope and substance reasonably
satisfactory to it that the matters set forth in this Section 5.09
have been satisfied on such date.
(e) On or prior to the Initial Borrowing Date, there shall
have been delivered to the Banks true and correct copies of all
Transaction Documents, and all of the terms and conditions of such
Transaction Documents, as well as the structure of the Transaction
and the ownership interests in Holdings after giving effect to the
Transaction, shall be in form and substance reasonably satisfactory
to each of the Agents and the Required Banks.
5.10 Security Documents. (a) On the Initial Borrowing
Date, each U.S. Credit Party shall have duly authorized, executed and
delivered a Pledge Agreement in the form of Exhibit E, together with
such changes (or with such other documents) as may be requested by
the Collateral Agent in connection with local law (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 U.S. Pledge Agreement
under such other documents shall be in full force and effect.
<PAGE>
(b) On the Initial Borrowing Date, each U.S. Credit Party
shall have duly authorized, executed and delivered a Security
Agreement in the form of Exhibit F, together with such changes (or
with such other documents) as may be requested by the Collateral
Agent in connection with local law (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
and/or UCC-3) 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 U.S. 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 any U.S.
Credit Party or any of their respective U.S. Subsidiaries or a
division or operating unit of any such Person, as debtor and
that are filed in the jurisdictions referred to in clause (A)
above, together with copies of such financing statements (none
of which shall cover the Collateral except (x) those with
respect to which appropriate termination statements executed by
the secured lender thereunder have been delivered to the
Administrative Agent and (y) to the extent evidencing Permitted
Liens);
(C) evidence of the completion of all other recordings and
filings of, or with respect to, the Security Agreement as may be
necessary or, in the opinion of the Collateral Agent, desirable
to perfect the security interests intended 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 and such other documents shall be in full
force and effect.
(c) On the Initial Borrowing Date, each relevant U.S.
Credit Party shall have duly authorized, executed and delivered a
pledge agreement in form and substance reasonably satisfactory to the
Administrative Agent (each, a "Foreign Pledge Agreement"), covering
65% of the capital stock of each first-tier Foreign Subsidiary of
such U.S. Credit Party (other than an Excluded Pledge Subsidiary), in
each case together with evidence of the completion of all recordings
and filings of, or with respect to, such Foreign Pledge Agreements as
may be necessary or, in the reasonable opinion of the Collateral
Agent desirable, to perfect security interests intended to be created
by such Foreign Pledge Agreements, provided that the foregoing
actions shall not be required to be taken on or prior to the Initial
Borrowing Date to the extent covered by Section 12.20(d).
<PAGE>
5.11 Subsidiary Guaranty. On the Initial Borrowing Date,
each U.S. Subsidiary Guarantor shall have duly authorized, executed
and delivered a Subsidiary Guaranty in the form of Exhibit G (as
modified, amended or supplemented from time to time in accordance
with the terms hereof and thereof, the "Subsidiary Guaranty"), and
the Subsidiary Guaranty shall be in full force and effect.
5.12 Opinions of Counsel. On the Initial Borrowing Date,
each of the Agents shall have received opinions, addressed to each of
the Agents and each of the Banks and dated the Initial Borrowing
Date, from (i) Kirkland & Ellis, counsel to the Credit Parties, which
opinion shall cover the matters contained in Exhibit H-1 and such
other matters incident to the transactions contemplated herein as
each of the Agents may reasonably request, (ii) Oppenhoff & Radler,
German counsel to the German Borrower, which opinion shall cover the
matters contained in Exhibit H-2 and such other matters incident to
the transactions contemplated herein as each of the Agents may
reasonably request and (iii) local counsel to the Credit Parties
reasonably satisfactory to each of the Agents, which opinions shall
cover such matters incident to the transactions contemplated herein
and in the other Credit Documents as each of the Agents may
reasonably request and shall be in form and substance reasonably
satisfactory to each of the Agents.
5.13 Mortgages; Title Insurance; Surveys, etc. (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 hereof and thereof, each a
"Mortgage" and, collectively, the "Mortgages") covering all the
Mortgaged Properties located in the United States, 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 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.
<PAGE>
(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 an endorsement for future
advances under this Agreement, the Notes and the Mortgages and for
any other matter that the Collateral Agent in its discretion may
reasonably request (to the extent available in the respective
jurisdiction of each Mortgaged Property), (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, the Collateral Agent
shall have also received surveys in form and substance reasonably
satisfactory to the Collateral Agent of each Mortgaged Property
designated as "owned" on Annex III hereto, dated a recent date
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 except as to
the Mortgaged Property located in San Benito County, California. The
U.S. Borrower shall have used commercially reasonable efforts to
furnish to the Collateral Agent such estoppel letters, landlord
waiver letters, non-disturbance letters and similar assurances as may
have been reasonably requested by the Collateral Agent, which letters
shall be in form and substance reasonably satisfactory to the
Collateral Agent.
5.14 Plans; Collective Bargaining Agreements; Existing
Indebtedness Agreements; Shareholders' Agreements; Management
Agreements; Employment Agreements; Non-Compete Agreements; Tax
Allocation Agreements; Material Contracts. On or prior to the
Initial Borrowing Date, there shall have been made available to the
Administrative Agent and the Banks upon request by the Administrative
Agent, copies (certified as true and correct by an appropriate
officer of each Borrower in the case of Shareholders' Agreements,
Management Agreements and Tax Allocation Agreements) of:
(a) any material Plans of Holdings or any of its
Subsidiaries after giving effect to the consummation of the
Transaction and for each such Plan (i) that is a "single-
employer plan" (as defined in Section 4001(a)(15) of ERISA) the
most recently completed actuarial valuation prepared therefor by
such Plan's regular enrolled actuary and the Schedule B,
"Actuarial Information" to the IRS Form 5500 (Annual Report)
most recently filed with the Internal Revenue Service and (ii)
that is a "multiemployer plan" (as defined in Section 4001(a)(3)
of ERISA), each of the documents referred to in clause (i)
either in the possession of Holdings, any Subsidiary of Holdings
or any ERISA Affiliate or reasonably available thereto from the
sponsor or trustees of such Plan;
<PAGE>
(b) any material collective bargaining agreements or any
other similar agreement or arrangement covering the employees of
Holdings or any of its Subsidiaries that are to remain in effect
after giving effect to the consummation of the Transaction
(collectively, the "Collective Bargaining Agreements");
(c) 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");
(d) all agreements entered into by Holdings or any of its
Subsidiaries governing the terms and relative rights of its
capital stock, and any agreements entered into by shareholders
relating to any such entity with respect to 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");
(e) (A) the Consulting Agreement and (B) any other
material agreements (or the forms thereof) with members of, or
with respect to, the management of Holdings or any of its
Subsidiaries that are to remain in effect after giving effect to
the consummation of the Transaction (collectively, the
"Management Agreements");
(f) any material employment agreements entered into by
Holdings or any of its Subsidiaries (collectively, the
"Employment Agreements");
(g) any material non-compete agreement entered into by
Holdings or any of its Subsidiaries (collectively, the "Non-
Compete Agreements");
(h) any tax sharing or tax allocation agreements entered
into by Holdings or any of its Subsidiaries (collectively, the
"Tax Allocation Agreements"); and
(i) all material contracts and licenses of Holdings or any
of its Subsidiaries that are to remain in effect after giving
effect to the consummation of the Transaction (collectively, the
"Material Contracts");
all of which Plans, Collective Bargaining Agreements, Existing
Indebtedness Agreements, Shareholders' Agreements, Management
Agreements, Employment Agreements, Non-Compete Agreements, Tax
Allocation Agreements and Material Contracts shall be in form and
substance reasonably satisfactory to each of the Agents and shall be
in full force and effect on the Initial Borrowing Date.
<PAGE>
5.15 Solvency Certificate; Insurance Analyses. On the
Initial Borrowing Date, each of the Agents shall have received:
(a) a solvency certificate in the form of Exhibit I from
the chief financial officer of Holdings, addressed to each of
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 U.S. Borrower (on a stand-alone basis),
the U.S. Borrower and its Subsidiaries (on a consolidated
basis), and Holdings 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 Holdings and
its Subsidiaries in form and substance satisfactory to each of
the Agents and the Required Banks and naming the Collateral
Agent as an additional insured and/or loss payee, and stating
that such insurance shall not be cancelled or revised without 30
days prior written notice by the insurer to the Collateral
Agent.
5.16 Pro Forma Balance Sheets. On or prior the Initial
Borrowing Date, there shall have been delivered to each of the
Agents, an unaudited pro forma consolidated balance sheet of each of
Holdings and its Subsidiaries and the U.S. Borrower and its
Subsidiaries after giving effect to the Transaction and prepared in
accordance with GAAP, together with a related funds flow statement,
which pro forma balance sheets and funds flow statement shall be
reasonably satisfactory in form and substance to each of the Agents
and the Required Banks.
5.17 Projections. On or prior to the Initial Borrowing
Date, the Banks shall have received the financial projections (the
"Projections") set forth on Annex IV hereto, which include the
projected results of Holdings and its Subsidiaries for the eight
fiscal years ended after the Initial Borrowing Date.
5.18 Existing Indebtedness. On the Initial Borrowing Date
and after giving effect to the Transaction and the Loans incurred on
the Initial Borrowing Date, neither Holdings nor any of its
Subsidiaries shall have any preferred stock outstanding except for
the Baxter Preferred Stock, or any Indebtedness outstanding except
for Indebtedness permitted under Section 8.04. On and as of the
Initial Borrowing Date, all of the Existing Indebtedness shall remain
outstanding after giving effect to the Transaction and the other
transactions contemplated hereby without any default or events of
default existing thereunder or arising as a result of the Transaction
and the other transactions contemplated hereby (except to the extent
amended or waived by the parties thereto on terms and conditions
reasonably satisfactory to each of the Agents and the Required
Banks). On and as of the Initial Borrowing Date, each of the Agents
and the Required Banks shall be satisfied with the amount of and the
terms and conditions of all Existing Indebtedness.
<PAGE>
5.19 Payment of Fees. On the Initial Borrowing Date, all
costs, fees and expenses, and all other compensation contemplated by
this Agreement, due to each of the Agents or the Banks (including,
without limitation, legal fees and expenses) shall have been paid to
the extent due.
5.20 Compliance With Senior Subordinated Note Indenture.
On the Initial Borrowing Date, (i) all Indebtedness incurred or to be
incurred under this Agreement shall comply with the requirements of
Sections 4.12, 4.18 and 4.19 of the Senior Subordinated Note
Indenture and all other applicable covenants contained therein, (ii)
the U.S. Borrower shall have delivered to the Administrative Agent an
officer's certificate signed by an appropriate officer of the U.S.
Borrower, in form and substance satisfactory to each of the Agents,
(x) establishing that no Indebtedness incurred or to be incurred
under this Agreement violates the terms of the Senior Subordinated
Note Indenture and (y) containing a representation and warranty that
the Indebtedness incurred or to be incurred under this Agreement
constitutes "Senior Debt" and "Designated Senior Debt" under the
Senior Subordinated Note Indenture, which officer's certificate shall
be accompanied by financial calculations (in form and substance
reasonably satisfactory to each of the Agents) establishing
compliance with a Consolidated Fixed Charge Coverage Ratio (as
defined in the Senior Subordinated Note Indenture) of greater than
2.0:1.0 (after giving effect to the incurrence of all Indebtedness
hereunder) as required by the proviso to Section 4.12 of the Senior
Subordinated Note Indenture and (iii) the Banks shall have received
an opinion of counsel (which opinion shall be reasonably satisfactory
to the Agents) to the effect that the execution, delivery and
performance of the Credit Documents do not violate or conflict with
Sections 4.12, 4.18 and 4.19 of the Senior Subordinated Note
Indenture) and that the Indebtedness incurred and to be incurred
hereunder constitutes "Senior Debt" and "Designated Senior Debt"
thereunder.
The occurrence of the Initial Borrowing Date and the
acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Banks
that all of the applicable conditions specified above exist as of the
Initial Borrowing Date or the date of such Credit Event, as the case
may be. 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 reasonably
satisfactory in form and substance to each of the Agents and the
Required Banks.
<PAGE>
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 Holdings and each Borrower makes the
following representations, warranties and agreements with the Banks
in each case after giving effect to the Transaction, all of which
shall survive the execution and delivery of this Agreement, the
making of the Loans and the issuance of the Letters of Credit (with
the occurrence of each Credit Event being deemed to constitute a
representation and warranty that the matters specified in this
Section 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 event all representations and
warranties shall be true and correct in all material respects as of
such earlier date), it being understood and agreed that,
notwithstanding any statements to the contrary contained in this
Section 6, (x) each of Holdings, the U.S. Borrower and the German
Borrower makes the following representations and warranties solely
with respect to itself and its respective Subsidiaries and (y) in the
case of the representations and warranties made in Sections 6.10(a),
(b) and (e), such representations and warranties are made solely by
Holdings and the U.S. Borrower:
6.01 Corporate Status. Holdings and each of its
Subsidiaries (i) is a duly organized and validly existing corporation
in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority to own its
property and assets and to transact the business in which it is
engaged and presently proposes to engage and (iii) is duly qualified
and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified and where the
failure to be so qualified would have a Material Adverse Effect.
6.02 Corporate Power and Authority. Each Credit Party has
the corporate power and authority to execute, deliver and carry out
the terms and provisions of the Documents to which it is a party and
has taken all necessary corporate action to authorize the execution,
delivery and performance of the Documents to which it is a party.
Each Credit Party has duly executed and delivered each Document to
which it is a party and each such Document constitutes the legal,
valid and binding obligation of such Credit Party enforceable in
accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws generally
affecting creditors' rights and by equitable principles (regardless
of whether enforcement is sought in equity or at law).
<PAGE>
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 them with the terms and provisions thereof,
nor the consummation of the transactions contemplated herein or
therein, (i) will contravene any applicable provision of any law,
statute, rule or regulation, or any order, writ, injunction or decree
of any court or governmental instrumentality, (ii) will conflict or
be inconsistent with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a default
under, or (other than pursuant to the Security Documents and the
Accounts Receivable Facility 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 Holdings 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 Holdings 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 or (iii) will violate any provision of the Certificate
of Incorporation or By-Laws (or equivalent organizational documents)
of Holdings or any of its Subsidiaries.
6.04 Litigation. There are no actions, suits or
proceedings pending or, to the knowledge of Holdings or any of its
Subsidiaries, threatened, with respect to Holdings or any of its
Subsidiaries (i) that are likely to have a Material Adverse Effect or
(ii) that could reasonably be expected to have a material adverse
effect on the rights or remedies of the Banks or on the ability of
any Credit Party to perform its respective obligations to 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 shall be utilized to finance the
Recapitalization and the Refinancing and to pay fees and expenses
incurred in connection with the Transaction.
(b) The proceeds of A Revolving Loans and A Swingline
Loans shall be utilized for the general corporate and working capital
purposes of the U.S. Borrower and its Subsidiaries (including,
without limitation, to finance Permitted Acquisitions); provided that
no A Revolving Loans or A Swingline Loans may be utilized on the
Initial Borrowing Date to make payments owing in connection with the
Transaction.
(c) The proceeds of B Revolving Loans and B Swingline
Loans shall be utilized for the general corporate and working capital
requirements of the U.S. Borrower, the German Borrower and their
respective Subsidiaries.
(d) Neither the making of any Loan hereunder, nor the use
of the proceeds thereof, will violate the provisions of Regulation T,
U or X of the Board of Governors of the Federal Reserve System 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.
<PAGE>
6.06 Governmental Approvals. No order, consent, approval,
license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any foreign or domestic
governmental or public body or authority, or any subdivision thereof,
is required to authorize or is required in connection with (i) the
execution, delivery and performance of any Credit Document or (ii)
the legality, validity, binding effect or enforceability of any
Credit Document. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration
with, or exemption by, any foreign or domestic governmental or public
body or authority, or any subdivision thereof, is required to
authorize or is required in connection with (i) the execution,
delivery and performance of any Document (other than any Credit
Document) or (ii) the legality, validity, binding effect or
enforceability of any Document (other than any Credit Document),
except (x) to the extent obtained or made or (y) where the failure to
obtain or make any of the foregoing, individually or in the
aggregate, is not reasonably likely to have a Material Adverse
Effect.
6.07 Investment Company Act. Neither Holdings 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 Holdings
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 Holdings or any of its Subsidiaries in
writing to the Agents, the Co-Documentation Agents, the Collateral
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 the Agents, the Co-
Documentation Agents, the Collateral 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.
<PAGE>
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 (including, without limitation, the Loans and the
Senior Subordinated Notes), and Liens created, and to be created, by
each Credit Party in connection therewith, with respect to each of
Holdings and its Subsidiaries (on a consolidated basis) and of the
U.S. Borrower (on a stand-alone basis) (x) the sum of the assets, at
a fair valuation, of each of Holdings and its Subsidiaries (on a
consolidated basis), and of the U.S. Borrower (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 statements of financial condition of Holdings and
its Subsidiaries at December 31, 1998 and the related statements of
income and cash flows and changes in shareholders' equity of Holdings
and its Subsidiaries for the fiscal year ended as of said date,
copies of which have heretofore been furnished to each Bank, present
fairly in all material respects the consolidated financial position
of Holdings and its Subsidiaries at the date 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.
(c) Since December 31, 1998, nothing has occurred that has
had or could reasonably be expected to have a Material Adverse
Effect.
(d) Except as fully reflected in the financial statements
described in Section 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 Holdings or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due), and neither Holdings
nor the U.S. Borrower know of any basis for the assertion against
Holdings 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.
<PAGE>
(e) The Projections are based on good faith estimates and
assumptions made by the management of Holdings, and on the Initial
Borrowing Date such management believed that the Projections were
reasonable and attainable, it being recognized by 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 and
that the differences may be material. There is no fact known to
Holdings or any of its Subsidiaries which would have a Material
Adverse Effect, which has not been disclosed herein or in such other
documents, certificates and statements furnished to the Banks for use
in connection with the transactions contemplated hereby.
6.11 Security Interests. Each of the Security Documents
creates (or after the execution and delivery thereof will create), as
security for the Obligations, a valid and enforceable perfected
security interest in and Lien on all of the Collateral subject
thereto, superior to and prior to the rights of all third Persons and
subject to no other Liens (except that 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 shall
have been made on or prior to the Initial Borrowing Date as
contemplated by Section 5.10(a) or on or prior to the execution and
delivery thereof as contemplated by Sections 7.11, 7.16 and 8.14.
6.12 Representations and Warranties in Other Documents.
All representations and warranties 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, in each case except to
the extent that the failure of any such representation and warranty
to be true and correct in all material respects, either individually
or in the aggregate with other such representations and warranties,
is not reasonably likely to have a Material Adverse Effect.
<PAGE>
6.13 Transaction. At the time of consummation thereof,
the Transaction shall have been consummated in all material respects
in accordance with the terms of the 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 in order 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 performance
by Holdings and its Subsidiaries of their obligations under the
Documents and all applicable laws.
6.14 Special Purpose Corporation. Holdings has no
significant assets (other than the capital stock of the U.S.
Borrower, U.S. Borrower Subordinated Notes issued to it from time to
time in accordance with the terms of this Agreement and immaterial
assets used for the performance of those activities permitted to be
performed by Holdings pursuant to Section 8.01(b)) or liabilities
(other than under this Agreement and the other Credit Documents,
those liabilities under the other Documents and Baxter Acquisition
Documents to which it is a party, those liabilities permitted to be
incurred by Holdings pursuant to Section 8.01(b) and, as and when
issued from time to time in accordance with the terms of this
Agreement, Baxter PIK Notes, Permitted Holdings PIK Securities and
Shareholder Subordinated Notes).
6.15 Compliance with ERISA. (a) Each Plan is in
substantial compliance with its terms, ERISA and the Code; no
Reportable Event has occurred with respect to a Plan; no 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 or Section 303 or 304 of ERISA; all contributions required to be
made with respect to a Plan and a Foreign Pension Plan have been
timely made; neither Holdings nor any Subsidiary of Holdings 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 Holdings or any of its
Subsidiaries); to the knowledge of Holdings or any of its
Subsidiaries, no action, suit, proceeding, hearing, audit or
investigation with respect to the administration, operation or the
investment of assets of any Plan (other than routine claims for
<PAGE>
benefits) is pending, expected or threatened; 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
Holdings or any Subsidiary of Holdings 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
Holdings 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 Holdings or any Subsidiary of Holdings or any ERISA
Affiliate exists or is likely to arise on account of any Plan; and
Holdings and its Subsidiaries do not maintain or contribute to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA)
which provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA)
the obligations with respect to which could reasonably be expected to
have a Material Adverse Effect.
(b) Each Foreign Pension Plan has been maintained in
substantial compliance with its terms and with the requirements of
any and all applicable laws, statutes, rules, regulations and orders
and has been maintained, where required, in good standing with
applicable regulatory authorities. Neither Holdings 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 each Foreign Pension Plan which is funded, determined
as of the end of the most recently ended fiscal year of each Borrower
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 each Foreign Pension Plan which is not funded,
the obligations of such Foreign Pension Plan are properly accrued.
6.16 Capitalization. (a) On the Effective Date, the
authorized capital stock of Holdings shall consist of (i) (A)
20,000,000 shares of common stock, $0.01 par value per share, of
which 8,961,684.97 shares shall be issued and outstanding and (B)
1,500,000 shares of Class B common stock, $0.01 per share, of which
1,014,679 shares shall be issued and outstanding (such authorized
shares of common stock, together with any subsequently authorized
shares of common stock of Holdings, the "Holdings Common Stock"),
(ii) (A) 1,300,000 shares of Class L common stock, $0.01 par value
per share, of which 524,001.96 shares shall be issued and outstanding
and (B) 700,000 shares of Class L common stock, Series B, of which
504,060 shares shall be issued and outstanding (such authorized
shares of Class L common stock, together with any subsequently
authorized shares of Class L common stock of Holdings, the "Holdings
Class L Common Stock"), and (iii) 100,000 shares of Baxter Preferred
Stock, of which 10,000 shares shall be issued and outstanding and
owned by Baxter. All such outstanding shares have been duly and
<PAGE>
validly issued, are fully paid and nonassessable. Except as set
forth on Annex X hereto, Holdings does not have outstanding any
securities convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or any
options for the purchase of, or any agreement providing for the
issuance (contingent or otherwise) of, or any calls, commitments or
claims of any character relating to, its capital stock.
(b) On the Initial Borrowing Date and after giving effect
to the Transaction and the other transactions contemplated hereby,
the authorized capital stock of the U.S. Borrower shall consist of
1,000 shares of common stock, $0.01 par value per share, all of which
shares shall be issued and outstanding and owned by Holdings. All
such outstanding shares have been duly and validly issued and are
fully paid and nonassessable. The U.S. Borrower does not have
outstanding any securities convertible into or exchangeable for its
capital stock or outstanding any rights to subscribe for or to
purchase, or any options for the purchase of, or any agreements
providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its
capital stock.
6.17 Subsidiaries. On and as of the Initial Borrowing
Date and after giving effect to the consummation of the Transaction,
Holdings has no Subsidiaries other than the U.S. Borrower and its
Subsidiaries, and each Borrower has no Subsidiaries other than those
Subsidiaries listed on Annex V. Annex V correctly sets forth, as of
the Initial Borrowing Date and after giving effect to the
Transaction, the percentage ownership (direct and indirect) of
Holdings in each class of capital stock of each of its Subsidiaries
and also identifies the direct owner thereof. All outstanding shares
of capital stock of each Subsidiary of each Borrower have been duly
and validly issued, are fully paid and nonassessable and have been
issued free of preemptive rights. No Subsidiary of any Borrower has
outstanding any securities convertible into or exchangeable for its
capital stock or outstanding any right to subscribe for or to
purchase, or any options or warrants for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of or
any calls, commitments or claims of any character relating to, its
capital stock or any stock appreciation or similar rights.
<PAGE>
6.18 Intellectual Property. Holdings and each of its
Subsidiaries owns or holds a valid license to use all the material
patents, trademarks, permits, service marks, trade names, technology,
know-how and formulas or other rights with respect to the foregoing,
free from restrictions that are materially adverse to the use
thereof, that are used in the operation of the business of Holdings
and each of its Subsidiaries as presently conducted.
6.19 Compliance with Statutes, etc. Holdings 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 Holdings or any of its
Subsidiaries), except such non-compliance as is not likely to,
individually or in the aggregate, have a Material Adverse Effect.
6.20 Environmental Matters. (a) Holdings and each of its
Subsidiaries have complied with, and on the date of each Credit Event
are 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 Holdings and each
Borrower, past or threatened Environmental Claims against Holdings or
any of its Subsidiaries or any Real Property owned or operated by
Holdings or any of its Subsidiaries that individually or in the
aggregate would reasonably be expected to have a Material Adverse
Effect. There are no facts, circumstances, conditions or occurrences
on any Real Property owned or operated by Holdings or any of its
Subsidiaries or, to the best knowledge of Holdings and each Borrower,
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 Holdings or any of its Subsidiaries or
any such Real Property that individually or in the aggregate would
reasonably be expected to have a Material Adverse Effect 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
Holdings or any of its Subsidiaries under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been
generated, used, treated or stored on, or transported to or from, any
Real Property owned or operated by Holdings or any of its
Subsidiaries where such generation, use, treatment or storage has
violated or would reasonably be expected to violate any Environmental
Law. Hazardous Materials have not at any time been Released on or
from any Real Property owned or operated by Holdings or any of its
Subsidiaries. There are not now any underground storage tanks
located on any Real Property owned or operated by Holdings or any of
its Subsidiaries.
(c) Notwithstanding anything to the contrary in this
Section 6.20, the representations made in this Section 6.20 shall
only be untrue if the aggregate effect of all restrictions, failures,
noncompliance, 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.
<PAGE>
6.21 Properties. All Real Property owned or leased by
Holdings or any of its U.S. Subsidiaries 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 Annex III. Holdings
and each of its Subsidiaries has good and marketable title to, or a
validly subsisting leasehold interest in, all material properties
owned or leased by it, including all Real Property reflected in Annex
III or in the financial statements referred to in Section 6.10(b),
free and clear of all Liens, other than Permitted Liens.
6.22 Labor Relations. Neither Holdings 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 Holdings or
any of its Subsidiaries or, to the best knowledge of Holdings and
each Borrower, threatened against any of them, before the National
Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so
pending against Holdings or any of its Subsidiaries or, to the best
knowledge of Holdings and each Borrower, threatened against any of
them, (ii) no strike, labor dispute, slowdown or stoppage pending
against Holdings or any of its Subsidiaries or, to the best knowledge
of Holdings and each Borrower, threatened against Holdings or any of
its Subsidiaries and (iii) to the best knowledge of Holdings and each
Borrower, no union representation question existing with respect to
the employees of Holdings or any of its Subsidiaries and, to the best
knowledge of Holdings and each Borrower, 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.
6.23 Tax Returns and Payments. All U.S. Federal income,
German income, material state income 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 Holdings and/or any of its Subsidiaries have been timely filed
with the appropriate taxing authority. The Returns accurately
reflect all liability for taxes of Holdings and its Subsidiaries for
the periods covered thereby. Holdings and each of its Subsidiaries
have paid all taxes payable by them other than taxes which are not
yet due and payable, and other than those contested in good faith by
appropriate proceedings 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), there is no
material action, suit, proceeding, investigation, audit, or claim now
pending or, to the knowledge of Holdings and each Borrower,
threatened by any authority regarding any taxes relating to Holdings
or any of its Subsidiaries. Except as set forth on Annex IX, as of
the Initial Borrowing Date, neither Holdings nor any of its
Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute
of limitations relating to the payment or collection of taxes of
Holdings or any of its Subsidiaries, or is aware of any circumstances
that would cause the taxable years or other taxable periods of
Holdings or any of its Subsidiaries not to be subject to the normally
applicable statute of limitations. Neither Holdings nor any of its
<PAGE>
Subsidiaries have provided, with respect to themselves or property
held by them, any consent under Section 341 of the Code. Neither
Holdings 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.
6.24 Existing Indebtedness. Annex VII sets forth a true
and complete list of all Indebtedness of Holdings and its
Subsidiaries as of the Effective Date and which is to remain
outstanding after giving effect to the Transaction and the incurrence
of Loans on such date (excluding Indebtedness permitted under Section
8.04 (other than clause (b) thereof), 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.
6.25 Subordination. (a) The subordination provisions
contained in the Senior Subordinated Note Documents are enforceable
against the U.S. Borrower and the holders thereof, and all
Obligations shall be within the definition of "Senior Debt" included
in such subordination provisions.
(b) On and after the issuance of any Baxter PIK Notes, the
subordination provisions contained in the Baxter PIK Note Documents
shall be enforceable against Holdings and the holder thereof, and all
Obligations shall be within the definition of "Superior Debt"
included in such subordination provisions.
6.26 Year 2000 Compliance. Any reprogramming required to
permit the proper functioning, in and following the year 2000, of
Holdings' and its Subsidiaries' (i) computer systems and (ii)
equipment containing embedded microchips (including systems and
equipment supplied by others or with which Holdings' and its
Subsidiaries' systems interface) and the testing of all such systems
and equipment, as so reprogrammed, has been completed in all material
respects. The cost to Holdings and its Subsidiaries of such
reprogramming and testing and of the reasonably foreseeable
consequences of year 2000 to Holdings and its Subsidiaries
(including, without limitation, reprogramming errors and the failure
of others' systems or equipment) could not reasonably be expected to
result in a Default, an Event of Default or a Material Adverse
Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and management
information systems of Holdings and its Subsidiaries are and, with
ordinary course upgrading and maintenance, will continue for the term
of this Agreement to be, sufficient to permit Holdings and its
Subsidiaries to conduct their respective businesses without a
Material Adverse Effect.
SECTION 7. Affirmative Covenants. Holdings and each
Borrower hereby covenant and agree that on the Effective Date and
thereafter for so long as this Agreement is in effect and until the
Commitments have terminated, no Letters of Credit or Notes are
outstanding and the Loans and Unpaid Drawings, together with
interest, Fees and all other Obligations (other than any indemnities
described in Section 12.13 hereof which are not then due and payable)
incurred hereunder, are paid in full:
<PAGE>
7.01 Information Covenants. Holdings will furnish to each
Bank and each Indemnifying Bank:
(a) Monthly Reports. On or prior to the relevant Monthly
Reporting Date, the consolidated balance sheet of Holdings and
its Subsidiaries as at the end of such month and the related
consolidated statements of income and retained earnings and of
cash flows for such month and for the elapsed portion of the
fiscal year ended with the last day of such month, setting forth
comparative figures for the corresponding month in the prior
fiscal year, all of which shall be certified by the chief
financial officer or other Authorized Officer of Holdings,
subject to normal year-end audit adjustments.
(b) Quarterly Financial Statements. Within 45 days after
the close of each quarterly accounting period in each fiscal
year of Holdings, the consolidated balance sheet of Holdings 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 Holdings
that they fairly present in all material respects the financial
condition of Holdings 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.
(c) Annual Financial Statements. Within 90 days after the
close of each fiscal year of Holdings, the consolidated balance
sheet of Holdings 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 separate supplemental information setting forth comparable
budgeted figures for such fiscal year and comparative
consolidated figures for the preceding year) certified by
PricewaterhouseCoopers LLP or such other independent certified
public accountants of recognized national standing as shall be
reasonably acceptable to each of the Agents (and not qualified
in any material respect as to scope of audit), in each case to
the effect that such statements fairly present in all material
respects the financial condition of Holdings and its
Subsidiaries as of the dates indicated and the results of their
operations and changes, together with a certificate of such
accounting firm stating that in the course of its regular audit
of the business of Holdings and its Subsidiaries, which audit
was conducted in accordance with generally accepted auditing
standards, no Default or Event of Default related or relating
solely to financial accounting covenants which has occurred and
is continuing has come to their attention or, if such a Default
or Event of Default has come to their attention a statement as
to the nature thereof.
<PAGE>
(d) Budgets, etc. Not more than 90 days after the
commencement of each fiscal year of the U.S. Borrower, budgets
of the U.S. Borrower and its Subsidiaries in reasonable detail
for each of the four fiscal quarters of such fiscal year and for
each of the four fiscal quarters of the immediately succeeding
fiscal year, in each case as customarily prepared by management
for its internal use setting forth, with appropriate discussion,
the principal assumptions upon which such budgets are based.
Together with each delivery of financial statements pursuant to
Section 7.01(b) and (c), a comparison of the current year to
date financial results (other than in respect of the balance
sheets included therein) against the budgets required to be
submitted pursuant to this clause (d) shall be presented.
(e) Officer's Certificates. At the time of the delivery
of the financial statements provided for in Section 7.01(b) and
(c), a certificate of the chief financial officer or other
Authorized Officer of Holdings 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 Holdings and its Subsidiaries were in
compliance with the provisions of Sections 8.04, 8.07, 8.09,
8.10 and 8.11, and the calculation of the Leverage Ratio and the
Adjusted Leverage Ratio, each as at the end of such fiscal
quarter or year, as the case may be. In addition, at the time
of the delivery of the financial statements provided for in
Section 7.01(c), a certificate of the chief financial officer or
other Authorized Officer of Holdings setting forth 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.
(f) Notice of Default or Litigation. Promptly, and in any
event within five Business Days (or 10 Business Days in the case
of clause (y) below) after any Senior Officer of Holdings or any
of its Subsidiaries 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 Holdings or the U.S.
Borrower proposes to take with respect thereto and shall state
that such notice is a "notice of default" and (y) the
commencement of, or threat of, or any significant development
in, any litigation or governmental proceeding pending against
Holdings or any of its Subsidiaries 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.
(g) Auditors' Reports. Promptly upon receipt thereof, a
copy of each report or "management letter" submitted to Holdings
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 Holdings or any of its Subsidiaries.
<PAGE>
(h) Environmental Matters. Promptly after obtaining
knowledge of any of the following, written notice of:
(i) any pending or threatened material Environmental
Claim against Holdings or any of its Subsidiaries or any
Real Property owned or operated by Holdings or any of its
Subsidiaries;
(ii) any condition or occurrence on any Real Property
owned or operated by Holdings or any of its Subsidiaries
that (x) results in material noncompliance by Holdings 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 Holdings or
any of its Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real
Property owned or operated by Holdings or any of its
Subsidiaries that could reasonably be anticipated to cause
such Real Property to be subject to any material
restrictions on the ownership, occupancy, use or
transferability by Holdings or its Subsidiary, as the case
may be, of its interest in such Real Property under any
Environmental Law; and
(iv) the taking of any material removal or remedial
action in response to the actual or alleged presence of any
Hazardous Material on any Real Property owned or operated
by Holdings or any of its Subsidiaries where Holdings or
any of its Subsidiaries is or is reasonably expected to be
responsible for the cost of such action or where the taking
of such action could reasonably be expected to materially
interfere with the operations of Holdings or any of its
Subsidiaries at such Real Property.
All such notices shall describe in reasonable detail the
nature of the claim, investigation, condition, occurrence or
removal or remedial action and Holdings' or any Borrower's
response thereto. In addition, Holdings agrees to provide the
Banks with copies of all material communications by Holdings or
any of its Subsidiaries with any Person, government or
governmental agency relating to Environmental Claims, and such
detailed reports of any Environmental Claim as may reasonably be
requested by an Agent, the Collateral Agent or the Required
Banks.
(i) Accounts Receivable Facility Transaction Date. The
Borrower shall provide the Administrative Agent 15 Business
Days' prior written notice of the Accounts Receivable Facility
Transaction Date.
<PAGE>
(j) Other Information. Promptly upon transmission
thereof, copies of any filings and registrations with, and
reports to, the SEC by Holdings or any of its Subsidiaries and
copies of all financial statements, proxy statements, notices
and reports as Holdings or any of its Subsidiaries shall
generally send to analysts or the holders of their capital stock
or of the Baxter PIK Notes, Permitted Holdings PIK Securities or
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 Agents, the Collateral Agent or the Co-Documentation Agents
on its own behalf or on behalf of any Bank may reasonably
request from time to time.
7.02 Books, Records and Inspections. Holdings will, and
will cause each of its Subsidiaries to, permit, upon notice to the
chief financial officer or other Authorized Officer of Holdings or
the U.S. Borrower, (x) officers and designated representatives of
each of the Agents or any Bank to visit and inspect any of the
properties or assets of Holdings and any of its Subsidiaries in
whomsoever's possession, and to examine the books of account of
Holdings and any of its Subsidiaries and discuss the affairs,
finances and accounts of Holdings and of any of its Subsidiaries
with, and be advised as to the same by, their officers and
independent accountants, all at such reasonable times and intervals
and to such reasonable extent as such Agent or any Bank may desire
and (y) the Administrative Agent, at the request of the Required
Banks, to conduct, at Holdings' and the U.S. Borrower's expense, an
audit of the accounts receivable and/or inventories of the U.S.
Borrower and its Subsidiaries at such times (but no more frequently
than once a year unless an Event of Default has occurred and is
continuing) as the Required Banks shall reasonably require.
7.03 Insurance. Holdings 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. At any time that
insurance at the levels described in Annex VI is not being maintained
by Holdings and its Subsidiaries, Holdings will notify the Banks in
writing thereof and, if thereafter notified by the Administrative
Agent to do so, Holdings will obtain insurance at such levels to the
extent then generally available (but in any event within the
deductible or self-insured retention limitations set forth in the
preceding sentence) or otherwise as are acceptable to each of the
Agents. Holdings will furnish to the Administrative Agent on the
Initial Borrowing Date and on each date on which financial statements
are delivered pursuant to Section 7.01(c) a summary of the insurance
carried in respect of Holdings and its Subsidiaries and the assets of
Holdings and its Subsidiaries together with certificates of insurance
and other evidence of such insurance, if any, naming the Collateral
Agent as an additional insured and/or loss payee.
<PAGE>
7.04 Payment of Taxes. Holdings will pay and discharge,
and will cause each of its Subsidiaries to pay and discharge, all
taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits, or upon any properties belonging to
it, prior to the date on which 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 Holdings or any of its
Subsidiaries; provided, that neither Holdings nor any of its
Subsidiaries shall be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by
proper proceedings if it has maintained adequate reserves with
respect thereto in accordance with GAAP.
7.05 Corporate Franchises. Holdings will do, and will
cause each of its Subsidiaries to do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence
and its material rights, franchises 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. Holdings 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) other than such
non-compliance 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) Holdings
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 free and clear of any Liens imposed pursuant to such
Environmental Laws; and (b) neither Holdings 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, 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 Holdings or any of its
Subsidiaries, or any tenant or occupant of any Real Property, cause
or permit any intentional or unintentional act or omission resulting
in the presence or Release of any Hazardous Material (except in
compliance with applicable Environmental Laws), each of Holdings and
each Borrower agrees to undertake, and/or to cause any of its
Subsidiaries, tenants or occupants to undertake, at their sole
expense, any clean up, removal, remedial or other action required
pursuant to Environmental Laws to remove and clean up any Hazardous
Materials from any Real Property; provided that neither Holdings 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.
<PAGE>
7.08 ERISA. As soon as possible and, in any event, within
10 days after Holdings or any Subsidiary of Holdings 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 material liability to Holdings or
any Subsidiary of Holdings, Holdings will deliver to each of the
Banks a certificate of the chief financial officer or other
Authorized Officer of Holdings setting forth details as to such
occurrence and the action, if any, which Holdings, 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
Holdings, such Subsidiary, such ERISA Affiliate, the PBGC, a Plan
participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred, a contributing sponsor (as defined in
Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA
is subject to the advance reporting requirement of PBGC Regulation
Section 4043.61 (without regard to subparagraph (b)(1) thereof, and
an event described in subsections .62, .63, .64, .65, .66, .67 or .68
of PBGC Regulation Section 4043 is reasonably expected to occur with
respect to such Plan within the following 30 days, 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 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 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 Plan; that Holdings,
any Subsidiary of Holdings or any ERISA Affiliate will or may incur
any liability (including any contingent or secondary liability) to or
on account of the termination of or withdrawal from a Plan under
Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the
Code or Section 409, 502(i) or 502(l) of ERISA; or that Holdings or
any Subsidiary of Holdings has or may incur any liability under any
employee welfare benefit plan (within the meaning of Section 3(1) of
ERISA) that provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA).
The Borrower will deliver to Banks copies of any records, documents
or other information that must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA. At the request of any
Bank, Holdings will deliver to such Bank a complete copy of the
annual report (Form 5500) of each Plan including, to the extent
required, the related financial and actuarial statements and opinions
and other supporting statements, certifications, schedules and
information) required to be filed with the Internal Revenue Service.
In addition, at the request of any Bank, copies of annual reports and
any notices received by Holdings or any Subsidiary of Holdings or any
ERISA Affiliate with respect to any Plan or Foreign Pension Plan
shall be delivered to such Bank no later than 10 days after the date
of any such request.
<PAGE>
7.09 Good Repair. Holdings 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 useful or
customary for companies in similar businesses.
7.10 End of Fiscal Years; Fiscal Quarters. Holdings will,
for financial reporting purposes, cause (i) each of its, and each of
its Subsidiaries', fiscal years to end on December 31 of each year
and (ii) each of its, and each of its Subsidiaries', fiscal quarters
to end on March 31, June 30, September 30 and December 31 of each
year.
7.11 Additional Security; Further Assurances. (a)
Holdings will, and will cause each of its U.S. Subsidiaries (and
subject to Section 7.16, each of its Foreign Subsidiaries) to, grant
to the Collateral Agent security interests and mortgages in such
assets and properties of Holdings and its Subsidiaries as are not
covered by the Security Documents, and as may be reasonably requested
from time to time by the Agents, the Collateral Agent or the Required
Banks (collectively, the "Additional Security Documents"). All such
security interests and mortgages shall be granted pursuant to
documentation reasonably satisfactory in form and substance to each
of the Agents and the Collateral 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 have been duly
recorded or filed in such manner and in such places as are required
by law to establish, perfect, preserve and protect the Liens in favor
of the Collateral Agent required to be granted pursuant to the
Additional Security Documents and all taxes, fees and other charges
payable in connection therewith shall have been paid in full.
(b) Holdings will, and will cause each of its Subsidiaries
to, at the expense of Holdings and the Borrowers, 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, Holdings 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 an Agent or the
Collateral Agent to assure themselves that this Section 7.11 has been
complied with.
<PAGE>
(c) If the Collateral 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 Holdings and
its Subsidiaries constituting Collateral, the U.S. Borrower shall
provide to the Collateral 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
satisfactory to each of the Agents.
(d) Holdings and each Borrower agree that each action
required above by this Section 7.11 shall be completed as soon as
possible, but in no event later than 90 days after such action is
either requested to be taken by the Agents, the Co-Documentation
Agents, the Collateral Agent or the Required Banks or required to be
taken by Holdings and its Subsidiaries pursuant to the terms of this
Section 7.11; provided that in no event shall Holdings or a Borrower
be required to take any action, other than using its reasonable
efforts, to obtain consents from third parties with respect to its
compliance with this Section 7.11.
7.12 Interest Rate Protection. The U.S. Borrower shall no
later than 90 days following the Initial Borrowing Date enter into,
and thereafter maintain, Interest Rate Protection Agreements,
satisfactory to the Administrative Agent, with a term of at least two
years, establishing a fixed or maximum interest rate acceptable to
the Administrative Agent in respect of at least 30% of the
outstanding Term Loans.
7.13 Register. Each Borrower hereby designates the
Administrative Agent to serve as its agent, solely for purposes of
this Section 7.13, to maintain a register (the "Register") on which
it will record the Commitments from time to time of each of the
Banks, the Loans made by each of the Banks, each repayment in respect
of the principal amount of the Loans of each Bank and the Indemnity
Participation of each Indemnifying Bank. Failure to make any such
recordation, or any error in such recordation shall not affect any
Borrower's obligations in respect of such Loans or any Indemnifying
Bank's obligation with respect to its Indemnity Participation. With
respect to (x) 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 and (y) any Indemnifying Bank, the
transfer of the Indemnity Participation of such Indemnifying Bank and
the rights to interest and fees payable pursuant to such Indemnity
Participation, shall not be effective until such transfer is recorded
on the Register maintained by the Administrative Agent with respect
to ownership of such Commitments, Loans and/or Indemnity
Participations, as the case may be, and prior to such recordation all
amounts owing to the transferor with respect to such Commitments,
Loans and/or Indemnity Participations, as the case may be, shall
remain owing to the transferor. The registration of assignment or
transfer of all or part of any Commitments, Loans and Indemnity
Participations 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
<PAGE>
part of a Loan, or as soon thereafter as practicable, the assigning
or transferor Bank shall surrender the Note, if any, evidencing such
Loan, and thereupon, if requested by the respective Bank, 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 Borrower
agrees to indemnify the Administrative Agent from and against any and
all losses, claims, damages and liabilities of whatsoever nature
which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section
7.13.
7.14 Maintenance of Corporate Separateness. Holdings
will, and will cause each of its Subsidiaries to, satisfy customary
corporate formalities, including the maintenance of corporate
records. Neither any Borrower nor any Subsidiary of any Borrower
shall make any payment to a creditor of Holdings (other than a
Guaranteed Creditor pursuant to any Credit Document or an Interest
Rate Protection Agreement or Other Hedging Agreement entered into
with any such Guaranteed Creditor) in respect of any liability of
Holdings, and no bank account of Holdings shall be commingled with
any bank account of any Borrower or any Subsidiary of any Borrower.
Any financial statements distributed to any creditors of Holdings
shall, to the extent permitted by GAAP, clearly establish the
corporate separateness of Holdings from each Borrower and each
Borrower's Subsidiaries. Finally, neither any Borrower nor any
Subsidiary of any Borrower shall take any action, or conduct its
affairs in a manner, which is likely to result in the corporate
existence of Holdings on the one hand and of any Borrower or any
Subsidiary of any Borrower on the other hand being ignored, or in the
assets and liabilities of any Borrower or any Subsidiary of any
Borrower being substantively consolidated with those of Holdings in a
bankruptcy, reorganization or other insolvency proceeding.
7.15 Baxter PIK Notes; Baxter Preferred Stock; Permitted
Holdings PIK Securities. (a) Holdings shall pay any and all
interest on any Baxter PIK Notes issued in accordance with this
Agreement through the issuance of additional Baxter PIK Notes, rather
than in cash, except to the extent cash Dividends to Holdings are
otherwise permitted to be paid in accordance with the terms of
Section 8.07(v) for the purpose of paying cash interest on the Baxter
PIK Notes in accordance with the terms thereof.
(b) Holdings shall pay all dividends on the Baxter
Preferred Stock through the issuance of additional shares of Baxter
Preferred Stock, rather than in cash, except to the extent cash
dividends on the Baxter Preferred Stock are permitted to be paid in
accordance with the terms of Section 8.07(vi); provided that in lieu
of issuing additional shares of Baxter Preferred Stock as dividends,
Holdings may increase the liquidation preference of the shares of the
Baxter Preferred Stock in respect of which such dividends have
accrued.
<PAGE>
(c) Holdings shall pay all dividends or interest, as the
case may be, on the Permitted Holdings PIK Securities through the
issuance of additional Permitted Holdings PIK Securities rather than
in cash; provided that in lieu of issuing additional Permitted
Holdings PIK Securities as dividend or interest payments, Holdings
may increase the liquidation preference or outstanding amount, as the
case may be, of the outstanding Permitted Holdings PIK Securities in
respect of which such dividends or interest have accrued.
7.16 Foreign Subsidiaries Security. If following a change
in the relevant sections of the Code or the regulations, rules,
rulings, notices or other official pronouncements issued or
promulgated thereunder, counsel for each Borrower acceptable to the
Administrative Agent and the Required Banks does not within 30 days
after a request from the Administrative Agent or the Required Banks
deliver evidence, in form and substance reasonably satisfactory to
the Administrative Agent and the Required Banks, with respect to any
Foreign Subsidiary 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 Holdings or any
of its U.S. Subsidiaries, (ii) the entering into by such Foreign
Subsidiary of a security agreement in substantially the form as the
Security Agreement and (iii) the entering into by such Foreign
Subsidiary of a guaranty in substantially the form as the Subsidiary
Guaranty, in any such case would cause 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, 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 U.S. Borrower under the Credit Documents and under
any Interest Rate Protection Agreement or Other Hedging Agreement
and, in the event the Subsidiary 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 Subsidiary Guaranty (or another guaranty in
substantially similar form, if needed), guaranteeing the Obligations
of the U.S. Borrower under the Credit Documents and under any
Interest Rate Protection Agreement or Other Hedging Agreement, in
each case to the extent that the entering into the Security Agreement
or Subsidiary Guaranty is permitted by the laws of the respective
foreign jurisdiction and with all documents delivered pursuant to
this Section 7.16 to be in form and substance reasonably satisfactory
to the Administrative Agent and the Required Banks.
