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Exhibit 4.2
MULTICURRENCY CREDIT AGREEMENT
Dated as of
June 30, 1999
Among
APTARGROUP, INC.,
THE LENDERS PARTY HERETO,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Agent
and
BANC OF AMERICA SECURITIES LLC,
as Arranger
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS; INTERPRETATION................................... 1
Section 1.1. Definitions..................................... 1
Section 1.2. Interpretation.................................. 10
Section 1.3. Euro Provisions................................. 10
SECTION 2. THE CREDIT FACILITIES......................................... 11
Section 2.1. Ratable Borrowings under the Revolving Credit... 11
Section 2.2. Types of Loans and Minimum Borrowing Amounts.... 11
Section 2.3. Manner of Borrowing............................. 12
Section 2.4. Interest Periods................................ 14
Section 2.5. Maturity of Loans............................... 14
Section 2.6. Applicable Interest Rates....................... 14
Section 2.7. Optional Prepayments............................ 18
Section 2.8. Mandatory Prepayments of Loans.................. 18
Section 2.9. Default Rate.................................... 18
Section 2.10. Loan Accounts................................... 19
Section 2.11. Funding Indemnity............................... 19
Section 2.12. Commitment Reductions........................... 19
SECTION 3. FEES AND PAYMENTS............................................. 20
Section 3.1. Fees............................................ 20
Section 3.2. Place and Application of Payments............... 20
Section 3.3. Withholding Taxes............................... 21
SECTION 4. CONDITIONS PRECEDENT.......................................... 22
Section 4.1. Agreement Effectiveness......................... 22
Section 4.2. All Credit Events............................... 23
SECTION 5. REPRESENTATIONS AND WARRANTIES................................ 23
Section 5.1. Organization.................................... 23
Section 5.2. Corporate Power and Authority................... 23
Section 5.3. No Violation.................................... 24
Section 5.4. Governmental Authorization...................... 24
Section 5.5. Litigation...................................... 24
Section 5.6. Use of Proceeds; Margin Regulations............. 24
Section 5.7. Investment Company Act.......................... 25
Section 5.8. Public Utility Holding Company Act.............. 25
Section 5.9. True and Complete Disclosure.................... 25
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Section 5.10. Financial Statements................................................ 25
Section 5.11. No Material Adverse Change.......................................... 25
Section 5.12. Labor Controversies................................................. 25
Section 5.13. Taxes............................................................... 25
Section 5.14. ERISA............................................................... 26
Section 5.15. Intellectual Property............................................... 26
Section 5.16. Compliance with Statutes, Etc....................................... 26
Section 5.17. Environmental Matters............................................... 26
Section 5.18. Existing Debt....................................................... 27
Section 5.19. No Burdensome Restrictions; Compliance with Agreements.............. 27
Section 5.20. Year 2000 Problem................................................... 27
SECTION 6. COVENANTS.......................................................................... 27
Section 6.1. Existence............................................................ 27
Section 6.2. Maintenance.......................................................... 27
Section 6.3. Taxes................................................................ 28
Section 6.4. ERISA................................................................ 28
Section 6.5. Insurance............................................................ 28
Section 6.6. Financial Reports and Other Information.............................. 28
Section 6.7. Lender Inspection Rights............................................. 30
Section 6.8. Conduct of Business.................................................. 31
Section 6.9. Fiscal Years and Quarters............................................ 31
Section 6.10. Limitation on Certain Restrictions on Subsidiaries................... 31
Section 6.11. Mergers, Consolidations and Asset Sales.............................. 31
Section 6.12. Use of Property and Facilities; Environmental,
Health and Safety Laws........................................... 32
Section 6.13. Liens................................................................ 32
Section 6.14. Debt................................................................. 33
Section 6.15. Advances, Acquisitions, Investments and Loans........................ 33
Section 6.16. Dividends and Other Shareholder Distributions........................ 35
Section 6.17. Leverage............................................................. 35
Section 6.18. Interest Coverage Ratio.............................................. 35
Section 6.19. Transactions with Affiliates......................................... 35
Section 6.20. Compliance with Laws................................................. 35
Section 6.21. Take or Pay Contracts................................................ 35
Section 6.22. Inconsistent Agreements.............................................. 36
SECTION 7. EVENTS OF DEFAULT AND REMEDIES..................................................... 36
Section 7.1. Events of Default.................................................... 36
Section 7.2. Non-Bankruptcy Defaults.............................................. 38
Section 7.3. Bankruptcy Defaults.................................................. 38
Section 7.4. Notice of Default.................................................... 38
Section 7.5. Expenses............................................................. 38
SECTION 8. CHANGE IN CIRCUMSTANCES............................................................ 38
Section 8.1. Change of Law........................................................ 38
Section 8.2. Unavailability of Deposits or Inability to Ascertain LIBOR........... 39
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Section 8.3. Increased Cost and Reduced Return............. 39
Section 8.4. Lending Offices............................... 40
Section 8.5. Discretion of Lender as to Manner of Funding.. 40
Section 8.6. Substitution of Lender........................ 41
SECTION 9. THE AGENT................................................... 41
Section 9.1. Appointment and Authorization................. 41
Section 9.2. Delegation of Duties.......................... 41
Section 9.3. Liability of Agents........................... 41
Section 9.4. Reliance by Agent............................. 42
Section 9.5. Notice of Default............................. 42
Section 9.6. Credit Decision............................... 42
Section 9.7. Indemnification............................... 43
Section 9.8. Agent in Individual Capacity.................. 43
Section 9.9. Successor Agent............................... 44
SECTION 10. MISCELLANEOUS............................................... 44
Section 10.1. No Waiver of Rights.......................... 44
Section 10.2. Non-Business Day............................. 44
Section 10.3. Documentary Taxes............................ 44
Section 10.4. Survival of Representations.................. 44
Section 10.5. Survival of Indemnities...................... 45
Section 10.6. Sharing of Set-off........................... 45
Section 10.7. Notices...................................... 45
Section 10.8. Counterparts................................. 46
Section 10.9. Successors and Assigns....................... 46
Section 10.10. Participants................................. 46
Section 10.11. Assignments of Commitments by Lenders........ 46
Section 10.12. Amendments................................... 47
Section 10.13. Headings..................................... 47
Section 10.14. Legal Fees, Other Costs and Indemnification.. 47
Section 10.15. Set Off...................................... 48
Section 10.16. Entire Agreement............................. 48
Section 10.17. Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial.................... 48
Section 10.18. Confidentiality.............................. 49
Section 10.19. Severability................................. 49
Section 10.20. Currency..................................... 49
Section 10.21. Currency Equivalence......................... 50
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EXHIBITS
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Exhibit A -- Form of Notice of Borrowing
Exhibit B -- Form of Notice of Conversion/Continuation
Exhibit C -- Form of Compliance Certificate
Exhibit D -- Form of Assignment Agreement
SCHEDULES
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Schedule 1 Notice of Assignment and Acceptance
Schedule 2.1 Commitments
Schedule 5.1 Subsidiaries
Schedule 5.18 Debt
Schedule 6.15 Existing Loans, Advances and Investments
Schedule 10.2 Lending Offices, Address for Notices
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MULTICURRENCY CREDIT AGREEMENT, dated as of June 30, 1999, among
AptarGroup, Inc., a Delaware corporation (the "Borrower"), the lenders from time
to time party hereto (each a "Lender" and, collectively, the "Lenders") and Bank
of America National Trust and Savings Association, as Agent. Capitalized terms
used herein are defined in Section 1.
SECTION 1. DEFINITIONS; INTERPRETATION.
Section 1.1. Definitions. The following terms when used herein have the
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following meanings:
"Affiliate" means, for any Person, any other Person (including all
directors and officers of such Person) that directly or indirectly controls, or
is under common control with, or is controlled by, such Person. As used in this
definition, "control" means the power, directly or indirectly, to direct or
cause the direction of management or policies of a Person (through ownership of
voting securities, by contract or otherwise), provided that, in any event for
purposes of the definition any Person that owns directly or indirectly 10% or
more of the securities having ordinary voting power for the election of
directors of a corporation or 10% or more of the partnership or other ownership
interests of any other Person (other than as a limited partner of such other
Person) will be deemed to control such corporation or other Person.
"Agent" means BofA acting in its capacity as agent for the Lenders and any
successor pursuant to Section 9.9.
"Agent-Related Persons" means BofA in its capacity as Agent and any
successor Agent arising under Section 9.9, together with their respective
Affiliates (including, in the case of BofA, the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Applicable Eurocurrency Margin" is defined in Section 2.6(b).
"Arranger" means Banc of America Securities LLC.
"Asset Sale" means any sale, transfer or other disposition by the Borrower
or any of its Subsidiaries to any Person other than the Borrower or any Wholly-
Owned Subsidiary of the Borrower of any asset (including, without limitation,
any capital stock or other securities of another Person) of the Borrower or such
Subsidiary other than (i) sales, transfers or other dispositions of inventory in
the ordinary course of business, (ii) sales of equipment and other fixed assets
no longer used or useful in the business of the Borrower or any of its
Subsidiaries, as determined by the Borrower or such Subsidiary in its reasonable
judgment, (iii) sales of equipment and other fixed assets if the proceeds
thereof are used to purchase additional equipment or fixed assets and (iv) cash.
"Assignment Agreement" means an agreement in substantially the form of
Exhibit D whereby a Lender conveys part or all of its Commitments and Loans to
another Person that
thereupon becomes a Lender, or that increases its Commitments or outstanding
Loans, or both, pursuant to Section 10.11.
"Base Rate" is defined in Section 2.6(a).
"Base Rate Loan" means a Loan denominated in U.S. Dollars bearing interest
prior to maturity at the rate specified in Section 2.6(a).
"BofA" means Bank of America National Trust and Savings Association, a
national banking association.
"Borrower" is defined in the preamble.
"Borrowing" means the total of Loans of a single type advanced, continued
for an additional Interest Period, or converted from a different type into such
type by Lenders on a single date and, in the case of Eurocurrency Loans, in a
single currency and for a single Interest Period. Borrowings of Loans are made
and maintained ratably from each of the Lenders according to their Percentages.
A Borrowing is "advanced" on the day Lenders advance funds comprising such
Borrowing to the Borrower, is "continued" (in the case of Eurocurrency Loans) on
the date a new Interest Period commences for such Borrowing, and is "converted"
when such Borrowing is changed from one type of Loan to the other, all as
requested by the Borrower pursuant to Section 2.3(a).
"Business Day" means any day other than a Saturday or Sunday on which banks
are not authorized or required to close in Chicago, Illinois, San Francisco,
California or New York, New York and, if the applicable Business Day relates to
the borrowing or payment of a Eurocurrency Loan, on which banks are dealing in
U.S. Dollar deposits in the interbank market in London, England, and, if the
applicable Business Day relates to the borrowing or payment of a Eurocurrency
Loan denominated in an Optional Currency, on which banks and foreign exchange
markets are open for business in both London and in the city where disbursements
of or payments on such Loans are to be made (and, if such Optional Currency is
Euros, a day on which (x) the Trans-European Automated Real-time Gross
Settlement Express Transfer System (or any successor settlement system) is open
and (y) the banks and foreign exchange markets are open in such financial center
as is determined by the Agent to be suitable for clearing or settlement of
Euros).
"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof having maturities of not more than six months from the
date of acquisition, (ii) domestic and Eurodollar denominated time deposits,
certificates of deposit and bankers acceptances of any Lender or any bank whose
short-term debt rating from Standard & Poor's Ratings Service ("S&P") is at
least A-1 or the equivalent or from ▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇'▇")
is at least P-1 or the equivalent with maturities of not more than six months
from the date of acquisition, (iii) commercial paper with a rating of at least
A-1 or the equivalent by S&P or at least P-1 or the equivalent by
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Moody's maturing within six months after the date of acquisition, (iv)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within six months from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody's, (v) investments in money market funds
substantially all the assets of which are comprised of securities of the types
described in clauses (i) through (iv) above, and (vi) other similar high quality
instruments of equivalent United States rating in countries where Subsidiaries
organized under laws of jurisdictions outside of the United States are located.
A "Change of Control Event" shall be deemed to have occurred if (a) any
Person or group of Persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934) shall have acquired beneficial ownership
(within the meaning of Rule 13(d)-3 of the Securities Exchange Act of 1934, as
amended, and the applicable rules and regulations thereunder) of more than 50%
of the outstanding Voting Stock of the Borrower, or (b) during any period of 12
consecutive months, commencing before or after the date of this Agreement,
individuals who on the first day of such period were directors of the Borrower
(together with any replacement or additional directors who were nominated or
elected by a majority of directors then in office) cease to constitute a
majority of the Board of Directors of the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitments" is defined in Section 2.1.
"Compliance Certificate" means a certificate in the form of Exhibit C.
"Consolidated Debt" means all Debt of the Borrower determined on a
consolidated basis.
"Consolidated EBIT" means, for any period, Consolidated Net Income before
Consolidated Interest Expense and provisions for taxes based on income and
without giving effect to any extraordinary gains or losses.
"Consolidated EBITDA" means, for any period, Consolidated EBIT plus the
amount of all depreciation and amortization expense deducted in determining
Consolidated EBIT for such period.
"Consolidated Interest Expense" means, for any period, total interest
expense of the Borrower determined on a consolidated basis in connection with
Debt.
"Consolidated Interest Ratio" means, for any period, the ratio of
Consolidated EBITDA to Consolidated Interest Expense for such period.
"Consolidated Leverage Ratio" means, as of any time the same is to be
determined, the ratio of (x) Consolidated Debt to (y) Total Capitalization.
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"Consolidated Net Income" means, for any period, the net income (or loss),
after provision for taxes, of the Borrower on a consolidated basis for such
period taken as a single accounting period, after eliminating therefrom all
extraordinary non-cash items of income.
"Consolidated Net Worth" means the aggregate amount of the Borrower's
shareholders' equity determined from its consolidated balance sheet.
"Contractual Obligations" means, for any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its Property is bound.
"Controlled Group" means all members of a controlled group of corporations
and all trades and businesses (whether or not incorporated) under common control
that, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"Credit Documents" means this Agreement and any other agreements between
any Lender and the Borrower executed in connection with this Agreement.
"Credit Event" means the advance, conversion or continuation of any Loan
(including by failing to give notice of non-renewal).
"Debt" means all items described in clauses (i) through (vii) of the
definition of Indebtedness.
"Default" means any event or condition the occurrence of which would, with
the passage of time or the giving of notice, or both, constitute an Event of
Default.
"Effective Date" is defined in Section 4.1.
"Eligible Assignee" means a commercial bank incorporated or organized under
the laws of the United States of America, any state or political subdivision
thereof or another member country of the Organization for Economic Cooperation
and Development with a net worth or combined capital and surplus of not less
than $500,000,000.
"EMU" means economic and monetary union as contemplated in the Treaty on
European Union.
"EMU Legislation" means legislative measures of the European Council for
the introduction of, changeover to or operation of a single or unified European
currency (whether known as the euro or otherwise), being in part the
implementation of the third state of EMU.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of non-
compliance or violation,
4
investigations or proceedings relating in any way to any Environmental Law
("Claims") or any permit issued under any Environmental Law, including, without
limitation, (a) any and all Claims by a Governmental Authority for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and (b) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Law" means any United States federal, state or local
statute, law, rule, regulation, ordinance, code, policy having the force of law
or rule of common law now or hereafter in effect and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, in each case relating to the environment,
health, safety or Hazardous Materials.
"ERISA" is defined in Section 5.13.
"Euro" means the single currency of Participating Member States of the
European Union.
"Eurocurrency Loan" means a Loan denominated in U.S. Dollars or an Optional
Currency and bearing interest before maturity at the rate specified in Section
2.6(b).
"Eurocurrency Reserve Percentage" is defined in Section 2.6(b).
"Euro Unit" means a currency unit of the Euro.
"Event of Default" means any of the events or circumstances specified in
Section 7.1.
"Existing Credit Agreements" means (i) the Credit Agreement dated as of
August 26, 1994, as amended to the date hereof, among the Borrower, the Lenders
party thereto and ABN AMRO Bank N.V., as Agent and (ii) the Credit Agreement
dated as of February 12, 1999 between the Borrower and Bank of America National
Trust and Savings Association.
"Federal Funds Rate" means the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Base Rate in Section
2.6(a).
"GAAP" means generally accepted accounting principles from time to time in
effect, applied in a manner consistent with those used in the preparation of the
audited financial statements for the Borrower's fiscal year ending December 31,
1998 referred to in Section 5.10.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
5
"Guaranty" by any Person means all obligations (other than endorsements in
the ordinary course of business of negotiable instruments for deposit or
collection) of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation (including, without limitation,
limited or full recourse obligations in connection with sales of receivables or
any other Property) of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, all obligations
incurred through an agreement, contingent or otherwise, by such Person: (i) to
purchase such Indebtedness or obligation or any Property or assets constituting
security therefor, (ii) to advance or supply funds (x) for the purchase or
payment of such Indebtedness or obligation, or (y) to maintain working capital
or other balance sheet condition, or otherwise to advance or make available
funds for the purchase or payment of such Indebtedness or obligation, or (iii)
to lease Property or to purchase Securities or other Property or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of the primary obligor to make payment of the
Indebtedness or obligation, or (iv) otherwise to assure the owner of the
Indebtedness or obligation of the primary obligor against loss in respect
thereof. For the purpose of all computations made under this Agreement, the
amount of a Guaranty in respect of any obligation shall be deemed to be equal to
the maximum aggregate amount of such obligation or, if the Guaranty is limited
to less than the full amount of such obligation, the maximum aggregate potential
liability under the terms of the Guaranty.
"Hazardous Material" means (a) any asbestos, PCBs or dioxins or insulation
or other material composed of or containing asbestos, PCBs or dioxins and (b)
any petroleum product and any chemical, material or other substance defined as
"hazardous" or "toxic" or words with similar meaning and effect under any
Environmental Law.
