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EXHIBIT 4.4
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of April 28, 2000 among AMKOR TECHNOLOGY,
INC., a Delaware corporation (the "Borrower"), the banks, financial institutions
and other institutional lenders listed on the signature pages hereof as the
Initial Lenders (the "INITIAL LENDERS"), the banks listed on the signature pages
hereof as the Initial Issuing Banks (the "INITIAL ISSUING BANKS"), ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ INC. ("SSBI") as book manager (the "BOOK MANAGER"), SOCIETE GENERALE
("SG"), as administrative agent (together with any successor administrative
agent appointed pursuant to Article VII, the "ADMINISTRATIVE AGENT") for the
Lender Parties (as hereinafter defined) and as collateral agent (together with
any successor collateral agent appointed pursuant to Article VII, the
"COLLATERAL AGENT"), SSBI, ▇▇ ▇▇▇▇▇ SECURITIES CORPORATION ("▇▇ ▇▇▇▇▇") and
DEUTSCHE BANK SECURITIES INC., as arrangers (the "ARRANGERS"), SSBI and SG as
syndication agents (each, a "SYNDICATION AGENT" and, together with the Book
Manager, the Administrative Agent, the Collateral Agent, the "AGENTS").
PRELIMINARY STATEMENTS:
(1) The Borrower has requested that the Lender Parties lend to the
Borrower up to $900,000,000 to be used (i) to acquire (the "ACQUISITION") three
semiconductor packaging and test facilities designated K-1, K-2 and K-3
(collectively, the "ACQUIRED BUSINESS") from Anam Semiconductor, Inc., an
affiliate of the Borrower ("ANAM"), pursuant to an asset purchase agreement
among AT Korea (as hereinafter defined) and Anam (as amended, to the extent
permitted under the Loan Documents (as hereinafter defined), the "ACQUISITION
AGREEMENT"), (ii) to refinance (the "REFINANCING") certain existing indebtedness
of the Borrower and certain of its Subsidiaries to the extent permitted under
the Loan Documents, and (iii) for general corporate purposes to the extent
permitted under the Loan Documents. The Acquisition will be consummated by Amkor
Technology Korea, Inc., an indirect wholly owned subsidiary of the Borrower ("AT
KOREA"), with the proceeds of a $625,000,000 loan, and a $325,000,000 cash
capital contribution (the "AT KOREA CASH EQUITY INVESTMENT") from the Borrower.
(2) In addition to the financing contemplated hereby, the Borrower shall
have, prior to or concurrently with the Initial Extension of Credit (as
hereinafter defined) hereunder, (a) issued up to $410,000,000 but in any event
not less than $400,000,000 of common stock (as amended, to the extent permitted
under the Loan Documents, the "COMMON STOCK") pursuant to a private placement
(the "EQUITY ISSUANCE") and (b) issued at least $225,000,000 in convertible
subordinated debt (as amended, to the extent permitted under the Loan Documents,
the "CONVERTIBLE SUBORDINATED DEBT") pursuant to a Rule 144A offering (the
"SUBORDINATED DEBT ISSUANCE").
(3) Following the Initial Extension of Credit hereunder but on or prior
to May 3, 2000, the Borrower will invest $309,000,000 in cash common equity in
Anam (the "INITIAL ANAM EQUITY INVESTMENT") with, among others, the proceeds of
the Subordinated Debt Issuance and the proceeds of the Equity Issuance. The
Borrower will make an additional cash common equity investment of $30,000,000 in
Anam on or prior to June 30, 2000, an additional cash common equity investment
of $60,000,000 in Anam on or prior to August 31, 2000 and an additional cash
common equity of $60,000,000 in Anam on or prior to September 30, 2000
(collectively, the "ADDITIONAL ANAM EQUITY INVESTMENTS" and, together with the
Initial Anam Equity Investment, the "ANAM EQUITY INVESTMENT").
(4) The Initial Extension of Credit hereunder, the Acquisition, the Anam
Equity Investment, the Equity Issuance, the Subordinated Debt Issuance, the
issuance of bonds (in substantially the form of those issued in connection with
the K-4 Acquisition, with such modification as may be
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reasonably requested by the Agents) by AT Korea (the "AT KOREA BONDS"), the AT
Korea Cash Equity Investment, the Refinancing and the various other financings
contemplated hereby and all related transactions, including, without limitation,
the Korean restructuring of Anam's liabilities (the "KOREAN RESTRUCTURING"), and
the other transactions contemplated by the Transaction Documents are hereinafter
collectively referred to as the "TRANSACTIONS".
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"ACQUIRED BUSINESS" has the meaning specified in the preliminary
statements to this Agreement.
"ACQUISITION" has the meaning specified in the preliminary
statements to this Agreement.
"ACQUISITION AGREEMENT" has the meaning specified in the
preliminary statements to this Agreement.
"ADDITIONAL ANAM EQUITY INVESTMENTS" has the meaning specified
in the preliminary statements to this Agreement.
"ADMINISTRATIVE AGENT" has the meaning specified in the recital
of parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent with SG at
its office at 1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Account No. 026004226, Attention: ▇▇▇▇ ▇▇ Piccolo.
"ADVANCE" means a Term A Advance, a Term B Advance, a Revolving
Credit Advance or a Letter of Credit Advance.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person. For
purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to vote
10% or more of the Voting Interests of such Person or to direct or cause
the direction of the management and policies of such Person, whether
through the ownership of Voting Interests, by contract or otherwise.
"AGENTS" has the meaning specified in the recital of parties to
this Agreement.
"AGREEMENT VALUE" means, for each Hedge Agreement, on any date
of determination, an amount determined by the Administrative Agent equal
to: (a) in the case of a Hedge Agreement
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documented pursuant to the Master Agreement (Multicurrency-Cross Border)
published by the International Swap and Derivatives Association, Inc.
(the "MASTER Agreement"), the amount, if any, that would be payable by
any Loan Party or any of its Subsidiaries to its counterparty to such
Hedge Agreement, as if (i) such Hedge Agreement was being terminated
early on such date of determination, (ii) such Loan Party or Subsidiary
was the sole "Affected Party", and (iii) the Administrative Agent was
the sole party determining such payment amount (with the Administrative
Agent making such determination pursuant to the provisions of the form
of Master Agreement); or (b) in the case of a Hedge Agreement traded on
an exchange, the ▇▇▇▇-to-market value of such Hedge Agreement, which
will be the unrealized loss on such Hedge Agreement to the Loan Party or
Subsidiary of a Loan Party party to such Hedge Agreement determined by
the Administrative Agent based on the settlement price of such Hedge
Agreement on such date of determination, or (c) in all other cases, the
▇▇▇▇-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary
of a Loan Party party to such Hedge Agreement determined by the
Administrative Agent as the amount, if any, by which (i) the present
value of the future cash flows to be paid by such Loan Party or
Subsidiary exceeds (ii) the present value of the future cash flows to be
received by such Loan Party or Subsidiary pursuant to such Hedge
Agreement; capitalized terms used and not otherwise defined in this
definition shall have the respective meanings set forth in the above
described Master Agreement.
"ANAM" has the meaning specified in the preliminary statements
to this Agreement.
"ANAM EQUITY INVESTMENT" has the meaning specified in the
preliminary statements to this Agreement.
"ANAM SHARES" has the meaning specified in Section
3.01(a)(ii)(A).
"APPLICABLE LENDING OFFICE" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a Base
Rate Advance and such Lender Party's Eurodollar Lending Office in the
case of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means (a) with respect to the Term B
Facility, 3.00% per annum in the case of Eurodollar Rate Advances, and
2.00% per annum in the case of Base Rate Advances and (b) with respect
to the Term A Facility and the Revolving Credit Facility, (i) for the
period from the date hereof to the six-month anniversary of the
Effective Date, 2.75% per annum in the case of Eurodollar Rate Advances,
and 1.75% per annum in the case of Base Rate Advances, and (ii)
thereafter, a percentage per annum determined by reference to the
Leverage Ratio as set forth below:
LEVERAGE RATIO BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
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Level I
less than or equal to 1.25: 1.0 1.00% 2.00%
Level II
greater than 1.25: 1.0 and less than or 1.25% 2.25%
equal to 1.75: 1.0
Level III
greater than 1.75: 1.0 and less than or 1.50% 2.50%
equal to 2.25: 1.0
Level IV
greater than 2.25: 1.0 1.75% 2.75%
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For the purposes of this clause (b)(ii), the Applicable Margin for each
Base Rate Advance shall be determined by reference to the Leverage Ratio
in effect from time to time and the Applicable Margin for each
Eurodollar Rate Advance shall be determined by reference to the Leverage
Ratio in effect on the first day of each Interest Period for such
Advance; provided, however, that (A) no change in the Applicable Margin
shall be effective until three Business Days after the date on which the
Administrative Agent receives the financial statements required to be
delivered pursuant to Section 5.03(b) or (c), as the case may be, and a
certificate of the Chief Financial Officer of the Borrower demonstrating
such Leverage Ratio, (B) the Applicable Margin shall be at Level IV for
so long as the Borrower has not submitted to the Administrative Agent
the information described in clause (A) of this proviso as and when
required under Section 5.03(b) or (c), as the case may be and (C) the
Applicable Margin shall be at Level IV in the event a Default has
occurred.
"APPLICATION DATE" has the meaning specified in Section
2.06(b)(vii).
"APPROPRIATE LENDER" means, at any time, with respect to (a) any
of the Facilities, a Lender that has a Commitment with respect to such
Facility at such time and (b) the Letter of Credit Facility, (i) any
Issuing Bank and (ii) if the other Revolving Credit Lenders have made
Letter of Credit Advances pursuant to Section 2.03(c) that are
outstanding at such time, each such other Revolving Credit Lender.
"APPROVED FUND" means, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans
and is advised or managed by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.
"ARRANGERS" has the meaning specified in the recital of parties
to this Agreement.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted by
the Administrative Agent, in accordance with Section 8.07 and in
substantially the form of Exhibit C hereto.
"ASSUMING LENDER" has the meaning specified in Section 2.17(d).
"ASSUMPTION AGREEMENT" has the meaning specified in Section
2.17(d)(ii).
"AT KOREA" has the meaning specified in the preliminary
statements to this Agreement.
"AT KOREA BONDS" has the meaning specified in the preliminary
statements to this Agreement.
"AT KOREA CASH EQUITY INVESTMENT" has the meaning specified in
the preliminary statements to this Agreement.
"AVAILABLE AMOUNT" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
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(a) the rate of interest announced publicly by SG in New
York, New York, from time to time, as SG's base rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"BOARD OF DIRECTORS" means the Board of Directors of the
Borrower or any duly authorized committee of the Board of Directors.
"BOOK MANAGER" has the meaning specified in the recital of
parties to this Agreement.
"BORROWER" has the meaning specified in the recital of parties
to this Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower
maintained by the Borrower with SG at its office at 1221 Avenue of the
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇.
"BORROWING" means a Term A Borrowing, a Term B Borrowing or a
Revolving Credit Borrowing.
"BORROWING BASE CERTIFICATE" means a certificate in
substantially the form of Exhibit J hereto, duly certified by the chief
financial officer of the Borrower.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"CAPITAL EXPENDITURES" means, for any Person for any period, the
sum of, without duplication, (a) all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such period
for equipment, fixed assets, real property or improvements, or for
replacements or substitutions therefor or additions thereto, that have
been or should be, in accordance with GAAP, reflected as additions to
property, plant or equipment on a Consolidated balance sheet of such
Person or have a useful life of more than one year plus (b) the
aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures.
"CAPITALIZED LEASES" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"CASH EQUIVALENTS" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all
Liens other than Liens created under the Collateral Documents and
Permitted Liens and having a maturity of not greater than 180 days from
the date of issuance thereof: (a) readily marketable direct obligations
of the Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States, (b) insured certificates
of deposit of or time deposits with any commercial bank that is a Lender
Party or a member of the Federal Reserve System, issues (or the parent
of which issues) commercial paper rated as described in clause (c)
below, is organized under the laws of the United States or any State
thereof and has combined capital and surplus of at least $1 billion, (c)
commercial paper maturing no more than
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12 months from the date of creation thereof and having at the time of
acquisition thereof, a rating of at least "Prime-1" (or the then
equivalent grade) from ▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S") or
"A-1" (or the then equivalent grade) from Standard & Poor's, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("STANDARD & POOR'S") or (d)
Investments, classified in accordance with GAAP as Current Assets of the
Borrower or any of its Subsidiaries, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which
are administered by financial institutions that have the highest rating
obtainable from either Moody's or S&P, and the portfolios of which are
limited solely to Investments of the character, quality and maturity
described in clauses (a), (b) and (c) of this definition.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"CHANGE OF CONTROL" means the occurrence of any of the
following: (a) the Existing Stockholders shall cease to own at least 51%
of Voting Interests of the Borrower (or other securities convertible
into such Voting Interests); or (b) the first date during any
consecutive two year period on which a majority of the members of the
board of directors of the Borrower are not Continuing Directors; or (c)
any Person or two or more Persons acting in concert shall have acquired
by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their
acquisition of control over Voting Interests of the Borrower (or other
securities convertible into such Voting Interests) representing 35% or
more of the combined voting power of all Voting Interests of the
Borrower or (d) the sale or other transfer or disposition by Anam of all
or substantially all of its assets in any transaction or series of
related transactions other than in connection with the Fab Transaction
and, on and after the occurrence of the Fab Transaction, the sale or
other transfer or disposition by Newco or Newco Successor of all or
substantially all of its assets in any transaction or series of related
transactions.
"COLLATERAL" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to be
subject to any Lien in favor of the Collateral Agent for the benefit of
the Secured Parties.
"COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreement.
"COLLATERAL AGENT" has the meaning specified in the recital of
parties to this Agreement.
"COLLATERAL DOCUMENTS" means the Security Agreement, the
Mortgages and any other agreement that creates or purports to create a
Lien in favor of the Collateral Agent for the benefit of the Secured
Parties.
"COMMITMENT" means a Term A Commitment, a Term B Commitment, a
Revolving Credit Commitment or a Letter of Credit Commitment.
"COMMITMENT DATE" has the meaning specified in Section 2.17(b).
"COMMITMENT INCREASE" has the meaning specified in Section
2.17(a).
"COMMON STOCK" has the meaning specified in the preliminary
statements to this Agreement.
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"CONFIDENTIAL INFORMATION" means information that any Loan Party
furnishes to any Agent or any Lender Party in a writing designated as
confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes
available to such Agent or such Lender Party from a source other than
the Loan Parties.
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONTINGENT OBLIGATION" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("PRIMARY OBLIGATIONS") of any other Person (the "PRIMARY OBLIGOR") in
any manner, whether directly or indirectly, including, without
limitation, (a) the direct or indirect guarantee, endorsement (other
than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such
Person of the Obligation of a primary obligor, (b) the Obligation to
make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement or (c) any
Obligation of such Person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, assets, 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 (iv) otherwise to assure or hold harmless the holder of
such primary obligation against loss in respect thereof. 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 less, the maximum
amount of such primary obligation for which such Person may be liable
pursuant to the terms of the instrument evidencing such Contingent
Obligation) or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is
required to perform thereunder), as determined by such Person in good
faith.
"CONTINUING DIRECTORS" means (i) members of the board of
directors on the Effective Date; and (ii) other Persons nominated or
elected to the board of directors with the approval of a majority of the
Continuing Directors who were members of the board of directors at the
time of such election or nomination.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.09 or 2.10.
"CONVERTIBLE SUBORDINATED DEBT" has the meaning specified in the
preliminary statements to this Agreement.
"CONVERTIBLE SUBORDINATED NOTES" means the 5-3/4% Convertible
Subordinated Notes due 2003 issued pursuant to the Convertible
Subordinated Notes Indenture, as amended, to the extent permitted under
the Loan Documents.
"CONVERTIBLE SUBORDINATED NOTES INDENTURE" means the Indenture
dated as of May 6, 1998 between the Borrower and State Street Bank and
Trust Company, as trustee, pursuant to which the Convertible
Subordinated Notes were issued, as amended, to the extent permitted
under the Loan Documents.
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"CURRENT ASSETS" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"CURRENT LIABILITIES" of any Person means (a) all Debt of such
Person that by its terms is payable on demand or matures within one year
after the date of determination (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year
from such date or arising under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period of
more than one year from such date), (b) all amounts of Funded Debt of
such Person required to be paid or prepaid within one year after such
date and (c) all other items (including taxes accrued as estimated) that
in accordance with GAAP would be classified as current liabilities of
such Person.
"DEBT" of any Person means, without duplication for purposes of
calculating financial ratios, (a) all indebtedness of such Person for
borrowed money, (b) all Obligations of such Person for the deferred
purchase price of property or services, (c) all Obligations of such
Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all Obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Obligations
of such Person as lessee under Capitalized Leases, (f) all Obligations
of such Person under acceptance, letter of credit or similar facilities,
(g) all Obligations of such Person to purchase, redeem, retire, defease
or otherwise make any payment in respect of any Equity Interests in such
Person or any other Person or any warrants, rights or options to acquire
such capital stock, valued, in the case of Redeemable Preferred
Interests, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends, (h) all Obligations of
such Person in respect of Hedge Agreements, valued at the Agreement
Value thereof, (i) all Contingent Obligations of such Person and (j) all
indebtedness and other payment Obligations referred to in clauses (a)
through (i) above of another Person secured by (or for which the holder
of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person to the extent of the
value of such property, even though such Person has not assumed or
become liable for the payment of such indebtedness or other payment
Obligations. Notwithstanding the foregoing, in no event shall the term
"Debt" include (i) any lease properly classified as an operating lease
in accordance with GAAP (other than a "synthetic lease" or a similar
transaction in which the obligation is considered Debt for Borrowed
Money for tax purposes), (ii) any trade payable arising in the ordinary
course of business, provided that no material part of such account
payable is more than ninety (90) days past due (unless subject to a bona
fide dispute for which adequate reserves have been established), (iii)
any obligations under open purchase orders to acquire tangible personal
property entered into in the ordinary course of business and not yet due
or payable, (iv) any accrued expenses or (v) any income taxes not at the
time delinquent.
"DEBT FOR BORROWED MONEY" of any Person means all items that, in
accordance with GAAP, would be classified as indebtedness on a
Consolidated balance sheet of such Person.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DEFAULTED ADVANCE" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender
Party to the Borrower pursuant to Section 2.01
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or 2.02 at or prior to such time which has not been made by such Lender
Party or by the Administrative Agent for the account of such Lender
Party pursuant to Section 2.02(d) as of such time. In the event that a
portion of a Defaulted Advance shall be deemed made pursuant to Section
2.15(a), the remaining portion of such Defaulted Advance shall be
considered a Defaulted Advance originally required to be made pursuant
to Section 2.01 on the same date as the Defaulted Advance so deemed made
in part.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to any
Agent or any other Lender Party hereunder or under any other Loan
Document at or prior to such time which has not been so paid as of such
time, including, without limitation, any amount required to be paid by
such Lender Party to (a) any Issuing Bank pursuant to Section 2.03(c) to
purchase a portion of a Letter of Credit Advance made by such Issuing
Bank, (b) the Administrative Agent pursuant to Section 2.02(d) to
reimburse the Administrative Agent for the amount of any Advance made by
the Administrative Agent for the account of such Lender Party, (c) any
other Lender Party pursuant to Section 2.13 to purchase any
participation in Advances owing to such other Lender Party and (d) any
Agent or any Issuing Bank pursuant to Section 7.05 to reimburse such
Agent or such Issuing Bank for such Lender Party's ratable share of any
amount required to be paid by the Lender Parties to such Agent or such
Issuing Bank as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.15(b), the
remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be paid hereunder or under any
other Loan Document on the same date as the Defaulted Amount so deemed
paid in part.
"DEFAULTING LENDER" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of a
type described in Section 6.01(f).
"DOMESTIC LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party, as
the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"DOMESTIC LOAN PARTIES" means the Borrower and the Subsidiary
Guarantors.
"DOMESTIC SUBSIDIARY" means any Subsidiary of the Borrower other
than a Foreign Subsidiary.
"EBITDA" means, for any period, the sum, determined on a
Consolidated basis, of (a) net income (or net loss) excluding any
extraordinary gains or losses and other gains or losses arising from
asset sales and dispositions other than in the ordinary course of
business and, to the extent included in net income, non-cash charges
recorded in connection with the early conversion of convertible debt,
(b) interest expense, (c) income tax expense, (d) to the extent included
in net income, non-cash foreign currency loss (or less any non-cash
foreign currency gain), (e) to the extent included in net income,
non-cash equity in loss of Affiliates (or less any non-cash equity in
income of Affiliates), (f) depreciation expense and (g) amortization
expense, in each case of the Borrower and its Restricted Subsidiaries,
determined in accordance with GAAP for such period.
"EFFECTIVE DATE" means the first date on which the conditions
set forth in Article III shall have been satisfied or waived.
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"ELIGIBLE ASSIGNEE" means (a) with respect to any Facility
(other than the Letter of Credit Facility), (i) a Lender; (ii) an
Affiliate of a Lender; (iii) an Approved Fund and (iv) any other Person
approved by the Agents and, unless a Default has occurred and is
continuing at the time any assignment is effected pursuant to Section
8.07, the Borrower, such approval not to be unreasonably withheld or
delayed, and (b) with respect to the Letter of Credit Facility, a
commercial bank approved by each of the Agents and, unless a Default has
occurred and is continuing at the time any assignment is effected
pursuant to Section 8.07, the Borrower, such approval not to be
unreasonably withheld or delayed; provided, however, that neither any
Loan Party nor any Affiliate of a Loan Party shall qualify as an
Eligible Assignee under this definition.
"ELIGIBLE COLLATERAL" means, collectively, Eligible Inventory
and Eligible Receivables.
"ELIGIBLE INVENTORY" means the Inventory of the Domestic Loan
Parties (other than the classes of excluded Inventory set forth below).
The value of such Inventory shall be determined by the Administrative
Agent in its reasonable judgment taking into consideration, among other
factors, the lowest of its cost, its book value determined in accordance
with GAAP and its liquidation value. The Administrative Agent may
consider any of the following classes of Inventory not to be Eligible
Inventory:
(a) Inventory located on leaseholds as to which the
lessor has not entered into a consent and agreement providing
the Collateral Agent with the right to receive notice of
default, the right to repossess such Inventory at any time and
such other rights as may be reasonably required by the
Collateral Agent;
(b) Inventory that is obsolete, unusable or otherwise
unavailable for sale;
(c) Inventory with respect to which the representations
and warranties set forth in Section 9 of the Security Agreement
applicable to Inventory are not true and correct in all material
respects;
(d) Inventory that fails to meet all standards imposed
by any governmental agency, or department or division thereof,
having regulatory authority over such Inventory or its use or
sale;
(e) Inventory that is subject to any licensing, patent,
royalty, trademark, trade name or copyright agreement with any
third party from whom any Domestic Loan Party has received
notice of a dispute in respect of any such agreement to the
extent of such dispute;
(f) Inventory that is not in the possession of or under
the sole control of the Domestic Loan Parties;
(g) Inventory consisting of work in progress; and
(h) Inventory in respect of which the Security
Agreement, after giving effect to the related filings of
financing statements that have then been made, if any, does not
or has ceased to create a valid and perfected first priority
lien or security interest in favor of the Collateral Agent for
the benefit of the Secured Parties securing the Secured
Obligations.
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"ELIGIBLE RECEIVABLES" means the Receivables of the Domestic
Loan Parties other than the classes of excluded Receivables set forth
below. The value of such Receivables shall be determined by the
Administrative Agent in its reasonable judgment taking into
consideration, among other factors, their book value determined in
accordance with GAAP. The Administrative Agent may consider any of the
following classes of Receivables not to be Eligible Receivables:
(a) Receivables that do not arise out of sales of goods
or rendering of services in the ordinary course of the business
of the Domestic Loan Parties;
(b) Receivables on terms other than those normal or
customary in the business of the Domestic Loan Parties;
(c) Receivables owing from any Person that is an
Affiliate of any Loan Party or any of its Subsidiaries;
(d) Receivables more than 120 days past original invoice
date or more than 90 days past the date due;
(e) Receivables owing from any Person from which an
aggregate amount of more than 20% of the Receivables owing is
more than 90 days past due;
(f) Receivables owing from any Person that (i) has
disputed liability for any Receivable owing from such Person or
(ii) has otherwise asserted any claim, demand or liability
against any Loan Party or any of its Subsidiaries, whether by
action, suit, counterclaim or otherwise;
(g) Receivables owing from any Person that shall take or
be the subject of any action or proceeding of a type described
in Section 6.01(f);
(h) Receivables (i) owing from any Person that is also a
supplier to or creditor of any Domestic Loan Party unless such
Person has waived any right of set-off in a manner acceptable to
the Administrative Agent or (ii) representing any manufacturer's
or supplier's credits, discounts, incentive plans or similar
arrangements entitling the Borrower to discounts on future
purchase therefrom;
(i) Receivables arising out of sales to account debtors
outside the United States unless such Receivables are (i) fully
backed by an irrevocable letter of credit on terms, and issued
by a financial institution, acceptable to the Administrative
Agent and such irrevocable letter of credit is in the possession
of the Collateral Agent or the Administrative Agent or (ii)
owing from an account debtor that is a foreign subsidiary or
division of a Person organized and in good standing under the
laws of a jurisdiction within the United States;
(j) Receivables arising out of sales on a guaranteed
sale, sale-or-return, sale on approval or consignment basis or
subject to any right of return, set-off or charge-back;
(k) Receivables owing from an account debtor that is an
agency, department or instrumentality of the United States or
any State thereof unless the Borrower shall have satisfied the
requirements of the Assignment of Claims Act of 1940, as
amended, and any similar State legislation and the
Administrative Agent is satisfied as to the absence of set-offs,
counterclaims and other defenses on the part of such account
debtor;
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(l) Receivables the full and timely payment of which the
Administrative Agent in its reasonable judgment believes to be
doubtful; and
(m) Receivables in respect of which the Security
Agreement, after giving effect to the related filings of
financing statements that have then been made, if any, does not
or has ceased to create a valid and perfected first priority
lien or security interest in favor of the Collateral Agent for
the benefit of the Secured Parties securing the Secured
Obligations.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental Law,
any Environmental Permit or Hazardous Material or arising from alleged
injury or threat to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or
guidance relating to pollution or protection of the environment, health,
safety or natural resources, including, without limitation, those
relating to the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification number, license or other authorization required under any
Environmental Law.
"EQUITY INTERESTS" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such
Person, warrants, options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, securities convertible
into or exchangeable for shares of capital stock of (or other ownership
or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or
such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such
shares, warrants, options, rights or other interests are authorized or
otherwise existing on any date of determination; provided that the
Convertible Subordinated Notes or the 2000 Convertible Subordinated
Notes shall not be Equity Interests so long as such Convertible
Subordinated Notes or 2000 Convertible Subordinated Notes shall not have
been converted.
"EQUITY ISSUANCE" has the meaning specified in the preliminary
statements to this Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV
of ERISA is a member of the controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414 of
the Internal Revenue Code.
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"ERISA EVENT" means (a)(i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of any Loan Party or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan
Party or any ERISA Affiliate from a Multiple Employer Plan during a plan
year for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to any Plan;
(g) the adoption of an amendment to a Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such
Plan.