<PAGE>
7.17 Contributions; Payments. (a) Holdings will
contribute as an equity contribution to the capital of the U.S.
Borrower upon its receipt thereof, any cash proceeds (net of
reasonable costs associated with such sale or issuance) received by
Holdings from any sale or issuance of its preferred or common equity
or any cash capital contributions received by Holdings, provided that
to the extent permitted by Section 8.06(t), Holdings may lend
proceeds of Private Equity Proceeds to the U.S. Borrower.
(b) The U.S. Borrower will use the proceeds of all equity
contributions received by it from Holdings as provided in clause (a)
above toward the repayment of Term Loans to the extent required by
Section 4.02.
7.18 Accounts Receivable Facility Transaction. On the
Accounts Receivable Facility Transaction Date, (i) the U.S. Borrower
shall deliver to the Administrative Agent and the Required Banks true
and correct copies of all Accounts Receivable Facility Documents,
certified as such by an officer of the U.S. Borrower, and all of the
terms and conditions of the Accounts Receivable Facility Documents
shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Banks, (ii) the Accounts
Receivable Facility Transaction, including all of the terms and
conditions thereof, shall have been duly approved by the board of
directors of the U.S. Borrower, and all Accounts Receivable Facility
Documents shall be in full force and effect, (iii) each of the
conditions precedent to the consummation of the Accounts Receivable
Facility Transaction shall have been satisfied and not waived except
with the consent of the Administrative Agent and the Required Banks
to the reasonable satisfaction of the Administrative Agent and the
Required Banks, (iv) each of the representations and warranties of
the Designated Credit Parties and the Receivables Entity contained in
the Accounts Receivable Facility Documents shall be true and correct
in all material respects, (v) the Accounts Receivable Facility
Transaction shall have been consummated in all material respects in
accordance with all applicable law and the Accounts Receivable
Facility Documents and (vi) each Borrower and/or the other Designated
Credit Parties shall have received the Accounts Receivable Facility
Proceeds and used the same to make any prepayment and/or satisfy any
cash collateral requirement required under Section 4.02(A)(a) as a
result of the reduction to the Total A Revolving Loan Commitment on
such date under Section 3.03(e).
7.19 Year 2000 Compliance. The U.S. Borrower will ensure
that its Information Systems and Equipment are at all times Year 2000
Compliant in all material respects, and shall notify the
Administrative Agent and each Bank promptly upon detecting any
failure of the Information Systems and Equipment to be Year 2000
Compliant. In addition, the U.S. Borrower shall provide the
Administrative Agent and each Bank with such information about its
year 2000 computer readiness (including, without limitation,
information as to contingency plans, budgets and testing results) as
the Administrative Agent or such Bank shall reasonably request.
<PAGE>
7.20 Excluded Pledge Subsidiaries. If, at the time of the
delivery of the financial statements provided in Section 7.01(c), the
aggregate book value of the gross assets, or the aggregate net
revenues for the last four fiscal quarters, of the Excluded Pledge
Subsidiaries at such time exceeds at any time 10.0% of the book value
of consolidated gross assets or consolidated net revenues, as the
case may be, of Holdings and its Subsidiaries, then upon the request
of the Administrative Agent or the Required Banks, Holdings or the
relevant Subsidiary shall, within 90 days following such request,
pledge the capital stock of such of the then Excluded Pledge
Subsidiaries as the U.S. Borrower may select in its discretion (at
which time any such Excluded Pledge Subsidiary the stock of which is
so pledged shall cease to constitute an "Excluded Pledge Subsidiary"
and Annex XIII shall be deemed modified to reflect such change) as
may be required to ensure that the aggregate book value of the gross
assets, or the aggregate net revenues for the last four fiscal
quarters, of the then Excluded Pledge Subsidiaries does not exceed
10.0% of the book value of consolidated gross assets or consolidated
net revenues, as the case may be, of Holdings and its Subsidiaries,
with any such pledge of capital stock required pursuant to this
proviso to be made in accordance with the relevant requirements of
the Pledge Agreement.
SECTION 8. Negative Covenants. Holdings and each Borrower
hereby covenant and agree 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 been supported in a manner satisfactory to the
respective Letter of Credit Issuer in its sole and absolute
discretion) 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 hereof which
are not then due and payable) incurred hereunder, are paid in full:
8.01 Changes in Business. (a) Holdings and its
Subsidiaries will not engage in any business other than the business
engaged in by Holdings and its Subsidiaries as of the Effective Date
and activities directly related thereto, and similar or related
businesses.
(b) Notwithstanding the foregoing, Holdings will engage in
no business other than (i) its ownership of the capital stock of any
Borrower, the U.S. Borrower Subordinated Notes and those obligations
of officers and employees of Holdings and its Subsidiaries to the
extent permitted by Section 8.06(e) and having those liabilities
which it is responsible for under this Agreement and the other
Documents to which it is a party, (ii) the issuance of the
Shareholder Subordinated Notes, the Baxter Preferred Stock, the
Baxter PIK Notes, the Permitted Holdings PIK Securities, shares of
Holdings Common Stock and options and warrants to purchase Holdings
Common Stock and shares of Holdings Class L Common Stock and options
and warrants to purchase Holdings Class L Common Stock, and (iii)
activities associated with expenses paid with dividends made by a
Borrower pursuant to Section 8.07(iii). Notwithstanding the
<PAGE>
foregoing, Holdings may engage in those activities that are
incidental to (a) the maintenance of its corporate existence in
compliance with applicable law, (b) legal, tax and accounting matters
in connection with any of the foregoing activities and (c) the
entering into, and performing its obligations under, this Agreement
and the other Documents to which it is a party.
(c) Notwithstanding the foregoing, the Receivables Entity
will not engage in any business other than purchasing accounts
receivable and related assets from the Designated Credit Parties and
the related transactions pursuant to the terms of the Accounts
Receivable Facility Documents.
(d) Notwithstanding anything to the contrary contained in
this Agreement, the Special Purpose VFP Subsidiary will not engage in
any business other than acquiring instruments, accounts receivable
related thereto and other accounts receivable related to consumable
products and services of the U.S. Borrower and its Subsidiaries, and
the related transactions pursuant to the Vendor Financing Program.
8.02 Consolidation, Merger, Sale or Purchase of Assets,
etc. Holdings 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 through
distribution arrangements, vendor financial service programs or
otherwise), or enter into any partnerships, joint ventures or sale-
leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets
(other than purchases or other acquisitions of inventory, materials
and equipment in the ordinary course of business) of any Person (or
agree to do any of the foregoing at any future time), except that the
following shall be permitted:
(a) the Recapitalization;
(b) the U.S. Borrower and its Subsidiaries may lease as
lessee or lessor or license as licensee or licensor real or
personal property in the ordinary course of business and
otherwise in compliance with this Agreement, so long as any such
lease or license by the U.S. Borrower or any of its Subsidiaries
in its capacity as lessor or licensor, as the case may be, does
not prohibit the granting of a Lien by the U.S. Borrower or any
of its Subsidiaries pursuant to the Mortgages in the real
property covered by such lease or pursuant to the Security
Agreement in the personal property covered by such lease or
license, as the case may be;
(c) Capital Expenditures by the U.S. Borrower 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 U.S. Borrower and its Subsidiaries may sell or
discount, in each case without recourse, accounts receivables
arising in the ordinary course of business, but only in
connection with the compromise or collection thereof;
<PAGE>
(f) the U.S. Borrower and its Subsidiaries may sell or
exchange specific items of equipment, so long as the purpose of
each such sale or exchange is to acquire (and results within 90
days of such sale or exchange in the acquisition of) replacement
items of equipment which are the functional equivalent of the
item of equipment so sold or exchanged;
(g) the U.S. Borrower and its Subsidiaries may, in the
ordinary course of business, license as licensee or licensor
patents, trademarks, copyrights and know-how to or from third
Persons, so long as any such license by the U.S. Borrower or any
of its Subsidiaries in its capacity as licensor is permitted to
be assigned pursuant to the Security Agreement (to the extent
that a security interest in such patents, trademarks, copyrights
and know-how is granted thereunder) and does not otherwise
prohibit the granting of a Lien by the U.S. Borrower or any of
its Subsidiaries pursuant to the Security Agreement in the
intellectual property covered by such license;
(h) any Foreign Subsidiary may be merged with and into, or
be dissolved or liquidated into, or transfer any of its assets
to, any Wholly-Owned Foreign Subsidiary (other than the
Receivables Entity) so long as (i) such Wholly-Owned Foreign
Subsidiary is the surviving corporation of any such merger,
dissolution or liquidation and (ii) in each case at least 65% of
the total combined voting power of all classes of capital stock
of all first-tier Foreign Subsidiaries are pledged pursuant to
the Pledge Agreement (to the extent required by the Pledge
Agreement);
(i) the assets of any Foreign Subsidiary may be
transferred to the U.S. Borrower or any of its Wholly-Owned U.S.
Subsidiaries (other than the Receivables Entity), and any
Foreign Subsidiary may be merged with and into, or be dissolved
or liquidated into, the U.S. Borrower or any of its Wholly-Owned
U.S. Subsidiaries (other than the Receivables Entity) so long as
the U.S. Borrower or such Wholly-Owned U.S. Subsidiary is the
surviving corporation of any such merger, dissolution or
liquidation;
(j) the U.S. Borrower or any of its Wholly-Owned U.S.
Subsidiaries (other than the Receivables Entity) may transfer to
one or more Wholly-Owned Foreign Subsidiaries those assets
theretofore transferred to the U.S. Borrower or such Wholly-
Owned U.S. Subsidiary by a Foreign Subsidiary (whether by
merger, liquidation, dissolution or otherwise) pursuant to
clause (i) of this Section 8.02;
(k) the U.S. Borrower and its U.S. Subsidiaries (other
than the Receivables Entity) may sell or otherwise transfer
inventory to their respective U.S. Subsidiaries for resale by
such Subsidiaries, and Subsidiaries of the U.S. Borrower may
sell or otherwise transfer inventory to the U.S. Borrower for
resale by the U.S. Borrower so long as the security interest
granted to the Collateral Agent for the benefit of the Secured
Creditors pursuant to the Security Agreement in the inventory so
transferred shall remain in full force and effect and perfected
(to at least the same extent as in effect immediately prior to
such transfer);
<PAGE>
(l) the U.S. Borrower may contribute cash to (x) one or
more Wholly-Owned U.S. Subsidiaries (other than the Receivables
Entity) formed in accordance with Section 8.14, so long as the
aggregate amount of such cash so contributed to all such U.S.
Subsidiaries on and after the Effective Date does not exceed
$5,000,000 and (y) the Receivables Entity, so long as the
aggregate amount of such cash so contributed to the Receivables
Entity on and after the Effective Date does not exceed $500,000;
(m) the U.S. Borrower and its Domestic Subsidiaries may
transfer assets (other than inventory) to Wholly-Owned Foreign
Subsidiaries (other than the Receivables Entity) so long as (x)
the aggregate fair market value of all such assets (other than
intellectual property) so transferred (determined in good faith
by the Board of Directors or senior management of the U.S.
Borrower) to all such Foreign Subsidiaries on and after the
Effective Date does not exceed $40,000,000 and (y) the aggregate
fair market value of all such intellectual property so
transferred (determined in good faith by the Board of Directors
or senior management of the U.S. Borrower) to all such Foreign
Subsidiaries on and after the Effective Date does not exceed
$40,000,000;
(n) assets of the U.S. Borrower and its U.S. Subsidiaries
constituting non-U.S. operations may be transferred to Wholly-
Owned Foreign Subsidiaries of the U.S. Borrower;
(o) (x) the U.S. Borrower and/or its Subsidiaries may
enter into factoring arrangements with respect to accounts
receivable arising in Japan, Spain, Italy, Portugal or any other
country (other than the United States) acceptable to the
Administrative Agent in its reasonable discretion in connection
with business activities in any such country and (y) the U.S.
Borrower and its U.S. Subsidiaries may sell or otherwise
transfer accounts receivable between or among themselves in the
ordinary course of business;
(p) each of the U.S. Borrower and its Subsidiaries may
sell assets, provided that (x) the aggregate sale proceeds from
all assets subject to such sales pursuant to this clause (p)
shall not exceed $200,000,000 in the aggregate after the
Effective Date and (y) the Net Proceeds therefrom are either
applied to repay Term Loans as provided in Section 4.02(A)(c) or
reinvested to the extent permitted by Section 4.02(A)(c);
(q) each of the U.S. Borrower and its Subsidiaries may
sell other assets, provided that the aggregate sale proceeds
from all assets subject to such sales pursuant to this clause
(q) shall not exceed $20,000,000 in the aggregate after the
Effective Date;
(r) the U.S. Borrower and its Subsidiaries may put or
otherwise transfer accounts receivables to Baxter and/or its
Affiliates in accordance with the terms of the Baxter
Acquisition Documents;
<PAGE>
(s) so long as no Default or Event of Default then exists
or would result therefrom, the U.S. Borrower and its
Subsidiaries may acquire assets or the capital stock of any
Person (any such acquisition permitted by this clause (s), 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 businesses permitted pursuant
to Section 8.01(a), (ii) if such acquisition is structured as a
stock acquisition, then either (A) the Person so acquired
becomes a Wholly-Owned Subsidiary of the U.S. Borrower or (B)
such Person is merged with and into the U.S. Borrower or a
Wholly-Owned Subsidiary of the U.S. Borrower (with the U.S.
Borrower or such Wholly-Owned Subsidiary being the surviving
corporation of such merger), and in any case, all of the
provisions of Section 8.14 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, (iv) the only
consideration paid in connection with such Permitted Acquisition
consists of cash, Holdings Common Stock, Permitted Holdings PIK
Securities and/or Indebtedness permitted to be issued, incurred
or assumed pursuant to Section 8.04 and (v) calculations are
made by the U.S. Borrower of compliance with the covenants
contained in Sections 8.10 and 8.11 (in each case, giving effect
to the last sentence appearing therein) for the period of four
consecutive fiscal quarters (taken as one accounting period)
most recently ended prior to the date of such Permitted
Acquisition (each, a "Calculation Period"), on a Pro Forma Basis
as if the respective Permitted Acquisition (as well as all other
Permitted Acquisitions theretofore consummated after the first
day of such Calculation Period) had occurred on the first day of
such Calculation Period, and such recalculations shall show that
such financial covenants would have been complied with if the
Permitted Acquisition had occurred on the first day of such
Calculation Period (for this purpose, if the first day of the
respective Calculation Period occurs prior to the Initial
Borrowing Date, calculated as if the covenants contained in said
Sections 8.10 and 8.11 (in each case, giving effect to the last
sentence appearing therein) had been applicable from the first
day of the Calculation Period);
(t) upon the termination of the Distribution Agreement or
any other distribution agreement in effect as of the Effective
Date between the U.S. Borrower and/or any of its Subsidiaries
and Baxter and/or any of its Affiliates or VWR, the U.S.
Borrower and/or any such Subsidiary may repurchase inventory
transferred to Baxter, any such Affiliate or VWR but not yet
distributed at the time of such termination;
(u) the U.S. Borrower may lease as lessor equipment,
machinery or its Real Property to one or more Wholly-Owned U.S.
Subsidiaries of the U.S. Borrower so long as (x) such lease is
for fair market value (determined in good faith by the Board of
Directors or senior management of the U.S. Borrower) and (y) the
security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security
Documents in the assets so leased shall remain in full force and
effect and perfected (to at least the same extent as in effect
immediately prior to such transfer);
<PAGE>
(v) any U.S. Subsidiary of the U.S. Borrower may transfer
assets (other than accounts receivable and inventory) to the
U.S. Borrower or to any other Wholly-Owned U.S. Subsidiary of
the U.S. Borrower (other than the Receivables Entity) so long as
the security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security
Documents in the assets so transferred shall remain in full
force and effect and perfected (to at least the same extent as
in effect immediately prior to such transfer);
(w) any Wholly-Owned U.S. Subsidiary of the U.S. Borrower
(other than the Receivables Entity) may merge with and into the
U.S. Borrower so long as (i) the U.S. Borrower is the surviving
corporation of such merger and (ii) the security interests
granted to the Collateral Agent for the benefit of the Secured
Creditors pursuant to the Security Documents in the assets of
such Wholly-Owned U.S. Subsidiary so merged shall remain in full
force and effect and perfected (to at least the same extent as
in effect immediately prior to such merger);
(x) any U.S. Subsidiary of the U.S. Borrower (other than
the Receivables Entity) may merge with and into, or be dissolved
or liquidated into, any other Wholly-Owned U.S. Subsidiary of
the U.S. Borrower (other than the Receivables Entity) so long as
(i) such Wholly-Owned U.S. Subsidiary of the U.S. Borrower is
the surviving corporation of such merger, dissolution or
liquidation and (ii) the security interests granted to the
Collateral Agent for the benefit of the Secured Creditors
pursuant to the Security Documents in the assets of such U.S.
Subsidiary shall remain in full force and effect and perfected
(to at least the same extent as in effect immediately prior to
such merger, dissolution or liquidation);
(y) on and after the Accounts Receivable Facility
Transaction Date, the Designated Credit Parties may (x)
contribute cash to the Receivables Entity the proceeds of which
are used to acquire accounts receivable and related assets from
the Designated Credit Parties or to fund the Seller Account and
(y) transfer and reacquire accounts receivable and related
assets to and from the Receivables Entity, in each case pursuant
to, and in accordance with the terms of, the Accounts Receivable
Facility Documents;
(z) on and after the Accounts Receivable Facility
Transaction Date, the Receivables Entity may transfer and
reacquire accounts receivable and related assets (to the extent
acquired from Designated Credit Parties as provided in
clause (y) above) pursuant to, and in accordance with the terms
of, the Accounts Receivable Facility Documents;
(aa) the U.S. Borrower and any of its Subsidiaries may
sell, transfer or otherwise dispose of assets (including
patents, trademarks, copyrights and know-how) in the ordinary
course of business that, in the reasonable business judgment of
the U.S. Borrower or such Subsidiary, are determined to be
uneconomical, negligible or obsolete in the conduct of its
business; and
<PAGE>
(bb) the U.S. Borrower and any of its Subsidiaries may (x)
effect Seeded Instrument Sales in connection with its Vendor
Financing Program and effect other transactions contemplated by
the definition of Vendor Financing Program and (y) effect Seeded
Instrument Transactions in connection with its Alternate Vendor
Financing Program, so long as the aggregate outstanding amount
of Capitalized Lease Obligations of the U.S. Borrower and its
Subsidiaries under Seeded Instrument Transactions pursuant to
this clause (bb), when added to the aggregate outstanding amount
of Capitalized Lease Obligations and purchase money Indebtedness
permitted under Section 8.04(f), shall not exceed $100,000,000
at any time.
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,
or any Collateral is sold as permitted by this Section 8.02 (and such
Collateral is permitted to be released from the Liens created by the
respective Security Document), 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 connection
therewith.
8.03 Liens. Holdings 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 Holdings 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
Holdings 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 by
appropriate proceedings and for which adequate reserves have
been established in accordance with GAAP;
(b) Liens in respect of property or assets of the U.S.
Borrower or any of its Subsidiaries imposed by law which were
incurred in the ordinary course of business and which have not
arisen to secure Indebtedness for borrowed money, such as
carriers', warehousemen's and mechanics' Liens, statutory
landlord's Liens, and other similar Liens arising in the
ordinary course of business, and which either (x) do not in the
aggregate materially detract from the value of such property or
assets or materially impair the use thereof in the operation of
the business of the U.S. Borrower or any of its Subsidiaries or
(y) are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or asset subject to such
Lien;
<PAGE>
(c) Liens created by or pursuant to this Agreement and the
Security Documents;
(d) Liens in existence on the Effective Date which are
listed, and the property subject thereto described, in Annex
VIII, without giving effect to any extensions or renewals
thereof;
(e) Liens arising from judgments, decrees or attachments
in circumstances not constituting an Event of Default under
Section 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 consistent
with past practices;
(g) licenses, leases or subleases granted to third Persons
not interfering in any material respect with the business of the
U.S. Borrower 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 U.S. Borrower 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 or
sublessor under any lease permitted by this Agreement;
(k) Liens created pursuant to Capital Leases permitted
pursuant to Section 8.04(f);
(l) 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
Effective Date, provided that (i) any such Liens attach only to
the assets so purchased, (ii) the Indebtedness secured by any
such Lien does not exceed 100%, nor is less than 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(f);
<PAGE>
(n) Liens on property or assets acquired pursuant to a
Permitted Acquisition, or on property or assets of a Subsidiary
of the U.S. Borrower in existence at the time such Subsidiary is
acquired pursuant to a Permitted Acquisition, provided that (i)
any Indebtedness that is secured by such Liens is permitted to
exist under Section 8.04(l), (ii) the aggregate principal amount
of Indebtedness secured by such Liens does not exceed
$100,000,000 and (iii) such Liens do not attach to any other
asset of the U.S. Borrower or any of its Subsidiaries;
(o) Liens (i) granted by the Designated Credit Parties in
favor of the Receivables Entity consisting of UCC-1 financing
statements filed to effect the sale of accounts receivable and
related assets pursuant to the Accounts Receivable Facility
Documents, (ii) granted by the Receivables Entity on those
accounts receivable and related assets acquired by it pursuant
to the Accounts Receivable Facility Documents to the extent that
such Liens are created by the Accounts Receivable Facility
Documents and (iii) consisting of the right of setoff granted to
any financial institution acting as a lockbox bank in connection
with the Accounts Receivable Facility;
(p) Liens securing Indebtedness permitted pursuant to
clause (x) of Section 8.04(j), so long as any such Lien attaches
only to (i) in the case of any such Indebtedness, the
receivables and inventory of the respective Foreign Subsidiary
which is the obligor under such Indebtedness and/or any Foreign
Subsidiary of such Foreign Subsidiary, (ii) in the case of any
such Indebtedness the commitments with respect to which have
resulted in a reduction to the Total B Revolving Loan Commitment
pursuant to Section 3.02(a) or 3.03(g) (such Indebtedness, the
"Designated Working Capital Debt"), any other assets (i.e., non-
current assets) of the respective Foreign Subsidiary which is
the obligor under such Indebtedness and/or any Foreign
Subsidiary of such Foreign Subsidiary and (iii) in the case of
50% of all such Indebtedness which does not constitute
Designated Working Capital Debt, any other assets (i.e., non-
current assets) of the respective Foreign Subsidiary which is
the obligor under such Indebtedness and/or any Foreign
Subsidiary of such Foreign Subsidiary;
(q) Liens on any interest of the U.S. Borrower or any of
its Subsidiaries in the equipment subject to the Vendor
Financing Program and Liens on accounts receivable and other
current assets owned by the Special Purpose VFP Subsidiary, in
each case securing the recourse obligations owing to a financial
institution party to the Vendor Financing Program, so long as
(x) such obligations are permitted under Section 8.04(s) and (y)
in the case of any Lien on any such accounts receivable and/or
other current assets, the aggregate face amount of the accounts
receivable and other current assets subject to such Lien does
not exceed an amount equal to 120% of the outstanding recourse
obligations permitted under Section 8.04(r); and
(r) additional Liens incurred by the U.S. Borrower 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 $25,000,000.
<PAGE>
8.04 Indebtedness. Holdings 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 Effective
Date and listed on Annex VII, without giving effect to any
subsequent extension, renewal or refinancing thereof except as
permitted pursuant to Section 8.06(l);
(c) Indebtedness of Holdings incurred under Baxter PIK
Notes (1) issued (x) as payment for indemnity obligations of
Holdings under the Tax Indemnity Letter and (y) after December
20, 1999 (so long as no Default or Event of Default exists at
such time or would result therefrom) in exchange for outstanding
shares of Baxter Preferred Stock in accordance with the terms
thereof, provided, in the case of this clause (y) that the
aggregate principal amount of such Baxter PIK Notes shall not
exceed the aggregate liquidation preference of the Baxter
Preferred Stock so exchanged and (2) representing interest
payments on Baxter PIK Notes previously issued under clause (1)
above (whether or not represented by the issuance of additional
Baxter PIK Notes), as issued in accordance with the terms
thereof;
(d) Indebtedness of the U.S. Borrower incurred under the
Senior Subordinated Notes in an aggregate principal amount not
to exceed $350,000,000 (as reduced by any repayments of
principal thereof);
(e) Indebtedness under Interest Rate Protection Agreements
entered into to protect any Borrower against fluctuations in
interest rates in respect of the Obligations;
(f) Capitalized Lease Obligations and Indebtedness of the
U.S. Borrower and its Subsidiaries incurred pursuant to purchase
money Liens, provided, that (x) all such Capitalized Lease
Obligations are permitted under Section 8.09 and (y) the sum of
(i) the aggregate Capitalized Lease Obligations outstanding at
any time pursuant to this clause (f) plus (ii) the aggregate
principal amount of such purchase money Indebtedness outstanding
at any time pursuant to this clause (f) plus (iii) the aggregate
outstanding amount of Capitalized Lease Obligations of the U.S.
Borrower and its Subsidiaries under Seeded Instrument
Transactions pursuant to Section 8.02(bb), shall not exceed
$100,000,000;
(g) Indebtedness constituting Intercompany Loans to the
extent permitted by Section 8.06(g);
<PAGE>
(h) Indebtedness of Holdings under the Shareholder
Subordinated Notes;
(i) Indebtedness under Other Hedging Agreements providing
protection against fluctuations in currency values in connection
with the U.S. Borrower's or any of its Subsidiaries' operations
so long as management of the U.S. Borrower or such Subsidiary,
as the case may be, has determined that the entering into of
such Other Hedging Agreements are bona fide hedging activities;
(j) Indebtedness (x) of Foreign Subsidiaries under lines
of credit extended by third Persons to any such Foreign
Subsidiary the proceeds of which Indebtedness are used for such
Foreign Subsidiary's working capital purposes, provided that the
aggregate principal amount of all such Indebtedness outstanding
at any time for all Foreign Subsidiaries shall not exceed, at
any time, an amount equal to the lesser of (1) $200,000,000
minus the U.S. Dollar Equivalent of the aggregate Principal
Amount of all B Revolving Loans and B Swingline Loans incurred
by the German Borrower and outstanding at such time and (2) the
amount of such Indebtedness permitted to be outstanding under
the terms of the Senior Subordinated Note Indenture at such time
(the "Foreign Subsidiary Working Capital Indebtedness") and (y)
consisting of guaranties by the U.S. Borrower of any such
Foreign Subsidiary Working Capital Indebtedness (including,
without limitation, letters of credit issued for the account of
the U.S. Borrower and its Subsidiaries and in favor of lenders
in respect of any such Foreign Subsidiary Working Capital
Indebtedness);
(k) Indebtedness of Foreign Subsidiaries to the U.S.
Borrower and its U.S. Subsidiaries (other than the Receivables
Entity) as a result of any investment made pursuant to Section
8.06(o);
(l) Indebtedness incurred to finance a Permitted
Acquisition, Indebtedness of a Subsidiary acquired pursuant to a
Permitted Acquisition or Indebtedness assumed by the U.S.
Borrower or any Wholly-Owned Subsidiary pursuant to a Permitted
Acquisition as a result of a merger or consolidation or the
acquisition of an asset securing such Indebtedness
(collectively, "Permitted Acquired Debt"), provided that the
aggregate principal amount of all Permitted Acquired Debt at any
time outstanding shall not exceed $250,000,000.
(m) Indebtedness consisting of guaranties (x) by the U.S.
Borrower of Indebtedness, leases and other contractual
obligations permitted to be incurred by Wholly-Owned U.S.
Subsidiaries (other than the Receivables Entity), (y) by U.S.
Subsidiaries (other than the Receivables Entity) of Indebtedness
(other than the Senior Subordinated Notes), leases and other
contractual obligations permitted to be incurred by the U.S.
Borrower or other Wholly-Owned U.S. Subsidiaries and (z) by
Foreign Subsidiaries of Indebtedness, leases and other
contractual obligations permitted to be incurred by other
Wholly-Owned Foreign Subsidiaries;
<PAGE>
(n) Indebtedness consisting of a guaranty by the U.S.
Borrower of the severance obligations of Dade Diagnostika GmbH,
a German Subsidiary of the U.S. Borrower, as required by the
German Workers' Council;
(o) Indebtedness of the Receivables Entity under the
Accounts Receivable Facility Documents;
(p) Indebtedness consisting of a guaranty by the U.S.
Borrower of the obligations of the other Designated Credit
Parties under the Accounts Receivable Facility Documents;
(q) Indebtedness of the U.S. Borrower or any of its
Subsidiaries arising in the ordinary course of business of the
U.S. Borrower or such Subsidiary and owing to a financial
institution providing netting services to the U.S. Borrower and
its Subsidiaries, provided that (i) such Indebtedness was
incurred in respect of the provision of such netting services
with respect to intercompany Indebtedness permitted to be made
pursuant to this Agreement and (ii) such Indebtedness does not
remain outstanding for more than three days from the date of its
incurrence;
(r) Indebtedness consisting of the recourse to the U.S.
Borrower and its Subsidiaries by financial institutions party to
the Vendor Financing Program for lease obligations owing to such
financial institutions by third party customers of the U.S.
Borrower and/or such Subsidiaries, provided that the aggregate
amount of such Indebtedness outstanding at any time shall not
exceed $17,000,000;
(s) Indebtedness of the U.S. Borrower or any of its
Subsidiaries consisting of the financing of insurance premiums
in the ordinary course of business;
(t) Indebtedness of the U.S. Borrower or any of its
Subsidiaries consisting of take-or-pay obligations contained in
supply agreements entered into in the ordinary course of
business;
(u) Indebtedness of Holdings incurred under Permitted
Holdings PIK Securities, provided that the aggregate outstanding
principal amount of Permitted Holdings PIK Securities
constituting Indebtedness (other than any such Permitted
Holdings PIK Securities issued as consideration for, or the
proceeds of which are used to finance, a Permitted Acquisition)
shall not exceed $100,000,000 plus the amount of interest on
such Permitted Holdings PIK Securities paid in kind or through
accretion;
(v) Indebtedness of the Special Purpose VFP Subsidiary
evidenced by the VFP Purchase Money Note;
<PAGE>
(w) Indebtedness of the U.S. Borrower constituting U.S.
Borrower Subordinated Loans to the extent permitted by Section
8.06(t) and to the extent permitted by Section 4.12 of the
Senior Subordinated Note Indenture (without giving effect to
clause (xvi) of the definition of Permitted Indebtedness
contained therein); and
(x) additional Indebtedness of the U.S. Borrower and its
U.S. Subsidiaries not otherwise permitted hereunder not
exceeding $150,000,000 in aggregate principal amount at any time
outstanding.
8.05 Designated Senior Debt. Holdings will not, and will
not permit any of its Subsidiaries to (i) designate any Indebtedness
(other than the Obligations) as "Designated Senior Debt" for purposes
of, and as defined in, the Senior Subordinated Note Indenture or (ii)
designate any documents with respect to any Indebtedness (other than
this Agreement) as the "Bank Credit Agreement" as defined in the
Senior Subordinated Note Indenture for purposes of the receipt of
notices by the Administrative Agent, and delivery of blockage notices
pursuant to the subordination provisions of the Senior Subordinated
Note Documents.
8.06 Advances, Investments and Loans. Holdings 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 (any of the foregoing, an "Investment"), except:
(a) the U.S. Borrower and its Subsidiaries may invest in
cash and Cash Equivalents;
(b) the U.S. Borrower and its Subsidiaries may acquire and
hold receivables owing to it, if created or acquired in the
ordinary course of business and payable or dischargeable in
accordance with customary trade terms of the U.S. Borrower or
such Subsidiary;
(c) the U.S. Borrower and its Subsidiaries may acquire and
own investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers
and customers and in good faith 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(e) shall be permitted;
<PAGE>
(e) (i) Holdings may acquire and hold obligations of one
or more officers or other employees of Holdings or its
Subsidiaries in connection with such officers' or employees'
acquisition of shares of Holdings Common Stock or Holdings Class
L Common Stock so long as no cash is paid by Holdings or any of
its Subsidiaries in connection with the acquisition of any such
obligations and (ii) Holdings and its Subsidiaries may pay
Dividends to the extent permitted under Section 8.07;
(f) deposits made in the ordinary course of business
consistent with past practices to secure the performance of
leases shall be permitted;
(g) the U.S. Borrower may make intercompany loans and
advances to any of its Subsidiaries (other than the Receivables
Entity) and any Subsidiary of the U.S. Borrower (other than the
Receivables Entity) may make intercompany loans and advances to
the U.S. Borrower or any other Subsidiary of the U.S. Borrower
(collectively, "Intercompany Loans"), provided, that (w) at no
time shall the aggregate outstanding principal amount of all
Intercompany Loans made pursuant to this clause (g) by the U.S.
Borrower and its U.S. Subsidiaries to Foreign Subsidiaries, when
added to the amount of contributions, capitalizations and
forgiveness theretofore made pursuant to Section 8.06(m)(1),
exceed $150,000,000 (determined without regard to any write-
downs or write-offs of such loans and advances), provided that,
in addition to such $150,000,000, Intercompany Loans may also be
made by the U.S. Borrower and its U.S. Subsidiaries to Foreign
Subsidiaries in an amount up to the Excess Proceeds Amount at
the time of any such loan, (x) each Intercompany Loan made by a
Foreign Subsidiary to the U.S. Borrower or a U.S. Subsidiary
shall contain the subordination provisions set forth on Exhibit
J, (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 to
the U.S. Borrower or U.S. Subsidiaries and (2) Intercompany
Notes held by Foreign Subsidiaries) shall be pledged to the
Collateral Agent pursuant to the Pledge Agreement;
(h) loans and advances by the U.S. Borrower and its
Subsidiaries to employees of Holdings and its Subsidiaries for
moving and travel expenses and other similar expenses, in each
case incurred in the ordinary course of business, shall be
permitted;
(i) Holdings may make equity contributions to the capital
of the U.S. Borrower;
(j) Foreign Subsidiaries may invest in Foreign Cash
Equivalents;
(k) Other Hedging Agreements may be entered into in
compliance with Section 8.04(i);
<PAGE>
(l) advances, loans and investments in existence on the
Initial Borrowing Date and listed on Annex XI shall be
permitted, without giving effect to any additions thereto or
replacements thereof (except those additions or replacements
which are existing obligations as of the Initial Borrowing
Date);
(m) the U.S. Borrower and its U.S. Subsidiaries (other
than the Receivables Entity) may (1) make cash capital
contributions to Foreign Subsidiaries, and may capitalize or
forgive any Indebtedness owed to them by a Foreign Subsidiary
and outstanding under clause (g) of this Section 8.06, provided
that the aggregate amount of such contributions, capitalizations
and forgiveness on and after the Initial Borrowing Date, when
added to the aggregate outstanding principal amount of
Intercompany Loans made to Foreign Subsidiaries under such
clause (g) (determined without regard to any write-downs or
write-offs thereof) shall not exceed an amount equal to
$150,000,000, provided that, in addition to such $150,000,000,
such contributions, capitalizations and forgiveness may be made
at any time in an amount up to the Excess Proceeds Amount at
such time, and (2) capitalize or forgive any Indebtedness owed
to them by a Foreign Subsidiary and outstanding under clause (l)
of this Section 8.06;
(n) Permitted Acquisitions shall be permitted;
(o) the U.S. Borrower and its Subsidiaries may make
investments in their respective Subsidiaries in connection with
the transfers of those assets permitted to be transferred
pursuant to Sections 8.02(h), (i) and (j), it being understood
that the U.S. Borrower and its Subsidiaries may convert any
investment initially made as an equity investment to
intercompany Indebtedness held by the U.S. Borrower or such
Subsidiary;
(p) the U.S. Borrower and its U.S. Subsidiaries may make
and hold investments in their respective Foreign Subsidiaries to
the extent that such investments arise from the sale of
inventory in the ordinary course of business by the U.S.
Borrower or such U.S. Subsidiary to such Foreign Subsidiaries
for resale by such Foreign Subsidiaries (including any such
investments resulting from the extension of the payment terms
with respect to such sales);
(q) the U.S. Borrower and its Subsidiaries may hold
additional investments in their respective Subsidiaries to the
extent that such investments reflect an increase in the value of
such Subsidiaries;
<PAGE>
(r) the U.S. Borrower and its Subsidiaries may capitalize
one or more foreign sales corporations created in accordance
with Section 8.14 with cash contributions in an aggregate amount
not to exceed $200,000 for all such foreign sales corporations
made on and after the Effective Date;
(s) the U.S. Borrower and its Subsidiaries may make
transfers of assets to their respective Subsidiaries in
accordance with Section 8.02(k), (l), (m), (n), (t) and (v);
(t) Holdings may make intercompany loans to the U.S.
Borrower on a subordinated basis (collectively, the "U.S.
Borrower Subordinated Loans"), so long as (x) all such U.S.
Borrower Subordinated Loans are evidenced by a U.S. Borrower
Subordinated Note and (y) the proceeds used by Holdings to make
such U.S. Borrower Subordinated Loans come from Private Equity
Proceeds;
(u) the U.S. Borrower and its Subsidiaries may acquire and
hold debt and/or equity securities as consideration for a sale
of assets pursuant to Section 8.02(p) or (q);
(v) the U.S. Borrower and the other Designated Credit
Parties may make an initial cash capital contribution to the
Receivables Entity on the Accounts Receivable Facility
Transaction Date as provided in the Accounts Receivable Facility
Documents, so long as the Receivables Entity uses all of the
proceeds of such contribution on such date to purchase accounts
receivable from the U.S. Borrower and the other Designated
Credit Parties and/or to fund the Seller Account, and the U.S.
Borrower and/or such other Designated Credit Parties may hold
the capital stock of the Receivables Entity issued to them so
long as such capital stock has been duly pledged and delivered
to the Collateral Agent pursuant to the Pledge Agreement;
(w) on or after the Accounts Receivable Facility
Transaction Date, the U.S. Borrower and the other Designated
Credit Parties may hold one or more Receivables Purchase Money
Notes issued by the Receivables Entity and may maintain the
Seller Account with the Receivables Entity and may make
extensions of credit to the Receivables Entity pursuant to such
Receivables Purchase Money Notes and Seller Account for the
purpose of enabling the Receivables Entity to purchase accounts
receivables pursuant to the Accounts Receivable Facility
Documents so long as such Receivables Purchase Money Notes have
been duly pledged and delivered to the Collateral Agent pursuant
to the U.S. Pledge Agreement;
(x) on or after the Accounts Receivable Facility
Transaction Date, the Receivables Entity may invest those
accounts receivable purchased from the Designated Credit Parties
in the master trust for the Accounts Receivable Facility
pursuant to, and in accordance with the terms of, the Accounts
Receivable Facility Documents;
(y) the U.S. Borrower and/or one or more of its
Subsidiaries may hold one or more VFP Purchase Money Notes; and
<PAGE>
(z) in addition to Investments permitted above, so long as
no Default or Event of Default then exists or would result
therefrom, the U.S. Borrower and its Subsidiaries (other than
the Receivables Entity) may make (i) additional Investments
having an aggregate fair market value, taken together with all
other Investments made pursuant to this sub-clause (i) that are
at that time outstanding, not to exceed 5% of Total Assets at
the time of such Investment (with the fair market value of each
Investment being measured at the time made and without giving
effect to subsequent changes in value), it being understood and
agreed that for purposes of this subclause (i), the amount of
any Investment shall be the original cost of such Investment
plus the cost of all additional Investments by the U.S. Borrower
or any of its Subsidiaries, without any adjustments for
increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment and (ii) additional
Investments to or in a Person, so long as the amount of any such
Investment (at the time of the making thereof) made after the
Effective Date does not exceed the Excess Proceeds Amount at the
time of such Investment; provided, that neither any Borrower nor
any of its Subsidiaries may make or own any investment in Margin
Stock.
8.07 Dividends, etc. Holdings 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 Holdings 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 Holdings will not permit any of its Subsidiaries to purchase or
otherwise acquire for consideration any shares of any class of the
capital stock of Holdings or any other Subsidiary, as the case may
be, now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued by such Person with respect to its capital
stock) (all of the foregoing "Dividends"), except that:
(i) any Subsidiary of the U.S. Borrower may pay Dividends
to the U.S. Borrower or any Wholly-Owned Subsidiary of the U.S.
Borrower;
<PAGE>
(ii) (a) Holdings may redeem or purchase shares of Holdings
Common Stock or Holdings Class L Common Stock or options to
purchase Holdings Common Stock or Holdings Class L Common Stock,
respectively, held by former employees of Holdings or any of
its Subsidiaries following the termination of their employment,
provided that (w) the only consideration paid by Holdings in
respect of such redemptions and/or purchases shall be cash and
Shareholder Subordinated Notes, (x) the sum of (A) the aggregate
amount paid by Holdings in cash in respect of all such
redemptions and/or purchases plus (B) the aggregate amount of
all principal and interest payments made on Shareholder
Subordinated Notes, shall not exceed $5,000,000 in any fiscal
year of Holdings, provided that such amount shall be increased
by an amount equal to the proceeds received by Holdings after
the Effective Date from the sale or issuance of Holdings Common
Stock or Holdings Class L Common Stock, as the case may be, to
management of Holdings or any of its Subsidiaries and (y) at the
time of any cash payment permitted to be made pursuant to this
Section 8.07(ii), including any cash payment under a Shareholder
Subordinated Note, no Default or Event of Default shall then
exist or result therefrom; and (b) so long as no Default or
Event of Default then exists or would result therefrom, any
Borrower may pay cash Dividends to Holdings so long as Holdings
promptly uses such proceeds for the purposes described in clause
(ii)(a) of this Section 8.07;
(iii) the U.S. Borrower may pay cash Dividends to Holdings so
long as the proceeds thereof are promptly used by Holdings to
(x) pay operating expenses in the ordinary course of business
(including, without limitation, professional fees and expenses)
and other similar corporate overhead costs and expenses,
provided that the aggregate amount of cash Dividends paid
pursuant to this clause (x) shall not during any fiscal year of
such Borrower exceed $1,500,000 and (y) pay salaries or other
compensation of employees who perform services for Holdings and
the U.S. Borrower, provided that the aggregate amount of cash
Dividends paid pursuant to this clause (y) shall not during any
fiscal year of such Borrower exceed $2,000,000;
(iv) the U.S. Borrower may pay cash Dividends to Holdings in
the amounts and at the times of any payment by Holdings in
respect of taxes, provided that (x) the amount of cash Dividends
paid pursuant to this clause (iv) to enable Holdings to pay
federal income taxes at any time shall not exceed the lesser of
(A) the amount of such federal income taxes owing by Holdings at
such time for the respective period and (B) the amount of such
federal income taxes that would be owing by the U.S. Borrower
and its Subsidiaries on a consolidated basis for such period if
determined without regard to Holdings' ownership of the U.S.
Borrower and (y) any refunds shall promptly be returned by
Holdings to such Borrower;
<PAGE>
(v) after December 20, 1999, on the Business Day
immediately preceding the date on which a scheduled interest
payment is due on any outstanding Baxter PIK Notes (or, in the
event that a Default or Event of Default shall then exist, on
the first Business Day when no Default or Event of Default shall
be continuing), the U.S. Borrower may pay a cash Dividend to
Holdings in an amount not to exceed the aggregate amount of the
interest payment due as provided in the Baxter PIK Notes, so
long as (w) on the Business Day immediately after the receipt of
such cash Dividends Holdings utilizes the full amount thereof to
make such required interest payment on the Baxter PIK Notes to
the extent then due and payable in accordance with the terms of
the Baxter PIK Notes, (x) no Default or Event of Default then
exists or would result therefrom, (y) such cash Dividends are
otherwise not prohibited to be made at such time pursuant to the
Senior Subordinated Notes, and (z) the Baxter PIK Notes were
included as Consolidated Debt, and an accrued portion of the
cash interest thereon was included as Consolidated Interest
Expense, during each quarter in the fiscal year in which any
such cash interest is paid, and the U.S. Borrower was in
compliance with Sections 8.10 and 8.11 at all relevant times
during such fiscal year after giving effect to such adjustments;
(vi) Holdings may pay Dividends on the Baxter Preferred
Stock pursuant to the terms thereof solely through the issuance
of additional shares of Baxter Preferred Stock, provided that in
lieu of issuing additional shares of Baxter Preferred Stock as
Dividends, Holdings may increase the liquidation preference of
the shares of the Baxter Preferred Stock in respect of which
such Dividends have accrued, provided further, the U.S. Borrower
may pay a cash Dividend to Holdings in an amount not to exceed
the aggregate amount of the dividend payment due as provided in
the Baxter Preferred Stock, so long as (w) on the Business Day
immediately after the receipt of such cash Dividends Holdings
utilizes the full amount thereof to make such dividend payment
on the Baxter Preferred Stock to the extent then due and payable
in accordance with the terms of the Baxter Preferred Stock, (x)
no Default or Event of Default then exists or would result
therefrom, (y) such cash Dividends are otherwise not prohibited
to be made at such time pursuant to the Senior Subordinated
Notes, and (z) an accrued portion of the cash dividends to be
paid on the Baxter Preferred Stock was included as Consolidated
Interest Expense during each quarter in the fiscal year in which
any such cash dividends are paid, and the U.S. Borrower was in
compliance with Section 8.10 at all relevant times during such
fiscal year after giving effect to such adjustment;
(vii) after December 20, 1999, so long as no Default or Event
of Default then exists or would result therefrom, Holdings may
issue Baxter PIK Notes in exchange for its then outstanding
Baxter Preferred Stock, provided that the aggregate principal
amount of Baxter PIK Notes so issued shall not exceed the
aggregate liquidation preference of such Baxter Preferred Stock
at such time;
<PAGE>
(viii) so long as no Default or Event of Default then exists
or would result therefrom, (x) Holdings may use cash to
repurchase or redeem shares of Baxter Preferred Stock, together
with all accrued dividends thereon, so long as (I) the shares of
Baxter Preferred Stock so repurchased or redeemed are retired
and not thereafter resold or reissued and (II) the aggregate
amount expended pursuant to any such repurchase or redemption of
shares of Baxter Preferred Stock by Holdings shall not exceed an
amount equal to 80% of the total accreted value of the Baxter
Preferred Stock so repurchased or redeemed at the time of such
repurchase or redemption and (y) the U.S. Borrower may pay cash
Dividends to Holdings to enable Holdings to repurchase or redeem
Baxter Preferred Stock as permitted in the immediately preceding
clause (x), so long as the proceeds thereof are promptly used by
Holdings to effect such repurchase or redemption;
(ix) Holdings may pay regularly scheduled Dividends on the
Permitted Holdings PIK Securities (to the extent issued as
preferred stock) pursuant to the terms thereof solely through
the issuance of additional shares of such Permitted Holdings PIK
Securities, provided that in lieu of issuing additional shares
of such Permitted Holdings PIK Securities as Dividends, Holdings
may increase the liquidation preference of the shares of
Permitted Holdings PIK Securities in respect of which such
Dividends have accrued;
(x) (a) Holdings may from time to time repurchase or
redeem shares of Holdings Common Stock, Holdings Class L Common
Stock and Baxter Preferred Stock, and may repurchase or repay
Baxter PIK Notes, in each case so long as (x) no Default or
Event of Default is then in existence or would result therefrom
and (y) the aggregate amount paid to repurchase or redeem such
shares and to repurchase or repay such notes pursuant to this
Section 8.07(x) after the Effective Date shall not exceed the
sum of $75,000,000 plus an amount, if any, equal to $450,000,000
minus the amount paid by Holdings to purchase such shares
pursuant to the Recapitalization, and (b) the U.S. Borrower may
pay cash Dividends to Holdings to enable Holdings to repurchase
or redeem shares of Holdings Common Stock, Holdings Class L
Common Stock and/or Baxter Preferred Stock and/or to repurchase
or repay Baxter PIK Notes as permitted in the immediately
preceding clause (a), so long as the proceeds thereof are
promptly used by Holdings to effect such repurchases,
redemptions and/or repayments;
<PAGE>
(xi) (a) Holdings may pay cash Dividends at any time in an
aggregate amount equal to the Excess Proceeds Amount at such
time and (b) the U.S. Borrower may pay cash Dividends to
Holdings to enable Holdings to pay Dividends as permitted in the
immediately preceding clause (a), so long as the proceeds
thereof are promptly used by Holdings to effect such Dividends;
(xii) the Recapitalization shall be permitted; and
(xiii) in lieu of making cash payments related to the
Baxter Preferred Stock on the Initial Borrowing Date in
connection with the Recapitalization, Holdings may issue
additional shares of Baxter Preferred Stock and may subsequently
redeem or repurchase such shares for cash consideration not in
excess of the cash payment not made on the Initial Borrowing
Date (plus accrued dividends with respect to any such shares of
Baxter Preferred Stock).