"Indebtedness" means, for any Person, all obligations of such Person,
without duplication, required by GAAP to be shown as liabilities on its balance
sheet, and in any event shall include all (i) obligations of such Person for
borrowed money, (ii) obligations of such Person representing the deferred
purchase price of property or services other than accounts payable and accrued
expenses arising in the ordinary course of business on terms customary in the
trade, (iii) obligations of such Person evidenced by notes, acceptances, or
other instruments of such Person or arising out of letters of credit issued for
such Person's account, (iv) obligations, whether or not assumed, secured by
Liens or payable out of the proceeds or production from Property now or
hereafter owned or acquired by such Person, (v) capitalized lease obligations of
such Person, (vi) all Indebtedness (as defined above) of any partnership in
which such Person is a general partner, (vii) the outstanding principal amount
then owed to investors in connection with the sale of the Borrower's or any of
its Subsidiaries' accounts receivable, (viii) obligations of such Person in
respect of Synthetic Leases and (ix) obligations for which such Person is
obligated pursuant to a Guaranty.
"Indemnified Person" is defined in Section 10.14.
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"Interest Payment Date" means (a) for a Base Rate Loan, each March 31, June
30, September 30 and December 31 and the Termination Date, (b) for a
Eurocurrency Loan with an Interest Period of 3 months or less, the last day of
such Interest Period and the Termination Date, and (c) for a Eurocurrency Loan
with an Interest Period of 6 months, the date that is 3 months from the first
day of such Interest Period and the last day of such Interest Period and the
Termination Date.
"Interest Period" is defined in Section 2.4.
"Lender" is defined in the first sentence of this Agreement.
"Lending Office" is defined in Section 8.4.
"LIBOR" is defined in Section 2.6(b).
"Lien" means any interest in any Property or asset securing an obligation
owed to, or a claim by, a Person other than the owner of the Property or asset,
whether such interest is based on the common law, statute or contract,
including, but not limited to, the security interest lien arising from a
mortgage, encumbrance, pledge, conditional sale, security agreement or trust
receipt, or a lease, consignment or bailment for security purposes.
"Loan" means a Base Rate Loan or Eurocurrency Loan, each of which is a
"type" of Loan hereunder.
"Margin Testing Time" is defined in Section 2.6(b).
"Material Adverse Effect" means a material adverse effect on the business,
properties, assets, liabilities, condition (financial or otherwise) or prospects
of (i) the Borrower or (ii) the Borrower and its Subsidiaries taken as a whole.
"National Currency Unit" means a unit of currency (other than a Euro Unit)
of a Participating Member State.
"Notice of Borrowing" means a notice in substantially the form of Exhibit
A.
"Notice of Conversion/Continuation" means a notice in substantially the
form of Exhibit B.
"Obligations" means all fees payable hereunder, all obligations of the
Borrower to pay principal or interest on Loans and all other payment obligations
of the Borrower to the Agent or any Lender arising under or in relation to any
Credit Document.
"Optional Currency" means Pounds Sterling, Deutsche ▇▇▇▇, Australian
Dollars, French Francs, Italian Lira and Euros and any other currency requested
by the Borrower and acceptable
7
to the Agent and all Lenders provided such requested currency is freely
available in the international bank market, freely transferable and freely
convertible into U.S. Dollars and readily utilized for the settlement of private
international debt transactions.
"Participating Member State" means each such state so described in any EMU
Legislation.
"Payment Office" means (a) in respect of payments in Dollars, the address
for payments set forth on Schedule 10.7 or such other address as the Agent may
from time to time specify in accordance with Section 10.7 and, (b) in the case
of payments in any Optional Currency, such address as the Agent may from time to
time specify in accordance with Section 10.7.
"PBGC" is defined in Section 5.14.
"Percentage" means, for each Lender, the percentage of the Commitments
represented by such Lender's Commitment; provided that, if the Commitments are
terminated, each Lender's Percentage will be calculated based on the percentage
which such Lender's then outstanding principal amount of Loans is of the
aggregate outstanding principal amount of Loans of all Lenders.
"Permitted Liens" is defined in Section 6.13.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization or any other entity or
organization, including a government or any agency or political subdivision
thereof.
"Plan" means an employee pension benefit plan covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the Code and is
either (i) maintained by a member of the Controlled Group for employees of a
member of the Controlled Group of which the Borrower or any of its Subsidiaries
is a member or (ii) maintained pursuant to a collective bargaining agreement or
any other arrangement under which more than one employer makes contributions and
to which a member of the Controlled Group of which the Borrower or any of its
Subsidiaries is a member is then making or accruing an obligation to make
contributions or has within the preceding five plan years made or had an
obligation to make contributions.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible, whether now owned or
hereafter acquired.
"Required Lenders" means, at any time, Lenders then holding in aggregate
more than 50% of the Percentages.
"Same Day Funds" means (a) with respect to disbursements and payments in
U.S. Dollars, immediately available funds, and (b) with respect to disbursements
and payments in an Optional Currency, same day or other funds as may be
determined by the Agent to be customary
8
in the place of disbursement or payment for the settlement of international
banking transactions in the Relevant Optional Currency.
"SEC" means the Securities and Exchange Commission.
"Security" has the same meaning as in Section 2(l) of the Securities Act of
1933, as amended.
"Set-Off" is defined in Section 10.6.
"Subsidiary" means, for the Borrower, any corporation or other entity of
which more than fifty percent (50%) of the outstanding stock or comparable
equity interests having ordinary voting power for the election of the Board of
Directors of such corporation or similar governing body in the case of a non-
corporation (irrespective of whether or not, at the time, stock or other equity
interests of any other class or classes of such corporation or other entity
shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned by the Borrower or by
one or more of its Subsidiaries.
"Synthetic Lease" means a lease transaction under which the parties intend
that (i) the lease will be treated as an "Operating Lease" by the lessee
pursuant to Statement of Financial Accounting Standards No. 13, as amended and
(ii) the lessee will be entitled to various benefits ordinarily available to
owners (as opposed to lessees) of like property.
"Termination Date" means the earlier to occur of (i) June 30, 2004 and (ii)
the date on which all Obligations owed to the Lenders have been irrevocably paid
in full and the Commitments have been terminated.
"Total Capitalization" means the sum of Consolidated Debt plus Consolidated
Net Worth.
"Treaty on European Union" means the Treaty of Rome of 25 March 1957, as
amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which was
signed at Maastricht on 7 February 1992, and came into force on 1 November 1993)
as amended from time to time.
"Unfunded Vested Liabilities" means, for any Plan at any time, the amount
(if any) by which (i) the present value of all vested nonforfeitable accrued
benefits under such Plan exceeds (ii) the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess represents a
potential liability of a member of the relevant Controlled Group to the PBGC or
the Plan.
"U.S. Dollar Equivalent" means the amount of U.S. Dollars which would be
realized by converting an Optional Currency into U.S. Dollars in the spot market
at the exchange rate quoted by the Agent, at approximately 11:00 a.m. (London,
England time) two (2) Business Days prior to the date on which a computation
thereof is required to be made, to major banks in the interbank foreign exchange
market for the purchase of U.S. Dollars for such Optional Currency.
9
"Voting Stock" of any Person means capital stock of any class or classes
(however designated) having ordinary voting power for the election of directors
of such Person, other than stock having such power only by reason of the
happening of a contingency.
"Welfare Plan" means a "welfare plan", as defined in Section 3(l) of ERISA.
"Wholly-Owned" when used in connection with any Subsidiary of the Borrower
means a Subsidiary of which all of the issued and outstanding shares of stock or
other equity interests (other than directors' qualifying shares as required by
law) are owned by the Borrower and/or one or more of its Wholly-Owned
Subsidiaries.
"Year 2000 Problem" means the risk that computer applications used by the
Borrower and its Subsidiaries may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date after
December 31, 1999.
Section 1.2. Interpretation. The foregoing definitions shall be equally
--------------
applicable to the singular and plural forms of the terms defined. All
references to times of day in this Agreement shall be references to Chicago,
Illinois time unless otherwise specifically provided. Where the character or
amount of any asset or liability or item of income or expense is required to be
determined or any consolidation or other accounting computation is required to
be made for the purposes of this Agreement, it shall be done in accordance with
GAAP as in effect from time to time except where such principles are
inconsistent with the specific provisions of this Agreement; provided that, if
the Borrower notifies the Agent that the Borrower wishes to amend any provision
hereof to eliminate the effect of any change after the date hereof in GAAP
(including its generally accepted application or interpretation) on the
operation of such provision (or if the Agent notifies the Borrower that the
Required Lenders wish to amend any provision for such purpose), then such
provision shall be interpreted, and compliance with such provision shall be
determined, on the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is withdrawn or such
provision is amended in a manner satisfactory to the Borrower, the Agent and the
Required Lenders.
Section 1.3. Euro Provisions.
---------------
(a) If and to the extent that any provision of this Agreement dealing with
Euros relates to any state (or the currency of such state) that is not a
Participating Member State on the date hereof, such provision shall become
effective in relation to such state (and the currency of such state) at and from
the date on which such state becomes a Participating Member State.
(b) If, pursuant to any applicable EMU Legislation, any Loan is capable of
being made either in the Euro or in a National Currency Unit, such Loan shall be
made in Euro or such National Currency Unit as the Borrower may select.
(c) If the basis of accrual of interest or fees expressed in this
Agreement with respect to the currency of any state that is or becomes a
Participating Member State shall be inconsistent
10
with any convention or practice in the London Interbank Market for the basis of
accrual of interest or fees in respect of the Euro, such convention or practice
shall replace such expressed basis effective as of and from the date on which
such state becomes a Participating Member State, provided, that if any Loan in
the currency of such state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Loan, at the end of the
applicable Interest Period.
(d) Without prejudice and in addition to any method of conversion or
rounding prescribed by the EMU Legislation, each reference in this Agreement to
fixed amount or fixed amounts in a National Currency Unit to be paid to or by
the Agent shall be replaced by a reference to such reasonably comparable and
convenient fixed amount or fixed amounts in the Euro Unit as the Agent may from
time to time specify.
(e) Without prejudice to the respective liabilities of the Borrower to the
Lenders and the Lenders to the Borrower under or pursuant to this Agreement,
except as expressly provided in this Section, each provision of this Agreement
shall be subject to such reasonable changes of construction as the Agent in
consultation with the Borrower may from time to time specify to be necessary or
appropriate to reflect the introduction of or changeover to the Euro in
Participating Member States.
SECTION 2. THE CREDIT FACILITIES.
Section 2.1. Ratable Borrowings under the Revolving Credit. Subject to the
---------------------------------------------
terms and conditions hereof, each Lender severally and not jointly agrees to
make one or more loans (each a "Loan") to the Borrower from time to time before
the Termination Date on a revolving basis up to the amount of its commitment set
forth on Schedule 2.1 or pursuant to Section 10.11 (for each Lender, as such
amounts may be reduced from time to time in accordance with the terms hereof,
its "Commitment" and in the aggregate the "Commitments"), subject to any
reductions thereof. The aggregate principal amount of Loans outstanding (which,
for purposes of this Agreement in the case of Eurocurrency Loans denominated in
an Optional Currency shall mean the U.S. Dollar Equivalent thereof) to the
Borrower shall not at any time exceed the Commitments in effect at such time.
Each Borrowing of Loans shall be made ratably from the Lenders in proportion to
their respective Percentages. Loans may be repaid and their principal amount
reborrowed before the Termination Date, subject to the terms and conditions
hereof.
Section 2.2. Types of Loans and Minimum Borrowing Amounts. Borrowings of
--------------------------------------------
Loans may be outstanding as either Base Rate Loans or Eurocurrency Loans, as
selected by the Borrower pursuant to Section 2.3. Each Borrowing of Base Rate
Loans shall be in an amount not less than $5,000,000, or any larger amount that
is an integral multiple of $1,000,000. Each Borrowing of Eurocurrency Loans
denominated in U.S. Dollars shall be in a minimum amount of $5,000,000 or such
greater amount which is an integral multiple of $1,000,000. Each Borrowing of
Eurocurrency Loans denominated in an Optional Currency shall be in a minimum
amount for which the U.S. Dollar Equivalent is $10,000,000 or such greater
amount which is an integral multiple of 1,000,000 units of the relevant currency
or, solely in the case of a Eurocurrency Loan
11
denominated in an Optional Currency being continued in the same currency, if
less, the same amount of such currency.
Section 2.3. Manner of Borrowing.
-------------------
(a) Notice to the Agent. The Borrower shall give irrevocable notice to the
Agent in the form of a Notice of Borrowing by no later than 10:30 a.m. (Chicago
time) (i) at least (x) three (3) Business Days in the case of Eurocurrency Loans
denominated in U.S. Dollars and (y) four (4) Business Days in the case of
Eurocurrency Loans denominated in any Optional Currency before the date on which
the Borrower requests Lenders to advance a Borrowing of Eurocurrency Loans and
(ii) on the date the Borrower requests Lenders to advance a Borrowing of Base
Rate Loans. The Loans included in each Borrowing shall bear interest initially
at the type of rate specified in such notice of Borrowing. Thereafter, the
Borrower may from time to time elect to change or continue the type of interest
rate borne by each of its Borrowings or, subject to Section 2.2's minimum amount
requirement for each outstanding Borrowing, a portion thereof, as follows: (i)
if such Borrowing is of Eurocurrency Loans, on the last day of the Interest
Period applicable thereto, the Borrower may continue part or all of such
Borrowing as Eurocurrency Loans denominated in the same currency for an Interest
Period or Interest Periods specified by the Borrower or, if such Borrowing is
denominated in U.S. Dollars, convert part or all of such Borrowing into Base
Rate Loans, (ii) if such Borrowing is of Base Rate Loans, on any Business Day,
the Borrower may convert all or part of such Borrowing into Eurocurrency Loans
for an Interest Period or Interest Periods specified by the Borrower. Notices of
the continuation of a Borrowing of Eurocurrency Loans for an additional Interest
Period or of the conversion of part or all of a Borrowing of Eurocurrency Loans
denominated in U.S. Dollars into Base Rate Loans or of Base Rate Loans into
Eurocurrency Loans must be given to the Agent in the form of a Notice of
Conversion/Continuation by no later than 10:30 a.m. (Chicago time) at least (x)
three (3) Business Days before the date of the requested continuation or
conversion for Loans denominated in U.S. Dollars and (y) four (4) Business Days
before the date of a requested continuation in the case of Eurocurrency Loans
denominated in an Optional Currency. The Borrower shall give such notices
concerning the advance, continuation, or conversion of a Borrowing by telephone
or facsimile (which notice shall be irrevocable once given and, if by telephone,
shall be promptly confirmed in writing) and shall specify the date of the
requested advance, continuation or conversion (which shall be a Business Day),
for Borrowings, the amount of the requested Borrowing, the type of Loans to
comprise such new, continued or converted Borrowing, and, if such Borrowing is
to be comprised of Eurocurrency Loans, the currency in which such Borrowing is
to be denominated and the Interest Period applicable thereto. The Borrower
agrees that the Agent may rely on any such telephonic or facsimile notice given
by any person it in good faith believes is an authorized representative of the
Borrower without the necessity of independent investigation and that, if any
such notice by telephone conflicts with any written confirmation, such
telephonic notice shall govern if the Agent has acted in reliance thereon. There
shall not be more than eight (8) Borrowings of Eurocurrency Loans outstanding at
any one time.
12
(b) U.S. Dollar Equivalent Determination. The Administrative Agent will
determine the U.S. Dollar Equivalent Amount with respect to any (i) Borrowing
comprised of Eurocurrency Loans in Optional Currencies as of the requested
borrowing date, conversion date or continuation date, (ii) outstanding Loans in
Optional Currencies as of the last Business Day of each month, and (iii) during
the occurrence and continuation of an Event of Default, such other dates as may
be requested by the Required Banks (but in no event more frequently than once a
week) (each such date a "Determination Date").
(c) Notice to the Lenders. The Agent shall give prompt telephonic, telex
or facsimile notice to each Lender of any notice received pursuant to Section
2.3(a) relating to a Borrowing. The Agent shall give notice to the Borrower and
each Lender of the interest rate applicable to each Borrowing of Eurocurrency
Loans (but, if such notice is given by telephone, the Agent shall confirm such
rate in writing) promptly after the Agent has made such determination.
(d) Borrower's Failure to Notify. In the event the Borrower fails to give
notice pursuant to Section 2.3(a) of the continuation of any outstanding
principal amount of a Borrowing of Eurocurrency Loans or the conversion of U.S.
Dollar Loans denominated in U.S. Dollars before the last day of its then current
Interest Period within the period required by Section 2.3(a) and has not
notified the Agent within the period required by Section 2.7 that it intends to
prepay such Borrowing, such Borrowing shall automatically be continued as a
Borrowing of Eurocurrency Loans in the same currency with an Interest Period of
one month, subject to Section 4.2 hereof, including the restrictions contained
in the definition of "Interest Period."
(e) Disbursement of Loans. Each Lender will make the amount of its ratable
share of each Borrowing available to the Agent for the account of the Borrower
at the Agent's Payment Office on the borrowing date requested by the Borrower in
Same Day Funds and in the requested currency (i) in the case of a Borrowing
comprised of Loans in U.S. Dollars, by 11:00 a.m. (Chicago time), (ii) in the
case of a Borrowing comprised of Optional Currency Loans, by such time as the
Agent may determine to be necessary for such funds to be credited on such date
in accordance with normal banking practices in the place of payment. The
proceeds of all such Loans will then be made available to the Borrower by the
Agent by wire transfer in accordance with written instructions provided to the
Agent by the Borrower of like funds as received by the Agent; provided that the
Agent shall disburse such funds as it has received from the Lenders to the
Borrower (x) in the case of loans denominated in U.S. Dollars, no later than
11:00 a.m. (Chicago time), and (y) in the case of Optional Currency Loans no
later than two hours after the funding deadline specified by the Agent under
clause (ii) above. No Lender shall be responsible to the Borrower for any
failure by another Lender to fund its portion of a Borrowing, and no such
failure by a Lender shall relieve any other Lender from its obligation, if any,
to fund its portion of a Borrowing.