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a) the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as
the London interbank offered rate for deposits in U.S. dollars at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period for a period equal to such Interest Period (provided
that, if for any reason such rate is not available, the term "Eurodollar
Rate" shall mean, for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for
deposits in U.S. Dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one
rate is specified on Reuters Screen LIBO Page, the applicable rate shall
be the arithmetic mean of all such rates) by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period for
all Eurodollar Rate Advances comprising part of the same Borrowing means
the reserve percentage applicable two Business Days before the first day
of such Interest Period under regulations issued from time to
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time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which the
interest rate on Eurodollar Rate Advances is determined) having a term
equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCESS CASH FLOW" means, for any period,
(a) the sum of:
(i) Consolidated net income (or loss) of the
Borrower and its Subsidiaries for such period plus
(ii) the aggregate amount of all non-cash
charges deducted in arriving at such Consolidated net
income (or loss) plus
(iii) if there was a net increase in
Consolidated Current Liabilities of the Borrower and its
Subsidiaries during such period, the amount of such net
increase plus
(iv) if there was a net decrease in Consolidated
Current Assets (excluding cash and Cash Equivalents) of
the Borrower and its Subsidiaries during such period,
the amount of such net decrease less
(b) the sum of:
(i) the aggregate amount of all non-cash credits
included in arriving at such Consolidated net income (or
loss) plus
(ii) if there was a net decrease in Consolidated
Current Liabilities of the Borrower and its Subsidiaries
during such period, the amount of such net decrease plus
(iii) if there was a net increase in
Consolidated Current Assets (excluding cash and Cash
Equivalents) of the Borrower and its Subsidiaries during
such period, the amount of such net increase plus
(iv) the aggregate amount of Capital
Expenditures of the Borrower paid in cash during such
period to the extent permitted by this Agreement plus
(v) the aggregate amount of all regularly
scheduled principal payments of Funded Debt made during
such period plus
(vi) the aggregate principal amount of all
optional prepayments of Term Advances made during such
period pursuant to Section 2.06(a) plus
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(vii) cash investments in joint ventures and
other minority investments made during such period
pursuant to Section 5.02(f)(viii)(1) through (4) plus
(viii) income attributed during such period to
minority Investments made pursuant to Section
5.02(f)(viii) to the extent such income is not received
by the Borrower or any of its Restricted Subsidiaries
plus
(iv) $50,000,000.
"EXCLUDED AMOUNT" has the meaning specified in Section
2.06(b)(iii)(B).
"EXISTING DEBT" has the meaning specified in Section 4.01(t)
hereof.
"EXISTING NOTES" means the Senior Notes, the Senior Subordinated
Notes and the Convertible Subordinated Notes.
"EXISTING STOCKHOLDERS" means ▇▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇
▇. ▇▇▇ Trust of December 31, 1987, ▇▇▇▇ ▇. ▇▇▇ Trust of December 31,
1987, ▇▇▇▇▇ ▇ ▇▇▇ Trust of December 31, 1987 and Mr. ▇.▇. ▇▇▇.
"EXTRAORDINARY RECEIPT" means any cash received by or paid to or
for the account of any Person not in the ordinary course of business,
including, without limitation, cash received by way of tax refunds,
pension plan reversions, proceeds of insurance (other than proceeds of
business interruption insurance to the extent such proceeds constitute
compensation for lost earnings), condemnation awards (and payments in
lieu thereof), indemnity payments and any purchase price adjustment
received in connection with any purchase agreement; provided, however,
that an Extraordinary Receipt shall not include cash receipts received
from proceeds of insurance, condemnation awards (or payments in lieu
thereof) or indemnity payments to the extent that such proceeds, awards
or payments in respect of loss or damage to equipment, fixed assets or
real property are applied (or in respect of which expenditures were
previously incurred) to replace or repair the equipment, fixed assets or
real property in respect of which such proceeds were received in
accordance with the terms of the Loan Documents, so long as such
application is made within 6 months after the occurrence of such damage
or loss.
"FAB TRANSACTION" means one or more transactions which are
designed to create an international subsidiary-contract wafer foundry
business to be owned by an entity formed for such purpose ("NEWCO"),
which transactions shall consist of any or all of the following: (a) the
acquisition of all or substantially all of Anam's semiconductor wafer
fabrication assets by Newco or a Subsidiary of Newco, (b) the exchange
of Anam shares by the Borrower or any of its Subsidiaries for Equity
Interests of Newco and, if applicable, of such Subsidiary of Newco
provided that, following such exchange the Borrower will own, after
giving effect to such exchange, directly or indirectly, at least 30% of
the issued and outstanding Equity Interests of Newco (on a fully diluted
basis), (c) the transfer of the Borrower's wafer fabrication services
business to Newco in exchange for Equity Interests of Newco or cash, or
any combination thereof, (provided that, to the extent such transfer
shall be made in exchange for cash, it shall be made for fair value) and
(d) the exchange of Equity Interests of Newco for Equity Interests of
any entity engaged in the same business ("NEWCO SUCCESSOR") where the
Equity Interests of such entity are traded on any stock exchange located
in the United States or quoted on the NASDAQ National Market; provided
however that (i) Newco (and Newco Successor) shall be incorporated in
the United States, the Netherlands, Bermuda, Ireland, Luxembourg or
another jurisdiction reasonably
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acceptable to the Agents, (ii) the Borrower's stock of Newco (and Newco
Successor) shall not be subject to any restrictions on transfer that are
more onerous to the Lender Parties as those applicable to the Borrower's
stock of Anam on the Effective Date (it being understood that any
restrictions on transfer resulting solely from such stock being
"restricted securities" under Rule 144 of the Securities Act of 1933, as
amended, shall not be deemed to be more onerous on the Lender parties),
(iii) any Equity Interests of Newco and Newco Successor held by the
Borrower, directly or indirectly, shall be pledged to the Lender Parties
and (iv) as a result of any transaction constituting a "Fab Transaction"
the Borrower shall not incur any dilution of the economic benefit in its
aggregate Equity Interests in Anam and, in the event of a transfer in
exchange for Equity Interests referred to in clause (c) above, any
dilution of its economic benefit derived from the wafer fabrication
services business (after taking into account tax and other economic
benefits reasonably derived from the implementation of the Fab
Transaction) in comparison to the Borrower's Equity Interests in Newco
or Newco Successor, as the case may be; provided further, that Newco or
Newco successor shall be formed as a corporation, limited liability
company or other form of entity with limited liability to shareholders.
"FACILITY" means the Term A Facility, the Term B Facility, the
Revolving Credit Facility or the Letter of Credit Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum 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 that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"FEE LETTER" means the fee letter dated ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇, ▇▇ ▇▇▇▇▇ and Citibank, NA.
"FISCAL YEAR" means a fiscal year of the Borrower and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"FIXED CHARGE COVERAGE RATIO" means, at any date of
determination, the ratio of (a) Consolidated EBITDA of the Borrower and
its Restricted Subsidiaries minus Capital Expenditures to (b) the sum of
(i) income taxes that have been paid in cash plus (ii) interest payable
in cash on all Debt for Borrowed Money plus (iii) scheduled principal
amounts of all Debt for Borrowed Money payable, in each case, of or by
the Borrower and its Restricted Subsidiaries for the most recent
Measurement Period ending on or prior to such date.
"FOREIGN SUBSIDIARY" means a Subsidiary of the Borrower
organized under the laws of a jurisdiction other than the United States
or any State thereof.
"FUNDED DEBT" of any Person means Debt in respect of the
Advances, in the case of the Borrower, and all other Debt of such Person
that by its terms matures more than one year after the date of
determination or matures within one year from such date but is renewable
or extendible, at the option of such Person, to a date more than one
year after such date or arises under a revolving credit or similar
agreement that obligates the lender or lenders to extend credit during a
period of more than one year after such date, including, without
limitation, all amounts of Funded Debt of such Person required to be
paid or prepaid within one year after the date of determination.
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"GAAP" has the meaning specified in Section 1.03.
"GRANTING LENDER" has the meaning specified in Section 8.07(i).
"GUARANTIES" means the Subsidiary Guaranty and the Intercompany
Guaranty.
"GUARANTORS" means each Subsidiary Guarantor and each
Intercompany Guarantor.
"GUARDIAN" means Guardian Assets, Inc., a direct wholly owned
Subsidiary of the Borrower.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means (i) interest rate swap, cap or collar
agreements and (ii) interest rate future or option contracts, currency
swap agreements, currency future or option contracts and other hedging
agreements.
"HEDGE BANK" means any Lender Party or an Affiliate of a Lender
Party in its capacity as a party to a Secured Hedge Agreement.
"INCREASE DATE" has the meaning specified in Section 2.17(a).
"INCREASING LENDER" has the meaning specified in Section
2.17(b).
"INDEMNIFIED COSTS" has the meaning specified in Section
7.05(a).
"INDEMNIFIED PARTY" has the meaning specified in Section
8.04(b).
"INDENTURES" means the Senior Notes Indenture, the Senior
Subordinated Notes Indenture, the Convertible Subordinated Notes
Indenture and the 2000 Convertible Subordinated Notes Indenture.
"INFORMATION MEMORANDUM" means the confidential information
memorandum dated March 2000 used by the Syndication Agents in connection
with the syndication of the Commitments.
"INITIAL ANAM EQUITY INVESTMENT" has the meaning specified in
the preliminary statements to this Agreement.
"INITIAL EXTENSION OF CREDIT" means the initial Borrowing
hereunder.
"INITIAL ISSUING BANKS" has the meaning specified in the recital
of parties to this Agreement.
"INITIAL LENDERS" has the meaning specified in the recital of
parties to this Agreement.
"INSUFFICIENCY" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
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"INTERCOMPANY GUARANTOR" means each Subsidiary of the Borrower
listed on Schedule III hereto and each other Subsidiary of the Borrower
that shall be required to execute and deliver a guaranty pursuant to
Section 5.01(j).
"INTERCOMPANY GUARANTY" has the meaning specified in Section
3.01(a)(iv).
"INTERCOMPANY NOTES" means promissory notes, in form and
substance satisfactory to the Agents, evidencing Debt permitted pursuant
to Section 5.02(b)(i)(B) or (b)(ii), and shall include, without
limitation, the AT Korea Bonds.
"INTEREST COVERAGE RATIO" means, at any date of determination,
the ratio of (a) Consolidated EBITDA of the Borrower and its Restricted
Subsidiaries to (b) interest payable in cash on all Debt for Borrowed
Money of or by the Borrower and its Restricted Subsidiaries for the most
recent Measurement Period ending on or prior to such date.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the date
of such Eurodollar Rate Advance or the date of the Conversion of any
Base Rate Advance into such Eurodollar Rate Advance, and ending on the
last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice received
by the Administrative Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance under a Facility that
ends after any principal repayment installment date for such
Facility unless, after giving effect to such selection, the
aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on or
prior to such principal repayment installment date for such
Facility shall be at least equal to the aggregate principal
amount of Advances under such Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
and
(d) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
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"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"INVENTORY" means all Inventory referred to in Section 1(b) of
the Security Agreement.
"INVESTMENT" in any Person means any loan or advance to such
Person, any deposit with such Person, any prepayment of the services of
such Person (other than in the ordinary course of business), any
purchase or other acquisition of any Equity Interests or Debt or the
assets comprising a division or business unit or a substantial part or
all of the business of such Person, any capital contribution to such
Person or any other direct or indirect investment in such Person,
including, without limitation, any acquisition by way of a merger or
consolidation and any arrangement pursuant to which the investor incurs
Debt of the types referred to in clause (i) or (j) of the definition of
"DEBT" in respect of such Person.
"ISSUING BANKS" means each Initial Issuing Bank and any other
Revolving Credit Lender approved as an Issuing Bank by each of the
Agents and any Eligible Assignee to which a Letter of Credit Commitment
hereunder has been assigned pursuant to Section 8.07 so long as each
such Revolving Credit Lender or each such Eligible Assignee expressly
agrees to perform in accordance with their terms all of the obligations
that by the terms of this Agreement are required to be performed by it
as an Issuing Bank and notifies the Administrative Agent of its
Applicable Lending Office and the amount of its Letter of Credit
Commitment (which information shall be recorded by the Administrative
Agent in the Register).
"KOREAN RESTRUCTURING" has the meaning specified in the
preliminary statements to this Agreement.
"L/C COLLATERAL ACCOUNT" has the meaning specified in the
Security Agreement.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(d)(ii)(A).
"LENDER PARTY" means any Lender or any Issuing Bank.
"LENDERS" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 8.07 for so long as such
Initial Lender or Person, as the case may be, shall be a party to this
Agreement.
"LETTER OF CREDIT ADVANCE" means an advance made by any Issuing
Bank or any Revolving Credit Lender pursuant to Section 2.03(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in
Section 2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to any Issuing
Bank at any time, the amount set forth opposite such Issuing Bank's name
on Schedule I hereto under the caption "Letter of Credit Commitment" or,
if such Issuing Bank has entered into one or more Assignment and
Acceptances, set forth for such Issuing Bank in the Register maintained
by the Administrative Agent pursuant to Section 8.07(d) as such Issuing
Bank's "Letter of Credit Commitment", as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
"LETTER OF CREDIT FACILITY" means, at any time, an amount equal
to the lesser of (a) the aggregate amount of the Issuing Banks' Letter
of Credit Commitments at such time and (b) $50,000,000, as such amount
may be reduced at or prior to such time pursuant to Section 2.05.
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"LETTERS OF CREDIT" has the meaning specified in Section
2.01(d).
"LEVERAGE RATIO" means, at any date of determination, the ratio
of Consolidated total Debt for Borrowed Money of the Borrower and its
Restricted Subsidiaries to Consolidated EBITDA of the Borrower and its
Restricted Subsidiaries for the most recent Measurement Period ending on
or prior to such date.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement
which is intended to serve as the functional equivalent of security,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"LOAN DOCUMENTS" means (a) for purposes of this Agreement and
the Notes and any amendment, supplement or modification hereof or
thereof, (i) this Agreement, (ii) the Notes, (iii) the Guaranties, (iv)
the Collateral Documents, (v) each Letter of Credit Agreement, (vi) each
Intercompany Note, and (vii) the Fee Letter and (b) for purposes of the
Guaranties and the Collateral Documents and for all other purposes other
than for purposes of this Agreement and the Notes, (i) this Agreement,
(ii) the Notes, (iii) the Guaranties, (iv) the Collateral Documents, (v)
each Letter of Credit Agreement, (vi) each Secured Hedge Agreement,
(vii) each Intercompany Note, and (viii) the Fee Letter, in each case as
amended.
"LOAN PARTIES" means the Borrower, the Guarantors and AT Korea.
"LOAN VALUE" means (a) with respect to Eligible Receivables, up
to 85% of the value of Eligible Receivables; and (b) with respect to
Eligible Inventory, up to 50% of the value of Eligible Inventory.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in
the business, assets, properties, liabilities (actual and contingent),
condition (financial or otherwise), operations or prospects of (a) the
Borrower and its Subsidiaries, taken as a whole, (b) as of the Effective
Date only, the Acquired Business or (c) as of the Effective Date only,
Anam and its Subsidiaries, taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the business, assets, properties, liabilities (actual and contingent),
operations, condition (financial or otherwise), or prospects of (i) the
Borrower and its Subsidiaries, taken as a whole, (ii) as of the
Effective Date only, the Acquired Business or (iii) as of the Effective
Date only, Anam and its Subsidiaries, taken as a whole, (b) the rights
and remedies of any Agent or any Lender Party under any Transaction
Document or (c) the ability of any Loan Party to perform its Obligations
under any Transaction Document to which it is or is to be a party.
"MATERIAL CONTRACT" means the contracts listed on Schedule
4.01(z) hereto.
"MEASUREMENT PERIOD" means, at any date of determination, the
most recent four consecutive fiscal quarters ending on or prior to such
date; provided that, (a) for determination on June 30, 2000, Measurement
Period shall mean the fiscal quarter most recently ended multiplied by
four; (b) for determination on September 30, 2000, Measurement Period
shall mean the two fiscal quarters most recently ended multiplied by
two; and (c) for determination on December 31,
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2000, Measurement Period shall mean the three fiscal quarters most
recently ended multiplied by 4/3.
"MORTGAGES" has the meaning specified in Section 5.01(r).
"MORTGAGE POLICIES" has the meaning specified in Section
5.01(r)(B).
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"NET CASH PROCEEDS" means, with respect to any sale, lease,
transfer or other disposition of any asset or the incurrence or issuance
of any Debt or the sale or issuance of any Equity Interests (including,
without limitation, any capital contribution) by any Person, or any
Extraordinary Receipt received by or paid to or for the account of any
Person, the aggregate amount of cash received from time to time (whether
as initial consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a)
reasonable and customary brokerage commissions, underwriting fees and
discounts, legal fees, finder's fees and other similar fees and
commissions, (b) the amount of taxes payable in connection with or as a
result of such transaction and (c) the amount of any Debt secured by a
Lien on such asset that, by the terms of the agreement or instrument
governing such Debt, is required to be repaid upon such disposition, in
each case to the extent, but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash, actually paid to a
Person that is not an Affiliate of such Person or any Loan Party or any
Affiliate of any Loan Party and are properly attributable to such
transaction or to the asset that is the subject thereof.
"NEWCO" has the meaning specified in the definition of
"Fab Transaction".
"NEWCO SUCCESSOR" has the meaning specified in the
definition of "Fab Transaction".
"NOTE" means a Term A Note, a Term B Note or a Revolving
Credit Note.
"NOTICE OF BORROWING" has the meaning specified in
Section 2.02(a).
"NOTICE OF ISSUANCE" has the meaning specified in
Section 2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section
2.01(d).
"NOTICE OF TERMINATION" has the meaning specified in
Section 2.01(d).
"NPL" means the National Priorities List under CERCLA.
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"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by such Loan Party under any Loan Document and (b) the
obligation of such Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"OPEN YEAR" has the meaning specified in Section 4.01(r)(ii).
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERMITTED INVESTMENTS" has the meaning specified in Section
2.06(b)(iii).
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b); (b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens
arising in the ordinary course of business securing obligations that are
not overdue for a period of more than 30 days or which are being
contested in good faith and by appropriate proceedings provided, that
any reserves required by GAAP shall have been made; (c) zoning
restrictions, easements, rights of way and other encumbrances on title
to real property that do not render title to the property encumbered
thereby unmarketable or materially adversely affect the use of such
property for its present purposes; (d) Liens arising from judgments or
decrees in circumstances not constituting an Event of Default so long as
such Lien is adequately bonded; (e) Liens on insurance proceeds in favor
of insurance companies with respect to the financing of insurance
premiums on policies under which such proceeds are to be paid ; (f)
Liens incurred or deposits made under worker's compensation,
unemployment insurance and other types of social security or to secure
the performance of bids, tenders, contracts (other than for the payment
of money), surety and appeal bonds or to secure indemnity, performance
or other similar bonds in the ordinary course of business; (g) Liens
incurred in connection with licenses and sublicenses which do not
interfere in any material respect with the business of the Borrower or
its Restricted Subsidiaries and any interest or title of a licensee
under any such leases, subleases, licenses or sublicenses; (h) Liens
arising out of consignment or similar arrangements for the sale of goods
in the ordinary course of business; and (i) Liens in favor of customs
and revenue authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
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"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PLEDGED DEBT" has the meaning specified in the Security
Agreement.
"PLEDGED SHARES" has the meaning specified in the Security
Agreement.
"PREFERRED INTERESTS" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend
or upon liquidation, provided that the Convertible Subordinated Notes or
the 2000 Convertible Subordinated Notes shall not be "Preferred
Interests" for the purposes of this Agreement so long as such
Convertible Subordinated Notes or 2000 Convertible Subordinated Notes
shall not have been converted.
"PREPAYMENT AMOUNT" has the meaning specified in Section
5.03(a).
"PREPAYMENT DATE" has the meaning specified in Section 5.03(a).
"PREPAYMENT NOTICE" has the meaning specified in Section
5.03(a).
"PRO RATA SHARE" of any amount means, with respect to any
Revolving Credit Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such Lender's Revolving
Credit Commitment at such time (or, if the Commitments shall have been
terminated pursuant to Section 2.05 or 6.01, such Lender's Revolving
Credit Commitment as in effect immediately prior to such termination)
and the denominator of which is the Revolving Credit Facility at such
time (or, if the Commitments shall have been terminated pursuant to
Section 2.05 or 6.01, the Revolving Credit Facility as in effect
immediately prior to such termination).
"RECEIVABLES" means all Receivables referred to in Section 1(c)
of the Security Agreement.
"REDEEMABLE" means, with respect to any Equity Interest, any
Debt or any other right or Obligation, any such right or Obligation that
(a) the issuer has undertaken to redeem at a fixed or determinable date
or dates, whether by operation of a sinking fund or otherwise, or upon
the occurrence of a condition not solely within the control of the
issuer or (b) is redeemable at the option of the holder.
"REFINANCING" has the meaning specified in the preliminary
statements to this Agreement.
"REGISTER" has the meaning specified in Section 8.07(d).
"REGULATION U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the Acquisition Agreement, the
Subordinated Debt Documents, the Subscription Agreement, the documents
setting forth the Korean Restructuring delivered to the Borrower and
each other document and instrument executed and delivered in connection
with the consummation of the Transactions (other than the Loan
Documents) and the Indentures.
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"REPLACED LENDER PARTY" has the meaning specified in Section
2.12(h).
"REPLACEMENT EFFECTIVE DATE" has the meaning specified in
Section 2.12(h).
"REPLACEMENT LENDER PARTY" has the meaning specified in Section
2.12(h).
"REQUIRED LENDERS" means, at any time, Lenders owed or holding
at least a majority in interest of the sum of (a) the aggregate
principal amount of the Advances outstanding at such time, (b) the
aggregate Available Amount of all Letters of Credit outstanding at such
time, (c) the aggregate unused Commitments under the Term Facilities at
such time and (d) the aggregate Unused Revolving Credit Commitments at
such time; provided, however, that if any Lender shall be a Defaulting
Lender at such time, there shall be excluded from the determination of
Required Lenders at such time (A) the aggregate principal amount of the
Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (B) such Lender's Pro Rata Share of the
aggregate Available Amount of all Letters of Credit outstanding at such
time, (C) the aggregate unused Term Commitments of such Lender at such
time and (D) the Unused Revolving Credit Commitment of such Lender at
such time. For purposes of this definition, the aggregate principal
amount of Letter of Credit Advances owing to any Issuing Bank and the
Available Amount of each Letter of Credit shall be considered to be owed
to the Revolving Credit Lenders ratably in accordance with their
respective Revolving Credit Commitments.
"RESPONSIBLE OFFICER" means any officer of any Loan Party or any
of its Subsidiaries.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Borrower
that is not an Unrestricted Subsidiary.
"REVOLVING CREDIT ADVANCE" has the meaning specified in Section
2.01(c).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any
Revolving Credit Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Revolving Credit
Commitment" or, if such Lender has entered into one or more Assignment
and Acceptances, set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 8.07(d) as such Lender's
"Revolving Credit Commitment", as such amount may be reduced at or prior
to such time pursuant to Section 2.05.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount of the Revolving Credit Lenders' Revolving Credit Commitments at
such time.
"REVOLVING CREDIT LENDER" means any Lender that has a Revolving
Credit Commitment.
"REVOLVING CREDIT NOTE" means a promissory note of the Borrower
payable to the order of any Revolving Credit Lender, in substantially
the form of Exhibit A-3 hereto, evidencing the aggregate indebtedness of
the Borrower to such Lender resulting from the Revolving Credit Advances
made by such Lender, as amended.
"SECURED HEDGE AGREEMENT" means any Hedge Agreement required or
permitted under Article V that is entered into by and between any Loan
Party and any Hedge Bank.
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"SECURED OBLIGATIONS" has the meaning specified in the Security
Agreement.
"SECURED PARTIES" means the Agents and the Lender Parties.
"SECURITY AGREEMENT" has the meaning specified in Section
3.01(a)(ii).
"SENIOR DEBT RATIO" means, at any date of determination, the
ratio of (a) the sum of (i) outstanding Advances, (ii) the Available
Amount of outstanding Letters of Credit, and (iii) all other secured
outstanding Debt (other than Subordinated Debt), in each case, as at the
end of the most recently ended fiscal quarter of the Borrower for which
financial statements are required to be delivered to the Lender Parties
pursuant to Section 5.03(b) or (c), as the case may be, to (b)
Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for
such fiscal quarter and the immediately preceding three fiscal quarters,
as adjusted to give pro forma effect to any Investment made since the
last day of such fiscal quarter or to be made within 90 days after such
date of determination pursuant to an executed purchase agreement as
though such Investment had been made at the beginning of such four
fiscal quarter period.
"SENIOR NOTES" means the Series A and Series B 9 1/4% Senior
Notes due 2006 issued pursuant to the Senior Notes Indenture, as
amended, to the extent permitted under the Loan Documents.
"SENIOR NOTES INDENTURE" means the Indenture dated as of May 13,
1999 between the Borrower and State Street Bank and Trust Company, as
trustee, pursuant to which the Senior Notes were issued, as amended, to
the extent permitted under the Loan Documents.
"SENIOR SUBORDINATED NOTES" means the Series A and Series B 10
1/2% Senior Subordinated Notes due 2009 issued pursuant to the Senior
Subordinated Notes Indenture, as amended, to the extent permitted under
the Loan Documents.
"SENIOR SUBORDINATED NOTES INDENTURE" means the Indenture dated
as of May 13, 1999 between the Borrower and State Street Bank and Trust
Company, as trustee, pursuant to which the Senior Subordinated Notes
were issued, as amended, to the extent permitted under the Loan
Documents.
"SG" has the meaning specified in the recital of parties to this
Agreement.
"▇▇ ▇▇▇▇▇" has the meaning specified in the recital of parties
to this Agreement.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
any Loan Party or any ERISA Affiliate and no Person other than the Loan
Parties and the ERISA Affiliates or (b) was so maintained and in respect
of which any Loan Party or any ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such plan has been or were to
be terminated.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay such debts and
liabilities as they mature and (d) such Person is not
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engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"SPC" has the meaning specified in Section 8.07(i).
"SSBI" has the meaning specified in the recital of parties to
this Agreement.
"STANDBY LETTER OF CREDIT" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"SUBORDINATED DEBT" means the Convertible Subordinated Debt and
any other Debt of the Borrower that is subordinated to the Obligations
of the Borrower under the Loan Documents on, and that otherwise
contains, terms and conditions reasonably satisfactory to the Required
Lenders.
"SUBORDINATED DEBT DOCUMENTS" means all agreements, indentures
and instruments pursuant to which Subordinated Debt is issued.
"SUBORDINATED DEBT ISSUANCE" has the meaning specified in the
preliminary statements to this Agreement.
"SUBSCRIPTION AGREEMENT" means the Subscription Agreement dated
as of April 14, 2000 among the Borrower and the purchasers named
therein, pursuant to which the Common Stock was purchased, as amended,
to the extent permitted under the Loan Documents.
"SUBSIDIARY" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
Equity Interests in any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"SUBSIDIARY GUARANTOR" means each Subsidiary of the Borrower
listed on Schedule II hereto and each other Subsidiary of the Borrower
that shall be required to execute and deliver a guaranty pursuant to
Section 5.01(j).
"SUBSIDIARY GUARANTY" has the meaning specified in Section
3.01(a)(iii).
"SURVIVING DEBT" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before and after giving effect to
the transactions contemplated by the Transaction Documents.
"SYNDICATION AGENT" has the meaning specified in the recital of
parties to this Agreement.
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"TANGIBLE NET WORTH" shall mean, at the end of any fiscal
quarter, the sum of the capital stock (including Debt converted into or
exchanged for capital stock or otherwise capitalized) and additional
paid-in capital, plus retained earnings (or minus accumulated deficit)
as determined on a consolidated basis in accordance with GAAP, minus any
goodwill and intangibles, all as determined in accordance with GAAP.
"TAX CERTIFICATE" has the meaning specified in Section 5.03(j).
"TAXES" has the meaning specified in Section 2.12(a).