8.08 Transactions with Affiliates. Holdings will not, and
will not permit any of its Subsidiaries to, enter into any
transaction or series of transactions with any Affiliate other than
in the ordinary course of business and on terms and conditions
substantially as favorable to Holdings or such Subsidiary as would be
obtainable by Holdings 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 Bain Capital and GS Capital and their respective Related
Parties in an aggregate amount (for all such Persons taken together)
not to exceed $750,000 in any fiscal quarter of the U.S. Borrower,
provided that if during any fiscal quarter of the U.S. Borrower a
Default or Event of Default under Section 9.01 or 9.05 exists, only
one-half of such fee for such fiscal quarter may be paid; (iii) so
long as no Default or Event of Default under Section 9.01 or 9.05 is
then in existence or would result therefrom, the payment to Bain
Capital, GS Capital and/or their respective Related Parties of one-
time advisory service fees in connection with a Permitted
Acquisition, divestiture or financing consummated by the Borrower or
any of its Subsidiaries in accordance with the relevant requirements
of this Agreement in an aggregate amount (for all such Persons taken
together) not to exceed customary fees for transactions of that type
and size; (iv) the reimbursement of Bain Capital and GS Capital and
their respective Related Parties for their reasonable out-of-pocket
expenses incurred by them in connection with performing management
services to the U.S. Borrower and its Subsidiaries under the
Consulting Agreement; (v) Holdings and the U.S. Borrower and its U.S.
Subsidiaries may make any payments required under the Holdings Tax
Allocation Agreement; (vi) the transactions contemplated by the
Accounts Receivable Facility Documents; and (vii) the transactions
contemplated by the documents governing the Vendor Financing Program.
Notwithstanding anything to the contrary contained in this Section
8.08, at no time will Holdings or any of its Subsidiaries make any
payments to Bain Capital, GS Capital or any of their respective
Related Parties in an amount which would exceed that amount permitted
to be paid pursuant to the Senior Subordinated Note Indenture at such
time.
<PAGE>
8.09 Capital Expenditures. (a) Holdings will not, and
will not permit any of its Subsidiaries to, make any Capital
Expenditures, except that during any fiscal year the U.S. Borrower
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 sum of (x) the amount set forth
opposite such fiscal year below plus (y) for each Acquired Business
acquired after the Effective Date and prior to the first day of the
respective fiscal year set forth below, 50% of the Acquired EBITDA of
such Acquired Business for the trailing twelve months of such
Acquired Business immediately preceding its acquisition for which
financial statements have been made available to the U.S. Borrower
and the Banks plus (z) for each Acquired Business acquired during the
respective fiscal year, the amount for such Acquired Business
specified in preceding clause (y) multiplied by a percentage, the
numerator of which is the number of days in the fiscal year after the
date of the respective acquisition and the denominator of which is
365 or 366, as the case may be:
Fiscal Year Amount
Ending
December 31, 1999 $140,000,000
December 31, 2000 $142,500,000
December 31, 2001 $145,000,000
December 31, 2002 $147,500,000
December 31, 2003 $150,000,000
December 31, 2004 $152,500,000
December 31, 2005 $155,000,000
December 31, 2006 $157,500,000
December 31, 2007 $160,000,000
(b) Notwithstanding the foregoing, in the event that the
amount of Capital Expenditures permitted to be made by the U.S.
Borrower 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 U.S. Borrower 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 U.S.
Borrower and its Subsidiaries during any fiscal year pursuant to
Section 8.09(a) and this Section 8.09(b) exceed 150% of the amount
permitted to be made during such fiscal year under Section 8.09(a)
(without giving effect to this Section 8.09(b)).
(c) Notwithstanding the foregoing, the U.S. Borrower 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
U.S. Borrower or any of its Subsidiaries from any Recovery Event so
long as such Capital Expenditures are to replace or restore any
properties or assets in respect of which such proceeds were paid
within 365 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).
<PAGE>
(d) Notwithstanding the foregoing, the U.S. Borrower 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 net cash proceeds are not required to be applied to
repay Term Loans pursuant to Section 4.02(A)(c).
(e) Notwithstanding the foregoing, the U.S. Borrower and
its Subsidiaries may make Capital Expenditures at any time in an
aggregate amount equal to the Excess Proceeds Amount at such time
(which Capital Expenditures will not be included in any determination
under the foregoing clause (a)).
(f) Notwithstanding the foregoing, the U.S. Borrower and
its Subsidiaries may incur Capitalized Lease Obligations under and in
connection with the Alternate Vendor Financing Program in an
aggregate outstanding amount not to exceed $27,000,000 at any time
(which Capitalized Lease Obligations will not be included in any
determination under the foregoing clause (a)).
<PAGE>
8.10 Consolidated Interest Coverage Ratio. The U.S.
Borrower will not permit the Consolidated Interest Coverage Ratio for
any Test Period ending on a date set forth below to be less than the
ratio set forth opposite such date:
Date Ratio
September 30, 1999 1.50:1.00
December 31, 1999 1.50:1.00
March 31, 2000 1.75:1.00
June 30, 2000 1.75:1.00
September 30, 2000 2.00:1.00
December 31, 2000 2.00:1.00
March 31, 2001 2.00:1.00
June 30, 2001 2.00:1.00
September 30, 2001 2.00:1.00
December 31, 2001 2.25:1.00
March 31, 2002 2.25:1.00
June 30, 2002 2.25:1.00
September 30, 2002 2.25:1.00
December 31, 2002 2.50:1.00
March 31, 2003 2.50:1.00
June 30, 2003 2.50:1.00
Date Ratio
September 30, 2003 2.50:1.00
December 31, 2003 2.75:1.00
March 31, 2004 2.75:1.00
June 30,2004 2.75:1.00
September 30, 2004 2.75:1.00
December 31, 2004 3.00:1.00
March 31, 2005 3.00:1.00
June 30, 2005 3.00:1.00
September 30, 2005 3.25:1.00
December 31, 2005 3.50:1.00
March 31, 2006 3.50:1.00
June 30, 2006 3.50:1.00
September 30, 2006 3.50:1.00
December 31, 2006 3.50:1.00
Notwithstanding anything to the contrary contained in this
Agreement, all calculations of compliance with this Section 8.10
shall be made on a Pro Forma Basis.
<PAGE>
8.11 Adjusted Leverage Ratio. The U.S. Borrower will not
permit the Adjusted Leverage Ratio at any time during a fiscal
quarter set forth below to be more than the ratio set forth opposite
such fiscal quarter:
Fiscal Quarter Ending Ratio
September 30, 1999 6.25:1.00
December 31, 1999 6.25:1.00
March 31, 2000 6.25:1.00
June 30, 2000 6.25:1.00
September 30, 2000 6.00:1.00
December 31, 2000 5.75:1.00
March 31, 2001 5.75:1.00
June 30, 2001 5.75:1.00
September 30, 2001 5.50:1.00
December 31, 2001 5.25:1.00
March 31, 2002 5.25:1.00
June 30, 2002 5.00:1.00
September 30, 2002 5.00:1.00
December 31, 2002 4.75:1.00
March 31, 2003 4.75:1.00
June 30, 2003 4.50:1.00
September 30, 2003 4.25:1.00
December 31, 2003 4.00:1.00
March 31, 2004 4.00:1.00
June 30, 2004 4.00:1.00
September 30, 2004 3.75:1.00
December 31, 2004 3.50:1.00
March 31, 2005 3.50:1.00
June 30, 2005 3.50:1.00
September 30, 2005 3.25:1.00
December 31, 2005 3.00:1.00
March 31, 2006 3.00:1.00
June 30, 2006 3.00:1.00
September 30, 2006 3.00:1.00
Fiscal Quarter Ending Ratio
December 31, 2006 3.00:1.00
Notwithstanding anything to the contrary contained in this
Agreement, all calculations of compliance with this Section 8.11
shall be made on a Pro Forma Basis.
8.12 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws
and Certain Other Agreements; Issuance of Capital Stock; etc.
Holdings will not, and will not permit any of its Subsidiaries to:
<PAGE>
(i) make (or give any notice in respect of) any voluntary
or optional payment or prepayment on or redemption or
acquisition for value of any Senior Subordinated Note, any
Permitted Holdings PIK Security or any Baxter PIK Note or make
any interest payment on any Baxter PIK Note except to the extent
permitted by Section 8.07(v); provided, that (x) Senior
Subordinated Notes may be redeemed or repurchased with the
proceeds of any registered public offering of Holdings Common
Stock and (y) Baxter PIK Notes may be redeemed or repaid
pursuant to Section 8.07(x);
(ii) make (or give any notice in respect of) any principal
or interest payment on, or any redemption or acquisition for
value of, any U.S. Borrower Subordinated Note or any Shareholder
Subordinated Note, except to the extent permitted by Section
8.07(ii);
(iii) amend or modify, or permit the amendment or
modification of, (x) any provision of any Senior Subordinated
Note Document, or (y) in any way adverse to the interests of the
Banks, any provision of any Baxter PIK Note Document, any
Recapitalization Document, any U.S. Borrower Subordinated Note
or any Shareholder Subordinated Note;
(iv) at any time after the Accounts Receivable Facility
Transaction Date, amend or modify, or permit the amendment or
modification of, any provision of any Accounts Receivable
Facility Document, except as permitted by the definition
thereof;
(v) amend, modify or change in any way adverse to the
interests of the Banks, any Management Agreement (including,
without limitation, the Consulting Agreement), the terms of any
Baxter Preferred Stock, the IVD Services Agreement, any Tax
Allocation Agreement, the Tax Indemnity Letter, its Certificate
of Incorporation (including, without limitation, by the filing
or modification of any certificate of designation) or By-Laws,
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 would be
adverse to the interests of the Banks;
(vi) amend or modify, or permit the amendment or
modification of, any provision of any Permitted Holdings PIK
Security in any manner inconsistent with the definition of
Permitted Holdings PIK Security; or
(vii) issue any class of capital stock other than (x) in the
case of the U.S. Borrower and its Subsidiaries, non-redeemable
common stock and (y) in the case of Holdings, (1) the issuance
of Baxter Preferred Stock as permitted pursuant to Section
8.07(vi), (2) the issuance of Holdings Common Stock or Permitted
Holdings PIK Securities and (3) issuances of Holdings Common
Stock or Holdings Class L Common Stock where, after giving
effect to such issuance, no Event of Default will exist under
Section 9.10 and to the extent the proceeds thereof are applied
in accordance with Sections 4.02(A)(d) and 7.17.
<PAGE>
8.13 Limitation on Certain Restrictions on Subsidiaries.
Holdings 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 Holdings or any Subsidiary of
Holdings, or pay any Indebtedness owed to Holdings or a Subsidiary of
Holdings, (b) make loans or advances to Holdings or any of Holdings'
Subsidiaries or (c) transfer any of its properties or assets to
Holdings or any of Holdings' 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 U.S. Borrower or a
Subsidiary of the U.S. Borrower, (iv) customary provisions
restricting assignment of any licensing agreement entered into by the
U.S. Borrower or a Subsidiary of the U.S. Borrower in the ordinary
course of business, (v) restrictions applicable to any Joint Venture
that is a Subsidiary existing at the time of the acquisition thereof
as a result of an Investment pursuant to Section 8.06(z) or a
Permitted Acquisition effected in accordance with Section 8.02(s),
provided that the restrictions applicable to the respective Joint
Venture are not made worse, or more burdensome, from the perspective
of the U.S. Borrower and its Subsidiaries, than those as in effect
immediately before giving effect to the consummation of the
respective Investment or Permitted Acquisition, (vi) the Senior
Subordinated Note Documents, (vii) customary provisions restricting
the transfer of assets subject to Liens permitted under Sections
8.03(k), (m) and (o), (viii) any document or instrument evidencing
Foreign Subsidiary Working Capital Indebtedness so long as such
encumbrance or restriction only applies to the Foreign Subsidiary
incurring such Indebtedness, (ix) the Accounts Receivable Facility
Documents, and (x) the transactions contemplated by the documents
governing the Vendor Financing Program.
<PAGE>
8.14 Limitation on the Creation of Subsidiaries. (a)
Notwithstanding anything to the contrary contained in this Agreement,
Holdings will not, and will not permit any of its Subsidiaries to,
establish, create or acquire after the Effective Date any Subsidiary
(other than Joint Ventures permitted to be established in accordance
with the requirements of Section 8.06(z); provided that, (a) the
U.S. Borrower and its Wholly-Owned Subsidiaries (other than the
Receivables Entity) shall be permitted to establish or create (x)
Subsidiaries as a result of investments made pursuant to Section
8.06(r) and (y) Wholly-Owned Subsidiaries so long as (i) at least 30
days' prior written notice thereof (or such lesser notice as is
acceptable to the Administrative Agent) is given to the
Administrative Agent, (ii) the capital stock of such new Subsidiary
is pledged pursuant to, and to the extent required by, this Agreement
and the Pledge Agreement and the certificates, if any, representing
such stock, together with stock powers duly executed in blank, are
delivered to the Collateral Agent, (iii) such new Subsidiary (other
than a Foreign Subsidiary except to the extent otherwise required
pursuant to Section 7.16) executes a counterpart of the Subsidiary
Guaranty, the Pledge 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)
the Receivables Entity may become a Subsidiary of the U.S. Borrower.
In addition, each new Wholly-Owned Subsidiary (other than the
Receivables Entity) 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 Effective
Date.
(b) The U.S. Borrower will not, nor will the U.S. Borrower
permit any of its Subsidiaries to, enter into any Joint Venture,
except to the extent permitted by Section 8.06(z).
8.15 German Stock Corporation. The German Borrower will
not change its legal form to a German stock corporation without the
consent of the Administrative Agent.
SECTION 9. Events of Default. Upon the occurrence of any
of the following specified events (each, an "Event of Default"):
9.01 Payments. Any Borrower shall (i) default in the
payment when due of any principal of the Loans or (ii) default, and
such default shall continue for three or more days, in the payment
when due of any Unpaid Drawing, any interest on the Loans or any Fees
or any other amounts owing hereunder or under any other Credit
Document; or
9.02 Representations, etc. Any representation, warranty
or statement made by Holdings, any Borrower or any other Credit Party
herein or in any other Credit Document or in any statement or
certificate delivered pursuant hereto or thereto shall prove to be
untrue in any material respect on the date as of which made or deemed
made; or
<PAGE>
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 7.11, 7.14, 7.17, 7.18 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 the Administrative
Agent or the Required Banks; or
9.04 Default Under Other Agreements. (a) Holdings 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; or (b) any Indebtedness (other than the Obligations)
of Holdings 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
$20,000,000 at any one time; or
9.05 Bankruptcy, etc. Holdings or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of
the United States Code entitled "Bankruptcy," as now or hereafter in
effect, or any successor thereto (the "Bankruptcy Code"); or an
involuntary case is commenced against Holdings or any of its
Subsidiaries and the petition is not controverted within 10 days, or
is not dismissed within 60 days, after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of Holdings
or any of its Subsidiaries; or Holdings or any of its Subsidiaries
commences any other proceeding under any reorganization, 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 Holdings or any of its Subsidiaries;
or there is commenced against Holdings or any of its Subsidiaries any
such proceeding which remains undismissed for a period of 60 days; or
Holdings or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; or Holdings or any of its Subsidiaries
suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed
for a period of 60 days; or Holdings or any of its Subsidiaries makes
a general assignment for the benefit of creditors; or any corporate
action is taken by Holdings or any of its Subsidiaries for the
purpose of effecting any of the foregoing; or
<PAGE>
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 or is likely to have a trustee appointed to administer such
Plan, any Plan is, shall have been or is likely to be terminated or
the subject of termination proceedings under ERISA, a Reportable
Event shall have occurred, a contributing sponsor (as defined in
Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA
shall be subject to the advance reporting requirement of PBGC
Regulation Section 4043.61 (without regard to subparagraph (b)(10
thereof) and an event described in subsections .62, .63, .64, .65,
.66, .67 or .68 of PBGC Regulation Section 4043 shall be reasonably
expected to occur with respect to such Plan within the following 30
days, 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, Holdings or any Subsidiary of Holdings 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, Holdings or any Subsidiary of
Holdings has incurred or is likely to incur liabilities pursuant to
one or more employee welfare benefit plans (as defined in Section
3(1) of ERISA) which provide benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or
employee pension benefit plans (as defined in Section 3(2) of ERISA)
or Foreign Pension Plans or a "default" within the meaning of Section
4219(c)(5) of ERISA shall occur with respect to any Plan; (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, in the opinion
of the Required Banks, will have a Material Adverse Effect; or
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 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, or
(b) any Credit Party shall default in the due performance or
observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any such Security Document and such
default shall continue beyond any cure or grace period specifically
applicable thereto pursuant to the terms of such Security Document;
or
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
material term, covenant or agreement on its part to be performed or
observed pursuant to any Guaranty; or
<PAGE>
9.09 Judgments. One or more judgments or decrees shall be
entered against Holdings or any of its Subsidiaries involving a
liability (not paid or not fully covered by insurance) in excess of
$20,000,000 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; or
9.10 Ownership. A Change of Control Event shall have
occurred; or
9.11 Accounts Receivable Facility. At any time after the
Accounts Receivable Facility Transaction Date, an early amortization
event shall occur under the Accounts Receivable Facility Documents;
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 U.S. Borrower, take any or all of the following actions, without
prejudice to the rights of the Administrative 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 U.S. Borrower, 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 (or the
unutilized portion thereof) terminated, whereupon the Commitment of
each Bank (or the unutilized portion thereof) shall forthwith
terminate immediately and any Commitment Fees shall forthwith become
due and payable without any other notice of any kind; (ii) declare
the principal of and any accrued interest in respect of all Loans and
all Obligations owing hereunder (including Unpaid Drawings) to be,
whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by each Borrower; (iii) enforce, as
Collateral Agent (or direct the Collateral Agent to enforce), any or
all of the Liens and security interests created pursuant to the
Security Documents; (iv) terminate any Letter of Credit which may be
terminated in accordance with its terms; and (v) direct each Borrower
to pay (and each Borrower 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 such
Borrower's reimbursement obligations in respect of Letters of Credit
then outstanding, equal to the aggregate Stated Amount of all Letters
of Credit then outstanding.
SECTION 10. Definitions. As used herein, the following
terms shall have the meanings herein specified unless the context
otherwise requires. Defined terms in this Agreement shall include in
the singular number the plural and in the plural the singular:
"A Revolving Loan" shall have the meaning provided in
Section 1.01(A)(d).
<PAGE>
"A Revolving 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 "A Revolving Loan Commitment," as
the same may be reduced from time to time pursuant to Section 3.02,
3.03, 4.01(b) and/or 9 or otherwise modified pursuant to Section 1.13
and/or 12.04(b).
"A Revolving Loan Facility" shall mean the Facility
evidenced by the Total A Revolving Loan Commitment.
"A Revolving Loan Maturity Date" shall mean June 30, 2005.
"A Revolving Note" shall have the meaning provided in
Section 1.05(a).
"A RL Bank" shall mean at any time each Bank with an A
Revolving Loan Commitment or outstanding A Revolving Loans.
"A RL Mandatory Borrowing" shall have the meaning provided
in Section 1.01(C).
"A RL Percentage" shall mean at any time for each A RL
Bank, the percentage obtained by dividing such A RL Bank's A
Revolving Loan Commitment by the Total A Revolving Loan Commitment;
provided, that if the Total A Revolving Loan Commitment has been
terminated, the A RL Percentage of each A RL Bank shall be determined
by dividing such A RL Bank's A Revolving Loan Commitment immediately
prior to such termination by the Total A Revolving Loan Commitment
immediately prior to such termination.
"A Swingline Expiry Date" shall mean the date which is five
Business Days prior to the A Revolving Loan Maturity Date.
"A Swingline Loan" shall have the meaning provided in
Section 1.01(B).
"A Swingline Note" shall have the meaning provided in
Section 1.05(a).
"A Term Loan" shall have the meaning provided in Section
1.01(A)(a).
"A Term Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name in Annex I
directly below the column entitled "A Term Loan Commitment," as the
same may be reduced or terminated pursuant to Section 3.03 and/or 9
or otherwise modified pursuant to Section 1.13 and/or 12.04(b).
"A Term Loan Facility" shall mean the Facility evidenced by
the Total A Term Loan Commitment.
"A Term Loan Maturity Date" shall mean June 30, 2005.
"A Term Note" shall have the meaning provided in Section
1.05(a).
<PAGE>
"A 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 A Term Loans outstanding at such
time and the denominator of which is equal to the aggregate principal
amount of all Term Loans outstanding at such time.
"Accounts Receivable Facility" shall mean the transactions
contemplated by the Accounts Receivable Facility Purchase Agreement.
"Accounts Receivable Facility Documents" shall mean the
Accounts Receivable Facility Pooling and Servicing Agreement, the
Accounts Receivable Facility Purchase Agreement, the Accounts
Receivable Facility Revolving Certificate Purchase Agreement and each
of the other documents and agreements entered into in connection
therewith, including all documents and agreements relating to the
issuance, funding and/or purchase of Investor Certificates and
Purchased Interests, in each case as such documents and agreements
may be amended, modified, supplemented, refinanced or replaced from
time to time so long as (i) any such amendments, modifications,
supplements, refinancing or replacements do not impose any conditions
or requirements on Holdings or any of its Subsidiaries that are more
restrictive in any material respect than those in existence on the
Accounts Receivable Facility Transaction Date, (ii) any such
amendments, modifications, supplements, refinancings or replacements
are not adverse to the interests of the Banks and (iii) any such
amendments, modifications, supplements, refinancing or replacements
are otherwise in form and substance reasonably satisfactory to the
Administrative Agent.
"Accounts Receivable Facility Pooling and Servicing
Agreement" shall mean the Pooling and Servicing Agreement, among the
Receivables Entity, as transferor, the U.S. Borrower, as servicer,
and the Trustee, as the same may be amended, modified, supplemented,
refinanced or replaced from time to time in accordance with the terms
thereof and hereof, which Accounts Receivable Facility Pooling and
Servicing Agreement shall be in form and substance reasonably
satisfactory to the Administrative Agent and the Required Banks.
"Accounts Receivable Facility Proceeds" shall mean the
initial net invested amount of Investor Certificates in respect of
the Accounts Receivable Facility on the Accounts Receivable Facility
Transaction Date, which amount shall be satisfactory to the
Administrative Agent and the Required Banks.
"Accounts Receivable Facility Purchase Agreement" shall
mean the Receivables Purchase Agreement, among the U.S. Borrower and
the other Designated Credit Parties, as sellers, and the Receivables
Entity, as buyer, as the same may be amended, modified, supplemented,
refinanced or replaced from time to time in accordance with the terms
thereof and hereof, which Accounts Receivable Facility Purchase
Agreement shall be in form and substance reasonably satisfactory to
the Administrative Agent and the Required Banks.
<PAGE>
"Accounts Receivable Facility Revolving Certificate
Purchase Agreement" shall mean the Revolving Certificate Purchase
Agreement, among the Receivables Entity, the U.S. Borrower, as the
initial servicer, the purchasers party thereto, and BTCo, as Agent,
as the same may be amended, modified, supplemented, refinanced or
replaced from time to time in accordance with the terms thereof and
hereof, which Revolving Certificate Purchase Agreement shall be in
form and substance reasonably satisfactory to the Administrative
Agent and the Required Banks.
"Accounts Receivable Facility Transaction" shall mean the
consummation of the Accounts Receivable Facility and related
transactions contemplated by the Accounts Receivable Facility
Documents.
"Accounts Receivable Facility Transaction Date" shall mean
the date of the consummation of the Accounts Receivable Facility
Transaction in accordance with the requirements of Section 7.18.
"Acquired Business" shall mean any Person, assets or
business division or product line acquired pursuant to a Permitted
Acquisition.
"Acquired EBITDA" shall mean, for any Acquired Business for
any period, the Consolidated EBITDA as determined for such Acquired
Business on a basis substantially the same (with necessary reference
changes) as provided in the definition of Consolidated EBITDA
contained herein, except that all references in the Agreement and in
the component definitions used in determining Consolidated EBITDA to
"Holdings and its Subsidiaries" or "the U.S. Borrower and its
Subsidiaries" shall be deemed to be references to the respective
Acquired Business. All calculations of Acquired EBITDA shall be made
on a Pro Forma Basis (for such purpose treating each reference to
"Consolidated EBITDA" contained in the definition of Pro Forma Basis
as if it were a reference to "Acquired EBITDA").
"Additional Security Documents" shall have the meaning
provided in Section 7.11.
"Adjusted Leverage Ratio" shall mean, on any date, the
ratio of (i) Consolidated Debt on such date (excluding any
Indebtedness under the Accounts Receivable Facility to the extent
otherwise included in Consolidated Debt) to (ii) Consolidated EBITDA
for the Test Period most recently ended on or prior to such date.
All calculations of the Adjusted Leverage Ratio shall be made on a
Pro Forma Basis, with determinations of Adjusted Leverage Ratio to
give effect to all adjustments contained in the definition of "Pro
Forma Basis" contained herein.
"Administrative Agent" shall mean BTCo and shall include
any successor to the Administrative Agent appointed pursuant to
Section 11.10.
<PAGE>
"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 5% 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.
"Agents" shall mean the Administrative Agent and the
Syndication Agent, except in Section 11, in which case its meaning
shall include the Co-Documentation Agents.
"Aggregate Net Invested Amount" shall have the meaning
provided in Section 3.03(e).
"Aggregate Unutilized U.S. Commitment" with respect to any
Bank at any time shall mean the sum of (i) such Bank's A Term Loan
Commitment at such time, if any, (ii) such Bank's B Term Loan
Commitment at such time, if any, (iii) such Bank's C Term Loan
Commitment at such time, if any, and (iv) such Bank's A Revolving
Loan Commitment at such time less the sum of (x) the aggregate
outstanding principal amount of all A Revolving Loans made by such
Bank and (y) such Bank's A RL Percentage of the Letter of Credit
Outstandings at such time.
"Aggregate Unutilized B Revolving Loan Commitment" with
respect to any Bank at any time shall mean such Bank's B Revolving
Loan Commitment at such time less the sum of the aggregate
outstanding principal amount of all B Revolving Loans made by such
Bank.
"Agreement" shall mean this Credit Agreement, as the same
may be from time to time modified, amended and/or supplemented.
"Alternate B Currency" shall mean each Approved Currency
other than Euros.
"Alternate B Currency Loan" shall mean any B Revolving Loan
or B Swingline Loan denominated in an Alternate B Currency.
"Alternate Vendor Financing Program" shall mean a vendor
financial services program between the U.S. Borrower and/or one or
more Subsidiaries of the U.S. Borrower and a financial institution
pursuant to which the U.S. Borrower and/or such Subsidiary effects
Seeded Instrument Transactions with such financial institution and
third party customers of the U.S. Borrower and/or such Subsidiary.
<PAGE>
"Applicable Commitment Fee Percentage" initially shall mean
0.50% per annum, and "Applicable Margin" initially shall mean a
percentage per annum equal to (i) in the case of Revolving Loans,
Swingline Loans and A Term Loans maintained as (x) Base Rate Loans,
1.50% and (y) Euro Rate Loans, 2.50%, (ii) in the case of B Term
Loans maintained as (x) Base Rate Loans, 1.875% and (y) Euro Rate
Loans, 2.875% and (iii) in the case of C Term Loans maintained as (x)
Base Rate Loans, 2.125% and (y) Euro Rate Loans, 3.125%. From and
after each day of delivery of any certificate delivered in accordance
with the first sentence of the following paragraph indicating a
different commitment fee percentage and margin than that described in
the immediately preceding sentence (each, a "Start Date") to and
including the applicable End Date described below, the Applicable
Commitment Fee Percentage and Applicable Margin shall (subject to any
adjustment pursuant to the immediately succeeding paragraph, as
applicable) be that set forth below opposite the Adjusted Leverage
Ratio indicated to have been achieved in any certificate delivered in
accordance with the following sentence:
Applicable Margins
Adjusted Revolving Loans/ Applicable
Leverage Swingline Loans/ Commitment
Ratio A Term Loans B Term Loans C Term Loans Fee Percentage
Euro Base Euro Base Euro Base
Rate Rate Rate Rate Rate Rate
Greater
than or
equal to 2.50% 1.50% 2.875% 1.875% 3.125% 2.125% 0.50%
4.25:1.00
Less than
4.25:1.0 2.25% 1.25% 2.75% 1.75% 3.00% 2.00% 0.375%
but greater
than or
equal to
3.50:1.00
Less than
3.50:1.00 2.00% 1.00% 2.75% 1.75 3.00% 2.00% 0.30%
but greater
than or
equal to
3.00:1.00
Less than 1.75% 0.75% 2.50% 1.50 2.75% 1.75% 0.25%
3.00:1.00
<PAGE>
The Adjusted Leverage Ratio shall be determined based on the
delivery of a certificate of the U.S. Borrower by an Authorized
Officer of the U.S. Borrower to the Administrative Agent (with a copy
to be sent by the Administrative Agent to each Bank), within 45 days
of the last day of any fiscal quarter of the Borrower, which
certificate shall set forth the calculation of the Adjusted Leverage
Ratio as at the last day of the Test Period ended immediately prior
to the relevant Start Date and the Applicable Commitment Fee
Percentage and Applicable Margins which shall be thereafter
applicable (until same are changed or cease to apply in accordance
with the following sentences). The Applicable Commitment Fee
Percentage and Applicable Margins so determined shall apply, except
as set forth in the succeeding sentence, from the relevant Start Date
to the earlier of (x) the date on which the next certificate is
delivered to the Administrative Agent and (y) the date which is 45
days following the last day of the Test Period in which the previous
Start Date occurred (such earlier date, the "End Date"), at which
time, if no certificate has been delivered to the Administrative
Agent indicating an entitlement to a new Applicable Commitment Fee
Percentage and new Applicable Margins (and thus commencing a new
Start Date), the Applicable Commitment Fee Percentage and Applicable
Margins shall be those set forth in the table above determined as if
the Adjusted Leverage Ratio were greater than 4.25:1.00 (such
Applicable Commitment Fee Percentage and Applicable Margins as so
determined, the "Highest Applicable Margins"). Notwithstanding
anything to the contrary contained above in this definition, (x) the
Applicable Commitment Fee Percentage and Applicable Margins shall be
the Highest Applicable Margins at all times during which there shall
exist any Default or Event of Default, and (y) prior to the earlier
to occur of (i) the date of delivery of the financial statements
pursuant to Section 7.01(c) for the fiscal year ended December 31,
1999 and (ii) the first delivery of the officer's certificate
referred to in the first sentence of this paragraph after the fiscal
year ended December 31, 1999, in no event shall the Applicable
Commitment Fee Percentage and the Applicable Margins be less than
those described in the first sentence of this definition.
"Applicable Prepayment Percentage" shall mean, at any time,
(i) for purposes of Section 4.02(A)(c), 75%, provided that (x) if at
any time the Adjusted Leverage Ratio is less than 3.50:1.00 (as
established pursuant to the officer's certificate then most recently
delivered pursuant to Section 7.01(e)), the Applicable Prepayment
Percentage for purposes of Section 4.02(A)(c) shall instead be 50%
and (y) if at any time the Adjusted Leverage Ratio is less than
3.00:1.00 (as established pursuant to the officer's certificate then
most recently delivered pursuant to Section 7.01(e)), the Applicable
Prepayment Percentage for purposes of Section 4.02(A)(c) shall
instead be 0%, and (ii) for purposes of Section 4.02(A)(f), 50%,
provided that if at any time the Adjusted Leverage Ratio is less than
4.00 to 1.00 (as established pursuant to the officer's certificate
then most recently delivered pursuant to Section 7.01(e)), the
Applicable Prepayment Percentage for purposes of Section 4.02(A)(f)
shall instead be 0%.
"Approved Currency" shall mean each of U.S. Dollars,
Deutsche Marks, Euros and any other freely transferable currency
requested by a Borrower and acceptable to all of the B RL Banks and
the Administrative Agent.
<PAGE>
"Approved Currency Equivalent" shall mean the U.S. Dollar
Equivalent, the Deutsche Mark Equivalent, the Euro Equivalent or the
comparable equivalent of any other Foreign Currency, as the case may
be.
"Asset Sale" shall mean any sale, transfer or other
disposition by Holdings or any of its Subsidiaries to any Person
other than the U.S. Borrower or any Wholly-Owned Subsidiary of the
U.S. Borrower of any asset (including, without limitation, any
capital stock or other securities of another Person) of Holdings or
such Subsidiary other than (i) sales, transfers or other dispositions
of inventory made in the ordinary course of business and (ii) sales
of assets pursuant to Section 8.02(b), (e), (f), (g), (k), (o), (q),
(r), (y), (z), (aa) and (bb).
"Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement substantially in the form of
Exhibit K (appropriately completed).
<PAGE>
"Authorized Officer" shall mean the Chief Executive
Officer, President, Chief Financial Officer, Treasurer, Controller or
Secretary or any other senior officer of Holdings or the
U.S. Borrower designated as such in writing to the Administrative
Agent by Holdings or the U.S. Borrower, in each case to the extent
reasonably acceptable to the Administrative Agent.
"B Banks" shall have the meaning provided in Section
4.02(C).
"B Revolving Loan" shall have the meaning provided in
Section 1.01(D).
"B Revolving 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 Revolving Loan Commitment," as
the same may be reduced from time to time pursuant to Section 3.02,
3.03, 4.01(b) and/or 9 or otherwise modified pursuant to Section 1.13
and/or 12.04(b).
"B Revolving Loan Facility" shall mean the Facility
evidenced by the Total B Revolving Loan Commitment.
"B Revolving Loan Maturity Date" shall mean June 30, 2005.
"B Revolving Note" shall have the meaning provided in
Section 1.05(a).
"B RL Bank" shall mean at any time each Bank with a B
Revolving Loan Commitment or outstanding B Revolving Loans.
"B RL Commitment Fee" shall have the meaning provided in
Section 3.01(b).
"B RL Mandatory Borrowing" shall have the meaning provided
in Section 1.01(F).
<PAGE>
"B RL Percentage" shall mean at any time for each B RL
Bank, the percentage obtained by dividing such B RL Bank's B
Revolving Loan Commitment by the Total B Revolving Loan Commitment;
provided, that if the Total B Revolving Loan Commitment has been
terminated, the B RL Percentage of each B RL Bank shall be determined
by dividing such B RL Bank's B Revolving Loan Commitment immediately
prior to such termination by the Total B Revolving Loan Commitment
immediately prior to such termination.
"B Swingline Expiry Date" shall mean the date which is five
Business Days prior to the B Revolving Loan Maturity Date.
"B Swingline Loan" shall have the meaning provided in
Section 1.01(E).
"B Swingline Note" shall have the meaning provided in
Section 1.05(a).
"B Term Loan" shall have the meaning provided in Section
1.01(A)(b).
"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 9 or otherwise
modified pursuant to Section 1.13 and/or 12.04(b).
"B Term Loan Facility" shall mean the Facility evidenced by
the Total B Term Loan Commitment.
"B Term Loan Maturity Date" shall mean June 30, 2006.
"B Term Note" shall have the meaning provided in Section
1.05(a).
"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 aggregate principal
amount of all Term Loans outstanding at such time.
"Bain Capital" shall mean Bain Capital, Inc. a Delaware
corporation.
"Bank" shall have the meaning provided in the first
paragraph of this Agreement; it being understood that for purposes of
Sections 1.10, 1.11 and 2.05, the term "Bank" as used herein shall in
any event include BTCo in its capacity as a Fronting Bank.
<PAGE>
"Bank Default" shall mean (i) the refusal (which has not
been retracted) of a Bank to make available its portion of any
Borrowing (including any Mandatory Borrowing) or to fund its portion
of any unreimbursed payment under Section 2.04(c) or (ii) a Bank
having notified the Administrative Agent, the U.S. Borrower and/or
the German Borrower that it does not intend to comply with the
obligations under Section 1.01(A)(d), 1.01(C), 1.01(D), 1.01(F) 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" at any time shall mean the higher of (x) the
rate which is 1/2 of 1% in excess of the Federal Funds Rate and (y)
the Prime Lending Rate.
"Base Rate Loan" shall mean each U.S. Loan designated or
deemed designated as such by the U.S. Borrower at the time of the
incurrence thereof or conversion thereto.
"Baxter" shall mean Baxter Healthcare Corporation, a
Delaware corporation.
"Baxter Acquisition" shall mean the acquisition by the
Borrower and its Subsidiaries of the in vitro diagnostics business of
Baxter Diagnostics, Inc. in December, 1994.
"Baxter Acquisition Documents" shall mean the documents and
instruments governing the terms of the Baxter Acquisition.
"Baxter PIK Note Documents" shall mean and include each of
the documents and other agreements entered into (including, without
limitation, the Baxter PIK Notes) relating to the issuance by
Holdings of the Baxter PIK Notes, as in effect on December 20, 1994
(to the extent thereof) and as the same may be entered into,
modified, supplemented or amended from time to time pursuant to the
terms hereof and thereof.
"Baxter PIK Notes" shall mean unsecured junior subordinated
notes issued by Holdings (and not guaranteed or supported in any way
by the U.S. Borrower or any of its Subsidiaries or any other Person)
in favor of Baxter, in the form of Exhibit M.
"Baxter Preferred Stock" shall mean the preferred stock of
Holdings held by Baxter and having an original aggregate liquidation
preference of not more than $40,000,000 and an aggregate liquidation
preference as of the Effective Date of not more than $10,000,000 plus
accrued dividends, in the form attached hereto as Exhibit O, as
amended modified or supplemented from time to time in accordance with
the terms hereof and thereof.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
<PAGE>
"Borrowing" shall mean the incurrence of one Type of Loan
pursuant to a single Facility by a Borrower from all of the Banks
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 Euro Rate Loans the same Interest Period;
provided, that Base Rate Loans incurred pursuant to Section 1.10(b)
shall be considered part of any related Borrowing of Eurodollar
Loans.
"BTCo" shall mean Bankers Trust Company, in its individual
capacity, and any successor corporation thereto by merger,
consolidation or otherwise.
"Business Day" shall mean (i) for all purposes other than
as covered by clause (ii) below, any day excluding Saturday, Sunday
and any day which shall be in the City of New York a legal holiday or
a day on which banking institutions are authorized by law or other
governmental actions to close, and (ii) with respect to all notices
and determinations in connection with, and payments of principal and
interest on, Euro Rate Loans, any day which is a Business Day
described in clause (i) and which is also a day for trading by and
between banks in the London interbank market and, with respect to any
notices or determinations in respect of Euros, which is customarily a
"Business Day" for such notices or determinations.
"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)(c).
"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 9 or otherwise
modified pursuant to Section 1.13 and/or 12.04(b).
"C Term Loan Facility" shall mean the Facility evidenced by
the Total C Term Loan Commitment.
"C Term Loan Maturity Date" shall mean June 30, 2007.
"C Term Note" shall have the meaning provided in Section
1.05(a).
"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 aggregate principal
amount of all Term Loans outstanding at such time.
"Calculation Period" shall have the meaning provided in
Section 8.02(s).
<PAGE>
"Capital Expenditures" shall mean, with respect to any
Person, without duplication, all expenditures by such Person which
should be capitalized in accordance with GAAP, including, without
duplication, all such expenditures with respect to fixed or capital
assets (including, without limitation, expenditures for maintenance
and repairs which should be capitalized in accordance with GAAP), all
such expenditures relating to instruments leased to, rented to, or
otherwise seeded to, customers and the amount of all Capitalized
Lease Obligations incurred by such Person.
"Capital Lease," as applied to any Person, shall mean any
lease of any property (whether real, personal or mixed) by that
Person as lessee which, in conformity with GAAP, is accounted for as
a capital lease on the balance sheet of that Person.
"Capitalized Lease Obligations" shall mean all obligations
under Capital Leases of the U.S. Borrower 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 twelve months
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 whose short-term commercial paper rating from
Standard & Poor's Corporation ("S&P") is at least A-1 or the
equivalent thereof or from Moody's Investors Service, Inc.
("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 twelve months 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-2 or the equivalent thereof by S&P or at
least P-2 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 twelve months 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 twelve months 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.
<PAGE>
"Change of Control Event" shall mean (I) at any time prior
to a broadly distributed initial public offering of Holdings Common
Stock, (a) Holdings shall cease to own directly 100% on a fully
diluted basis of the economic and voting interest in the U.S.
Borrower's capital stock, (b) the U.S. Borrower shall cease to own
directly 100% on a fully diluted basis of the economic and voting
interest in the German Borrower's capital stock, (c) any Person or
"group" (within the meaning of Rule 13d-5 of the Securities Exchange
Act of 1934, as in effect on the date hereof), other than Bain
Capital, GS Capital, Hoechst and/or their respective Affiliates or
Related Parties and management of Holdings and its Subsidiaries,
shall (i) have acquired beneficial ownership of 51% or more on a
fully diluted basis of the economic and voting interest in Holdings'
capital stock or (ii) have obtained the power (whether or not
exercised) to elect a majority of Holdings' directors, (d) Bain
Capital, its Related Parties and Hoechst shall collectively cease to
have the power, contractual or otherwise, to elect a majority of
Holdings' directors, (e) a "Change of Ownership" or similar event
shall occur as provided in the Baxter PIK Notes or the Baxter
Preferred Stock, so long as any Baxter PIK Notes or any Baxter
Preferred Stock, as the case may be, is outstanding or (f) any
"Change of Control" as such term is defined in the Senior
Subordinated Note Indenture, or any successor or similar provision,
shall occur or (II) at any time on or after a broadly distributed
initial public offering of Holdings Common Stock, (a) Holdings shall
cease to own directly 100% on a fully diluted basis of the economic
and voting interest in the U.S. Borrower's capital stock, (b) the
U.S. Borrower shall cease to own directly 100% on a fully diluted
basis of the economic and voting interest in the German Borrower's
capital stock, (c) any Person or "group" (within the meaning of Rule
13d-5 of the Securities Exchange Act of 1934, as in effect on the
date hereof), other than Bain Capital, GS Capital, Hoechst and/or
their respective Affiliates or Related Parties and management of
Holdings or any of its Subsidiaries, shall (i) have acquired
beneficial ownership of 30% or more on a fully diluted basis of the
economic and voting interest in Holdings' capital stock or (ii) have
obtained the power (whether or not exercised) to elect a majority of
Holdings' directors, (d) a "Change of Ownership" or similar event
shall occur as provided in the Baxter PIK Notes or the Baxter
Preferred Stock, so long as any Baxter PIK Notes or any Baxter
Preferred Stock, as the case may be, is outstanding or (e) any
"Change of Control" as such term is defined in the Senior
Subordinated Note Indenture, or any successor or similar provision,
shall occur.
"Co-Documentation Agents" shall have the meaning provided
in the first paragraph of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to the Code are to the
Code, as in effect at the date of this Agreement and any subsequent
provisions of the Code amendatory thereof, supplemental thereto or
substituted therefor.
"Collateral" shall mean all of the Collateral as defined in
each of the Security Documents.
<PAGE>
"Collateral Agent" shall mean the Administrative Agent
acting as collateral agent for the Secured Creditors.
"Collective Bargaining Agreements" shall have the meaning
provided in Section 5.14.
"Commitment" shall mean, with respect to each Bank, such
Bank's A Term Loan Commitment, B Term Loan Commitment, C Term Loan
Commitment, A Revolving Loan Commitment and B Revolving Loan
Commitment.
"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 U.S. Borrower
and its Subsidiaries (including, without duplication, the interests
in accounts receivable represented by the transferor certificate held
by the Receivables Entity) at such time determined on a consolidated
basis.
"Consolidated Current Liabilities" shall mean, at any time,
the current liabilities of the U.S. Borrower and its Subsidiaries
determined on a consolidated basis, but excluding (i) deferred income
taxes, (ii) 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 and (iii)
short-term borrowings of Foreign Subsidiaries unless the proceeds
thereof are used to finance current assets of such Foreign
Subsidiaries.
"Consolidated Debt" shall mean, at any time, the remainder
of (x) all Indebtedness of the U.S. Borrower and its Subsidiaries
determined on a consolidated basis (excluding Indebtedness arising
pursuant to deferred warranties or contracts or other similar
obligations and any deferred revenue under the Vendor Financing
Program or the Alternate Vendor Financing Program) less (y) all cash
and Cash Equivalents held by the U.S. Borrower and its Subsidiaries
at such time. Notwithstanding the foregoing, for purposes of
obtaining the ability to pay cash interest on the Baxter PIK Notes
pursuant to Section 8.07(v), the U.S. Borrower may elect (but shall
not be obligated) to include the Baxter PIK Notes as Consolidated
Debt at any time.
<PAGE>
"Consolidated EBIT" shall mean, for any period,
Consolidated Net Income, before (i) total interest expense (inclusive
of amortization of deferred financing fees and any other original
issue discount) of the U.S. Borrower and its Subsidiaries determined
on a consolidated basis, (ii) the write-off of inventory step-up and
in-process research and development costs in accordance with purchase
accounting, (iii) any non-cash charges deducted in determining
Consolidated Net Income for such period, (iv) any non-recurring cash
charges deducted in determining Consolidated Net Income for such
period, (v) provisions for taxes based on income and foreign
withholding taxes, and determined 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,
(vi) Restructuring Expenditures deducted in determining Consolidated
Net Income for such period, and (vii) fees and expenses incurred in
connection with the Transaction, the issuance of Indebtedness or
equity, Permitted Acquisitions, Dividends or asset sales or other
divestitures, in each case to the extent deducted in determining
Consolidated Net Income for such period.
"Consolidated EBITDA" shall mean, for any period,
Consolidated EBIT, adjusted by adding thereto the amount of all
depreciation expense and amortization expense that were deducted in
determining Consolidated EBIT for such period.
"Consolidated Interest Coverage Ratio" for any period shall
mean the ratio of Consolidated EBITDA to Consolidated Interest
Expense for such period. All calculations of the Consolidated
Interest Coverage Ratio shall be made on a Pro Forma Basis, with
determinations of Consolidated Interest Coverage Ratio to give effect
to all adjustments contained in the definition of "Pro Forma Basis"
contained herein.
"Consolidated Interest Expense" shall mean, for any period,
total interest expense (including that attributable to Capital Leases
in accordance with GAAP) of the U.S. Borrower and its Subsidiaries
(net of interest income) determined on a consolidated basis with
respect to all outstanding Indebtedness of the U.S. Borrower and its
Subsidiaries, including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters of
credit and bankers' acceptance financing and net costs or benefits
under Interest Rate Protection Agreements, but excluding, however,
amortization of any payments made to obtain any Interest Rate
Protection Agreements, original issue discounts and deferred
financing costs and any interest expense on deferred compensation
arrangements to the extent included in total interest expense.