(f) Agent Reliance on Bank Funding. Unless the Agent shall have been
notified by a Lender before the date on which such Lender is scheduled to make
payment to the Agent of the proceeds of a Loan (which notice shall be effective
upon receipt) that such Lender does not
13
intend to make such payment, the Agent may assume that such Lender has made such
payment when due and in reliance upon such assumption may (but shall not be
required to) make available to the Borrower the proceeds of the Loan to be made
by such Lender and, if any Lender has not in fact made such payment to the
Agent, such Lender shall, on demand, pay to the Agent the amount made available
to the Borrower attributable to such Lender together with interest thereon for
each day during the period commencing on the date such amount was made available
to the Borrower and ending on (but excluding) the date such Lender pays such
amount to the Agent at a rate per annum equal to the Federal Funds Rate. If such
amount is not received from such Lender by the Agent immediately upon demand,
the Borrower will, on demand, repay to the Agent the proceeds of the Loan
attributable to such Lender with interest thereon at a rate per annum equal to
the interest rate applicable to the relevant Loan.
Section 2.4. Interest Periods. As provided in Section 2.3(a), at the time
----------------
of each request for the advance or continuation of, or conversion into, a
Borrowing of Eurocurrency Loans, the Borrower shall select an Interest Period
applicable to such Loans from among the available options. The term "Interest
Period" means the period commencing on the date a Borrowing of Eurocurrency
Loans is advanced, continued, or created by conversion and ending on the date 1,
2, 3 or 6 months thereafter; provided, however, that:
(a) the Borrower may not select an Interest Period for a Borrowing of
Loans that extends beyond the Termination Date;
(b) whenever the last day of any Interest Period would otherwise be a
day that is not a Business Day, the last day of such Interest Period shall
be extended to the next succeeding Business Day; provided that if such
extension would cause the last day of such Interest Period to occur in the
following calendar month, the last day of such Interest Period shall be the
immediately preceding Business Day; and
(c) for purposes of determining an Interest Period, a month means a
period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month; provided,
however, that if there is no such numerically corresponding day in the
month in which an Interest Period is to end or if an Interest Period begins
on the last Business Day of a calendar month, then such Interest Period
shall end on the last Business Day of the calendar month in which such
Interest Period is to end.
Section 2.5. Maturity of Loans. Unless an earlier date is provided for
-----------------
under the terms of this Agreement, each Loan shall mature and become due and
payable by the Borrower on the Termination Date.
Section 2.6. Applicable Interest Rates. (a) Base Rate Loans. Each Base
------------------------- ---------------
Rate Loan shall bear interest (computed on the basis of a 365 or 366 day year,
as applicable, and actual days elapsed) on the unpaid principal amount thereof
from the date such Loan is made until maturity (whether by acceleration or
otherwise) at a rate per annum equal to the Base Rate from time to
14
time in effect, payable on each Interest Payment Date for such Loan and at
maturity (whether by acceleration or otherwise).
"Base Rate" means for any day the greater of:
(i) the floating commercial loan rate announced by the Agent from
time to time as its "reference rate" for U.S. Dollar loans, in effect on
such day, with any change in such announced rate to be effective on the
date of the relevant change; and
(ii) the sum of (x) the rate per annum (rounded upwards, if necessary,
to the nearest 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the next Business Day, provided, that
(A) if such day is not a Business Day, the rate on such transactions on the
immediately preceding Business Day so published on the next Business Day
shall apply, and (B) if no such rate is published on such next Business
Day, the rate for such day shall be the average rate quoted to the Agent on
such day for such transactions as determined by the Agent, plus (y) 1/2 of
1% (0.50%).
(b) Eurocurrency Loans. Each Eurocurrency Loan shall bear interest
------------------
(computed on the basis of (x) a year of 365 days and actual days elapsed in the
case of Eurocurrency Loans denominated in Pounds Sterling and (y) a year of 360
days and actual days elapsed in the case of all other Eurocurrency Loans;
provided that if the Borrower and the Agent mutually determine that a different
convention or practice arises with respect to Euros in the London interbank
market, computation of interest on Loans denominated in Euros shall be made
based on such convention or practice) on the unpaid principal amount thereof
from the date such Loan is made until maturity (whether by acceleration or
otherwise) at a rate per annum equal to the sum of the Applicable Eurocurrency
Margin plus the Offshore Rate applicable to such Loan, payable on each Interest
Payment Date for such Loan and at maturity (whether by acceleration or
otherwise).
"Offshore Rate" means, for any Interest Period, with respect to
-------------
Eurocurrency Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/100th of 1%) determined by
the Agent as follows:
Offshore Rate = LIBOR
---------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any Interest
-----------------------------
Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (applicable to
BofA) under regulations issued from time to time by the Board of
Governors of the Federal Reserve
15
System (or any successor) for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"); and
"LIBOR" means (i) with respect to Eurocurrency Loans denominated in
-----
U.S. Dollars or Optional Currencies other than Euros the rate of
interest per annum determined by the Agent to be the arithmetic mean
(rounded upward to the next 1/100th of 1%) of the rate of interest per
annum notified to the Agent by BofA as the rate of interest at which
deposits in U.S. Dollars or Optional Currencies in the approximate
amount of the Loan to be made or continued as, or converted into, an
Eurocurrency Rate Loan by BofA (in its capacity as a Lender) and
having a maturity comparable to such Interest Period would be offered
to major banks in the relevant interbank market at their request at
approximately 10:30 a.m. (Chicago time) two Business Days prior to the
commencement of such Interest Period and (ii) with respect to
Eurocurrency Loans denominated in Euros, the rate appearing on the
applicable page of the Dow ▇▇▇▇▇ Telerate Monitor Service (or on any
successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to
those currently provided on such page of such service, as determined
by the Agent from time to time for purposes of providing quotations of
interest rate applicable to Euro deposits in the London interbank
market or, if no such service is available the rate notified to the
Agent by BofA as the rate it would offer Euros to major banks in the
London interbank market) as a rate of interest at which Euros in the
approximate amount of the Loan to be made or continued as, or
converted into, a Eurocurrency Loan by BofA (in its capacity as a
Lender) and having a maturity comparable to such Interest Period at
approximately 10:30 a.m. (Chicago time) two Business Days prior to the
commencement of such Interest Period or such other date as is
customary in the relevant Euro interbank market.
The Eurocurrency Rate shall be adjusted automatically as to all
Eurocurrency Rate Loans then outstanding as of the effective date of any
change in the Eurodollar Reserve Percentage.
"Applicable Eurocurrency Margin" means, with respect to the
Eurocurrency Loans as follows:
16
IF AS OF THE RELEVANT APPLICABLE
MARGIN TESTING TIME, THE MARGIN FOR
CONSOLIDATED LEVERAGE EUROCURRENCY LOANS
RATIO IS
IS
Above .500 to 1 .75%
Greater than or equal to .450 to
1 but less than or equal to .500 to 1 .60%
Greater than or equal to .350 to 1
but less than .450 to 1 .50%
below .350 to 1 .40%
Not later than five (5) Business Days after the deadline for receipt by the
Agent of the financial statements called for by Section 6.6(a)(i) and (ii)
hereof for each fiscal quarter or year (each, a "Margin Testing Time"), the
Agent shall determine the Consolidated Leverage Ratio for the applicable period
based upon such financial statements and shall promptly notify the Borrower of
such determination and of any change in the Applicable Eurocurrency Margin and
the commitment fee resulting therefrom, any such change in the Applicable
Eurocurrency Margin and the commitment fee to be effective as of the delivery of
such notice to the Borrower and to continue in effect until the effective date
of the next quarterly redetermination in accordance with the foregoing; it being
-- -----
understood that if the Borrower fails to deliver the financial statements and
----------
certificate called for by Section 6.6(a)(i), (ii) or Section 6.6 (b) on or
before the 60th day (or, if applicable, the 120th day) after any fiscal quarter,
commencing on such 60th or 120th day, as applicable, until the date such
financial statements and certificate are delivered, the Applicable Eurocurrency
Margin shall be .75%. In determining the Consolidated Leverage Ratio as of any
Margin Testing Time, the Agent will accept the financial statements for the
Borrower and its Subsidiaries as prepared by the Borrower pursuant to Section
6.6 hereof, provided that such determination with respect to any calendar
quarter shall be subject to redetermination (to be effective retroactively as of
the effective date of the Applicable Eurocurrency Margin and commitment fee
being redetermined) in the event the final audited statements of the Borrower so
indicate for such calendar quarter. Any determination by the Agent of the
Consolidated Leverage Ratio shall be conclusive and binding upon the Borrower
absent demonstrable error provided that it has been made in good faith. The
Applicable Eurocurrency Margin on the Effective Date shall be .50%.
(c) Rate Determinations. The Agent shall determine each interest rate
-------------------
applicable to the Loans hereunder and such determination shall be conclusive and
binding except in the case of demonstrable error or willful misconduct.
17
Section 2.7. Optional Prepayments. Subject to Section 2.11, the Borrower
--------------------
may, at any time or from time to time, by giving the Agent irrevocable notice
not later than (i) 10:30 a.m. (Chicago time) on the date of the proposed
prepayment, in the case of Base Rate Loans, (ii) 10:30 a.m. (Chicago time) three
Business Days prior to the proposed payment date, in the case of Eurocurrency
Loans in U.S. Dollars and (iii) 10:30 a.m. (Chicago time) four Business Days
prior to the proposed payment date in the case of Eurocurrency Rate Loans in
Optional Currencies, ratably prepay Loans in whole or in part, in minimum
amounts of (x) $5,000,000 or any multiple of $1,000,000 in excess thereof, in
the case of loans denominated in U.S. Dollars and (y) the U.S. Dollar Equivalent
of $10,000,000 or such greater amount which is an integral multiple of 1,000,000
units of the relevant currency thereof, in the case of Loans in Optional
Currencies. Such notice of prepayment shall specify the date and amount of such
prepayment and the type(s) of Loans to be prepaid and the relevant currency.
The Agent will promptly notify each Lender of its receipt of any such notice and
of the Lenders' ratable share of such prepayment. If such notice is given by
the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein,
together with, in the case of Eurocurrency Loans, accrued interest to each such
date on the amount prepaid and any amounts required pursuant to Section 2.11.
Section 2.8. Mandatory Prepayments of Loans. If on any Determination Date
------------------------------
the Agent shall have determined that the aggregate U.S. Dollar Equivalent of
all Loans then outstanding exceeds the combined Commitments of the Lenders by
more than $250,000, due to a change in applicable rates of exchange between U.S.
Dollars and Optional Currencies, then the Agent shall give notice to the
Borrower that a prepayment is required under this Section and the Borrower shall
be obligated to pay the amount of such excess to the Agent within one Business
Day of the Borrower's receipt of such notice for the ratable benefit of the
Lenders as repayment of the Loans such that, after giving effect to such
prepayment the aggregate U.S. Dollar Equivalent amount of all Loans does not
exceed the combined Commitments. Payments of Loans under this Section 2.8 shall
be applied (and to the extent necessary made in the applicable currency) to
repay first, Base Rate Loans and second, Eurocurrency Loans. Each such
repayment, in the case of Eurocurrency Loans, shall be accompanied by a payment
of all accrued and unpaid interest on the Loans prepaid and shall be subject to
Section 2.11.
Section 2.9. Default Rate. If any payment of principal on any Loan is not
------------
made when due (whether by acceleration or otherwise), such Loan shall bear
interest (computed on the basis of a year of 360 days and actual days elapsed)
from the date such payment was due until paid in full, payable on demand, at a
rate per annum equal to:
(a) for any Base Rate Loan, the sum of two percent (2%) per annum
plus the Base Rate from time to time in effect; and
(b) for any Eurocurrency Loan, the sum of two percent (2%) per annum
plus the rate of interest in effect thereon at the time of such default
until the end of the Interest Period for such Loan and, thereafter, at a
rate per annum equal to the sum of two percent (2%) per annum plus the Base
Rate from time to time in effect.
18
Section 2.10. Loan Accounts. Each Lender shall record on its books and
-------------
records the amount of each Loan outstanding from it to the Borrower, all
payments of principal and interest and the principal balance from time to time
outstanding thereon, the type of such Loan and, if a Eurocurrency Loan, the
applicable currency, Interest Period and interest rate applicable thereto. Such
record shall be prima facie evidence as to all such matters; provided, however,
that the failure of any holder to record any of the foregoing or any error in
any such record shall not limit or otherwise affect the obligation of the
Borrower to repay all Loans outstanding to it hereunder together with accrued
interest thereon.
Section 2.11. Funding Indemnity. If any Lender incurs any loss, cost or
-----------------
expense (including, without limitation, any loss of profit and any loss, cost,
expense or premium incurred by reason of the liquidation or re-employment of
deposits or other funds acquired by such Lender to fund or maintain any
Eurocurrency Loan or the relending or reinvesting of such deposits or amounts
paid or prepaid to such Lender) as a result of:
(a) any payment or prepayment of a Eurocurrency Loan on a date other
than the last day of its Interest Period (whether by acceleration,
mandatory prepayment or otherwise), or
(b) any failure (because of a failure to meet the conditions of
Section 4 or otherwise) by the Borrower to borrow a Eurocurrency Loan on
the date specified in a notice given pursuant to Section 2.3(a),
then, upon the demand of such Lender, the Borrower shall pay to such Lender such
amount as will reimburse such Lender for such loss, cost or expense (but
excluding the Applicable Eurocurrency Margin which would have otherwise accrued
on such prepaid amount). If any Lender makes such a claim for compensation, it
shall provide to the Borrower a certificate executed by an officer of such
Lender setting forth the amount of such loss, cost or expense in reasonable
detail (including an explanation of the basis for and the computation of such
loss, cost or expense), and the amounts shown on such certificate shall be
conclusive and binding absent manifest error.
Section 2.12. Commitment Reductions. The Borrower shall have the right at
---------------------
any time and from time to time, upon five (5) Business Days' prior written
notice to the Agent, to terminate the Commitments without premium or penalty, in
whole or in part, any partial termination to be in an amount not less than
$10,000,000, and in each case in integral multiples of $1,000,000, and such
termination shall be allocated ratably among the Lenders in proportion to their
respective Commitments; provided that the Commitments may not be reduced to an
amount less than the sum of the aggregate principal amount of Loans then
outstanding. The Agent shall give prompt notice to each Lender of any such
termination of Commitments. Any termination of Commitments pursuant to this
Section 2.12 may not be reinstated.
19
SECTION 3. FEES AND PAYMENTS.
Section 3.1. Fees. (a) Commitment Fee. For the period from the Effective
----
Date to and including the Termination Date, the Borrower shall pay to the Agent
for the ratable account of the Lenders a commitment fee accruing at a rate per
annum (computed on a basis of a year of 360 days, as the case may be, and actual
days elapsed) on the actual daily difference between the Commitments and the
principal amount of Loans outstanding (which amount, for purposes of this
Section 3.1(a) shall, with regard to Eurocurrency Loans denominated in any
Optional Currency, be based on the U.S. Dollar Equivalent determined from time
to time on the applicable Determination Dates) as follows:
IF AS OF THE RELEVANT
MARGIN TESTING TIME, THE
CONSOLIDATED LEVERAGE
RATIO COMMITMENT FEE
IS IS
Above .500 to 1 .25%
Greater than or equal to .450 to
1 but less than or equal to .500 to 1 .20%
Greater than or equal to .350 to 1
but less than .450 to 1 .175%
below .350 to 1 .15%
such fee being payable in arrears commencing on September 30, 1999, on the last
day of each calendar quarter thereafter and on the Termination Date, unless the
Commitments are terminated in whole on an earlier date, in which event the
commitment fee for the period to but not including the date of such termination
shall be paid in whole on the date of such termination. The applicable
commitment fee shall be determined in accordance with the last paragraph of
Section 2.6(b). In the event the required financial statements and certificate
have not been delivered by the time required, the commitment fee shall be .25%
until such financial statements are delivered. The commitment fee on the
Effective Date shall be .175%.
(b) Agent and Administration Fees. The Borrower shall pay to the Agent and
the Arranger the fees agreed to among the Agent, the Arranger and the Borrower
in a letter dated June 1, 1999 (the "Fee Letter") or as otherwise agreed between
them in writing.
Section 3.2. Place and Application of Payments. All payments to be made by
---------------------------------
the Borrower shall be made without set-off, recoupment or counterclaim. Except
as otherwise expressly provided herein, all payments by the Borrower shall be
made to the Agent for the account of the Lenders at the Agent's Payment Office
and, with respect to principal of, and interest on and any other amounts
relating to, any Eurocurrency Loan in Optional Currency, shall
20
be made in the Optional Currency in which such Loan is denominated or payable,
and, with respect to all other amounts payable hereunder, shall be made in U.S.
Dollars. Such payment shall be made in Same Day Funds, and (i) in the case of
Optional Currency payments, no later than such time on the dates specified
herein as may be determined by the Agent to be necessary for such payment to be
credited on such date in accordance with normal banking procedures in the place
of payment, and (ii) in the case of any U.S. Dollar payments, no later than
10:30 a.m. (Chicago time), on the date specified. The Agent will promptly
distribute like funds to each Lender, pro rata, based on each Lender's
Percentage. Any payment which is received by the Agent later than the time
determined as provided in clauses (i) and (ii) above, shall be deemed to have
been received on the following Business Day and any applicable interest or fee
shall continue to accrue.
Section 3.3. Withholding Taxes.
-----------------
(a) Payments Free of Withholding. Except as otherwise required by law and
subject to Sections 3.3(b) and (c), each payment by the Borrower under, this
Agreement shall be made without withholding for or on account of any present or
future taxes (other than taxes imposed on, or measured by reference to, the net
income or net profits of, or franchise taxes imposed on, the recipient) imposed
by or within the jurisdiction in which the Borrower is domiciled, any
jurisdiction from which the Borrower makes any payment, or (in each case) any
political subdivision or taxing authority thereof or therein. If any such
withholding is so required, the Borrower shall make the withholding, pay the
amount withheld to the appropriate Governmental Authority before penalties
attach thereto or interest accrues thereon and forthwith pay such additional
amount as may be necessary to ensure that the net amount actually received by
each Lender and the Agent free and clear of such taxes (including such taxes on
such additional amount) is equal to the amount that Lender or the Agent (as the
case may be) would have received had such withholding not been made. If the
Agent or any Lender pays any amount in respect of any such taxes, penalties or
interest the Borrower shall reimburse the Agent or that Lender for that payment
on demand in the currency in which such payment was made. If the Borrower pays
any such taxes, penalties or interest, it shall deliver written evidence of such
payment to the Lender or Agent on whose account such withholding was made (with
a copy to the Agent if not the recipient of the original) on or before the
thirtieth day after payment.