"TERM A ADVANCE" has the meaning specified in Section 2.01(a).
"TERM A BORROWING" means a borrowing consisting of simultaneous
Term A Advances of the same Type made by the Term A Lenders.
"TERM A COMMITMENT" means, with respect to any Term A Lender at
any time, the amount set forth opposite such Lender's name on Schedule I
hereto under the caption "Term A Commitment" or, if such Lender has
entered into one or more Assignment and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant
to Section 8.07(d) as such Lender's "Term A Commitment", as such amount
may be reduced at or prior to such time pursuant to Section 2.05.
"TERM A FACILITY" means, at any time, the aggregate amount of
the Term A Lenders' Term A Commitments at such time.
"TERM A LENDER" means any Lender that has a Term A Commitment.
"TERM A NOTE" means a promissory note of the Borrower payable to
the order of any Term A Lender, in substantially the form of Exhibit A-1
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from the Term A Advance made by such Lender, as amended.
"TERM ADVANCE" means a Term A Advance or a Term B Advance.
"TERM B ADVANCE" has the meaning specified in Section 2.01(b).
"TERM B BORROWING" means a borrowing consisting of simultaneous
Term B Advances of the same Type made by the Term B Lenders.
"TERM B COMMITMENT" means, with respect to any Term B Lender at
any time, the amount set forth opposite such Lender's name on Schedule I
hereto under the caption "Term B Commitment" or, if such Lender has
entered into one or more Assignment and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant
to Section 8.07(d) as such Lender's "Term B Commitment", as such amount
may be reduced at or prior to such time pursuant to Section 2.05.
"TERM B FACILITY" means, at any time, the aggregate amount of
the Term B Lenders' Term B Commitments at such time.
"TERM B LENDER" means any Lender that has a Term B Commitment.
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"TERM B NOTE" means a promissory note of the Borrower payable to
the order of any Term B Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from the Term B Advance made by such Lender, as amended.
"TERM BORROWING" means a Term A Borrowing or a Term B Borrowing.
"TERM COMMITMENTS" means the Term A Commitments and the Term B
Commitments.
"TERM FACILITIES" means the Term A Facility and the Term B
Facility.
"TERM LENDER" means a Term A Lender or a Term B Lender.
"TERMINATION DATE" means the earlier of (a) the date of
termination in whole of the Revolving Credit Commitments, the Letter of
Credit Commitments and the Term Commitments pursuant to Section 2.05 or
6.01 and (b) (i) for purposes of the Revolving Credit Facility and the
Letter of Credit Facility, ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) for purposes of the Term
A Facility, March 31, 2005 and (iii) for purposes of the Term B Facility
and for all other purposes, the date that is the earlier of (A)
September 30, 2005 and (B) 6 months prior to maturity of the Senior
Notes.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a supplier
of Inventory to the Borrower or any of its Subsidiaries to effect
payment for such Inventory, the conditions to drawing under which
include the presentation to the Issuing Bank that issued such Letter of
Credit of negotiable bills of lading, invoices and related documents
sufficient, in the judgment of such Issuing Bank, to create a valid and
perfected lien on or security interest in such Inventory, bills of
lading, invoices and related documents in favor of such Issuing Bank.
"TRANSACTION DOCUMENTS" means, collectively, the Loan Documents
and the Related Documents.
"TRANSACTIONS" has the meaning specified in the preliminary
statements to this Agreement.
"2000 CONVERTIBLE SUBORDINATED NOTES" means the 5% Notes issued
pursuant to the 2000 Convertible Subordinated Notes Indenture, as
amended to the extent permitted under the Loan Documents.
"2000 CONVERTIBLE SUBORDINATED NOTES INDENTURE" means the
Indenture dated as of March 22, 2000 between the Borrower and State
Street Bank and Trust Company, as trustee, pursuant to which the
Convertible Subordinated Debt was issued, as amended, to the extent
permitted under the Loan Documents.
"TYPE" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"UNRESTRICTED SUBSIDIARY" means a direct, wholly-owned
Subsidiary of the Borrower, designated as an unrestricted Subsidiary by
the board of directors of the Borrower (and shall in any event include
any of Anam, Newco or Newco Successor if such entity becomes a
Subsidiary of the Borrower), provided that the conditions set forth on
Schedule IV hereto shall have been and shall remain satisfied with
respect to such Subsidiary.
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"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to any
Revolving Credit Lender at any time, (a) such Lender's Revolving Credit
Commitment at such time minus (b) the sum of (i) the aggregate principal
amount of all Revolving Credit Advances and Letter of Credit Advances
made by such Lender (in its capacity as a Lender) and outstanding at
such time plus (ii) such Lender's Pro Rata Share of (A) the aggregate
Available Amount of all Letters of Credit outstanding at such time and
(B) the aggregate principal amount of all Letter of Credit Advances made
by the Issuing Banks pursuant to Section 2.03(c) and outstanding at such
time.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
"WELFARE PLAN" means a welfare plan, as defined in Section 3(1)
of ERISA, that is maintained for employees of any Loan Party or in
respect of which any Loan Party could have liability.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the
computation of periods of time from a specified date to a later
specified date, the word "FROM" means "from and including" and the words
"TO" and "UNTIL" each mean "to but excluding". References in the Loan
Documents to any agreement or contract "AS AMENDED" shall mean and be a
reference to such agreement or contract as amended, amended and
restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those applied
in the preparation of the financial statements referred to in Section
4.01(g) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) The Term A
Advances. Each Term A Lender severally agrees, on the terms and conditions
hereinafter set forth, to make a single advance (a "TERM A ADVANCE") to the
Borrower on the Effective Date in an amount not to exceed such Lender's Term A
Commitment at such time. The Term A Borrowing shall consist of Term A Advances
made simultaneously by the Term A Lenders ratably according to their Term A
Commitments. Amounts borrowed under this Section 2.01(a) and repaid or prepaid
may not be reborrowed.
(b) The Term B Advances. Each Term B Lender severally agrees, on the
terms and conditions hereinafter set forth, to make a single advance (a "TERM B
ADVANCE") to the Borrower on the Effective Date in an amount not to exceed such
Lender's Term B Commitment at such time. The Term B Borrowing shall consist of
Term B Advances made simultaneously by the Term B Lenders ratably according to
their Term B Commitments. Amounts borrowed under this Section 2.01(b) and repaid
or prepaid may not be reborrowed.
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(c) The Revolving Credit Advances. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "REVOLVING CREDIT ADVANCE") to the Borrower from time to time
on any Business Day during the period from the Effective Date until the
Termination Date in an amount for each such Advance not to exceed such Lender's
Unused Revolving Credit Commitment at such time; provided, however, that the
aggregate amount of Revolving Credit Advances made on the Effective Date shall
not exceed $50,000,000. Each Revolving Credit Borrowing shall be in an aggregate
amount of $2,500,000 or an integral multiple of $500,000 in excess thereof
(other than a Borrowing the proceeds of which shall be used solely to repay or
prepay in full outstanding Letter of Credit Advances) and shall consist of
Revolving Credit Advances made simultaneously by the Revolving Credit Lenders
ratably according to their Revolving Credit Commitments. Within the limits of
each Revolving Credit Lender's Unused Revolving Credit Commitment in effect from
time to time, the Borrower may borrow under this Section 2.01(c), prepay
pursuant to Section 2.06(a) and reborrow under this Section 2.01(c).
(d) Letters of Credit. Each Issuing Bank severally agrees, on the terms
and conditions hereinafter set forth, to issue (or cause its Affiliate that is a
commercial bank to issue on its behalf) letters of credit (the "LETTERS OF
Credit") for the account of the Borrower from time to time on any Business Day
during the period from the date hereof until 60 days before the Termination Date
in an aggregate Available Amount (i) for all Letters of Credit issued by such
Issuing Bank not to exceed at any time the lesser of (x) the Letter of Credit
Facility at such time and (y) such Issuing Bank's Letter of Credit Commitment at
such time and (ii) for each such Letter of Credit not to exceed the Unused
Revolving Credit Commitments of the Revolving Credit Lenders at such time. No
Letter of Credit shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal) later than the earlier of 60
days before the Termination Date and (A) in the case of a Standby Letter of
Credit, one year after the date of issuance thereof, but may by its terms be
renewable annually upon notice (a "NOTICE OF RENEWAL") given to the Issuing Bank
that issued such Standby Letter of Credit and the Administrative Agent on or
prior to any date for notice of renewal set forth in such Letter of Credit but
in any event at least three Business Days prior to the date of the proposed
renewal of such Standby Letter of Credit and upon fulfillment of the applicable
conditions set forth in Article III unless such Issuing Bank has notified the
Borrower (with a copy to the Administrative Agent) on or prior to the date for
notice of termination set forth in such Letter of Credit but in any event at
least 30 Business Days prior to the date of automatic renewal of its election
not to renew such Standby Letter of Credit (a "NOTICE OF TERMINATION") and (B)
in the case of a Trade Letter of Credit, 60 days after the date of issuance
thereof; provided that the terms of each Standby Letter of Credit that is
automatically renewable annually shall (x) require the Issuing Bank that issued
such Standby Letter of Credit to give the beneficiary named in such Standby
Letter of Credit notice of any Notice of Termination, (y) permit such
beneficiary, upon receipt of such notice, to draw under such Standby Letter of
Credit prior to the date such Standby Letter of Credit otherwise would have been
automatically renewed and (z) not permit the expiration date (after giving
effect to any renewal) of such Standby Letter of Credit in any event to be
extended to a date later than 60 days before the Termination Date. If either a
Notice of Renewal is not given by the Borrower or a Notice of Termination is
given by the relevant Issuing Bank pursuant to the immediately preceding
sentence, such Standby Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; provided, however, that even in
the absence of receipt of a Notice of Renewal the relevant Issuing Bank may in
its discretion, unless instructed to the contrary by the Administrative Agent or
the Borrower, deem that a Notice of Renewal had been timely delivered and in
such case, a Notice of Renewal shall be deemed to have been so delivered for all
purposes under this Agreement. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.01(d), repay any Letter
of Credit Advances resulting from drawings thereunder pursuant to Section
2.03(c) and request the issuance of additional Letters of Credit under this
Section 2.01(d).
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SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar
Rate Advances, or the first Business Day prior to the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
Borrower to the Administrative Agent, which shall give to each Appropriate
Lender prompt notice thereof by telex or telecopier. Each such notice of a
Borrowing (a "NOTICE OF BORROWING") shall be by telephone, confirmed immediately
in writing, or telex or telecopier, in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of such Borrowing, (ii)
Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Advance. Each Appropriate Lender shall, before 11:00 A.M.
(New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing in accordance with the respective Commitments under the
applicable Facility of such Lender and the other Appropriate Lenders. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower by crediting the Borrower's Account;
provided, however, that, in the case of any Revolving Credit Borrowing, the
Administrative Agent shall first make a portion of such funds equal to the
aggregate principal amount of any Letter of Credit Advances made by any Issuing
Bank, as the case may be, and by any other Revolving Credit Lender and
outstanding on the date of such Revolving Credit Borrowing, plus interest
accrued and unpaid thereon to and as of such date, available to such Issuing
Bank, as the case may be, and such other Revolving Credit Lenders for repayment
of such Letter of Credit Advances.
(b) Anything in subsection (a) above to the contrary notwithstanding,
the Borrower may not select Eurodollar Rate Advances (i) for the initial
Borrowing hereunder, (ii) for any Borrowing if the aggregate amount of such
Borrowing is less than $5,000,000 or (iii) if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.09 or 2.10; provided, however, that if the syndication under this
Agreement has not been completed on or prior to the Effective Date, then the
Borrower may only select Eurodollar Rate Advances with one month Interest Period
until the earlier of (i) the date which is three months after the Effective Date
and (ii) the date the syndication has been completed as shall be specified by
the Administrative Agent in a notice to the Borrower. In addition, the Term A
Advances may not be outstanding as part of more than 5 separate Borrowings, the
Term B Advances may not be outstanding as part of more than 5 separate
Borrowings and the Revolving Credit Advances may not be outstanding as part of
more than 10 separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Appropriate Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from an
Appropriate Lender prior to the date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
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accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay or pay to the Administrative
Agent forthwith on demand such corresponding amount and to pay interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid or paid to the Administrative Agent, at (i) in
the case of the Borrower, the interest rate applicable at such time under
Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall pay to the Administrative
Agent such corresponding amount, such amount so paid shall constitute such
Lender's Advance as part of such Borrowing for all purposes.
(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters
of Credit. (a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to any Issuing Bank, which shall give to the
Administrative Agent and each Revolving Credit Lender prompt notice thereof by
telex or telecopier. Each such notice of issuance of a Letter of Credit (a
"NOTICE OF ISSUANCE") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of Credit,
and shall be accompanied by such application and agreement for letter of credit
as such Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "LETTER OF CREDIT AGREEMENT"). If (x) the
requested form of such Letter of Credit is acceptable to such Issuing Bank in
its sole discretion and (y) it has not received notice of objection to such
issuance from Lenders holding at least 50% of the Revolving Credit Commitments,
such Issuing Bank will, upon fulfillment of the applicable conditions set forth
in Article III, make such Letter of Credit available to the Borrower at its
office referred to in Section 8.02 or as otherwise agreed with the Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to the
Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued by such
Issuing Bank during the previous week and drawings during such week under all
Letters of Credit issued by such Issuing Bank, (B) to each Revolving Credit
Lender on the first Business Day of each month a written report summarizing
issuance and expiration dates of Letters of Credit issued by such Issuing Bank
during the preceding month and drawings during such month under all Letters of
Credit issued by such Issuing Bank and (C) to the Administrative Agent and each
Revolving Credit Lender on the first Business Day of each calendar quarter a
written report setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by such Issuing
Bank.
(c) Drawing and Reimbursement. The payment by any Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by such Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft. Upon written demand
by any Issuing Bank with an outstanding Letter of Credit Advance, with a copy of
such demand to the Administrative Agent, each Revolving Credit Lender shall
purchase from
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such Issuing Bank, and such Issuing Bank shall sell and assign to each such
Revolving Credit Lender, such Lender's Pro Rata Share of such outstanding Letter
of Credit Advance as of the date of such purchase, by making available for the
account of its Applicable Lending Office to the Administrative Agent for the
account of such Issuing Bank, by deposit to the Administrative Agent's Account,
in same day funds, an amount equal to the portion of the outstanding principal
amount of such Letter of Credit Advance to be purchased by such Lender. Promptly
after receipt thereof, the Administrative Agent shall transfer such funds to
such Issuing Bank. The Borrower hereby agrees to each such sale and assignment.
Each Revolving Credit Lender agrees to purchase its Pro Rata Share of an
outstanding Letter of Credit Advance on (i) the Business Day on which demand
therefor is made by the Issuing Bank which made such Advance, provided that
notice of such demand is given not later than 11:00 A.M. (New York City time) on
such Business Day, or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. Upon any such assignment by an
Issuing Bank to any Revolving Credit Lender of a portion of a Letter of Credit
Advance, such Issuing Bank represents and warrants to such other Lender that
such Issuing Bank is the legal and beneficial owner of such interest being
assigned by it, free and clear of any liens, but makes no other representation
or warranty and assumes no responsibility with respect to such Letter of Credit
Advance, the Loan Documents or any Loan Party. If and to the extent that any
Revolving Credit Lender shall not have so made the amount of such Letter of
Credit Advance available to the Administrative Agent, such Revolving Credit
Lender agrees to pay to the Administrative Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by such
Issuing Bank until the date such amount is paid to the Administrative Agent, at
the Federal Funds Rate for its account or the account of such Issuing Bank, as
applicable. If such Lender shall pay to the Administrative Agent such amount for
the account of such Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Letter of Credit Advance made by such
Lender on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Letter of Credit Advance made by such Issuing Bank shall
be reduced by such amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of any Lender
to make the Letter of Credit Advance to be made by it on the date specified in
Section 2.03(c) shall not relieve any other Lender of its obligation hereunder
to make its Letter of Credit Advance on such date, but no Lender shall be
responsible for the failure of any other Lender to make the Letter of Credit
Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Term A Advances. The Borrower
shall repay to the Administrative Agent for the ratable account of the Term A
Lenders the aggregate outstanding principal amount of the Term A Advances on the
following dates in the amounts indicated (which amounts shall be reduced as a
result of the application of prepayments in accordance with the order of
priority set forth in Section 2.06):
Date Amount
---- -----------
June 30, 2000 $17,500,000
September 30, 2000 $17,500,000
December 31, 2000 $17,500,000
March 31, 2001 $17,500,000
June 30, 2001 $17,500,000
September 30, 2001 $17,500,000
December 31, 2001 $17,500,000
March 31, 2002 $17,500,000
June 30, 2002 $17,500,000
September 30, 2002 $17,500,000
December 31, 2002 $17,500,000
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March 31, 2003 $17,500,000
June 30, 2003 $17,500,000
September 30, 2003 $17,500,000
December 31, 2003 $17,500,000
March 31, 2004 $17,500,000
June 30, 2004 $17,500,000
September 30, 2004 $17,500,000
December 31, 2004 $17,500,000
March 31, 2005 $17,500,000
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term A Advances outstanding on such date.
(b) Term B Advances. The Borrower shall repay to the Administrative
Agent for the ratable account of the Term B Lenders the aggregate outstanding
principal amount of the Term B Advances on the following dates in the amounts
indicated (which amounts shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.06):
Date Amount
---- -----------
June 30, 2000 $ 875,000
September 30, 2000 $ 875,000
December 31, 2000 $875,000
March 31, 2001 $ 875,000
June 30, 2001 $ 875,000
September 30, 2001 $ 875,000
December 30, 2001 $ 875,000
March 31, 2002 $875,000
June 30, 2002 $ 875,000
September 30, 2002 $ 875,000
December 31, 2002 $ 875,000
March 31, 2003 $875,000
June 30, 2003 $ 875,000
September 30, 2003 $ 875,000
December 31, 2003 $42,000,000
March 31, 2004 $42,000,000
June 30, 2004 $42,000,000
September 30, 2004 $42,000,000
December 31, 2004 $42,000,000
March 31, 2005 $42,000,000
June 30, 2005 $42,000,000
September 30, 2005 $43,750,000
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term B Advances outstanding on such date.
(c) Revolving Credit Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Termination Date the aggregate outstanding principal amount of the Revolving
Credit Advances then outstanding.
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(d) Letter of Credit Advances. (i) The Borrower shall repay to the
Administrative Agent for the account of each Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the earlier
of demand and the Termination Date the outstanding principal amount of each
Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any Letter of
Credit Agreement and any other agreement or instrument relating to any Letter of
Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances, including, without
limitation, the following circumstances (it being understood that any such
payment by the Borrower is without prejudice to, and does not constitute a
waiver of, any rights the Borrower might have or might acquire as a result of
the payment by any Issuing Bank of any draft or the reimbursement by the
Borrower thereof):
(A) any lack of validity or enforceability of any Loan Document,
any Letter of Credit Agreement, any Letter of Credit or any other
agreement or instrument relating thereto (all of the foregoing being,
collectively, the "L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other right
that the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), any Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a 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;
(E) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate or other document that does not
strictly comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral or
other collateral, or any release or amendment or waiver of or consent to
departure from the Guaranties or any other guarantee, for all or any of
the Obligations of the Borrower in respect of the L/C Related Documents;
or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a) Optional.
The Borrower may, upon at least three Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the Term A Commitments, the Term B Commitments and the Letter of Credit
Facility and the Unused Revolving Credit Commitments; provided, however, that
each partial reduction of a Facility (i) shall be in an aggregate amount of
$2,500,000 or an integral multiple of
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$500,000 in excess thereof and (ii) shall be made ratably among the Appropriate
Lenders in accordance with their Commitments with respect to such Facility.
(b) Mandatory. (i) On the date of the Term A Borrowing, after giving
effect to such Term A Borrowing, and from time to time thereafter upon each
repayment or prepayment of the Term A Advances, the aggregate Term A Commitments
of the Term A Lenders shall be automatically and permanently reduced, on a pro
rata basis, by an amount equal to the amount by which the aggregate Term A
Commitments immediately prior to such reduction exceed the aggregate unpaid
principal amount of the Term A Advances then outstanding.
(ii) On the date of the Term B Borrowing, after giving effect to such
Term B Borrowing, and from time to time thereafter upon each repayment or
prepayment of the Term B Advances, the aggregate Term B Commitments of the Term
B Lenders shall be automatically and permanently reduced, on a pro rata basis,
by an amount equal to the amount by which the aggregate Term B Commitments
immediately prior to such reduction exceed the aggregate unpaid principal amount
of the Term B Advances then outstanding.
(iii) The Letter of Credit Facility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by
the amount, if any, by which the amount of the Letter of Credit Facility exceeds
the Revolving Credit Facility after giving effect to such reduction of the
Revolving Credit Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may, upon at least
three Business Days' notice to the Administrative Agent stating the proposed
date and aggregate principal amount of the prepayment, and if such notice is
given the Borrower shall, prepay the outstanding aggregate principal amount of
the Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the aggregate
principal amount prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount of $2,500,000 or an integral multiple
of $500,000 in excess thereof and (y) if any prepayment of a Eurodollar Rate
Advance is made on a date other than the last day of an Interest Period for such
Advance, the Borrower shall also pay any amounts owing pursuant to Section
8.04(c).
(b) Mandatory. (i) The Borrower shall, on the 90th day following the end
of each Fiscal Year, prepay an aggregate principal amount of the Term Advances
comprising part of the same Term Borrowings equal to (A) to the extent the
aggregate Commitments (whether used or unused) on the last day of such Fiscal
Year equal or exceed $500,000,000, 50% of the amount of Excess Cash Flow for
such Fiscal Year and (B) upon the reduction of the aggregate Commitments
(whether used or unused) on the last day of such Fiscal Year to any amount less
than $500,000,000, 25% of the amount of Excess Cash Flow for such Fiscal Year.
(ii) The Borrower shall, within 3 Business Days of the date of receipt
(or such later date as may be specified in Section 5.02(e)) of the Net Cash
Proceeds by the Borrower or any of its Restricted Subsidiaries from (A) the
sale, lease, transfer or other disposition of any assets of the Borrower or any
of its Restricted Subsidiaries (other than any sale, lease, transfer or other
disposition of assets pursuant to clause (i), (iv), (vi) or (vii) of Section
5.02(e)), (B) the incurrence or issuance by the Borrower or any of its
Restricted Subsidiaries of any Debt (other than Debt incurred or issued pursuant
to clause ((i)(A) through (E), (ii)(A) and (B), (iii)(A) through (D) or (iv)(A)
and (B)) of Section 5.02(b)), (C) any Extraordinary Receipt received by or paid
to or for the account of the Borrower or any of its Restricted Subsidiaries and
not otherwise included in clause (A) or (B) above or subsection (iii) below,
prepay an aggregate principal amount of the Term Advances comprising part of the
same Term Borrowings equal to 100% of such Net Cash Proceeds.
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(iii) The Borrower shall, within 2 Business Days of the date of receipt
(or such later date as may be specified below) of the Net Cash Proceeds by the
Borrower or any of its Restricted Subsidiaries from the issuance by the Borrower
or any of its Restricted Subsidiaries of any Equity Interests, prepay an
aggregate principal amount of the Term Advances comprising part of the same Term
Borrowings in an amount equal to (A) if the Senior Debt Ratio at such time is
greater than or equal to 1.0:1.0, 50% of such Net Cash Proceeds and (B) if the
Senior Debt Ratio at such time is less than 1.0:1.0, 0% of such Net Cash
Proceeds, provided, however, that for the purposes of calculating clause
(iii)(A) above, the Borrower shall be permitted to exclude an amount (the
"EXCLUDED AMOUNT") from the Net Cash Proceeds of such issuances of Equity
Interests to be used to fund Investments made or to be made pursuant to Section
5.02(f)(i) and (viii) ("PERMITTED INVESTMENTS") of up to (1) if the Senior Debt
Ratio is greater than 1.5:1.0 on such date of receipt, $50,000,000 in each
Fiscal Year but not more than $200,000,000 on a cumulative basis while the Loan
Documents are in effect and (2) if the Senior Debt Ratio is equal to or less
than 1.5:1.0, $200,000,000 on a cumulative basis while the Loan Documents are in
effect, provided further that to the extent any such Excluded Amount is not used
within 90 days of the receipt of such Net Cash Proceeds to fund Permitted
Investments, 50% of such unused Excluded Amount shall be applied to prepay the
Term Advances comprising part of the same Term Borrowings.
(iv) The Borrower shall, on each Business Day, prepay an aggregate
principal amount of the Revolving Credit Advances comprising part of the same
Borrowings and the Letter of Credit Advances equal to the amount by which (A)
the sum of the aggregate principal amount of (x) the Revolving Credit Advances
and (y) the Letter of Credit Advances then outstanding plus the aggregate
Available Amount of all Letters of Credit then outstanding exceeds (B) the
lesser of the Revolving Credit Facility and the Loan Value of Eligible
Collateral on such Business Day.
(v) The Borrower shall, on each Business Day, pay to the Administrative
Agent for deposit in the L/C Collateral Account an amount sufficient to cause
the aggregate amount on deposit in such Account to equal the amount by which the
aggregate Available Amount of all Letters of Credit then outstanding exceeds the
Letter of Credit Facility on such Business Day.
(vi) Prepayments of the Revolving Credit Facility made pursuant to
clause (iv) or (v) above shall be first applied to prepay Letter of Credit
Advances then outstanding until such Advances are paid in full and second
applied to prepay Revolving Credit Advances then outstanding comprising part of
the same Borrowings until such Advances are paid in full and third deposited in
the L/C Collateral Account to cash collateralize 100% of the Available Amount of
the Letters of Credit then outstanding. Upon the drawing of any Letter of Credit
for which funds are on deposit in the L/C Collateral Account, such funds shall
be applied to reimburse the relevant Issuing Bank or Revolving Credit Lenders,
as applicable.
(vii) Anything contained in this Section 2.06(b) to the contrary
notwithstanding, (A) if, following the occurrence of any "Asset Sale" (as such
term is defined in either the Senior Notes Indenture or the Senior Subordinated
Notes Indenture, as applicable) by any Loan Party or any of its Subsidiaries,
the Borrower is required to commit by a particular date (a "COMMITMENT DATE") to
apply or cause its Subsidiaries to apply an amount equal to any of the "Net
Proceeds" (as such term is defined in either the Senior Notes Indenture or the
Senior Subordinated Notes Indenture, as applicable) thereof in a particular
manner, or to apply by a particular date (an "APPLICATION DATE") an amount equal
to any such "Net Proceeds" in a particular manner, in either case in order to
excuse the Borrower from being required to make an "Asset Sale Offer" (as such
term is defined in either the Senior Notes Indenture or the Senior Subordinated
Notes Indenture, as applicable) in connection with such "Asset Sale," and the
Borrower shall have failed to so commit or to so apply an amount equal to such
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"Net Proceeds" at least 60 days before the applicable Commitment Date or
Application Date, as the case may be, or (B) if the Borrower at any other time
shall have failed to apply or commit or cause to be applied an amount equal to
any such "Net Proceeds," and, within 60 days thereafter assuming no further
application or commitment of an amount equal to such "Net Proceeds" the Borrower
would otherwise be required to make an "Asset Sale Offer" in respect thereof,
then in either such case the Borrower shall immediately apply or cause to be
applied an amount equal to such "Net Proceeds" to the payment of the Advances in
the manner set forth in Section 2.06(b)(ii) in such amounts as shall excuse the
Borrower from making any such "Asset Sale Offer".
(viii) All prepayments under this subsection (b) shall be made together
with accrued interest to the date of such prepayment on the principal amount
prepaid.