Notwithstanding anything to the contrary contained above, to the
extent Consolidated Interest Expense is to be determined for any Test
Period which ends prior to the first anniversary of the Initial
Borrowing Date, Consolidated Interest Expense for all portions of
such period occurring prior to the Initial Borrowing Date shall be
calculated in accordance with the definition of Test Period contained
herein. Notwithstanding the foregoing, for purposes of obtaining the
ability to pay cash interest on the Baxter PIK Notes and/or cash
dividends on the Baxter Preferred Stock pursuant to Section 8.07(v)
or 8.07(vi), respectively, the U.S. Borrower may elect (but shall not
be obligated) to include an accrued portion of such cash interest or
dividends as Consolidated Interest Expense for any period.
<PAGE>
"Consolidated Net Income" shall mean, for any period, the
net income (or loss), after provision for taxes, of the U.S. Borrower
and its Subsidiaries (including as a Subsidiary for this purpose the
Receivables Entity although the definition of Subsidiary might
require otherwise) on a consolidated basis for such period taken as a
single accounting period, provided that the following items shall be
excluded in computing Consolidated Net Income (without duplication):
(i) any unrealized losses and gains for such period resulting from
mark-to-market of Other Hedging Agreements and any tender premiums or
consent fees paid and any write off of deferred financing costs
incurred as a result of any refinancing of Indebtedness permitted
hereunder, (ii) the net income or net losses of any Person in which
any other Person or Persons (other than Holdings and its Wholly-Owned
Subsidiaries) has an equity interest or interests, except to the
extent of the amount of dividends or other distributions actually
paid to Holdings or such Wholly-Owned Subsidiaries by such Person
during such period, (iii) except for determinations expressly
required to be made on a Pro Forma Basis, the net income (or loss) of
any Person accrued prior to the date it becomes a Subsidiary or all
or substantially all of the property or assets of such Person are
acquired by a Subsidiary and (iv) the net income of any Subsidiary to
the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary of such net income is not at the
time permitted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary.
"Consulting Agreement" shall mean, collectively, (i) the
Advisory Agreement, dated as of December 20, 1994, by and among
Holdings, the U.S. Borrower and Bain Capital, as amended, modified or
supplemented from time to time, in accordance with the terms hereof
and thereof and (ii) the Advisory Agreement, dated as of December 20,
1994, by and among Holdings, the U.S. Borrower and GS Capital, as
amended, modified or supplemented from time to time, in accordance
with the terms hereof and thereof.
"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
<PAGE>
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.
"Credit Documents" shall mean this Agreement, the Notes,
the Guaranties, and each Security Document.
"Credit Event" shall mean the making of a Loan (other than
a Revolving Loan made pursuant to a Mandatory Borrowing) or the
issuance of a Letter of Credit.
"Credit Party" shall mean Holdings, the U.S. Borrower, the
German Borrower and each U.S. Subsidiary Guarantor.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of
Default.
"Defaulting Bank" shall mean any Bank with respect to which
a Bank Default is in effect.
"Designated Credit Parties" shall mean the U.S. Borrower
and those Subsidiary Guarantors that are from time to time party to
the Accounts Receivable Facility Documents.
"Designated Working Capital Debt" shall have the meaning
provided in Section 8.03(p).
"Deutsche Mark Equivalent" shall mean, at any time for the
determination thereof, the amount of Deutsche Marks which could be
purchased with the amount of Euros involved in such computation at
the spot exchange rate therefor as quoted by BTCo as of 11:00 A.M.
(London time) on the date two Business Days prior to the date of any
determination thereof for purchase on such date.
<PAGE>
"Deutsche Mark LIBOR" shall mean, in respect of Deutsche
Marks for an Interest Period, (I) in the case of a B Revolving Loan,
the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to the beginning of the relevant Interest Period
(as specified in the applicable Notice of Borrowing or Notice of
Conversion) by reference to page 3750 of the Dow Jones Markets Screen
and/or any successor page for deposits in Deutsche Marks for a period
equal to such Interest Period (rounded, if necessary, upward to the
nearest whole multiple of 1/16th of 1%); provided that, to the extent
that an interest rate is not ascertainable pursuant to the foregoing
provisions of this definition, the "Deutsche Mark LIBOR" shall be the
interest rate per annum determined by the Administrative Agent to be
the rate (rounded, if necessary, upward to the nearest whole multiple
of 1/16th of 1% per annum, if such average is not such a multiple)
per annum at which deposits in Deutsche Marks are offered for such
relevant Interest Period to major banks in the London interbank
market in London, England by BTCo at approximately 11:00 a.m. (London
time) on the date which is two Business Days prior to the beginning
of such Interest Period and (II) in the case of a B Swingline Loan,
the interest rate per annum determined by the Administrative Agent to
be the highest rate (rounded, if necessary, upward to the nearest
whole multiple of one-sixteenth of one percent per annum, if such
average is not a multiple) per annum in which deposits in Deutsche
Marks are offered for such relevant Interest Period by BTCo in the
London interbank market in London, England by BTCo 11 a.m. (London
time) on the Business Day commencing such Interest Period.
Notwithstanding anything to the contrary contained above, in the
event the Administrative Agent has made any determination pursuant to
Section 1.10(a)(i) in respect of B Revolving Loans or B Swingline
Loans denominated in Deutsche Marks, or in the circumstances
described in clause (i) to the proviso to Section 1.10(b) in respect
to B Revolving Loans or B Swingline Loans denominated in Deutsche
Marks, the Deutsche Mark LIBOR determined pursuant to this definition
shall instead be the rate determined by BTCo as the all-in-cost of
funds for BTCo to fund a B Revolving Loan or a B Swingline Loan
denominated in Deutsche Marks with maturities comparable to the
Interest Period applicable thereto.
"Deutsche Marks" shall mean the freely transferable lawful
money of Germany.
"Distribution Agreement" shall mean the Amended and
Restated Exclusive Distribution Agreement, dated as of December 19,
1994, as amended and restated in its entirety as of September 15,
1995, by and between the U.S. Borrower and Baxter, as the same may be
amended, modified or supplemented from time to time, in accordance
with the terms hereof and thereof.
"Dividends" shall have the meaning provided in Section
8.07.
"Documents" shall mean the Transaction Documents, the
Senior Subordinated Note Documents, and, on and after the Accounts
Receivable Facility Transaction Date, the Accounts Receivable
Facility Documents.
<PAGE>
"Effective Date" shall have the meaning provided in Section
12.10.
"Eligible Transferee" shall mean and include a commercial
bank, investment company, financial institution, fund or other
"accredited investor" (as defined in Regulation D of the Securities
Act), or any other Person approved by the Administrative Agent and
the U.S. Borrower.
"Employment Agreements" shall have the meaning provided in
Section 5.14.
"EMU Legislation" shall mean the legislative measures of
the European Council for the introduction of, changeover to or
operation of a single or unified European currency.
"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 Holdings or any of its
Subsidiaries under any Environmental Law (hereafter "Claims") or any
permit issued under any such law, including, without limitation, (a)
any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law, and (b) any and
all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting from Hazardous Materials or arising from alleged injury or
threat of injury to health, safety or the environment.
"Environmental Law" shall mean any federal, state or local
statute, law, rule, regulation, ordinance, code, policy or rule of
common law now or hereafter in effect and in each case as amended,
and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment
(for purposes of this definition (collectively, "Laws")), relating to
the environment or Hazardous Materials or health and safety to the
extent health and safety issues arise under the Occupational Safety
and Health Act of 1970, as amended, or any such similar Laws.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the regulations
promulgated and 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 Holdings or any Subsidiary
of Holdings would be deemed to be a "single employer" within the
meaning of Section 414(b), (c), (m) or (o) of the Code.
"Euro" and the designation "E" shall mean the single
currency of participating member states of the European Union.
<PAGE>
"Euro Equivalent" shall mean, at any time for the
determination thereof, the amount of Euros which could be purchased
with the amount of the relevant Alternate B Currency (or other
currency other than Euros) involved in such computation at the spot
exchange rate therefor as quoted by the Administrative Agent as of
11:00 A.M. (London time) on the date two Business Days prior to the
date of any determination thereof for purchase on such date.
"Euro LIBOR" shall mean, in respect of Euros for an
Interest Period, (I) in the case of a B Revolving Loan, the rate per
annum determined by the Administrative Agent at approximately 11:00
a.m. (London time) on the date which is two Business Days prior to
the beginning of the relevant Interest Period (as specified in the
applicable Notice of Borrowing or Notice of Conversion) by reference
to page 3750 of the Dow Jones Markets Screen and/or any successor
page for deposits in Euros for a period equal to such Interest Period
(rounded, if necessary, upward to the nearest whole multiple of
1/16th of 1%); provided that, to the extent that an interest rate is
not ascertainable pursuant to the foregoing provisions of this
definition, the "Euro LIBOR" shall be the interest rate per annum
determined by the Administrative Agent to be the rate (rounded, if
necessary, upward to the nearest whole multiple of 1/16th of 1% per
annum, if such average is not such a multiple) per annum at which
deposits in Euros are offered for such relevant Interest Period to
major banks in the London interbank market in London, England by BTCo
at approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to the beginning of such Interest Period and (II)
in the case of a B Swingline Loan, the interest rate per annum
determined by the Administrative Agent to be the highest rate
(rounded, if necessary, upward to the nearest whole multiple of one-
sixteenth of one percent per annum, if such average is not such a
multiple) per annum at which deposits in Euros are offered for such
relevant Interest Period by BTCo in the London interbank market in
London, England at approximately 11 a.m. (London time) on the
Business Day commencing such Interest Period. Notwithstanding
anything to the contrary contained above, in the event the
Administrative Agent has made any determination pursuant to Section
1.10(a)(i) in respect of B Revolving Loans or B Swingline Loans
denominated in Euros, or in the circumstances described in clause (i)
to the proviso to Section 1.10(b) in respect to B Revolving Loans or
B Swingline Loans denominated in Euros, the Euro LIBOR determined
pursuant to this definition shall instead be the rate determined by
BTCo as the all-in-cost of funds for BTCo to fund a B Revolving Loan
or a B Swingline Loans denominated in Euros with maturities
comparable to the Interest Period applicable thereto.
"Euro Rate" shall mean (i) with respect to U.S. Loans, the
Eurodollar Rate, and (ii) with respect to B Revolving Loans or B
Swingline Loans denominated in U.S. Dollars, Deutsche Marks and
Euros, the Eurodollar Rate, Deutsche Mark LIBOR and Euro LIBOR,
respectively.
"Euro Rate Loan" shall mean each Eurodollar Loan, each B
Revolving Loan and each B Swingline Loan.
"Eurodollar Loans" shall mean each U.S. Loan designated as
such by the U.S. Borrower at the time of the incurrence thereof or
conversion thereto.
<PAGE>
"Eurodollar Rate" shall mean, for any Interest Period, (I)
in the case of any U.S. Loan, (i) the arithmetic average (rounded to
the nearest 1/100 of 1%) of the offered quotation to first-class
banks in the interbank Eurodollar market by BTCo for U.S. dollar
deposits of amounts in same day funds comparable to the outstanding
principal amount of the Eurodollar Loan of BTCo for which an interest
rate is then being determined with maturities comparable to the
Interest Period to be applicable to such Eurodollar Loan, determined
as of 10:00 A.M. (New York time) on the date which is two Business
Days prior to the commencement of such Interest Period divided (and
rounded upward to the next whole multiple of 1/16 of 1%) by (ii) a
percentage equal to 100% minus the then stated maximum rate of all
reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) applicable to any
member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D) and (II) in the case of a B Revolving
Loan or a B Swingline Loan, (a) the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m. (London time) on the
date which is two Business Days prior to the beginning of the
relevant Interest Period (as specified in the applicable Notice of
Borrowing or Notice of Conversion) by reference to page 3750 of the
Dow Jones Markets Screen and/or any successor page for deposits in
U.S. Dollars for a period equal to such Interest Period; provided
that, to the extent that an interest rate is not ascertainable
pursuant to the foregoing provisions of this definition, the rate to
be used for purposes of this clause (a) shall be the interest rate
per annum determined by the Administrative Agent to be the rate per
annum at which deposits in U.S. Dollars are offered for such relevant
Interest Period to major banks in the London interbank market in
London, England by BTCo at approximately 11:00 a.m. (London time) on
the date which is two Business Days prior to the beginning of such
Interest Period, divided (and rounded, if necessary, upward to the
nearest multiple of 1/16th of 1%) by (b) a percentage equal to 100%
minus the then stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency,
supplemental, special or other reserve required by applicable law)
applicable to any member bank of the Federal Reserve System in
respect of Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under
Regulation D).
"Event of Default" shall have the meaning provided in
Section 9.
<PAGE>
"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) 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 (except to the extent that
such decrease occurs as a result of an increase in the Accounts
Receivable Facility or as a result of the put or other transfer of
accounts receivable to Baxter and/or its Affiliates pursuant to
Section 8.02(r), minus (ii) the sum of (A) any non-cash credits
(including from sales of assets) included in determining Consolidated
Net Income for such period, (B) gains from sales 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 (excluding Capital Expenditures
made pursuant to Section 8.09(c), (d) or (e)) 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
aggregate principal amount of permanent principal payments of
Indebtedness for borrowed money of the U.S. Borrower 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 A
Repayment or 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 Loan Commitment)) during such
period, (E) 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, (F) the increase, if any, in Working
Capital from the first day to the last day of such period, (G) costs
incurred by Holdings during such period and paid for with the
proceeds of dividends paid by the U.S. Borrower pursuant to
Section 8.07(iii), to the extent not deducted in determining
Consolidated Net Income for such period, (H) any cash Restructuring
Expenditures incurred during such period to the extent not deducted
in determining Consolidated Net Income for such period, (I) any
Restructuring Reserves maintained on the consolidated balance sheet
of Holdings and its Subsidiaries as at the end of such period, (J)
any cash disbursements made during such period against non-current
liabilities (such as transition reserves and deferred taxes) to the
extent not deducted in determining Consolidated Net Income, (K)
without duplication of amounts deducted above pursuant to this clause
(ii), the amount of cash expended in respect of Permitted
Acquisitions during such period, except to the extent financed with
Indebtedness and (L) without duplication of amounts deducted above
pursuant to this clause (ii), cash Investments made by the U.S.
Borrower and its Subsidiaries and cash Dividends paid by Holdings
pursuant to, and in accordance with the terms of, Section 8.06 or
8.07, as the case may be, during such period, to the extent not
financed with Indebtedness and not deducted in determining
Consolidated Net Income for such period.
<PAGE>
"Excess Cash Flow Period" shall mean (i) the period from
July 1, 1999 to and including December 31, 2000 and (ii) each fiscal
year thereafter.
"Excess Cash Payment Date" shall mean the date occurring 90
days after the last day of a fiscal year of the U.S. Borrower
(beginning with its fiscal year ending on December 31, 2000).
"Excess Proceeds" shall mean (i) the net proceeds received
by Holdings after the Effective Date from any private offering of
Holdings Common Stock, to the extent contributed to the U.S. Borrower
in accordance with Section 7.17, (ii) the portion of the net proceeds
received by Holdings after the Effective Date from any registered
public offering of Holdings Common Stock which is permitted to be
retained by Holdings pursuant to Section 4.02(A)(d), to the extent
contributed to the U.S. Borrower in accordance with Section 7.17,
(iii) the portion of Net Proceeds received by the U.S. Borrower after
the Effective Date from any Asset Sale which is permitted to be
retained by the U.S. Borrower pursuant to Section 4.02(A)(c), in each
case as and when received in the form of cash, and (iv) the portion
of Excess Cash Flow of the U.S. Borrower and its Subsidiaries which
is permitted to be retained by the U.S. Borrower pursuant to Section
4.02(A)(f).
"Excess Proceeds Amount" shall initially be $0, which
amount shall be (A) increased (i) on each Excess Cash Payment Date so
long as any repayment required pursuant to Section 4.02(A)(f) has
been made, by an amount equal to Excess Cash Flow for the immediately
preceding Excess Cash Flow Period multiplied by a percentage equal to
100% minus the Applicable Prepayment Percentage, (ii) on the date of
receipt by Holdings of the proceeds from any private offering of
Holdings Common Stock, by an amount equal to the net proceeds from
such offering, (iii) on the date of the receipt by Holdings of the
proceeds from any registered public offering of Holdings Common
Stock, so long as any repayment pursuant to Section 4.02(A)(d) that
is required by such Section has been made and Holdings has
contributed such proceeds to the U.S. Borrower in accordance with
Section 7.17, by an amount equal to 50% of the net proceeds from such
offering, and (iv) on each date of receipt by the U.S. Borrower or
any of its Subsidiaries of the Net Proceeds from any Asset Sale so
long as any repayment pursuant to Section 4.02(A)(c) has been made,
by an amount equal to such Net Proceeds (to the extent in the form of
cash, including cash received upon the liquidation of or principal
payment on any non-cash asset previously received) multiplied by a
percentage equal to 100% minus the Applicable Prepayment Percentage,
and (B) reduced (i) on each Excess Cash Payment Date where Excess
Cash Flow for the immediately preceding Excess Cash Flow Period is a
negative number, by such amount, (ii) at the time any Capital
Expenditure is made pursuant to Section 8.09(d), by the amount
thereof, (iii) at the time any investment is made pursuant to Section
8.06(z), by the amount of Excess Proceeds expended in connection
therewith, (iv) at the time when the U.S. Borrower or any Domestic
Subsidiary makes an Intercompany Loan to a Foreign Subsidiary
pursuant to Section 8.06(g), by the amount (if any) of Excess
Proceeds expended in connection therewith, and (v) at the time when
the U.S. Borrower or any Domestic Subsidiary makes a contribution to
or a capitalization or forgiveness of Indebtedness of any Foreign
Subsidiary pursuant to Section 8.06(m), by the amount (if any) of
Excess Proceeds expended in connection therewith (it being understood
that the Excess Proceeds Amount may be reduced to an amount below
zero after giving effect to the reductions enumerated in clause (B)
above).
<PAGE>
"Excluded Pledge Subsidiary" shall mean each of the Foreign
Subsidiaries listed on Annex XIII hereto, as the same may be modified
from time to time in accordance with the requirements of Section
7.20.
"Existing Credit Agreement" shall mean the Amended and
Restated Credit Agreement, dated as of May 7, 1996, and amended and
restated as of April 29, 1997, among Holdings, the U.S. Borrower, the
financial institutions from time to time party thereto and BTCo, as
Agent, as amended, modified and supplemented to but excluding the
Effective Date.
"Existing Indebtedness" shall have the meaning provided in
Section 6.24.
"Existing Indebtedness Agreements" shall have the meaning
provided in Section 5.14.
"Existing Letters of Credit" shall have the meaning
provided in Section 2.01(d).
"Facility" shall mean any of the credit facilities
established under this Agreement, i.e., the A Term Loan Facility, the
B Term Loan Facility, the C Term Loan Facility, the A Revolving Loan
Facility or the B Revolving Loan Facility.
"Facing Fee" shall have the meaning provided in Section
3.01(d).
"Federal Funds Rate" shall mean, for any period, a
fluctuating interest rate equal for each day during such period to
the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by
Federal Funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of recognized
standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or
referred to in, Section 3.01.
"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 twelve months from the date of acquisition.
"Foreign Currency" shall mean each Approved Currency other
than U.S. Dollars.
"Foreign Currency Loan" shall mean any Loan denominated in
a Foreign Currency.
<PAGE>
"Foreign Guaranteed Obligations" shall mean (i) the full
and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of the principal and interest on each Note
issued by the German Borrower to each Bank, and all Loans made to the
German Borrower, under this Agreement, 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 the German Borrower to each Bank, the Agents 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
the German Borrower and (ii) the full and prompt payment when due
(whether by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due) of the German Borrower or its
respective Subsidiaries owing under any Interest Rate Protection
Agreement or Other Hedging Agreement entered into by the German
Borrower or any of its Subsidiaries with any Bank or any affiliate
thereof (even if such Bank subsequently ceases to by 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.
"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 Holdings or any one or more of its Subsidiaries
primarily for the benefit of employees of Holdings or such
Subsidiaries residing outside the United States of America, which
plan, fund or other similar program provides, or results in,
retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and
which plan is not subject to ERISA or the Code.
"Foreign Pledge Agreement" shall have the meaning provided
in Section 5.10(c).
"Foreign Subsidiary" shall mean each Subsidiary of the U.S.
Borrower that is incorporated under the laws of any jurisdiction
other than the United States of America, any State thereof, or any
territory thereof.
"Foreign Subsidiary Working Capital Indebtedness" shall
have the meaning provided in Section 8.04(j).
"Fronting Bank" shall mean BTCo in its individual capacity.
"GAAP" shall mean generally accepted accounting principles
in the United States of America as in effect from time to time; it
being understood and agreed that determinations in 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).
<PAGE>
"German Borrower" shall have the meaning provided in the
first paragraph of this Agreement.
"GS Capital" shall mean G.S. Capital Partners, L.P., a
Delaware limited partnership.
"Guaranteed Creditors" shall mean and include each of the
Administrative Agent, the Syndication 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 such party constitutes a Secured Creditor under the Security
Documents.
"Guaranteed Obligations" shall mean (i) the full and prompt
payment when due (whether at the stated maturity, by acceleration or
otherwise) of the principal and interest on each Note issued by each
Borrower to each Bank, and Loans made, under this Agreement and all
reimbursement obligations and Unpaid Drawings with respect to Letters
of Credit, together with all the other obligations (including
obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due) and liabilities (including,
without limitation, indemnities, fees and interest thereon) of the
Borrowers (or any of them) to each Bank, the Agents 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 the
Borrowers and (ii) the full and prompt payment when due (whether by
acceleration or otherwise) of all obligations (including obligations
which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) of the Borrowers (or any of them)
or any of their respective Subsidiaries owing under any Interest Rate
Protection Agreement or Other Hedging Agreement entered into by the
Borrowers (or any of them) or any of their respective Subsidiaries
with any Bank or any affiliate thereof (even if such Bank
subsequently ceases to by 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 Holdings, the U.S. Borrower, and
each Subsidiary Guarantor.
"Guaranty" shall mean and include (i) the guaranty of
Holdings set forth in Section 13, (ii) the guaranty of the U.S.
Borrower set forth in Section 14, and (iii) the Subsidiary Guaranty.
<PAGE>
"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.
"Hoechst" shall mean Hoechst AG, a German corporation, and
any successor thereto by merger, consolidation or otherwise
(including any entity resulting from the planned combination of
Hoechst and Rhone-Poulenc).
"Holdings" shall have the meaning provided in the first
paragraph of this Agreement.
"Holdings Class L Common Stock" shall have the meaning
provided in Section 6.16.
"Holdings Common Stock" shall have the meaning provided in
Section 6.16.
"Holdings Guaranty" shall mean the guaranty of Holdings
pursuant to Section 13.
"Holdings Tax Allocation Agreement" shall mean the Tax
Sharing Agreement, dated as of December 20, 1994, among Holdings and
the U.S. Borrower and its Domestic Subsidiaries.
"Indebtedness" of any Person shall mean without duplication
(i) all indebtedness of such Person for borrowed money, (ii) the
deferred purchase price of assets or services payable to the sellers
thereof or any of such seller's assignees which in accordance with
GAAP would be shown on the liability side of the balance sheet of
such Person but excluding deferred rent as determined in accordance
with GAAP, (iii) the face amount of all letters of credit issued for
the account of such Person and, without duplication, all drafts drawn
thereunder, (iv) all Indebtedness of a second Person secured by any
Lien on any property owned by such first Person, whether or not such
Indebtedness has been assumed, (v) all Capitalized Lease Obligations
of such Person, (vi) all obligations of such Person to pay a
specified purchase price for goods or services whether or not
delivered or accepted, i.e., take-or-pay and similar obligations,
(vii) all obligations under Interest Rate Protection Agreements and
Other Hedging Agreements and (viii) all Contingent Obligations of
such Person, provided, that Indebtedness shall not include trade
payables and accrued expenses, in each case arising in the ordinary
course of business.
"Indebtedness to be Refinanced" shall mean the indebtedness
arising pursuant to the Existing Credit Agreement.
<PAGE>
"Indemnifying Bank" shall mean each financial institution
that is designated as an "Indemnifying Bank" on Annex I hereto, and
each financial institution which is designated, with the approval of
the Fronting Bank and the Administrative Agent, as an "Indemnifying
Bank" in an Assignment and Assumption Agreement.
"Indemnity Amount" shall mean, for each Indemnifying Bank
which is a signatory hereto or which becomes an Indemnifying Bank
pursuant to an Assignment and Assumption Agreement, the amount and
the percentage that is so designated and set forth opposite such
Indemnifying Bank's name on Annex I hereto (as the same may be
modified pursuant to Section 12.04(c)).
"Indemnity Participation" shall have the meaning provided
in Section 1.14.
"Information Systems and Equipment" shall mean all computer
hardware, firmware and software, as well as other information
processing systems, or any equipment containing embedded microchips,
whether directly owned, licensed, leased, operated or otherwise
controlled by the U.S. Borrower or any of its Subsidiaries, including
through third-party service providers, and which, in whole or in
part, are used, operated, relied upon, or integral to, the U.S.
Borrower's or any of its Subsidiaries' conduct of their business.
"Initial Borrowing Date" shall mean the date upon which the
Term Loans are initially incurred hereunder.
"Intercompany Loan" shall have the meaning provided in
Section 8.06(g).
"Intercompany Notes" shall mean promissory notes evidencing
Intercompany Loans in the form of Exhibit L.
"Interest Period," with respect to any Euro Rate Loan,
shall mean the interest period applicable thereto, as determined
pursuant to Section 1.09.
"Interest Rate Protection Agreement" shall mean any
interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate hedging agreement or other
similar agreement or arrangement.
"Investment" shall have the meaning provided in Section
8.06.
"Investor Certificate" shall have the meaning provided in
the Accounts Receivable Pooling and Servicing Agreement.
"Issuing Country" shall have the meaning provided in
Section 12.18.
"IVD Services Agreement" shall mean the Transition Services
Agreement, dated as of the May 7, 1996, between the U.S. Borrower and
the Seller, as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
<PAGE>
"Joint Venture" shall mean any Person, other than an
individual or a Wholly-Owned Subsidiary of the U.S. Borrower, (i) in
which the U.S. Borrower or a Subsidiary of the U.S. Borrower holds or
acquires an ownership interest (whether by way of capital stock,
partnership or limited liability company interest, or other evidence
of ownership) and (ii) which is engaged in a business of the type
described in Section 8.01(a).
"Judgment Currency" shall have the meaning provided in
Section 12.17(a).
"Judgment Currency Conversion Date" shall have the meaning
provided in Section 12.17(a).
"L/C Supportable Indebtedness" shall mean (i) Foreign
Subsidiary Working Capital Indebtedness, (ii) obligations of the U.S.
Borrower 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 (iii) such other obligations of the U.S. Borrower or any of its
Subsidiaries as are reasonably acceptable to the Administrative Agent
and the respective Letter of Credit Issuer and otherwise permitted to
exist pursuant to the terms of this Agreement.
"Leasehold" of any Person shall mean all of the right,
title and interest of such Person as lessee or licensee in, to and
under leases or licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(c).
"Letter of Credit Issuer" shall mean BTCo, and any A RL
Bank which at the request of the U.S. Borrower and with the consent
of the Administrative Agent agrees, in such A RL Bank's sole
discretion, to become a Letter of Credit Issuer for the purpose of
issuing Letters of Credit pursuant to Section 2.
"Letter of Credit Outstandings" shall mean, at any time,
the sum of, without duplication, (i) the aggregate Stated Amount of
all outstanding Letters of Credit and (ii) the aggregate amount of
all Unpaid Drawings in respect of all Letters of Credit.
<PAGE>
"Letter of Credit Request" shall have the meaning provided
in Section 2.02(a).
"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 A Term Loans, B Term Loans, C Term Loans, A
Revolving Loans, B Revolving Loans, A Swingline Loans or B Swingline
Loans.
"Local time" shall mean the local time in effect at (x) the
applicable Notice Office (in the case of Notices of Borrowing,
Notices of Conversion and Letter of Credit Requests) and (y) the
applicable Payment Office in the case of all payments and
disbursements of Loans or Letters of Credit.
"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.
"Management Agreements" shall have the meaning provided in
Section 5.14.
"Mandatory Borrowing" shall mean an A RL Mandatory
Borrowing and/or a B RL Mandatory Borrowing, as the context may
require.
"Margin Stock" shall have the meaning provided in
Regulation U.
"Material Adverse Effect" shall mean a material adverse
effect on the business, properties, assets, liabilities, condition
(financial or otherwise) or prospects of the Acquired Business, the
U.S. Borrower, Holdings, Holdings and its Subsidiaries taken as a
whole or the U.S. Borrower and its Subsidiaries taken as a whole.
"Material Contracts" shall have the meaning provided in
Section 5.14.
"Maturity Date" with respect to any Facility shall mean the
A Term Loan Maturity Date, the B Term Loan Maturity Date, the C Term
Loan Maturity Date, the A Revolving Loan Maturity Date or the B
Revolving Loan Maturity Date, as the case may be.
"Maximum Funding Amount" shall mean the sum of (x) with
respect to outstanding Investor Certificates and Purchased Interests
that have fixed principal amounts, such principal amounts and (y)
with respect to Investor Certificates or Purchased Interests that
have variable principal amounts, the Receivables Stated Amounts
thereof.
<PAGE>
"Maximum Swingline Amount" shall mean (i) in the case of A
Swingline Loans, $20,000,000 and (ii) in the case of B Swingline
Loans, E10,000,000 (or the Euro Equivalent thereof).
"Minimum Borrowing Amount" shall mean (i) for Base Rate
Loans (other than A Swingline Loans), $500,000; (ii) for Eurodollar
Loans, $1,000,000, (iii) for Euro Rate Loans (other than Eurodollar
Loans and B Swingline Loans), E500,000 (or the Euro Equivalent
thereof), (iv) for A Swingline Loans, $500,000 and (v) for B
Swingline Loans, E250,000 (or the Euro Equivalent thereof).
"Monthly Reporting Date" shall mean (i) in the case of the
first fiscal month of a fiscal year of Holdings, the 75th day after
the end of such fiscal month, (ii) in the case of the second, third,
sixth or ninth month of a fiscal year of Holdings, the 45th day after
the end of any such fiscal month, (iii) in the case of the fourth,
fifth, seventh, eighth, tenth or eleventh month of a fiscal year of
Holdings, the 30th day after the end of any such fiscal month and
(iv) in the case of the twelfth month of a fiscal year of Holdings,
the 90th day after the end of such fiscal month.
"Mortgages" shall have the meaning provided in Section
5.13(a).
"Mortgage Policies" shall have the meaning provided in
Section 5.13(b).
"Mortgaged Properties" shall mean and include (i) all Real
Properties owned by Holdings and its U.S. Subsidiaries to the extent
designated as such on Annex III and (ii) each Real Property subjected
to a mortgage in favor of the Collateral Agent for the benefit of the
Secured Creditors pursuant to Section 7.11.
"NAIC" shall have the meaning provided in Section 1.10(c).
"Net Proceeds" shall mean, with respect to any Asset Sale,
the 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) and
(b) incremental income taxes paid or payable as a result thereof.
"Non-Compete Agreements" shall have the meaning provided in
Section 5.14.
"Non-Defaulting Bank" shall mean each Bank other than a
Defaulting Bank.
"Note" shall mean each A Term Note, each B Term Note, C
Term Note, each A Revolving Note, each B Revolving Note, the A
Swingline Note and the B Swingline Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03.
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
<PAGE>
"Notice Office" shall mean the office of the Administrative
Agent located at One Bankers Trust Plaza, New York, New York 10006
or such other office as the Administrative Agent may designate to
Holdings, the U.S. Borrower and the Banks from time to time; provided
that in the case of B Revolving Loans, the "Notice Office" shall mean
the office specified above, with a copy of the respective notice to
be delivered at the same time as otherwise required pursuant to the
terms of this Agreement to the office of the Administrative Agent
located at 1 Appold Street, Broadgate London EC2A 2HE.
"Obligation Currency" shall have the meaning provided in
Section 12.17(a).
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time
existing, owing to the Administrative Agent, the Syndication Agent,
the Collateral Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Other Hedging Agreements" shall mean any foreign exchange
contracts, currency swap agreements or other similar agreements or
arrangements designed to protect against fluctuations in currency
values.
"Participant" shall have the meaning provided in Section
2.04(a).
"Payment Office" shall mean (i) in respect of U.S. Loans,
Letters of Credit, Fees (other than B RL Commitment Fees) and, except
as provided in clause (ii) below, all other amounts owing under this
Agreement and the other Credit Documents, the office of the
Administrative Agent located at One Bankers Trust Plaza, New York,
New York 10006 or such other office as the Administrative Agent may
designate to Holdings, the U.S. Borrower and the Banks from time to
time, and (ii) in the case of B Revolving Loans, B Swingline Loans
and B RL Commitment Fees, the office of the Administrative Agent
located at 1 Appold Street, Broadgate London EC2A 2HE or such other
office as the Administrative Agent may designate to Holdings, the
U.S. Borrower, the German Borrower and the Banks from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor
thereto.
"Permitted Acquired Debt" shall have the meaning set forth
in Section 8.04(l).
"Permitted Acquisition" shall have the meaning provided in
Section 8.02(s).
<PAGE>
"Permitted Acquisition Cost-Savings" shall mean, in
connection with each Permitted Acquisition, those demonstrable cost-
savings and other adjustments (in each case not included pursuant to
clause (iv) of the definition of Pro Forma Basis contained herein)
reasonably anticipated by the U.S. Borrower to be achieved in
connection with such Permitted Acquisition (but limited to the 15-
month period following the consummation of such Permitted Acquisition
for purposes of determining the Adjusted Leverage Ratio as used in
the definitions of Applicable Commitment Fee Percentage and
Applicable Margins), which cost-savings and other adjustments shall
be estimated on a good faith basis by the U.S. Borrower and certified
in writing by the Chief Financial Officer of the U.S. Borrower.
"Permitted Covenant" shall mean (i) any periodic reporting
covenant, (ii) any covenant restricting payments by Holdings with
respect to any securities of Holdings which are junior to the
Permitted Holdings PIK Securities, (iii) any covenant the default of
which can only result in an increase in the amount of any redemption
price, repayment amount, dividend rate or interest rate, (iv) any
covenant the default of which gives rise only to rights or remedies
which are subject to subordination terms reasonably acceptable to the
Administrative Agent, (v) any covenant providing board observance
rights with respect to Holdings' board of directors and (vi) any
other covenant that does not adversely affect the interests of the
Banks (as reasonably determined by the Administrative Agent).
"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, on the date of delivery of such Mortgage Policies to the
Administrative Agent in accordance with the terms hereof, 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) municipal and zoning
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).
<PAGE>
"Permitted Holdings PIK Securities" shall mean any
preferred stock or subordinated promissory note of Holdings (or any
security of Holdings that is convertible or exchangeable into any
preferred stock or subordinated promissory note of Holdings), so long
as the terms of any such preferred stock, subordinated promissory
note or security of Holdings (i) do not provide any collateral
security, (ii) do not provide any guaranty or other support by the
U.S. Borrower or any Subsidiaries of the U.S. Borrower, (iii) do not
contain any mandatory put, redemption, repayment, sinking fund or
other similar provision occurring before the eleventh anniversary of
the Original Effective Date, (iv) do not require the cash payment of
dividends or interest before the eleventh anniversary of the Original
Effective Date, (v) do not contain any covenants other than any
Permitted Covenant, (vi) do not grant the holders thereof any voting
rights except for (x) voting rights required to be granted to such
holders under applicable law and (y) limited customary voting rights
on fundamental matters such as mergers, consolidations, sales of
substantial assets, or liquidations involving Holdings, and (vii) are
otherwise reasonably satisfactory to the Administrative Agent.
"Permitted Liens" shall have the meaning provided in
Section 8.03.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, limited liability company, association,
trust or other enterprise or any government or political subdivision
or any agency, department or instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section
3(2) of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribute of) Holdings, any of its
Subsidiaries or any ERISA Affiliate and each such plan for the five
calendar year period immediately following the latest date on which
Holdings, any of its Subsidiaries or any ERISA Affiliate maintained,
contributed to or had an obligation to contribute to such plan.
"Pledge Agreement" shall have the meaning provided in
Section 5.10(a).
"Pledged Securities" shall mean all the Pledged Securities
as defined in the Pledge Agreement.
"Pricing Level" shall mean each of the four pricing levels
set forth in the table appearing in the definitions of "Applicable
"Prime Lending Rate" shall mean the rate which BTCo
announces from time to time as its prime lending rate, the Prime
Lending Rate to change when and as such prime lending rate changes.
The Prime Lending Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer.
BTCo may make commercial loans or other loans at rates of interest
at, above or below the Prime Lending Rate.
"Principal Amount" shall mean (i) the stated principal
amount of each Loan denominated in Euros, and (ii) the Euro
Equivalent of the stated principal amount of each Alternate B
Currency Loan, as the context may require.
<PAGE>
"Private Equity Proceeds" shall mean cash equity
contributions made in Holdings by Bain Capital, GS Capital, their
respective Affiliates and/or their respective Related Parties and/or
any other Person to the extent not made pursuant to a registered
public offering.
"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
Holdings and/or any of its Subsidiaries from such Asset Sale.
"Pro Forma Basis" shall mean, in connection with any
calculation of compliance with any financial covenant or financial
term, the calculation thereof after giving effect on a pro forma
basis to (a) the incurrence of any Indebtedness (other than revolving
Indebtedness, except to the extent same is incurred to finance the
Transaction, to refinance other outstanding Indebtedness or to
finance Permitted Acquisitions) after the first day of the relevant
Calculation Period as if such Indebtedness had been incurred or
issued (and the proceeds thereof applied) on the first day of the
relevant Calculation Period, (b) the permanent repayment of any
Indebtedness (other than revolving Indebtedness) after the first day
of the relevant Calculation Period as if such Indebtedness had been
retired or redeemed on the first day of the relevant Calculation
Period, (c) the Permitted Acquisition, if any, then being consummated
as well as any other Permitted Acquisition consummated after the
first day of the relevant Calculation Period and on or prior to the
date of the respective Permitted Acquisition then being effected, and
(d) Restructuring Cost Savings resulting from Productive Cost
Reduction Actions taken after the first day of the relevant
Calculation Period as if such Restructuring Cost Savings had been
effective on and after the first day of the relevant Calculation
Period, with the following rules to apply in connection therewith:
(i) all Indebtedness (x) (other than revolving
Indebtedness, except to the extent same is incurred to finance
the Transaction, to refinance other outstanding Indebtedness, or
to finance Permitted Acquisitions) incurred after the first day
of the relevant Calculation Period (whether incurred to finance
a Permitted Acquisition, to refinance Indebtedness or otherwise)
shall be deemed to have been incurred (and the proceeds thereof
applied) on the first day of the respective Calculation Period
and remain outstanding through the date of determination and (y)
(other than revolving Indebtedness) permanently retired or
redeemed after the first day of the relevant Calculation Period
shall be deemed to have been retired or redeemed on the first
day of the respective Calculation Period and remain retired
through the date of determination;
<PAGE>
(ii) all Indebtedness assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest or
accrued dividends, as the case may be, at (x) the rate
applicable thereto, in the case of fixed rate Indebtedness or
(y) the rates which would have been applicable thereto during
the respective period when same was deemed outstanding, in the
case of floating rate Indebtedness (although interest expense
with respect to any Indebtedness for periods while same was
actually outstanding during the respective period shall be
calculated using the actual rates applicable thereto while same
was actually outstanding);
(iii) in making any determination of Consolidated EBITDA, (x)
for any Permitted Acquisition which occurred during the last two
fiscal quarters comprising the respective Test Period, there
shall be added to Consolidated EBITDA the amount of annual
Permitted Acquisition Cost Savings, determined in accordance
with the definition thereof contained herein, expected to be
realized with respect to such Permitted Acquisition, (y) for any
Permitted Acquisition effected in the second fiscal quarter of
the respective Test Period, the Consolidated EBITDA shall be
increased by 50% of the annual Permitted Acquisition Cost
Savings estimated to arise in connection with the respective
Permitted Acquisition and (z) for any Permitted Acquisition
effected in the first fiscal quarter of the respective Test
Period, the Consolidated EBITDA shall be increased by 25% of the
annual Permitted Acquisition Cost Savings estimated to arise in
connection with the respective Permitted Acquisition; provided
that (1) the aggregate Permitted Acquisition Cost Savings added
to Consolidated EBITDA, for any period being tested, pursuant to
this clause (iii) shall not exceed 20% of Consolidated EBITDA
after giving effect to the adjustment pursuant to this clause
(iii), and (2) for purposes of determining the Adjusted Leverage
Ratio as used in calculating the Applicable Commitment Fee
Percentage and the Applicable Margins, if the Adjusted Leverage
Ratio after giving effect to the adjustment to Consolidated
EBITDA pursuant to this clause (iii) results in a Pricing Level
(the "Fully Adjusted Pricing Level") which is more than one
Pricing Level lower than the Pricing Level that would be in
effect if the Adjusted Leverage Ratio were determined without
giving effect to the adjustment to Consolidated EBITDA pursuant
to this clause (iii) (the "Non-Adjusted Pricing Level"), then
for such purposes such adjustment shall be reduced so that the
Pricing Level is no lower than one level below the Non-Adjusted
Pricing Level; and
<PAGE>
(iv) in making any determination of Consolidated EBITDA,
(w) for any Productive Cost Reduction Actions which were taken
during the last fiscal quarter comprising the respective Test
Period, there shall be added to Consolidated EBITDA the amount
of annual Restructuring Cost Savings, determined in accordance
with the definition thereof contained herein, expected to be
realized as a result of such Productive Cost Reduction Actions,
(x) for any Productive Cost Reduction Actions taken in the third
fiscal quarter of the respective Test Period, the Consolidated
EBITDA shall be increased by 75% of the annual Restructuring
Cost Savings estimated to arise as a result of such Productive
Cost Reduction Actions, (y) for any Productive Cost Reduction
Actions taken in the second fiscal quarter of the respective
Test Period, the Consolidated EBITDA shall be increased by 50%
of the annual Restructuring Cost Savings estimated to arise as a
result of such Productive Cost Reduction Actions, and (z) for
any Productive Cost Reduction Actions taken in the first fiscal
quarter of the respective Test Period, the Consolidated EBITDA
shall be increased by 25% of the annual Restructuring Cost
Savings estimated to arise as a result of such Productive Cost
Reduction Actions, provided that the aggregate Restructuring
Cost Savings added to Consolidated EBITDA for any period being
tested pursuant to this clause (iv) shall not exceed 20% (or
such greater percentage as the Administrative Agent shall agree
to in its sole discretion) of Consolidated EBITDA after giving
effect to the adjustment pursuant to this clause (iv) .
Notwithstanding anything to the contrary contained above, (x) for
purposes of Sections 8.10 and 8.11, and for purposes of all
determinations of the Applicable Commitment Fee Percentage and
Applicable Margins, pro forma effect (as otherwise provided above)
shall only be given for events or occurrences which occurred during
the respective Test Period but not thereafter and (y) for purposes of
Section 8.02(s), pro forma effect (as otherwise provided above) shall
be given for events or occurrences which occurred during the
respective Test Period and thereafter but on or prior to the
respective date of determination.
"Productive Cost Reduction Actions" shall mean actions
taken by Holdings and/or any of its Subsidiaries in a period which
management of Holdings reasonably believes will demonstrably result
in cost reductions for the U.S. Borrower and its Subsidiaries in such
period and/or future periods such as, but not limited to, termination
of employment of employees and/or management which will result in
lower payroll costs or termination of a lease which will result in
lower lease expense.
"Projections" shall have the meaning provided in Section
5.17.
"Purchased Interest" shall have the meaning provided in the
Accounts Receivable Pooling and Servicing Agreement.
"Quarterly Payment Date" shall mean the last Business Day
of each March, June, September and December.
<PAGE>
"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 recapitalization of
Holdings and other related transactions pursuant to the
Recapitalization Agreement.
"Recapitalization Agreement" shall mean the
Recapitalization Agreement dated as of April 14, 1999, by and among
Holdings, Hoechst AG, the GS Group (as defined therein) and the Bain
Group (as defined therein), as amended, modified or supplemented from
time to time in accordance with the terms thereof and hereof.
"Recapitalization Documents" shall mean the
Recapitalization Agreement and all other agreements, instruments and
documents relating to the Recapitalization.
"Receivable Stated Amount" shall mean, with respect to an
Investor Certificate or a Purchased Interest, the maximum amount of
the funding commitment with respect thereto.
"Receivables Entity" shall mean a Wholly-Owned Subsidiary
of the U.S. Borrower which engages in no activities other than in
connection with the financing of accounts receivable of the
Designated Credit Parties and which is designated (as provided below)
as the Receivables Entity (a) no portion of the Indebtedness or any
other obligations (contingent or otherwise) of which (i) is
guaranteed by Holdings or any other Subsidiary of Holdings (excluding
guarantees of obligations (other than the principal of, and interest
on, Indebtedness)) pursuant to Standard Securitization Undertakings,
(ii) is recourse to or obligates Holdings or any other Subsidiary of
Holdings in any way other than pursuant to Standard Securitization
Undertakings or (iii) subjects any property or asset of Holdings or
any other Subsidiary of Holdings, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings, (b) with which
neither Holdings nor any of its Subsidiaries has any contract,
agreement, arrangement or understanding (other than pursuant to the
Accounts Receivable Facility Documents (including with respect to
fees payable in the ordinary course of business in connection with
the servicing of accounts receivable and related assets)) on terms
less favorable to Holdings or such Subsidiary than those that might
be obtained at the time from persons that are not Affiliates of
Holdings, and (c) to which neither Holdings nor any other Subsidiary
of Holdings has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain levels of
operating results. Any such designation shall be evidenced to the
Administrative Agent by filing with the Administrative Agent an
officer's certificate of the U.S. Borrower certifying that, to the
best of such officer's knowledge and belief after consultation with
counsel, such designation complied with the foregoing conditions.
"Receivables Purchase Money Note" shall mean those purchase
money notes issued by the Receivables Entity to the Designated Credit
Parties pursuant to the terms of the Accounts Receivable Facility
Documents.
<PAGE>
"Recovery Event" shall mean the receipt by Holdings or any
of its Subsidiaries of any insurance or condemnation proceeds payable
(i) by reason of any theft, physical destruction or damage or any
other similar event with respect to any properties or assets of
Holdings or any of its Subsidiaries, (ii) by reason any condemnation,
taking, seizing or similar event with respect to any properties or
assets of Holdings or any of its Subsidiaries and (iii) under any
policy of insurance required to be maintained under Section 7.03.
"Refinancing" shall mean the refinancing and repayment in
full of all amounts outstanding under, and the termination of all
commitments in respect of, all Indebtedness to be Refinanced.
"Refinancing Documents" shall mean each of the agreements,
documents and instruments entered into in connection with the
Refinancing.
"Register" shall have the meaning provided in Section 7.13.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof establishing
reserve requirements.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof establishing
margin requirements.
"Related Fund" shall mean, with respect to any Bank that is
a fund that invests in loans, any other fund that invests in loans
and is managed by the same investment advisor as such Bank or by an
Affiliate of such investment advisor.
"Related Party" shall mean (i) in the case of GS Capital,
(a) stockholders or partners of GS Capital or (b) any trust,
corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80%
or more controlling interest of which consist of GS Capital and/or
such other Persons referred to in the immediately preceding clause
(i)(a), and (ii) in the case of Bain Capital, any Affiliate of Bain
Capital on the Effective Date, provided that for purposes of the
definition of "Change of Control Event," the term Related Party shall
not include (x) any portfolio company of Bain Capital or any
Affiliate of Bain Capital or (y) any officer or director of Holdings
or any of its Subsidiaries if not also a partner or stockholder of
Bain Capital.
"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.
<PAGE>
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV
of ERISA other than those events as to which the 30-day notice period
is waived under subsection .22, .23, .25, .27 or .28 of PBGC
Regulation Section 4043.