(b) U.S. Withholding Tax Exemptions. Each Lender that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) shall
submit to the Borrower and the Agent, two duly completed and signed copies of
either Form 1001 (entitling such Lender to a complete exemption from withholding
under the Code on all amounts to be received by such Lender, including fees,
hereunder) or Form 4224 (relating to all amounts to be received by such Lender,
including fees, hereunder) of the United States Internal Revenue Service.
Thereafter and from time to time, each Lender shall submit to the Borrower and
the Agent such additional duly completed and signed copies of one or the other
of such Forms (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may be (i) notified by the
Borrower, directly or through the Agent, to such Lender and (ii) required under
then-current United States law or regulations to avoid or reduce United States
withholding taxes
21
on payments in respect of all amounts to be received by such Lender, including
fees, hereunder. Upon the request of the Borrower, each Lender that is a United
States person (as such term is defined in Section 7701(a)(30) of the Code) shall
submit to the Borrower a certificate to the effect that it is such a United
States person.
(c) Notwithstanding the foregoing, the Borrower shall not be required to
make any payments or reimburse the Agent or any Lender under this Section 3.3
with respect to any taxes imposed on or paid by the Agent or such Lender more
than one hundred eighty (180) days before the date on which a request for
payment or reimbursement is delivered to the Borrower. If the Agent or any
Lender is entitled to additional payments or reimbursement under this Section
3.3, it agrees to designate a different Lending Office if such designation will
avoid the need for, or reduce the amount of, such additional payments or
reimbursement and will not, in the sole judgment of the Agent or such Lender, be
otherwise disadvantageous to it.
SECTION 4. CONDITIONS PRECEDENT.
Section 4.1. Agreement Effectiveness. This Agreement shall be and become
-----------------------
effective on the date (the "Effective Date") on which the Borrower, the Lenders
and the Agent shall have executed and delivered this Agreement and the Agent
shall have received (or, in the case of Sections 4.1(e), (f) and (g), the Agent
shall be satisfied that such conditions are met) all of the following, each duly
executed and dated the Effective Date (or such earlier date as shall be
satisfactory to the Agent) in form and substance satisfactory to the Agent:
(a) the opinion of Sidley & Austin, legal counsel to the Borrower covering
the matters referred to in Sections 5.1 through 5.5, 5.7 and 5.8 of this
Agreement and such additional matters as the Agent or Required Lenders may
reasonably require;
(b) copies of resolutions of the Board of Directors of the Borrower
authorizing the execution and delivery of the Credit Documents to which it is a
party, certified by the Secretary or Assistant Secretary of the Borrower;
(c) specimen signatures of the persons authorized to execute Credit
Documents on the Borrower's behalf, certified by the Secretary or Assistant
Secretary of the Borrower;
(d) payment of all fees then due and owing to the Agent and each Lender
under Section 3.1;
(e) all legal matters incident to the execution and delivery of the Credit
Documents shall be satisfactory to the Required Lenders and no event having a
Material Adverse Effect shall have occurred since December 31, 1998;
(f) evidence, reasonably satisfactory to the Agent, that (i) all
outstanding Debt under the Existing Credit Agreements have been, or concurrently
with the issuance of the initial Loans
22
will be, paid in full and (ii) all commitments under the Existing Credit
Agreements have been or concurrently with the issuance of the initial Loans will
be terminated; and
(g) there shall not have been any material disruption in the capital
markets generally which could, in the reasonable good faith determination of the
Agent, have a materially adverse effect on the ability to extend, or maintain
any commitment to extend, at the time contemplated hereby, senior bank financing
of the type contemplated hereby or to syndicate the same.
Section 4.2. All Credit Events. At the time of each Credit Event
-----------------
hereunder:
(a) The Agent shall have received the notice required by Section 2.3;
(b) Each of the representations and warranties of the Borrower set
forth in Section 5 shall be and remain true and correct in all material
respects as of the date of such Credit Event, except to the extent that any
such representation or warranty relates solely to an earlier date, in which
case it shall have been true and correct as of such earlier date; and
(c) No Default or Event of Default shall have occurred and be
continuing or would occur as a result of such Credit Event.
Each request for a Borrowing and each request for the conversion or continuance
of a Borrowing shall be deemed to be a representation and warranty by the
Borrower on the date of such Borrowing, conversion or continuance as to the
facts specified in subsections (b) and (c) of this Section 4.2.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to each Lender and the Agent as
follows:
Section 5.1. Organization. (a) The Borrower and each of its Subsidiaries:
------------
(i) is duly organized and existing and in good standing under the laws of the
jurisdiction of its organization; (ii) has all necessary power to own the
Property and assets it uses in its business and otherwise to carry on its
present business and the business it currently proposes to transact; and (iii)
is duly licensed or qualified and in good standing in each jurisdiction in which
the nature of the business transacted by it or the nature of the property owned
or leased by it makes such licensing or qualification necessary and in which the
failure to be so licensed or qualified would have a Material Adverse Effect.
(b) As of the Effective Date, the Borrower has no Subsidiaries other than
those Subsidiaries listed on Schedule 5.1.
Section 5.2. Corporate Power and Authority. The Borrower has the corporate
-----------------------------
power and authority to execute, deliver and carry out the terms and provisions
of the Credit Documents to
23
which it is a party and has taken all necessary corporate action to authorize
the execution, delivery and performance of such Credit Documents. The Borrower
has duly executed and delivered each Credit Document to which it is a party and
each such Credit Document constitutes the legal, valid and binding obligation of
the Borrower enforceable in accordance with its terms, except that
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
fraudulent transfer, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in equity or
at law).
Section 5.3. No Violation. Neither the execution, delivery or performance
------------
by the Borrower of the Credit Documents to which it is a party nor compliance by
it with the terms and provisions thereof, nor the consummation of the
transactions contemplated herein or therein, will (i) contravene any applicable
provision of any law, statute, rule or regulation, or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) conflict
with or result in any breach of any term, covenant, condition or other provision
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any Lien upon any of the property or
assets of the Borrower or any of its Subsidiaries under the terms of any
Contractual Obligation to which the Borrower or any of its Subsidiaries is a
party or by which it or any of its property or assets are bound or to which it
may be subject or (iii) violate any provision of the Articles of Incorporation
or By-Laws or corresponding organizational documents of the Borrower or any of
its Subsidiaries.
Section 5.4. Governmental Authorization. No material approval, consent,
--------------------------
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority which has not been obtained or given is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, the Borrower of any Credit Document.
Section 5.5. Litigation. There are no actions, suits or proceedings
----------
pending or, to the knowledge of the Borrower or any of its Subsidiaries,
threatened, involving the Borrower or any of its Subsidiaries (i) that are
likely to have a Material Adverse Effect or (ii) that could reasonably be
expected to have a material adverse effect on the rights or remedies of the
Lenders or on the ability of the Borrower to perform its obligations to the
Lenders under this Agreement.
Section 5.6. Use of Proceeds; Margin Regulations. (a) The proceeds of all
-----------------------------------
Loans shall be used (i) to pay fees and expenses incurred in connection with
this Agreement, (ii) to repay Debt under the Existing Credit Agreements and
(iii) for general corporate purposes.
(b) No proceeds of any Loan will be used to purchase or carry any "margin
stock" (as defined in Regulation U of the Board of Governors of the Federal
Reserve System) or to extend credit for the purpose of purchasing or carrying
any "margin stock."
(c) Notwithstanding any of the foregoing, no proceeds of any Loan will be
used to finance, fund or complete any hostile acquisition of any Person.
24
Section 5.7. Investment Company Act. Neither the Borrower nor any of its
----------------------
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
Section 5.8. Public Utility Holding Company Act. Neither the Borrower nor
----------------------------------
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
Section 5.9. True and Complete Disclosure. All factual information
----------------------------
heretofore or contemporaneously furnished by or on behalf of the Borrower or its
Subsidiaries to the Agent or any Lender (including, without limitation, all
information contained herein) in connection with this agreement or any
transaction contemplated herein is, and all other such factual information
hereafter furnished by or on behalf of any such Persons in writing to the Agent
or any Lender will be, true and accurate in all material respects on the date of
such information and not incomplete by omitting to state any material fact
necessary to make such information not misleading at such time in light of the
circumstances under which such information was provided.
Section 5.10. Financial Statements. The audited consolidated financial
--------------------
statements of the Borrower as at December 31, 1998 and the unaudited
consolidated financial statements of the Borrower for the three month period
ended March 31, 1999, copies of which have been delivered to the Lenders, in
each case (i) have been prepared in accordance with GAAP consistently applied
throughout the periods involved (except as disclosed therein) and (ii) fairly
present on a consolidated basis the financial position of the Borrower and its
Subsidiaries, as of the dates thereof, and the results of operations for the
periods covered thereby. The Borrower and its Subsidiaries have no material
contingent liabilities other than those disclosed in the financial statements
referred to in this Section 5.10 or in any supplemental report already furnished
to the Lenders in writing. With respect to any representation and warranty
which is deemed to be made after the date hereof by the Borrower this
representation shall be deemed to refer to the financial statements most
recently delivered by the Borrower to the Lenders.
Section 5.11. No Material Adverse Change. No event has occurred which had a
--------------------------
Material Adverse Effect since December 31, 1998.
Section 5.12. Labor Controversies. There are no labor controversies pending
-------------------
or, to the best knowledge of the Borrower or its Subsidiaries, threatened
against the Borrower and its Subsidiaries that can reasonably be foreseen to
threaten a Material Adverse Effect.
Section 5.13. Taxes. The Borrower and its Subsidiaries have filed all
-----
United States federal tax returns and all other tax returns required to be filed
and have paid all taxes due, except such taxes, if any, as are being contested
in good faith and for which adequate reserves have been provided. No tax liens
have been filed and no claims are being asserted for taxes, which liens or
claims could have a Material Adverse Effect. The charges, accruals and reserves
25
on the books of the Borrower and its Subsidiaries for taxes and other
governmental charges are adequate.
Section 5.14. ERISA. The Borrower and its Subsidiaries and each other
-----
member of its Controlled Group has fulfilled its obligations under the minimum
funding standards of and is in compliance in all material respects with the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and with
the Code to the extent applicable to it, and has not incurred any liability to
the Pension Benefit Guaranty Corporation ("PBGC") or a Plan under Title IV of
ERISA other than a liability to the PBGC for premiums under Section 4007 of
ERISA. Neither the Borrower nor its Subsidiaries have any contingent liability
with respect to any post-retirement benefits under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Title I of ERISA.
Section 5.15. Intellectual Property. The Borrower and its Subsidiaries own
---------------------
or hold a valid license to use all the material patents, trademarks, permits,
service marks, trade names, technology, know-how and formulas or other rights
related to the foregoing, free of any burdensome restrictions, that are used in
the operation of the business of the Borrower or of its Subsidiaries as
presently conducted and as proposed to be conducted as determined by the
Borrower and its Subsidiaries in their reasonable judgment, except for such
intellectual property or burdensome restrictions which are not likely to
individually or in the aggregate, have a Material Adverse Effect.
Section 5.16. Compliance with Statutes, Etc. The Borrower and its
-----------------------------
Subsidiaries are in compliance with all applicable statutes, regulations and
orders of and all applicable restrictions imposed by, all governmental bodies,
domestic and foreign, in respect of the conduct of its business and the
ownership of its Property, except such non-compliance as is not likely to,
individually or in the aggregate, have a Material Adverse Effect.
Section 5.17. Environmental Matters. (a) The Borrower and its Subsidiaries
---------------------
have complied with, and on the date of each Credit Event are in compliance with,
all applicable Environmental Laws and the requirements of any permits issued
under such Environmental Laws except to the extent such noncompliance is not
likely to have a Material Adverse Effect. There are no pending or, to the best
knowledge of the Borrower and its Subsidiaries, past or threatened Environmental
Claims against the Borrower or its Subsidiaries of any real property owned or
operated by the Borrower or its Subsidiaries that individually or in the
aggregate would reasonably be expected to have a Material Adverse Effect. There
are no conditions or occurrences on any real property owned or operated by the
Borrower or its Subsidiaries or, to the best knowledge of the Borrower and its
Subsidiaries, on any property adjoining or in the vicinity of any such real
property that would reasonably be expected (i) to form the basis of an
Environmental Claim against the Borrower or its Subsidiaries or any such real
property that individually or in the aggregate would reasonably be expected to
have a Material Adverse Effect or (ii) to cause any such real property to be
subject to any restrictions on the ownership, occupancy, use or transferability
of such real property by the Borrower or its Subsidiaries under
26
any applicable Environmental Law which restrictions are likely to have a
Material Adverse Effect.
(b) Hazardous Materials have not at any time been generated, used, treated
or stored on, or transported to or from, any real property owned or operated by
the Borrower or its Subsidiaries in a manner that has violated or would
reasonably be expected to violate any Environmental Law except such violations
as are not likely, individually or in the aggregate, to have a Material Adverse
Effect. Hazardous Materials have not at any time been released on or from any
real property located in the United States owned or operated by the Borrower or
any of its Subsidiaries except such releases as are not likely, individually or
in the aggregate, to have a Material Adverse Effect. To the best of the
Borrower's knowledge, there are not now any underground storage tanks located on
any real property located in the United States owned or operated by the Borrower
or its Subsidiaries.
Section 5.18. Existing Debt. Schedule 5.18 contains a complete list of all
-------------
Debt (other than the Obligations hereunder and under the Existing Credit
Agreements) of the Borrower and its Subsidiaries as of March 31, 1999 and all
other Debt incurred by the Borrower or any of its Subsidiaries between March 31,
1999 and the Effective Date which had an original principal amount in excess of
$25,000,000.
Section 5.19. No Burdensome Restrictions; Compliance with Agreements.
------------------------------------------------------
Neither the Borrower nor any of its Subsidiaries is party or subject to any law,
regulation, rule or order, or any Contractual Obligation that (individually or
in the aggregate) has or reasonably could be foreseen to have a Material Adverse
Effect.
Section 5.20. Year 2000 Problem. The Borrower and its Subsidiaries have
-----------------
reviewed the areas within their business and operations which could be adversely
affected by, and have developed or are developing a program to address on a
timely basis, the Year 2000 Problem. Based on such review and program, the
Borrower reasonably believes that the Year 2000 Problem will not have a Material
Adverse Effect.
SECTION 6. COVENANTS.
The Borrower covenants and agrees that, so long as any Loan is outstanding
or any Commitment is available to or in use by the Borrower hereunder, except to
the extent compliance in any case is waived in writing by the Required Lenders:
Section 6.1. Existence. The Borrower will, and will cause each of its
---------
Subsidiaries to, preserve and maintain its existence, subject to the provisions
of Section 6.11.
Section 6.2. Maintenance. The Borrower will, and will cause each of its
-----------
Subsidiaries to, maintain, preserve and keep its plants, properties and
equipment necessary to the proper conduct of its business in reasonably good
repair, working order and condition and will from time to time make all
reasonably necessary repairs, renewals, replacements, additions and betterments
thereto
27
so that at all times such plants, properties and equipment are reasonably
preserved and maintained; provided, however, that nothing in this Section 6.2
shall prevent the Borrower or any of its Subsidiaries from discontinuing the
operation or maintenance of any such properties if such discontinuance is, in
the judgment of the Borrower or any such Subsidiary, as applicable, desirable in
the conduct of its business or the business of its Subsidiary and not
disadvantageous to the Lenders.
Section 6.3. Taxes. The Borrower will, and will cause each of its
-----
Subsidiaries to, duly pay and discharge all taxes, rates, assessments, fees and
governmental charges upon or against it or its properties before payment is
delinquent and before penalties accrue thereon, unless and to the extent that
the same is being contested in good faith and by appropriate proceedings and
appropriate reserves have been established in conformity with GAAP.
Section 6.4. ERISA. The Borrower will, and will cause each of its
-----
Subsidiaries to, promptly pay and discharge all obligations and liabilities
arising under ERISA of a character which if unpaid or unperformed might result
in the imposition of a Lien against any of its properties or assets and will
promptly notify the Agent of (i) the occurrence of any reportable event (as
defined in ERISA) relating to a Plan, other than any such event of which the
PBGC has waived notice by regulation, (ii) receipt of any notice from PBGC of
its intention to seek termination of any Plan or appointment of a trustee
therefor, (iii) its or any of its Subsidiaries' intention to terminate or
withdraw from any Plan, and (iv) the occurrence of any event that could result
in the incurrence by any member of the Controlled Group of any material
liability, fine or penalty, or any material increase in the contingent liability
of the Borrower or any of its Subsidiaries in connection with any post-
retirement Welfare Plan benefit.
Section 6.5. Insurance. The Borrower will, and will cause each of its
---------
Subsidiaries to, insure, and keep insured, all insurable Property and assets
owned by it of a character usually insured by companies similarly situated and
operating like Property or assets, to the extent usually insured (subject to
self-insured retentions) by such similar companies. The Borrower and each of
its Subsidiaries will also insure employers' and public and product liability
risks. The Borrower will, upon request of the Agent, furnish to the Agent a
summary setting forth the nature and extent of the insurance maintained pursuant
to this Section 6.5.
Section 6.6. Financial Reports and Other Information. (a) The Borrower and
---------------------------------------
its Subsidiaries will maintain a system of accounting in accordance with
generally accepted accounting principles and will furnish to the Agent and each
Lender such information about the business and financial condition of the
Borrower and its Subsidiaries as the Agent may reasonably request; and, without
any request, will furnish to the Agent and each Lender:
(i) Within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal
quarter and the related consolidated statement of income and of cash flow
for such fiscal quarter and for the portion of the fiscal year ended with
the last day of such fiscal quarter, all of which shall be in reasonable
detail
28
and certified by the Executive Vice President or the Vice President-Risk
Management of the Borrower that they fairly present the financial condition
of the Borrower and its Subsidiaries (as applicable) as of the dates
indicated and the results of their operations and changes in their cash
flows for the periods indicated and that it has been prepared in accordance
with the terms of this Agreement, subject to normal year-end audit
adjustments.