(c) Each prepayment under the Term Facilities pursuant to Section 2.06
shall be applied to prepay the Term A Facility and the Term B Facility, subject
to the provisions Section 2.06(d) below, on a pro rata basis. Prepayments of the
Term A Facility and the Term B Facility will be applied to the installments
thereof on a pro rata basis.
(d) With respect to any prepayment of the Term Advances, the
Administrative Agent shall ratably pay the Term A Lenders and the Term B
Lenders; provided, however, that any Term B Lender, at its option, to the extent
that any Term A Advances are then outstanding, may elect not to accept such
prepayment (such Lender being a "DECLINING LENDER"), in which event the
provisions of the next sentence shall apply. Any Term B Lender may elect not to
accept its ratable share of the prepayment referred to in any Prepayment Notice
by giving written notice to the Administrative Agent not later than 11:00 A.M.
(New York City time) on the Business Day immediately preceding the scheduled
Prepayment Date. On the Prepayment Date, an amount equal to that portion of the
Prepayment Amount available to prepay Term B Lenders (less any amounts that
would otherwise be payable to Declining Lenders) shall be applied to prepay Term
B Advances owing to Term B Lenders other than Declining Lenders and any amounts
that would otherwise have been applied to prepay Term B Advances owing to
Declining Lenders shall instead be applied ratably to prepay the remaining Term
Advances (other than Term B Advances held by Declining Lenders) as provided in
Sections 2.06(a) and (b); provided further that on prepayment in full of Term
Advances owing to Term Lenders other than Declining Lenders, the remainder of
any Prepayment Amount shall be applied ratably to prepay Term B Advances owing
to Declining Lenders.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of (A)
the Base Rate in effect from time to time plus (B) the Applicable Margin
in effect from time to time, payable in arrears quarterly on the last
day of each March, June, September and December during such periods and
on the date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A) the
Eurodollar Rate for such Interest Period for such Advance plus (B) the
Applicable Margin in effect on the first day of such Interest Period,
payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day
that occurs during such Interest Period every three months from the
first day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of
an Event of Default, the Administrative Agent may, and upon the request of the
Required Lenders shall, require that
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the Borrower pay interest on (i) the unpaid principal amount of each Advance
owing to each Lender, payable in arrears on the dates referred to in clause
(a)(i) or (a)(ii) above and on demand, at a rate per annum equal at all times to
2% per annum above the rate per annum required to be paid on such Advance
pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent
permitted by law, the amount of any interest, fee or other amount payable under
the Loan Documents that is not paid when due, from the date such amount shall be
due until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid, in the case
of interest, on the Type of Advance on which such interest has accrued pursuant
to clause (a)(i) or (a)(ii) above and, in all other cases, on Base Rate Advances
pursuant to clause (a)(i) above, provided, however, that, following acceleration
of the advances pursuant to Section 6.01, interest shall accrue and be payable
at the rate required by this Section 2.07(b) whether or not requested by the
Administrative Agent or the Required Lenders.
(c) Notice of Interest Rate. Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.02(a), a notice of Conversion pursuant to
Section 2.09 or a notice of selection of an Interest Period pursuant to the
terms of the definition of "Interest Period", the Administrative Agent shall
give notice to the Borrower and each Appropriate Lender of the applicable
Interest Period and the applicable interest rate determined by the
Administrative Agent for purposes of clause (a)(i) or (a)(ii) above.
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of the Lenders a commitment fee, from the
date hereof in the case of each Initial Lender and from the effective date
specified in the Assumption Agreement or in the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other Lender until the
Termination Date, payable in arrears quarterly on the last day of each March,
June, September and December, commencing June 30, 2000, and on the Termination
Date, at the rate of 1/2 of 1% per annum on the actual daily Unused Revolving
Credit Commitment of such Lender; provided, however, that any commitment fee
accrued with respect to any of the Commitments of a Defaulting Lender during the
period prior to the time such Lender became a Defaulting Lender and unpaid at
such time shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender except to the extent that such commitment fee shall otherwise
have been due and payable by the Borrower prior to such time; and provided
further that no commitment fee shall accrue on any of the Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last day of each March, June,
September and December, commencing June 30, 2000, and on the earliest to occur
of the full drawing, expiration, termination or cancellation of any Letter of
Credit and on the Termination Date, on such Lender's Pro Rata Share of the
actual daily aggregate Available Amount during such quarter of all Letters of
Credit outstanding from time to time at the rate per annum equal to the
Applicable Margin then in effect for Revolving Credit Advances that are
Eurodollar Rate Advances (including default interest, if any).
(ii) The Borrower shall pay to each Issuing Bank, for its own account,
(A) a fronting fee, payable in arrears quarterly on the last day of each March,
June, September and December, commencing June 30, 2000, and on the Termination
Date, on the average daily amount of its Letter of Credit Commitment during such
quarter, from the date hereof until the Termination Date, at the rate of 0.25%
per annum and an issuance fee for each Letter of Credit issued by such Issuing
Bank in an amount equal to 0.25% of the Available Amount of such Letter of
Credit on the date of issuance of such Letter of Credit, payable on such date;
provided that, in no event shall such issuance fee be less than $500 (B) such
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other commissions, transfer fees and other fees and charges in connection with
the issuance or administration of each Letter of Credit as the Borrower and such
Issuing Bank shall agree.
(c) Agents' Fees. The Borrower shall pay to each Agent for its own
account such fees as may from time to time be agreed between the Borrower and
such Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The Borrower may on
any Business Day, upon notice given to the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Section 2.10, Convert
all or any portion of the Advances of one Type comprising the same Borrowing
into Advances of the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made only on the last
day of an Interest Period for such Eurodollar Rate Advances, any Conversion of
Base Rate Advances into Eurodollar Rate Advances shall be in an amount not less
than the minimum amount specified in Section 2.02(b), no Conversion of any
Advances shall result in more separate Borrowings than permitted under Section
2.02(b) and each Conversion of Advances comprising part of the same Borrowing
under any Facility shall be made ratably among the Appropriate Lenders in
accordance with their Commitments under such Facility. Each such notice of
Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the Advances to be Converted and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $2,500,000, such Advances shall
automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance. (iii) Upon the occurrence and during the continuance of a Default under
Section 6.01(a) or 6.01(f) or any Event of Default, (x) each Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (y) the obligation of the Lenders
to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to
issue or of issuing or maintaining or participating in Letters of Credit or of
agreeing to make or of making or maintaining Letter of Credit Advances
(excluding, for purposes of this Section 2.10, any such increased costs
resulting from (x) Taxes or Other Taxes (as to which Section 2.12 shall govern)
and (y) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrower shall from time
to time, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party additional amounts sufficient to compensate such Lender Party for
such increased cost. A
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certificate as to the amount of such increased cost, submitted to the Borrower
by such Lender Party, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Lender Party determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder and other commitments of such type or the issuance or
maintenance of or participation in the Letters of Credit (or similar contingent
obligations), then, upon demand by such Lender Party (with a copy of such demand
to the Administrative Agent), the Borrower shall pay to the Administrative Agent
for the account of such Lender Party, from time to time as specified by such
Lender Party, additional amounts sufficient to compensate such Lender Party in
the light of such circumstances, to the extent that such Lender Party reasonably
determines such increase in capital to be allocable to the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder or to the issuance or maintenance of or participation in any
Letters of Credit. A certificate as to such amounts submitted to the Borrower by
such Lender Party shall be conclusive and binding for all purposes, absent
manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any Facility,
Lenders owed at least 50% of the then aggregate unpaid principal amount thereof
notify the Administrative Agent that the Eurodollar Rate for any Interest Period
for such Advances will not adequately reflect the cost to such Lenders of
making, funding or maintaining their Eurodollar Rate Advances for such Interest
Period, the Administrative Agent shall forthwith so notify the Borrower and the
Appropriate Lenders, whereupon (i) each such Eurodollar Rate Advance under such
Facility will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lenders have determined that the circumstances causing such
suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.15), not
later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at the Administrative Agent's Account in same day
funds, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices
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ratably in accordance with the amounts of such respective Obligations then
payable to such Lender Parties and (ii) if such payment by the Borrower is in
respect of any Obligation then payable hereunder to one Lender Party, to such
Lender Party for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. Upon its acceptance
of an Assignment and Acceptance and recording of the information contained
therein in the Register pursuant to Section 8.07(d), from and after the
effective date of such Assignment and Acceptance, the Administrative Agent shall
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or, in
the case of a Lender, under the Note held by such Lender, to charge from time to
time against any or all of the Borrower's accounts with such Lender Party any
amount so due.
(c) All computations of interest based on the Base Rate shall be made by
the Administrative Agent on the basis of a year of 365 or 366 days, as the case
may be, and all computations of interest based on the Eurodollar Rate or the
Federal Funds Rate and of fees and Letter of Credit commissions shall be made by
the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable. Each determination by the Administrative Agent of an interest rate, fee
or commission hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee or Letter
of Credit fee, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Party's proportionate share of the principal amount
of all outstanding Advances and the Available Amount of all Letters of Credit
then outstanding, in repayment or prepayment of such of the outstanding Advances
or other Obligations owed to such Lender Party, and for application to such
principal installments, as the Administrative Agent shall direct.
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SECTION 2.12. Taxes. (a) Any and all payments by the Borrower hereunder
or under the Notes shall be made, in accordance with Section 2.11, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender Party and each Agent, taxes that
are imposed on its overall net income by the United States and taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction under the laws of which such Lender Party
or such Agent, as the case may be, is organized or any political subdivision
thereof and, in the case of each Lender Party, taxes that are imposed on its
overall net income (and franchise taxes imposed in lieu thereof) by the state or
foreign jurisdiction of such Lender Party's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender Party or any Agent, (i)
the sum payable by the Borrower shall be increased as may be necessary so that
after the Borrower and the Administrative Agent have made all required
deductions (including deductions applicable to additional sums payable under
this Section 2.12) such Lender Party or such Agent, as the case may be, receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make all such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performance under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "OTHER TAXES").
(c) The Borrower shall indemnify each Lender Party and each Agent for
and hold them harmless against the full amount of Taxes and Other Taxes, and for
the full amount of taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.12, imposed on or paid by such Lender Party or such
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender Party or
such Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
shall furnish to the Administrative Agent, at its address referred to in Section
8.02, the original or a certified copy of a receipt evidencing such payment. In
the case of any payment hereunder or under the Notes by or on behalf of the
Borrower through an account or branch outside the United States or by or on
behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of
subsections (d) and (e) of this Section 2.12, the terms "UNITED STATES" and
"UNITED STATES person" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction outside
the United States shall, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender or Initial Issuing Bank, as
the case may be, and on the date of the Assignment and Acceptance pursuant to
which it becomes a Lender Party in the case of each other Lender Party, and from
time to time thereafter as requested in writing by the Borrower (but only so
long thereafter as such Lender Party remains lawfully able to do so), provide
each of the Administrative Agent and the Borrower with two original Internal
Revenue Service forms 1001, 4224, or W-8ECI or W-8 or W-8BEN (and, if such
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Lender Party delivers a form W-8 or W-8BEN, a certificate representing that such
Lender Party is not a "bank" for purposes of Section 881(c) of the Internal
Revenue Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Internal Revenue Code)), as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender Party is exempt from or entitled to a reduced rate of United
States withholding tax on payments pursuant to this Agreement or the Notes or,
in the case of a Lender Party providing a form W-8 or W-8BEN, certifying that
such Lender Party is a foreign corporation, partnership, estate or trust. If the
forms provided by a Lender Party at the time such Lender Party first becomes a
party to this Agreement indicate a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Lender Party provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
forms; provided, however, that if, at the effective date of the Assignment and
Acceptance pursuant to which a Lender Party becomes a party to this Agreement,
the Lender Party assignor was entitled to payments under subsection (a) of this
Section 2.12 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender Party assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001,
▇▇▇▇, ▇-▇, ▇-▇▇▇▇ or W-8ECI (or the related certificate described above), that
the Lender Party reasonably considers to be confidential, the Lender Party shall
give notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information.
(f) For any period with respect to which a Lender Party has failed to
provide the Borrower with the appropriate form described in subsection (e) above
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e) above), such Lender Party shall not be
entitled to indemnification under subsection (a) or (c) of this Section 2.12
with respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender Party become subject to Taxes because of
its failure to deliver a form required hereunder, the Borrower shall take such
steps as such Lender Party shall reasonably request to assist such Lender Party
to recover such Taxes.
(g) Any Lender Party claiming any additional amounts payable pursuant to
this Section 2.12 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender Party, be
otherwise disadvantageous to such Lender Party.
(h) The Borrower may replace any Lender Party that has requested
additional amounts from such Borrower under this Section 2.12, by written notice
to such Lender Party and the Administrative Agent and identifying one or more
persons each of which shall be reasonably acceptable to the Administrative Agent
(each, a "REPLACEMENT LENDER PARTY," and collectively, the "REPLACEMENT LENDER
PARTIES") to replace such Lender Party (the "REPLACED LENDER PARTY"); provided
that (i) the notice from such Borrower to the Replaced Lender Party and the
Administrative Agent provided for hereinabove shall specify an effective date
for such replacement (the "REPLACEMENT EFFECTIVE DATE"), which shall be at least
five (5) Business Days after such notice is given and (ii) as of the relevant
Replacement Effective Date, each Replacement Lender Party shall enter into an
Assignment and Acceptance with the Replaced Lender Party pursuant to Section
8.07(a) (but shall not be required to pay the processing fee otherwise
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payable to the Administrative Agent pursuant to Section 8.07(a)), pursuant to
which such Replacement Lender Parties collectively shall acquire, in such
proportion among them as they may agree with such Borrower and the
Administrative Agent, all (but not less than all) of the Commitments and
outstanding Advances of the Replaced Lender Party, and, in connection therewith,
shall pay to the Replaced Lender Party, as the purchase price in respect
thereof, an amount equal to the sum as of the Replacement Effective Date,
without duplication, of (x) the unpaid principal amount of, and all accrued but
unpaid interest on, all outstanding Advances of the Replaced Lender Party and
(y) the Replaced Lender Party's ratable share of all accrued but unpaid fees
owing to the Replaced Lender Party hereunder.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall obtain
at any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise, other than as a result of an assignment
pursuant to Section 8.07) (a) on account of Obligations due and payable to such
Lender Party hereunder and under the Notes at such time in excess of its ratable
share (according to the proportion of (i) the amount of such Obligations due and
payable to such Lender Party at such time to (ii) the aggregate amount of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time) of payments on account of the Obligations due and payable to all
Lender Parties hereunder and under the Notes at such time obtained by all the
Lender Parties at such time or (b) on account of Obligations owing (but not due
and payable) to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations owing to such Lender Party at such time to (ii) the aggregate
amount of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations owing (but not due and payable) to all Lender Parties hereunder and
under the Notes at such time obtained by all of the Lender Parties at such time,
such Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Obligations due and payable or owing
to them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (i) the purchase price paid to
such Lender Party to (ii) the aggregate purchase price paid to all Lender
Parties) of such recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (i) the amount of such other
Lender Party's required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered; provided
further that, so long as the Obligations under the Loan Documents shall not have
been accelerated, any excess payment received by any Appropriate Lender shall be
shared on a pro rata basis only with other Appropriate Lenders. The Borrower
agrees that any Lender Party so purchasing an interest or participating interest
from another Lender Party pursuant to this Section 2.13 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of set-off) with respect to such interest or participating interest as fully as
if such Lender Party were the direct creditor of the Borrower in the amount of
such interest or participating interest.
SECTION 2.14. Use of Proceeds. The proceeds of the Term Advances shall
be available (and the Borrower agrees that it shall use such proceeds) solely to
make a loan to AT Korea pursuant to the AT Korea Bonds, to make the AT Korea
Cash Equity Investment in order to provide AT Korea with the funds necessary to
consummate a portion of the Acquisition and to effect the Refinancing. The
proceeds of the Revolving Credit Advances and the issuances of the Letters of
Credit shall be available (and the Borrower agrees that it shall use such
proceeds and Letters of Credit) to consummate the Transactions and for general
corporate purposes of the Borrower and its Restricted Subsidiaries to the extent
permitted under this Agreement.
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SECTION 2.15. Defaulting Lenders. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the Obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, the Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by the Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date of such setoff under the
Facility pursuant to which such Defaulted Advance was originally required to
have been made pursuant to Section 2.01. Such Advance shall be considered, for
all purposes of this Agreement, to comprise part of the Borrowing in connection
with which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01, even if the other Advances comprising such Borrowing
shall be Eurodollar Rate Advances on the date such Advance is deemed to be made
pursuant to this subsection (a). The Borrower shall notify the Administrative
Agent at any time the Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of the Defaulting
Lender and the Defaulted Advance required to be made by such Defaulting Lender
and (B) the amount set off and otherwise applied in respect of such Defaulted
Advance pursuant to this subsection (a). Any portion of such payment otherwise
required to be made by the Borrower to or for the account of such Defaulting
Lender which is paid by the Borrower, after giving effect to the amount set off
and otherwise applied by the Borrower pursuant to this subsection (a), shall be
applied by the Administrative Agent as specified in subsection (b) or (c) of
this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
any Agent or any of the other Lender Parties and (iii) the Borrower shall make
any payment hereunder or under any other Loan Document to the Administrative
Agent for the account of such Defaulting Lender, then the Administrative Agent
may, on its behalf or on behalf of such other Agents or such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or such other
Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Administrative Agent, such other Agents and such other
Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent for any Defaulted Amounts
then owing to the Administrative Agent, ratably in accordance with such
respective Defaulted Amounts then owing to Administrative Agent;
(ii) second, to the Issuing Banks for any Defaulted Amounts then
owing to them, in their capacities as such, ratably in accordance with
such respective Defaulted Amounts then owing to such Issuing Banks; and
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(iii) third, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) the Borrower, any Agent or any other Lender
Party shall be required to pay or distribute any amount hereunder or under any
other Loan Document to or for the account of such Defaulting Lender, then the
Borrower or such Agent or such other Lender Party shall pay such amount to the
Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow under
this subsection (c) shall be deposited by the Administrative Agent in an account
with SG, in the name and under the control of the Administrative Agent, but
subject to the provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be SG's standard terms
applicable to escrow accounts maintained with it. Any interest credited to such
account from time to time shall be held by the Administrative Agent in escrow
under, and applied by the Administrative Agent from time to time in accordance
with the provisions of, this subsection (c). The Administrative Agent shall, to
the fullest extent permitted by applicable law, apply all funds so held in
escrow from time to time to the extent necessary to make any Advances required
to be made by such Defaulting Lender and to pay any amount payable by such
Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender Party, as and when such Advances or
amounts are required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such Advances and amounts
required to be made or paid at such time, in the following order of priority:
(i) first, to the Administrative Agent for any amounts then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder, ratably in accordance with such amounts then due and payable
to the Administrative Agent;
(ii) second, to the Issuing Banks for any amounts then due and
payable to them hereunder, in their capacities as such, by such
Defaulting Lender, ratably in accordance with such amounts then due and
payable to such Issuing Banks;
(iii) third, to any other Lender Parties for any amount then due
and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
(iv) fourth, to the Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
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(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that any Agent or any Lender Party may have against such Defaulting Lender with
respect to any Defaulted Amount.
SECTION 2.16. Evidence of Debt. (a) The Borrower agrees that upon notice
by any Lender to the Borrower (with a copy of such notice to the Administrative
Agent) to the effect that a Note is required or appropriate in order for such
Lender to evidence (whether for purposes of pledge, enforcement or otherwise)
the Advances owing to, or to be made by, such Lender, the Borrower shall
promptly execute and deliver to such Lender a Note payable to the order of such
Lender in a principal amount up to the Commitment of such Lender. Each Lender
that does not receive a Note pursuant to the preceding sentence shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder in respect of such
Advances.
(b) The Register maintained by the Administrative Agent pursuant to
Section 8.07(d) shall include a control account and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assignment and Acceptance delivered to and accepted by it,
(iii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iv) the amount of
any sum received by the Administrative Agent from the Borrower hereunder and
each Lender's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the failure of the Administrative Agent or such
Lender to make an entry, or any finding that an entry is incorrect, in the
Register or such account or accounts shall not limit or otherwise affect the
obligations of the Borrower under this Agreement.
(d) Any reference to a Note or Notes made in this Agreement shall be a
reference to a Note or Notes only to the extent such Note or Notes have been
requested and issued pursuant to Subsection (a) above.
SECTION 2.17. Increase in the Aggregate Commitments. (a) The Borrower
may, at any time prior to the Termination Date, by notice to the Administrative
Agent, request the addition of a new facility pursuant to an increase in the
Commitments (each, a "COMMITMENT INCREASE") equal to $50,000,000 (or an integral
multiple of $10,000,000 in excess thereof) to be effective as of a date that is
at least 90 days prior to the scheduled Termination Date then in effect (the
"INCREASE DATE") as specified in the related notice to the Administrative Agent;
provided however that (i) in no event shall the aggregate amount of all of the
Commitment Increases exceed $100,000,000, (ii) on the date of any request by the
Borrower for a Commitment Increase and on the related Increase Date, the
applicable conditions set forth in Section 3.02 and in clause (d) of this
Section 2.17 shall be satisfied, (iii) the Borrower will only be able to make
one request hereunder, (iv) the final maturity of the Advances and Commitments
under any such new facility shall be no shorter than the final maturity of the
Term A Facility, provided, however, that in the event the Term A Facility has
been reduced to zero, then the final maturity of the Advances and Commitments
under any such new facility shall be no shorter than the final maturity of the
Term B
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Facility and (v) such new facility shall contain other terms as may be agreed by
the Borrower and the Agents.
(b) The Administrative Agent shall promptly notify the Lenders of a
request by the Borrower for a Commitment Increase, which notice shall include
(i) the proposed amount of such requested Commitment Increase, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective
Commitments (the "COMMITMENT DATE"). Each Lender that is willing to participate
in the requested Commitment Increase (each an "INCREASING LENDER") shall, in its
sole discretion, give written notice to the Administrative Agent on or prior to
the Commitment Date of the amount by which it is willing to increase its
Commitment. If the Lenders notify the Administrative Agent that they are willing
to increase the amount of their respective Commitments by an aggregate amount
that exceeds the amount of the requested Commitment Increase, the requested
Commitment Increase shall be allocated among the Lenders willing to participate
therein in such amounts as are agreed between the Borrower and the
Administrative Agent.
(c) Promptly following the Commitment Date, the Administrative Agent
shall notify the Borrower as to the amount, if any, by which the Lenders are
willing to participate in the requested Commitment Increase. If the aggregate
amount by which the Lenders are willing to participate in the requested
Commitment Increase on any such Commitment Date is less than the requested
Commitment Increase, then the Borrower may extend offers to one or more Eligible
Assignees to participate in any portion of the requested Commitment Increase
that has not been committed to by the Lenders as of the Commitment Date;
provided, however, that the Commitment of each such Eligible Assignee shall be
in an amount of $2,500,000 or an integral multiple of $1,000,000 in excess
thereof.
(d) On the Increase Date, each Eligible Assignee that accepts an offer
to participate in a requested Commitment Increase in accordance with Section
2.17(c) (each such Eligible Assignee, an "ASSUMING LENDER") shall become a
Lender party to this Agreement as of the Increase Date and the Commitment of
each Increasing Lender for such Commitment Increase shall be so increased by
such amount (or by the amount allocated to such Lender pursuant to the last
sentence of Section 2.17(b)) as of the Increase Date; provided, however, that
the Administrative Agent shall have received on or before the Increase Date the
following, each dated such date:
(i) (A) certified copies of resolutions of the Board of
Directors of the Borrower approving the Commitment Increase and the
corresponding modifications to this Agreement and (B) an opinion of
counsel for the Borrower (which may be in-house counsel), in a form
reasonably satisfactory to the Administrative Agent;
(ii) an assumption agreement from each Assuming Lender, if any,
in form and substance satisfactory to the Borrower and the
Administrative Agent (each an "ASSUMPTION AGREEMENT"), duly executed by
such Eligible Assignee, the Administrative Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the increase
in the amount of its Commitment in a writing satisfactory to the
Borrower and the Administrative Agent.
On the Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.17(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or
telex, of the occurrence of the Commitment Increase to be effected on the
Increase Date and shall record
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in the Register the relevant information with respect to each Increasing Lender
and each Assuming Lender on such date.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit. The
obligation of each Lender to make an Advance or of any Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of the following conditions precedent before or
concurrently with the Initial Extension of Credit:
(a) The Agents shall have received on or before the day of the
Initial Extension of Credit the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the Agents
(unless otherwise specified) and (except for the Notes) in sufficient
copies for each Lender Party:
(i) The Notes payable to the order of the Lenders to the
extent required by any Lender pursuant to Section 2.16(a).
(ii) A security agreement in substantially the form of
Exhibit D hereto (together with each other security agreement
and security agreement supplement delivered pursuant to Section
5.01(j), in each case as amended, the "SECURITY AGREEMENT"),
duly executed by each Domestic Loan Party, together with:
(A) certificates representing the Pledged Shares
(other than the stock of the Borrower in Anam (the "ANAM
SHARES")) referred to therein accompanied by undated
stock powers or share transfer forms, as the case may
be, executed in blank and instruments evidencing the
Pledged Debt indorsed in blank,
(B) acknowledgment copies or stamped receipt
copies of proper financing statements, duly filed on or
before the day of the Initial Extension of Credit under
the Uniform Commercial Code of all jurisdictions that
the Administrative Agent may deem necessary or desirable
in order to perfect and protect the first priority liens
and security interests created under the Security
Agreement, covering the Collateral described in the
Security Agreement,
(C) completed requests for information, dated on
or before the date of the Initial Extension of Credit,
listing the financing statements referred to in clause
(B) above and all other effective financing statements
filed in the jurisdictions referred to in clause (B)
above that name any Domestic Loan Party as debtor,
together with copies of such other financing statements,
(D) evidence of the completion of all other
recordings and filings of or with respect to the
Security Agreement that the Administrative Agent may
deem necessary or desirable in order to perfect and
protect the Liens created thereby,
(E) evidence of the insurance required by the
terms of the Security Agreement,
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(F) copies of the Assigned Agreements referred
to in the Security Agreement, together with a consent to
such assignment, in substantially the form of Exhibit B
to the Security Agreement, duly executed by each party
to such Assigned Agreements other than the Loan Parties,
(G) the Pledged Account Letters referred to in
the Security Agreement, duly executed by each Pledged
Account Bank referred to in the Security Agreement, and
(H) evidence that all other action that the
Administrative Agent may deem necessary or desirable in
order to perfect and protect the first priority liens
and security interests created under the Security
Agreement has been taken (including, without limitation,
receipt of duly executed payoff letters, UCC-3
termination statements and landlords' and bailees'
waiver and consent agreements and any local pledge
agreement required under local law to obtain a validly
perfected first priority security interest in the
Collateral).
(iii) A guaranty in substantially the form of Exhibit E
hereto (together with each other guaranty and guaranty
supplement delivered pursuant to Section 5.01(j), in each case
as amended, the "SUBSIDIARY Guaranty"), duly executed by each
Subsidiary Guarantor.
(iv) A guaranty in substantially the form of Exhibit F
hereto (together with each other guaranty and guaranty
supplement delivered pursuant to Section 5.01(j), in each case
as amended, the "INTERCOMPANY GUARANTY"), duly executed by each
Intercompany Guarantor.
(v) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving the transactions
contemplated by the Transaction Documents and each Transaction
Document to which it is or is to be a party, and of all
documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if
any, with respect to the Transactions and each Transaction
Document to which it is or is to be a party.