"Required Banks" shall mean Non-Defaulting Banks the sum of
whose outstanding Term Loans and Revolving Loan Commitments (or, if
after the Total Revolving Loan Commitment has been terminated,
outstanding Revolving Loans, A RL Percentages of outstanding A
Swingline Loans and Letter of Credit Outstandings and B RL
Percentages of outstanding B Swingline Loans) constitute greater than
50% of the sum of (i) the total outstanding Term Loans of Non-
Defaulting Banks and (ii) the Total Revolving Loan Commitment less
the aggregate Revolving Loan Commitments of Defaulting Banks (or, if
after the Total Revolving Loan Commitment has been terminated, the
total outstanding Revolving Loans of Non-Defaulting Banks, the
aggregate A RL Percentages of all Non-Defaulting Banks of the total
outstanding A Swingline Loans and Letter of Credit Outstandings and
the aggregate B RL Percentages of all Non-Defaulting Banks of the
total outstanding B Swingline Loans at such time).
"Restructuring Cost Savings" shall mean, in connection with
each Productive Cost Reduction Action, those demonstrable cost
savings and other adjustments (in each case not included pursuant to
clause (iii) of the definition of Pro Forma Basis contained herein)
reasonably anticipated by the U.S. Borrower to be achieved as a
result of such Productive Cost Reduction Action, which cost savings
and other adjustments shall be estimated on a good faith basis by the
U.S. Borrower and certified in writing by the Chief Financial Officer
of the U.S. Borrower.
"Restructuring Expenditures" shall mean nonrecurring
charges arising out of the restructuring, consolidation, severance or
discontinuance of any portion of the operations, employees and/or
management of any entities or businesses of Holdings or any of its
Subsidiaries, but solely to the extent that such nonrecurring charges
relate to Productive Cost Reduction Actions.
"Restructuring Reserves" shall mean reserves maintained on
the consolidated balance sheet of Holdings and its Subsidiaries with
respect to Restructuring Expenditures.
"Returns" shall have the meaning provided in Section 6.23.
"Revolving Loan" shall mean each and every A Revolving Loan
or B Revolving Loan made by a Bank hereunder.
"Revolving Loan Commitment" shall mean, with respect to
each Bank, such Bank's A Revolving Loan Commitment and B Revolving
Loan Commitment.
"Rollover Amount" shall have the meaning provided in
Section 8.09(b).
"Scheduled A Repayment" shall have the meaning provided in
Section 4.02(A)(b)(i).
<PAGE>
"Scheduled B Repayment" shall have the meaning provided in
Section 4.02(A)(b)(ii).
"Scheduled C Repayment" shall have the meaning provided in
Section 4.02(A)(b)(iii).
"Scheduled Repayment" shall mean any Scheduled A Repayment,
Scheduled B Repayment and 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
respective Security Documents.
"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, each Mortgage, each Additional
Security Document, if any and each other document or instrument
entered into pursuant to Sections 5.10 and 7.16, if any, in each case
as and when executed and delivered in accordance with the terms of
this Agreement and as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof
and hereof.
"Seeded Instrument Sale" shall mean the sale, transfer or
other disposition of seeded instruments of the U.S. Borrower and/or
one or more of its Subsidiaries to a financial institution.
"Seeded Instrument Transaction" shall mean a transaction in
which (i) the U.S. Borrower and/or one or more of its Subsidiaries
sells a seeded instrument to a financial institution, (ii) such
financial institution leases such instrument back to the U.S.
Borrower or such Subsidiary and (iii) the U.S. Borrower or such
Subsidiary subleases such seeded instruments to third party customers
of the U.S. Borrower or such Subsidiary.
"Seller Account" shall have the meaning provided in the
Accounts Receivable Facility Documents.
"Senior Officer" shall mean Chief Executive Officer,
President, Chief Financial Officer, Treasurer, Controller or
Secretary or any other senior officer of Holdings or any of its
Subsidiaries with knowledge of, or responsibility for, the financial
affairs of such Person.
<PAGE>
"Senior Subordinated Note Documents" shall mean and include
each of the documents and other agreements entered into (including,
without limitation, the Senior Subordinated Note Indenture) relating
to the issuance by the U.S. Borrower of the Senior Subordinated
Notes, as in effect on the Effective Date (to the extent thereof) and
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 the
Indenture, dated May 7, 1996, entered into by and between the U.S.
Borrower and IBJ Schroder Bank & Trust Company, as trustee
thereunder, as in effect on the Effective Date and as the same may be
modified, amended or supplemented from time to time in accordance
with the terms hereof and thereof.
"Senior Subordinated Notes" shall mean the Series B 11-1/8%
Senior Subordinated Notes Due 2006 issued in accordance with the
terms of the Senior Subordinated Note Indenture, as the same may be
modified, amended or supplemented from time to time in accordance
with the terms hereof and thereof.
"Shareholder Subordinated Note" shall mean an unsecured
junior subordinated note issued by Holdings (and not guaranteed or
supported in any way by the U.S. Borrower or any of its Subsidiaries)
in the form of Exhibit N, as the same may be amended, modified or
supplemented from time to time pursuant to the terms hereof and
thereof.
"Shareholders' Agreements" shall have the meaning set forth
in Section 5.14.
"Special Purpose VFP Subsidiary" shall mean DBI Funding,
Inc., a special purpose bankruptcy remote Subsidiary of the U.S.
Borrower.
"Standard Securitization Undertakings" means
representations, warranties, covenants and indemnities entered into
by Holdings or any Subsidiary thereof in connection with the Accounts
Receivable Facility which are reasonably customary in an off-balance-
sheet accounts receivable transaction.
"Stated Amount" of each Letter of Credit shall mean at any
time the maximum amount available to be drawn thereunder (regardless
of whether any conditions for drawing could then be met).
"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 in which such Person
directly or indirectly through Subsidiaries, has more than a 50%
equity interest at the time.
<PAGE>
"Subsidiary Guaranty" shall have the meaning provided in
Section 5.11(a).
"Supermajority Banks" of any Facility shall mean those Non-
Defaulting Banks which would constitute the Required Banks under, and
as defined in, this Agreement if (x) all outstanding Obligations of
the other Facilities under this Agreement were repaid in full and all
Commitments with respect thereto were terminated and (y) the
percentage "50%" contained therein were changed to "66-2/3%."
"Swingline Loan" shall mean each A Swingline Loan and each
B Swingline Loan.
"Syndication Agent" shall mean Goldman Sachs Credit
Partners L.P. and shall include any successor to the Syndication
Agent appointed pursuant to Section 11.10.
"Tax Allocation Agreements" shall have the meaning provided
in Section 5.14.
"Tax Indemnity Letter" shall mean the Tax Law Change
Indemnity Letter, dated December 16, 1994, between Holdings and
Baxter International Inc.
"Taxes" shall have the meaning provided in Section 4.04.
"Term Loan" shall mean each 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 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 A Term Loan Facility,
the B Term Loan Facility and the C Term Loan Facility.
"Test Period" shall mean each period of four consecutive
fiscal quarters then last ended, in each case taken as one accounting
period. Notwithstanding anything to the contrary contained above or
in Section 12.07 or otherwise required by GAAP, in the case of any
Test Period ending prior to the first anniversary of the Initial
Borrowing Date, such period shall be a one-year period ending on the
last day of the fiscal quarter last ended, with any calculations of
Consolidated Interest Expense required in determining compliance with
Section 8.10 to be made on a pro forma basis in accordance with, and
to the extent provided in, the immediately succeeding sentence. To
the extent the respective Test Period (i) includes the fiscal quarter
ended December 31, 1998, Consolidated Interest Expense for such
fiscal quarter shall be deemed to be $29,400,000, (ii) includes the
fiscal quarter ended March 31, 1999, Consolidated Interest Expense
for such fiscal quarter shall be deemed to be $29,400,000 and (iii)
includes the fiscal quarter ended June 30, 1999, Consolidated
Interest Expense for such fiscal quarter shall be deemed to be
$29,400,000; provided that any additional adjustments required by the
definition of Pro Forma Basis for occurrences after the Initial
Borrowing Date shall also be made.
<PAGE>
"Total Assets" shall mean, at any time, the total
consolidated assets of the U.S. Borrower and its Subsidiaries, as set
forth on the U.S. Borrower's most recent consolidated balance sheet.
"Total A Term Loan Commitment" shall mean the sum of the A
Term Loan Commitments of each of the Banks.
"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 A Revolving Loan Commitment" shall mean the sum of
the A Revolving Loan Commitments of each of the A RL Banks.
"Total B Revolving Loan Commitment" shall mean the sum of
the B Revolving Loan Commitments of each of the B RL Banks.
"Total Commitment" shall mean the sum of the Total Term
Loan Commitment and the Total Revolving Loan Commitment.
"Total Revolving Loan Commitment" shall mean the Total A
Revolving Loan Commitment and the Total B Revolving Loan Commitment.
"Total Term Loan Commitment" shall mean the sum of the
Total A Term Loan Commitment, the Total B Term Loan Commitment and
the Total C Term Loan Commitment.
"Total Unutilized A Revolving Loan Commitment" shall mean,
at any time, (i) the Total A Revolving Loan Commitment at such time
less (ii) the sum of the aggregate principal amount of all A
Revolving Loans and A Swingline Loans at such time plus the Letter of
Credit Outstandings at such time.
"Total Unutilized B Revolving Loan Commitment" shall mean,
at any time, (i) the Total B Revolving Loan Commitment at such time
less (ii) the sum of the aggregate Principal Amount of all B
Revolving Loans and B Swingline Loans at such time.
"Transaction" shall mean, collectively, (i) the
consummation of the Recapitalization, (ii) the consummation of the
Refinancing, (iii) the occurrence of the Effective Date and the
Credit Events hereunder on such date, (iv) such other transactions as
contemplated by the Transaction Documents and (v) the payment of fees
and expenses in connection with the foregoing.
"Transaction Documents" shall mean, collectively, the
Credit Documents, the Recapitalization Documents, and the Refinancing
Documents.
"Triggering Event" shall mean (i) the occurrence and
continuation of any Event of Default under Section 9.01 or 9.05 or
(ii) the acceleration of the maturity of the Obligations as a result
of any Event of Default.
<PAGE>
"Trustee" shall mean the trustee under the Accounts
Receivable Facility, the Supplement to the Accounts Receivable
Pooling and Servicing Agreement and the Accounts Receivable Facility
Pooling and Servicing Agreement, which trustee shall be satisfactory
to the Administrative Agent in its reasonable discretion.
"Type" shall mean any type of Loan determined with respect
to the interest option applicable thereto, i.e., a Base Rate Loan, a
Eurodollar Loan or a B Revolving Loan.
"UCC" shall mean the Uniform Commercial Code as in effect
from time to time in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the actuarial present value of the
accumulated plan benefits under the Plan as of the close of its most
recent plan year exceeds the fair market value of the assets
allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 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.S. Borrower" shall have the meaning provided in the
first paragraph of this Agreement.
"U.S. Borrower Guaranty" shall mean the guaranty of the
U.S. Borrower pursuant to Section 14.
"U.S. Borrower Subordinated Loans" shall have the meaning
provided in Section 8.06(t).
"U.S. Borrower Subordinated Note" shall mean an unsecured
junior subordinated note issued by the U.S. Borrower (and not
guaranteed or supported in any way by any Subsidiary of the U.S.
Borrower) in the form of Exhibit P, as amended, modified or
supplemented from time to time in accordance with the terms hereof
and thereof.
"U.S. Commitment Fee" shall have the meaning provided in
Section 3.01(a).
"U.S. Credit Party" shall mean Holdings, the U.S. Borrower,
and each U.S. Subsidiary Guarantor.
"U.S. Dollar Equivalent" shall mean, at any time for the
determination thereof, the amount of U.S. Dollars which could be
purchased with the amount of Euros involved in such computation at
the spot exchange rate therefor as quoted by BTCo as of 11:00 A.M.
(London time) on the date two Business Days prior to the date of any
determination thereof for purchase on such date.
"U.S. Dollars" and the sign "$" shall each mean freely
transferable lawful money of the United States of America.
<PAGE>
"U.S. Loans" shall have the meaning provided in Section
1.01(A).
"U.S. Subsidiary" shall mean each Subsidiary of a Borrower
which is not a Foreign Subsidiary.
"U.S. Subsidiary Guarantor" shall mean each Subsidiary of
the U.S. Borrower (other than a Foreign Subsidiary except to the
extent otherwise provided in Section 7.16).
"Vendor Financing Program" shall mean one or more vendor
financial services programs between the U.S. Borrower and/or one or
more of its Subsidiaries (including without limitation the Special
Purpose VFP Subsidiary) and a financial institution pursuant to or in
connection with which (w)(i) the U.S. Borrower and/or such Subsidiary
leases instruments to third party customers of the U.S. Borrower
and/or such Subsidiary and (ii) the U.S. Borrower and/or such
Subsidiary sells or otherwise transfers the accounts receivable
related to the lease of the instrument (together with the instrument
that is the subject of the lease) to such financial institution, (x)
(i) the U.S. Borrower and/or such Subsidiary effects Seeded
Instrument Sales or otherwise sells instruments and the rights
related thereto to such financial institution and (ii) such financial
institution leases or sells the instruments so acquired to third
party customers of the U.S. Borrower and/or such Subsidiary, (y) (i)
the U.S. Borrower and/or one of its operating Subsidiaries sells or
otherwise transfers instruments, accounts receivable related thereto
and other accounts receivable related to consumable products or
services of the U.S. Borrower or such Subsidiary to the Special
Purpose VFP Subsidiary, (ii) the Special Purpose VFP Subsidiary
effects Seeded Instrument Sales or otherwise sells instruments and
the rights related thereto to a financial institution and (iii) such
financial institution leases or sells the instruments so acquired to
third party customers of the U.S. Borrower or its Subsidiaries,
and/or (z) (i) the U.S. Borrower and/or such Subsidiary effects
Seeded Instrument Sales or otherwise sells instruments and the rights
related thereto to such financial institution, (ii) the U.S. Borrower
and/or such sold and other accounts receivable related to consumable
products or services of the U.S. Borrower of such Subsidiary to the
Special Purpose VFP Subsidiary, (iii) the Special Purpose VFP
Subsidiary sells some or all of such accounts receivable to such
financial institution and (iv) such financial institution leases or
sells the instruments so acquired to third party customers of the
U.S. Borrower or its Subsidiaries.
"VFP Purchase Money Note" shall mean one or more purchase
money notes issued by the Special Purpose VFP Subsidiary to the U.S.
Borrower and/or one of its Subsidiaries pursuant to or in connection
with the Vendor Financing Program.
"VWR" shall mean VWR Scientific Products Corporation.
"Waivable Mandatory Repayment" shall have the meaning
provided in Section 4.02(C).
<PAGE>
"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.
"Written," "written" or "in writing" shall mean any form of
written communication or a communication by means of telex, facsimile
device, telegraph or cable.
"Year 2000 Compliant" shall mean that all Information
Systems and Equipment accurately process date data (including, but
not limited to, calculating, comparing and sequencing), before,
during and after the year 2000, as well as same and multi-century
dates, or between the years 1999 and 2000, taking into account all
leap years, including the fact that the year 2000 is a leap year, and
further, that when used in combination with, or interfacing with,
other Information Systems and Equipment, shall accurately accept,
release and exchange date data, and shall in all material respects
continue to function in the same manner as it performs today and
shall not otherwise impair the accuracy or functionality of
Information Systems and Equipment.
<PAGE>
SECTION 11. The Agents.
11.01 Appointment. Each Bank hereby irrevocably
designates and appoints BTCo as Administrative Agent (such term to
include, for purposes of this Section 11, BTCo acting in its capacity
as Collateral Agent), Goldman Sachs Credit Partners, L.P. as
Syndication Agent and Donaldson, Lufkin & Jenrette Securities
Corporation and Morgan Stanley Senior Funding, Inc. as Co-
Documentation Agents to act as specified herein and in the other
Credit Documents, and each such Bank hereby irrevocably authorizes
each Agent to take such action on its behalf under the provisions of
this Agreement and the other Credit Documents and to exercise such
powers and perform such duties as are expressly delegated to such
Agent by the terms of this Agreement and the other Credit Documents,
together with such other powers as are reasonably incidental thereto.
The Agents 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, no Agent
shall 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 any Agent. The
provisions of this Section 11 are solely for the benefit of the
Agents and the Banks, and neither Holdings 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, each Agent shall act solely as agent of the
Banks and no Agent assumes nor shall any Agent be deemed to have
assumed any obligation or relationship of agency or trust with or for
Holdings or any of its Subsidiaries.
11.02 Delegation of Duties. Each Agent may execute any of
its duties under this Agreement or any other Credit Document by or
through agents or attorneys-in-fact and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. No
Agent shall be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care
except to the extent otherwise required by Section 11.03.
11.03 Exculpatory Provisions. None of the Administrative
Agent, the Syndication Agent or the Co-Documentation Agents nor 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 it or such person in its
capacity as Administrative Agent, Syndication Agent or Co-
Documentation Agents, as the case may be, 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 Holdings, 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 any Agent under or in connection
with, this Agreement or any other Document or for any failure of
Holdings or any of its Subsidiaries or any of their respective
officers to perform its obligations hereunder or thereunder. No
<PAGE>
Agent shall 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 Holdings
or any of its Subsidiaries. No Agent shall 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 any Agent to the Banks or by or on behalf of Holdings or any
of its Subsidiaries to any 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 Agents. Each 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 it to be genuine
and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to Holdings or any of its
Subsidiaries), independent accountants and other experts selected by
such Agent. Each Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of
the Required Banks as it deems appropriate or it shall 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. Each 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 all of the Banks, to the extent
required by this Agreement), 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. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless such Agent has actually received notice from
a Bank, Holdings or a Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that any Agent
receives such a notice, such Agent shall give prompt notice thereof
to the Banks. Each 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 such Agent shall
have received such directions, such 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.
<PAGE>
11.06 Non-Reliance on Agents and Other Banks. Each Bank
expressly acknowledges that neither any Agent nor any of its
respective officers, directors, employees, agents, attorneys-in-fact
or affiliates have made any representations or warranties to it and
that no act by any Agent hereinafter taken, including any review of
the affairs of Holdings or any of its Subsidiaries, shall be deemed
to constitute any representation or warranty by such Agent to any
Bank. Each Bank represents to each Agent that it has, independently
and without reliance upon any 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 Holdings 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 any 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 Holdings and its
Subsidiaries. No Agent shall 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 Holdings or any of its
Subsidiaries which may come into the possession of such Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
11.07 Indemnification. The Banks agree to indemnify each
Agent in its capacity as such ratably according to their respective
"percentages" as used in determining the Required Banks at such time,
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 such Agent in its capacity as such in any way relating to or
arising out of this Agreement or any other Credit Document, or any
documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted to be taken by
such Agent under or in connection with any of the foregoing, but only
to the extent that any of the foregoing is not paid by Holdings or
any of its Subsidiaries; provided, that no Bank shall be liable to
any Agent for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence
or willful misconduct of such Agent. To the extent any Bank would be
required to indemnify any 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
<PAGE>
been a Defaulting Bank. If any indemnity furnished to any Agent for
any purpose shall, in the opinion of such Agent be insufficient or
become impaired (other than as a result of the gross negligence or
willful misconduct of such Agent), such Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished. The agreements
in this Section 11.07 shall survive the payment of all Obligations.
11.08 Agents in their Individual Capacities. Each Agent
and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with Holdings and its
Subsidiaries as though such Agent were not an Agent hereunder. With
respect to the Loans made by it and all Obligations owing to it, each
Agent shall have the same rights and powers under this Agreement as
any Bank and may exercise the same as though it were not an Agent and
the terms "Bank" and "Banks" shall include each Agent in its
individual capacity.
11.09 Holders. The 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. 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 an Agent; Successor Agents. (a) The
Administrative Agent may resign as the Administrative Agent upon 20
days' notice to the Banks. Upon the resignation of the
Administrative Agent, the Required Banks shall appoint from among the
Banks a successor Administrative Agent which is a bank or a trust
company for the Banks subject, to the extent that no payment Default
or Event of Default has occurred and is then continuing, to prior
approval by Holdings (such approval not to be unreasonably withheld
or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall include such successor agent effective
upon its appointment, and the resigning Administrative Agent's
rights, powers and duties as the Administrative Agent shall be
terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this
Agreement. If a successor Administrative Agent shall not have been
so appointed within such 20 day period after the date such notice of
resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Banks shall
thereafter perform all duties of the Administrative Agent hereunder
and/or under any other Credit Documents until such time, if any, as
the Required Banks appoint a successor Administrative Agent as
provided above. After the resignation of the Administrative Agent
hereunder, the provisions of this Section 11 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent under this Agreement.
<PAGE>
(b) The Syndication Agent may resign from the performance
of all of its functions and duties hereunder and/or under the other
Credit Documents at any time by giving 10 Business Days' prior
written notice to the Administrative Agent and the Banks. Such
resignation shall become effective at the end of such 10 Business Day
period. After the resignation of the Syndication Agent hereunder, the
provisions of this Section 11 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Syndication
Agent under this Agreement.
(c) Either Co-Documentation Agent may resign from the
performance of all its functions and duties hereunder and/or under
the other Credit Documents at any time by giving 10 Business Days'
prior written notice to the Administrative Agent and the Banks. Such
resignation shall become effective at the end of such 10 Business Day
period. After the resignation of either Co-Documentation Agent
hereunder, the provisions of this Section 11 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it
was a Co-Documentation Agent under this Agreement.
11.11 Other Agents. Nothing in the Agreement shall impose
on any Co-Documentation Agent, any Senior Managing Agent, any
Managing Agent or any Co-Agent in respect of this Agreement, in each
case in such capacity, any duties or obligations.
<PAGE>
SECTION 12. Miscellaneous.
12.01 Payment of Expenses, etc. Each Borrower hereby
agrees to: (i) whether or not the transactions herein contemplated
are consummated, pay all reasonable out-of-pocket costs and expenses
of the Agents and the Collateral Agent (including, without
limitation, the reasonable fees and disbursements of White & Case LLP
and local counsel) in connection with the negotiation, preparation,
execution and delivery of the Credit Documents and the documents and
instruments referred to therein and any amendment, waiver or consent
relating thereto and in connection with each Agent's syndication
efforts with respect to this Agreement; (ii) pay all reasonable out-
of-pocket costs and expenses of the Agents, the Co-Documentation
Agents, the Collateral 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, the Co-Documentation Agents, the Collateral Agent and
each of the Banks thereunder (including, without limitation, the
reasonable fees and disbursements of counsel (including in-house
counsel) for each Agent and for each of the Banks); (iii) pay and
hold each of the Banks harmless from and against any and all present
and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Banks harmless from and
against any and all liabilities with respect to or resulting from any
delay or omission (other than to the extent attributable to such
Bank) to pay such taxes; and (iv) indemnify each Agent, the
Collateral Agent and each Bank, its officers, directors, trustees,
employees, representatives and agents from and hold each of them
harmless against any and all losses, liabilities, claims, damages or
expenses incurred by any of them 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 of the Agents, the
Co-Documentation Agents, the Collateral Agent or any Bank is a party
thereto and whether or not any such investigation, litigation or
other proceeding is between or among of the Agents, the Co-
Documentation Agents, the Collateral Agent, any Bank, any Credit
Party or any third Person or otherwise) related to the entering into
and/or performance of this Agreement or any other Document or the use
of the proceeds of any Loans hereunder or the Transaction or the
consummation of any other transactions contemplated in any Document
(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.
<PAGE>
12.02 Right of Setoff; Collateral Matters. (a) In
addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon
the occurrence of an Event of Default, each Bank is hereby authorized
at any time or from time to time, without presentment, demand,
protest or other notice of any kind to Holdings or any of its
Subsidiaries or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other Indebtedness at any time
held or owing by such Bank (including, without limitation, by
branches and agencies of such Bank wherever located) to or for the
credit or the account of Holdings or any of its Subsidiaries against
and on account of the Obligations of Holdings or any of its
Subsidiaries to such Bank under this Agreement or under any of the
other Credit Documents, including, without limitation, all interests
in Obligations of Holdings or any of its Subsidiaries 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 shall be contingent or unmatured.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY
TIME THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL
PROPERTY LOCATED IN CALIFORNIA, NO BANK OR THE ADMINISTRATIVE AGENT
SHALL EXERCISE A RIGHT OF SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY
COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE
ANY PROVISION OF THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH
THE CONSENT OF THE REQUIRED BANKS OR, TO THE EXTENT REQUIRED BY
SECTION 12.12 OF THIS AGREEMENT, ALL OF THE BANKS, OR APPROVED IN
WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF OR ACTION OR
PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL
PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF
CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF
APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY, OR
ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT
TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND
OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY BANK
OR THE ADMINISTRATIVE AGENT OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH
CONSENT OF THE REQUIRED BANKS OR THE ADMINISTRATIVE AGENT SHALL BE
NULL AND VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT
OF EACH OF THE BANKS AND THE ADMINISTRATIVE AGENT HEREUNDER.
12.03 Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder
shall be in writing (including facsimile communication) and mailed,
telecopied or delivered, if to any Credit Party, at the address
specified opposite its signature below or in the other relevant
Credit Documents, as the case may be; if to any Bank, at its address
specified for such Bank on Annex II; or, at such other address as
shall be designated by any party in a written notice to the other
parties hereto. All such notices and communications shall be mailed,
telegraphed, telexed, telecopied or cabled or sent by overnight
courier, and shall be effective when received.
<PAGE>
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, no Credit Party 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 (x) no Bank may transfer or assign all or any portion
of its Commitments hereunder except as provided in Section 12.04(b),
(y) no Indemnity Participation may be assigned except as provided in
Sections 1.14 and 12.04(c) and (z) although any Bank (including the
Fronting Bank) may grant participations in its rights hereunder
pursuant to this Section 12.04(a), such Bank shall remain a "Bank"
for all purposes hereunder and the participant shall not constitute a
"Bank" hereunder and, provided further, that no Bank shall 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 (I) 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 A 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 Borrower of any of its rights and obligations under
this Agreement or (iii) release all or substantially all of the
Collateral under all of the Security Documents (except as expressly
provided in the Credit Documents) supporting the Loans hereunder in
which such participant is participating and (II) in the case of an
Indemnity Participation, as provided in Section 1.14. In the case of
any such participation (other than an Indemnity Participation which
shall be governed by the provisions of Section 1.14 and 12.04(c)),
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 a Borrower hereunder shall be
determined as if such Bank had not sold such participation.
<PAGE>
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a
portion of its Revolving Loan Commitment (and related outstanding
Obligations hereunder) and/or its outstanding Term Loans 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 a Related Fund of
such Bank or to one or more Banks or (y) assign all, or if less than
all, a portion equal to at least $5,000,000 in the aggregate for the
assigning Bank or assigning Banks, of such Revolving Loan Commitments
and outstanding principal amount of Term Loans hereunder to one or
more Eligible Transferees (treating (1) any fund that invests in bank
loans and (2) any other fund that invests in bank loans and is
managed by the same investment advisor as such fund or by an
Affiliate of such investment advisor, as a single Eligible
Transferee, provided that if any such fund subsequently assigns all
or any part of its Revolving Loan Commitment or outstanding Term
Loans pursuant to the clause (y), such assignment must be in an
amount of at least $5,000,000 (either individually or when taken
together with the amount assigned by Related Funds), unless the
aggregate amount of Revolving Loan Commitments and Term Loans held by
all such Related Funds is less than $5,000,000, in which case such
aggregate amount may be assigned), 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 U.S. Borrower's expense, to such new Bank and
to the assigning Bank upon request, such new Notes to be in
conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised
Commitments (and/or outstanding Term Loans, as the case may be),
(iii) the consent of the 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 or
delayed), (iv) at any time when no Event of Default is in existence,
and when no Default exists pursuant to Section 9.01 or 9.05, the
consent of the U.S. Borrower 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 or delayed), except
in connection with an assignment pursuant to said clause (y) within
two weeks following the Initial Borrowing Date made as part of the
primary syndication of Loans and Commitments and (v) the
Administrative Agent shall receive at the time of each such
assignment, from the assigning or assignee Bank, the payment of a
non-refundable assignment fee of $3,500 and, provided further, that
such transfer or assignment will not be effective until recorded by
the Administrative Agent on the Register pursuant to Section 7.13
hereof. To the extent of any assignment pursuant to this Section
12.04(b), the assigning Bank shall be relieved of its obligations
hereunder. At the time of each assignment pursuant to this Section
12.04(b) to a Person which is not already a Bank hereunder and which
is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Bank shall provide to the U.S. Borrower and the
Administrative Agent the appropriate Internal Revenue Service Forms
<PAGE>
(and, if applicable a Section 4.04(b)(ii) Certificate) described in
Section 4.04(b). To the extent that an assignment of all or any
portion of a Bank's 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 under Section 1.10,
1.11, 2.05, 4.04(a) or 4.04(c) from those being charged by the
respective assigning Bank prior to such assignment, then the U.S.
Borrower shall not be obligated to pay such increased costs (although
the U.S. Borrower shall be obligated to pay any other increased costs
of the type described above resulting from changes after the date of
the respective assignment).
(c) Notwithstanding the foregoing, any Indemnifying Bank
(or any Indemnifying Bank together with one or more other
Indemnifying Banks) may (x) assign all or a portion of its Indemnity
Participation (and related Indemnity Amount) to its parent company
and/or any affiliate of such Indemnifying Bank which is at least 50%
owned by such Indemnifying Bank or its parent company or a Related
Fund of such Indemnifying Bank or to one or more Banks or
Indemnifying Banks or (y) assign all, or if less than all, a portion
equal to at least $5,000,000 in the aggregate for the assigning
Indemnifying Bank or assigning Indemnifying Banks, of such Indemnity
Participation (and related Indemnity Amount) to one or more Eligible
Transferees (treating (1) any fund that invests in bank loans and (2)
any other fund that invests in bank loans and is managed by the same
investment advisor as such fund or by an Affiliate of such investment
advisor, as a single Eligible Transferee, provided that if any such
fund subsequently assigns all or any part of its Indemnity
Participation pursuant to this clause (y), such assignment must be in
an amount of at least $5,000,000 (either individually or when taken
together with the amount assigned by Related Funds), unless the
aggregate amount of Indemnity Participations held by all such Related
Funds is less than $5,000,000 in which case such aggregate amount may
be assigned), each of which assignees shall become an Indemnifying
Bank by execution of an Assignment and Assumption Agreement, provided
that (i) at such time Annex I shall be deemed modified to reflect the
Indemnity Participation (and related Indemnity Amount) of such new
Indemnifying Bank and of the existing Indemnifying Banks, (ii) the
consent of the Administrative Agent and the Fronting Bank shall be
required in connection with any such assignment pursuant to clause
(y) of this Section 12.04(c) (which consent shall not be unreasonably
withheld or delayed), (iii) at any time when no Event of Default is
in existence, and when no Default exists pursuant to Section 9.01 or
9.05, the consent of the U.S. Borrower shall be required in
connection with any such assignment pursuant to clause (y) of this
Section 12.04(c) (which consent shall not be unreasonably withheld or
delayed), and (iv) the Administrative Agent shall receive at the time
of each such assignment, from the assigning or assignee Indemnifying
Bank, the payment of a non-refundable assignment fee of $3,500 and,
provided further, that such transfer or assignment will not be
effective until recorded by the Administrative Agent on the Register
pursuant to Section 7.13 hereof. To the extent of any assignment
pursuant to this Section 12.04(c), the assigning Indemnifying Bank
shall be relieved of its Indemnity Participation. At the time of
each assignment pursuant to this Section 12.04(b) to a Person which
is not already a Bank or an Indemnifying Bank hereunder and which is
not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Indemnifying Bank shall provide to the U.S.
Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable a Section 4.04(b)(ii)
Certificate) described in Section 4.04(b).
<PAGE>
(d) Nothing in this Agreement shall prevent or prohibit
any Bank from pledging its Loans and Notes hereunder to a Federal
Reserve Bank in support of borrowings made by such Bank from such
Federal Reserve Bank.
(e) Notwithstanding anything to the contrary contained in
this Section 12.04, any Bank which is a fund may, with the consent of
the U.S. Borrower and the Administrative Agent (such consent not to
be unreasonably withheld), pledge all or any portion of its Notes or
Loans to a trustee for the benefit of investors and in support of its
obligations to such investors.
12.05 No Waiver; Remedies Cumulative. No failure or delay
on the part of the Agents, the Co-Documentation Agents 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 of the Agents, the Co-Documentation Agents, the Collateral 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 of the Agents, the Co-Documentation Agents, the
Collateral 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, the
Co-Documentation Agents, the Collateral Agent 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.
(c) Notwithstanding anything to the contrary contained
herein, the provisions of the preceding Sections 12.06(a) and (b)
shall be subject to the express provisions of this Agreement which
require, or permit, differing payments to be made to Non-Defaulting
Banks as opposed to Defaulting Banks.
<PAGE>
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 Holdings or the U.S. Borrower to
the Banks); provided, that (x) fees payable pursuant to Section
8.08(iii) may be excluded in computations of Consolidated EBITDA, (y)
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 December 31, 1998
financial statements delivered to the Banks pursuant to Section
6.10(b) but shall not give effect to purchase accounting adjustments
required or permitted by APB 16 (including non-cash write ups and
non-cash charges relating to inventory, fixed assets and in process
research and development, in each case arising in connection with any
Permitted Acquisition) and APB 17 (including non-cash charges
relating to intangibles and goodwill arising in connection with any
Permitted Acquisition); provided that for purposes of any
determination of the Euro Equivalent in connection with a mandatory
repayment pursuant to Section 4.02(A)(a)(ii), the Euro Equivalent of
any Alternate B Currency Loan shall be calculated on the second
Business day of each calendar quarter, and (z) if at any time the
computations determining compliance with Sections 4.02 and 8 utilize
accounting principles different from those utilized in the financial
statements furnished to the Banks, such financial statements shall be
accompanied by reconciliation work-sheets; provided further, that (i)
to the extent expressly required pursuant to the provisions of this
Agreement, certain calculations shall be made on a Pro Forma Basis,
and (ii) in the case of any determinations of Consolidated Interest
Expense for any portion of any Test Period which ends prior to the
Initial Borrowing Date, all computations determining compliance with
Section 8.10 and all determinations of the Consolidated Interest
Coverage Ratio shall be calculated in accordance with the definition
of Test Period contained herein.
(b) All computations of interest and Fees hereunder shall
be made on the actual number of days elapsed over a year of 360 days.
(c) For purposes of this Agreement, the Euro Equivalent of
each Alternate B Currency Loan shall be calculated on the date when
any such Alternate B Currency Loan is made or repaid, on the second
Business Day of each month and at such other times as designated by
the Administrative Agent at any time when a Default under Section
9.01 or an Event of Default exists; provided that for purposes of any
determination of the Euro Equivalent in connection with a mandatory
repayment pursuant to Section 4.02(A)(a)(ii), the Euro Equivalent of
any Alternate B Currency Loan shall be calculated on the second
Business day of each calendar quarter. Such Euro Equivalent shall
remain in effect until the same is recalculated by the Administrative
Agent as provided above and notice of such recalculation is received
by the U.S. Borrower and the German Borrower, it being understood
that until such notice is received, the Euro Equivalent shall be that
Euro Equivalent as last reported to the Borrowers by the
Administrative Agent. The Administrative Agent shall promptly notify
each Borrower and the Banks of each such determination of the Euro
Equivalent.
<PAGE>
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 the Agents,
the Co-Documentation Agents, the Collateral Agent or 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. In addition, the German
Borrower hereby appoints CT Corporation System as its agent to
receive service of process in connection with this Agreement or any
other Credit Document.
(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 Holdings, the U.S.
Borrower and the Administrative Agent.
<PAGE>
12.10 Effectiveness. This Agreement shall become
effective on the date (the "Effective Date") on which Holdings, each
Borrower, each of the Banks, the Co-Documentation Agents, the
Syndication Agent and the Administrative Agent shall have signed a
counterpart hereof (whether the same or different counterparts) and
shall have delivered the same to the Administrative Agent at its
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 Holdings, the U.S. Borrower 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 in the case of 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 A
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) release all or substantially
all of the Guarantees (except as expressly provided in the Credit
Documents), (iv) amend, modify or waive any provision of this Section
12.12, (v) reduce the percentage specified in the definition of
Required Banks (it being understood that, with the consent of the
Required Banks, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Banks
on substantially the same basis as the extensions of Term Loans and
Revolving Loan Commitments are included on the Effective Date) or
(vi) consent to the assignment or transfer by a Borrower of any of
its rights and obligations under this Agreement; provided further,
that no such change, waiver, discharge or termination shall (1)
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), (2) without the consent of BTCo, amend, modify or waive
any provision of Section 2 or alter its rights or obligations with
respect to Letters of Credit or Swingline Loans, (3) without the
consent of each applicable 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,
<PAGE>
(4) without the consent of the Collateral Agent, amend, modify or
waive any provision relating to the rights or obligations of the
Collateral Agent, (5) without the consent of the Majority Banks of
each Facility which is being allocated a lesser prepayment, repayment
or commitment reduction as a result of the actions described below
(or without the consent of the Majority Banks of each Facility in the
case of an amendment to the definition of Majority Banks), amend the
definition of Majority Banks or alter the required application of any
prepayments or repayments (or commitment reduction), as between the
various Facilities pursuant to Section 4.01(a) or 4.02(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), (6) without the consent of the
Supermajority Banks of the respective Facility, amend the definition
of Supermajority Banks or amend downward, waive or reduce any
Scheduled Repayment of such affected Facility or (7) without the
consent of the Indemnifying Banks holding a majority of the then
outstanding Indemnity Participations, amend, modify, terminate or
waive any provision of Section 1.14 or of the component definitions
used therein.
(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 U.S. Borrower shall
have the right, so long as all non-consenting Banks whose individual
consent is required are treated as described in either clause (A) or
(B) below, to either (A) replace each such non-consenting Bank or
Banks 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 U.S.
Borrower 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).
(c) In connection with any replacement of Banks pursuant
to, and as contemplated by, this Section 12.12, the German Borrower
hereby irrevocably authorizes the U.S. Borrower to take all necessary
action, in the name of the German Borrower, as described above in
this Section 12.12 in order to effect the replacement of the
respective Bank or Banks in accordance with this Section 12.12.
<PAGE>
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, subject to the provisions of Section 12.19 (to
the extent applicable), survive the execution and delivery of this
Agreement and the making and repayment of the Loans.
12.14 Domicile of Loans. Each Bank may transfer and carry
its Loans at, to or for the account of any branch office, subsidiary
or affiliate of such Bank; provided, that a Borrower shall not be
responsible for costs arising under Section 1.10, 1.11, 2.05 or 4.04
resulting from any such transfer (other than a transfer pursuant to
Section 1.12) to the extent such costs would not otherwise be
applicable to such Bank in the absence of such transfer.
12.15 Confidentiality. (a) Each of the Banks agrees that
it will use its best efforts not to disclose without the prior
consent of the U.S. Borrower (other than to its employees, officers,
directors, 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 Holdings, either Borrower or any of their respective Subsidiaries
which is furnished pursuant to this Agreement; provided, that any
Bank may (without such consent) disclose any such information (a) as
was generally available to the public at the time of disclosure or as
has become generally available to the public or has become available
to such Bank on a non-confidential basis, (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, the
Federal Deposit Insurance Corporation, the NAIC or similar
organizations (whether in the United States or elsewhere) or their
successors, (c) as may be required or appropriate in response to any
summons or subpoena or in connection with any litigation or other
legal process, (d) in order to comply with any law, order, regulation
or ruling applicable to such Bank, and (e) to any prospective
transferee or its investment advisor in connection with any
contemplated transfer of any of the Notes or any interest therein by
such Bank; provided, that such prospective transferee or investment
advisor agrees to be bound by the provisions of this Section 12.15 to
the same extent as such Bank.
(b) Each of Holdings and each Borrower hereby acknowledges
and agrees that each Bank may share with any of its affiliates any
information related to Holdings or any of its Subsidiaries
(including, without limitation, any nonpublic customer information
regarding the creditworthiness of Holdings and its Subsidiaries,
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.
<PAGE>
12.17 Judgment Currency. (a) The Credit Parties'
obligations hereunder and under the other Credit Documents to make
payments in the applicable Approved Currency (the "Obligation
Currency") shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any
currency other than the Obligation Currency, except to the extent
that such tender or recovery results in the effective receipt by the
Administrative Agent, the Collateral Agent or the respective Bank of
the full amount of the Obligation Currency expressed to be payable to
the Administrative Agent, the Collateral Agent or such Bank under
this Agreement or the other Credit Documents. If, for the purpose of
obtaining or enforcing judgment against any Credit Party in any court
or in any jurisdiction, it becomes necessary to convert into or from
any currency other than the Obligation Currency (such other currency
being hereinafter referred to as the "Judgment Currency") an amount
due in the Obligation Currency, the conversion shall be made at the
Approved Currency Equivalent, and, in the case of other currencies,
the rate of exchange (as quoted by the Administrative Agent or if the
Administrative Agent does not quote a rate of exchange on such
currency, by a known dealer in such currency designated by the
Administrative Agent determined, in each case, as of the Business Day
immediately preceding the day on which the judgment is given (such
Business Day being hereinafter referred to as the "Judgment Currency
Conversion Date").
(b) If there is a change in the rate of exchange
prevailing between the Judgment Currency Conversion Date and the date
of actual payment of the amount due, the Borrowers covenant and agree
to pay, or cause to be paid, such additional amounts, if any (but in
any event not a lesser amount) as may be necessary to ensure that the
amount paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount
of the Obligation Currency which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency
Conversion Date.
(c) For purposes of determining the Approved Currency
Equivalent or any other rate of exchange for this Section, such
amounts shall include any premium and costs payable in connection
with the purchase of the Obligation Currency.
12.18 Euro. If at any time that an Alternate B Currency
Loan is outstanding, the relevant Alternate B Currency is fully
replaced as the lawful currency of the country that issued such
Alternate B Currency (the "Issuing Country") by the Euro so that all
payments are to be made in the Issuing Country in Euros and not in
the Alternate B Currency previously the lawful currency of such
country, then such Alternate B Currency Loan shall be automatically
converted into a Loan denominated in Euros in a principal amount
equal to the amount of Euros into which the principal amount of such
Alternate B Currency Loan would be converted pursuant to the EMU
Legislation and thereafter no further Loans will be available in such
Alternate B Currency, with the basis of accrual of interest, notice
requirements and payment offices with respect to such converted Loans
to be that consistent with the convention and practices in the London
interbank market for Euro denominated Loans.
<PAGE>
12.19 Limitation on Additional Amounts, etc.
Notwithstanding anything to the contrary contained in Section 1.10,
1.11, 2.05 or 4.04 of this Agreement, unless a Bank gives notice to
the respective Borrower that it is obligated to pay an amount under
such Section within six months after the later of (x) the date the
Bank incurs the respective increased costs, Taxes, loss, expense or
liability, reduction in amounts received or receivable or reduction
in return on capital or (y) the date such Bank has actual knowledge
of its incurrence of the respective increased costs, Taxes, loss,
expense or liability, reductions in amounts received or receivable or
reduction in return on capital, then such Bank shall only be entitled
to be compensated for such amount by such Borrower pursuant to said
Section 1.10, 1.11, 2.05 or 4.04, as the case may be, to the extent
of the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital that are
incurred or suffered on or after the date which occurs six months
prior to such Bank giving notice to such Borrower that it is
obligated to pay the respective amounts pursuant to said Section
1.10, 1.11, 2.05 or 4.04, as the case may be. This Section 12.19
shall have no applicability to any Section of this Agreement other
than said Sections 1.10, 1.11, 2.05 and 4.04.
12.20 Post-Closing Actions. Notwithstanding anything to
the contrary contained in this Agreement or the other Credit
Documents, the parties hereto acknowledge and agree that:
(a) Security Document Filings. Form UCC-1 financing
statements (or other appropriate local equivalent) delivered by
the Borrower to the Collateral Agent on the Initial Borrowing
Date shall be filed in the appropriate governmental office
within 5 days following the Initial Borrowing Date.
(b) Opinions of Foreign Counsel. Within 90 days following
the Initial Borrowing Date, the Collateral Agent shall have
received additional opinions, addressed to each Agent, the
Collateral Agent and each of the Banks from foreign counsel to
Credit Parties and/or the Agents reasonably satisfactory to the
Collateral Agent, which opinions (x) shall cover the perfection
and enforceability as against third parties of the security
interests granted pursuant to the Security Documents and such
other matters relating to the transactions contemplated herein
as the Collateral Agent may reasonably request and (y) shall be
in form and substance reasonably satisfactory to the Collateral
Agent.
(c) Real Estate Matters. Within 90 days following the
Initial Borrowing Date, the U.S. Borrower shall have used
commercially reasonable efforts to obtain such estoppel letters,
landlord waiver letters, non-disturbance letters and similar
assurances as may have been reasonably requested by the
Collateral Agent, which letters shall be in form and substance
reasonably satisfactory to the Collateral Agent.
<PAGE>
(d) Foreign Pledge Agreements. Within 90 days following
the Initial Borrowing Date, the U.S. Borrower shall have duly
authorized, executed and delivered a Foreign Pledge Agreement
covering 65% of the capital stock of each first-tier Foreign
Subsidiary of such U.S. Borrower (other than an Excluded Pledge
Subsidiary), in each case together with evidence of the
completion of all recordings and filings of, or with respect to
the Foreign Pledge Agreements as may be necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect
the security interest intended to be created by the Foreign
Pledge Agreements.
(e) Dade County Mortgaged Property. With respect to the
Mortgaged Property located at 1851 Delaware Parkway, Dade
County, Florida (which is the subject of a contemplated sale as
of the Initial Borrowing Date), on or prior to the Initial
Borrowing Date, the U.S. Borrower will execute and deliver to
the Collateral Agent a Mortgage (in notarized form), and the
U.S. Borrower and the Collateral Agent will agree on the form of
the title policy to be issued in connection therewith, the form
of legal opinion to be delivered in connection therewith and the
valuation of such Mortgaged Property. If such Mortgaged
Property is not sold by December 31, 1999, (i) the Collateral
Agent shall be entitled to file such Mortgage in the appropriate
filing office, (ii) the U.S. Borrower will cause to be delivered
to the Collateral Agent the title policy and opinion in the form
referred to above and (iii) the U.S. Borrower will pay the
mortgage recording tax, intangible tax and title policy premium
payable in connection therewith.
All provisions of this Credit Agreement and the other
Credit Documents (including, without limitation, all conditions
precedent, representations, warranties, covenants, events of default
and other agreements herein and therein) shall be deemed modified to
the extent necessary to effect the foregoing (and to permit the
taking of the actions described above within the time periods,
required above, rather than as otherwise provided in the Credit
Documents); provided, that (x) to the extent any representation and
warranty would not be true because the foregoing actions were not
taken on the Initial Borrowing Date, the respective representation
and warranty shall be required to be true and correct in all material
respects at the time the respective action is taken (or was required
to be taken) in accordance with the foregoing provisions of this
Section 12.20 and (y) all representations and warranties relating to
the Security Documents shall be required to be true immediately after
the actions required to be taken by Section 12.20 have been taken (or
were required to be taken). The acceptance of the benefits of the
Loans shall constitute a representation, warranty and covenant by the
Borrowers to each of the Banks that the actions required pursuant to
this Section 12.20 will be, or have been, taken within the relevant
time periods referred to in this Section 12.20 and that, at such
time, all representations and warranties contained in this Credit
Agreement and the other Credit Documents shall then be true and
correct in all material respects without any modification pursuant to
this Section 12.20. The parties hereto acknowledge and agree that
the failure to take any of the actions required above, within the
relevant time periods required above, shall give rise to an immediate
Event of Default pursuant to this Agreement.
<PAGE>
12.21 Senior Subordinated Notes. The U.S. Borrower
intends that (a) the A Revolving Loan Facility, the B Revolving Loan
Facility and a portion of the Term Loans contemplated by this
Agreement will constitute indebtedness pursuant to the Bank Credit
Agreement exception to the Senior Subordinated Note Indenture (as
described in clause (ii) of the definition of Permitted Indebtedness
therein) and (b) the balance of the Term Loans contemplated by this
Agreement will constitute indebtedness incurred in compliance with
the limitation on indebtedness covenant set forth in the Senior
Subordinated Note Indenture.