(ii) Within 120 days after the end of each fiscal year of the
Borrower, the consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year and the related consolidated
statement of income and retained earnings and of cash flows for such fiscal
year and setting forth consolidated comparative figures for the preceding
fiscal year certified by PriceWaterhouse Coopers or other independent
certified public accountants of recognized national standing, in each case
to the effect that such statements fairly present the financial condition
of the Borrower and its Subsidiaries as of the dates indicated and the
results of their operations and changes.
(iii) Promptly after the sending or filing thereof, copies of all
financial statements and projections that the Borrower sends to its
shareholders and copies of all filings and registrations with, and reports
to, the SEC by the Borrower or any of its Subsidiaries.
(b) Each financial statement furnished to the Agent and each Lender
pursuant to subsections (i) and (ii) of Section 6.6(a) shall be accompanied by
(A) a written certificate signed by the Borrower's Executive Vice President or
Vice President-Risk Management to the effect that (i) no Default or Event of
Default has occurred during the period covered by such statements or, if any
such Default or Event of Default has occurred during such period, setting forth
a description of such Default or Event of Default and specifying the action, if
any, taken by the Borrower to remedy the same, and (ii) the representations and
warranties contained in Section 5 are true and correct in all material respects
as though made on the date of such certificate, except as otherwise described
therein, and (B) a Compliance Certificate in the form of Exhibit C showing the
Borrower's compliance with the covenants set forth in Sections 6.14, 6.15, 6.17
and 6.18, and attaching an updated Schedule 5.1 if any information pertaining
thereto has changed since the previous Compliance Certificate was submitted.
(c) Promptly after obtaining knowledge of any of the following, the
Borrower shall provide each Lender with written notice in reasonable detail of:
(i) any pending or threatened material Environmental Claim against
the Borrower or any of its Subsidiaries or any real property owned or
operated by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on any real property owned or
operated by the Borrower or any of its Subsidiaries that (x) results in
material noncompliance by the Borrower or any of its Subsidiaries with any
Environmental Law or (y) could reasonably
29
be anticipated to form the basis of a material Environmental Claim against
the Borrower or any of its Subsidiaries or any such real property;
(iii) any condition or occurrence on any real property owned or
operated by the Borrower or any of its Subsidiaries that could reasonably
by anticipated to cause such real property to be subject to any material
restrictions on the ownership, occupancy, use or transferability by the
Borrower or its Subsidiary, as the case may be, of its interest in such
real property under any Environmental Law; and
(iv) the taking of any material removal or remedial action in
response to the actual or alleged presence of any Hazardous Material on any
real property owned or operated by the Borrower or any of its Subsidiaries.
For purposes of this Section 6.6(c), "material" shall refer to an event or
circumstance that could reasonably be expected to result in losses, costs or
liabilities (in excess of any cash escrow available to the Borrower),
individually or in the aggregate, in excess of $1,500,000.
(d) The Borrower will promptly (and in any event within one Business Day
after an officer of the Borrower has knowledge thereof) give notice to the Agent
of:
(i) the occurrence of any Default or Event of Default;
(ii) any default or event of default under any Contractual Obligation
of the Borrower or any of its Subsidiaries which is likely to have a
Material Adverse Effect;
(iii) any litigation or governmental proceeding of the type described
in clause (i) or (ii) of Section 5.5;
(iv) any circumstance that has had a Material Adverse Effect; and
(v) any information indicating that the Year 2000 Problem could
reasonably be expected to have a Material Adverse Effect.
Section 6.7. Lender Inspection Rights. Upon reasonable notice from the
------------------------
Agent the Borrower will permit the Agent (and such Persons as the Agent may
designate as well as any Lender who wishes to accompany the Agent) during normal
business hours to visit and inspect any of the properties of the Borrower to
examine all its books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss its respective affairs, finances
and accounts with its officers, employees and independent public accountants
(and by this provision the Borrower authorizes such accountants to discuss with
the Agent (and such Persons as the Agent may designate) the finances and affairs
of the Borrower and its Subsidiaries) all at such reasonable times and as often
as may be reasonably requested.
30
Section 6.8. Conduct of Business. The Borrower and each of its
-------------------
Subsidiaries will not engage in any line of business outside the packaging
industry.
Section 6.9. Fiscal Years and Quarters. The Borrower will, for financial
-------------------------
reporting purposes, maintain for itself and its Subsidiaries a fiscal year that
ends on December 31 of each year and fiscal quarters that end on March 31, June
30, September 30 and December 31 of each year.
Section 6.10. Limitation on Certain Restrictions on Subsidiaries. The
--------------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise permit to exist or become effective any Lien or
restriction on the ability of any such Subsidiary to (a) pay dividends or make
any other distributions on its capital stock or any other interest or
participation in its profits owned by the Borrower or any Subsidiary of the
Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of the
Borrower, or (b) make loans or advances to the Borrower or any Subsidiaries of
the Borrower, except for such Liens or restrictions existing under or by reason
of (i) applicable law, (ii) this Agreement, (iii) customary provisions
restricting subletting or assignment of any lease governing a leasehold interest
of the Borrower or a Subsidiary of the Borrower and (iv) customary provisions
restricting assignment of any licensing agreement entered into by the Borrower
or a Subsidiary of the Borrower in the ordinary course of business.
Section 6.11. Mergers, Consolidations and Asset Sales. (a) The Borrower
---------------------------------------
will not, and will not permit any of its Subsidiaries to, be a party to any
merger or consolidation or engage in any Asset Sale of all or a "substantial
part" of the consolidated assets (including assets consisting of stock) of the
Borrower and its Subsidiaries, except for any such merger or consolidation (x)
by any Subsidiary into or with the Borrower or into or with any Subsidiary, (y)
by any Subsidiary provided the survivor is a Subsidiary or (z) by the Borrower
provided the Borrower is the surviving corporation. As used in this Section
6.11(a), an Asset Sale shall be deemed to be of a "substantial part" of the
consolidated assets of the Borrower and its Subsidiaries if the book value of
such assets, when added to the book value of all other assets (including assets
consisting of stock) sold, leased, transferred or disposed of by the Borrower
and its Subsidiaries since December 31, 1998 (other than inventory in the
ordinary course of business) exceeds 5% of their consolidated assets (including
assets consisting of stock) as of the date of the most recent annual audited
financial statements delivered to the Lenders.
(b) The Borrower will not permit any of its Subsidiaries to issue or sell
any shares of stock of any class (including as "stock" for the purpose of this
subsection any warrants, rights or options to purchase or otherwise acquire
stock or other Securities exchangeable for or convertible into stock) of such
Subsidiary to any Person other than the Borrower or a Wholly-Owned Subsidiary of
the Borrower, except for the purpose of qualifying directors, if the effect of
such issuance of sale would be to dilute the voting rights or ownership
interests of the Borrower in any such Subsidiary to fifty percent (50%) or less.
31
Section 6.12. Use of Property and Facilities; Environmental, Health and
---------------------------------------------------------
Safety Laws. The Borrower will, and will cause each of its Subsidiaries to,
-----------
comply in all material respects with all Environmental Laws applicable to or
affecting the properties or business operations of the Borrower or its
Subsidiaries except to the extent such noncompliance is not likely to have a
Material Adverse Effect.
Section 6.13. Liens. The Borrower will not, and will not permit any of its
-----
Subsidiaries to, create, incur, assume or suffer to exist any Lien of any kind
on any Property or asset of any kind of the Borrower or any Subsidiary of the
Borrower, except the following (collectively, the "Permitted Liens"):
(a) Liens arising in the ordinary course of business by operation of
law in connection with worker's compensation, unemployment insurance, old
age benefits, social security obligations, taxes, assessments, statutory
obligations or other similar charges, good faith deposits, pledges or other
Liens in connection with bids, tenders, contracts or leases to which the
Borrower or its Subsidiaries is a party or other deposits required to be
made in the ordinary course of business; provided that in each case the
obligation secured is not for Debt and is not overdue or, if overdue, is
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP have been provided therefor;
(b) mechanics', worker's, materialmen's, landlords', carriers' or
other similar Liens arising in the ordinary course of business (or deposits
to obtain the release of such Liens) related to obligations not due or, if
due, that are being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP have been provided therefor;
(c) Liens for taxes or assessments or other government charges or
levies not yet due or which are being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP have been
provided therefor;
(d) Liens arising out of judgments or awards against the Borrower or
any of its Subsidiaries, or in connection with surety or appeal bonds in
connection with bonding such judgments or awards, the time for appeal from
which or petition for rehearing of which shall not have expired or which
the Borrower or such Subsidiary shall be prosecuting an appeal or
proceeding for review, and for which it shall have obtained a stay of
execution pending such appeal or proceeding for review; provided that the
aggregate amount of liabilities (including interest and penalties, if any
but excluding any liabilities covered by insurance) of the Borrower and its
Subsidiaries secured by such Liens shall not exceed $5,000,000 at any one
time outstanding;
(e) Liens upon any Property acquired by the Borrower or any of its
Subsidiaries (A) to secure the payment of all or any part of the purchase
price of such Property upon its acquisition, (B) to secure Debt issued,
assumed or guaranteed by the
32
Borrower or such Subsidiary before, at the time of, or within 90 days after
the acquisition of such Property, which Debt financed all or any part of
the purchase price of such Property, (C) Liens to secure capitalized lease
obligations or (D) to secure commercial letters of credit issued to pay
part or all of the purchase price of such Property; provided that in each
case such Lien applies only to the Property that was so acquired or
purchased, such Debt is incurred in connection with such acquisition or
purchase and such Debt does not exceed the purchase price of such Property;
(f) Liens on Property existing at the time such Property is acquired
by the Borrower or any Subsidiary of the Borrower and not created in
contemplation of such acquisition;
(g) Liens securing Debt described on Schedule 5.18 hereto and other
Indebtedness not to exceed in the aggregate 7% of Consolidated Net Worth at
any time outstanding; and
(h) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in
the foregoing subsections (a) through (g), provided, however, that the
principal amount of Debt secured thereby does not exceed the principal
amount secured at the time of such extension, renewal or replacement, and
that such extension, renewal or replacement is limited to the Property
already subject to the Lien so extended, renewed or replaced.
Nothing contained in subsections (a) through (h) of this Section 6.13 shall be
deemed to permit a pledge of the stock (or other equity interests) of the
Borrower or any of its Subsidiaries.
Section 6.14. Debt. The Borrower will not, and will not permit any of its
----
Subsidiaries to, contract, assume or suffer to exist any Debt, except:
(a) Debt under this Agreement;
(b) Existing Debt listed on Schedule 5.18 and other Debt provided
that at the time such other Debt is incurred and after giving effect to the
incurrence of such other Debt (i) the Borrower is in pro forma compliance
with Section 6.17 hereof and (ii) the Debt of Subsidiaries of the Borrower
(excluding Debt owing to the Borrower or other Subsidiaries of the
Borrower) does not exceed 45% of Consolidated Net Worth.
Section 6.15. Advances, Acquisitions, Investments and Loans. The Borrower
---------------------------------------------
will not, and will not permit any of its Subsidiaries to, lend money or credit
or make advances to any Person, or purchase or acquire any stock of any class
of, or any partnership, joint venture or other equity interest in or obligations
of, or make any capital contribution to, any Person, or purchase or own a
futures contract or otherwise become liable for the purchase or sale of currency
or other commodities at a future date in the nature of a futures contract,
except:
33
(a) investments in Cash Equivalents;
(b) receivables owing to the Borrower or its Subsidiaries created or
acquired in the ordinary course of business and payable on customary trade
terms of the Borrower or such Subsidiary;
(c) investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(d) advances, loans and investments in existence on the Effective
Date and all such advances, loans and investments by the Borrower or any of
its Subsidiaries in existence on March 31, 1999 and all advances, loans and
investments by the Borrower or any of its Subsidiaries between March 31,
1999 and the Effective Date which had an original amount in excess of
$10,000,000, in each case are reflected on Schedule 6.15 hereto;
(e) deposits made in the ordinary course of business consistent with
past practices to secure the performance of leases;
(f) financing provided by the Borrower and its Subsidiaries to their
customers in the ordinary course of business;
(g) intercompany loans, contributions to capital and advances to any
of its Subsidiaries and any Subsidiaries of the Borrower may make
intercompany loans, contributions to capital and advances to the Borrower;
(h) loans and advances by the Borrower and its Subsidiaries to
directors, officers and employees of the Borrower and its Subsidiaries for
moving and travel expenses and other similar expenses, in each case
incurred in the ordinary course of business, in an aggregate outstanding
principal amount not to exceed $1,500,000 at any time;
(i) purchases or acquisitions of stock or partnership interests,
joint venture interests or other equity interests in any Person who after
such purchase or other acquisition becomes a Subsidiary; and
(j) other purchases, advances, loans and investments with respect to
Persons who are not (or as a result of such investment do not become) a
Subsidiary not to exceed, in the aggregate, twelve and one-half percent
(12.5%) of the Consolidated Net Worth at any time outstanding.
34
Section 6.16. Dividends and Other Shareholder Distributions. The Borrower
---------------------------------------------
shall not during the occurrence and continuation of any Default or Event of
Default:
(a) declare or pay any dividends or make any distribution of any kind
on its outstanding capital stock, or set aside any sum for any such
purpose; or
(b) purchase, redeem, retire or otherwise acquire, directly or
indirectly, or make any sinking fund payments for, any shares of any class
of stock of the Borrower or any Subsidiary of the Borrower now or hereafter
outstanding or set apart any sum for any such purpose.
Section 6.17. Leverage. The Borrower will at all times maintain a
--------
Consolidated Leverage Ratio of not more than .60 to 1.
Section 6.18. Interest Coverage Ratio. The Borrower will not permit at any
-----------------------
time the Consolidated Interest Ratio to be less than 3.5 to 1, such ratio to be
calculated for the current fiscal quarter and previous three fiscal quarters
combined.
Section 6.19. Transactions with Affiliates. Except as otherwise expressly
----------------------------
permitted by the terms of this Agreement, the Borrower will not, and will not
permit any of its Subsidiaries to, enter into or be a party to any material
transaction or arrangement with any Affiliate of the Borrower or such Subsidiary
which is not itself a Subsidiary, including without limitation, the purchase
from, sale to or exchange of Property with, any merger or consolidation with or
into, or the rendering of any service by or for, any such Affiliate, except (i)
in the ordinary course of and pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary than would obtain in a
comparable arm's-length transaction with a Person other than an Affiliate and
(ii) transactions and arrangements permitted under the terms of Section 6.11 or
6.15 provided the Board of Directors of the Borrower have determined that such
transaction or arrangement is in the best interest of the Borrower.
Section 6.20. Compliance with Laws. Without limiting any of the other
--------------------
covenants of the Borrower in this Section 6, the Borrower will, and will cause
its Subsidiaries to, conduct their business, and otherwise be, in compliance
with all applicable laws, regulations, ordinances and orders of any governmental
or judicial authorities; provided, however, that this Section 6.20 shall not
require the Borrower or any of its Subsidiaries to comply with any such law,
regulation, ordinance or order if (x) it shall be contesting such law,
regulation, ordinance or order in good faith by appropriate proceedings and
reserves in conformity with GAAP have been provided therefor, or (y) the failure
to comply therewith could not, in the aggregate, have a Material Adverse Effect.
Section 6.21. Take or Pay Contracts. The Borrower will not, and will not
---------------------
permit any of its Subsidiaries to, enter into or be a party to any arrangement
for the purchase of materials, supplies, other property or services if such
arrangement by its express terms requires that
35
payment be made by the Borrower or such Subsidiary regardless of whether such
materials, supplies, other property or services are delivered or furnished to
it.
Section 6.22. Inconsistent Agreements. The Borrower will not enter into
-----------------------
any Contractual Obligation if compliance by the Borrower with the terms and
provisions thereof, consummation of the transactions contemplated therein, or
application or operation of any term, covenant, condition or other provision
thereof would (i) result in a Default or Event of Default or (ii) violate any
provision of the Articles of Incorporation or By-Laws of the Borrower or any of
its Subsidiaries.
SECTION 7. EVENTS OF DEFAULT AND REMEDIES.