(vi) A copy of a certificate of the Secretary of State
or other appropriate governmental official of the jurisdiction
of incorporation of each Loan Party, dated reasonably near the
date of the Initial Extension of Credit, certifying, where
applicable, (A) as to a true and correct copy of the charter or
other constitutive document of such Loan Party and each
amendment thereto on file in that office and (B) that (1) such
amendments are the only amendments to such Loan Party's charter
or other constitutive document on file in that office, (2) such
Loan Party has paid all franchise taxes to the date of such
certificate and (3) such Loan Party is duly incorporated and in
good standing or presently subsisting under the laws of the
jurisdiction of its incorporation.
(vii) A certificate of each Loan Party, signed on behalf
of such Loan Party by its President or a Vice President and its
Secretary or any Assistant Secretary, dated the date of the
Initial Extension of Credit (the statements made in which
certificate shall be true on and as of the date of the Initial
Extension of Credit), certifying as to (A) the absence of any
amendments to the charter of such Loan Party since the date of
the Secretary of State's certificate referred to in Section
3.01(a)(vi), (B) a true and correct copy of the bylaws of such
Loan Party as in effect on the date on which the resolutions
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referred to in Section 3.01(a)(v) were adopted and on the date
of the Initial Extension of Credit, (C) the due incorporation
and good standing or valid existence of such Loan Party as a
corporation organized under the laws of the jurisdiction of its
incorporation, and the absence of any proceeding for the
dissolution or liquidation of such Loan Party, (D) the truth of
the representations and warranties contained in the Loan
Documents as though made on and as of the date of the Initial
Extension of Credit and (E) the absence of any event occurring
and continuing, or resulting from the Initial Extension of
Credit, that constitutes a Default.
(viii) A certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying the names and true
signatures of the officers of such Loan Party authorized to sign
each Transaction Document to which it is or is to be a party and
the other documents to be delivered hereunder and thereunder.
(ix) Certified copies of each of the Related Documents,
duly executed by the parties thereto and in form and substance
satisfactory to the Lender Parties, together with all
agreements, instruments and other documents delivered in
connection therewith as the Administrative Agent shall request.
(x) Certificates, in substantially the form of Exhibit G
hereto, attesting to the Solvency of each Loan Party after
giving effect to the Transactions and the other transactions
contemplated by the Transaction Documents, from its chief
financial officer; and a fairness opinion in form and substance
satisfactory to the Agents, from SSBI.
(xi) Such financial, business and other information
regarding each Loan Party and its Subsidiaries as the Lender
Parties shall have requested, including, without limitation,
information as to possible contingent liabilities, tax matters,
environmental matters, obligations under Plans, Multiemployer
Plans and Welfare Plans, collective bargaining agreements and
other arrangements with employees, forecasts prepared by
management of the Borrower, in form and substance satisfactory
to the Lender Parties, of balance sheets, income statements and
cash flow statements on a monthly basis for the first year
following the day of the Initial Extension of Credit and on an
annual basis for each year thereafter until the Termination
Date, a pro forma consolidated balance sheet of the Borrower as
of the most recently ended fiscal quarter of the Borrower, after
giving effect to the Transactions, together with a certificate
of the chief financial officer of the Borrower to the effect
that such statement accurately presents the pro forma financial
position of the Borrower and its subsidiaries in accordance with
generally accepted accounting principles (and the Agents and the
Lender Parties shall be reasonably satisfied that such balance
sheets are not materially inconsistent with the forecasts
previously provided to the Agents and the Lender Parties), and,
not later than 10 Business Days before the Effective Date, (x)
audited consolidated and, to the extent available, consolidating
balance sheets and related statements of income, stockholders'
equity and cash flows of each of the Borrower and of the
Acquired Business for the three fiscal years ended before the
Effective Date and (y) to the extent available, unaudited
consolidated and consolidating balance sheets and related
statements of income, stockholders' equity, and cash flows of
each of the Borrower and of the Acquired Business for each
completed fiscal quarter since the date of such audited
financial statements, which audited and unaudited financial
statements (i) shall be in form and scope reasonably
satisfactory to the Agents and the Lender Parties and (ii) shall
not be materially inconsistent with the financial statements
previously provided to the Agents and the Lender Parties.
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(xii) An environmental assessment report, in form and
substance satisfactory to the Agents, from an environmental
consulting firm acceptable to the Agents, with respect to the
domestic manufacturing facilities of the Borrower and its
Subsidiaries, as to any hazards, costs or liabilities under
Environmental Laws to which any Loan Party or any of its
Subsidiaries may be subject, the amount and nature of which and
the Borrower's plans with respect to which shall be acceptable
to the Agents, together with evidence, in form and substance
satisfactory to the Agents, that all applicable Environmental
Laws shall have been complied with. To the extent either the
report or any other information that may become available to the
Agents shall disclose any hazards, costs or liabilities under
Environmental Laws or otherwise that the Agents deem material,
the Agents shall be satisfied that such hazards, costs or
liabilities were adequately reflected in the Borrower's
financial reserves shown on the financial statements included in
the Information Memorandum or that, to the extent not so
reflected, the Borrower has made adequate provision for such
hazards, costs or liabilities.
(xiii) Evidence of insurance naming the Collateral Agent
as additional insured and loss payee with such responsible and
reputable insurance companies or associations, and in such
amounts and covering such risks, as is satisfactory to the
Lender Parties, including, without limitation, business
interruption insurance.
(xiv) Certified copies of all Material Contracts of each
Loan Party and its Subsidiaries as the Agents shall request.
(xv) A Borrowing Base Certificate.
(xvi) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, counsel for the Loan Parties, in substantially the form
of Exhibit H hereto and as to such other matters as any Lender
Party through the Administrative Agent may reasonably request.
(xvii) Favorable opinion of local counsel to the Lender
Parties listed in Schedule V hereto in the jurisdictions listed
in Schedule V hereto in form and substance satisfactory to the
Lender Parties.
(xviii) A favorable opinion of Shearman & Sterling,
counsel for the Agents, in form and substance satisfactory to
the Agents.
(xix) Evidence satisfactory to the Agents that the
Acquired Business shall be owned by AT Korea free and clear of
all Liens (other than Permitted Liens).
(b) The Agents and the Lender Parties shall have completed a due
diligence investigation of the business, assets, operations, properties,
condition (financial or otherwise), contingent liabilities, prospects
and material agreements of the Borrower, Anam and their respective
subsidiaries and the Acquired Business in scope, and with results,
satisfactory to the Lender Parties and nothing shall have come to the
attention of the Agents and the Lender Parties during the course of such
due diligence investigation to lead them to believe (i) that the
Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect, (ii) that, following the
consummation of the Acquisition, the Borrower and its Subsidiaries would
not have good and marketable title to all material assets of the
Acquired Business, free and clear of Liens other than Liens permitted
under the Loan Documents, and (iii) the Acquisition or the Anam Equity
Investment will have a Material Adverse Effect; without limiting the
generality of the foregoing, the Agents and the Lender Parties shall
have been given
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such access to the management, records, books of account, contracts and
properties of the Borrower and its Subsidiaries as they shall have
requested.
(c) The Transaction Documents shall not have been altered,
amended or otherwise changed or supplemented in any material respect or
any condition therein waived without the prior written consent of the
Lender Parties; and the Transactions shall have been consummated in
accordance with the terms of the Transaction Documents and in compliance
with applicable law and regulatory approvals.
(d) The Lender Parties shall be reasonably satisfied with the
terms and conditions of the Equity Issuance and the Subordinated Debt
Issuance. The Borrower shall have received gross cash proceeds of up to
$410,000,000 but in any event not less than $400,000,000 from the
issuance of the Common Stock and at least $225,000,000 from the issuance
of the Convertible Subordinated Debt; and a portion of the Net Cash
Proceeds of the Common Stock shall have been used to make the AT Korea
Cash Equity Investment, and a portion of the Net Cash Proceeds of the
Common Stock, together with the Net Cash Proceeds from the Convertible
Subordinated Debt, shall have been set aside to make a cash common
equity contribution of $309,000,000 to Anam.
(e) Before giving effect to the Transactions, there shall have
occurred no Material Adverse Change since December 31, 1999.
(f) There shall not have occurred any material disruption of or
material adverse change in loan syndication, financial, banking or
capital market conditions that, in the reasonable judgment of any Agent,
could materially disrupt or impair the Equity Issuance, the Subordinated
Debt Issuance or the syndication of the Commitments or would make it
impractical or inadvisable to proceed with the syndication or funding of
the Commitments, and a banking moratorium shall not have been declared
by Federal or New York State banking officials.
(g) All governmental, shareholder and third party consents
(including, without limitation, ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ clearance) and
approvals (including, without limitation, any such consents and
approvals required with respect to the Korean restructuring of Anam's
liabilities) necessary or, in the reasonable opinion of the Agents,
desirable in connection with the Transactions shall have been obtained
(without the imposition of any conditions that are not acceptable to the
Agents) and shall remain in effect; all applicable waiting periods in
connection with the Transactions shall have expired without any action
being taken by any competent authority that could restrain, prevent or
impose any material adverse conditions on the Transactions or the
Borrower and its subsidiaries or that could reasonably be expected to
seek or threaten any of the foregoing shall have occurred, and no law or
regulation shall be applicable which in the reasonable judgment of the
Agents could have such effect.
(h) There shall exist no action, suit, investigation, or
proceeding affecting any Loan Party or any of its Subsidiaries pending
or, to the knowledge of the Borrower, threatened in any court or before
any arbitrator or governmental authority that (i) could reasonably be
expected to have a Material Adverse Effect or (ii) purports to affect
the legality, validity or enforceability of any Transaction Document or
consummation of the Transactions.
(i) The Lender Parties shall be satisfied with the terms,
conditions and status of the Korean restructuring of Anam's liabilities
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(j) The Lender Parties shall have received evidence reasonably
satisfactory to them that the Advances hereunder shall be rated at least
BB-/Ba3 by Standard & Poor's and ▇▇▇▇▇'▇.
(k) The Lender Parties shall be reasonably satisfied that (i)
the Borrower and its Subsidiaries will be able to meet their obligations
under all Plans, Multiemployer Plans and Welfare Plans, (ii) the Plans
of the Borrower and its ERISA Affiliates are, in all material respects,
funded in accordance with the minimum statutory requirements, (iii) no
"reportable event" (as defined in ERISA, but excluding events for which
reporting has been waived) has occurred as to any such Plan,
Multiemployer Plans and Welfare Plans, and (iv) no termination of, or
withdrawal from, any such Plan, Multiemployer Plans and Welfare Plans,
has occurred or is contemplated that could reasonably be expected to
result in a material liability.
(l) The Lender Parties shall be reasonably satisfied that all of
the assets of Guardian and each of its direct and indirect Subsidiaries
shall be free and clear of any Lien, other than Liens permitted under
the Loan Documents.
(m) The Borrower shall have paid all accrued fees of the Agents
and the Lender Parties and all accrued expenses of the Agents (including
the accrued fees and expenses of advisors and counsel to the Agents and
local counsel for the Lender Parties).
(n) The Lender Parties shall be reasonably satisfied with the
corporate and legal structure and capitalization of each Loan Party and
each of its Subsidiaries the Equity Interests in which Subsidiaries is
being pledged pursuant to the Loan Documents, including the terms and
conditions of the charter, bylaws and each class of Equity Interest in
each Loan Party and each such Subsidiary and of each agreement or
instrument relating to such structure or capitalization.
(o) The Lender Parties shall be satisfied that all Existing
Debt, other than Surviving Debt, has been prepaid, redeemed or defeased
in full or otherwise satisfied and extinguished and all commitments
relating thereto terminated and that all such Surviving Debt shall be on
terms and conditions reasonably satisfactory to the Lender Parties.
(p) The Lender Parties shall be satisfied that, all single
purpose Subsidiaries of the Borrower holding inventory and receivables
shall have been merged into the Borrower on terms reasonably
satisfactory to the Agents.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance and
Renewal. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by an Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.03(c)) on the occasion of each Borrowing (including
the initial Borrowing), each Commitment Increase, and the obligation of each
Issuing Bank to issue a Letter of Credit (including the initial issuance) or
renew a Letter of Credit, shall be subject to the further conditions precedent
that on the date of such Borrowing or the Applicable Increase Date or issuance
or renewal (a) the following statements shall be true (and each of the giving of
the applicable Notice of Borrowing, request for Commitment Increase, Notice of
Issuance or Notice of Renewal and the acceptance by the Borrower of the proceeds
of such Borrowing or of such Letter of Credit or the renewal of such Letter of
Credit shall constitute a representation and warranty by the Borrower that both
on the date of such notice and on the date of such Borrowing, such Increase Date
or issuance or renewal such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date, before and after giving
effect to such Borrowing, such Increase Date or issuance or renewal and
to the application of the proceeds therefrom, as though made on and as
of
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such date other than any such representations or warranties that, by
their terms, refer to a specific date other than such Borrowing,
issuance or renewal, in which case as of such specific date;
(ii) no event has occurred and is continuing, or would result
from such Borrowing, such Increase Date or issuance or renewal or from
the application of the proceeds therefrom, that constitutes a Default;
and
(iii) for each Revolving Credit Advance or issuance or renewal
of any Letter of Credit, the sum of the Loan Values of the Eligible
Collateral exceeds the aggregate principal amount of the Revolving
Credit Advances plus Letter of Credit Advances to be outstanding plus
the aggregate Available Amount of all Letters of Credit to be
outstanding after giving effect to such Advance or issuance or renewal,
respectively;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative Agent
may reasonably request.
SECTION 3.03. Conditions precedent to the release of the proceeds of the
initial Extension of Credit. The Collateral Agent shall release the funds
deposited in the Cash Collateral Account (as defined in the Security Agreement)
to the Borrower or at its direction in the following installments:
(x) An installment of $600,000,000 to be onlent by the Borrower to AT
Korea and used to pay an equal amount in respect of the price of the
Acquisition, and
(y) The balance of the funds in the Cash Collateral Account to be used
to make the Additional Anam Equity Investments on the dates and the amounts set
forth in Preliminary Statement (3).
Each installment shall only be released if the following conditions been
satisfied as of each date of release:
(i) the representations and warranties made by the Borrower and
the other Loan Parties contained in each Loan Document are correct in
all material respects on and as of such date, before and after giving
effect to the release and to the application of the proceeds therefrom,
as though made on and as of such date, other than any such
representations or warranties that, by their terms, refer to a specific
date other than the date of such release, in which case as of such
specific date;
(ii) no Default has occurred and is continuing, or would result
from such release or from the application of the proceeds therefrom; and
(iii) the Borrower shall have delivered to the Collateral Agent
a certificate to the effect that (a) the proceeds from each installment
shall be applied as set forth in clauses (x) and (y) respectively and
(b) the statements in clause (i) and (ii) are true as of such date.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall
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not have made available to the Administrative Agent such Lender Party's ratable
portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, (ii) is duly
qualified and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed except where
the failure to so qualify or be licensed could not be reasonably likely
to have a Material Adverse Effect and (iii) has all requisite corporate
power and authority (including, without limitation, all governmental
licenses, permits and other approvals) to own or lease and operate its
properties and to carry on its business as now conducted and as proposed
to be conducted. All of the outstanding Equity Interests in the Borrower
have been validly issued and are non-assessable.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as of the
date hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of its Equity
Interests authorized, and the number outstanding, on the date hereof and
the percentage of each such class of its Equity Interests owned
(directly or indirectly) by such Loan Party and the number of shares
covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof. All of the outstanding
Equity Interests in each Loan Party's Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned by such Loan
Party or one or more of its Subsidiaries free and clear of all Liens,
except those created under the Collateral Documents.
(c) The execution, delivery and performance by each Loan Party
of each Transaction Document to which it is or is to be a party, and the
consummation of the transactions contemplated by the Transaction
Documents, are within such Loan Party's corporate powers, have been duly
authorized by all necessary corporate action, and do not (i) contravene
such Loan Party's charter or bylaws, (ii) violate any law, rule,
regulation (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with or
result in the breach of, or constitute a default under, any contract,
loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties or (iv) except for the Liens
created under the Loan Documents and Permitted Liens, result in or
require the creation or imposition of any Lien upon or with respect to
any of the properties of any Loan Party or any of its Subsidiaries. No
Loan Party or any of its Subsidiaries is in violation of any such law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which could be reasonably likely
to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due
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execution, delivery, recordation, filing or performance by any Loan
Party of any Transaction Document to which it is or is to be a party, or
for the consummation of the transactions contemplated by the Transaction
Documents, (ii) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents, (iii) the perfection or
maintenance of the Liens created under the Collateral Documents
(including the first priority nature thereof) or (iv) the exercise by
any Agent or any Lender Party of its rights under the Loan Documents or
the remedies in respect of the Collateral pursuant to the Collateral
Documents, except for the authorizations, approvals, actions, notices
and filings listed on Schedule 4.01(d) hereto, all of which have been
duly obtained, taken, given or made and are in full force and effect.
All applicable waiting periods in connection with the Transactions have
expired without any action having been taken by any competent authority
restraining, preventing or imposing materially adverse conditions upon
the Transactions or the rights of the Loan Parties or their Subsidiaries
freely to transfer or otherwise dispose of, or to create any Lien on,
any properties now owned or hereafter acquired by any of them. The
Transactions have been consummated in accordance with the Transaction
Documents and applicable law.
(e) This Agreement has been, and each other Transaction Document
when delivered hereunder will have been, duly executed and delivered by
each Loan Party party thereto. This Agreement is, and each other
Transaction Document when delivered hereunder will be, the legal, valid
and binding obligation of each Loan Party party thereto, enforceable
against such Loan Party in accordance with its terms.
(f) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries,
including any Environmental Action, pending or threatened before any
court, governmental agency or arbitrator that (i) would be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of any Transaction Document or the
consummation of the transactions contemplated by the Transaction
Documents.
(g) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1998, and the related Consolidated
statement of income and Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended,
accompanied by an unqualified opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, independent
public accountants, and the Consolidated balance sheet of the Borrower
and its Subsidiaries as at December 31, 1999, and the related
Consolidated statement of income and Consolidated statement of cash
flows of the Borrower and its Subsidiaries for the twelve months then
ended, duly certified by the chief financial officer of the Borrower,
copies of which have been furnished to each Lender Party, fairly present
the Consolidated financial condition of the Borrower and its
Subsidiaries as at such dates and the Consolidated results of operations
of the Borrower and its Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accounting principles
applied on a consistent basis, and since December 31, 1999, there has
been no Material Adverse Change.
(h) The Consolidated pro forma balance sheet of the Borrower and
its Subsidiaries as at December 31, 1999, and the related Consolidated
pro forma statements of income and cash flows of the Borrower and its
Subsidiaries for the twelve months then ended, certified by the chief
financial officer of the Borrower, copies of which have been furnished
to each Lender Party, fairly present the Consolidated pro forma
financial condition of the Borrower and its Subsidiaries as at such date
and the Consolidated pro forma results of operations of the Borrower and
its Subsidiaries for the period ended on such date, in each case giving
effect to the Transactions contemplated by the Transaction Documents,
all in accordance with GAAP.
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(i) The Consolidated forecasted balance sheet, statement of
income and statement of cash flows of the Borrower and its Subsidiaries
delivered to the Lender Parties pursuant to Section 3.01(a)(xi) or 5.03
were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair in the light of conditions existing
at the time of delivery of such forecasts, and represented, at the time
of delivery, the Borrower's best estimate of its future financial
performance.
(j) Neither the Information Memorandum nor any other
information, exhibit or report furnished by or on behalf of any Loan
Party to any Agent or any Lender Party in connection with the
negotiation of the Loan Documents or pursuant to the terms of the Loan
Documents contained any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements made therein
not misleading.
(k) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance or drawings under any Letter of Credit will be
used to purchase or carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock.
(l) Neither any Loan Party nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any
Loan Party 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",
as such terms are defined in the Public Utility Holding Company Act of
1935, as amended. Neither the making of any Advances, nor the issuance
of any Letters of Credit, nor the application of the proceeds or
repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated by the Transaction Documents, will violate any
provision of any such Act or any rule, regulation or order of the
Securities and Exchange Commission thereunder.
(m) Neither any Loan Party nor any of its Subsidiaries is a
party to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or corporate
restriction that could be reasonably likely to have a Material Adverse
Effect.
(n) The Collateral Documents create a valid and perfected first
priority security interest in the Collateral subject only to Permitted
Liens, securing the payment of the Secured Obligations, and all filings
and other actions necessary or desirable to perfect and protect such
security interest have been duly taken. The Loan Parties are the legal
and beneficial owners of the Collateral free and clear of any Lien,
except for the liens and security interests created or permitted under
the Loan Documents.
(o) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(p) (i) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(ii) Neither any Loan Party nor any ERISA Affiliate has incurred
or is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan.
(iii) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been
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terminated, within the meaning of Title IV of ERISA, and no such
Multiemployer Plan is reasonably expected to be in reorganization or to
be terminated, within the meaning of Title IV of ERISA.
(iv) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan, copies of which have
been filed with the Internal Revenue Service and furnished to the Lender
Parties, is complete and accurate and fairly presents the funding status
of such Plan, and since the date of such Schedule B there has been no
material adverse change in such funding status.
(v) Set forth on Schedule 4.01(p) hereto is a complete and
accurate list of all Plans, Multiemployer Plans and Welfare Plans.
(q) (i) The operations and properties of each Loan Party and
each of its Subsidiaries comply in all material respects with all
applicable Environmental Laws and Environmental Permits, all past
non-compliance with such Environmental Laws and Environmental Permits
has been resolved without ongoing obligations or costs, and no
circumstances exist that could be reasonably likely to (A) form the
basis of an Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties that could have a Material
Adverse Effect or (B) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(ii) None of the properties currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property; there
are no and never have been any underground or aboveground storage tanks
or any surface impoundments, septic tanks, pits, sumps or lagoons in
which Hazardous Materials are being or have been treated, stored or
disposed on any property currently owned or operated by any Loan Party
or any of its Subsidiaries or, to the best of its knowledge, on any
property formerly owned or operated by any Loan Party or any of its
Subsidiaries; there is no asbestos or asbestos-containing material on
any property currently owned or operated by any Loan Party or any of its
Subsidiaries; and Hazardous Materials have not been released, discharged
or disposed of on any property currently or formerly owned or operated
by any Loan Party or any of its Subsidiaries.
(iii) Neither any Loan Party nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together with
other potentially responsible parties, any investigation or assessment
or remedial or response action relating to any actual or threatened
release, discharge or disposal of Hazardous Materials at any site,
location or operation, either voluntarily or pursuant to the order of
any governmental or regulatory authority or the requirements of any
Environmental Law; and all Hazardous Materials generated, used, treated,
handled or stored at, or transported to or from, any property currently
or formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner not reasonably expected
to result in material liability to any Loan Party or any of its
Subsidiaries.
(r) (i) Each Loan Party and each of its Subsidiaries has filed,
has caused to be filed or has been included in all tax returns (Federal,
state, local and foreign) required to be filed and has paid all taxes
shown thereon to be due, together with applicable interest and
penalties.
(ii) Set forth on Part I of Schedule 4.01(r) hereto is a
complete and accurate list, as of the date hereof, of each taxable year
of each Loan Party and each of its Subsidiaries for which Federal income
tax returns have been filed and for which the expiration of the
applicable statute
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of limitations for assessment or collection has not occurred by reason
of extension or otherwise (an "OPEN YEAR").
(iii) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal income tax liability of each Loan Party and
each of its Subsidiaries proposed by the Internal Revenue Service with
respect to Open Years equals $ 0. No issues have been raised by the
Internal Revenue Service in respect of Open Years that, in the
aggregate, could be reasonably likely to have a Material Adverse Effect.
(iv) The aggregate unpaid amount, as of the date hereof, of
adjustments to the state, local and foreign tax liability of each Loan
Party and its Subsidiaries proposed by all state, local and foreign
taxing authorities (other than amounts arising from adjustments to
Federal income tax returns) equals $ 0. No issues have been raised by
such taxing authorities that, in the aggregate, could be reasonably
likely to have a Material Adverse Effect.
(v) No "ownership change" as defined in Section 382(g) of the
Internal Revenue Code, and no event that would result in the application
of the "separate return limitation year" or "consolidated return change
of ownership" limitations under the Federal income tax consolidated
return regulations, has occurred with respect to the Borrower or the
Acquired Business since May 1, 1998.
(s) Neither the business nor the properties of any Loan Party or
any of its Subsidiaries are affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance) that could be reasonably likely to
have a Material Adverse Effect.
(t) Set forth on Schedule 4.01(t) hereto is a complete and
accurate list of all Existing Debt, showing as of the date hereof the
principal amount outstanding thereunder.
(u) Set forth on Schedule 4.01(u) hereto is a complete and
accurate list of all Surviving Debt, showing as of the date hereof the
principal amount outstanding thereunder, the maturity date thereof and
the amortization schedule therefor.
(v) Set forth on Schedule 4.01(v) hereto is a complete and
accurate list of all real property owned by any Loan Party or any of its
Subsidiaries, showing as of the date hereof the street address, county
or other relevant jurisdiction, state, record owner and book and
estimated fair value thereof. Each Loan Party or such Subsidiary has
good, marketable and insurable fee simple title to such real property,
free and clear of all Liens, other than Liens created or permitted by
the Loan Documents.
(w) Set forth on Schedule 4.01(w) hereto is a complete and
accurate list of all leases of real property under which any Loan Party
or any of its Subsidiaries is the lessee, showing as of the date hereof
the street address, county or other relevant jurisdiction, state,
lessor, lessee, expiration date and annual rental cost thereof. Each
such lease is the legal, valid and binding obligation of the lessor
thereof, enforceable in accordance with its terms.
(x) Set forth on Schedule 4.01(x) hereto is a complete and
accurate list of all Investments held by any Loan Party or any of its
Subsidiaries on the date hereof, showing as of the date hereof the
amount, obligor or issuer and maturity, if any, thereof.
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(y) Set forth on Schedule 4.01(y) hereto is a complete and
accurate list of all patents, trademarks, trade names, service marks and
copyrights, and all applications therefor and licenses thereof, of each
Loan Party or any of its Subsidiaries, showing as of the date hereof the
jurisdiction in which registered, the registration number, the date of
registration and the expiration date.
(z) Set forth on Schedule 4.01(z) hereto is a complete and
accurate list of all Material Contracts of each Loan Party and its
Subsidiaries, showing as of the date hereof the parties, subject matter
and term thereof. Each such Material Contract has been duly authorized,
executed and delivered by all parties thereto, has not been amended or
otherwise modified, is in full force and effect and is binding upon and
enforceable against all parties thereto in accordance with its terms,
and there exists no default under any Material Contract by any party
thereto that has or would be likely to have a Material Adverse Effect.
(aa) The Borrower has (i) initiated a review and assessment of
all areas within its and each of its Subsidiaries' business and
operations (including those affected by suppliers, vendors and
customers) that could be adversely affected by the risk that computer
applications used by the Borrower or any of its Subsidiaries (or
suppliers, vendors and customers) may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and
any date after December 31, 1999 (the "YEAR 2000 PROBLEM"), (ii)
developed a plan and timetable for addressing the Year 2000 Problem on a
timely basis and (iii) to date, implemented that plan in accordance with
such timetable. Based on the foregoing, the Borrower believes that all
computer applications (including those of its suppliers, vendors and
customers) that are material to its or any of its Subsidiaries' business
and operations are reasonably expected on a timely basis to be able to
perform properly date-sensitive functions for all dates before and after
January 1, 2000 ("YEAR 2000 COMPLIANT"), except to the extent that a
failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(bb) The proceeds of the Advances and the issuances of Letters
of Credit shall be available (and the Borrower agrees that it shall use
such proceeds and Letters of Credit) solely for the purposes set forth
in Section 2.14.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of
1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to pay or discharge any such tax,
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assessment, charge or claim that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and
renew and cause each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that neither
the Borrower nor any of its Subsidiaries shall be required to undertake
any such cleanup, removal, remedial or other action to the extent that
its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect
to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance (including, without limitation,
business interruption insurance) with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its existence, legal structure, legal name, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises;
provided, however, that the Borrower and its Subsidiaries may consummate
mergers or consolidations permitted under Section 5.02(d) and provided
further that neither the Borrower nor any of its Subsidiaries shall be
required to preserve any right, permit, license, approval, privilege or
franchise if the Board of Directors of the Borrower or such Subsidiary
shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Borrower or such Subsidiary, as the
case may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary or the Lender Parties.