SECTION 13. Holdings Guaranty.
13.01 The Guaranty. In order to induce the Banks to enter
into this Agreement and to extend credit hereunder and in recognition
of the direct benefits to be received by Holdings from the proceeds
of the Loans and the issuance of the Letters of Credit, Holdings
hereby agrees with the Banks as follows: Holdings hereby
unconditionally and irrevocably guarantees as primary obligor and not
merely as surety the full and prompt payment when due, whether upon
maturity, acceleration or otherwise, of any and all of the Guaranteed
Obligations of each of the Borrowers to the Guaranteed Creditors. If
any or all of the Guaranteed Obligations of the Borrowers to the
Guaranteed Creditors becomes due and payable hereunder, Holdings
unconditionally promises to pay such indebtedness to the Guaranteed
Creditors, or order, on demand, together with any and all expenses
which may be incurred by the Guaranteed Creditors in collecting any
of the Guaranteed Obligations. If claim is ever made upon any
Guaranteed Creditor for repayment or recovery of any amount or
amounts received in payment or on account of any of the Guaranteed
Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or
any of its property or (ii) any settlement or compromise of any such
claim effected by such payee with any such claimant (including the
Borrowers), then and in such event Holdings agrees that any such
judgment, decree, order, settlement or compromise shall be binding
upon Holdings, notwithstanding any revocation of this Holdings
Guaranty or any other instrument evidencing any liability of the
Borrowers, and Holdings shall be and remain liable to the aforesaid
payees hereunder for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by any
such payee.
13.02 Bankruptcy. Additionally, Holdings unconditionally
and irrevocably guarantees the payment of any and all of the
Guaranteed Obligations of the Borrowers to the Guaranteed Creditors
whether or not due or payable by any Borrower upon the occurrence of
any of the events specified in Section 9.05, and unconditionally
promises to pay such indebtedness to the Guaranteed Creditors, or
order, on demand, in the applicable Approved Currency.
<PAGE>
13.03 Nature of Liability. The liability of Holdings
hereunder is exclusive and independent of any security for or other
guaranty of the Guaranteed Obligations of the Borrowers whether
executed by Holdings, any other guarantor or by any other party, and
the liability of Holdings hereunder is not affected or impaired by
(a) any direction as to application of payment by any Borrower or by
any other party, or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party
as to the Guaranteed Obligations of any Borrower, or (c) any payment
on or in reduction of any such other guaranty or undertaking, or (d)
any dissolution, termination or increase, decrease or change in
personnel by any Borrower, or (e) any payment made to any Guaranteed
Creditor on the Guaranteed Obligations which any such Guaranteed
Creditor repays to any Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and Holdings waives any right to the deferral or
modification of its obligations hereunder by reason of any such
proceeding.
13.04 Independent Obligation. The obligations of Holdings
hereunder are independent of the obligations of any Borrower, any
other guarantor or any other person, and a separate action or actions
may be brought and prosecuted against Holdings whether or not action
is brought against any Borrower, any other guarantor or any other
person and whether or not any Borrower, any other guarantor or any
other person be joined in any such action or actions. Holdings
waives, to the full extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by the Borrowers or other
circumstance which operates to toll any statute of limitations as to
any Borrower shall operate to toll the statute of limitations as to
Holdings. No invalidity, irregularity or unenforceability of all or
any part of the Guaranteed Obligations or of any security therefor
shall affect, impair or be a defense to this Holdings Guaranty, and
this Holdings Guaranty shall be primary, absolute and unconditional
notwithstanding the occurrence of any event or the existence of any
other circumstances which might constitute a legal or equitable
discharge of a surety or guarantor except payment in full of the
Guaranteed Obligations.
13.05 Authorization. Holdings authorizes the Guaranteed
Creditors without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or
impairing its liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of,
and/or change or extend the time of payment of, renew, increase,
accelerate or alter, any of the Guaranteed Obligations
(including any increase or decrease in the rate of interest
thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and this Holdings
Guaranty shall apply to the Guaranteed Obligations as so
changed, extended, renewed or altered;
<PAGE>
(b) take and hold security for the payment of the
Guaranteed Obligations and sell, exchange, release, surrender,
realize upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against
any Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, the Borrowers or other obligors;
(e) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability (including
any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and may subordinate the payment of
all or any part thereof to the payment of any liability (whether
due or not) of any Borrower to its creditors other than the
Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever
realized to any liability or liabilities of any Borrower to the
Guaranteed Creditors regardless of what liability or liabilities
of Holdings or such Borrower remain unpaid;
(g) consent to or waive any breach of, or any act,
omission or default under, this Agreement or any of the
instruments or agreements referred to herein, or otherwise
amend, modify or supplement this Agreement or any of such other
instruments or agreements; and/or
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or
equitable discharge of Holdings from its liabilities under this
Holdings Guaranty.
13.06 Reliance. It is not necessary for any Guaranteed
Creditor to inquire into the capacity or powers of any Borrower or
the officers, directors, partners or agents acting or purporting to
act on its behalf, and any Guaranteed Obligations made or created in
reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
<PAGE>
13.07 Subordination. Any of the indebtedness of any
Borrower now or hereafter owing to Holdings is hereby subordinated to
the Guaranteed Obligations of such Borrower owing to the Guaranteed
Creditors; and if the Administrative Agent so requests at a time when
an Event of Default exists, all such indebtedness of such Borrower to
Holdings shall be collected, enforced and received by Holdings for
the benefit of the Guaranteed Creditors and be paid over to the
Administrative Agent on behalf of the Guaranteed Creditors on account
of the Guaranteed Obligations of the Borrowers to the Guaranteed
Creditors, but without affecting or impairing in any manner the
liability of Holdings under the other provisions of this Holdings
Guaranty. Prior to the transfer by Holdings of any note or
negotiable instrument evidencing any of the indebtedness of any
Borrower to Holdings, Holdings shall mark such note or negotiable
instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing,
Holdings hereby agrees with the Guaranteed Creditors that it will not
exercise any right of subrogation which it may at any time otherwise
have as a result of this Holdings Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code or otherwise) until all
Guaranteed Obligations have been irrevocably paid in full in cash.
13.08 Waiver. (a) Holdings waives any right (except as
shall be required by applicable statute and cannot be waived) to
require any Guaranteed Creditor to (i) proceed against any Borrower,
any other guarantor or any other person, (ii) proceed against or
exhaust any security held from any Borrower, any other guarantor or
any other person or (iii) pursue any other remedy in any Guaranteed
Creditor's power whatsoever. Holdings waives any defense based on or
arising out of any defense of any Borrower, any other guarantor or
any other person, other than payment in full of the Guaranteed
Obligations, based on or arising out of the disability of any
Borrower, any other guarantor or any other person, or the validity,
legality or unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the
liability of any Borrower other than payment in full of the
Guaranteed Obligations. The Guaranteed Creditors may, at their
election, foreclose on any security held by the Administrative Agent,
the Collateral Agent or any other Guaranteed Creditor by one or more
judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy
the Guaranteed Creditors may have against any Borrower, any other
guarantor or any other person, or any security, without affecting or
impairing in any way the liability of Holdings hereunder except to
the extent the Guaranteed Obligations have been paid in full.
Holdings waives any defense arising out of any such election by the
Guaranteed Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right
or remedy of Holdings against any Borrower or any other person or any
security.
<PAGE>
(b) Holdings waives all presentments, demands for
performance, protests and notices, including, without limitation,
notices of nonperformance, notices of protest, notices of dishonor,
notices of acceptance of this Holdings Guaranty, and notices of the
existence, creation or incurring of new or additional Guaranteed
Obligations. Holdings assumes all responsibility for being and
keeping itself informed of each Borrowers' financial condition and
assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which Holdings assumes and incurs hereunder, and
agrees that the Guaranteed Creditors shall have no duty to advise
Holdings of information known to them regarding such circumstances or
risks.
(c) Holdings hereby acknowledges and affirms that it
understands that to the extent the Guaranteed Obligations are secured
by real property located in the State of California, Holdings shall
be liable for the full amount of its liability hereunder
notwithstanding foreclosure on such real property by trustee sale or
any other reason impairing Holdings' or any secured creditor's right
to proceed against any Borrower or any other guarantor of the
Guaranteed Obligations.
(d) Holdings hereby waives, to the fullest extent
permitted by applicable law, all rights and benefits under Sections
580a, 580b, 580d and 726 of the California Code of Civil Procedure.
Holdings hereby further waives, to the fullest extent permitted by
applicable law, without limiting the generality of the foregoing or
any other provision hereof, all rights and benefits which might
otherwise be available to Holdings under Sections 2809, 2810, 2815,
2819, 2821, 2839, 2845, 2848, 2849, 2850, 2899 and 3433 of the
California Civil Code.
(e) Holdings further understands, is aware and hereby
acknowledges that if the Guaranteed Creditors elect to nonjudicially
foreclose on any real property security located in the State of
California any right of subrogation of Holdings against any Credit
Party may be impaired or extinguished and that as a result of such
impairment or extinguishment of subrogation rights, Holdings may have
a defense to a deficiency judgment arising out of the operation of
Section 580d of the California Code of Civil Procedure and related
principles of estoppel. Holdings waives all rights and defenses
arising out of an election of remedies by the Banks, even though that
election of remedies, such as a nonjudicial foreclosure with respect
to security for a guaranteed obligation, has destroyed the
guarantor's rights of subrogation and reimbursement against the
principal by the operation of Section 580d of the California Code of
Civil Procedure or otherwise.
(f) Until such time as the Guaranteed Obligations (other
than indemnification obligations which are not then due and owing)
have been paid in full in cash, Holdings hereby waives all rights of
subrogation which it may at any time otherwise have as a result of
this Holdings Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code or otherwise) to the claims of the Guaranteed
Creditors against any Borrower or any other guarantor of the
Guaranteed Obligations and all contractual, statutory or common law
rights of reimbursement, contribution or indemnity from any Borrower
or any other guarantor which it may at any time otherwise have as a
result of this Holdings Guaranty.
<PAGE>
13.09 Nature of Liability. It is the desire and intent of
Holdings and the Guaranteed Creditors that this Holdings Guaranty
shall be enforced against Holdings to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in
which enforcement is sought. If, however, and to the extent that,
the obligations of Holdings under this Holdings Guaranty shall be
adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers), then the amount of
the Guaranteed Obligations of Holdings shall be deemed to be reduced
and Holdings shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable law.
13.10 Payment. All payments made by Holdings pursuant to
this Section 13 shall be made in the applicable Approved Currency in
which the Guaranteed Obligations are then due and payable. All
payments made by Holdings pursuant to this Section 13 will be made
without setoff, counterclaim or other defense, and shall be subject
to the provisions of Section 4.04.
SECTION 14. U.S. Borrower Guaranty.
14.01 The Guaranty. In order to induce the Banks to enter
into this Agreement and to extend credit hereunder and in recognition
of the direct benefits to be received by the U.S. Borrower from the
proceeds of the Loans and the issuance of the Letters of Credit, the
U.S. Borrower hereby agrees with the Banks as follows: the U.S.
Borrower hereby unconditionally and irrevocably guarantees as primary
obligor and not merely as surety the full and prompt payment when
due, whether upon maturity, acceleration or otherwise, of any and all
of the Foreign Guaranteed Obligations of the German Borrower to the
Guaranteed Creditors. If any or all of the Foreign Guaranteed
Obligations of the German Borrower to the Guaranteed Creditors
becomes due and payable hereunder, the U.S. Borrower unconditionally
promises to pay such indebtedness to the Guaranteed Creditors, or
order, on demand, together with any and all expenses which may be
incurred by the Guaranteed Creditors in collecting any of the Foreign
Guaranteed Obligations. If claim is ever made upon any Guaranteed
Creditor for repayment or recovery of any amount or amounts received
in payment or on account of any of the Foreign Guaranteed Obligations
and any of the aforesaid payees repays all or part of said amount by
reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim
effected by such payee with any such claimant (including the German
Borrower), then and in such event the U.S. Borrower agrees that any
such judgment, decree, order, settlement or compromise shall be
binding upon the U.S. Borrower, notwithstanding any revocation of
this U.S. Borrower Guaranty or any other instrument evidencing any
liability of the German Borrower, and the U.S. Borrower shall be and
remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
<PAGE>
14.02 Bankruptcy. Additionally, the U.S. Borrower
unconditionally and irrevocably guarantees the payment of any and all
of the Foreign Guaranteed Obligations of the German Borrower to the
Guaranteed Creditors whether or not due or payable by the German
Borrower upon the occurrence of any of the events specified in
Section 9.05, and unconditionally promises to pay such indebtedness
to the Guaranteed Creditors, or order, on demand, in the applicable
Approved Currency.
14.03 Nature of Liability. The liability of the U.S.
Borrower hereunder is exclusive and independent of any security for
or other guaranty of the Foreign Guaranteed Obligations of the German
Borrower whether executed by the U.S. Borrower, any other guarantor
or by any other party, and the liability of the U.S. Borrower
hereunder is not affected or impaired by (a) any direction as to
application of payment by the German Borrower or by any other party,
or (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the Foreign
Guaranteed Obligations of the German Borrower, or (c) any payment on
or in reduction of any such other guaranty or undertaking, or (d) any
dissolution, termination or increase, decrease or change in personnel
by the German Borrower, or (e) any payment made to any Guaranteed
Creditor on the Foreign Guaranteed Obligations which any such
Guaranteed Creditor repays to the German Borrower pursuant to court
order in any bankruptcy, reorganization, arrangement, moratorium or
other debtor relief proceeding, and the U.S. Borrower waives any
right to the deferral or modification of its obligations hereunder by
reason of any such proceeding.
14.04 Independent Obligation. The obligations of the
U.S. Borrower hereunder are independent of the obligations of the
German Borrower, any other guarantor or any other person, and a
separate action or actions may be brought and prosecuted against the
U.S. Borrower whether or not action is brought against the German
Borrower, any other guarantor or any other person and whether or not
the German Borrower, any other guarantor or any other person be
joined in any such action or actions. The U.S. Borrower waives, to
the full extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement
thereof. Any payment by the German Borrower or other circumstance
which operates to toll any statute of limitations as to the German
Borrower shall operate to toll the statute of limitations as to the
U.S. Borrower. No invalidity, irregularity or unenforceability of all
or any part of the Foreign Guaranteed Obligations or of any security
therefor shall affect, impair or be a defense to this U.S. Borrower
Guaranty, and this U.S. Borrower Guaranty shall be primary, absolute
and unconditional notwithstanding the occurrence of any event or the
existence of any other circumstances which might constitute a legal
or equitable discharge of a surety or guarantor except payment in
full of the Foreign Guaranteed Obligations.
14.05 Authorization. The U.S. Borrower authorizes the
Guaranteed Creditors without notice or demand (except as shall be
required by applicable statute and cannot be waived), and without
affecting or impairing its liability hereunder, from time to time to:
<PAGE>
(a) change the manner, place or terms of payment of,
and/or change or extend the time of payment of, renew, increase,
accelerate or alter, any of the Foreign Guaranteed Obligations
(including any increase or decrease in the rate of interest
thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and this U.S.
Borrower Guaranty shall apply to the Foreign Guaranteed
Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Foreign
Guaranteed Obligations and sell, exchange, release, surrender,
realize upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Foreign
Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect
thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against
the German Borrower or others or otherwise act or refrain from
acting;
(d) release or substitute any one or more endorsers,
guarantors, the German Borrower or other obligors;
(e) settle or compromise any of the Foreign Guaranteed
Obligations, any security therefor or any liability (including
any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and may subordinate the payment of
all or any part thereof to the payment of any liability (whether
due or not) of the German Borrower to its creditors other than
the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever
realized to any liability or liabilities of the German Borrower
to the Guaranteed Creditors regardless of what liability or
liabilities of the U.S. Borrower or the German Borrower remain
unpaid;
(g) consent to or waive any breach of, or any act,
omission or default under, this Agreement or any of the
instruments or agreements referred to herein, or otherwise
amend, modify or supplement this Agreement or any of such other
instruments or agreements; and/or
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or
equitable discharge of the U.S. Borrower from its liabilities
under this U.S. Borrower Guaranty.
14.06 Reliance. It is not necessary for any Guaranteed
Creditor to inquire into the capacity or powers of the German
Borrower or the officers, directors, partners or agents acting or
purporting to act on its behalf, and any Foreign Guaranteed
Obligations made or created in reliance upon the professed exercise
of such powers shall be guaranteed hereunder.
<PAGE>
14.07 Subordination. Any of the indebtedness of the
German Borrower now or hereafter owing to the U.S. Borrower is hereby
subordinated to the Foreign Guaranteed Obligations of the German
Borrower owing to the Guaranteed Creditors; and if the Administrative
Agent so requests at a time when an Event of Default exists, all such
indebtedness of the German Borrower to the U.S. Borrower shall be
collected, enforced and received by the U.S. Borrower for the benefit
of the Guaranteed Creditors and be paid over to the Administrative
Agent on behalf of the Guaranteed Creditors on account of the Foreign
Guaranteed Obligations of the German Borrower to the Guaranteed
Creditors, but without affecting or impairing in any manner the
liability of the U.S. Borrower under the other provisions of this
U.S. Borrower Guaranty. Prior to the transfer by the U.S. Borrower
of any note or negotiable instrument evidencing any of the
indebtedness of the German Borrower to the U.S. Borrower, the U.S.
Borrower shall mark such note or negotiable instrument with a legend
that the same is subject to this subordination. Without limiting the
generality of the foregoing, the U.S. Borrower hereby agrees with the
Guaranteed Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of
this U.S. Borrower Guaranty (whether contractual, under Section 509
of the Bankruptcy Code or otherwise) until all Foreign Guaranteed
Obligations have been irrevocably paid in full in cash.
14.08 Waiver. (a) The U.S. Borrower waives any right
(except as shall be required by applicable statute and cannot be
waived) to require any Guaranteed Creditor to (i) proceed against the
German Borrower, any other guarantor or any other person, (ii)
proceed against or exhaust any security held from the German
Borrower, any other guarantor or any other person or (iii) pursue any
other remedy in any Guaranteed Creditor's power whatsoever. The U.S.
Borrower waives any defense based on or arising out of any defense of
the German Borrower, any other guarantor or any other person, other
than payment in full of the Foreign Guaranteed Obligations, based on
or arising out of the disability of German Borrower, any other
guarantor or any other person, or the validity, legality or
unenforceability of the Foreign Guaranteed Obligations or any part
thereof from any cause, or the cessation from any cause of the
liability of the German Borrower other than payment in full of the
Foreign Guaranteed Obligations. The Guaranteed Creditors may, at
their election, foreclose on any security held by the Administrative
Agent, the Collateral Agent or any other Guaranteed Creditor by one
or more judicial or nonjudicial sales, whether or not every aspect of
any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy
the Guaranteed Creditors may have against the German Borrower, any
other guarantor or any other person, or any security, without
affecting or impairing in any way the liability of the U.S. Borrower
hereunder except to the extent the Foreign Guaranteed Obligations
have been paid in full. The U.S. Borrower waives any defense arising
out of any such election by the Guaranteed Creditors, even though
such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of the U.S.
Borrower against the German Borrower or any other person or any
security.
<PAGE>
(b) The U.S. Borrower waives all presentments, demands for
performance, protests and notices, including, without limitation,
notices of nonperformance, notices of protest, notices of dishonor,
notices of acceptance of this U.S. Borrower Guaranty, and notices of
the existence, creation or incurring of new or additional Foreign
Guaranteed Obligations. The U.S. Borrower assumes all responsibility
for being and keeping itself informed of the German Borrower's
financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Foreign Guaranteed
Obligations and the nature, scope and extent of the risks which the
U.S. Borrower assumes and incurs hereunder, and agrees that the
Guaranteed Creditors shall have no duty to advise the U.S. Borrower
of information known to them regarding such circumstances or risks.
(c) The U.S. Borrower hereby acknowledges and affirms that
it understands that to the extent the Foreign Guaranteed Obligations
are secured by real property located in the State of California, the
U.S. Borrower shall be liable for the full amount of its liability
hereunder notwithstanding foreclosure on such real property by
trustee sale or any other reason impairing the U.S. Borrower's or any
secured creditor's right to proceed against the German Borrower or
any other guarantor of the Foreign Guaranteed obligations.
(d) The U.S. Borrower hereby waives, to the fullest extent
permitted by applicable law, all rights and benefits under Sections
580a, 580b, 580d and 726 of the California Code of Civil Procedure.
The U.S. Borrower hereby further waives, to the fullest extent
permitted by applicable law, without limiting the generality of the
foregoing or any other provision hereof, all rights and benefits
which might otherwise be available to the U.S. Borrower under
Sections 2809, 2810, 2815, 2819, 2821, 2839, 2845, 2848, 2849, 2850,
2899 and 3433 of the California Civil Code.
(e) The U.S. Borrower further understands, is aware and
hereby acknowledges that if the Guaranteed Creditors elect to
nonjudicially foreclose on any real property security located in the
State of California any right of subrogation of the U.S. Borrower
against any Credit Party may be impaired or extinguished and that as
a result of such impairment or extinguishment of subrogation rights,
the U.S. Borrower may have a defense to a deficiency judgment arising
out of the operation of Section 580d of the California Code of Civil
Procedure and related principles of estoppel. The U.S. Borrower
waives all rights and defenses arising out of an election of remedies
by the Banks, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed the guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section 580d
of the California Code of Civil Procedure or otherwise.
<PAGE>
(f) Until such time as the Foreign Guaranteed Obligations
(other than indemnification obligations which are not then due and
owing) have been paid in full in cash, the U.S. Borrower hereby
waives all rights of subrogation which it may at any time otherwise
have as a result of this U.S. Borrower Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code or otherwise) to the claims
of the Guaranteed Creditors against German Borrower or any other
guarantor of the Foreign Guaranteed Obligations and all contractual,
statutory or common law rights of reimbursement, contribution or
indemnity from the German Borrower or any other guarantor which it
may at any time otherwise have as a result of this U.S. Borrower
Guaranty.
14.09 Nature of Liability. It is the desire and intent of
the U.S. Borrower and the Guaranteed Creditors that this U.S.
Borrower Guaranty shall be enforced against the U.S. Borrower to the
fullest extent permissible under the laws and public policies applied
in each jurisdiction in which enforcement is sought. If, however,
and to the extent that, the obligations of the U.S. Borrower under
this U.S. Borrower Guaranty shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because
of any applicable state or federal law relating to fraudulent
conveyances or transfers), then the amount of the Foreign Guaranteed
Obligations of the U.S. Borrower shall be deemed to be reduced and
the U.S. Borrower shall pay the maximum amount of the Foreign
Guaranteed Obligations which would be permissible under applicable
law.
14.10 Payment. All payments made by the U.S. Borrower
pursuant to this Section 14 shall be made in the applicable Approved
Currency in which the Foreign Guaranteed Obligations are then due and
payable. All payments made by the U.S. Borrower pursuant to this
Section 14 will be made without setoff, counterclaim or other
defense, and shall be subject to the provisions of Section 4.04.
* * *
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their
duly authorized officers to execute and deliver this Agreement as of
the date first above written.
Address:
1717 Deerfield Road DADE BEHRING HOLDINGS, INC.
Deerfield, Illinois 60015
Attention: General Counsel
Treasurer By:/s/
Name:
Title:
1717 Deerfield Road
Deerfield, Illinois 60015 DADE BEHRING INC.
Attention: General Counsel
Treasurer
By:/s/
Name:
Title:
BANKERS TRUST COMPANY,
Individually and as
Administrative Agent
By:/s/
Name:
Title:
GOLDMAN SACHS CREDIT PARTNERS
L.P.,
Individually and as Syndication
Agent
By:/s/
Name:
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION,
Individually and as a Co-
Documentation Agent
By:/s/
Name:
Title:
<PAGE>
MORGAN STANLEY SENIOR FUNDING,
INC., Individually and as a Co-
Documentation Agent
By:____________________________
Name:
Title:
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of June 29, 1999 (as amended, modified
and/or supplemented from time to time, this "Agreement"), among each of
the undersigned (each, a "Pledgor" and, together with each other entity
which becomes a party hereto pursuant to Section 25, collectively, the
"Pledgors") and BANKERS TRUST COMPANY, not in its individual capacity
but solely as Collateral Agent (the "Pledgee"), for the benefit of the
Secured Creditors (as defined below). Except as otherwise defined
herein, terms used herein and defined in the Credit Agreement (as
defined below) shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, Dade Behring Holdings, Inc. ("Holdings"), Dade
Behring Inc. (the "U.S. Borrower"), Dade Behring Holding GmbH (the
"German Borrower"), various financial institutions from time to time
party thereto (the "Banks"), Donaldson, Lufkin & Jenrette Securities
Corporation and Morgan Stanley Senior Funding, Inc., as Co-Documentation
Agents (in such capacity, the "Co-Documentation Agents"), Goldman Sachs
Credit Partners L.P., as Syndication Agent, Co-Arranger and Co-Lead Book
Runner (in such capacity, the "Syndication Agent"), and Bankers Trust
Company, as Administrative Agent, Co-Arranger and Co-Lead Book Runner
(in such capacity, the "Administrative Agent," and together with the Co-
Documentation Agent, the Syndication Agent, the Pledgee, and the Banks,
the "Bank Creditors"), have entered into a Credit Agreement, dated as of
June 29, 1999 (as amended, modified or supplemented from time to time,
the "Credit Agreement), providing for the making of Loans to the
Borrowers and the issuance of, and participation in, Letters of Credit
for the account of the U.S. Borrower, all as contemplated therein;
WHEREAS, each of the Borrowers may from time to time be party
to one or more (i) interest rate agreements, interest rate cap
agreements, interest rate collar agreements or other similar agreements
or arrangements, (ii) foreign exchange contracts, currency swap
agreements or similar agreements or arrangements designed to protect
against the fluctuations in currency values and/or (iii) other types of
hedging agreements from time to time (each such agreement or arrangement
with an Other Creditor (as hereinafter defined), an "Interest Rate
Protection Agreement or Other Hedging Agreement"), with a Bank or an
affiliate of a Bank (each such Bank or affiliate, even if the respective
Bank subsequently ceases to be a Bank under the Credit Agreement for any
reason, together with such Bank's or affiliate's successors and assigns,
collectively, the "Other Creditors", and together with the Bank
Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Holdings Guaranty, Holdings has
guaranteed to the Secured Creditors the payment when due of all
obligations and liabilities of each of the Borrowers under or with
respect to the Credit Documents and the Interest Rate Protection
Agreements and other Hedging Agreements;
<PAGE>
WHEREAS, pursuant to the U.S. Borrower Guaranty, the U.S.
Borrower has guaranteed to the Secured Creditors the payment when due of
all obligations and liabilities of the German Borrower under or with
respect to the Credit Documents and the Interest Rate Protection
Agreements and Other Hedging Agreements;
WHEREAS, pursuant to a Subsidiary Guaranty, dated as of June
__, 1999 (as amended, modified and/or supplemented from time to time,
the "Subsidiaries Guaranty"), each Pledgor (other than the U.S. Borrower
and Holdings) has jointly and severally guaranteed to the Secured
Creditors the payment when due of all obligations and liabilities of
<PAGE>
each of the Borrowers under or with respect to the Credit Documents and
each Interest Rate Protection Agreement and Other Hedging Agreement;
WHEREAS, it is a condition precedent to the making of Loans to
the Borrowers and the issuance of, and participation in, Letters of
Credit for the account of the U.S. Borrower under the Credit Agreement
and to the Other Creditors entering into Interest Rate Protection
Agreements and Other Hedging Agreements that each Pledgor shall have
executed and delivered to the Pledgee this Agreement; and
WHEREAS, each Pledgor desires to execute this Agreement in
order to satisfy the conditions precedent described in the preceding
paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to
each Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following representations
and warranties to the Pledgee and hereby covenants and agrees with the
Pledgee as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each
Pledgor for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including, without limitation,
indemnities, Fees and interest thereon) of such Pledgor owing to
the Bank Creditors, whether now existing or hereafter incurred
under, arising out of, or in connection with the Credit Agreement
and the other Credit Documents to which such Pledgor is a party
(including, all such obligations, liabilities and indebtedness of
such Pledgor under its Guaranty) and the due performance and
compliance by such Pledgor with all of the terms, conditions and
agreements contained in the Credit Agreement and such other Credit
Documents (all such obligations, liabilities and indebtedness under
this clause (i), except to the extent guaranteeing obligations of
any Borrower under Interest Rate Protection Agreements or Other
Hedging Agreements, being herein collectively called the "Credit
Document Obligations");
<PAGE>
(ii) the full and prompt payment when due (whether at stated
maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including, without limitation,
indemnities, fees and interest thereon) of such Pledgor owing to
the Other Creditors, now existing or hereafter incurred under,
arising out of or in connection with any Interest Rate Protection
Agreement or Other Hedging Agreement, whether such Interest Rate
Protection Agreement or Other Hedging Agreement is now in existence
or hereinafter arising, and the due performance and compliance with
the terms, conditions and agreements of each such Interest Rate
Protection Agreement and Other Hedging Agreement by such Pledgor,
including all obligations, liabilities and indebtedness of such
Pledgor under its Guaranty, in each case, in respect of the
Interest Rate Protection Agreements and Other Hedging Agreements,
and the due performance and compliance by such Pledgor with all of
the terms, conditions and agreements contained in each such
Interest Rate Protection Agreement and Other Hedging Agreement (all
such obligations, liabilities and indebtedness under this clause
(ii) being herein collectively called the "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to
preserve the Collateral (as hereinafter defined) and/or preserve
its security interest therein;
(iv) in the event of any proceeding for the collection of the
Obligations (as defined below) or the enforcement of this Agreement,
after an Event of Default (such term, as used in this Agreement,
shall mean and include any Event of Default under, and as defined
in, the Credit Agreement and any payment default under any Interest
Rate Protection Agreement or Other Hedging Agreement and shall in
any event include, without limitation, any payment default (after
the expiration of any applicable grace period) on any of the
Obligations) shall have occurred and be continuing, the reasonable
expenses of retaking, holding, preparing for sale or lease, selling
or otherwise disposing of or realizing on the Collateral, or of any
exercise by the Pledgee of its rights hereunder, together with
reasonable attorneys' fees and court costs; and
(v) all amounts paid by any Indemnitee to which such
Indemnitee has the right to reimbursement under Section 11 of this
Agreement,
all such obligations, liabilities, indebtedness, sums and expenses set
forth in clauses (i) through (v) of this Section 1 being collectively
called the "Obligations", it being acknowledged and agreed that the
"Obligations" shall include extensions of credit of the types described
above, whether outstanding on the date of this Agreement or extended
from time to time after the date of this Agreement.
2. DEFINITIONS; ANNEXES. (a) Unless otherwise defined
herein, all capitalized terms used herein and defined in the Credit
Agreement shall be used herein as therein defined. Reference to
singular terms shall include the plural and vice versa.
(b) The following capitalized terms used herein shall have
the definitions specified below:
<PAGE>
"Administrative Agent" shall have the meaning set forth in the
recitals hereto.
"Adverse Claim" shall have the meaning given such term in
Section 8-102(a)(1) of the UCC.
"Agreement" shall have the meaning set forth in the first
paragraph hereof.
"Bank" shall have the meaning set forth in the recitals
hereto.
"Bank Creditors" shall have the meaning set forth in the
recitals hereto.
"Borrowers" shall mean the U.S. Borrower and the German
Borrower.
"Certificated Security" shall have the meaning given such term
in Section 8-102(a)(4) of the UCC.
"Clearing Corporation" shall have the meaning given such term
in Section 8-102(a)(5) of the UCC.
"Collateral" shall have the meaning set forth in Section 3.1
hereof.
"Collateral Accounts" shall mean any and all accounts
established and maintained by the Pledgee in the name of any Pledgor to
which Collateral may be credited.
"Credit Agreement" shall have the meaning set forth in the
recitals hereto.
"Credit Document Obligations" shall have the meaning set forth
in Section 1 hereof.
"Domestic Corporation" shall have the meaning set forth in the
definition of "Stock."
"Event of Default" shall have the meaning set forth in Section
1 hereof.
"Financial Asset" shall have the meaning given such term in
Section 8-102(a)(9) of the UCC.
"Foreign Corporation" shall have the meaning set forth in the
definition of "Stock."
"Indemnitees" shall have the meaning set forth in Section 11
hereof.
"Instrument" shall have the meaning given such term in Section
9-105(1)(i) of the UCC.
"Interest Rate Protection Agreement" shall have the meaning
set forth in the first paragraph hereof.
<PAGE>
"Investment Property" shall have the meaning given such term
in Section 9-115(f) of the UCC.
"Limited Liability Company Assets" shall mean all assets,
whether tangible or intangible and whether real, personal or mixed
(including, without limitation, all limited liability company capital
and interest in other limited liability companies), at any time owned or
represented by any Limited Liability Company Interest.
"Limited Liability Company Interests" shall mean the entire
limited liability company membership interest at any time owned by any
Pledgor in any limited liability company (excluding any obligation of
any Pledgor to make any unpaid or uncalled capital commitments or
contributions (or any other payments of a similar nature) in respect of
any such limited liability company).
"Non-Voting Stock" shall mean all capital stock of any Foreign
Corporation which is not Voting Stock.
"Notes" shall mean (x) all intercompany notes at any time
issued to each Pledgor and (y) all other promissory notes from time to
time issued to, or held by, each Pledgor.
"Obligations" shall have the meaning set forth in Section 1
hereof.
"Other Hedging Agreement" shall have the meaning set forth in
the first paragraph hereof.
"Other Creditors" shall have the meaning set forth in the
first paragraph hereof.
"Other Obligations" shall have the meaning set forth in
Section 1 hereof.
"Partnership Assets" shall mean all assets, whether tangible
or intangible and whether real, personal or mixed (including, without
limitation, all partnership capital and interest in other partnerships),
at any time owned or represented by any Partnership Interest.
"Partnership Interest" shall mean the entire general
partnership interest or limited partnership interest at any time owned
by any Pledgor in any general partnership or limited partnership
(excluding any obligation of any Pledgor to make any unpaid or uncalled
capital commitments or contributions (or any other payments of a similar
nature) in respect of any such general partnership or limited
partnership).
"Pledged Notes" shall mean all Notes at any time pledged or
required to be pledged hereunder.
"Pledgee" shall have the meaning set forth in the first
paragraph hereof.
"Pledgor" shall have the meaning set forth in the first
paragraph hereof.
<PAGE>
"Proceeds" shall have the meaning given such term in Section
9-306(l) of the UCC.
"Required Banks" shall have the meaning given such term in the
Credit Agreement.
"Secured Creditors" shall have the meaning set forth in the
first paragraph hereof.
"Secured Debt Agreements" shall have the meaning set forth in
Section 5 hereof.
"Securities Account" shall have the meaning given such term in
Section 8-501(a) of the UCC.
"Securities Act" shall mean the Securities Act of 1933, as
amended, as in effect from time to time.
"Security" and "Securities" shall have the meaning given such
term in Section 8-102(a)(15) of the UCC and shall in any event include
all Stock and Notes (to the extent same constitute "Securities" under
Section 8-102(a)(15)).
"Security Entitlement" shall have the meaning given such term
in Section 8-102(a)(17) of the UCC.
"Specified Default" shall have the meaning provided such term
in Section 5.
"Stock" shall mean (x) with respect to corporations
incorporated under the laws of the United States or any State or
territory thereof (each, a "Domestic Corporation"), all of the issued
and outstanding shares of capital stock of any Domestic Corporation at
any time owned by any Pledgor and (y) with respect to corporations not
Domestic Corporations (each, a "Foreign Corporation"), all of the issued
and outstanding shares of capital stock at any time directly owned by
any Pledgor of any Foreign Corporation (other than Dade Diagnostics Pty.
Ltd., an Australian corporation and a Subsidiary of Holdings).
"Syndication Agent" shall have the meaning set forth in the
recitals hereto.
"Termination Date" shall have the meaning set forth in
Section 19 hereof.
"UCC" shall mean the Uniform Commercial Code as in effect in
the State of New York from time to time; provided that all references
herein to specific sections or subsections of the UCC are references to
such sections or subsections, as the case may be, of the Uniform
Commercial Code as in effect in the State of New York on the date
hereof.
"Uncertificated Security" shall have the meaning given such
term in Section 8-102(a)(18) of the UCC.
"Voting Stock" shall have the meaning provided in Section
3.1.
<PAGE>
3. PLEDGE OF SECURITY INTEREST, ETC.
3.1 Pledge. To secure the Obligations now or hereafter owed
or to be performed by such Pledgor, each Pledgor does hereby grant,
pledge and assign to the Pledgee for the benefit of the Secured
Creditors, and does hereby create a continuing security interest
(subject to those Liens permitted to exist with respect to the
Collateral pursuant to the terms of all Secured Debt Agreements then in
effect) in favor of the Pledgee for the benefit of the Secured Creditors
in, all of the right, title and interest in and to the following,
whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
(a) each of the Collateral Accounts (to the extent a security
interest therein is not created pursuant to the Security
Agreement), including any and all assets of whatever type or kind
deposited by such Pledgor in such Collateral Account, whether now
owned or hereafter acquired, existing or arising, including,
without limitation, all Financial Assets, Investment Property,
moneys, checks, drafts, Instruments, Securities or interests
therein of any type or nature deposited or required by the Credit
Agreement or any other Secured Debt Agreement to be deposited in
such Collateral Account, and all investments and all certificates
and other Instruments (including depository receipts, if any) from
time to time representing or evidencing the same, and all
dividends, interest, distributions, cash and other property from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the foregoing;
(b) all Securities of such Pledgor from time to time;
(c) all Limited Liability Company Interests of such Pledgor
from time to time and all of its right, title and interest in each
limited liability company to which each such interest relates,
whether now existing or hereafter acquired, including, without
limitation:
(A) all its capital therein and its interest in all
profits, losses, Limited Liability Company Assets and other
distributions to which such Pledgor shall at any time be
entitled in respect of such Limited Liability Company
Interests;
(B) all other payments due or to become due to such
Pledgor in respect of Limited Liability Company Interests,
whether under any limited liability company agreement or
otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any limited liability company agreement or
operating agreement, or at law or otherwise in respect of such
Limited Liability Company Interests;
<PAGE>
(D) all present and future claims, if any, of such
Pledgor against any such limited liability company for moneys
loaned or advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited
liability company agreement or operating agreement or at law
to exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to such Limited
Liability Company Interests, including any power to terminate,
cancel or modify any limited liability company agreement or
operating agreement, to execute any instruments and to take
any and all other action on behalf of and in the name of any
of such Pledgor in respect of such Limited Liability Company
Interests and any such limited liability company, to make
determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive,
enforce, collect or receipt for any of the foregoing or for
any Limited Liability Company Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and
to take any action in connection with any of the foregoing;
and
(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all thereof;
(d) all Partnership Interests of such Pledgor from time to
time and all of its right, title and interest in each partnership
to which each such interest relates, whether now existing or
hereafter acquired, including, without limitation:
(A) all its capital therein and its interest in all
profits, losses, Partnership Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of
such Partnership Interests;
(B) all other payments due or to become due to such
Pledgor in respect of Partnership Interests, whether under any
partnership agreement or otherwise, whether as contractual
obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any partnership agreement or operating agreement,
or at law or otherwise in respect of such Partnership
Interests;
(D) all present and future claims, if any, of such
Pledgor against any such partnership for moneys loaned or
advanced, for services rendered or otherwise;
<PAGE>
(E) all of such Pledgor's rights under any partnership
agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and
privilege of such Pledgor relating to such Partnership
Interests, including any power to terminate, cancel or modify
any partnership agreement or operating agreement, to execute
any instruments and to take any and all other action on behalf
of and in the name of any of such Pledgor in respect of such
Partnership Interests and any such partnership, to make
determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive,
enforce, collect or receipt for any of the foregoing or for
any Partnership Asset, to enforce or execute any checks, or
other instruments or orders, to file any claims and to take
any action in connection with any of the foregoing (with all
of the foregoing rights only to be exercisable upon the
occurrence and during the continuation of an Event of
Default); and
(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all thereof;
(e) all Security Entitlements of such Pledgor from time to
time in any and all of the foregoing;
(f) all Financial Assets and Investment Property of such
Pledgor from time to time; and
(g) all Proceeds of any and all of the foregoing;
provided that (x) except in the circumstances and to the extent provided
by Section 7.16 of the Credit Agreement (in which case this clause (x)
shall no longer be applicable), capital stock entitled to vote for
directors of any Foreign Corporation (herein called "Voting Stock")
which represents more than 65% of the total combined voting power of all
classes of Voting Stock of the respective Foreign Corporation shall not
be required to be pledged hereunder and (y) each Pledgor shall be
required to pledge hereunder 100% of the issued and outstanding shares
of all Non-Voting Stock at any time owned by such Pledgor of any Foreign
Corporation, which Non-Voting Stock shall not be subject to the
limitations described in preceding clause (x).
3.2 Procedures. (a) To the extent that any Pledgor at any
time or from time to time owns, acquires or obtains any right, title or
interest in any Collateral, such Collateral shall automatically (and
without the taking of any action by the respective Pledgor) be pledged
pursuant to Section 3.1 of this Agreement and, in addition thereto, such
Pledgor shall (to the extent provided below) take the following actions
as set forth below (as promptly as practicable and, in any event, within
10 days after it obtains such Collateral) for the benefit of the Pledgee
and the Secured Creditors:
<PAGE>
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing
Corporation), the respective Pledgor shall physically deliver such
Certificated Security to the Pledgee, endorsed to the Pledgee or
endorsed in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing
Corporation), the respective Pledgor shall cause the issuer of such
Uncertificated Security to duly authorize and execute, and deliver
to the Pledgee, an agreement for the benefit of the Pledgee and the
other Secured Creditors substantially in the form of Annex G hereto
(appropriately completed to the satisfaction of the Pledgee and
with such modifications, if any, as shall be satisfactory to the
Pledgee) pursuant to which such issuer agrees to comply with any
and all instructions originated by the Pledgee without further
consent by the registered owner and not to comply with instructions
regarding such Uncertificated Security (and any Partnership
Interests and Limited Liability Company Interests issued by such
issuer) originated by any other Person other than a court of
competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company
Interest credited on the books of a Clearing Corporation (including
a Federal Reserve Bank, Participants Trust Company or The
Depository Trust Company), the respective Pledgor shall promptly
notify the Pledgee thereof and shall promptly take all actions (x)
required (i) to comply with the applicable rules of such Clearing
Corporation and (ii) to perfect the security interest of the
Pledgee under applicable law (including, in any event, under
Sections 9-115 (4)(a) and (b), 9-115 (1)(e) and 8-106(d) of the
UCC) and (y) as the Pledgee deems necessary or desirable to effect
the foregoing;
(iv) with respect to a Partnership Interest or a Limited
Liability Company Interest (other than a Partnership Interest or
Limited Liability Interest credited on the books of a Clearing
Corporation), (1) if such Partnership Interest or Limited Liability
Company Interest is represented by a certificate, the procedure set
forth in Section 3.2(a)(i), and (2) if such Partnership Interest or
Limited Liability Company Interest is not represented by a
certificate, the procedure set forth in Section 3.2(a)(ii);
(v) with respect to any Note, physical delivery of such Note
to the Pledgee, endorsed to the Pledgee or endorsed in blank; and
(vi) after an Event of Default has occurred and is continuing,
with respect to cash, to the extent not otherwise provided in the
Security Agreement, (i) establishment by the Pledgee of a cash
account in the name of such Pledgor over which the Pledgee shall
have exclusive and absolute control and dominion (and no
withdrawals or transfers may be made therefrom by any Person except
with the prior written consent of the Pledgee) and (ii) deposit of
such cash in such cash account.
<PAGE>
(b) In addition to the actions required to be taken pursuant
to preceding Section 3.2(a), each Pledgor shall take the following
additional actions with respect to the Securities and Collateral (as
defined below):
(i) with respect to all Collateral of such Pledgor whereby or
with respect to which the Pledgee may obtain "control" thereof
within the meaning of Section 8-106 of the UCC (or under any
provision of the UCC as same may be amended or supplemented from
time to time, or under the laws of any relevant State other than
the State of New York), the respective Pledgor shall take all
actions as may be requested from time to time by the Pledgee so
that "control" of such Collateral is obtained and at all times held
by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate
financing statements (on Form UCC-1 or other appropriate form)
under the Uniform Commercial Code as in effect in the various
relevant States, on form covering all Collateral hereunder (with
the form of such financing statements to be satisfactory to the
Pledgee), to be filed in the relevant filing offices so that at all
times the Pledgee has a security interest in all Investment
Property and other Collateral which is perfected by the filing of
such financing statements (in each case to the maximum extent
perfection by filing may be obtained under the laws of the relevant
States, including, without limitation, Section 9-115(4)(b) of the
UCC).
3.3 Subsequently Acquired Collateral. If any Pledgor shall
acquire (by purchase, stock dividend or otherwise) any additional
Collateral at any time or from time to time after the date hereof, such
Collateral shall automatically (and without any further action being
required to be taken) be subject to the pledge and security interests
created pursuant to Section 3.1 and, furthermore, such Pledgor will
promptly thereafter take (or cause to be taken) all action with respect
to such Collateral in accordance with the procedures set forth in
Section 3.2, and will promptly thereafter deliver to the Pledgee (i) a
certificate executed by a principal executive officer of such Pledgor
describing such Collateral and certifying that the same has been duly
pledged in favor of the Pledgee (for the benefit of the Secured
Creditors) hereunder and (ii) supplements to Annexes A through F hereto
as are necessary to cause such annexes to be complete and accurate at
such time. Without limiting the foregoing, each Pledgor shall be
required to pledge hereunder any shares of stock at any time and from
time to time after the date hereof acquired by such Pledgor of any
Foreign Corporation, provided that any pledge of the Voting Stock of any
Foreign Corporation shall be subject to the provisions of clause (x) of
the proviso to Section 3.1 hereof to the extent same is then applicable.
3.4 Transfer Taxes. Each pledge of Collateral under Section
3.1 or Section 3.3 shall be accompanied by any transfer tax stamps
required in connection with the pledge of such Collateral.
<PAGE>
3.5 Certain Representations and Warranties Regarding the
Collateral. Each Pledgor represents and warrants that on the date
hereof (i) each Subsidiary of such Pledgor, and the direct ownership
thereof, is listed in Annex A hereto; (ii) the Stock held by such
Pledgor consists of the number and type of shares of the stock of the
corporations as described in Annex B hereto; (iii) such Stock
constitutes that percentage of the issued and outstanding capital stock
of the issuing corporation as is set forth in Annex B hereto; (iv) the
Notes held by such Pledgor consist of the promissory notes described in
Annex C hereto where such Pledgor is listed as the lender; (v) the
Limited Liability Company Interests held by such Pledgor consist of the
number and type of interests of the Persons described in Annex D hereto;
(vi) each such Limited Liability Company Interest constitutes that
percentage of the issued and outstanding equity interest of the issuing
Person as set forth in Annex D hereto; (vii) the Partnership Interests
held by such Pledgor consist of the number and type of interests of the
Persons described in Annex E hereto; (viii) each such Partnership
Interest constitutes that percentage or portion of the entire
partnership interest of the Partnership as set forth in Annex E hereto;
(ix) the Pledgor has complied with the respective procedure set forth in
Section 3.2(a) with respect to each item of Collateral described in
Annexes A through E hereto; and (x) on the date hereof, such Pledgor
owns no other Securities, Limited Liability Company Interests or
Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee
shall have the right to appoint one or more sub-agents for the purpose
of retaining physical possession of the Collateral, which may be held
(in the discretion of the Pledgee) in the name of the relevant Pledgor,
endorsed or assigned in blank or in favor of the Pledgee or any nominee
or nominees of the Pledgee or a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until
there shall have occurred and be continuing an Event of Default or a
Default under Section 9.01 or 9.05 of the Credit Agreement (each such
Default, a "Specified Default"), each Pledgor shall be entitled to
exercise all voting rights attaching to any and all Collateral owned by
it, and to give consents, waivers or ratifications in respect thereof,
provided that no vote shall be cast or any consent, waiver or
ratification given or any action taken which would violate, result in
breach of any covenant contained in, or be inconsistent with, any of the
terms of this Agreement, the Credit Agreement, any other Credit Document
or any Interest Rate Protection Agreement or Other Hedging Agreement
(collectively, the "Secured Debt Agreements"), or which would have the
effect of impairing the value of the Collateral or any part thereof or
the position or interests of the Pledgee or any other Secured Creditor
therein, except to the extent such violation, inconsistency or
impairment shall be waived in accordance with the terms of Section 22
hereof. All such rights of a Pledgor to vote and to give consents,
waivers and ratifications shall cease in case an Event of Default or a
Specified Default shall occur and be continuing and Section 7 hereof
shall become applicable.