Section 7.1. Events of Default. Any one or more of the following shall
-----------------
constitute an Event of Default:
(a) default (x) in the payment when due of the principal amount of
any Loan or (y) for a period of three (3) days in the payment when due of
any other Obligation not mentioned in clause (x);
(b) default by the Borrower, or any of its Subsidiaries in the
observance or performance of any covenant set forth in Sections 6.10, 6.11,
and 6.13-6.22;
(c) default by the Borrower or any Subsidiary in the observance or
performance of any provision hereof not mentioned in (a) or (b) above,
which is not remedied within thirty (30) days after notice thereof to the
Borrower by the Agent;
(d) any representation or warranty made herein by the Borrower or any
Subsidiary, or in any statement or certificate furnished pursuant hereto,
proves untrue in any material respect as of the date of the issuance or
making, or deemed making or issuance, thereof;
(e) (x) default occurs in the payment when due of Indebtedness in an
aggregate principal amount of $5,000,000 or (y) a default or other
circumstance occurs under any Contractual Obligation under which any
Indebtedness in an aggregate principal amount of $5,000,000 is issued or
created and such default or other circumstance continues for a period of
time sufficient to permit the holder or beneficiary of such Indebtedness,
or a trustee therefor, to cause the acceleration of the maturity of any
such Indebtedness or any mandatory unscheduled prepayment, purchase, or
other early funding thereof;
(f) the Borrower or any Subsidiary owning or holding in the aggregate
more than five percent (5%) of the consolidated assets of the Borrower and
its Subsidiaries (i) does not pay, or admits its inability to pay, its
debts generally as they become due, (ii) makes an assignment for the
benefit of creditors, (iii) applies for, seeks, consents to, or
36
acquiesces in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its
Property, (iv) institutes any proceeding seeking to have entered against it
an order for relief under the United States Bankruptcy Code or any
comparable law, to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fails to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (v) takes any corporate action in furtherance of any matter
described in clauses (i)-(iv) above, or (vi) fails to contest in good faith
any appointment or proceeding described in Section 7.1(g);
(g) a custodian, receiver, trustee, examiner, liquidator or similar
official is appointed for the Borrower or any Subsidiary thereof owning or
holding in the aggregate more than five percent (5%) of the consolidated
assets of the Borrower and its Subsidiaries or any substantial part of any
of their respective Property, or a proceeding described in Section
7.1(f)(iv) is instituted against the Borrower or any Subsidiary of the
Borrower, and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) days;
(h) the Borrower or any Subsidiary of the Borrower fails within
thirty (30) days to pay, bond or otherwise discharge any judgment or order
for the payment of money in excess of, in the aggregate, $5,000,000, which
is not stayed on appeal or otherwise being appropriately contested in good
faith in a manner that stays execution;
(i) any member of the Controlled Group fails to pay when due an
amount or amounts aggregating in excess of $5,000,000, it is liable to pay
to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to
terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in
excess of $5,000,000 (collectively, a "Material Plan") is filed under Title
IV of ERISA by a member of the Controlled Group, any plan administrator or
any combination of the foregoing; or the PBGC institutes proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any Material Plan or a proceeding is instituted by a fiduciary
of any Material Plan against any member of the Controlled Group to enforce
Section 515 or 4219(c)(5) of ERISA and such proceeding is not dismissed
within thirty (30) days thereafter; or a condition exists by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated;
(j) an event occurs which has a Material Adverse Effect;
(k) (x) the Borrower, any Person acting on behalf of the Borrower, or
any Governmental Authority challenges the validity of any Credit Document
or the Borrower's obligations thereunder or (y) any Credit Document ceases
to be in full force and effect or ceases to give the Agent and Lenders the
material Liens, rights, and powers purported to be granted in their favor
thereby; or
37
(l) a Change of Control Event occurs.
Section 7.2. Non-Bankruptcy Defaults. When any Event of Default other than
-----------------------
those described in subsections (f) or (g) of Section 7.1 has occurred and is
continuing, the Agent shall, by notice to the Borrower: (a) if so directed by
the Required Lenders, terminate the remaining Commitments and all other
obligations of the Lenders hereunder on the date stated in such notice (which
may be the date thereof) and (b) if so directed by the Required Lenders, declare
the principal of and the accrued interest on all outstanding Loans to be
forthwith due and payable and thereupon all outstanding Loans, including both
principal and interest thereon, shall be and become immediately due and payable
together with all other amounts payable under the Credit Documents without
further demand, presentment, protest or notice of any kind. The Agent, after
giving notice to the Borrower pursuant to Section 7.1(c) or this Section 7.2,
shall also promptly send a copy of such notice to the other Lenders, but the
failure to do so shall not impair or annul the effect of such notice.
Section 7.3. Bankruptcy Defaults. When any Event of Default described in
-------------------
subsections (f) or (g) of Section 7.1 has occurred and is continuing, then all
outstanding Loans shall immediately become due and payable together with all
other amounts payable under the Credit Documents without presentment, demand,
protest or notice of any kind, and all obligations of the Lenders to extend
further credit pursuant to any of the terms hereof shall immediately terminate.
Section 7.4. Notice of Default. The Agent shall give notice to the
-----------------
Borrower under Section 7.1(c) promptly upon being requested to do so by any
Lender and shall thereupon notify all the Lenders thereof.
Section 7.5. Expenses. The Borrower agrees to pay to the Agent and each
--------
Lender all expenses incurred or paid by the Agent, such Lender or any such
holder, including reasonable attorneys' fees (including, without limitation, the
reasonable allocable cost of inside counsel) and court costs, in connection with
any Default or Event of Default by the Borrower hereunder or in connection with
the enforcement of any of the Credit Documents.
SECTION 8. CHANGE IN CIRCUMSTANCES.
Section 8.1. Change of Law. Notwithstanding any other provisions of this
-------------
Agreement, if at any time any change in applicable law or regulation or in the
interpretation thereof makes it unlawful for any Lender to make or continue to
maintain Eurocurrency Loans in U.S. Dollars or in an Optional Currency or to
give effect to its obligations as contemplated hereby, such Lender shall
promptly give notice thereof to the Agent and the Borrower and such Lender's
obligations to make or maintain Eurocurrency Loans in such currency under this
Agreement shall terminate until it is no longer unlawful for such Lender to make
or maintain such Loans in such currency. The Borrower shall prepay on demand
the outstanding principal amount of any such affected Eurocurrency Loans,
together with all interest accrued thereon and all other amounts then due and
payable to such Lender under this Agreement; provided, however, subject to all
of the terms and conditions of this Agreement, the Borrower may then elect to
borrow the principal amount
38
of the affected Eurocurrency Loans from such Lender by means of Eurocurrency
Loans of another currency or Base Rate Loans from such Lender and such Loan
shall not be made ratably by the Lenders but only from such affected Lender.
Section 8.2. Unavailability of Deposits or Inability to Ascertain LIBOR.
----------------------------------------------------------
If on or before to the first day of any Interest Period for any Borrowing of
Eurocurrency Loans the Agent determines (after consultation with other Lenders)
that, due to changes in circumstances since the date hereof, adequate and fair
means do not exist for determining LIBOR for the applicable currency of such
Eurocurrency Loan or such rate will not accurately reflect the cost to the
Required Lenders of funding Eurocurrency Loans in such currency for such
Interest Period, the Agent shall give notice of such determination to the
Borrower and the Lenders, whereupon until the Agent notifies the Borrower and
Lenders that the circumstances giving rise to such suspension no longer exist,
the obligations of the Lenders to make Eurocurrency Loans in such currency shall
be suspended.
Section 8.3. Increased Cost and Reduced Return. (a) If the adoption of or
---------------------------------
any change in any applicable law, rule or regulation after the Effective Date,
or any change in the interpretation or administration thereof after the
Effective Date by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or its Lending Office), with any request or directive (whether or not
having the force of law) of any such Authority, central bank or comparable
agency made after the Effective Date:
(i) subjects any Lender (or its Lending Office) to any tax, duty or
other charge related to any Eurocurrency Loan, or its obligation to advance
or maintain any Eurocurrency Loans, or shall change the basis of taxation
of payments to any Lender (or its Lending Office) of the principal of or
interest on any of its Eurocurrency Loans or any other amounts due under
this Agreement related to any of its Eurocurrency Loans or its obligation
to make Eurocurrency Loans in any currency (except for changes in the rate
of tax on the net income or net profits of, or franchise taxes imposed on
such Lender or its Lending Office imposed by the jurisdiction in which such
Lender's principal executive office or Lending Office is located or any
taxes subject to payment or reimbursement under Section 3.3); or
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding for any Eurocurrency Loan any such requirement
included in an applicable Eurocurrency Reserve Percentage) against assets
of, deposits with or for the account of, or credit extended by, any Lender
(or its Lending Office) or imposes on any Lender (or its Lending Office) or
on the interbank market any other condition affecting any of its
Eurocurrency Loans or its obligation to advance or maintain any
Eurocurrency Loans,
39
and the result of any of the foregoing is to increase the cost to such Lender
(or its Lending Office) of advancing or maintaining any Eurocurrency Loan or its
commitment hereunder or to reduce the amount of any sum received or receivable
by such Lender (or its Lending Office) in connection therewith under this
Agreement, by an amount deemed by such Lender to be material, then, within
fifteen (15) days after demand by such Lender (with a copy to the Agent), the
Borrower shall be obligated to pay to such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduction.
(b) If the Agent or any Lender shall have determined that the adoption of
any applicable law, rule or regulation after the Effective Date regarding
capital adequacy, or any change after the Effective Date therein, or any change
in the interpretation or administration thereof after the Effective Date by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Agent or any
Lender (or its Lending Office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such Authority, central
bank or comparable agency made after the Effective Date, has or would have the
effect of reducing the rate of return on the Agent's or such Lender's capital,
or on the capital of any corporation controlling the Agent or such Lender, as a
consequence of its obligations hereunder to a level below that which the Agent
or such Lender could have achieved but for such adoption, change or compliance
(taking into consideration the Agent's or such Lender's policies with respect to
capital adequacy) by an amount deemed by the Agent or such Lender to be
material, then from time to time, within fifteen (15) days after demand by the
Agent or such Lender (with a copy to the Agent), the Borrower shall be obligated
to pay to the Agent or such Lender such additional amount or amounts as will
compensate the Agent or such Lender for such reduction.
(c) The Agent and each Lender that determines to seek compensation under
this Section 8.3 shall notify the Borrower, and (in the case of a Lender other
than the Agent), the Agent of the circumstances that entitle the Agent or Lender
to such compensation pursuant to this Section 8.3 and will designate a different
Lending Office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the judgment of the Agent or such Lender,
be otherwise disadvantageous to it. A certificate of the Agent or any Lender
claiming compensation under this Section 8.3 and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
Section 8.4. Lending Offices. The Agent and each Lender may, at its
---------------
option, elect to make its Loans hereunder at the branch, office or affiliate
specified on the appropriate signature page hereof (each a "Lending Office") for
each type of Loan available hereunder or at such other of its branches, offices
or affiliates as it may from time to time elect and designate in a written
notice to the Borrower and the Agent.
Section 8.5. Discretion of Lender as to Manner of Funding. Notwithstanding
--------------------------------------------
any other provision of this Agreement, each Lender shall be entitled to fund and
maintain its funding of all or any part of its Loans in any manner it sees fit,
it being understood, however, that for the
40
purposes of this Agreement all determinations hereunder shall be made as if each
Lender had actually funded and maintained each Eurocurrency Loan through the
purchase of deposits in the eurocurrency interbank market of the applicable
currency having a maturity corresponding to such Loan's Interest Period and
bearing an interest rate equal to LIBOR for such Interest Period.
Section 8.6. Substitution of Lender. If (a) any Lender has demanded
----------------------
compensation or given notice of its intention to demand compensation under
Section 8.3, (b) any Lender has delivered a notice under Section 8.1, or (c) the
Borrower is required to pay any additional amount to any Lender under Section
3.3, the Borrower shall have the right, so long as no Default or Event of
Default shall have occurred and be continuing, with the assistance of the Agent,
to seek a substitute lender or lenders reasonably satisfactory to the Agent
(which may be one or more of the Lenders) to replace such Lender under this
Agreement. If the Borrower has elected to exercise its rights under this
Section 8.6, the Lender to be so replaced shall cooperate with the Borrower and
substitute lender to accomplish such substitution on the terms of Section 10.10
or 10.11, as applicable, provided that all such Lender's Commitments are
replaced.
SECTION 9. THE AGENT.
Section 9.1. Appointment and Authorization. Each Lender hereby irrevocably
-----------------------------
(subject to Section 9.9) appoints, designates and authorizes the Agent to take
such action on its behalf under the provisions of this Agreement and each other
Credit Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Credit
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Credit Document, the Agent shall not have any duties
or responsibilities, except those expressly set forth herein or in the other
Credit Documents, nor shall the Agent have or be deemed to have any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against the Agent.
Section 9.2. Delegation of Duties. The Agent may execute any of its duties
--------------------
under this Agreement or any other Credit Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
selected with reasonable care.
Section 9.3. Liability of Agents. None of the Agent-Related Persons shall
-------------------
(a) be liable for any action taken or omitted to be taken by any of them under
or in connection with this Agreement or any other Credit Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (b) be responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by the Borrower or any
Affiliate of the Borrower, or any officer thereof, contained in this Agreement
or in any other Credit Document, or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agent under or
in connection with, this Agreement or any
41
other Credit Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document, or
for any failure of the Borrower or any other party to any Credit Document to
perform its obligations hereunder or thereunder. No Agent-Related Person shall
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Credit Document, or to inspect the properties,
books or records of the Borrower.
Section 9.4. Reliance by Agent. The Agent shall be entitled to rely, and
-----------------
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Borrower), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Credit Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Credit Document in accordance with a
request or consent of the Required Lenders and such request and any action taken
or failure to act pursuant thereto shall be binding upon all of the Lenders.
For purposes of determining compliance with the conditions specified in
Section 4.1, each Lender that has executed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to the Lender.
Section 9.5. Notice of Default. The Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Agent for the account of the Lenders, unless the Agent shall
have received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". The Agent will notify the Lenders of its
receipt of any such notice. The Agent shall take such action with respect to
such Default or Event of Default as may be requested by the Required Lenders in
accordance with Section 7; provided, however, that unless and until the Agent
-------- -------
has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Lenders.
Section 9.6. Credit Decision. Each Lender acknowledges that none of the
---------------
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Borrower, shall be deemed to
42
constitute any representation or warranty by any Agent-Related Person to any
Lender. Each Lender represents to the Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrower, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrower
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Documents, and to make such investigations
as it deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly herein
required to be furnished to the Lenders by the Agent, the Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the Borrower which may come into the
possession of any of the Agent-Related Persons.
Section 9.7. Indemnification. Whether or not the transactions contemplated
---------------
hereby are consummated, the Lenders shall indemnify upon demand the Agent-
Related Persons (to the extent not reimbursed by or on behalf of the Borrower
and without limiting the obligation of the Borrower to do so), pro rata, from
and against any and all Indemnified Liabilities; provided, however, that no
-------- -------
Lender shall be liable for the payment to the Agent-Related Persons of any
portion of such Indemnified Liabilities resulting solely from such Person's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender shall reimburse the Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Credit Document, or any
document contemplated by or referred to herein, to the extent that the Agent is
not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Agent.
Section 9.8. Agent in Individual Capacity. BofA and its Affiliates may
----------------------------
make loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Borrower and its
respective Affiliates as though BofA were not the Agent hereunder and without
notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to
such activities, BofA or its Affiliates may receive information regarding the
Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or such Affiliate) and
acknowledge that the Agent shall be under no obligation to provide such
information to them. With respect to its Loans, BofA shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same as
though it
43
were not the Agent, and the terms "Lender" and "Lenders" include BofA in its
individual capacity.
Section 9.9. Successor Agent. The Agent may, and at the request of the
---------------
Required Lenders shall, resign as Agent upon 30 days' notice to the Lenders. If
the Agent resigns under this Agreement, the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders which successor agent shall
be approved by the Borrower. If no successor agent is appointed prior to the
effective date of the resignation of the Agent, the Agent may appoint, after
consulting with the Lenders and the Borrower, a successor agent from among the
Lenders. Upon the acceptance of its appointment as successor agent hereunder,
such successor agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor agent and the
retiring Agent's appointment, powers and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Section 9 and Sections 10.4 and 10.5 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective and
the Lenders shall perform all of the duties of the Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for
above.
SECTION 10. MISCELLANEOUS.
Section 10.1. No Waiver of Rights. No delay or failure on the part of the
-------------------
Agent or any Lender in the exercise of any power or right under any Credit
Document shall operate as a waiver thereof or as an acquiescence in any default,
nor shall any single or partial exercise thereof preclude any other or further
exercise of any other power or right. The rights and remedies under the Credit
Documents of the Agent, the Lenders are cumulative to, and not exclusive of, any
rights or remedies any of them would otherwise have.
Section 10.2. Non-Business Day. If any payment of principal or interest on
----------------
any Loan or of any other Obligation shall fall due on a day which is not a
Business Day, interest or fees (as applicable) at the rate, if any, such Loan or
other Obligation bears for the period prior to maturity shall continue to accrue
on such Obligation from the stated due date thereof to and including the next
succeeding Business Day, on which the same shall be payable.
Section 10.3. Documentary Taxes. The Borrower agrees that it will pay,
-----------------
within 15 days of demand by the Agent, any documentary, stamp or similar taxes
payable in respect to any Credit Document, including interest and penalties, in
the event any such taxes are assessed.
Section 10.4. Survival of Representations. All representations and
---------------------------
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and the other Credit Documents, and
shall continue in full force and effect with
44
respect to the date as of which they were made as long as any Loan is
outstanding or Commitment is available hereunder.
Section 10.5. Survival of Indemnities. All indemnities and all other
-----------------------
provisions relative to reimbursement to the Lenders of amounts sufficient to
protect the yield of the Lenders with respect to the Loans, including, but not
limited to, Section 2.11, Section 8.3 and Section 10.14 hereof, shall survive
the termination of this Agreement and the other Credit Documents and the payment
of the Loans and all other Obligations.
Section 10.6. Sharing of Set-off. Each Lender agrees with each other Lender
------------------
a party hereto that if such Lender receives and retains any payment, whether by
set-off or application of deposit balances or otherwise ("Set-off"), on any of
the Loans or other Obligations in excess of its ratable share of payments on all
such Loans or other Obligations then owed to the Lenders under this Agreement
(other than payments pursuant to Section 2.11, 3.3, 8.3 or 10.14), then such
Lender shall purchase for cash at face value, but without recourse, ratably from
each of the other Lenders such amount of the Loans or other Obligations, or
participations therein, held by each such other Lenders (or interest therein) as
shall be necessary to cause such Lender to share such excess payment ratably
with all the other Lenders; provided, however, that if any such purchase is made
by any Lender, and if such excess payment or part thereof is thereafter
recovered from such purchasing Lender, the related purchases from the other
Lenders shall be rescinded ratably and the purchase price restored as to the
portion of such excess payment so recovered, but without interest.
Section 10.7. Notices. Except as otherwise specified herein, all notices
-------
under the Credit Documents shall be in writing (including cable, telecopy or
telex) and shall be given to a party hereunder at its address, facsimile number
set forth on Schedule 10.7 or such other address or facsimile number as such
party may hereafter specify by notice to the Agent and the Borrower, given by
courier, by United States certified or registered mail, by facsimile or by other
telecommunication device capable of creating a written record of such notice and
its receipt.