(f) Visitation Rights. At any reasonable time and from time to
time during regular business hours and on reasonable notice, permit any
of the Agents or any of the Lender Parties or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent certified
public accountants, provided, however, that any proprietary information
shall only be disclosed with appropriate safeguard measures as may be
mutually agreed to by the Borrower and the Agents.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
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(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary than
it would obtain in a comparable arm's-length transaction with a Person
not an Affiliate.
The following items shall not be transactions with
affiliates and, therefore, will not be subject to the provisions of
the prior paragraph:
(A) any employment agreement or arrangement entered into
by the Borrower or any of its Restricted Subsidiaries or any
employee benefit plan available to the employees of the Borrower
and its Subsidiaries generally, in each case in the ordinary
course of business and consistent with the past practice of the
Borrower or such Restricted Subsidiary;
(B) transactions between or among the Borrower and/or
its Restricted Subsidiaries;
(C) payment of reasonable directors fees to Persons who
are not otherwise Affiliates of the Borrower and indemnity
provided on behalf of officers, directors and employees of the
Borrower or any of its Restricted Subsidiaries as determined in
good faith by the Board of Directors of the Borrower;
(D) any transaction specifically contemplated by the
Related Documents, as amended to the extent permitted under
Section 5.02(k); and
(E) any restricted payments that are permitted by
Section 5.02(g) hereof.
(j) Covenant to Guarantee Obligations and Give Security. Upon
(x) the request of the Collateral Agent following the occurrence and
during the continuance of a Default, (y) the formation or acquisition of
any new direct or indirect Subsidiaries by any Loan Party or (z) the
acquisition of any property by any Loan Party, and such property, in the
judgment of the Collateral Agent, shall not already be subject to a
perfected first priority security interest in favor of the Collateral
Agent for the benefit of the Secured Parties, then the Borrower shall,
in each case at the Borrower's expense:
(i) (A) in connection with the formation or acquisition
of a Domestic Subsidiary (other than an Unrestricted
Subsidiary), within 10 days after such formation or acquisition,
cause each such Subsidiary, and cause each direct and indirect
parent of such Subsidiary (if it has not already done so), to
duly execute and deliver to the Collateral Agent a guaranty or
guaranty supplement, in form and substance satisfactory to the
Collateral Agent, guaranteeing the other Loan Parties'
obligations of the Borrower and the other Subsidiary Guarantors
under the Loan Documents, (B) in connection with the formation
or acquisition of a Foreign Subsidiary (other than an
Unrestricted Subsidiary), within 10 days after such formation or
acquisition, cause each such Subsidiary, and cause each direct
and indirect parent of such Subsidiary (if it is a Foreign
Subsidiary and if it has not already done so), to duly execute
and deliver to the Collateral Agent a guaranty or guaranty
supplement, in form and substance satisfactory to the Collateral
Agent, guaranteeing the obligations of AT Korea and the other
Intercompany Guarantors under the Loan Documents,
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(ii) within 10 Business Days after such request,
formation or acquisition, furnish to the Collateral Agent a
description of the real and personal properties of the Domestic
Subsidiaries and their respective Subsidiaries in detail
satisfactory to the Agent,
(iii) within 15 Business Days after such request,
formation or acquisition, duly execute and deliver, and cause
each such Domestic Subsidiary and each direct and indirect
parent of such Subsidiary (if it has not already done so) to
duly execute and deliver, to the Collateral Agent mortgages,
pledges, assignments, security agreement supplements and other
security agreements, as specified by and in form and substance
satisfactory to the Collateral Agent, securing payment of all
the Obligations of the applicable Loan Party, such Subsidiary or
such parent, as the case may be, under the Loan Documents and
constituting Liens on all such properties,
(iv) in connection with either (A) the formation or
acquisition of an Unrestricted Subsidiary or (B) the formation
or acquisition by the Borrower or any Domestic Subsidiary of a
Foreign Subsidiary, in each case, within 10 days after such
formation or acquisition, pledge and deliver, or cause such
Domestic Subsidiary to pledge and deliver, certificates
representing all of the capital stock of any such Unrestricted
Subsidiary or, in the case of any such Foreign Subsidiary, 66%
of the capital stock of each such Foreign Subsidiary to the
extent the pledge of any greater percentage would result in
adverse tax consequences to the Borrower;
(v) within 30 days after such request, formation or
acquisition, take, and cause such Domestic Subsidiary or such
parent to take, whatever action (including, without limitation,
the recording of mortgages, the filing of Uniform Commercial
Code financing statements, the giving of notices and the
endorsement of notices on title documents) may be necessary or
advisable in the opinion of the Collateral Agent to vest in the
Collateral Agent (or in any representative of the Collateral
Agent designated by it) valid and subsisting Liens on the
properties purported to be subject to the mortgages, pledges,
assignments, security agreement supplements and security
agreements delivered pursuant to this Section 5.01(j),
enforceable against all third parties in accordance with their
terms,
(vi) within 60 days after such request, formation or
acquisition, deliver to the Collateral Agent, upon the request
of the Collateral Agent in its sole discretion, a signed copy of
a favorable opinion, addressed to the Collateral Agent and the
other Secured Parties, of counsel for the Loan Parties
acceptable to the Collateral Agent as to the matters contained
in clauses (i), (iii) and (iv) above, as to such guaranties,
guaranty supplements, mortgages, pledges, assignments, security
agreement supplements and security agreements being legal, valid
and binding obligations of each Loan Party thereto enforceable
in accordance with their terms and as to such other matters as
the Collateral Agent may reasonably request,
(vii) as promptly as practicable after such request,
formation or acquisition, deliver, upon the request of the
Collateral Agent in its sole discretion, to the Collateral Agent
with respect to each parcel of real property owned or held by
the entity that is the subject of such request, formation or
acquisition title reports, surveys and engineering, soils and
other reports, and environmental assessment reports, each in
scope, form and substance satisfactory to the Collateral Agent,
provided, however, that to the extent that any Loan Party or any
of its Subsidiaries shall have otherwise received any of the
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foregoing items with respect to such real property, such items
shall, promptly after the receipt thereof, be delivered to the
Collateral Agent,
(viii) upon the occurrence and during the continuance of
a Default under Section 6.01(a) or 6.01(f) or any Event of
Default, promptly cause to be deposited any and all cash
dividends paid or payable to it or any of its Subsidiaries from
any of its Subsidiaries from time to time into the Collateral
Account, and with respect to all other dividends paid or payable
to it or any of its Subsidiaries from time to time, promptly
execute and deliver, or cause such Subsidiary to promptly
execute and deliver, as the case may be, any and all further
instruments and take or cause such Subsidiary to take, as the
case may be, all such other action as the Collateral Agent may
deem necessary or desirable in order to obtain and maintain from
and after the time such dividend is paid or payable a perfected,
first priority lien on and security interest in such dividends,
and
(ix) at any time and from time to time, promptly execute
and deliver any and all further instruments and documents and
take all such other action as the Collateral Agent may deem
necessary or desirable in obtaining the full benefits of, or in
perfecting and preserving the Liens of, such guaranties,
mortgages, pledges, assignments, security agreement supplements
and security agreements.
(k) Further Assurances. (i) Promptly upon request by any Agent,
or any Lender Party through the Administrative Agent, correct any
material defect or error that may be discovered in any Loan Document or
in the execution, acknowledgment, filing or recordation thereof, and
(ii) Promptly upon request by any Agent, or any Lender Party
through the Administrative Agent, do, execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register any and all
such further acts, deeds, conveyances, pledge agreements, mortgages,
deeds of trust, trust deeds, assignments, financing statements and
continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments as any Agent,
or any Lender Party through the Administrative Agent, may reasonably
require from time to time in order to (A) carry out more effectively the
purposes of the Loan Documents, (B) to the fullest extent permitted by
applicable law, subject any Loan Party's or any of its Domestic
Subsidiaries' properties, assets, rights or interests to the Liens now
or hereafter intended to be covered by any of the Collateral Documents
and to the extent Foreign Subsidiaries shall not suffer adverse tax
consequences, subject any of such Foreign Subsidiaries' properties,
assets, rights or interests to the Liens now or hereafter intended to be
covered by any of the Collateral Documents, (C) perfect and maintain the
validity, effectiveness and priority of any of the Collateral Documents
and any of the Liens intended to be created thereunder and (D) assure,
convey, grant, assign, transfer, preserve, protect and confirm more
effectively unto the Secured Parties the rights granted or now or
hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any
Loan Document to which any Loan Party or any of its Subsidiaries is or
is to be a party.
(l) Performance of Related Documents. Perform and observe all of
the terms and provisions of each Related Document to be performed or
observed by it, maintain each such Related Document in full force and
effect, enforce such Related Document in accordance with its terms and,
upon request of the Administrative Agent, make to each other party to
each such Related Document such demands and requests for information and
reports or for action as the Borrower or any of its Subsidiaries is
entitled to make under such Related Document.
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(m) Preparation of Environmental Reports. At the reasonable
request of the Book Manager or the Collateral Agent from time to time,
provide to the Lender Parties within 90 days after such request, at the
expense of the Borrower, an environmental site assessment report for any
of its or its Subsidiaries' properties described in such request,
prepared by an environmental consulting firm acceptable to the Book
Manager or the Collateral Agent, indicating the presence or absence of
Hazardous Materials and the estimated cost of any compliance, removal or
remedial action in connection with any Hazardous Materials on such
properties; without limiting the generality of the foregoing, if the
Book Manager or the Collateral Agent determines at any time that a
material risk exists that any such report will not be provided within
the time referred to above, the Book Manager or the Collateral Agent may
retain an environmental consulting firm to prepare such report at the
expense of the Borrower, and the Borrower hereby grants and agrees to
cause any Subsidiary that owns any property described in such request to
grant at the time of such request, to the Agents, the Lender Parties,
such firm and any agents or representatives thereof an irrevocable
non-exclusive license, subject to the rights of tenants, to enter onto
their respective properties to undertake such an assessment.
(n) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which the Borrower or any of its Subsidiaries is a party,
keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be
forfeited or canceled, notify the Administrative Agent of any default by
any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and cause
each of its Subsidiaries to do so except, in any case, where the failure
to do so, either individually or in the aggregate, could not be
reasonably likely to have a Material Adverse Effect.
(o) Collateral Accounts. Maintain, and cause each of its
Subsidiaries to maintain, main Collateral Accounts with SG and Pledged
Accounts into which all proceeds of Collateral are paid with SG or one
or more banks acceptable to the Collateral Agent that have accepted the
assignment of such accounts to the Collateral Agent pursuant to the
Security Agreement.
(p) Performance of Material Contracts. Perform and observe all
the terms and provisions of each Material Contract to be performed or
observed by it, maintain each such Material Contract in full force and
effect, enforce each such Material Contract in accordance with its terms
and, upon request of the Administrative Agent, make to each other party
to each such Material Contract such demands and requests for information
and reports or for action as the Borrower or any of its Subsidiaries is
entitled to make under such Material Contract, and cause each of its
Subsidiaries to do so except, in any case, where the failure to do so,
either individually or in the aggregate, could not be reasonably likely
to have a Material Adverse Effect.
(q) Further Performance. Perform all material contractual
obligations under any agreement relating to the Anam Equity Investment
or the Korean Restructuring. In particular, make a $30,000,000 equity
investment in the cash common equity of Anam on June 30, 2000, an
additional $60,000,000 equity investment in the cash common equity of
Anam on August 31, 2000 and an additional $60,000,000 equity investment
in the cash common equity of Anam on September 30, 2000.
(r) Conditions Subsequent. (i) Deliver to the Administrative
Agent as soon as possible and in any event no later than May 31, 2000
the Anam Shares or take, as soon as possible and in any event no later
than May 31, 2000, any other action necessary for the Lender Parties to
have a valid and first priority perfected security interest in the Anam
Shares;
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(ii) deliver to the Administrative Agent on or before the 30th
day after the Effective Date (or as provided below), the following, each
dated such day (unless otherwise specified) in form and substance
satisfactory to the Lenders: Deeds of trust, trust deeds, mortgages,
leasehold mortgages and leasehold deeds of trust covering the properties
listed on Schedules 4.01(v) and 4.01(w) hereto (together with the
Assignments of Leases and Rents referred to therein and each other
mortgage delivered pursuant to Section 5.01(j), in each case as amended,
the "MORTGAGES"), duly executed by the appropriate Loan Party, together
with:
(A) evidence that counterparts of the Mortgages have
been duly recorded in all filing or recording offices that the
Administrative Agent may deem necessary or desirable in order to
create a valid first and subsisting Lien on the property
described therein in favor of the Collateral Agent for the
benefit of the Secured Parties and that all filing and recording
taxes and fees have been paid,
(B) fully paid American Land Title Association Lender's
Extended Coverage title insurance policies (the "MORTGAGE
POLICIES") in form and substance, with endorsements and in
amount acceptable to the Administrative Agent, issued, coinsured
and reinsured by title insurers acceptable to the Administrative
Agent, insuring the Mortgages to be valid first and subsisting
Liens on the property described therein, free and clear of all
defects (including, but not limited to, mechanics' and
materialmen's Liens) and encumbrances, excepting only Permitted
Encumbrances, and providing for such other affirmative insurance
(including endorsements for future advances under the Loan
Documents and for mechanics' and materialmen's Liens) and such
coinsurance and direct access reinsurance as the Administrative
Agent may deem necessary or desirable,
(C) American Land Title Association form surveys
certified to the Administrative Agent and the issuer of the
Mortgage Policies in a manner reasonably satisfactory to the
Administrative Agent by a land surveyor duly registered and
licensed in the States in which the property described in such
surveys is located and acceptable to the Administrative Agent,
showing all buildings and other improvements, any off-site
improvements, the location of any easements, parking spaces,
rights of way, building set-back lines and other dimensional
regulations and the absence of encroachments, either by such
improvements or on to such property, and other defects, other
than encroachments and other defects reasonably acceptable to
the Administrative Agent,
(D) engineering, soils and other reports as to the
properties described in the Mortgages, in form and substance and
from professional firms reasonably acceptable to the
Administrative Agent,
(E) the Assignments of Leases and Rents referred to in
the Mortgages, duly executed by the appropriate Loan Party,
(F) such consents and agreements of lessors and other
third parties, and such estoppel letters and other
confirmations, as the Administrative Agent may reasonably deem
necessary or desirable,
(G) evidence of the insurance required by the terms of
the Mortgages, and
(H) evidence that all other action that the
Administrative Agent may reasonably deem necessary or desirable
in order to create valid first and subsisting Liens on the
property described in the Mortgages has been taken and
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(iii) deliver to the Administrative Agent no later than May 31,
2000 any landlord waiver or consent required to be delivered pursuant
this Agreement; and
(iv) to the extent that the gross cash proceeds received by the
Borrower from the issuance of the Common Stock prior to the Initial
Extension of Credit is less than $410,000,000, the Borrower shall have
received the full amount of the shortfall in such gross cash proceeds on
or before May 5, 2000.
(s) Ledger. The Borrower shall maintain or cause to be
maintained at its address specified in Section 8.02 hereof a ledger or
ledgers as evidence of Debt permitted pursuant to Section 5.02(b)(ii).
SECTION 5.02. Negative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Restricted Subsidiaries to create, incur, assume or
suffer to exist, any Lien on or with respect to any of its properties of
any character (including, without limitation, accounts) whether now
owned or hereafter acquired, or sign or file or suffer to exist, or
permit any of its Restricted Subsidiaries to sign or file or suffer to
exist, under the Uniform Commercial Code of any jurisdiction, a
financing statement that names the Borrower or any of its Subsidiaries
as debtor, or sign or suffer to exist, or permit any of its Restricted
Subsidiaries to sign or suffer to exist, any security agreement
authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Restricted Subsidiaries to
assign, any accounts or other right to receive income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on
Schedule 5.02(a) hereto;
(iv) purchase money Liens upon or in real property or
equipment acquired or held by the Borrower or any of its
Restricted Subsidiaries in the ordinary course of business to
secure the purchase price of such property or equipment or to
secure Debt incurred solely for the purpose of financing the
acquisition, construction or improvement of any such property or
equipment to be subject to such Liens, or Liens existing on any
such property or equipment at the time of acquisition (other
than any such Liens created in contemplation of such acquisition
that do not secure the purchase price), or extensions, renewals
or replacements of any of the foregoing for the same or a lesser
amount; provided, however, that no such Lien shall extend to or
cover any property other than the property or equipment being
acquired, constructed or improved, and no such extension,
renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or
replaced; and provided further that the aggregate principal
amount of the Debt secured by Liens permitted by this clause
(iv) shall not exceed the amount permitted under Section
5.02(b)(i)D or (b)(iv)A at any time outstanding;
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(v) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(i)D or (b)(iv)A; provided that
no such Lien shall extend to or cover any Collateral or assets
other than the assets subject to such Capitalized Leases; and
(vi) the replacement, extension or renewal of any Lien
permitted by clause (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct
or contingent obligor) of the Debt secured thereby.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of its
Restricted Subsidiaries to create, incur, assume or suffer to exist, any Debt,
except:
(i) in the case of the Borrower,
(A) Debt in respect of Hedge Agreements incurred in the
ordinary course of business and consistent with prudent business
practice with an aggregate Agreement Value not to exceed
$400,000,000 at any time outstanding, provided that the
aggregate Agreement Value of Debt in respect of clause (ii) of
the definition of Hedge Agreements shall not exceed $100,000,000
at any time outstanding,
(B) Subordinated Debt owed to a wholly owned Restricted
Subsidiary of the Borrower, which Debt (x) shall constitute
Pledged Debt, (y) shall be on terms reasonably acceptable to the
Administrative Agent and (z) shall be evidenced by promissory
notes in form and substance satisfactory to the Administrative
Agent and such promissory notes shall be pledged as security for
the Obligations under the Loan Documents of the holder thereof
and delivered to the Collateral Agent pursuant to the terms of
the Security Agreement,
(C) the 2000 Convertible Subordinated Notes, the
Convertible Subordinated Notes and the Existing Notes,
(D) Debt secured by Liens permitted by 5.02(a)(iv) and
Capitalized Leases not to exceed in the aggregate $75,000,000 at
any time outstanding for all Debt under this clause (i)(D),
(E) other Debt provided that the aggregate principal
amount of such other Debt outstanding at any time does not
exceed $25,000,000 and
(ii) (A) in the case of any Restricted Subsidiary of the
Borrower that is a Domestic Subsidiary, Subordinated Debt owed to the
Borrower or to a Restricted Subsidiary that is a Domestic Subsidiary of
the Borrower, provided that, in each case, such Debt (x) shall
constitute Pledged Debt, (y) shall be on terms reasonably acceptable to
the Administrative Agent and (z) shall be evidenced by promissory notes
in form and substance satisfactory to the Administrative Agent and such
promissory notes shall be pledged as security for the Obligations under
the Loan Documents of the holder thereof and delivered to the Collateral
Agent pursuant to the terms of the Security Agreement or alternatively
shall be documented in any other way reasonably satisfactory to the
Administrative Agent pursuant to which the Administrative Agent shall
have a valid and perfected security interest in such Debt provided,
however, that notwithstanding the foregoing, no promissory note shall be
created to evidence any such Debt, unless such
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promissory note shall be forthwith pledged as security for the
Obligations under the Loan Documents of the holder thereof and delivered
to the Collateral Agent pursuant to the terms of the Security Agreement.
(B) in the case of any Restricted Subsidiary of the Borrower
that is a Foreign Subsidiary, Debt owed to the Borrower or to a
Restricted Subsidiary and provided that, in each case, such Debt (x)
shall constitute Pledged Debt, (y) shall be on terms reasonably
acceptable to the Administrative Agent and (z) shall be evidenced by
promissory notes in form and substance satisfactory to the
Administrative Agent and such promissory notes shall be pledged as
security for the Obligations under the Loan Documents of the holder
thereof and delivered to the Collateral Agent pursuant to the terms of
the Security Agreement or alternatively shall be documented in any other
way reasonably satisfactory to the Administrative Agent pursuant to
which the Administrative Agent shall have a valid and perfected security
interest in such Debt provided, however, that notwithstanding the
foregoing, no promissory note shall be created to evidence any such
Debt, unless such promissory note shall be forthwith pledged as security
for the Obligations under the Loan Documents of the holder thereof and
delivered to the Collateral Agent pursuant to the terms of the Security
Agreement, and
(iii) in the case of the Borrower and its Restricted
Subsidiaries,
(A) Debt under the Loan Documents,
(B) the Surviving Debt, and any Debt extending the
maturity of, or refunding or refinancing, in whole or in part,
any Surviving Debt, provided that the terms of any such
extending, refunding or refinancing Debt, and of any agreement
entered into and of any instrument issued in connection
therewith, are otherwise permitted by the Loan Documents,
provided further that the principal amount of such Surviving
Debt shall not be increased above the principal amount thereof
outstanding immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors therefor
shall not be changed, as a result of or in connection with such
extension, refunding or refinancing, provided still further that
the terms relating to principal amount, amortization, maturity,
collateral (if any) and subordination (if any), and other
material terms taken as a whole, of any such extending,
refunding or refinancing Debt, and of any agreement entered into
and of any instrument issued in connection therewith, are no
less favorable in any material respect to the Loan Parties or
the Lender Parties than the terms of any agreement or instrument
governing the Surviving Debt being extended, refunded or
refinanced and the interest rate applicable to any such
extending, refunding or refinancing Debt does not exceed the
then applicable market interest rate,
(C) Debt arising from the endorsement of negotiable
instruments for deposit or collection or similar transactions in
the ordinary course of business, and
(D) Debt of any Person existing at the time such Person
is merged with or into Borrower or such Restricted Subsidiary,
to the extent permitted as a merger under Section 5.02(d) and an
Investment under Section 5.02(f), provided that such Debt is not
incurred in connection with or in contemplation of such merger,
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(iv) in the case of the Restricted Subsidiaries of the Borrower,
(A) Debt secured by Liens permitted by Section
5.02(a)(iv) and Capitalized Leases not to exceed an aggregate
amount of $30,000,000 at any time outstanding for all Debt
permitted under this clause (iv)(A), and
(B) other Debt provided that the aggregate principal
amount of such other Debt outstanding at any time does not
exceed $10,000,000.
(c) Change in Nature of Business. Enter or permit any of its
Restricted Subsidiaries to enter into any line of business other than
the line of business presently conducted and/or lines of business
reasonably related or supplementary thereto or reasonable extensions
thereof, as determined by the board of directors of the Borrower from
time to time.
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Restricted
Subsidiaries to do so, except that:
(i) any Restricted Subsidiary of the Borrower may merge
into or consolidate with any other Restricted Subsidiary of the
Borrower, provided that, in the case of any such merger or
consolidation, the Person formed by such merger or consolidation
shall be a wholly owned Restricted Subsidiary of the Borrower,
provided further that, in the case of any such merger or
consolidation to which a Subsidiary Guarantor or an Intercompany
Guarantor, as the case may be, is a party, the Person formed by
such merger or consolidation shall be a Subsidiary Guarantor or
an Intercompany Guarantor, as the case may be;
(ii) in connection with any acquisition permitted under
Section 5.02(f)(viii), any Restricted Subsidiary of the Borrower
may merge into or consolidate with any other Person or permit
any other Person to merge into or consolidate with it; provided
that the Person surviving such merger shall be a wholly owned
Restricted Subsidiary of the Borrower provided further that, in
the case of any such merger or consolidation to which a
Subsidiary Guarantor or an Intercompany Guarantor, as the case
may be, is a party, the Person formed by such merger or
consolidation shall be a Subsidiary Guarantor or an Intercompany
Guarantor, as the case may be; and
(iii) any Restricted Subsidiary may merge into another
Person in connection with the disposition of all its assets to
the extent permitted under Section 5.02(e);
provided, however, that in each case, immediately before and after giving effect
thereto, no event shall occur and be continuing that constitutes a Default and,
in the case of any such merger to which the Borrower is a party, the Borrower is
the surviving corporation.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Restricted Subsidiaries to sell, lease,
transfer or otherwise dispose of, any assets, or grant any option or
other right to purchase (to the extent the exercise of such option or
right to purchase would result in a transaction not otherwise permitted
under this Section 5.02(e)), lease or otherwise acquire any assets other
than Inventory to be sold in the ordinary course of its business,
except:
(i) sales of Inventory in the ordinary course of its
business;
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(ii) in a transaction authorized by subsection (d) of
this Section 5.02;
(iii) sales of assets for cash and for fair value in an
aggregate amount not to exceed $25,000,000 in any Fiscal Year;
(iv) sales of surplus, damaged, worn or obsolete
furniture, equipment in the ordinary course of business;
(v) sales or other dispositions of Investments permitted
by Section 5.02(f);
(vi) sales or discounts without recourse of accounts
receivables arising in the ordinary course of business in
connection with the collection or compromise thereof;
(vii) sales of licenses or sublicenses by the Borrower
or such Restricted Subsidiary of its patents, copyrights,
trademarks, tradenames and service marks in the ordinary course
of business and which do not materially interfere with the
business of the Borrower or any Restricted Subsidiary; and
(viii) transfers of any interest in property through the
granting of a Lien permitted under Section 5.02(a).
provided that in the case of sales of assets pursuant to clause (iii) or (v)
above, the Borrower shall, so long as any Term Advances shall be outstanding, on
the 180th day after the date of receipt by any Loan Party or any of its
Subsidiaries of the Net Cash Proceeds from such sale, prepay the Advances in an
amount equal to the amount of such Net Cash Proceeds not reinvested in like
assets during such 180-day period pursuant to, and in the order of priority set
forth in, Section 2.06(b)(ii), as specified therein.
(f) Investments in Other Persons. Make or hold, or permit any of
its Restricted Subsidiaries to make or hold, any Investment in any
Person, except,
(i) Investments by the Borrower and its Restricted
Subsidiaries in their Subsidiaries outstanding on the date
hereof;
(ii) loans and advances (excluding property consisting
of Equity Interests in the Borrower) to employees in the
ordinary course of the business of the Borrower and its
Restricted Subsidiaries as presently conducted in an aggregate
principal amount not to exceed $15,000,000 at any time
outstanding;
(iii) Investments by the Borrower and its Restricted
Subsidiaries in Cash Equivalents;
(iv) Investments existing on the date hereof and
described on Schedule 4.01(x) hereto;
(v) the Anam Equity Investments;
(vi) Investments by the Borrower in Hedge Agreements
permitted under Section 5.02(b)(i)(A);
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(vii) Investments consisting of intercompany Debt (x)
permitted under Section 5.02(b)(i)(B) or 5.02(b)(ii)(A) or (y)
permitted under 5.02(b)(ii)(B) used for working capital purposes
and for Capital Expenditures so long as, immediately after
giving effect thereto, the Borrower shall be in compliance with
the covenants contained in Sections 5.02(o) and 5.04(a);
(viii) other Investments in Subsidiaries and other
entities (other than Anam, Newco and Newco Successor) in an
aggregate amount invested not to exceed (i) $125,000,000 (which
amount may, notwithstanding the preceding provisions of this
clause (viii), include an Investment of up to $50,000,000 in
Newco by the Borrower in contemplation of the Fab Transaction)
in the twelve month period commencing on the Effective Date,
(ii) $75,000,000 in the twelve month period immediately
succeeding the period referred to in clause (i) and (iii)
$100,000,000 in any subsequent twelve month period during the
term of this Agreement (together with any Investments made
pursuant to subsection (i)); provided that with respect to
Investments made under this clause (viii): (1) any newly
acquired or organized Subsidiary of the Borrower or any of its
Subsidiaries shall be a wholly owned Subsidiary thereof; (2)
immediately before and after giving effect thereto, no Default
shall have occurred and be continuing or would result therefrom;
(3) any company or business acquired or invested in pursuant to
this clause (viii) shall be in the same line of business as the
business of the Borrower or any of its Subsidiaries or lines of
business reasonably related or supplementary thereto or
reasonable extensions thereof; (4) immediately after giving
effect to the acquisition of a company or business pursuant to
this clause (viii), the Borrower shall be in pro forma
compliance with the covenants contained in Section 5.04,
calculated based on the financial statements most recently
delivered to the Lender Parties pursuant to Section 5.03 and as
though such acquisition had occurred at the beginning of the
four-quarter period covered thereby, as evidenced by a
certificate of the Chief Financial Officer of the Borrower
delivered to the Lender Parties demonstrating such compliance.