<PAGE>
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until an
Event of Default or a Specified Default shall have occurred and be
continuing, all cash dividends, cash distributions, cash Proceeds and
other cash amounts payable in respect of the Collateral shall be paid to
the respective Pledgor; provided, that all cash dividends payable in
respect of the Pledged Stock which are determined by the Pledgee to
represent in whole or in part an extraordinary, liquidating or other
distribution in return of capital shall be paid, to the extent so
determined to represent an extraordinary, liquidating or other
distribution in return of capital, to the Pledgee and retained by it as
part of the Collateral. Subject to Section 3.2 hereof, the Pledgee
shall be entitled to receive directly, and to retain as part of the
Collateral:
(i) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash
dividends other than as set forth above) paid or distributed by way
of dividend or otherwise in respect of the Collateral;
(ii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash) paid
or distributed in respect of the Collateral by way of stock-split,
spin-off, split-up, reclassification, combination of shares or
similar rearrangement; and
(iii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash) which
may be paid in respect of the Collateral by reason of any
consolidation, merger, exchange of stock, conveyance of assets,
liquidation or similar corporate reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way
the Pledgee's right to receive the proceeds of the Collateral in any
form in accordance with Section 3 of this Agreement. All dividends,
distributions or other payments which are received by the respective
Pledgor contrary to the provisions of this Section 6 or Section 7 shall
be received in trust for the benefit of the Pledgee, shall be segregated
from other property or funds of such Pledgor and shall be forthwith paid
over to the Pledgee as Collateral in the same form as so received (with
any necessary endorsement).
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT OR A SPECIFIED
DEFAULT. In the event an Event of Default or a Specified Default shall
have occurred and be continuing, the Pledgee shall be entitled to
exercise all of the rights, powers and remedies (whether vested in it by
this Agreement or by any other Secured Debt Agreement or by law) for the
protection and enforcement of its rights in respect of the Collateral,
including, without limitation, all the rights and remedies of a secured
party upon default under the Uniform Commercial Code of the State of New
York, and the Pledgee shall be entitled, without limitation, to exercise
any or all of the following rights, which each Pledgor hereby agrees to
be commercially reasonable:
<PAGE>
(i) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 to such Pledgor;
(ii) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees; provided,
however, that the failure to give such notice shall not affect the
validity of such transfer;
(iii) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to
collect upon any Pledged Note (including, without limitation, to
make any demand for payment thereon);
(iv) to vote all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and
otherwise act with respect thereto as though it were the outright
owner thereof (each Pledgor hereby irrevocably constituting and
appointing the Pledgee the proxy and attorney-in-fact of such
Pledgor, with full power of substitution to do so);
(v) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention
to sell or of the time or place of sale or adjournment thereof or
to redeem or otherwise (all of which are hereby waived by each
Pledgor), for cash, on credit or for other property, for immediate
or future delivery without any assumption of credit risk, and for
such price or prices and on such terms as the Pledgee in its
absolute discretion may determine; provided that at least 10 days'
notice of the time and place of any such sale shall be given to
such Pledgor. The Pledgee shall not be obligated to make such sale
of Collateral regardless of whether any such notice of sale has
theretofore been given. Each purchaser at any such sale shall hold
the property so sold absolutely free from any claim or right on the
part of each Pledgor, and each Pledgor hereby waives and releases
to the fullest extent permitted by law any right or equity of
redemption with respect to the Collateral, whether before or after
sale hereunder, all rights, if any, of marshalling the Collateral
and any other security for the Obligations or otherwise, and all
rights, if any, of stay and/or appraisal which it now has or may at
any time in the future have under rule of law or statute now
existing or hereafter enacted. At any such sale, unless prohibited
by applicable law, the Pledgee on behalf of all Secured Creditors
(or certain of them) may bid for and purchase (by bidding in
Obligations or otherwise) all or any part of the Collateral so sold
free from any such right or equity of redemption. Neither the
Pledgee nor any other Secured Creditor shall be liable for failure
to collect or realize upon any or all of the Collateral or for any
delay in so doing nor shall any of them be under any obligation to
take any action whatsoever with regard thereto; and
(vi) to set-off any and all Collateral against any and all
Obligations, and to withdraw any and all cash or other Collateral
from any and all Collateral Accounts and to apply such cash and
other Collateral to the payment of any and all Obligations.
<PAGE>
8. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy
of the Pledgee provided for in this Agreement or any other Secured Debt
Agreement, or now or hereafter existing at law or in equity or by
statute shall be cumulative and concurrent and shall be in addition to
every other such right, power or remedy. The exercise or beginning of
the exercise by the Pledgee or any other Secured Creditor of any one or
more of the rights, powers or remedies provided for in this Agreement or
any other Secured Debt Agreement or now or hereafter existing at law or
in equity or by statute or otherwise shall not preclude the simultaneous
or later exercise by the Pledgee or any other Secured Creditor of all
such other rights, powers or remedies, and no failure or delay on the
part of the Pledgee or any other Secured Creditor to exercise any such
right, power or remedy shall operate as a waiver thereof. Unless
otherwise required by the Credit Documents, no notice to or demand on
any Pledgor in any case shall entitle such Pledgor to any other or
further notice or demand in similar other circumstances or constitute a
waiver of any of the rights of the Pledgee or any other Secured Creditor
to any other or further action in any circumstances without demand or
notice. The Secured Creditors agree that this Agreement may be enforced
only by the action of the Pledgee, acting upon the instructions of the
Required Banks (or, after the date on which all Credit Document
Obligations have been paid in full, the holders of at least a majority
of the outstanding Other Obligations) and that no other Secured Creditor
shall have any right individually to seek to enforce or to enforce this
Agreement or to realize upon the security to be granted hereby, it being
understood and agreed that such rights and remedies may be exercised by
the Pledgee or the holders of at least a majority of the outstanding
Other Obligations, as the case may be, for the benefit of the Secured
Creditors upon the terms of this Agreement and the other Credit
Documents.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Pledgee upon any sale or other disposition of the Collateral pursuant to
the terms of this Agreement, together with all other moneys received by
the Pledgee hereunder, shall be applied to the payment of the
Obligations in the manner provided in Section 7.4 of the Security
Agreement. (b) It is understood and agreed that the Pledgors shall
remain jointly and severally liable to the extent of any deficiency
between the amount of proceeds of the Collateral hereunder and the
aggregate amount of the Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the
Collateral by the Pledgee hereunder (whether by virtue of the power of
sale herein granted, pursuant to judicial process or otherwise), the
receipt of the Pledgee or the officer making such sale of the purchase
money paid as consideration pursuant to such sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold, and
such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Pledgee
or such officer or be answerable in any way for the misapplication or
nonapplication thereof.
<PAGE>
11. INDEMNITY. Each Pledgor jointly and severally agrees (i)
to indemnify and hold harmless the Pledgee, each other Secured Creditor
and their respective successors, assigns, employees, agents and servants
(individually an "Indemnitee", and collectively, the "Indemnitees") from
and against any and all claims, demands, losses, judgments and
liabilities (including liabilities for penalties) of whatsoever kind or
nature, and (ii) to reimburse each Indemnitee for all reasonable costs
and expenses, including reasonable attorneys' fees, in each case arising
out of or resulting from this Agreement or the exercise by any
Indemnitee of any right or remedy granted to it hereunder or under any
other Secured Debt Agreement (but excluding any claims, demands, losses,
judgments and liabilities (including liabilities for penalties) or
expenses of whatsoever kind or nature to the extent incurred or arising
by reason of gross negligence or willful misconduct of such Indemnitee).
In no event shall any Indemnitee hereunder be liable, in the absence of
gross negligence or willful misconduct on its part, for any matter or
thing in connection with this Agreement other than to account for monies
or other property actually received by it in accordance with the terms
hereof. If and to the extent that the obligations of any Pledgor under
this Section 11 are unenforceable for any reason, each Pledgor hereby
agrees to make the maximum contribution to the payment and satisfaction
of such obligations which is permissible under applicable law. The
indemnity obligations of each Pledgor contained in this Section 11 shall
continue in full force and effect notwithstanding the full payment of
all the Notes issued under the Credit Agreement, the termination of all
Interest Rate Protection and Other Hedging Agreements and Letters of
Credit, and the payment of all other Obligations and notwithstanding the
discharge thereof.
12. FURTHER ASSURANCES; POWER OF ATTORNEY. (a) Each Pledgor
agrees that it will join with the Pledgee in executing and, at such
Pledgor's own expense, file and refile under the Uniform Commercial Code
such financing statements, continuation statements and other documents
in such offices as the Pledgee (acting on its own or on the instructions
of the Required Banks) may reasonably deem necessary or appropriate and
wherever required or permitted by law in order to perfect and preserve
the Pledgee's security interest in the Collateral hereunder and hereby
authorizes the Pledgee to file financing statements and amendments
thereto relative to all or any part of the Collateral without the
signature of such Pledgor where permitted by law, and agrees to do such
further acts and things and to execute and deliver to the Pledgee such
additional conveyances, assignments, agreements and instruments as the
Pledgee may reasonably require or deem advisable to carry into effect
the purposes of this Agreement or to further assure and confirm unto the
Pledgee its rights, powers and remedies hereunder or thereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such
Pledgor and in the name of such Pledgor or otherwise, from time to time
after the occurrence and during the continuance of an Event of Default,
in the Pledgee's discretion to take any action and to execute any
instrument which the Pledgee may deem necessary or advisable to
accomplish the purposes of this Agreement.
<PAGE>
13. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee will hold
in accordance with this Agreement all items of the Collateral at any
time received under this Agreement. It is expressly understood and
agreed that the obligations of the Pledgee as holder of the Collateral
and interests therein and with respect to the disposition thereof, and
otherwise under this Agreement, are only those expressly set forth in
this Agreement. The Pledgee shall act hereunder on the terms and
conditions set forth herein and in Section 11 of the Credit Agreement.
14. TRANSFER BY THE PLEDGORS. Except for sales or
dispositions of Collateral permitted pursuant to the Credit Agreement,
no Pledgor will sell or otherwise dispose of, grant any option with
respect to, or mortgage, pledge or otherwise encumber any of the
Collateral or any interest therein (except in accordance with the terms
of this Agreement and the other Secured Debt Agreements).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PLEDGORS. (a) Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has
good and marketable title to, all Collateral consisting of one or
more Securities and that it has sufficient interest in all
Collateral in which a security interest is purported to be created
hereunder for such security interest to attach (subject, in each
case, to no pledge, lien, mortgage, hypothecation, security
interest, charge, option, Adverse Claim or other encumbrance
whatsoever, except the liens and security interests created by this
Agreement or permitted under the Credit Agreement);
(ii) it has full power, authority and legal right to pledge all
the Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and
binding obligation of such Pledgor enforceable against such Pledgor
in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law);
(iv) except to the extent already obtained or made, no consent
of any other party (including, without limitation, any stockholder,
member, partner or creditor of such Pledgor or any of its
Subsidiaries) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental
authority is required to be obtained by such Pledgor in connection
with (a) the execution, delivery or performance of this Agreement,
(b) the validity or enforceability of this Agreement (except as set
forth in clause (iii) above), (c) the perfection or enforceability
of the Pledgee's security interest in the Collateral or (d) except
for compliance with or as may be required by applicable securities
laws, the exercise by such Pledgee of any of its rights or remedies
provided herein;
<PAGE>
(v) the execution, delivery and performance of this Agreement
will not violate any provision of any applicable law or regulation
or of any order, judgment, writ, award or decree of any court,
arbitrator or governmental authority, domestic or foreign,
applicable to such Pledgor, or of the certificate of incorporation,
operating agreement, limited liability company agreement or by-laws
of such Pledgor or of any securities issued by such Pledgor or any
of its Subsidiaries, or of any mortgage, deed of trust, indenture,
lease, loan agreement, credit agreement or other contract,
agreement or instrument or undertaking to which such Pledgor or any
of its Subsidiaries is a party or which purports to be binding upon
such Pledgor or any of its Subsidiaries or upon any of their
respective assets and will not result in the creation or imposition
of (or the obligation to create or impose) any lien or encumbrance
on any of the assets of such Pledgor or any of its Subsidiaries
except as contemplated by this Agreement (other than the Liens
created by the Collateral Documents);
(vi) all of the Collateral (consisting of Securities other than
Limited Liability Company Interests and Partnership Interests) has
been duly and validly issued, is fully paid and non-assessable and
is subject to no options to purchase or similar rights;
(vii) each of the Pledged Notes constitutes, or when executed by
the obligor thereof will constitute, the legal, valid and binding
obligation of such obligor, enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law);
(viii) the pledge, collateral assignment and delivery to the
Pledgee of the Collateral consisting of certificated securities
pursuant to this Agreement creates a valid and perfected first
priority security interest in such Securities, and the proceeds
thereof, subject to no prior Lien or encumbrance or to any
agreement purporting to grant to any third party a Lien or
encumbrance on the property or assets of such Pledgor which would
include the Securities (other than Permitted Liens) and the Pledgee
is entitled to all the rights, priorities and benefits afforded by
the UCC or other relevant law as enacted in any relevant
jurisdiction to perfect security interests in respect of such
Collateral; and
(ix) "control" (as defined in Section 8-106 of the UCC) has
been obtained by the Pledgee over all Collateral consisting of
Securities (including Notes which are Securities) with respect to
which such "control" may be obtained pursuant to Section 8-106 of
the UCC.
<PAGE>
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities
and the proceeds thereof against the claims and demands of all persons
whomsoever; and each Pledgor covenants and agrees that it will have like
title to and right to pledge any other property at any time hereafter
pledged to the Pledgee as Collateral hereunder and will likewise defend
the right thereto and security interest therein of the Pledgee and the
other Secured Creditors.
(c) Each Pledgor covenants and agrees that it will take no
action which would violate any of the terms of any Secured Debt
Agreement.
16. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive
office of each Pledgor is located at the address specified in Annex F
hereto. Each Pledgor will not move its chief executive office except to
such new location as such Pledgor may establish in accordance with the
last sentence of this Section 16. The originals of all documents in the
possession of such Pledgor evidencing all Collateral, including but not
limited to all Limited Liability Company Interests and Partnership
Interests, and the only original books of account and records of such
Pledgor relating thereto are, and will continue to be, kept at such
chief executive office at the location specified in Annex F hereto, or
at such new locations as such Pledgor may establish in accordance with
the last sentence of this Section 16. All Limited Liability Company
Interests and Partnership Interests are, and will continue to be,
maintained at, and controlled and directed (including, without
limitation, for general accounting purposes) from, such chief executive
office location specified in Annex F hereto, or such new locations as
the respective Pledgor may establish in accordance with the last
sentence of this Section 16. No Pledgor shall establish a new location
for such offices until (i) it shall have given to the Collateral Agent
not less than 30 days' prior written notice of its intention so to do,
clearly describing such new location and providing such other
information in connection therewith as the Collateral Agent may
reasonably request and (ii) with respect to such new location, it shall
have taken all action, satisfactory to the Collateral Agent, to maintain
the security interest of the Collateral Agent in the Collateral intended
to be granted hereby at all times fully perfected and in full force and
effect. Promptly after establishing a new location for such offices in
accordance with the immediately preceding sentence, the respective
Pledgor shall deliver to the Pledgee a supplement to Annex F hereto so
as to cause such Annex F hereto to be complete and accurate.
17. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of
each Pledgor under this Agreement shall be absolute and unconditional
and shall remain in full force and effect without regard to, and shall
not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever (other than termination of
this Agreement pursuant to Section 19 hereof), including, without
limitation:
(i) any renewal, extension, amendment or modification of, or
addition or supplement to or deletion from any Secured Debt
Agreement (other than this Agreement in accordance with its terms),
or any other instrument or agreement referred to therein, or any
assignment or transfer of any thereof;
<PAGE>
(ii) any waiver, consent, extension, indulgence or other action
or inaction under or in respect of any such agreement or instrument
or this Agreement (other than a waiver, consent or extension with
respect to this Agreement in accordance with its terms);
(iii) any furnishing of any additional security to the Pledgee
or its assignee or any acceptance thereof or any release of any
security by the Pledgee or its assignee;
(iv) any limitation on any party's liability or obligations
under any such instrument or agreement or any invalidity or
unenforceability, in whole or in part, of any such instrument or
agreement or any term thereof; or
(v) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding
relating to any Pledgor or any Subsidiary of any Pledgor, or any
action taken with respect to this Agreement by any trustee or
receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the
foregoing.
<PAGE>
18. SALE OF COLLATERAL WITHOUT REGISTRATION. (a) If an Event
of Default shall have occurred and be continuing and any Pledgor shall
have received from the Pledgee a written request or requests that such
Pledgor cause any registration, qualification or compliance under any
federal or state securities law or laws to be effected with respect to
all or any part of the Collateral consisting of Securities, Limited
Liability Company Interests or Partnership Interests, such Pledgor as
soon as practicable and at its expense will use its best efforts to
cause such registration to be effected (and be kept effective) and will
use its best efforts to cause such qualification and compliance to be
effected (and be kept effective) as may be so requested and as would
permit or facilitate the sale and distribution of such Collateral
consisting of Securities, Limited Liability Company Interests or
Partnership Interests, including, without limitation, registration under
the Securities Act of 1933, as then in effect (or any similar statute
then in effect), appropriate qualifications under applicable blue sky or
other state securities laws and appropriate compliance with any other
governmental requirements; provided, that the Pledgee shall furnish to
such Pledgor such information regarding the Pledgee as such Pledgor may
request in writing and as shall be required in connection with any such
registration, qualification or compliance. Each Pledgor will cause the
Pledgee to be kept reasonably advised in writing as to the progress of
each such registration, qualification or compliance and as to the
completion thereof, will furnish to the Pledgee such number of
prospectuses, offering circulars and other documents incident thereto as
the Pledgee from time to time may reasonably request, and will
indemnify, to the extent permitted by law, the Pledgee and all other
Secured Creditors participating in the distribution of such Collateral
consisting of Securities, Limited Liability Company Interests or
Partnership Interests against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement)
of a material fact contained therein (or in any related registration
statement, notification or the like) or by any omission (or alleged
omission) to state therein (or in any related registration statement,
notification or the like) a material fact required to be stated therein
or necessary to make the statements therein not misleading, except
insofar as the same may have been caused by an untrue statement or
omission based upon information furnished in writing to such Pledgor by
the Pledgee expressly for use therein.
<PAGE>
(b) If at any time when the Pledgee shall determine to exercise its
right to sell all or any part of the Collateral consisting of
Securities, Limited Liability Company Interests or Partnership
Interests pursuant to Section 7, and such Collateral or the part thereof
to be sold shall not, for any reason whatsoever, be effectively
registered under the Securities Act of 1933, as then in effect, the
Pledgee may, in its sole and absolute discretion, sell such Collateral
or part thereof by private sale in such manner and under such
circumstances as the Pledgee may deem necessary or advisable in order
that such sale may legally be effected without such registration.
Without limiting the generality of the foregoing, in any such event the
Pledgee, in its sole and absolute discretion: (i) may proceed to make
such private sale notwithstanding that a registration statement for the
purpose of registering such Collateral or part thereof shall have been
filed under such Securities Act; (ii) may approach and negotiate with a
single possible purchaser to effect such sale; and (iii) may restrict
such sale to a purchaser who will represent and agree that such
purchaser is purchasing for its own account, for investment, and not
with a view to the distribution or sale of such Collateral or part
thereof. In the event of any such sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the
Collateral at a price which the Pledgee, in its sole and absolute
discretion, may in good faith deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might
be realized if the sale were deferred until the registration as
aforesaid.
19. TERMINATION; RELEASE. (a) On the Termination Date (as
defined below), this Agreement shall terminate (provided that all
indemnities set forth herein including, without limitation, in Section
11 hereof shall survive any such termination) and the Pledgee, at the
request and expense of the respective Pledgor, will execute and deliver
to such Pledgor a proper instrument or instruments acknowledging the
satisfaction and termination of this Agreement (including, without
limitation, UCC termination statements and instruments of satisfaction,
discharge and/or reconveyance), and will duly release from the security
interest created hereby and assign, transfer and deliver to such Pledgor
(without recourse and without any representation or warranty) such of
the Collateral as may be in the possession of the Pledgee and as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement, together with any moneys at the time held by the Pledgee or
any of its sub-agents hereunder and, with respect to any Collateral
consisting of an Uncertificated Security (other than an Uncertificated
Security credited on the books of a Clearing Corporation), a Partnership
Interest or a Limited Liability Company Interest, a termination of the
agreement relating thereto executed and delivered by the issuer of such
Uncertificated Security pursuant to Section 3.2(a)(ii) or by the
<PAGE>
respective partnership or limited liability company pursuant to Section
3.2(a)(iv). As used in this Agreement, "Termination Date" shall mean
the date upon which the Total Commitment and all Interest Rate
Protection Agreements and Other Hedging Agreements have been terminated,
no Note (as defined in the Credit Agreement) or Letter of Credit is
outstanding (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 been supported in a manner
satisfactory to the Letter of Credit Issuer in its sole and absolute
discretion) and all other Obligations (other than indemnities described
in Section 11 hereof and in Section 12.13 of the Credit Agreement which
are not then due and payable) have been paid in full.
(b) In the event that any part of the Collateral is sold or
otherwise disposed of (to a Person other than a Credit Party) (x) at any
time prior to the time at which all Credit Document Obligations have
been paid in full, all Commitments and Letters of Credit under the
Credit Agreement have been terminated (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 been
supported in a manner satisfactory to the Letter of Credit Issuer in its
sole and absolute discretion) in connection with a sale or disposition
permitted by Section 8.02 of the Credit Agreement or is otherwise
released at the direction of the Required Banks (or all the Banks if
required by Section 12.12 of the Credit Agreement) or (y) at any time
thereafter, to the extent permitted by the other Secured Debt
Agreements, and in the case of clauses (x) and (y), the proceeds of such
sale or disposition (or from such release) are applied in accordance
with the terms of the Credit Agreement or such other Secured Debt
Agreement, as the case may be, to the extent required to be so applied,
the Pledgee, at the request and expense of such Pledgor, will duly
release from the security interest created hereby and assign, transfer
and deliver to such Pledgor (without recourse and without any
representation or warranty) such of the Collateral as is then being (or
has been) so sold or released and as may be in possession of the Pledgee
and has not theretofore been released pursuant to this Agreement.
(c) At any time that any Pledgor desires that Collateral be
released as provided in the foregoing Section 19(a) or (b), it shall
deliver to the Pledgee a certificate signed by a principal executive
officer of such Pledgor stating that the release of the respective
Collateral is permitted pursuant to Section 19(a) or (b). If reasonably
requested by the Pledgee (although the Pledgee shall have no obligation
to make any such request), the relevant Pledgor shall furnish
appropriate legal opinions (from counsel reasonably acceptable to the
Pledgee) to the effect set forth in the immediately preceding sentence.
The Pledgee shall have no liability whatsoever to any Secured Creditor
as the result of any release of Collateral by it as permitted by this
Section 19.
20. NOTICES, ETC. All notices and other communications
hereunder shall be in writing and shall be delivered or mailed by first
class mail, postage prepaid, addressed:
(i) if to any Pledgor, at its address set forth opposite its
signature below;
<PAGE>
(ii) if to the Pledgee, at:
Bankers Trust Company
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Attention: Mary Kay Coyle
Tel: (212) 250-9094
Fax: (212) 250-7218
(iii) if to any Bank (other than the Pledgee), at such
address as such Bank shall have specified in the Credit Agreement;
(iv) if to any Other Creditor, at such address as such Other
Creditor shall have specified in writing to the U.S. Borrower and
the Pledgee;
or at such address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
21. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY
MEMBER. (a) Nothing herein shall be construed to make the Pledgee or
any other Secured Creditor liable as a member of any limited liability
company or partnership and neither the Pledgee nor any other Secured
Creditor by virtue of this Agreement or otherwise (except as referred to
in the following sentence) shall have any of the duties, obligations or
liabilities of a member of any limited liability company or partnership.
The parties hereto expressly agree that, unless the Pledgee shall become
the absolute owner of Collateral consisting of a Limited Liability
Company Interest or Partnership Interest pursuant hereto, this Agreement
shall not be construed as creating a partnership or joint venture among
the Pledgee, any other Secured Creditor and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph (a)
of this Section 21, the Pledgee, by accepting this Agreement, did not
intend to become a member of any limited liability company or
partnership or otherwise be deemed to be a co-venturer with respect to
any Pledgor or any limited liability company or partnership either
before or after an Event of Default shall have occurred. The Pledgee
shall have only those powers set forth herein and the Secured Creditors
shall assume none of the duties, obligations or liabilities of a member
of any limited liability company or partnership or any Pledgor except as
provided in the last sentence of paragraph (a) of this Section 21.
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of any Pledgor as a
result of the pledge hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at
any time or in any event obligate the Pledgee or any other Secured
Creditor to appear in or defend any action or proceeding relating to the
Collateral to which it is not a party, or to take any action hereunder
or thereunder, or to expend any money or incur any expenses or perform
or discharge any obligation, duty or liability under the Collateral.
<PAGE>
22. WAIVER; AMENDMENT. Except as contemplated in Section 25
hereof, none of the terms and conditions of this Agreement may be
changed, waived, discharged or terminated in any manner whatsoever
unless such change, waiver, discharge or termination is in writing duly
signed by each Pledgor directly and adversely affected thereby and the
Pledgee (with the consent of (x) the Required Banks (or, to the extent
required by Section 12.12 of the Credit Agreement, all of the Banks) at
all times prior to the time at which all Credit Document Obligations
(other than those arising from indemnities for which no request has been
made) have been paid in full and all Commitments under the Credit
Agreement have been terminated or (y) the holders of at least a majority
of the outstanding Other Obligations at all times after the time at
which all Credit Document Obligations (other than those arising from
indemnities for which no request has been made) have been paid in full
and all Commitments have been terminated, provided, that any change,
waiver, modification or variance affecting the rights and benefits of a
single Class (as defined below) of Secured Creditors (and not all
Secured Creditors in a like or similar manner) shall require the written
consent of the Requisite Creditors (as defined below) of such Class of
Secured Creditors. For the purpose of this Agreement, the term "Class"
shall mean each class of Secured Creditors, i.e., whether (x) the Bank
Creditors as holders of the Credit Document Obligations or (y) the Other
Creditors as holders of the Other Obligations. For the purpose of this
Agreement, the term "Requisite Creditors" of any Class shall mean each
of (x) with respect to the Credit Document Obligations, the Required
Banks and (y) with respect to the Other Obligations, the holders of at
least a majority of all obligations outstanding from time to time under
the Interest Rate Protection Agreements and Other Hedging Agreements.
23. MISCELLANEOUS. This Agreement shall create a continuing
security interest in the Collateral and shall (i) remain in full force
and effect, subject to release and/or termination as set forth in
Section 19, (ii) be binding upon each Pledgor, its successors and
assigns; provided, however, that no Pledgor shall assign any of its
rights or obligations hereunder without the prior written consent of the
Pledgee (with the prior written consent of the Required Banks or to the
extent required by Section 12.12 of the Credit Agreement, all of the
Banks), and (iii) inure, together with the rights and remedies of the
Pledgee hereunder, to the benefit of the Pledgee, the other Secured
Parties and their respective successors, transferees and assigns. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK. The headings of the several
sections and subsections in this Agreement are for purposes of reference
only and shall not limit or define the meaning hereof. This Agreement
may be executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument. In
the event that any provision of this Agreement shall prove to be invalid
or unenforceable, such provision shall be deemed to be severable from
the other provisions of this Agreement which shall remain binding on all
parties hereto.
24. WAIVER OF JURY TRIAL. Each Pledgor hereby irrevocably
waives all right to a trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement or the
transactions contemplated hereby.
<PAGE>
25. ADDITIONAL PLEDGORS. It is understood and agreed that
any Subsidiary of Holdings that is required to execute a counterpart of
this Agreement after the date hereof pursuant to Section 7.16 and/or
8.14 of the Credit Agreement shall automatically become a Pledgor
hereunder by executing a counterpart hereof and delivering the same to
the Pledgee.
26. RECOURSE. This Agreement is made with full recourse to
the Pledgors and pursuant to and upon all the representations,
warranties, covenants and agreements on the part of the Pledgors
contained herein and in the other Secured Debt Agreements and otherwise
in writing in connection herewith or therewith.
27. LIMITED OBLIGATIONS. It is the desire and intent of each
Pledgor and the Secured Creditors that this Agreement shall be enforced
against each Pledgor to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement is
<PAGE>
sought. Notwithstanding anything to the contrary contained herein, in
furtherance of the foregoing, it is noted that the obligations of each
Pledgor constituting a U.S. Subsidiary Guarantor have been limited as
provided in the Subsidiary Guaranty.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused
this Agreement to be executed by their duly elected officers duly
authorized as of the date first above written.
Address: 1717 Deerfield Road DADE BEHRING HOLDINGS, INC.
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
Address: 1717 Deerfield Road DADE BEHRING INC.
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
Address: 1717 Deerfield Road DADE BEHRING EXPORT
Deerfield, IL 60015-0078 CORPORTATION
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
<PAGE>
Address: 1717 Deerfield Road DADE FINANCE INC.
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
Address: c/o Dade Behring Inc. DADE MICROSCAN INC.
1717 Deerfield Road
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
Address: c/o Dade Behring Inc. SYVA DIAGNOSTICS HOLDING
1717 Deerfield Road COMPANY
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
<PAGE>
Address: c/o Dade Behring Inc. SYVA COMPANY
1717 Deerfield Road
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
Address: c/o Dade Behring Inc. SYVA CHILDCARE INC.
1717 Deerfield Road
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
[EXECUTION COPY]
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT is made as
of April 14, 1999, by and among Dade Behring Holdings, Inc., a
Delaware corporation ("Holdings"), Hoechst AG, a German corporation
("Hoechst"), each of the Persons listed on Schedule I attached hereto
(the "GS Group"), and each of the Persons listed on Schedule II
attached hereto (the "Bain Group," and, together with the GS Group,
the "Investors") (Hoechst, the GS Group, the Bain Group and each
other party from time to time a party thereto are collectively
referred to herein as the "Stockholders," and each as a
"Stockholder").
WHEREAS, Holdings, as of the date hereof, is authorized by
its Certificate of Incorporation to issue capital stock consisting of
1,300,000 shares of its Class L Common Stock, par value $.01 per
share (the "Class L Common"), 700,000 shares of its Class L Common,
Series B, par value $.01 per share (the "Class L Common, Series B"),
20,000,000 shares of its Common Stock, par value $.01 per share
("Common"), and 100,000 shares of its Preferred Stock, par value $.01
per share (the "Preferred Stock"). The Class L Common, Class L
Common, Series B, and the Common are collectively referred to herein
as "Common Stock".
WHEREAS, Hoechst, the Bain Group, the GS Group and Holdings
are parties to an Amended and Restated Stockholders Agreement, dated
October 1, 1997 (the "Old Agreement"), which Old Agreement amended
and restated a Stockholders Agreement dated December 20, 1994 among
the Bain Group, the GS Group and Holdings.
WHEREAS, Hoechst, the GS Group and the Bain Group own the
number of shares of Common Stock set forth opposite its name on
Schedule III attached hereto and, in the case of Hoechst, a warrant
to acquire the additional number of shares of Common and Class L
Common, Series B, set forth opposite its name on Schedule III
attached hereto.
WHEREAS, Hoechst, the Bain Group, the GS Group and Holdings
are parties to a Recapitalization Agreement of even date (the
"Recapitalization Agreement"), pursuant to which such Persons agreed
to recapitalize the Common Stock of Holdings as set forth therein.
WHEREAS, the parties hereto desire to amend and restate the
Old Agreement to establish the composition of Holdings' Board of
Directors (the "Board"), to restrict the sale, assignment, transfer,
encumbrance or other disposition of the Common Stock, to provide for
certain additional covenants and to provide for certain rights and
obligations in respect thereto as hereinafter provided. Unless
otherwise provided in this Agreement, capitalized terms used herein
shall have the meanings set forth in paragraph 12 hereof.
NOW, THEREFORE, the parties to this Agreement hereby agree
as follows:
1. Voting Agreement.
<PAGE>
(a) Each holder of Stockholder Shares shall vote all of
such holder's Stockholder Shares and shall take all other necessary
or desirable actions within such holder's control (whether in such
holder's capacity as a stockholder, director or officer of Holdings
or otherwise, and including, without limitation, attendance at
meetings in person or by proxy for purposes of obtaining a quorum and
execution of written consents in lieu of meetings) and Holdings shall
take all necessary and desirable actions within its control
(including, without limitation, calling special board and stockholder
meetings) so that:
(i) the authorized number of directors on the Board
shall be established by the holders of a majority of the Bain
Shares ("Bain Holders"), but in no event be greater than 20
members;
(ii) a number of persons designated by the Bain
Holders (so lon as the shares held by the Bain Holders
constitute at least 5% of the outstanding Common Stock) shall be
members of the Board (the "Bain Directors"), such number being
equal to the difference between (x) the authorized number of
directors and (y) the number of directors that otherwise may be
filled pursuant to this paragraph 1(a) (i.e., the chief
executive officer and the number of directors that the Hoechst
Block Group and the GS Holders may designate);
(iii) two persons (or, in the event the authorized
number of directors on the Board is greater than 15, three
persons, or in the event the number is greater than 19, four
persons) designated by the Hoechst Block Group (so long as the
Hoechst Block Group own at least 50% of the Initial Hoechst
Shares) shall be members of the Board (the "Hoechst Directors");
(iv) in addition to the Hoechst Directors, the Hoechst
Block Group shall designate the Executive Chairman (the initial
Executive Chairman shall be Uwe Bicker);
(v) the Executive Chairman shall be a member of the
Board, shall report directly to the Board and be responsible for
providing oversight, advice and counsel concerning the strategic
direction of Holdings (including, without limitation, acting as
liaison with Hoechst, e.g., to identify future life science
opportunities for Holdings);
(vi) one person designated by the holders of a
majority of the GS Shares (the "GS Holders") (so long as such
shares constitute at least 5% of the outstanding Common Stock)
shall be a member of the Board (the "GS Director");
(vii) the holders of a majority of the Bain Shares
(so long as the shares held by the Bain Holders constitute at
least 5% of the outstanding Common Stock) shall designate the
President and Chief Executive Officer;
(viii) the President and Chief Executive Officer shall
be a member of the Board; and
<PAGE>
(ix) management of Holdings shall prepare and present
to the Board for approval an annual business plan and budget (a
"Business Plan and Budget") setting forth the strategic,
operating and financial objectives of Holdings and its
subsidiaries for the upcoming fiscal year and the related budget
for capital expenditures, investments and other discretionary
payments expected to be made during such period. The Board
shall meet to consider the Business Plan and Budget. A Business
Plan and Budget shall be deemed approved by the Board upon an
affirmative vote of a majority of its members; provided that
such approval shall not be effective if a Hoechst Director shall
have voted against approval.
(b) So long as the relevant Stockholder or Stockholders
has the right to designate a director, each committee of the Board
shall have as a member at least one Hoechst Director (if requested by
the Hoechst Block Group), one Bain Director (if requested by the Bain
Holders) and one GS Director (if requested by the GS Holders). The
removal from the Board, any committee of the Board or any position
(in each case with or without cause) of any person designated under
paragraph 1(a) or 1(b) by the GS Holders, the Bain Holders or the
Hoechst Block Group shall be at the written request of the person or
group that at the time of such removal has the right pursuant to
paragraph 1(a) or 1(b) to designate such person and only upon such
written request and under no other circumstances (except as otherwise
required by law).
(c) In the event that any person designated under
paragraph 1(a) or 1(b) by the GS Holders, the Bain Holders or the
Hoechst Block Group, as the case may be, for any reason ceases to
serve as a member of the Board or any committee of the Board or in
any position for which such representative was designated during such
person's term of office, the resulting vacancy on the Board, the
committee of the Board or position shall be filled by a person
designated by the person or group that at the time of such vacancy
has the right pursuant to paragraph 1(a) or 1(b) to designate such
person.
(d) Nothing contained in this paragraph 1 will require any
such holder to violate any legal obligation such holder may have as a
director of Holdings.
(e) The parties hereto acknowledge that Uwe Bicker may
serve as a member of the board of directors of Hoechst Marrion
Roussel AG (or successor entity resulting from the Rhone-Poulenc
Combination) and, upon notice to and approval of the Board, other
Hoechst-affiliated or joint venture entities in order to facilitate
the activities contemplated by the Cooperation Agreement.
<PAGE>
2. Provisions Concerning the Transfer of Stockholder
Shares.
(a) General. Subject to paragraph 2(b), no holder of
Stockholder Shares shall directly or indirectly sell, transfer,
assign, pledge, encumber or otherwise dispose of (including to
Holdings) (a "Transfer") any interest in any Stockholder Shares other
than in compliance with this paragraph 2.
(b) Permitted Transfers. The restrictions contained in
paragraphs 2(c) and 2(d) shall not apply to a Transfer of Investor
Shares by any holder thereof to its Affiliates or to any employee of
Holdings or its Subsidiaries, of Hoechst Shares by a holder thereof
to its Affiliates, pursuant to a Public Sale, pursuant to an
Approved Sale, of Stockholder Shares by any holder thereof pursuant
to the laws of descent and distribution or among such holder's Family
Group, by Hoechst, to the entity resulting from the Rhone-Poulenc
Combination, (vii) by Hoechst, pursuant to paragraph 2(e), or (viii)
by the Investors, to Holdings pursuant to the Recapitalization
Agreement; provided that the restrictions contained in this Agreement
will continue to be applicable to the Stockholder Shares after any
Transfer pursuant to clauses (i), (ii), (v) and (vi) and the
transferees of such Stockholder Shares shall agree, prior to any such
Transfer, in writing to be bound by the provisions of this Agreement
by executing and delivering to Holdings and the other Stockholders a
counterpart of this Agreement.
(c) At least 30 days prior to signing a definitive
agreement for the Transfer of Stockholder Shares, the transferring
Stockholder (the "Transferring Stockholder") shall deliver written
notice (the "Transfer Notice") to each other Stockholder (it being
understood that the Transfer Notice need not include any other
information, including any information concerning the identity of
prospective transaction parties, the number of shares being
transferred, timing, price or conditions). If within 5 days of
delivery of the Transfer Notice, the Transferring Stockholder
receives notice from one or more of the other Stockholders (the
"Potential Purchasing Stockholders") of any such Stockholder's
interest in purchasing Stockholder Shares, then, through the 30th day
following delivery of the Transfer Notice (the "PPS Discussion
Period"), the Transferring Stockholder (i) shall not conduct
negotiations or discussions concerning the contemplated Transfer with
any prospective transferees (other than a Potential Purchasing
Stockholder), and (ii) shall conduct good faith negotiations with the
Potential Purchasing Stockholders with the view to evaluating a
possible transaction (it being understood that the PPS Discussion
Period, and related discussions and negotiations, shall automatically
cease at the end of such 30-day period, unless the Transferring
Stockholder in its sole discretion agrees otherwise in writing). The
Transferring Stockholder, subject to the provisions of subparagraph
2(d) below, shall have the right to Transfer all or any portion of
its Stockholder Shares to any Person on such terms and conditions as
are acceptable to the Transferring Stockholder in its sole discretion
(including, without limitation, terms and conditions that may be less
favorable to the Transferring Stockholder than may have been offered
by, or discussed with, a Potential Purchasing Stockholder) at any
<PAGE>
time from the expiration of the PPS Discussion Period through the
275th day following the expiration of the PPS Discussion Period;
provided that such 275-day period shall be extended to 365 days if at
the end of such 275-day period the Transferring Stockholder has
entered into a letter of intent, memorandum of understanding or
similar agreement with respect to a possible transaction and
otherwise is engaged in a transaction process (it being understood
that engagement shall include, without limitation, conducting
negotiations, raising financing or waiting for receipt of
governmental approvals). Nothing in this subparagraph 2(c) shall
obligate any Transferring Stockholder in any way to reach agreement
with a Potential Purchasing Stockholder concerning a possible
transaction.
(d) Participation Rights.
(i) At least 15 days prior to any Transfer of any
Stockholder Shares, the Transferring Stockholder will deliver to the
other Stockholders (collectively, the "Other Stockholders") a written
notice (a "Sale Notice") specifying in reasonable detail the identity
of the prospective transferee(s) and the terms and conditions of the
contemplated Transfer. The Other Stockholders may elect to
participate in the contemplated Transfer by delivering written notice
to the Transferring Stockholder within 15 days after delivery of the
Sale Notice. If any Other Stockholders have elected to participate
in such Transfer, each of the Transferring Stockholder and such Other
Stockholders will be entitled to sell in the contemplated Transfer,
at the same price and (subject to the following sentence) on the same
terms, a number of shares of each class of Common Stock being
transferred equal to the product of (A) the quotient determined by
dividing the number of shares of such class of Common Stock owned by
such person by the aggregate number of shares of such class of Common
Stock owned by all Persons participating in such sale by the
Transferring Stockholder and (B) the number of shares of such class
of Common Stock to be sold in the contemplated Transfer. A
Stockholder participating in a Transfer shall not be required to
agree to any noncompetition covenants arising in connection with the
Transfer (it being understood that such exception does not apply to a
noncompetition covenant to which a participating Stockholder may at
the time already be bound). Notwithstanding the foregoing, in the
event that the Transferring Stockholder intends to Transfer shares of
more than one class of Common Stock, the Other Stockholders
participating in such Transfer shall be required to sell in the
contemplated Transfer a pro rata portion of shares of all such
classes of Common Stock, which portion shall be determined in the
manner set forth immediately above.
<PAGE>
(ii) The Transferring Stockholder will use reasonable
efforts to obtain the agreement of the prospective transferee(s) to
the participation of the Other Stockholders in any contemplated
Transfer, and the Transferring Stockholder will not Transfer any of
its shares of Common Stock to the prospective transferee(s) unless
(A) simultaneously with such Transfer, the prospective transferee(s)
purchases, at the same price and on the same terms, from the Other
Stockholders the shares of Common Stock which they are entitled to
sell to such prospective transferee pursuant to paragraph 2(d)(i) or
(B) simultaneously with such Transfer, the Transferring Stockholder
purchases, at the same price and on the same terms, the number of
shares of such class of Common Stock from the Other Stockholders
which the Other Stockholders would have been entitled to sell
pursuant to paragraph 2(d)(i) above.
(iii) If the Transfer contemplated by a Sale Notice is
not consummated within the 275-day (or, as applicable, 365-day)
period described in paragraph 2(c) above, such Sale Notice and all
elections by Other Stockholders (if any) shall be deemed to have been
rescinded (and any subsequent Transfer by a Transferring Stockholder
will continue to be governed by this paragraph 2).
(e) Bain Purchase Right. In the event that after three
consecutive meetings of the Board a Hoechst Director shall continue
to vote against approval of a Budget and Business Plan, Bain and
Goldman (and/or any person designated by Bain or Goldman) (pro rata
based on the number of shares of Common Stock then owned by each and
each of their respective Affiliates) will have the right upon written
notice to Hoechst to purchase any and all Hoechst Shares at a
purchase price per share equal to X divided by Y, multiplied by Z,
where "X" is the amount equal to 5 times the earnings before
interest, taxes, depreciation and amortization for the most recent
four-quarter period, less the amount of all indebtedness and other
liabilities as of the end of the most recent fiscal quarter, of
Holdings and its subsidiaries determined on a consolidated basis in
accordance with United States generally accepted accounting
principles, "Y" is the number of shares of Common Stock then
outstanding on a fully-diluted basis and "Z" is 0.60, being the
factor agreed by the parties as representing an appropriate discount
in light of the circumstances in which the repurchase right arises.
The closing(s) of any such purchase(s) shall take place as soon as
practicable. At such closing(s), the purchase price for the Hoechst
Shares shall be paid, at the option of the purchaser, by wire
transfer of immediately available funds or by delivery of each
purchaser's ten-year promissory note bearing interest at a rate per
annum of 10% payable quarterly (in cash or in kind), or any
combination of the foregoing.
(f) Limitation on Hoechst Sales to Holdings Competitor.
Other than pursuant to paragraph 2(d) or in connection with an
Approved Sale, no holder of Hoechst Shares shall Transfer any Hoechst
Shares to a Holdings Competitor. For purposes of this paragraph
"Holdings Competitor" means any Person (x) who, directly or
indirectly, derived more than $25 million of such Person's
consolidated revenues in the most recent fiscal year from an in vitro
diagnostics business, and (y) any affiliate of such Person.
<PAGE>
(g) Limitation on Investor Sales to Hoechst Competitor.
Other than pursuant to paragraph 2(d), no holder of Investor Shares
shall, prior to June 30, 2000, Transfer any Investor Shares to a
Hoechst Competitor. For purposes of this Agreement, "Hoechst
Competitor" means any Person (x) who, directly or indirectly, derived
more than $25 million of such Person's consolidated revenues in the
most recent fiscal year from pharmaceutical, vaccine, in vitro
diagnostics and/or blood plasma derivative businesses competitive
with Holdings or Hoechst (or its Subsidiaries), and (y) any affiliate
of such Person.
(h) The provisions of subparagraphs 2(c) and 2(d) will
terminate and be of no further force or effect on such date as the
provisions of paragraph 3 terminate; provided that on the date on
which the Hoechst Block Group ceases to holds at least 50% of the
Initial Hoechst Shares, the holders of Hoechst Shares shall no longer
have the benefit of (i.e., shall not be entitled to exercise rights
under) subparagraphs 2(c) or 2(d).
3. Approved Sale.
(a) If the Bain Holders request a Transfer of all or
substantially all of Holdings' assets determined on a consolidated
basis or a Transfer of all or substantially all (i.e., greater than
80%) of Holdings' outstanding capital stock (whether by merger
(including one in which Holdings is the surviving corporation),
recapitalization, consolidation, reorganization, combination or
otherwise) to any Independent Third Party or group of Independent
Third Parties (collectively an "Approved Sale"), each holder of
Stockholder Shares will consent to and raise no objections against
such Approved Sale. If the Approved Sale is structured as (i) a
merger (including one in which Holdings is the surviving corporation)
or consolidation, each holder of Stockholder Shares will waive any
dissenter's rights, appraisal rights or similar rights in connection
with such merger or consolidation or (ii) Transfer of stock
(including by recapitalization, consolidation, reorganization,
combination or otherwise), each holder of Stockholder Shares will
agree to sell all of its Stockholder Shares and rights to acquire
Stockholder Shares on the terms (subject to the following sentence)
and conditions approved by the Bain Holders. A Stockholder
participating in an Approved Sale shall not be required to agree to
any noncompetition covenants arising in connection with the
transaction (it being understood that such exception does not apply
to a noncompetition covenant to which a participating Stockholder may
at the time already be bound). Each holder of Stockholder Shares
will take all reasonable actions in connection with the consummation
of the Approved Sale as requested by Holdings. Each holder of GS
Shares hereby agrees to vote all of its shares in connection with any
potential Approved Sale transaction in the same manner as the Bain
Holders. Nothing in this paragraph 3 shall preclude any party from
making an offer to Holdings or Holdings from accepting such offer for
the assets or stock of Holdings.