Each such notice, request or other communication shall be effective (i) if
given by facsimile, when such facsimile is transmitted to the facsimile number
specified in Schedule 10.7 or pursuant to Section 10.10 or 10.11 and a
confirmation of receipt of such facsimile has been received by the sender, (ii)
if given by courier, when delivered, (iii) if given by mail, five (5) days after
such communication is deposited in the mail, registered with return receipt
requested, addressed as aforesaid or (iv) if given by any other means, when
delivered at the addresses specified in Schedule 10.7, or pursuant to Section
10.10 or 10.11; provided that any notice given pursuant to Section 2 shall be
effective only upon receipt.
Any agreement of the Agent and the Lenders herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of the Borrower. The Agent and the Lenders shall be entitled to rely on
the authority of any Person purporting to be a Person authorized by the Borrower
to give such notice and the Agent and the Lenders shall not have any liability
to the Borrower or other Person on account of any action taken or not taken by
45
the Agent or the Lenders in reliance upon such telephonic or facsimile notice.
The obligation of the Borrower to repay the Loans shall not be affected in any
way or to any extent by any failure by the Agent and the Lenders to receive
written confirmation of any telephonic or facsimile notice or the receipt by the
Agent and the Lenders of a confirmation which is at variance with the terms
understood by the Agent and the Lenders to be contained in the telephonic or
facsimile notice.
Section 10.8. Counterparts. This Agreement may be executed in any number
------------
of counterpart signature pages, and by the different parties on different
counterpart signature pages, each of which when executed shall be deemed an
original but all such counterparts taken together shall constitute one and the
same instrument.
Section 10.9. Successors and Assigns. This Agreement shall be binding upon
----------------------
the Borrower and its successors and assigns, and shall inure to the benefit of
each of the Lenders and the benefit of their respective successors and assigns.
The Borrower may not assign any of its rights or obligations under any Credit
Document without the written consent of all of the Lenders.
Section 10.10. Participants. Each Lender may assign or grant participations
------------
in its rights under the Credit Documents in whole or in part to one or more
other Persons; provided that (i) no such assignment or participation shall
relieve any Lender of any of its obligations under this Agreement, (ii) the
Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with its rights and obligations under the Credit Documents,
and (iii) the Borrower and the Agent shall have no obligation or responsibility
to such participant or assignee. Any agreement pursuant to which a participation
in or assignment of Obligations or rights thereunder is granted (other than an
assignment complying with Section 10.11) shall provide that the granting Lender
retains the sole right and responsibility to enforce the obligations of the
Borrower under this Agreement and the other Credit Documents including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of the Credit Documents, except that such agreement may provide that
such Lender will not agree to any modification, amendment or waiver of the
Credit Documents that would reduce the principal amount of or interest owing on,
or extend the final maturity date of, any Obligation in which such participant
or assignee has an interest without the consent of such participant or assignee.
Any party to which such a participation or assignment has been granted shall
have the benefits of Sections 2.11 and 8.3, but not in excess of the amounts to
which the participating Lender would have been entitled had no such
participation been made.
Section 10.11. Assignments of Commitments by Lenders. Each Lender shall
-------------------------------------
have the right at any time, with the consent of the Borrower (except after the
occurrence and continuation of an Event of Default) and the Agent (which
consents shall not be unreasonably withheld), to sell, assign, transfer or
negotiate all or any part of its Commitments and related Obligations to an
Eligible Assignee; provided that such assignment shall be of a single fixed
percentage (and not by its terms a varying percentage) of the assigning Lender's
Commitment, Loans and related Obligations; and (ii) any assignee Lender must
have a Commitment of at least $5,000,000 and an
46
assignor Lender must either assign its entire Commitment or retain a Commitment
of at least $5,000,000. Any such assignee shall become a Lender for all purposes
hereunder to the extent of the Commitment(s) it assumes, and the assigning
Lender shall be released from its obligations, and will have released its
rights, under the Credit Documents to the extent of such assignment upon the
Agent's receipt of a completed Assignment Agreement reflecting such assignment
and a $3,500 recordation fee. Any such assignee Lender must comply with Section
3.3(b) as of the time such assignment is recorded with the Agent.
Notwithstanding the foregoing provisions of this Section 10.11 or any other
provision of this Agreement, any Lender may at any time assign all or any
portion of its Loans to any federal reserve bank or any other central bank (but
no such assignment shall release any Lender from any of its obligations
hereunder).
Section 10.12. Amendments. Any provision of the Credit Documents may be
----------
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by (a) the Borrower, (b) the Required Lenders, and (c) the Agent;
provided that:
(i) no amendment or waiver shall (A) increase any Commitment of any
Lender without the consent of such Lender or (B) reduce the amount of or
postpone the date for any scheduled payment of any principal of or interest
on any Loan or Obligation or of any fee payable hereunder without the
consent of each Lender owed such Obligation;
(ii) no amendment or waiver shall, unless signed by each Lender,
change the provisions of this Section 10.12, Section 10.6 or the definition
of Required Lenders or affect the number of Lenders required to take any
action under any other provision of the Credit Documents; and
(iii) no amendment shall affect the rights or duties of the Agent
under this Agreement or any Credit Document without the consent of the
Agent.
The Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed by the parties thereto.
Section 10.13. Headings. Section headings used in this Agreement are for
--------
reference only and shall not affect the construction of this Agreement.
Section 10.14. Legal Fees, Other Costs and Indemnification. The Borrower
-------------------------------------------
agrees to pay the reasonable fees and disbursements of legal counsel to the
Agent in connection with the preparation and execution of the Credit Documents
(including, without limitation, the reasonably allocable cost of its inside
counsel), and any amendment, waiver or consent related hereto, whether or not
the transactions contemplated herein are consummated. The Borrower further
agrees to indemnify and hold harmless each Lender, the Agent, and their
respective directors, officers, employees, Affiliates, agents and attorneys-in-
fact (each an "Indemnified Person") from and against all losses, claims,
damages, penalties, judgments, liabilities, and attorneys fees and other
expenses (including, without limitation, all expenses of litigation or
preparation
47
therefor, whether or not the Indemnified Person is a party thereto) which any of
them may pay or incur arising out of or relating to any Credit Document
(including enforcement thereof) or any of the transactions contemplated thereby
or the direct or indirect application or proposed application of the proceeds of
any Loan, other than those which (i) arise from the gross negligence or willful
misconduct of the party claiming indemnification or (ii) are subject to
reimbursement, indemnity or payment under any other provision of this Agreement
or any of the Credit Documents but, by the terms of such provision, are not
reimbursable, indemnifiable or payable thereunder. The Borrower upon demand by
the Agent or a Lender at any time, shall reimburse the Agent or Lender for any
legal or other expenses incurred in connection with investigating or defending
against any of the foregoing except if the same is directly due to the gross
negligence or willful misconduct of the party to be indemnified.
Section 10.15. Set Off. In addition to any rights now or hereafter granted
-------
under applicable law and not by way of limitation of any such rights, upon the
occurrence and during the continuation of any Event of Default, each Lender is
hereby authorized by the Borrower at any time or from time to time, without
notice to the Borrower or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts, and in whatever currency denominated) and any other
Indebtedness at any time held or owing by that Lender to or for the credit or
the account of the Borrower whether or not matured, against and on account of
the obligations and liabilities of the Borrower to that Lender under the Credit
Documents, including, but not limited to, all claims of any nature or
description arising out of or connected with the Credit Documents, irrespective
of whether or not (a) that Lender shall have made any demand hereunder or (b)
the principal of or the interest on the Loans and other amounts due hereunder
shall have become due and payable pursuant to Section 7 and although said
obligations and liabilities, or any of them, may be contingent or unmatured.
Section 10.16. Entire Agreement. The Credit Documents constitute the entire
----------------
understanding among the Borrower, the Lenders and the Agent and supersede all
earlier or contemporaneous agreements, whether written or oral, concerning the
subject matter of the Credit Documents.
Section 10.17. Governing Law; Submission to Jurisdiction; Waiver of Jury
---------------------------------------------------------
Trial. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS, AND THE RIGHTS AND DUTIES
-----
OF THE PARTIES THERETO, SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF ILLINOIS. EACH PARTY TO THIS AGREEMENT HEREBY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS AND OF ANY ILLINOIS STATE COURT SITTING IN THE
CITY OF CHICAGO FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS AGREEMENT, ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
THEREBY. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO
48
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND
ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO ANY CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
THEREBY.
Section 10.18. Confidentiality. Each Lender agrees it will use its best
---------------
efforts not to disclose without the Borrower's consent (other than to its
employees, auditors, counsel or other professional advisors, to its Affiliates
or to another Lender) any information concerning the Borrower or any of its
Subsidiaries furnished pursuant to this Agreement; provided, that any Lender may
disclose any such information (a) that has become generally available to the
public, (b) if required or appropriate in any report, statement or testimony
submitted to any regulatory body having or claiming to have jurisdiction over
such Lender, (c) if required or appropriate in response to any summons or
subpoena or in connection with any litigation, (d) in order to comply with any
law, order, regulation or ruling applicable to such Lender, and (e) to any
prospective or actual transferee in connection with any contemplated or actual
transfer of any of the Loans or any interest therein by such Lender; provided,
that such actual or prospective transferee executes an agreement with such
Lender containing provisions substantially identical to those contained in this
Section 10.18.
Section 10.19. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.20. Currency. Each reference in this Agreement to U.S. Dollars
--------
or to an Optional Currency (the "relevant currency") is of the essence. To the
fullest extent permitted by law, but subject to the Borrower's rights under the
EMU Legislation, the obligation of the Borrower in respect of any amount due in
the relevant currency under this Agreement shall, notwithstanding any payment in
any other currency (whether pursuant to a judgment or otherwise), be discharged
only to the extent of the amount in the relevant currency that the Agent may, in
accordance with normal banking procedures, purchase with the sum paid in such
other currency (after any premium and costs of exchange) on the Business Day
immediately following the day on which such party receives such payment. If the
amount in the relevant currency that may be so purchased for any reason falls
short of the amount originally due, the Borrower shall pay such additional
amounts, in the relevant currency, as may be necessary to compensate for the
shortfall. Any obligations of the Borrower not discharged by such payment shall,
to the fullest extent permitted by applicable law, be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
49
Section 10.21. Currency Equivalence. If for the purposes of obtaining
--------------------
judgment in any court it is necessary to convert a sum due from the Borrower on
the Obligations in the currency expressed to be payable herein (the "specified
currency") into another currency, the parties agree that the rate of exchange
used shall be that at which in accordance with normal banking procedures each
Lender could purchase the specified currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligation of
the Borrower in respect of any such sum due to a Lender on the Obligations
shall, notwithstanding any judgment in a currency other than the specified
currency, be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in such other currency,
such Lender may in accordance with normal banking procedures purchase the
specified currency with such other currency. If the amount of the specified
currency so purchased is less than the sum originally due to such Lender in the
specified currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender against such loss,
and if the amount of the specified currency so purchased exceeds the amount
originally due to such Lender in the specified currency, such Lender agrees to
remit such excess to the Borrower.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
50
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Chicago, Illinois by their duly authorized
officers as of the day and year first above written.
APTARGROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: Executive Vice President and
-----------------------------
CFO, Secretary and Treasurer
S-1
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as Agent and as a Lender
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
--------------------------
Title: VICE PRESIDENT
--------------------------
S-2
SOCIETE GENERALE - CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Director
---------------------------
S-3
FLEET NATIONAL BANK
By: /s/ ▇. ▇▇▇▇▇▇▇ Caner
------------------------------
Name: ▇. ▇▇▇▇▇▇▇ Caner
-------------------------
Title: Vice President
------------------------
S-4
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Group Vice President and Director
----------------------------------
By: /s/ ▇▇▇▇▇▇ Comfort
----------------------------------------
Name: ▇▇▇▇▇▇ Comfort
-----------------------------------
Title: Group Vice President
----------------------------------
S-5
EXHIBIT A
NOTICE OF BORROWING
-------------------
Date: _______,_____
To: Bank of America National Trust and Savings Association as Agent for the
Lenders parties to the Multicurrency Credit Agreement dated as of June 30,
1999 (as extended, renewed, amended or restated from time to time, the
"Credit Agreement") among AptarGroup, Inc., certain Lenders which are
----------------
signatories thereto and Bank of America National Trust and Savings
Association, as Agent
Ladies and Gentlemen:
The undersigned, AptarGroup, Inc. (the "Borrower"), refers to the Credit
--------
Agreement, the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 2.3 of the Credit
Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is _______, _____.
2. The aggregate amount of the proposed Borrowing is __________.
3. The Borrowing is to be comprised of ___________ of [Base Rate]
[Eurocurrency] Loans.
4. The duration of the Interest Period for the Eurocurrency Loans
included in the Borrowing shall be [_____ months].
5. The applicable currency is _________________.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed Borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties of the Company contained in
Section 5 of the Credit Agreement are true and correct in all material
respects as though made on and as of such date except to the extent that
any such representation or warranty relates solely to an earlier date, in
which case it was true and correct as of such earlier date;
(b) no Default or Event of Default has occurred and is continuing, or
would result from such proposed Borrowing.
A-1
APTARGROUP, INC.
By:____________________________
Title:_________________________
A-2
EXHIBIT B
NOTICE OF CONVERSION/CONTINUATION/1/
---------------------------------
Date: _______, _____
To: Bank of America National Trust and Savings Association, as Agent for the
Lenders parties to the Multicurrency Credit Agreement dated as of June 30,
1999 (as extended, renewed, amended or restated from time to time, the
"Credit Agreement") among AptarGroup, Inc., certain Lenders which are
----------------
signatories thereto, and Bank of America National Trust and Savings
Association, as Agent
Ladies and Gentlemen:
The undersigned, AptarGroup, Inc. (the "Borrower"), refers to the Credit
--------
Agreement, the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 2.4 of the Credit
Agreement, of the [conversion] [continuation] of the Loans specified herein,
that:
1. The Conversion/Continuation Date is ____________, ____.
2. The aggregate amount of the Loans to be [converted] [continued]
is [$]______________.
3. The Loans are to be [converted into] [continued as]
[Eurocurrency] [Base Rate] Loans.
4. [If applicable:] The duration of the Interest Period for the
Loans included in the [conversion] [continuation] shall be ____ months.
APTARGROUP, INC.
By:___________________________
Title:________________________
__________________
/1/ Eurocurrency Loans may only be continued in the same Currency and may not
be converted into Loans of another currency.
B-1
EXHIBIT C
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to the Agent pursuant to that
certain Credit Agreement dated as of June 30, 1999, by and between AptarGroup,
Inc. (the "Borrower"), the Agent and certain other lenders a party thereto, as
amended from time to time (the "Credit Agreement"). Unless otherwise defined
herein, the terms used in this Compliance Certificate have the meanings ascribed
thereto in the Credit Agreement.
The undersigned hereby certifies that:
1. I am the duly elected _________________________ of the Borrower;
2. I have reviewed the terms of the Credit Agreement and I have
made, or have caused to be made under my supervision, a review of the
transactions and conditions of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or the occurrence of
any event which constitutes a Default or Event of Default during or at the
end of the accounting period covered by the attached financial statements
or as of the date of this Certificate, except as set forth below;
4. The financial statements required by Section 6.6 of the Credit
Agreement and being furnished to you concurrently with this certificate
fairly present the financial condition of the Borrower and its Subsidiaries
as of the dates and for the periods covered thereby;
5. The attachment hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the Credit
Agreement, all of which data and computations are, to the best of my
knowledge, true, complete and correct and have been made in accordance with
the relevant Sections of the Credit Agreement;
6. Either Schedule 5.1 of the Credit Agreement contains a true and
complete list of all Subsidiaries of the Borrower as of the date hereof or
attached hereto is a substitute Schedule 5.1 which supersedes the prior
Schedule 5.1; and
7. The representations and warranties contained in Section 5 of the
Credit Agreement are true and correct in all material respects as though
made on and as of the
C-1
date hereof except to the extent that any such representation or warranty
relates solely to an earlier date, in which case it was true and correct
as of such earlier date.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, are taking, or propose to
take with respect to each such condition or event:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
The foregoing certifications, together with the computations set forth in
the Attachment hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this _______ day of
______________, _____.
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
C-2
ATTACHMENT TO COMPLIANCE CERTIFICATE
1. Debt of Subsidiaries (Section 6.14(b)(ii)
(a) Debt of Subsidiaries.......................................... $__________
(b) 45% of Consolidated Net Worth................................. $__________
(c) Does (b) exceed (a)? [Answer should be yes]................... __________
2. Other Advances, Loans and Investments (Section 6.15(i).)
(a) 12.5% of Consolidated Net Worth............................... $__________
(b) Other Advances, Loans and Investments Outstanding............. $__________
(c) Does (a) exceed (b)? [Answer should be yes]................... __________
3. Consolidated Leverage Ratio (Section 6.17.)
(a) Consolidated Debt............................................. $__________
(b) Total Capitalization.......................................... $__________
(c) Ratio of (a) to (b) (shall be not more than 0.6 to 1)......... __________
4. Consolidated Interest Ratio (Section 6.18.)
(a) Consolidated EBITDA........................................... $__________
(b) Consolidated Interest Expense................................. $__________
(c) Ratio of (a) to (b) (shall be at least 3.5 to 1).............. __________
EXHIBIT D
[FORM OF] ASSIGNMENT AND ACCEPTANCE AGREEMENT
---------------------------------------------
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
--------------
Acceptance") dated as of _____________, ______ is made between _________________
----------
(the "Assignor") and ___________________ (the "Assignee").
-------- --------
RECITALS
--------
WHEREAS, the Assignor is party to that certain Multicurrency Credit
Agreement dated as of June 30, 1999 (as amended, amended and restated, modified,
supplemented or renewed, the "Credit Agreement") among AptarGroup, Inc., the
----------------
several financial institutions from time to time party thereto (including the
Assignor, the "Lenders"), and Bank of America National Trust and Savings
-------
Association, as Agent for the Lenders (the "Agent"). Any terms defined in the
-----
Credit Agreement and not defined in this Assignment and Acceptance are used
herein as defined in the Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor has
committed to making Loans (the "Loans") to the Borrower in an aggregate amount
-----
not to exceed $__________ (the "Commitment");
----------
WHEREAS, [the Assignor has made Loans in the aggregate principal
amount of $__________ to the Borrower] [no Loans are outstanding under the
Credit Agreement];
WHEREAS, the Assignor wishes to assign to the Assignee [part of the]
[all] rights and obligations of the Assignor under the Credit Agreement in
respect of its Commitment, [,together with a corresponding portion of each of
its outstanding Loans,] in an amount equal to $__________ (the "Assigned
--------
Amount") on the terms and subject to the conditions set forth herein and the
------
Assignee wishes to accept assignment of such rights and to assume such
obligations from the Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
-------------------------
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without
D-1
representation or warranty (except as provided in this Assignment and
Acceptance) __% (the "Assignee's Percentage Share") of (A) the Commitment [and
---------------------------
the Loans] of the Assignor and (B) all related rights, benefits, obligations,
liabilities and indemnities of the Assignor under and in connection with the
Credit Agreement and the Credit Documents.