In addition, in the case of any Investment in, or resulting in
the formation or acquisition of, an Unrestricted Subsidiary, (x)
such Investment in such Unrestricted Subsidiary shall comply
with the requirements set forth in Schedule IV hereto and (y)
such Investment shall be made with common equity of the Borrower
or a portion of the Net Cash Proceeds of the issuance of common
equity of the Borrower to the extent permitted under Section
5.02(g);
(ix) Investments received (a) in satisfaction of
judgments and (b) as payment on a claim made in connection with
any bankruptcy, liquidations, receivership or other insolvent
proceeding;
(x) Investments in (a) negotiable instruments held for
collection within the ordinary course of business, (b) accounts
receivable arising in the ordinary course of business (and
Investments obtained in exchange or settlement of accounts
receivable for which the Borrower or such Subsidiary has
determined collection is not likely) and (c) operating leases,
deposits, utility and workers' compensation, performance and
other similar deposits arising in the ordinary course of
business;
(xi) Investments consisting of the transfer of the
semi-conductor wafer fabrication assets and associated exchange
of shares made as part of the Fab Transaction;
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(xii) Investments made from the proceeds of, or in
exchange for, the issuance of Equity Interests of the Borrower
to the extent not required to be prepaid pursuant to Section
2.06(b)(iii); and
(xiii) Investments received by the Borrower or such
Restricted Subsidiary in connection with the bankruptcy or
reorganization of customers and suppliers and in settlement of
delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business.
(g) Restricted Payments. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its Equity
Interests now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent Persons thereof) as
such, make any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent
Persons thereof) as such or issue or sell any Equity Interests (other
than common stock, options, warrants, convertible or exchangeable
securities or other rights for the purchase or other acquisition of
common stock of the Borrower or preferred stock of the Borrower (to the
extent such preferred stock does not contain terms which are materially
more restrictive (or provide the holders thereof materially greater
rights) than the series A preferred stock, the terms of which are
attached hereto as Schedule 5.02(g) or options, warrants, convertible or
exchangeable securities or other rights for the purchase or other
acquisition of such preferred stock), or permit any of its Restricted
Subsidiaries to do any of the foregoing, or permit any of its Restricted
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire
for value any Equity Interests in the Borrower or to issue or sell any
Equity Interests therein, except that, so long as no Default shall have
occurred and be continuing at the time of any action described below or
would result therefrom:
(i) the Borrower may (A) declare and pay dividends and
distributions payable only in capital stock of the Borrower, (B)
issue shares of its common stock as consideration for
Investments made pursuant to Section 5.02(f)(viii), (C) except
to the extent the Net Cash Proceeds thereof are required to be
applied to the prepayment of the Advances pursuant to Section
2.06(b), purchase, redeem, retire, defease or otherwise acquire
shares of its capital stock with the proceeds received
contemporaneously from, or in exchange for, the issue of new
shares of its capital stock with equal or inferior voting
powers, designations, preferences and rights and (D) except to
the extent the Net Cash Proceeds thereof are required to be
applied to the prepayment of the Advances pursuant to Section
2.06(b), issue and sell shares of its common stock in connection
with the making of an Investment pursuant to Section
5.02(f)(viii) so long as the Net Cash Proceeds thereof are used
within 90 days after the receipt thereof to make such Investment
or to prepay the Advances pursuant to Section 2.06;
(ii) any Subsidiary of the Borrower may (A) declare and
pay cash dividends to the Borrower and (B) declare and pay
dividends to any Restricted Subsidiary of which it is a
Subsidiary and (C) accept capital contributions from its parent
to the extent permitted under Section 5.02(f)(viii);
(iii) the Borrower may pay any premium consisting of
Equity Interests of the Borrower to any holder of Convertible
Subordinated Notes or 2000 Convertible Subordinated Notes in
connection with the conversion by such holder of such
Convertible Subordinated Notes or 2000 Convertible Subordinated
Notes or may honor exchange offers in respect of Equity
Interests in connection with the Convertible Subordinated Notes
or the 2000 Convertible Subordinated Notes;
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(iv) the Borrower may make any payment on or with
respect to, or in connection with, the redemption or repurchase
and retirement of Subordinated Debt in exchange for, or out of
the Net Cash Proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Borrower) of, Equity
Interests of the Borrower in a maximum aggregate amount not to
exceed $20,000,000; provided, however, that any mandatory
prepayments of Advances required under Section 2.06(b) shall
have been made;
(v) the Borrower may effect any repurchase, redemption
or other acquisition or retirement for value of any Equity
Interests of the Borrower or any Restricted Subsidiary held by
any employee of the Borrower or any Restricted Subsidiary
pursuant to any employee equity subscription agreement, stock
ownership plan or stock option agreement in effect from time to
time in the event of the death or termination of such Employee;
provided that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests shall not exceed
$1,000,000 in any twelve-month period and $5,000,000 in the
aggregate;
(vi) the Borrower may make that portion of Investments
the payment for which consists of exclusively of Equity
Interests of the Borrower, provided, however, that any mandatory
prepayments of Advances required under 2.06(b) shall have been
made;
(vii) the Borrower may make other cash payments not
otherwise permitted under this Section 5.02(g) in an aggregate
amount not to exceed $10,000,000; and
(viii) the repurchase of Equity Interests of the
Borrower deemed to occur (excluding any payment in cash) upon
the exercise of stock options if such Equity Interests represent
a portion of the exercise price thereof.
(h) Amendments of Constitutive Documents. Amend, or permit any
of its Restricted Subsidiaries to amend, its certificate of
incorporation or bylaws or other constitutive documents except for any
amendment that could not be reasonably expected to adversely affect the
rights or interests of the Lender Parties, provided that any such
amendment shall be delivered to the Administrative Agent at least 3
Business Days before the date such Amendment is to become effective.
(i) Accounting Changes. Make or permit, or permit any of its
Restricted Subsidiaries to make or permit, any change in (i) accounting
policies or reporting practices, except as permitted by generally
accepted accounting principles or (ii) Fiscal Year.
(j) Prepayments, Etc., of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Debt, except (i) the prepayment of the Advances in accordance
with the terms of this Agreement and (ii) regularly scheduled or
required repayments or redemptions of Surviving Debt, or amend, modify
or change in any manner any term or condition of any Surviving Debt or
Subordinated Debt, or permit any of its Restricted Subsidiaries to do
any of the foregoing other than to prepay the Debt payable to the
Borrower; provided that the Borrower may honor any holders request to
convert any Convertible Subordinated Notes or 2000 Convertible
Subordinated Notes in accordance with their respective terms (and make
any payment in connection therewith representing the value of any
fractional share); and provided further, that the Borrower may make any
payment, on or with respect to, or in connection with, the legal
defeasance, redemption, repurchase or repayment of Debt of the Borrower
or any
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Restricted Subsidiary with the Net Cash Proceeds from the incurrence of
refinancing Debt permitted by Section 5.02(b)(iii)(B).
(k) Amendment, Etc., of Related Documents. Cancel or terminate
any Related Document or consent to or accept any cancellation or
termination thereof, amend, modify or change in any manner any term or
condition of any Related Document or give any consent, waiver or
approval thereunder, waive any default under or any breach of any term
or condition of any Related Document, agree in any manner to any other
amendment, modification or change of any term or condition of any
Related Document or take any other action in connection with any Related
Document that in each case would impair the value of the interest or
rights of any Loan Party thereunder or that would impair the rights or
interests of any Agent or any Lender Party, or permit any of its
Restricted Subsidiaries to do any of the foregoing.
(l) Negative Pledge. Enter into or suffer to exist, or permit
any of its Restricted Subsidiaries to enter into or suffer to exist, any
agreement prohibiting or conditioning the creation or assumption of any
Lien upon any of its property or assets except (i) in favor of the
Secured Parties or (ii) in connection with (A) any Surviving Debt, (B)
any purchase money Debt permitted by Section 5.02(b)(iii)(B) solely to
the extent that the agreement or instrument governing such Debt
prohibits a Lien on the property acquired with the proceeds of such
Debt, or (C) any Capitalized Lease permitted by Section 5.02(b)(iii)(C)
solely to the extent that such Capitalized Lease prohibits a Lien on the
property subject thereto.
(m) Partnerships, Etc. Become a general partner in any general
or limited partnership or joint venture, or permit any of its Restricted
Subsidiaries to do so, except in connection with any Investment by a
Restricted Subsidiary permitted by Section 5.02(f)(viii), provided that
such Restricted Subsidiary's sole asset consists of such interest in
such partnership or joint venture.
(n) Speculative Transactions. Engage, or permit any of its
Restricted Subsidiaries to engage, in any transaction involving
commodity options or futures contracts or any similar speculative
transactions for speculative purposes.
(o) Capital Expenditures. Make, or permit any of its Restricted
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the Borrower and its
Restricted Subsidiaries in any period set forth below to exceed the
amount set forth below for such period;
FISCAL YEAR ENDING AMOUNT
------------------ --------------
December 31, 2000 $ 550,000,000
December 31, 2001 $ 500,000,000
December 31, 2002 $ 625,000,000
December 31, 2003 $ 725,000.000
December 31, 2004 $ 950,000,000
December 31, 2005 $1,025,000,000
provided, however, that the unused portion of Capital Expenditures
permitted in any Fiscal Year and not used in such period may be carried
over and added to the amount otherwise permitted in the immediately
succeeding Fiscal Year, provided further, that the aggregate amount of
Capital Expenditures in such immediately succeeding Fiscal Year after
such carry-over shall not exceed 125% of the amount of Capital
Expenditures permitted for such Fiscal Year (prior to any carry-over).
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(p) Formation of Subsidiaries. Organize or invest, or permit any
Subsidiary to organize or invest, in any new Subsidiary except as
permitted under Section 5.02(f)(i), (viii) and (xi) and except for the
entities and amounts listed on Schedule 5.02(p) hereto; provided,
however, that Unrestricted Subsidiaries shall not be permitted to
organize or invest in any Restricted Subsidiary.
(q) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Restricted Subsidiaries to enter into or suffer to exist, any agreement
or arrangement limiting the ability of any of its Subsidiaries to
declare or pay dividends or other distributions in respect of its Equity
Interests or repay or prepay any Debt owed to, make loans or advances
to, or otherwise transfer assets to or invest in, the Borrower or any
Subsidiary of the Borrower (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant
or otherwise), except (i) the Loan Documents and (ii) any agreement or
instrument evidencing Surviving Debt.
(r) Amendment, Etc., of Material Contracts. Cancel or terminate
any Material Contract or consent to or accept any cancellation or
termination thereof, amend or otherwise modify any Material Contract or
give any consent, waiver or approval thereunder, waive any default under
or breach of any Material Contract, agree in any manner to any other
amendment, modification or change of any term or condition of any
Material Contract or take any other action in connection with any
Material Contract that would impair the value of the interest or rights
of any Loan Party thereunder or that would impair the interest or rights
of any Agent or any Lender Party, or permit any of its Subsidiaries to
do any of the foregoing except, in each of the foregoing cases where to
do so would not have a Material Adverse Effect.
SECTION 5.03. Reporting Requirements. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will furnish to the Agents and the Lender
Parties:
(a) Default and Prepayment Notices. (i) As soon as possible and
in any event within five Business Days after an officer of the Borrower
becomes aware of the occurrence of a Default or any event, development
or occurrence reasonably likely to have a Material Adverse Effect
continuing on the date of such statement, a statement of the chief
financial officer of the Borrower setting forth details of such Default
and the action that the Borrower has taken and proposes to take with
respect thereto, and (ii) as soon as possible and in any event no later
than 11:00 A.M. (New York City time) at least three Business Days before
any prepayment of Term Advances is to be made by the Borrower pursuant
to Section 2.06 (the "PREPAYMENT DATE"), written notice of the principal
amount of such prepayment (the "PREPAYMENT AMOUNT") and the applicable
Prepayment Date. Each such notice (a "PREPAYMENT NOTICE") shall be by
telex or telecopier or otherwise as provided in Section 8.02.
(b) Annual Financials. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
including therein Consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such Fiscal Year and
Consolidated and consolidating statements of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for such
Fiscal Year, in each case accompanied by an opinion acceptable to the
Required Lenders of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or other independent public
accountants of recognized standing acceptable to the Required Lenders,
together with (i) a certificate of such accounting firm to the Lender
Parties stating that in the course of the regular audit of the business
of the
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Borrower and its Subsidiaries, which audit was conducted by such
accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that a Default
has occurred and is continuing, or if, in the opinion of such accounting
firm, a Default has occurred and is continuing, a statement as to the
nature thereof, (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by such accountants in
determining, as of the end of such Fiscal Year, compliance with the
covenants contained in Section 5.04, provided that in the event of any
change in GAAP used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the determination of
compliance with Section 5.04, a statement of reconciliation conforming
such financial statements to GAAP and provided further that the Borrower
shall also provide, to the extent necessary, a balance sheet, statement
of income and statement of cash flows that will exclude the Unrestricted
Subsidiaries that existed during such reporting period and (iii) a
certificate of the chief financial officer of the Borrower stating that
no Default has occurred and is continuing or, if a Default has occurred
and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto.
(c) Quarterly Financials. As soon as available and in any event
within 45 days after the end of each of the first three quarters of each
Fiscal Year, an unaudited Consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such quarter and an unaudited
Consolidated statement of income and an unaudited Consolidated statement
of cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal quarter and ending with the
end of such fiscal quarter and an unaudited Consolidated statement of
income and an unaudited Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of
the previous Fiscal Year and ending with the end of such quarter,
setting forth in each case in comparative form the corresponding figures
for the corresponding period of the preceding Fiscal Year, all in
reasonable detail and duly certified (subject to year-end audit
adjustments) by the chief financial officer of the Borrower as having
been prepared in accordance with GAAP, together with (i) a certificate
of said officer stating that no Default has occurred and is continuing
or, if a Default has occurred and is continuing, a statement as to the
nature thereof and the action that the Borrower has taken and proposes
to take with respect thereto and (ii) a schedule in form satisfactory to
the Administrative Agent of the computations used by the Borrower in
determining compliance with the covenants contained in Section 5.04,
provided that in the event of any change in GAAP used in the preparation
of such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.04, a
statement of reconciliation conforming such financial statements to GAAP
and provided further that the Borrower shall also provide, to the extent
necessary, a balance sheet, statement of income and statement of cash
flows that will exclude the Unrestricted Subsidiaries that existed
during such reporting period.
(d) Annual Business Plan and Forecasts. As soon as available and
in any event no later than 15 days before the end of each Fiscal Year, a
business plan and forecasts prepared by management of the Borrower of
balance sheets, income statements and cash flow statements on a monthly
basis for the Fiscal Year following such Fiscal Year and on an annual
basis for each Fiscal Year thereafter until the Termination Date.
(e) Litigation. Promptly after the commencement thereof, notice
of all actions, suits, investigations, litigation and proceedings before
any court or governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, affecting any Loan Party or any
of its Subsidiaries of the type described in Section 4.01(f).
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(f) Securities Reports. Promptly after the sending or filing
thereof, copies of the Borrower's Reports on Form 10-K and Form 10-Q.
(g) Creditor Reports. Promptly after the furnishing thereof,
copies of any statement or report furnished to any holder of Debt
securities of any Loan Party or of any of its Subsidiaries pursuant to
the terms of any indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Lender Parties pursuant to any
other clause of this Section 5.03.
(h) Agreement Notices. Promptly upon receipt thereof, copies of
all notices, requests and other documents received by any Loan Party or
any of its Subsidiaries under or pursuant to any Related Document or
Material Contract or instrument, indenture, loan or credit or similar
agreement and, from time to time upon request by the Administrative
Agent, such information and reports regarding the Related Documents, the
Material Contracts and such instruments, indentures and loan and credit
and similar agreements as the Administrative Agent may reasonably
request.
(i) Revenue Agent Reports. Within 30 days after receipt, copies
of all Revenue Agent Reports (Internal Revenue Service Form 886), or
other written proposals of the Internal Revenue Service, that propose,
determine or otherwise set forth positive adjustments to the Federal
income tax liability of the affiliated group (within the meaning of
Section 1504(a)(1) of the Internal Revenue Code) of which the Borrower
is a member aggregating $1,000,000 or more.
(j) Tax Certificates. Promptly, and in any event within five
Business Days after the due date (with extensions) for filing the final
Federal income tax return in respect of each taxable year, a certificate
(a "TAX CERTIFICATE"), signed by the President or the chief financial
officer of the Borrower, stating that the Borrower has paid to the
Internal Revenue Service or other taxing authority, the full amount that
such affiliated group is required to pay in respect of Federal income
tax for such year.
(k) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and
in any event within 10 days after any Loan Party or any ERISA Affiliate
knows or has reason to know that any ERISA Event has occurred, a
statement of the chief financial officer of the Borrower describing such
ERISA Event and the action, if any, that such Loan Party or such ERISA
Affiliate has taken and proposes to take with respect thereto and (B) on
the date any records, documents or other information must be furnished
to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA,
a copy of such records, documents and information.
(ii) Plan Terminations. Promptly and in any event within two
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any
Plan.
(iii) Multiemployer Plan Notices. Promptly and in any event
within five Business Days after receipt thereof by any Loan Party or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each
notice concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the
amount of liability incurred, or that may be incurred, by such Loan
Party or any ERISA Affiliate in connection with any event described in
clause (A) or (B).
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(iv) Plan Annual Reports. Promptly and in any event within 30
days after the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual report (Form
5500 Series) with respect to each Plan.
(l) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental
Law.
(m) Real Property. As soon as available and in any event within
30 days after the end of each Fiscal Year, a report supplementing
Schedules 4.01(v) and 4.01(w) hereto, including an identification of all
owned and leased real property disposed of by the Borrower or any of its
Subsidiaries during such Fiscal Year, a list and description (including
the street address, county or other relevant jurisdiction, state, record
owner, book value thereof, and in the case of leases of property,
lessor, lessee, expiration date and annual rental cost thereof) of all
real property acquired or leased during such Fiscal Year and a
description of such other changes in the information included in such
Schedules as may be necessary for such Schedules to be accurate and
complete.
(n) Insurance. As soon as available and in any event within 30
days after the end of each Fiscal Year, a report summarizing the
insurance coverage (specifying type, amount and carrier) in effect for
the Borrower and its Subsidiaries and containing such additional
information as any Agent, or any Lender Party through the Administrative
Agent, may reasonably specify.
(o) Borrowing Base Certificate. Within five Business Days after
the end of each quarter, a Borrowing Base Certificate, as at the end of
the previous quarter, certified by the chief financial officer of the
Borrower.
(p) Information Regarding Acquisitions by Anam. Concurrently
with the issuance by Anam of any Equity Interests to fund any
acquisition to be made by it, the business and financial information
(including any fairness opinion and financial projections) used by the
board of directors of Anam in approving such acquisition.
(q) Year 2000 Compliance. Promptly after the Borrower's
discovery or determination thereof, notice (in reasonable detail) that
any computer application (including those of its suppliers, vendors and
customers) that is material to its or any of its Subsidiaries' business
and operations will not be Year 2000 Compliant (as defined in Section
4.01(aa)), except to the extent that such failure could not reasonably
be expected to have a Material Adverse Effect.
(r) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as
any Agent, or any Lender Party through the Administrative Agent, may
from time to time reasonably request, including information relating to
the Borrower's hedging policy, provided, however, that any proprietary
information shall only be disclosed with appropriate safeguard measures
as may be mutually agreed to by the Borrower and the Agents.
(s) Fab Certificate. At least 15 Business Days prior to the
occurrence of the Fab Transaction, the Borrower shall deliver reasonably
complete information in sufficient detail to permit the Lender Parties
to evaluate the Fab Transaction together with a certificate from the
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chief financial officer (or equivalent officer) of the Borrower as to
the satisfaction of clause (v) of the definition of the Fab Transaction.
SECTION 5.04. Financial Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will:
(a) Fixed Charge Coverage Ratio. Maintain at all times a Fixed
Charge Coverage Ratio of not less than the amount set forth below for
each period set forth below:
QUARTER ENDING RATIO
-------------- -----
December 31, 2000 1.00:1
March 31, 2001 1.00:1
June 30, 2001 1.10:1
September 30, 2001 1.20:1
December 31, 2001 1.30:1
March 31, 2002 1.40:1
June 30, 2002 1.40:1
September 30, 2002 1.40:1
December 31, 2002 1.40:1
March 31, 2003 1.50:1
June 30, 2003 1.50:1
September 30, 2003 1.50:1
December 31, 2003 1.50:1
March 31, 2004 1.50:1
June 30, 2004 1.50:1
September 30, 2004 1.50:1
December 31, 2004 1.50:1
March 31, 2005 1.75:1
June 30, 2005 1.75:1
September 30, 2005 1.75:1
(b) Leverage Ratio. Maintain at all times a Leverage Ratio of
not more than the amount set forth below for each period set forth
below:
QUARTER ENDING RATIO
-------------- -----
June 30, 2000 3.00:1
September 30, 2000 3.00:1
December 31, 2000 2.75:1
March 31, 2001 2.75:1
June 30, 2001 2.75:1
September 30, 2001 2.50:1
December 31, 2001 2.50:1
March 31, 2002 2.50:1
June 30, 2002 2.50:1
September 30, 2002 2.50:1
December 31, 2002 2.50:1
March 31, 2003 2.25:1
June 30, 2003 2.25:1
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September 30, 2003 2.25:1
December 31, 2003 2.25:1
March 31, 2004 2.00:1
June 30, 2004 2.00:1
September 30, 2004 2.00:1
December 31, 2004 2.00:1
March 31, 2005 2.00:1
June 30, 2005 2.00:1
September 30, 2005 2.00:1
(c) Interest Coverage Ratio. Maintain at all times an Interest
Coverage Ratio of not less than the amount set forth below for each
period set forth below:
QUARTER ENDING RATIO
-------------- -----
June 30, 2000 3.75:1
September 30, 2000 3.75:1
December 31, 2000 4.00:1
March 31, 2001 4.00:1
June 30, 2001 4.00:1
September 30, 2001 4.00:1
December 31, 2001 4.00:1
March 31, 2002 4.00:1
June 30, 2002 4.00:1
September 30, 2002 4.00:1
December 31, 2002 4.00:1
March 31, 2003 4.00:1
June 30, 2003 4.00:1
September 30, 2003 4.00:1
December 31, 2003 4.00:1
March 31, 2004 4.00:1
June 30, 2004 4.00:1
September 30, 2004 4.00:1
December 31, 2004 4.00:1
March 31, 2005 4.00:1
June 30, 2005 4.00:1
September 30, 2005 4.00:1
(d) Tangible Net Worth. The Borrower will not permit Tangible Net
Worth at any time to be less than (i) 90% of the Tangible Net Worth
on the Effective Date after giving affect to the Transaction plus
(ii) 50% of the sum of net income for each fiscal quarter beginning
with the first quarter after the Effective Date (without reduction
for losses) plus (iii) the amount of Net Cash Proceeds from issuances
of Equity Interests that the Borrower is entitled to keep pursuant to
Section 2.06 (b)(iii).
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("EVENTS
OF DEFAULT") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower
shall fail to pay any interest on any Advance, or any Loan Party shall
fail to make any other payment under any Loan Document, in each case
under this clause (ii) within 3 Business Days after the same becomes due
and payable; or
(b) any representation or warranty made by any Loan Party (or
any of its officers) under or in connection with any Loan Document shall
prove to have been incorrect in any material respect when made; or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in ▇▇▇▇▇▇▇ ▇.▇▇, ▇.▇▇(▇), (▇), (▇), (▇)
or (r), 5.02, 5.03 or 5.04; provided that, in the case of Section 5.03,
any such failure shall remain unremedied for three Business Days after
the earlier date of which (A) a Responsible Officer becomes aware of
such failure or (B) written notice shall have been given to the Borrower
by any Agent or Lender Party; or
(d) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part
to be performed or observed if such failure shall remain unremedied for
15 Business Days after the earlier of the date on which (A) a
Responsible Officer becomes aware of such failure or (B) written notice
thereof shall have been given to the Borrower by any Agent or any Lender
Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to pay
any principal of, premium or interest on or any other amount payable in
respect of any Debt that is outstanding in a principal amount (or, in
the case of any Hedge Agreement, an Agreement Value) of at least
$10,000,000 either individually or in the aggregate (but excluding Debt
outstanding hereunder) of such Loan Party or such Subsidiary (as the
case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Debt; or any other event (other than a permitted redemption under
Section 5.02(g)(iv) or (v)) shall occur or condition shall exist under
any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt
or otherwise to cause, or to permit the holder thereof to cause, such
Debt to mature; or any such Debt shall be declared to be due and payable
or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or
an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity thereof;
or
(f) any Loan Party or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it) that is being
diligently contested
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by it in good faith, either such proceeding shall remain undismissed or
unstayed for a period of 30 days or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or any substantial part of its property)
shall occur; or any Loan Party or any of its Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
subsection (f); or
(g) any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against any Loan Party or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 15 consecutive Business Days during which a stay
of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against
any Loan Party or any of its Subsidiaries that could be reasonably
likely to have a Material Adverse Effect, and there shall be any period
of 15 consecutive Business Days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be
valid and binding on or enforceable against any Loan Party party to it,
or any such Loan Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to
Section 3.01 or 5.01(j) shall for any reason (other than pursuant to the
terms thereof) cease to create a valid and perfected first priority lien
on and security interest in the Collateral purported to be covered
thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the
ERISA Affiliates related to such ERISA Event) exceeds $10,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
$10,000,000 or requires payments exceeding $1,000,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or termination
the aggregate annual contributions of the Loan Parties and the ERISA
Affiliates to all Multiemployer Plans that are then in reorganization or
being terminated have been or will be increased over the amounts
contributed to such Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding $10,000,000;
or
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(o) Anam, Newco or Newco Successor shall enter into or engage in
any line of business unrelated to lines of business in which Anam is
engaged on the Effective Date (other than with respect to Anam
Electronics, Inc.) or Newco or Newco Successor is engaged as a result of
the Fab Transaction;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by an Issuing Bank
or a Revolving Credit Lender pursuant to Section 2.03(c) and of each Issuing
Bank to issue Letters of Credit to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent, of
the Required Lenders, (A) by notice to the Borrower, declare the Notes, all
interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower, (B) by notice to each
party required under the terms of any agreement in support of which a Standby
Letter of Credit is issued, request that all Obligations under such agreement be
declared to be due and payable and (c) by notice to each Issuing Bank, direct
such Issuing Bank to deliver a Default Termination Notice to the beneficiary of
each Standby Letter of Credit issued by it, and each Issuing Bank shall deliver
such Default Termination Notices; provided, however, that in the event of an
actual or deemed entry of an order for relief with respect to the Borrower under
the Federal Bankruptcy Code, (x) the Commitments of each Lender Party and the
obligation of each Lender Party to make Advances (other than Letter of Credit
Advances by an Issuing Bank or a Revolving Credit Lender pursuant to Section
2.03(c) and of each Issuing Bank to issue Letters of Credit shall automatically
be terminated and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default.