<PAGE>
(b) The obligations of the holders of Common Stock with
respect to an Approved Sale are subject to the satisfaction of the
following conditions: (i) upon the consummation of the Approved Sale,
each holder of Common Stock will Transfer such Common Stock on the
same terms and will receive the same form of consideration and the
same portion of the aggregate consideration that such holders of
Common Stock would have received if such aggregate consideration had
been distributed by Holdings in complete liquidation pursuant to the
rights and preferences set forth in Holdings' Certificate of
Incorporation as in effect immediately prior to such Approved Sale;
(ii) each holder of shares of a class of Common Stock will be given
the same consideration with respect to each share of such class, and
if any holders of a class of Common Stock are given an option as to
the form and amount of consideration to be received, each holder of
such class of Common Stock will be given the same option with respect
to each share of such class; and (iii) each holder of then currently
exercisable rights to acquire shares of a class of Common Stock will
be given an opportunity to exercise such rights prior to the
consummation of the Approved Sale and participate in such sale as
holders of such class of Common Stock.
(c) If Holdings or the holders of Holdings' securities
enter into any negotiation or transaction for which Rule 506 (or any
similar rule then in effect) promulgated by the Securities and
Exchange Commission may be available with respect to such negotiation
or transaction (including a merger, consolidation or other
reorganization), the holders of Stockholder Shares will, at the
request of Holdings, appoint a purchaser representative (as such term
is defined in Rule 501) reasonably acceptable to Holdings. If any
holder of Stockholder Shares appoints a purchaser representative
designated by Holdings, Holdings will pay the fees of such purchaser
representative, but if any holder of Stockholder Shares declines to
appoint the purchaser representative designated by Holdings such
holder will appoint another purchaser representative, and such holder
will be responsible for the fees of the purchaser representative so
appointed. This paragraph 3(c) shall apply only to holders of
Stockholder Shares that are required to appoint a purchaser
representative under Regulation D (or any successor regulation then
in effect) promulgated by the Securities and Exchange Commission.
(d) Subject to paragraph 3(c), holders of Stockholder
Shares will bear their pro-rata share (based upon the proceeds to be
received by holders of Stockholder Shares) of the costs of any sale
of Stockholder Shares pursuant to an Approved Sale to the extent such
costs are incurred for the benefit of all holders of Common Stock and
are not otherwise paid by Holdings or the acquiring party. For
purposes of this paragraph 3(d), costs incurred in exercising
reasonable efforts to take all necessary actions for the consummation
of an Approved Sale in accordance with paragraph 3(a) shall be deemed
to be for the benefit of all holders of Common Stock. Costs incurred
by holders of Stockholder Shares on their own behalf will not be
considered costs of the transaction hereunder.
(e) Notwithstanding anything to the contrary, the
provisions of this paragraph 3 shall not apply to a holder of Hoechst
Shares with respect to any Approved Sale that is consummated on or
prior to June 30, 2000.
<PAGE>
(f) At least 30 days prior to signing a definitive
agreement for an Approved Sale, the Bain Holders shall deliver
written notice (the "Approved Sale Notice") to each other Stockholder
(it being understood that the Approved Sale Notice need not include
any other information, including any information concerning the
identify of prospective transaction parties, the number of shares
being transferred, timing, price or conditions). If within 5 days of
delivery of the Approved Sale Notice, the Bain Holders receive notice
from one or more of the other Stockholders (the "Potential
Transaction Stockholders") of any such Stockholder's interest in
purchasing Stockholder Shares, then, through the 30th day following
delivery of the Approved Sale Notice (the "PTS Discussion Period"),
the Bain Holders (i) shall not conduct negotiations or discussions
concerning the contemplated Approved Sale with any prospective
transferees (other than a Potential Transaction Stockholder), and
(ii) shall conduct good faith negotiations with the Potential
Transaction Stockholders with the view to evaluating a possible
transaction (it being understood that the PTS Discussion Period, and
related discussions and negotiations, shall automatically cease at
the end of such 30-day period, unless the Bain Holders in their sole
discretion agrees otherwise in writing). Following the PTS
Discussion Period, and subject to the other provisions of this
paragraph 3, the Bain Holders shall have the right to request an
Approved Sale on such terms and conditions as are acceptable to the
Bain Holders in their sole discretion (including, without limitation,
terms and conditions that may be less favorable than may have been
offered by, or discussed with, a Potential Transaction Stockholder).
Subject to subparagraphs 3(a) and 3(b) above, nothing in this
subparagraph 3(c) shall obligate any Bain Holder in any way to reach
agreement with a Potential Transaction Stockholder concerning a
possible transaction.
(g) The provisions of this paragraph 3 will terminate and
be of no further force or effect on the date on which the Bain Block
Group ceases to hold at least 50% of the Initial Bain Shares.
<PAGE>
4. Initial Public Offering.
(a) Subject to paragraph 6(a) of this Agreement, in the
event that the Board approves an Initial Public Offering or an
Initial Public Offering is consummated pursuant to the terms of the
Registration Agreement, the holders of Stockholder Shares will use
reasonable efforts to take all necessary actions in connection with
the consummation of the Initial Public Offering. In the event that
such Initial Public Offering is an underwritten offering and the
managing underwriters advise Holdings in writing that in their
opinion the Common Stock structure (other than the rights and
obligations under this Agreement) will adversely affect the
marketability of the offering, each holder of Stockholder Shares will
consent to and vote for a recapitalization, reorganization and/or
exchange of the Common Stock into securities that the managing
underwriters, the Board and holders of a majority of the shares of
Common Stock then outstanding find acceptable and will take all
necessary or desirable actions in connection with the consummation of
the recapitalization, reorganization and/or exchange; provided that
as a result of such recapitalization, reorganization and/or exchange
either (i) each share of Class L Common and Class L Common, Series B,
is converted or exchanged into (A) one share of Common and (B) shares
of nonparticipating preferred stock with a liquidation value equal to
the Unreturned Original Cost plus Unpaid Yield (as such terms are
defined in the Certificate of Incorporation) and a stated maturity of
5 years or less from date of issue and which, combined with the share
of Common, otherwise has the same economic rights (including yield)
and preferences as it possessed prior to such recapitalization,
reorganization and/or exchange, or a cash payment in an amount equal
to Unreturned Original Cost plus Unpaid Yield in lieu thereof or (ii)
each share of Class L Common and Class L Common, Series B, is
converted or exchanged into one share of Common plus a number of
shares of Common with a dollar value, based on the price to the
public, equal to such share's Unreturned Original Cost plus the
Unpaid Yield, as the case may be, thereon. The parties agree that
the rights and obligations specified in this Agreement shall survive
the consummation of the Initial Public Offering, except to the extent
expressly provided herein.
(b) Until the earlier of the date on which the Hoechst
Block Group owns less than 50% of the Initial Hoechst Shares and the
second anniversary of the effective date of the Initial Public
Offering, no Stockholder will purchase or otherwise acquire directly
or indirectly any shares of Common Stock in the open market without
the prior written consent of each of the Hoechst Block Group and the
Investor Holders.
<PAGE>
5. Preemptive Rights.
(a) Except for the issuance of Common Stock (and/or
securities exercisable for or convertible into Common Stock) to
Holdings' or its Subsidiaries' directors or employees in their
capacity as such, in connection with an Approved Sale, subject to
the following sentence, in connection with any merger, consolidation,
acquisition of stock, acquisition of assets, business combination or
similar transaction, pursuant to the initial public offering of
Holdings' Common Stock registered under the Securities Act or upon
the conversion or exercise of securities convertible into or
containing options or rights to acquire Common Stock, Holdings shall
first offer to sell to each holder of Bain Shares, each holder of
GS Shares and the Hoechst Block Group a portion of such stock or
securities equal to the quotient determined by dividing (A) the
number of shares of Common Stock held by such holder of Stockholder
Shares (including any shares issuable upon exercise of the Warrant if
then exercisable) by (B) the total number of shares of outstanding
Common Stock (including any shares issuable upon exercise of the
Warrant if then exercisable). If on or prior to June 30, 2000,
Holdings issues Common Stock in connection with a transaction
described in clause (iii) above and, after giving effect to the
transaction, such issuance represents more than 50% of the
outstanding Common Stock, Holdings shall offer to sell to each holder
identified above a pro rata share (calculated as provided above) of
the portion of such issuance that exceeds 50% of the outstanding
Common Stock. Each such holder of Stockholder Shares shall be
entitled to purchase such stock or securities at the most favorable
price and on the most favorable terms as such stock or securities are
to be offered to any other Person. The purchase price for all stock
and securities offered to each such holder of Stockholder Shares
shall be payable in cash by wire transfer of immediately available
funds.
(b) In order to exercise its purchase rights hereunder,
each holder of Stockholder Shares must deliver a written notice to
Holdings describing its election hereunder within 30 days after
receipt of written notice from Holdings describing in reasonable
detail the stock or securities being offered, the purchase price
thereof, the payment terms and such holder's percentage allotment.
(c) Upon the expiration of the offering periods described
above, Holdings shall be entitled to sell such stock or securities
which the holders of Stockholder Shares have not elected to purchase
during the 90 days following such expiration on terms and conditions
no more favorable to the purchasers thereof than those offered to
holders of Stockholder Shares. Any stock or securities offered or
sold by Holdings to any Person after such 90 day period must be
reoffered to the holders of Stockholder Shares pursuant to the terms
of this paragraph.
(d) Termination. The provisions of this paragraph 5 will
terminate and be of no further force or effect upon the consummation
of the Initial Public Offering.
<PAGE>
(6) Restrictive Covenants.
(a) GS Group. Until the first of (i) the GS Group holding
less than a majority of the Initial GS Shares, (ii) the GS Group not
having at least one designee on the Board, and (iii) December 20,
1999, Holdings shall not without the prior written consent of the GS
Group:
(i) authorize or enter into any agreement providing
for a sale of the company to an Independent Third Party or group
of Independent Third Parties pursuant to which such party or
parties acquire (i) capital stock of Holdings possessing the
voting power under normal circumstances to elect a majority of
the Board (whether by merger, consolidation or sale or transfer
of Holdings's capital stock) or (ii) all or substantially all
(as such phrase is described in the Official Comment to S 12.01
of the Revised Model Business Corporation Act (1984, as amended
as of the date hereof)) of Holdings's assets determined on a
consolidated basis;
(ii) sell its common equity securities, securities
convertible or exchangeable for common equity securities,
options or other rights to purchase common equity securities or
other common equity equivalents pursuant to its Initial Public
Offering;
(iii) sell, lease or otherwise dispose of, or permit
any Subsidiary to sell, lease or otherwise dispose of, all or
substantially all (as such phrase is described in the Official
Comment to S 12.01 of the Revised Model Business Corporation
Act (1984, as amended as of the date hereof)) to an Independent
Third Party or group of Independent Third Parties of any of the
product lines set forth on Exhibit A attached hereto in any
transaction or series of related transactions at any price below
those set forth on Exhibit A; or
(iv) permit Holdings to engage or permit any of its
subsidiaries to engage in any businesses which are not the same,
similar or related to the businesses in which Holdings and its
Subsidiaries are engaged on the date of this Agreement.
(b) Hoechst. Until the date on which the Hoechst Block
Group owns less than 50% of the Initial Hoechst Shares, the
affirmative vote of a majority of the members of the Board of
Directors, which shall include at least one Hoechst Director, will be
required for the approval of any of the following:
(i) entering by Holdings or any of its subsidiaries
into, amending any written agreement or engaging in any other
transaction with Goldman, Bain or any of their respective
Affiliates, other than on terms that are fair and reasonable and
no less favorable to Holdings or such subsidiary than it would
obtain in a comparable arm's length transaction with an
Independent Third Party;
<PAGE>
(ii) changing the name or fundamental purpose or
nature of the business of Holdings;
(iii) the liquidation or winding up of Holdings;
(iv) any amendment to the Certificate of Incorporation
or By-Laws of Holdings if such amendment would adversely affect
the relative rights, privileges and preferences of the Hoechst
Shares with respect to any other shares of the same class of
Common Stock or if such amendment would otherwise adversely
affect Hoechst's rights, privileges and preferences in Holdings
as set forth in the Transaction Documents; and
(v) the appointment of any initial independent
directors in connection with the Initial Public Offering;
(vi) Holdings, on or prior to June 30, 2000, (A)
merging or consolidating with another Person, other than a
merger or consolidation pursuant to which Holdings is the
surviving corporation and as a result of which no Stockholder
Shares are exchanged, converted or canceled, or (B) sells all or
substantially all of its consolidated assets in one or a series
of related transactions.
(a) Termination. The provisions of this paragraph 6 will
terminate and be of no further force or effect upon the consummation
of the Initial Public Offering; provided, however, that the
provisions of paragraph 6(b)(vi) shall survive until June 30, 2000,
without regard to the consummation of the Initial Public Offering.
7. Affirmative Covenants.
(a) Financial Information. Holdings covenants and agrees
with each Stockholder that as long as such Stockholder holds any
Common Stock:
(i) Quarterly Information. Except for any quarter at
the end of which Holdings is a Public Company it shall deliver to
each Stockholder as soon as practicable after the end of each of the
first three quarterly fiscal periods in each fiscal year of Holdings,
and in any event within 45 days thereafter, a copy of (i) an
unaudited consolidated balance sheet of Holdings and its subsidiaries
as at the end of such quarter, and (ii) unaudited consolidated
statements of income, retained earnings and consolidated cash flows
of Holdings and its subsidiaries for such quarter and (in the case of
the second and third quarters) for the portion of the fiscal year
ending with such quarter, subject to normal year end audit
adjustments. Such statements shall be (i) prepared in accordance
with generally accepted accounting principles in the United States of
America as in effect from time to time ("GAAP"), consistently
applied, (ii) in reasonable detail and (iii) certified by the
principal financial or accounting officer of Holdings.
<PAGE>
(ii) Annual Information. Except following any year at
the end of which Holdings is a Public Company, it shall deliver to
each Stockholder as soon as practicable after the end of each fiscal
year of Holdings, and in any event within 90 days thereafter, a copy
of (i) an audited consolidated balance sheet of Holdings and its
subsidiaries as at the end of such year, and (ii) audited
consolidated statements of income, retained earnings and consolidated
cash flows of Holdings and its subsidiaries for such year; setting
forth in each case in comparative form the figures for the previous
year. Such statements shall be (i) prepared in accordance with GAAP,
consistently applied, (ii) in reasonable detail and (iii) certified
by a firm of independent certified public accountants of recognized
national standing selected by Holdings.
(iii) Filings. Holdings shall deliver to each
Stockholder, promptly upon their becoming available, one copy of each
report, notice or proxy statement sent by Holdings to its
stockholders generally, and of each regular or periodic report
(pursuant to the Securities Exchange Act) and any registration
statement, prospectus or written communication (other than
transmittal letters) pursuant to the Securities Act of 1933 filed by
Holdings with (i) the Securities and Exchange Commission or (ii) any
securities exchange on which shares of Common Stock of Holdings are
listed.
(iv) Additional Information. With reasonable
promptness, Holdings shall deliver to (i) one Person designated from
time to time by holders of a majority of the Bain Shares (the "Bain
Designee") such additional information and data with respect to
Holdings as is reasonably requested by the Bain Designee, (ii) one
Person designated from time to time by holders of a majority of the
GS Shares (the "GS Designee") such additional information and data
with respect to Holdings as is reasonably requested by the GS
Designee and (iii) one Person designated from time to time by the
Hoechst Block Group such additional information and data with respect
to Holdings as is reasonably requested by Hoechst. Without limiting
the generality of the foregoing, Holdings agrees that it shall be
reasonable for any such Person to request such information as shall
be necessary for any such holders to comply with its obligations and
disclosure requirements under the U.S. securities laws and similar
requirements under applicable non-U.S. securities and accounting
laws.
8. Investment Banking Services. If at any time prior to
December 20, 1999, Holdings determines to retain an investment
banking firm to perform services in the areas of (i) public corporate
offerings or sale of equity securities or (ii) mergers and
acquisitions, Holdings agrees to (i) give Goldman a reasonable
opportunity to submit a proposal to provide such services, (ii)
consider any such proposal submitted by Goldman in good faith, and
(iii) subject to paragraph 6(b), to retain Goldman to provide such
services; provided that Holdings will have no obligation to retain
Goldman pursuant to (iii) hereof if the Board determines in the
reasonable exercise of its discretion that the retention of another
investment banking firm to render such services would provide a
material additional benefit to Holdings (based upon such other firms
proposal to Holdings, the terms and conditions of the engagement,
relevant experience and expertise, related services and support and
all other relevant factors).
<PAGE>
9. Preferred Stock. In the event that the Bain Group
purchases any Preferred Stock pursuant to Section 7 of Part B of
Article IV of the Certificate of Incorporation or otherwise, the Bain
Group will give written notice of the purchase to the GS Group.
Within 30 days after receipt of such written notice, the GS Group may
purchase its Pro Rata Portion of such Preferred Stock from B at the
same price and on the same terms as B purchased such Preferred Stock.
The GS Group's "Pro Rata Portion" shall mean the quotient defined by
dividing (a) the number of Stockholder Shares held by the GS Group by
(b) the total number of Stockholder Shares collectively held by the
Bain Group and the GS Group. Any Preferred Stock acquired by the
Bain Group will be deemed to be Bain Shares and any Preferred Stock
acquired by the GS Group will be deemed to be GS Shares for purposes
of this Agreement. The GS Group hereby agrees that neither it nor
its Affiliates will acquire, or make an offer to acquire, any shares
of Preferred Stock other than pursuant to this paragraph 9. The GS
Group may assign its rights under this paragraph 9 to any of its
Affiliates.
10. Termination. Notwithstanding any provisions to the
contrary contained herein, this Agreement will terminate and be of no
further force and effect upon consummation of an Approved Sale.
11. Legend. Each certificate evidencing Stockholder
Shares and each certificate issued in exchange for or upon the
transfer of any Stockholder Shares (if such shares remain Stockholder
Shares as defined herein after such Transfer) shall be stamped or
otherwise imprinted with a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN TRANSFERS AND VOTING
RESTRICTIONS PURSUANT TO AN AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT DATED AS OF APRIL 14, 1999
AMONG THE ISSUER OF SUCH SECURITIES (THE
"COMPANY") AND CERTAIN OF THE COMPANY'S
STOCKHOLDERS, AS MAY BE AMENDED FROM TIME TO
TIME. A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL
BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE
HOLDER HEREOF UPON WRITTEN REQUEST."
Holdings shall imprint such legend on certificates evidencing
Stockholder Shares outstanding prior to the date hereof. The legend
set forth above shall be removed from the certificates evidencing any
shares which cease to be Stockholder Shares in accordance with
paragraph 12 hereof. Any Stockholder Share bearing the legend
described in the Old Agreement need not bear the legend described
above.
<PAGE>
12. Definitions.
"Affiliate" shall mean with respect to a Stockholder, any
other person, entity or investment fund controlling, controlled by or
under common control with the Stockholder and, in the case of a
Stockholder which is a partnership, any partner of the Stockholder.
"Approved Sale" has the meaning set forth in paragraph 3
hereof.
"Bain" means Bain Capital, Inc.
"Bain Block Group" means, collectively, the Bain Group, any
Affiliate of a member of the Bain Group and any Person (or group of
Persons acting together) who has acquired from the Bain Group and any
Affiliate of a member of the Bain Group in a single transaction or a
series of related transactions at least 75% of the Initial Bain
Shares, so long as such transaction(s) complied with the provisions
of paragraph 2.
"Bain Designee" has the meaning set forth in paragraph
7(iv) hereof.
"Bain Group" has the meaning set forth in the preamble.
"Bain Holders" has the meaning set forth in paragraph 1 of
this Agreement.
"Bain Shares" means any Common Stock acquired by the Bain
Group (or its Affiliates) pursuant to the Purchase Agreement or
otherwise and any equity securities issued or issuable directly or
indirectly with respect to such Common Stock by way of stock dividend
or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. Any
particular shares constituting Bain Shares that are transferred in
compliance with the provisions of this Agreement shall continue to
constitute Bain Shares in the hands of any such transferee; such
shares will cease to be Bain Shares only when they have been (x)
effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, or (y) sold
to the public pursuant to Rule 144 (or by similar provision then in
force) under the Securities Act.
"Business Day" means any day that is not a Saturday, a
Sunday or any other day on which banks are required or authorized by
law to be closed in the State of New York, the City of New York or
the Federal Republic of Germany.
"Certificate of Incorporation" means Holdings' certificate
of incorporation in effect at the time as of which any determination
is being made.
<PAGE>
"Combination Agreement" means the Agreement and Plan of
Combination, between Holdings and Hoechst, dated June 24, 1997, as
the same may be amended in accordance with its terms.
"Cooperation Agreement" has the meaning set forth in the
Combination Agreement, as the same may be amended in accordance with
its terms.
"Family Group" means a stockholder's spouse and descendants
(whether or not adopted) and any trust solely for the benefit of the
Stockholder and/or the Stockholder's spouse and/or descendants.
"Goldman" means Goldman, Sachs & Co.
"GS Designee" has the meaning set forth in paragraph 7(iv)
hereof.
"GS Directors" has the meaning set forth in paragraph 1
hereof.
"GS Group" has the meaning set forth in the preamble.
"GS Holders" has the meaning set forth in paragraph 1
hereof.
"GS Shares" means any Common Stock acquired by the GS Group
(or its Affiliates) pursuant to the Purchase Agreement or otherwise
and any equity securities issued or issuable directly or indirectly
with respect to such Common Stock by way of stock dividend or stock
split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. Any
particular shares constituting GS Shares that are transferred in
compliance with the provisions of this Agreement shall continue to
constitute GS Shares in the hands of any such transferee; such shares
will cease to be GS Shares only when they have been (x) effectively
registered under the Securities Act and disposed of in accordance
with the registration statement covering them, or (y) sold to the
public pursuant to Rule 144 (or by similar provision then in force)
under the Securities Act.
"Hoechst Directors" has the meaning set forth in paragraph
1 hereof.
"Hoechst Block Group" means, collectively, Hoechst, its
Affiliates and any Person (or group of Persons acting together) who
has acquired from Hoechst and its Affiliates in a single transaction
or a series of related transactions at least 75% of the Initial
Hoechst Shares, so long as such transaction(s) complied with the
provisions of paragraph 2.
"Hoechst Holder" means the holder of a majority of the
Hoechst Shares.
<PAGE>
"Hoechst Shares" means any Common Stock acquired by Hoechst
(or its Affiliates) pursuant to the Combination Agreement, upon the
exercise of the Warrant or otherwise and any equity securities issued
or issuable directly or indirectly with respect to such Common Stock
by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
other reorganization. Any particular shares constituting Hoechst
Shares that are transferred in compliance with the provisions of this
Agreement shall continue to constitute Hoechst Shares in the hands of
any such transferee; such shares will cease to be Hoechst Shares only
when they have been (x) effectively registered under the Securities
Act and disposed of in accordance with the registration statement
covering them or (y) sold to the public pursuant to Rule 144 (or by
similar provision then in force) under the Securities Act.
"Independent Third Party" means any Person who, immediately
prior to the contemplated transaction, does not own in excess of 5%
of Holdings' Common Stock on a fully-diluted basis (a "5% Owner"),
who is not controlling, controlled by or under common control with
any such 5% Owner and who is not the spouse or descendent (by birth
or adoption) of any such 5% Owner or a trust for the benefit of such
5% Owner and/or such other Persons.
"Initial Bain Shares" means the aggregate number of shares
of Common Stock set forth opposite the Bain Group's names on Schedule
III hereto (as adjusted for any subsequent stock splits, stock
dividends, combinations of shares and similar recapitalizations),
less the number of shares redeemed or redeemable by Holdings pursuant
to the Recapitalization Agreement.
"Initial GS Shares" means the aggregate number of shares of
Common Stock set forth opposite the GS Group's names on Schedule III
hereto (as adjusted for any subsequent stock splits, stock dividends,
combinations of shares and similar recapitalizations), less the
number of shares redeemed or redeemable by Holdings pursuant to the
Recapitalization Agreement.
"Initial Hoechst Shares" means the aggregate number of
shares of Common Stock issued to Hoechst (and its Affiliates)
pursuant to the Combination Agreement (excluding any shares of Common
acquired upon exercise of the Warrant) (as adjusted for any
subsequent stock splits, stock dividends, combinations of shares and
similar recapitalizations).
"Initial Public Offering" means a public offering and sale
of Holdings' common stock with aggregate proceeds (before discounts)
of at least $75 million pursuant to an effective registration
statement under the Securities Act of 1933, as amended, if
immediately thereafter Holdings has publicly held common stock listed
on a national securities exchange or the NASD automated quotation
system.
"Investor Shares" means the Bain Shares and the GS Shares.
"Investors" has the meaning set forth in the preamble
hereto.
<PAGE>
"Person" means an individual, a partnership, a corporation,
limited liability company, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political
subdivision thereof.
"Preferred Stock" has the meaning set forth in the recitals
hereto.
"Public Company" means a company (i) which is subject to
the reporting requirements of Section 15(d) of the Securities
Exchange Act or (ii) any of whose securities are registered pursuant
to Section 12(b) or 12(g) of the Securities Exchange Act.
"Public Sale" means any sale of Stockholder Shares to the
public pursuant to an offering registered under the Securities Act or
to the public pursuant to the provisions of Rule 144 adopted under
the Securities Act.
"Purchase Agreement" means the Stock Purchase Agreement,
dated December 20, 1994, by and among the Bain Group, the GS Group
and Holdings, as the same may be amended in accordance with its
terms.
"Recapitalization Agreement" has the meaning set forth in
the preamble, as the same may be amended in accordance with its
terms.
"Registration Agreement" has the meaning set forth in the
Combination Agreement, as the same may be amended in accordance with
its terms.
"Rhone-Poulenc Combination" means the business combination,
joint venture or similar combination between Hoechst and Rhone-
Poulenc; provided, however, that if (x) the entity resulting from
such transaction includes businesses other than businesses of Rhone-
Poulenc and Hoechst, or (y) a Person, other than Rhone-Poulenc,
Hoechst or any Person presently holding more than 5% of the voting
securities of Rhone-Poulenc or Hoechst, holds more than 5% of the
voting securities of the entity resulting from such transaction,
then, for purposes of this Agreement only, such Rhone-Poulenc
Combination shall be reasonably acceptable to the Bain Holders.
"Sale Notice" has the meaning set forth in paragraph 2(d)
hereof.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Stockholder Shares" means the Hoechst Shares, the Bain
Shares and the GS Shares.
<PAGE>
"Subsidiary" means with respect to any Person, any
corporation, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of
shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors is at the time
owned or controlled, directly or indirectly, by that Person or one or
more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a partnership, association or other business
entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more Subsidiaries of that Person
or a combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a
partnership, association or other business entity if such Person or
Persons shall be allocated a majority of partnership, association or
other business entity gains or losses or shall be or control the
managing director or general partner of such partnership, association
or other business entity.
"Transaction Documents" means this Agreement, the
Combination Agreement, the Registration Agreement and the Warrant.
"Warrant" has the meaning set forth in the Combination
Agreement, as the same may be amended in accordance with its terms.
13. Transfers in Violation of Agreement. Any Transfer or
attempted Transfer of any Stockholder Shares in violation of any
provision of this Agreement shall be void, and Holdings shall not
record such Transfer on its books or treat any purported transferee
of such Stockholder Shares as the owner of such shares for any
purpose.
14. Amendment and Waiver. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived
only upon the prior written consent of Holdings, the Bain Holders,
the GS Holders and the Hoechst Holders. The failure of any party to
enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the
right of such party thereafter to enforce each and every provision of
this Agreement in accordance with its terms.
15. Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any
respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other
provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
<PAGE>
16. Entire Agreement. Except as otherwise expressly set
forth herein, this Agreement, the Recapitalization Agreement, the
Combination Agreement and the Registration Agreement embody the
complete agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersede and preempt any
prior understandings, agreements (including, without limitation, the
Old Agreement and the Purchase Agreement) or representations by or
among the parties, written or oral, which may have related to the
subject matter hereof in any way.
17. Successors and Assigns. Except as otherwise provided
in this Agreement, this Agreement shall bind and inure to the benefit
of and be enforceable by Holdings and its successors and permitted
assigns and the Stockholders and any subsequent holders of
Stockholder Shares and the respective successors and permitted
assigns of each of them, so long as they hold Stockholder Shares.
Except as contemplated by the definition of Hoechst Block Group,
Hoechst's rights specified in paragraph 1 of this Agreement may not
be assigned by Hoechst.
18. Counterparts. This Agreement may be executed in
separate counterparts each of which shall be an original and all of
which taken together shall constitute one and the same agreement.
19. Remedies. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that Holdings and any
Stockholder shall have the right to injunctive relief, in addition to
all of its rights and remedies at law or in equity, to enforce the
provisions of this Agreement. Nothing contained in this Agreement
shall be construed to confer upon any Person who is not a signatory
hereto any rights or benefits, as a third party beneficiary or
otherwise; provided that Goldman is a beneficiary of paragraphs 2(e)
and 8 of this Agreement and Bain is a beneficiary of paragraph 2(e)
of this Agreement, in each case with rights to enforce such
provision.
20. Notice. All notices, demands and other communications
to be given or delivered under or by reason of the provisions of this
Agreement shall be in writing and shall be deemed to have been given
when personally delivered, sent by telecopy (with receipt confirmed)
on a Business Day during regular business hours of the recipient (or,
if not, on the next succeeding Business Day) or two Business Days
after sent by reputable overnight express courier (charges prepaid);
provided that any notice to a Stockholder who holds GS Shares shall
be effective only if notice has been given to the GS Designee and
notice to the GS Designee will not be deemed to have been given
unless actually delivered in person or by telecopy or courier.
<PAGE>
21. Delivery by Facsimile. This Agreement and any signed
agreement or instrument entered into in connection thereto or
contemplated thereby, and any amendments hereto or thereto, to the
extent signed and delivered by means of a facsimile machine, shall be
treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in
person. At the request of any party hereto or to any such agreement
or instrument, each other party hereto or thereto shall re-execute
original forms thereof and deliver them to all other parties. No
party hereto or to any such agreement or instrument shall raise the
use of a facsimile machine to deliver a signature or the fact that
any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to
the formation of a contract and each such party forever waives any
such defense.
If to Holdings:
Dade Behring Holdings, Inc.
1717 Deerfield Road
Deerfield, Illinois 60015-0778
U.S.A.
Attention: Chief Executive Officer
If to the Bain Group:
Bain Capital, Inc.
Two Copley Place
Boston, Massachusetts 02116
U.S.A.
Attention: John Connaughton
With a copy to (which shall not constitute notice hereunder):
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
U.S.A.
Attention: Matthew E. Steinmetz
If to the GS Group:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
U.S.A.
Attn: Joseph H. Gleberman
With a copy to (which shall not constitute notice
hereunder):
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10014
U.S.A.
Attention: Lee Parks
<PAGE>
If to Hoechst:
Hoechst AG
Bruningstrasse 50
D-65929 Frankfurt a. M.
Germany
Attention: Chairman of the Management Board
With a copy to (which shall not constitute notice hereunder):
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
U.S.A.
Attention: Creighton O'M. Condon
22. Governing Law. THE CORPORATE LAW OF DELAWARE WILL
GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND
ITS STOCKHOLDERS. ALL OTHER ISSUES CONCERNING THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT
OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAW OF
ANY JURISDICTION OTHER THAN THE COUNTY OF NEW YORK. EACH PARTY
HERETO HEREBY SUBMITS TO THE CO-EXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND OF
ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY, OVER ANY LAWSUIT
UNDER THIS AGREEMENT AND WAIVES ANY OBJECTION BASED ON VENUE OR FORUM
NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN. EACH
PARTY HERETO HEREBY WAIVES THE NECESSITY FOR PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL (RETURN RECEIPT
REQUESTED), WITH A COPY ALSO BEING SENT BY FACSIMILE (WITH RECEIPT
CONFIRMED), IN EACH CASE DIRECTED TO SUCH PARTY AT ITS ADDRESS SET
FORTH IN, AND WITH COPIES SENT AS REQUIRED BY, PARAGRAPH 21 ABOVE,
AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED ON THE DATE OF
ACTUAL RECEIPT. EACH PARTY HERETO HEREBY CONSENTS TO SERVICE OF
PROCESS AS AFORESAID. NOTHING IN THIS PARAGRAPH 22 WILL PROHIBIT
PERSONAL SERVICE IN LIEU OF THE SERVICE BY MAIL CONTEMPLATED HEREIN.
23. Descriptive Headings. The descriptive headings of
this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
* * * * *
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Stockholders Agreement on the day and year first
above written.
DADE BEHRING HOLDINGS, INC.
By: /s/
Its:
HOECHST AG
By: /s/
Its:
BAIN CAPITAL FUND IV, L.P.
By: Bain Capital Partners IV, L.P.
Its: General Partner
By: Bain Capital Investors, Inc.
Its: General Partner
By: /s/
A Managing Director
BAIN CAPITAL FUND IV-B, L.P.
By: Bain Capital Partners IV, L.P.
Its: General Partner
By: Bain Capital Investors, Inc.
Its: General Partner
By: /s/
A Managing Director
BCIP ASSOCIATES
By: /s/
A General Partner
BCIP TRUST ASSOCIATES, L.P.
By: /s/
A General Partner
<PAGE>
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.P.
Its: General Partner
By: GS Advisors, Inc.
Its: General Partner
By: /s/
BRIDGE STREET FUND 1994, L.P.
By: Stone Street Funding Corp.
Its: Managing General Partner
By: /s/
STONE STREET FUND 1994, L.P.
By: Stone Street Funding Corp.
Its: General Partner
By: /s/
RANDOLPH STREET PARTNERS
By:/s/
A General Partner
/
[EXECUTION COPY]
RECAPITALIZATION AGREEMENT
This RECAPITALIZATION AGREEMENT (this "Agreement") is made
as of April 14, 1999, by and among Dade Behring Holdings, Inc., a
Delaware corporation ("Holdings"), Hoechst AG, a German corporation
("Hoechst"), each of the Persons listed on Schedule I attached hereto
(the "GS Group") and each of the Persons listed on Schedule II
attached hereto (the "Bain Group," and, together with the GS Group,
the "Investors") (Hoechst, the GS Group, the Bain Group and each
other party from time to time a party thereto are collectively
referred to herein as the "Stockholders" and individually as a
"Stockholder").
WHEREAS, Holdings, as of the date hereof, Hoechst, the GS
Group, the Bain Group and certain members of Holdings' management own
the number of shares of Holdings' Class L Common Stock, par value
$.01 per share (the "Class L Common"), the number of shares of
Holdings' Class L Common, Series B, par value $.01 per share (the
"Class L Common, Series B"), and the number of shares of Holdings'
Common Stock, par value $.01 per share (the "Common"), as set forth
opposite its name on the Pre-Recap Capitalization Schedule attached
hereto. The Class L Common, Class L Common, Series B, and the Common
are collectively referred to herein as "Common Stock."
WHEREAS, Holdings desires to reconstitute its capital
structure through the redemption of a certain number of shares of its
Common Stock and the incurrence of new debt obligations, all on the
terms and subject to the conditions set forth herein.
WHEREAS, on the date hereof, Hoechst, the Investors and
Holdings have entered into that certain Amended and Restated
Stockholders Agreement (the "Stockholders Agreement"). Capitalized
terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Stockholders Agreement.
WHEREAS, the Investors desire to have certain of their
Common Stock redeemed on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual representations, warranties, and covenants which are to be
made and performed by the respective parties, it is hereby agreed as
follows:
<PAGE>
ARTICLE 1.
THE RECAPITALIZATION
1.1. Recapitalization Overview. Holdings and the
Stockholders hereby agree that (i) Holdings shall redeem a portion of
the Common Stock held by the Investors (as set forth below), (ii)
Holdings shall redeem a portion of the Common Stock held or the
Common Stock obtainable upon exercise of options held by members of
management of Holdings and its subsidiaries or enter into other
arrangements with respect thereto (as set forth below) and (iii)
Holdings shall fund the repurchases of Common Stock through
replacement credit facilities (as set forth below).
1.2. Financing Arrangements. The Stockholders and Holdings
hereby agree that Holdings shall arrange for the financing or
refinancing necessary for the transactions contemplated hereby.
Holdings shall take such actions as are reasonably necessary to
obtain the credit facilities and consummate the transactions
contemplated hereby (including, the payment of commitment fees,
financing fees and other fees and expenses). The terms of the
financing shall be subject to approval by the Board.
1.3. Recapitalization Transactions. On a Closing Date, the
following transactions shall occur:
(a) Holdings shall redeem from the Investors the number of
shares of Class L Common and Common that may be redeemed taking into
account (x) the amount of available funds under the replacement
credit facilities and (y) the payments to be made to members of
management, as set forth in Section 1.3(b) below (it being understood
that the aggregate number of shares to be redeemed shall be as
determined by the Investors in their sole discretion, subject to an
aggregate amount being redeemed hereunder from the Investors equal to
the Maximum Amount (as defined on Schedule III attached hereto, i.e.,
$450 million). The number of shares of Class L Common and Common to
be repurchased shall be in the ratio of 1:9. The per share
redemption price for each share of Class L Common shall be the Per
Share Price (as defined on Schedule III attached hereto) plus the
Unpaid Yield and Unreturned Original Cost on such share (as
determined as of a Closing Date pursuant to Holdings' Amended and
Restated Certificate of Incorporation, as in effect on the date
hereof (the "Certificate of Incorporation")). The per share
redemption price for each share of Common shall be the Per Share
Price (as defined on Schedule III attached hereto). The redemption
shall be made pro rata among all Investors and the redemption price
shall be paid at Closing to the Investors in cash by wire transfer of
immediately available funds.
<PAGE>
(b) Holdings shall redeem from members of management of
Holdings and its subsidiaries shares of Class L Common and Common,
with the Persons to participate, and the extent of such Persons'
participation, to be determined by the Board. Consistent with any
rights that the members of management may have, the Board shall
determine the manner and extent of participation by members of
management holding options to acquire Common. In its discretion, the
Board may substitute bonus payments (or other arrangements). For the
purposes of this Agreement, "Person" means an individual, a
partnership, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization, or a
governmental entity (or any department, agency, or political
subdivision thereof).
1.4. Closing Transactions.
(a) As and when Holdings obtains financing arrangements
pursuant to Section 1.2 hereof and the Investors approve the number
of their shares which are to be redeemed, then there shall be a
closing of the transactions contemplated hereby (a "Closing"). Any
date on which a Closing shall occur is referred to herein as a
"Closing Date," and a Closing shall be effective as of the opening of
business on a Closing Date.
(b) Promptly following a Closing Date, Holdings and the
Investors shall take all actions necessary so that upon the Investors
surrendering their Common and Class L Common stock certificates to
Holdings in exchange for cash by wire transfer of immediately
available funds to the accounts previously designated by each
Investor, Holdings shall issue and deliver to each Investor new
Common and Class L Common stock certificates representing the number
of Common and Class L Common shares not redeemed.
1.5. Continuation of Voting Rights. As a result of the
recapitalization transactions contemplated by this Agreement, the
relative voting power of the Investors would be reduced. Holdings
and the Stockholders have agreed that until such time as the shares
of Common Stock held by the Bain Holders no longer constitute at
least 5% of the outstanding Common Stock, the Investors shall be
entitled to maintain the same relative voting power that they possess
on the date of this Agreement. Holdings and the Stockholders agree
to take all necessary or desirable actions within such holder's
control (whether in such holder's capacity as a stockholder, director
or officer of Holdings or otherwise) as requested by the Investors so
that in connection with a Closing the Investors shall retain (until
such time as the shares of Common Stock held by the Bain Holders no
longer constitute at least 5% of the outstanding Common Stock) voting
rights equivalent to the voting rights represented by the shares of
Common Stock being redeemed hereunder. Such actions may include,
without limitation, (x) issuing voting proxies in favor of the
Investors, (y) permitting the Investors to exchange shares of Common
Stock for replacement shares of capital stock with additional voting
rights (but with no greater economic participation rights), and (z)
amending the Transaction Documents in such a manner as may be
required to ensure that any replacement shares are afforded
consistent treatment thereunder.
<PAGE>
1.6. Investment Banking Fees. Holdings and the
Stockholders acknowledge and agree that in consideration of the
investment banking services provided by Bain Capital, Inc. and
Goldman Sachs & Co. in connection with the transaction process which
has culminated in the parties entering into this Agreement, Holdings
shall pay each of Bain Capital, Inc. and Goldman Sachs & Co. an
investment banking fee. The aggregate amount of the investment
banking fees shall be the IB Fee Amount (as defined on Schedule III
attached hereto), 50% of which shall be payable on the date of this
Agreement and 50% of which shall be payable upon the first date that
may be deemed a Closing Date.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
As a material inducement to the parties hereto to enter
into this Agreement, each Stockholder hereby represents and warrants
that:
2.1. Organizational Power. Such Stockholder is a
corporation or limited partnership duly organized, validly existing,
and in good standing under the laws of its state of organization.
Such Stockholder has full power and authority to enter into this
Agreement and the other agreements contemplated hereby to which such
Stockholder is a party and perform its obligations hereunder and
thereunder.
2.2. Authorization of Transaction. The execution,
delivery, and performance of this Agreement and the other agreements
contemplated hereby to which such Stockholder is a party have been
duly and validly authorized by all requisite action on the part of
such Stockholder, and no other proceedings on its part is necessary
to authorize the execution, delivery, or performance of this
Agreement. This Agreement constitutes, and each of the other
agreements contemplated hereby to such Stockholder is a party shall
when executed constitute, a valid and binding obligation of such
Stockholder, enforceable in accordance with their terms.
<PAGE>
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF HOLDINGS
As a material inducement to the Stockholders to enter into
this Agreement, Holdings hereby represents and warrants that:
3.1. Organizational Power. Holdings has been duly
organized and is validly existing under the laws of Delaware and has
full power and authority to execute and deliver, and to perform its
obligations under, this Agreement and the consummation by it of the
transactions contemplated hereby has been duly authorized by all
necessary action on its part.
3.2. Authorization of Transaction. This Agreement has been
duly and validly executed and delivered by Holdings and constitutes
the valid and binding obligation of Holdings, enforceable against
Holdings in accordance with its terms.
3.3. Noncontravention. The execution, delivery and
performance of this Agreement and the consummation thereby of the
transactions contemplated hereby by Holdings will not with or without
the giving of notice or the lapse of time or both (a) violate any
provision of a material law, statute, rule or regulation to which
Holdings is subject, (b) violate any order, judgment or decree
applicable to it or (c) conflict with or result in a breach or
default under any term or condition of its applicable governing
instruments or any material agreement or other material instrument to
which it is a party or by which it is bound.
3.4. Capitalization. The capitalization of Holdings prior
to giving effect to the transactions contemplated by Article 1 above
(including a list of all authorized, issued and outstanding shares of
Common Stock, and the identity of the holders thereof) is set forth
on the Pre-Recap Capitalization Schedule attached hereto. All of the
issued and outstanding shares of Common Stock have been duly
authorized, are validly issued, fully paid, and nonassessable.
Except as set forth on the Pre-Recap Capitalization Schedule and
pursuant to this Agreement, there are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion
rights, exchange rights, or other contracts or commitments that could
require Holdings to issue, sell, or otherwise cause to become
outstanding any of its capital stock.
<PAGE>
ARTICLE 4.
OTHER AGREEMENTS
4.1. Press Release and Announcements. Unless required by
law (in which case each party agrees to use reasonable efforts to
consult with the other parties prior to any such disclosure as to the
form and content of such disclosure), no press releases,
announcements to the employees, customers or suppliers of Holdings or
other releases of information related to this Agreement or the
transactions contemplated hereby will be issued or released without
the consent of the holders of at least a majority of the Common Stock
retained by the Investors and the holders of at least a majority of
the Common Stock held by Hoechst hereunder.
4.2. Specific Performance. Each party acknowledges and
agrees that the other parties would be damaged irreparably in the
event any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached.
Accordingly, each party agrees that the other parties shall be
entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action
instituted in any court in the United States of America or in any
state having jurisdiction over the parties and the matter in addition
to any other remedy to which they may be entitled pursuant hereto.
ARTICLE 5.
MISCELLANEOUS
5.1. Cooperation. In case at any time prior to or after a
Closing any further action is reasonably necessary or desirable to
carry out the purposes of this Agreement, each of the parties hereto
will take such further reasonable action (including the execution and
delivery of such further instruments and documents) as any other
party may request.
5.2. Remedies. Each Stockholder shall have all rights and
remedies set forth in this Agreement and all rights and remedies
which such holders have been granted at any time under any other
agreement or contract and all of the rights which such holders have
under any law. Any Person having any rights under any provision of
this Agreement shall be entitled to enforce such rights specifically
(without posting a bond or other security), to recover damages by
reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law.
5.3. Consent to Amendments. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended and
Holdings may take any action herein prohibited, or omit to perform
any act herein required to be performed by it, only if Holdings has
obtained the written consent of the holders of at least a majority of
the Common Stock retained by the Investors hereunder and the holders
of at least a majority of the Common Stock held by the Hoechst
hereunder.
<PAGE>
5.4. Successors and Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
5.5. Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this
Agreement.
5.6. Counterparts. This Agreement may be executed
simultaneously in counterparts (including by means of telecopied
signature pages), any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall
constitute one and the same Agreement.
5.7. Descriptive Headings; Interpretation. The descriptive
headings of this Agreement are inserted for convenience only and do
not constitute a substantive part of this Agreement. The use of the
word "including" in this Agreement shall be by way of example rather
than by limitation.
5.8. Governing Law. All issues and questions concerning
the construction, validity, enforcement and interpretation of this
Agreement and the exhibits and schedules hereto shall be governed by,
and construed in accordance with, the laws of the State of New York,
without giving effect to any choice of law or conflict of law rules
or provisions (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
<PAGE>
5.9. Notices. All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this
Agreement shall be in writing and shall be deemed to have been given
when delivered personally to the recipient two days after being sent
to the recipient by reputable overnight courier service (charges
prepaid) to the addresses indicated below or to such other address or
to the attention of such other person as the recipient party has
specified by prior written notice to the sending party:
If to Holdings:
Dade Behring Holdings, Inc.
1717 Deerfield Road
P.O. Box 778
Deerfield, Illinois 60015-0778
Attention: Chief Executive Officer
If to the Bain Group:
Bain Capital, Inc.
Two Copley Place
Boston, Massachusetts 02116
U.S.A.
Attention: John Connaughton
With a copy to (which shall not constitute notice
hereunder):
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
U.S.A.
Attention: Matthew E. Steinmetz
If to the GS Group:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
U.S.A.
Attn: Joseph H. Gleberman
With a copy to (which shall not constitute notice
hereunder):
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10014
U.S.A.
Attention: Lee Parks
<PAGE>
If to Hoechst:
Hoechst AG
Bruningstrasse 50
D-65929 Frankfurt a. M.
Germany
Attention: Chairman of the Management Board
With a copy to (which shall not constitute notice
hereunder):
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
U.S.A.
Attention: Creighton O'M. Condon
5.10. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties hereto, and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any of the provisions of this Agreement.
* * * * *
<PAGE>
IN WITNESS WHEREOF, the parties have executed this
Recapitalization Agreement as of the date first written above.
DADE BEHRING HOLDINGS, INC.
By: /s/
Its: CEO and President
HOECHST AG
By: /s/ Horst Waesche
By: /s/
Its: Board Members
BAIN CAPITAL FUND IV, L.P.
By: Bain Capital Partners IV, L.P.
Its: General Partner
By: Bain Capital Investors, Inc.
Its: General Partner
By: /s/
A Managing Director
<PAGE>
BAIN CAPITAL FUND IV-B, L.P.
By: Bain Capital Partners IV, L.P.
Its: General Partner
By: Bain Capital Investors, Inc.
Its: General Partner
By: /s/
A Managing Director
BCIP ASSOCIATES
By: /s/
A General Partner
BCIP TRUST ASSOCIATES, L.P.
By: /s/
A General Partner
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.P.
Its: General Partner
By: GS Advisors, Inc.
Its: General Partner
By: /s/
BRIDGE STREET FUND 1994, L.P.
By: Stone Street Funding Corp.
Its: Managing General Partner
By: /s/
STONE STREET FUND 1994, L.P.
By: Stone Street Funding Corp.
Its: General Partner
By: /s/
RANDOLPH STREET PARTNERS
By: /s/
A General Partner