If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Collateral Agent on behalf of the Lender
Parties in same day funds at the Collateral Agent's office designated in such
demand, for deposit in the L/C Collateral Account, an amount equal to the
aggregate Available Amount of all Letters of Credit then outstanding. If at any
time the Administrative Agent or the Collateral Agent determines that any funds
held in the L/C Collateral Account are subject to any right or claim of any
Person other than the Agents and the Lender Parties or that the total amount of
such funds is less than the aggregate Available Amount of all Letters of Credit,
the Borrower will, forthwith upon demand by the Administrative Agent or the
Collateral Agent, pay to the Collateral Agent, as additional funds to be
deposited and held in the L/C Collateral Account, an amount equal to the excess
of (a) such aggregate Available Amount over (b) the total amount of funds, if
any, then held in the L/C Collateral Account that the Administrative Agent or
the Collateral Agent, as the case may be, determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds
are on deposit in the L/C Collateral Account, such funds shall be applied to
reimburse the relevant Issuing Bank or Revolving Credit Lenders, as applicable,
to the extent permitted by applicable law.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender Party (in its
capacities as a Lender, an Issuing Bank (if applicable) and on behalf of itself
and its Affiliates as potential Hedge Banks)
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hereby appoints and authorizes each Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement and the
other Loan Documents as are delegated to such Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of the Notes), no
Agent shall be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lender Parties and all holders
of Notes; provided, however, that no Agent shall be required to take any action
that exposes such Agent to personal liability or that is contrary to this
Agreement or applicable law. Each Agent agrees to give to each Lender Party
prompt notice of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
SECTION 7.02. Agents' Reliance, Etc. Neither any Agent nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 8.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. SG, ▇▇ ▇▇▇▇▇, SSBI and Their Affiliates. With respect to
its Commitments, the Advances made by it and the Notes issued to it, each of SG,
▇▇ ▇▇▇▇▇ and SSBI shall have the same rights and powers under the Loan Documents
as any other Lender Party and may exercise the same as though it were not an
Agent; and the term "Lender Party" or "Lender Parties" shall, unless otherwise
expressly indicated, include SG, ▇▇ ▇▇▇▇▇ and SSBI in their respective
individual capacities. SG, ▇▇ ▇▇▇▇▇ and SSBI and their respective affiliates may
accept deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, any Loan Party, any of its Subsidiaries and any Person who may do business
with or own securities of any Loan Party or any such Subsidiary, all as if SG,
▇▇ ▇▇▇▇▇ and SSBI were not Agents and without any duty to account therefor to
the Lender Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender
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Party also acknowledges that it will, independently and without reliance upon
any Agent or any other Lender Party and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Agent under the Loan Documents (collectively, the
"INDEMNIFIED COSTS"); provided, however, that no Lender Party shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Agent's gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction. Without limitation
of the foregoing, each Lender Party agrees to reimburse each Agent promptly upon
demand for its ratable share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower under Section
8.04, to the extent that such Agent is not promptly reimbursed for such costs
and expenses by the Borrower. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 7.05 applies
whether any such investigation, litigation or proceeding is brought by any
Lender Party or any other Person.
(b) Each Lender Party severally agrees to indemnify each Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against such Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by such Issuing Bank under the Loan Documents; provided, however, that no Lender
Party shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Issuing Bank's gross negligence or willful misconduct as
found in a final, non-appealable judgment by a court of competent jurisdiction.
Without limitation of the foregoing, each Lender Party agrees to reimburse such
Issuing Bank promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 8.04, to the extent that such Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower.
(c) For purposes of this Section 7.05, the Lender Parties' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lender Parties, (ii) their respective Pro Rata
Shares of the aggregate Available Amount of all Letters of Credit outstanding at
such time, (iii) the aggregate unused portions of their respective Term
Commitments at such time and (iv) their respective Unused Revolving Credit
Commitments at such time; provided that the aggregate principal amount of Letter
of Credit Advances owing to any Issuing Bank shall be considered to be owed to
the Revolving Credit Lenders ratably in accordance with their respective
Revolving Credit Commitments. The failure of any Lender Party to reimburse any
Agent or any Issuing Bank, as the case may be, promptly upon demand for its
ratable share of any amount required to be paid by the Lender Parties to such
Agent or such Issuing Bank, as the case may be, as provided herein shall not
relieve any other Lender Party of its obligation hereunder to reimburse such
Agent or such Issuing Bank, as the case may be, for its ratable share of such
amount, but no Lender Party shall be responsible for the failure of any other
Lender Party to reimburse such Agent or such Issuing Bank, as the case may be,
for such other Lender Party's ratable share of such amount. Without prejudice to
the survival of any other agreement of
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any Lender Party hereunder, the agreement and obligations of each Lender Party
contained in this Section 7.05 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the other Loan
Documents.
SECTION 7.06. Successor Administrative Agent. The Administrative Agent
may resign as to any or all of the Facilities at any time by giving written
notice thereof to the Lender Parties and the Borrower and may be removed as to
all of the Facilities at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Administrative Agent as to such of the Facilities as to
which such Administrative Agent has resigned or been removed. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lender Parties, appoint a successor Administrative
Agent, which shall be a commercial bank organized under the laws of the United
States or of any State thereof and having a combined capital and surplus of at
least $250,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent as to all of the Facilities
and upon the execution and filing or recording of such financing statements, or
amendments thereto, and such amendments or supplements to the Mortgages, and
such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent as to less
than all of the Facilities and upon the execution and filing or recording of
such financing statements, or amendments thereto, and such amendments or
supplements to the Mortgages, and such other instruments or notices, as may be
necessary or desirable, or as the Required Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent as to such Facilities, other than with respect
to funds transfers and other similar aspects of the administration of Borrowings
under such Facilities, issuances of Letters of Credit (notwithstanding any
resignation as Administrative Agent with respect to the Letter of Credit
Facility) and payments by the Borrower in respect of such Facilities, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other than as aforesaid.
If, within 45 days after written notice is given of the retiring Administrative
Agent's resignation or removal under this Section 7.06, no successor
Administrative Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation or removal shall become effective, (ii) the retiring Administrative
Agent shall thereupon be discharged from its duties and obligations under the
Loan Documents and (iii) the Required Lenders shall thereafter perform all
duties of the retiring Administrative Agent under the Loan Documents until such
time, if any, as the Required Lenders appoint a successor Administrative Agent
as provided above. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent as to all of the Facilities shall have
become effective, the provisions of this Article VII shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent as to any Facilities under this Agreement.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) no amendment, waiver or
consent shall, unless in writing and signed by all of the Lenders (other than
any Lender Party that is, at such time, a Defaulting Lender), do any of the
following at any time: (i) waive any of the conditions specified in Section 3.01
or, in the case of the Initial Extension of Credit, Section 3.02, (ii) change
any provision that expressly requires a vote or determination by all of the
Lenders or the percentage of (x) the Commitments, (y) the aggregate unpaid
principal amount of the Advances or (z) the aggregate Available Amount of
outstanding Letters of Credit that, in each case, shall be required for the
Lenders or any of them to take any action hereunder, (iii) reduce or limit the
obligations of any Guarantor under Section 1 of the Guaranty issued by it or
release such Guarantor or otherwise limit such Guarantor's liability with
respect to the Obligations owing to the Agents and the Lender Parties (other
than, in the case of any Guarantor, to the extent permitted under the Guaranty
to which it is a party), (iv) release all or substantially all of the Collateral
in any transaction or series of related transactions or permit the creation,
incurrence, assumption or existence of any Lien on all or substantially all of
the Collateral in any transaction or series of related transactions to secure
any Obligations other than Obligations owing to the Secured Parties under the
Loan Documents, (v) amend Section 2.13 or this Section 8.01, (b) no amendment,
waiver or consent shall, unless in writing and signed by the Required Lenders
and each Lender (other than any Lender that is, at such time, a Defaulting
Lender) that has a Commitment under the Term A Facility, Term B Facility or
Revolving Credit Facility if such Lender is directly and adversely affected by
such amendment, waiver or consent, (i) increase the Commitments of such Lender,
(ii) reduce the principal of, or interest on, the Notes held by such Lender or
any fees or other amounts stated to be payable hereunder to such Lender or (iii)
postpone any date fixed for any payment of principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to such
Lender and (c) no amendment, waiver or consent shall, unless in writing and
signed by the Required Lenders and Lenders (other than any Lender Party that is,
at such time, a Defaulting Lender) holding at least a majority in interest of
the aggregate Commitments (whether used or unused) under the Term A Facility,
Term B Facility or Revolving Credit Facility if such Lenders under any of the
foregoing Facilities are directly and adversely affected by such amendment,
waiver or consent, change the allocation or order of application of any
prepayment set forth in Section 2.06; provided further that no amendment, waiver
or consent shall, unless in writing and signed by each Issuing Bank, as the case
may be, in addition to the Lenders required above to take such action, affect
the rights or obligations of the Issuing Bank under this Agreement; and provided
further that no amendment, waiver or consent shall, unless in writing and signed
by an Agent in addition to the Lenders required above to take such action,
affect the rights or duties of such Agent under this Agreement or the other Loan
Documents.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
if to the Borrower, at its address at Amkor Technology, Inc., Goshen Corporate
Park, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (Telecopier: 610-431-9967),
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer; if to any Initial Lender
or any Initial Issuing Bank, at its Domestic Lending Office specified opposite
its name on Schedule I hereto; if to any other Lender Party, at its Domestic
Lending Office specified in the Assignment and Acceptance pursuant to which it
became a Lender Party; if to the Collateral Agent, at its address at ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ (Telecopier: 212-278-6418), Attention: ▇▇▇▇▇▇
▇▇▇▇▇, Vice-President, ▇▇ ▇▇▇▇▇ Securities Corporation; and if to the
Administrative Agent, at its address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ (Telecopier: 212-278-6418), Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Vice-President, ▇▇
▇▇▇▇▇ Securities Corporation; and if to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., at its
address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.,
▇▇
▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (Telecopier: 212-723-8547), Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇,
Director or, as to the Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telecopied or telexed, be effective when deposited in the mails,
delivered to the telegraph company, transmitted by telecopier or confirmed by
telex answerback, respectively, except that notices and communications to any
Agent pursuant to Article II, III or VII shall not be effective until received
by such Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of an original executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender
Party or any Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand (i) all costs and expenses of each Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
the Loan Documents (including, without limitation, (A) all due diligence,
collateral review, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and
expenses and (B) the reasonable fees and expenses of counsel for each Agent with
respect thereto, with respect to advising such Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with any Loan
Party or with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Default or any events or circumstances that may give rise to
a Default and with respect to presenting claims in or otherwise participating in
or monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto) and (ii) all
costs and expenses of each Agent and each Lender Party in connection with the
enforcement of the Loan Documents, whether in any action, suit or litigation, or
any bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent and each Lender Party with
respect thereto).
(b) The Borrower agrees to indemnify and hold harmless each Agent, each
Lender Party and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an "INDEMNIFIED PARTY") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Facilities, the actual
or proposed use of the proceeds of the Advances or the Letters of Credit, the
Transaction Documents or any of the transactions contemplated thereby,
including, without limitation, any acquisition or proposed acquisition
(including, without limitation, the Acquisition and any of the other
transactions contemplated by the Transaction Documents) by the Borrower or any
of its Subsidiaries or Affiliates of all or any portion of the Equity Interests
in or Debt securities or substantially all of the assets of the Acquired
Business or (ii) the actual or alleged presence of Hazardous Materials on any
property of any Loan Party or any of its Subsidiaries or any Environmental
Action relating in any way to any Loan Party or any of its Subsidiaries, except
to the extent such claim, damage, loss, liability or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful
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misconduct. In the case of an investigation, litigation or other proceeding to
which the indemnity in this Section 8.04(b) applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by any Loan Party, its directors, shareholders or creditors or an Indemnified
Party or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated by the Transaction Documents are consummated. The
Borrower also agrees not to assert any claim against any Agent, any Lender Party
or any of their Affiliates, or any of their respective officers, directors,
employees, attorneys and agents, on any theory of liability, for indirect,
consequential or punitive damages arising out of or otherwise relating to the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit, the Transaction Documents or any of the transactions
contemplated by the Transaction Documents.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender Party other than on the
last day of the Interest Period for such Advance upon an assignment of rights
and obligations under this Agreement pursuant to Section 8.07 as a result of a
demand by the Borrower pursuant to Section 8.07(a), or if the Borrower fails to
make any payment or prepayment of an Advance for which a notice of prepayment
has been given or that is otherwise required to be made, whether pursuant to
Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall, upon demand by such
Lender Party (with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender Party any amounts
required to compensate such Lender Party for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or Conversion
or such failure to pay or prepay, as the case may be, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including, without limitation,
fees and expenses of counsel and indemnities, such amount may be paid on behalf
of such Loan Party by the Administrative Agent or any Lender Party, in its sole
discretion.
(e) Without prejudice to the survival of any other agreement of any Loan
Party hereunder or under any other Loan Document, the agreements and obligations
of the Borrower contained in Sections 2.10 and 2.12 and this Section 8.04 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower against
any and all of the Obligations of the Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement or such Note or Notes and
although such obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section 8.05 are in
addition to other rights and remedies (including,
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without limitation, other rights of set-off) that such Agent, such Lender Party
and their respective Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower and each Agent and the
Administrative Agent shall have been notified by each Initial Lender and each
Initial Issuing Bank that such Initial Lender and such Initial Issuing Bank has
executed it and thereafter shall be binding upon and inure to the benefit of the
Borrower, each Agent and each Lender Party and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the Lender
Parties.
SECTION 8.07. Assignments and Participations. (a) Each Lender may and,
so long as no Default shall have occurred and be continuing, if demanded by the
Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.12)
upon at least five Business Days' notice to such Lender and the Administrative
Agent, will assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment or Commitments, the Advances owing to it and the
Note or Notes held by it to the extent requested pursuant to Section 2.16(a));
provided, however, that (i) each such assignment shall be of a uniform, and not
a varying, percentage of all rights and obligations under and in respect of any
or all Facilities, provided, however, that nothing in this clause (i) shall
prevent a Lender from assigning an interest in a single Facility if such Lender
has an interest in more than one Facility, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender,
an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the aggregate
amount of the Commitments being assigned to such Eligible Assignee pursuant to
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $2,500,000 and shall
be in an integral multiple of $1,000,000 in excess thereof under each Facility
for which a Commitment is being assigned, (iii) each such assignment shall be to
an Eligible Assignee, (iv) each such assignment made as a result of a demand by
the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower
after consultation with the Administrative Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and
until such Lender shall have received one or more payments from either the
Borrower or one or more Eligible Assignees in an aggregate amount at least equal
to the aggregate outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this
Agreement, (vi) no such assignments shall be permitted without the consent of
the Administrative Agent and the Syndication Agent (such consents not to be
unreasonably withheld or delayed) and (vii) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment and a processing and recordation fee of
$3,500 (except in the case of an assignment to a Lender or any Affiliate of a
Lender or any Approved Fund and except for any assignment by either Syndication
Agent or any other of their respective Affiliates); provided, however, that for
each such assignment made as a result of a demand by the Borrower pursuant to
this Section 8.07(a), the Borrower shall pay to the Administrative Agent the
applicable processing and recordation fee.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such
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Assignment and Acceptance, have the rights and obligations of a Lender or
Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the
extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of the remaining portion
of an assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning Lender Party
or any other Lender Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender or Issuing Bank, as the
case may be.
(d) The Administrative Agent, acting for this purpose (but only for this
purpose) as the agent of the Borrower, shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Agents
and the Lender Parties shall treat each Person whose name is recorded in the
Register as a Lender Party hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Agent or any
Lender Party at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and each other Agent. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in
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exchange for the surrendered Note or Notes a new Note (to the extent requested
pursuant to Section 2.16(a)) to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it under each Facility pursuant to such
Assignment and Acceptance and, if any assigning Lender has retained a Commitment
hereunder under such Facility, a new Note (to the extent requested pursuant to
Section 2.16(a)) to the order of such assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit ▇-▇,
▇-▇ or A-3 hereto, as the case may be.
(f) Each Issuing Bank may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under the undrawn portion of its
Letter of Credit Commitment at any time; provided, however, that(i) except in
the case of an assignment to a Person that immediately prior to such assignment
was an Issuing Bank or an assignment of all of an Issuing Bank's rights and
obligations under this Agreement, the amount of the Letter of Credit Commitment
of the assigning Issuing Bank being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $2,500,000 and shall be in an
integral multiple of $1,000,000 in excess thereof, (ii) each such assignment
shall be to an Eligible Assignee and (iii) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender
Parties shall continue to deal solely and directly with such Lender Party in
connection with such Lender Party's rights and obligations under this Agreement
and (v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes, or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or release
all or substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) In addition to the assignment mechanics set forth in this Section
8.07(a) through (f), any Lender Party, (a "GRANTING LENDER") may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower (an "SPC")
the option to provide all or any part of any Advance that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement, provided that
(i) nothing herein shall
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constitute a commitment by any SPC to fund any Advance, and (ii) if an SPC
elects not to exercise such option or otherwise fails to make all or any part of
such Advance, the Granting Lender shall be obligated to make such Advance
pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Advance were made by such Granting Lender. Each party hereto hereby agrees
that (i) no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement for which a Lender Party would otherwise be liable and (ii)
no SPC shall be entitled to the benefits of Sections 2.10 and 2.12 (or any other
increased costs protection provision). Notwithstanding anything to the contrary
contained in this Agreement, any SPC may (i) with notice to, but without prior
consent of, the Borrower, the Syndication Agent and the Administrative Agent and
with the payment of a processing fee of $500, assign all or any portion of its
interest in any Advance to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of
Advances to any rating agency, commercial paper dealer or provider of any surety
or guarantee or credit or liquidity enhancement to such SPC. This subsection
8.07(i) may not be amended without the prior written consent of each Granting
Lender, all or any part of whose Advances are being funded by the SPC at the
time of such amendment. For the avoidance of doubt, with respect to the Agents,
the other Lender Parties and the Borrower, the Granting Lender shall for all
purposes, including, without limitation, the approval of any amendment or waiver
of any provision of any Loan Document or the obligation to pay any amount
otherwise payable by the Granting Lender under the Loan Documents, be the Lender
Party of record hereunder.
(j) Notwithstanding any other provision set forth in this Agreement, any
Lender Party may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it, if any) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
(k) Any Lender that is a fund that invests in bank loans may pledge all
or any portion of the Advances owing to it and the Note or Notes, if any, held
by it to the trustee for holders of obligations owed, or securities issued, by
such fund as security for such obligations or securities; provided, that unless
and until such trustee actually becomes a Lender in compliance with the other
provisions of this Section 8.07, (i) no such pledge shall release the pledging
Lender from any of its obligations under the Loan Documents and (ii) such
trustee shall not be entitled to exercise any of the rights of a Lender under
the Loan Documents even though such trustee may have acquired ownership rights
with respect to the pledged interest through foreclosure or otherwise.
SECTION 8.08. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of an original executed counterpart of
this Agreement.
SECTION 8.09. No Liability of the Issuing Banks. The Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither any
Issuing Bank nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a
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claim against such Issuing Bank, and such Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) such Issuing Bank's
willful misconduct or gross negligence as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) such Issuing Bank's willful failure to make lawful payment under
a Letter of Credit after the presentation to it of a draft and certificates or
other document strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, such Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 8.10. Confidentiality. Neither any Agent nor any Lender Party
shall disclose any Confidential Information to any Person without the consent of
the Borrower, other than (a) to such Agent's or such Lender Party's Affiliates
and their officers, directors, employees, agents and advisors, to Approved Funds
and to actual or prospective Eligible Assignees and participants, and then only
on a confidential basis, (b) as required by any law, rule or regulation or
judicial process, (c) as requested or required by any state, federal or foreign
authority or examiner, including the National Association of Insurance
Commissioners or any similar organization or quasi-regulatory authority
regulating such Lender Party, (d) to any rating agency when required by it,
provided that, prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information relating to the
Loan Parties received by it from such Lender Party and (e) to any direct or
indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the
provisions of this Section 8.10).
SECTION 8.11. Release of Collateral. Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party in accordance with
the terms of the Loan Documents, the Collateral Agent will, at the Borrower's
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral Documents
in accordance with the terms of the Loan Documents.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other Loan
Documents to which it is a party in any New York State or federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
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SECTION 8.13. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.14. Waiver of Jury Trial. Each of the Borrower, the Agents and
the Lender Parties irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to any of the Loan Documents, the Advances or the
actions of any Agent or any Lender Party in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
AMKOR TECHNOLOGY, INC.
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
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SOCIETE GENERALE,
as Administrative Agent Collateral Agent, and
Syndication Agent
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
99
100
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Syndication Agent
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
100
101
INITIAL LENDERS
CITIBANK, N.A.
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
101
102
SOCIETE GENERALE
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
102
103
DEUTSCHE BANK SECURITIES INC.
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
103
104
BANK OF AMERICA, N.A.
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
104
105
ABN AMRO BANK N.V.
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
105
106
FLEET NATIONAL BANK
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
106
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ BRANCH
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
107
108
FIRST UNION NATIONAL BANK
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
108
109
KEY BANK NATIONAL ASSOCIATION
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
109
110
BARCLAYS BANK PLC
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
110
111
BANQUE NATIONALE DE PARIS
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
111
112
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
112
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
113
114
PNC BANK, N.A.
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
114
115
THE INDUSTRIAL BANK OF JAPAN, LIMITED
NEW YORK BRANCH
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
115
116
IBM CREDIT CORPORATION
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
116
117
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
117
118
COMERICA BANK
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
118
119
METROPOLITAN PROPERTY AND CASUALTY
INSURANCE COMPANY
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
119
120
FRANKLIN FLOATING RATE TRUST
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
120
121
CYPRESSTREE INVESTMENT MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of First
Allmerica Financial Life Insurance Company as
Portfolio Manager
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
121
122
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment Management
Company, Inc. its Managing Member
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
122
123
KZH CYPRESSTREE-1 LLC
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
123
124
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc.
as Portfolio Manager
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
124
125
FLEET NATIONAL BANK
As Trust Administrator for Long Lane
Master Trust IV
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
125
126
GALAXY CLO 1999-1, LTD.
By SAI Investment Adviser, Inc.
its Collateral Manager
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
126
127
KZH SOLEIL-2 LLC
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
127
128
KZH SOLEIL LLC
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
128
129
KZH HIGHLAND-2 LLC
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
129
130
▇▇▇▇▇▇▇▇▇▇▇ SENIOR FLOATING RATE FUND
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
130
131
KZH SHOSHONE LLC
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
131
132
KZH STERLING LLC
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
132
133
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ [ILLEGIBLE]
-----------------------------------------------
Name:
Title:
133
134
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
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REVOLVING LETTER OF DOMESTIC EURODOLLAR
TERM A TERM B CREDIT CREDIT LENDING LENDING
NAME OF INITIAL LENDER COMMITMENT COMMITMENT COMMITMENT COMMITMENT OFFICE OFFICE
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EXECUTION COPY
$900,000,000
CREDIT AGREEMENT
Dated as of April 28, 2000
Among
AMKOR TECHNOLOGY, INC.
as Borrower
and
THE INITIAL LENDERS AND INITIAL ISSUING BANKS
NAMED HEREIN
as Initial Lenders and Initial Issuing Banks
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
as Book Manager
and
SOCIETE GENERALE
as Administrative Agent and as Collateral Agent
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC. AND SOCIETE GENERALE
as Syndication Agents
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC., ▇▇ ▇▇▇▇▇ SECURITIES CORPORATION AND
DEUTSCHE BANK SECURITIES INC.
as Arrangers
and
DEUTSCHE BANK SECURITIES INC.
as Documentation Agent
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136
T A B L E O F C O N T E N T S
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.02. Computation of Time Periods; Other Definitional Provisions 29
1.03. Accounting Terms 29
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The Advances and the Letters of Credit 29
2.02. Making the Advances 31
2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit 32
2.04. Repayment of Advances 33
2.05. Termination or Reduction of the Commitments 35
2.06. Prepayments 36
2.07. Interest 38
2.08. Fees 39
2.09. Conversion of Advances 40
2.10. Increased Costs, Etc. 40
2.11. Payments and Computations 41
2.12. Taxes 43
2.13. Sharing of Payments, Etc. 45
2.14. Use of Proceeds 45
2.15. Defaulting Lenders 46
2.16. Evidence of Debt 48
2.17. Increase in the Aggregate Commitments 48
ARTICLE III
CONDITIONS OF LENDING AND
3.01. Conditions Precedent to Initial Extension of Credit 50
3.02. Conditions Precedent to Each Borrowing and Issuance and Renewal 55
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137
3.03. Conditions precedent to the release of the proceeds of the initial Extension of Credit 56
3.04. Determinations Under Section 3.01 56
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower 57
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants 62
5.02. Negative Covenants 69
5.03. Reporting Requirements 78
5.04. Financial Covenants 82
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default 84
6.02. Actions in Respect of the Letters of Credit upon Default 86
ARTICLE VII
THE AGENTS
7.01. Authorization and Action 86
7.02. Agents' Reliance, Etc. 87
7.03. SG, ▇▇ ▇▇▇▇▇, SSBI and Their Affiliates 87
7.04. Lender Party Credit Decision 87
7.05. Indemnification 88
7.06. Successor Administrative Agent 89
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc. 90
8.02. Notices, Etc. 90
8.03. No Waiver; Remedies 91
8.04. Costs and Expenses 91
8.05. Right of Set-off 92
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138
8.06. Binding Effect 93
8.07. Assignments and Participations 93
8.08. Execution in Counterparts 96
8.09. No Liability of the Issuing Banks 96
8.10. Confidentiality 97
8.11. Release of Collateral 97
8.12. Jurisdiction, Etc. 97
8.13. Governing Law 98
8.14. Waiver of Jury Trial 98
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Subsidiary Guarantors
Schedule III - Intercompany Guarantors
Schedule IV - Conditions for Unrestricted Subsidiaries
Schedule V - Certain Lender Parties
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and
Filings
Schedule 4.01(p) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(r) - Open Years; Unpaid Tax Liabilities; Adjusted Tax
Bases
Schedule 4.01(t) - Existing Debt
Schedule 4.01(u) - Surviving Debt
Schedule 4.01(v) - Owned Real Property
Schedule 4.01(w) - Leased Real Property
Schedule 4.01(x) - Investments
Schedule 4.01(y) - Intellectual Property
Schedule 4.01(z) - Material Contracts
Schedule 5.02(a) - Liens
Schedule 5.02(g) - Series A Preferred Stock Terms
Schedule 5.02(p) - New Subsidiaries
EXHIBITS
Exhibit A-1 - Form of Term A Note
Exhibit A-2 - Form of Term B Note
Exhibit A-3 - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Subsidiary Guaranty
Exhibit F - Form of Intercompany Guaranty
Exhibit G - Form of Solvency Certificate
Exhibit H - Form of Opinion of Counsel to the Loan Parties
Exhibit I - Form of Borrowing Base Certificate
144