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of a Lender under the Credit Agreement, including the requirements concerning
confidentiality and the payment of indemnification, with a Commitment in an
amount equal to the Assigned Amount. The Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender. It is the
intent of the parties hereto that the Commitment of the Assignor shall, as of
the Effective Date, be reduced by an amount equal to the Assigned Amount and the
Assignor shall relinquish its rights and be released from its obligations under
the Credit Agreement to the extent such obligations have been assumed by the
Assignee; provided, however, the Assignor shall not relinquish its rights under
Sections 3.3, 7.5, 8.3 and 10.14 of the Credit Agreement to the extent such
rights relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignee's Commitment will be $__________.
(d) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignor's Commitment will be $__________.
2. Payments.
--------
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to $__________,
representing the Assignee's Percentage of the principal amount of all Loans.
(b) The [Assignor] [Assignee] further agrees to pay to the Agent a
processing fee in the amount specified in Section 10.11 of the Credit Agreement.
3. Reallocation of Payments.
------------------------
Any interest, fees and other payments accrued to the Effective Date with
respect to the Commitment [and Loans] shall be for the account of the Assignor.
Any interest, fees and other payments accrued on and after the Effective Date
with respect to the Assigned Amount shall be for the account of the Assignee.
Each of the Assignor and the Assignee agrees that it will hold in trust for the
other party any interest, fees and other amounts which it may receive to which
the other party is entitled pursuant to the preceding sentence and pay to the
other party any such amounts which it may receive promptly upon receipt.
D-2
4. Independent Credit Decision.
---------------------------
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements and certificates referred to in Section 6.6(a)
and (b) of the Credit Agreement, and such other documents and information as it
has deemed appropriate to make its own credit and legal analysis and decision to
enter into this Assignment and Acceptance; and (b) agrees that it will,
independently and without reliance upon the Assignor, the Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit and legal decisions in taking or
not taking action under the Credit Agreement.
5. Effective Date; Notices.
-----------------------
(a) As between the Assignor and the Assignee, the effective date for
this Assignment and Acceptance shall be __________, _____ (the "Effective
---------
Date"); provided that the following conditions precedent have been satisfied on
--------
or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Borrower and the Agent required for an
effective assignment of the Assigned Amount by the Assignor to the Assignee
under Section 10.11 of the Credit Agreement shall have been duly obtained and
shall be in full force and effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts due to
the Assignor under this Assignment and Acceptance;
[(iv) the Assignee shall have complied with Section 3.3(b) of the
Credit Agreement (if applicable);]
(v) the processing fee referred to in Section 2(b) hereof and
in Section 10.11 of the Credit Agreement shall have been paid to the Agent; and
(vi) the Assignor shall have assigned and the Assignee shall
have assumed a percentage equal to the Assignee's Percentage Share of the rights
and obligations of the Assignor under the Credit Agreement.
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Borrower and the Agent for
acknowledgment by the Agent, a Notice of Assignment substantially in the form
attached hereto as Schedule 1.
----------
6. Agent.
-----
D-3
(a) The Assignee hereby appoints and authorizes the Assignor to take
such action as Agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the Lenders pursuant to the terms of
the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by the
Assignor in its capacity as Agent under the Credit Agreement.
7. Withholding Tax.
---------------
The Assignee (a) represents and warrants to the Lender, the Agent and the
Borrower that under applicable law and treaties no tax will be required to be
withheld by the Lender with respect to any payments to be made to the Assignee
hereunder, (b) agrees to furnish (if it is organized under the laws of any
jurisdiction other than the United States or any State thereof) to the Agent and
the Borrower prior to the time that the Agent or Borrower is required to make
any payment of principal, interest or fees hereunder, duplicate executed
originals of either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 (wherein the Assignee claims entitlement to the
benefits of a tax treaty that provides for a complete exemption from U.S.
federal income withholding tax on all payments hereunder) and agrees to provide
new Forms 4224 or 1001 upon the expiration of any previously delivered form or
comparable statements in accordance with applicable U.S. law and regulations and
amendments thereto, duly executed and completed by the Assignee, and (c) agrees
to comply with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
8. Representations and Warranties.
------------------------------
(a) The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any Lien or other adverse claim; (ii) it is duly
organized and existing and it has the full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill
its obligations hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Assignment and
Acceptance, and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
Person is required of it for such execution, delivery or performance; and (iv)
this Assignment and Acceptance has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignor, enforceable
against the Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles.
D-4
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto. The
Assignor makes no representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or statements
of the Borrower, or the performance or observance by the Borrower, of any of its
respective obligations under the Credit Agreement or any other instrument or
document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance; and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; and (iv) it is an
Eligible Assignee.
9. Further Assurances.
------------------
The Assignor and the Assignee each hereby agree to execute and deliver such
other instruments, and take such other action, as either party may reasonably
request in connection with the transactions contemplated by this Assignment and
Acceptance, including the delivery of any notices or other documents or
instruments to the Borrower or the Agent, which may be required in connection
with the assignment and assumption contemplated hereby.
10. Miscellaneous.
-------------
(a) Any amendment or waiver of any provision of this Assignment and
Acceptance shall be in writing and signed by the parties hereto. No failure or
delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any breach of the
provisions of this Assignment and Acceptance shall be without prejudice to any
rights with respect to any other or further breach thereof.
D-5
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation, execution and
performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS. The Assignor and the
Assignee each irrevocably submits to the non-exclusive jurisdiction of any State
or Federal court sitting in Illinois over any suit, action or proceeding arising
out of or relating to this Assignment and Acceptance and irrevocably agrees that
all claims in respect of such action or proceeding may be heard and determined
in such Illinois State or Federal court. Each party to this Assignment and
Acceptance hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY RELATED DOCUMENTS AND
AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER
ORAL OR WRITTEN).
[Other provisions to be added as may be negotiated between the
Assignor and the Assignee, provided that such provisions are not inconsistent
with the Credit Agreement.]
D-6
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By:______________________________
Title:___________________________
By:______________________________
Title:___________________________
Address:
D-7
[ASSIGNEE]
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Address:
D-8
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
-----------------------------------
_______________, ____
Bank of America National Trust
and Savings Association, as Agent
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Agency Management Services #5596
AptarGroup, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President - Risk Management
Ladies and Gentlemen:
We refer to the Multicurrency Credit Agreement dated as of June 30, 1999
(as amended, amended and restated, modified, supplemented or renewed from time
to time the "Credit Agreement") among AptarGroup, Inc., the Lenders referred to
----------------
therein, and Bank of America National Trust and Savings Association as Agent for
the Lenders (the "Agent"). Terms defined in the Credit Agreement are used
-----
herein as therein defined.
1. We hereby give you notice of, and request your consent to, the
assignment by __________________ (the "Assignor") to _______________ (the
--------
"Assignee") of _____% of the right, title and interest of the Assignor in and to
--------
the Credit Agreement (including, without limitation, the right, title and
interest of the Assignor in and to the Commitments of the Assignor [and all
outstanding Loans made by the Assignor]) pursuant to the Assignment and
Acceptance Agreement attached hereto (the "Assignment and Acceptance"). Before
-------------------------
giving effect to such assignment the Assignor's Commitment is $ ___________ [and
the aggregate amount of its outstanding Loans is $_____________].
2. The Assignee agrees that, upon receiving the consent of the Agent and,
if applicable, AptarGroup, Inc. to such assignment, the Assignee will be bound
by the terms of the Credit Agreement as fully and to the same extent as if the
Assignee were the Lender originally holding such interest in the Credit
Agreement.
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name:
Address:
Attention:
Telephone: (___)
Telecopier: (___)
Telex (Answerback):
(B) Payment Instructions:
Account No.:
At:
Reference:
Attention:
4. You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and Assignee contained in the Assignment and
Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Notice
of Assignment and Acceptance to be executed by their respective duly authorized
officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:
Title:
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
By:
Title:
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
APTARGROUP, INC.
By:
Title:
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:
Title:
SCHEDULE 2.1
COMMITMENTS
Bank Commitment Percentage
------------------------------------------------------------
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION $27,000,000 36.00 %
ABN AMRO BANK N.V. 10,000,000 13.33%
FLEET NATIONAL BANK 23,000,000 30.67%
SOCIETE GENERALE - CHICAGO 15,000,000 20.00%
BRANCH
TOTAL $75,000,000 100.00%
SCHEDULE 5.1
------------
SUBSIDIARIES OF THE COMPANY
AND OWNERSHIP OF SUBSIDIARY STOCK
State or Other
Jurisdiction of Percentage
Incorporation Owned
--------------- ----------
AptarGroup International L.L.C. Delaware 100%
AptarGroup Foreign Sales Corporation Barbados 100%
AptarGroup Holding S.A. France 100%
Aptar GmbH Germany 100%
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH Germany 100%
▇▇▇▇▇▇▇▇ Vaporisateurs France S.a.r.L. France 100%
P & S Japan Ltd. Japan 100%
▇▇▇▇▇▇▇▇ (U.K.) Limited United Kingdom 100%
P&P Promotion of German Manufacturing
Technologies GmbH Germany 100%
Vallis Leasobjekt Gesellschaft GmbH Germany 51%
▇▇▇▇▇▇▇▇ Beteilugungs GmbH Germany 100%
Seaplast S.A. * Spain 50%
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ GmbH Germany 100%
Loffler Stet Spol. S.R.O. Czech Republic 100%
SeaquistPerfect Dispensing GmbH Germany 100%
Valois Deutschland GmbH Germany 100%
AptarGroup S.A. France 100%
Aptar South Europe SARL France 100%
Novares S.p.A. Italy 100%
SAR ▇.▇.▇ ▇▇▇▇▇ ▇▇▇%
▇▇▇ ▇▇▇▇▇▇ SCA France 100%
AptarGroup SAR Finance Unlimited Ireland 100%
Sar GmbH Germany 100%
SAR (U.K.) Limited United Kingdom 100%
Tes S.p.A. * Italy 35%
Caideil M.P. Teoranta Ireland 100%
General Plastics S.A. France 100%
Graphocolor France 60%
Moulage Plastique de Normandie S.A. France 100%
Perfect-Valois U.K. Limited United Kingdom 100%
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Limited United Kingdom 100%
▇▇▇▇▇▇ ▇.▇ France 100%
Valois Dispray S.A. Switzerland 100%
Valois Espana S.A. Spain 100%
Valois Italiana S.r.l. Italy 100%
Inairic S.A. Argentina 100%
Sar Dispensing Systems Ltd. Hong Kong 100%
SAR Do Brasil Ltda. Brazil 100%
Schedule 5.1
SCHEDULE 5.1
------------
SUBSIDIARIES OF THE COMPANY
AND OWNERSHIP OF SUBSIDIARY STOCK
▇▇▇▇▇▇▇▇ Canada Ltd. Canada 100%
▇▇▇▇▇▇▇▇ Finance Unlimited Ireland 100%
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Australia Pty. Ltd. Australia 100%
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ do Brasil Ltda. Brazil 100%
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Japan, Inc. Japan 100%
Aptar Suzhou Dispensing Ltd. P.R. China 100%
CosterSeaquist L.L.C.* Illinois 50%
Emson Research, Inc. Connecticut 100%
Emson Europe Ltd. United Kingdom 100%
Emson Foreign Sales Corporation U.S. Virgin Islands 100%
EMSAR, Inc. Connecticut 100%
Emson Ventures, Inc. Connecticut 100%
Emson Ventures II, Inc. Connecticut 100%
P.T. Emson Ongko Indonesia Indonesia 100%
Emson Ventures III, Inc. Connecticut 100%
Emson Spraytech India Private Ltd. India 51%
Emson Ventures IV, Inc. Connecticut 100%
Global Precision, Inc. Florida 100%
Liquid Molding Systems, Inc. Delaware 100%
▇▇▇▇▇▇▇, Inc. Connecticut 100%
▇▇▇▇▇▇▇▇ of America, Inc. Delaware 100%
P Merger Corporation Connecticut 100%
R.P.M. Manufacturing Company Connecticut 100%
SAR U.S.A. Inc. Delaware 100%
▇▇▇▇▇▇▇▇ Closures L.L.C. Delaware 100%
▇▇▇▇▇▇▇▇ Closures Foreign, Inc. Delaware 100%
▇▇▇▇▇▇▇▇ de Mexico, S.A. de C.V. Mexico 75%
SeaquistPerfect Dispensing L.L.C. Delaware 100%
SeaquistPerfect Dispensing Foreign, Inc. Delaware 100%
Valois of America, Inc. Connecticut 100%
* Indicates affiliate of the Company
Schedule 5.1
SCHEDULE 5.18
DEBT
Description Secured by Rate - fixed Interest Issue Maturity
Bank name of Debt Assets or variable? Rate Date Date
--------- ----------- ---------- ------------ -------- ----- --------
OVERDRAFTS
AAPTUS Other Bank No V 0.00%
Aptar GmbH West LB Bank No V 6.00% 03/31/99 04/01/99
Aptar GmbH ABN Amro Bank No V 6.00% 03/31/99 04/01/99
General Plastics Bred Bank No V 3.80% 3/31/99 3/31/99
General Plastics SG Bank No V 4.20% 3/31/99 3/31/99
Graphocolor Credit Lyonnais Bank No V 3.88% 3/31/99 4/15/99
Graphocolor BNP Bank No V 3.83% 3/31/99 4/15/99
Graphocolor SG Bank No V 0.04% 3/31/99 4/15/99
Inairic BNL Bank Y V 0.18% 2/25/99 2/25/00
Perfect-Valois UK Bank National De Paris Bank No V 7.00% 3/99 Revolving
▇▇▇▇▇▇▇▇ Japan Mitsubishi Bank Bank No V 3.50% 8/29/97 8/28/02
▇▇▇▇▇▇▇▇ Japan Mitsubishi Bank Bank No V 3.50% 6/23/98 6/2/03
▇▇▇▇▇▇▇▇ Japan BNP Bank No V 2.00% 12/18/98 12/31/05
▇▇▇▇▇▇▇▇ Japan Sumitomo Bank Bank No V 2.50% 12/18/98 12/17/03
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Germany Volksbank Bank No V 6.25% 3/30/99 4/30/99
SPD France BFCE Bank No V 3.79% 3/31/99 N/A
SPD France SG Bank No V 3.00% 3/31/99 N/A
SPD GmbH West LB Bank No V 6.00% 3/31/99 4/1/99
SPD GmbH ABN Amro Bank No V 6.00% 3/31/98 4/1/99
Valois Credit Lyonnais Bank No V 3.61% 3/31/99 N/A
Valois Credit Agricole Bank No V 3.61% 3/31/99 N/A
▇▇▇▇▇▇ ▇▇ Bank No V 3.61% 3/31/99 N/A
LC - ST LC - LT TOTAL - LC US$ - ST US$ - LT TOTAL $
--------------------------------------------------------------------------------
OVERDRAFTS
AAPTUS 2,326,589 2,326,589 2,326,589 0 2,326,589
Aptar GmbH 28,463 28,463 15,673 0 15,673
Aptar GmbH 3 3 2 0 2
General Plastics 339,171 339,171 55,688 0 55,688
General Plastics 1,444,434 1,444,434 237,159 0 237,159
Graphocolor 3,675,862 3,675,862 603,532 0 603,532
Graphocolor 2,456,989 2,456,989 403,408 0 403,408
Graphocolor 424,084 424,084 69,630 0 69,630
Inairic 592,253 592,253 592,549 0 592,549
Perfect-Valois UK 497,073 497,073 801,182 0 801,182
▇▇▇▇▇▇▇▇ Japan 13,673,000 13,673,000 115,045 0 115,045
▇▇▇▇▇▇▇▇ Japan 4,170,000 4,170,000 35,086 0 35,086
▇▇▇▇▇▇▇▇ Japan 306,262,705 306,262,705 2,576,894 0 2,576,894
▇▇▇▇▇▇▇▇ Japan 46,668,000 46,668,000 392,665 0 392,665
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Germany 729,348 729,348 401,623 0 401,623
SPD France 177,671 177,671 29,171 0 29,171
SPD France 230,157 230,157 37,789 0 37,789
SPD GmbH 846,377 846,377 466,067 0 466,067
SPD GmbH 1,440,778 1,440,778 793,380 0 793,380
Valois 246,688 246,688 40,503 0 40,503
Valois 2,008,643 2,008,643 329,795 0 329,795
Valois 468,959 468,959 76,997 0 76,997
---------------------------------------------
TOTAL OVERDRAFTS 10,400,429 0 10,400,429
---------------------------------------------
Schedule 5.18
SCHEDULE 5.18
-------------
DEBT
Description Secured by Rate - fixed Interest Issue Maturity
Bank name of Debt Assets or variable? Rate Date Date
--------- ----------- ---------- ------------ -------- ----- --------
ST NOTES PAYABLE
AptarGroup ABN Amro Bank No V 5.35% 01/11/99 04/11/99
AptarGroup Society General Bank No V 5.60% 03/31/99 04/01/99
AptarGroup WLB Bank No V 5.17% 03/30/99 04/06/99
AptarGroup BOA Bank No V 5.42% 2/19/99 04/30/99
China IBPS Bank No V 5.90% 7/16/98 7/15/99
China Bank of China Bank No V 5.77% 7/14/98 7/13/99
China Bank of China Bank No V 6.52% 7/24/98 7/13/99
Elims Reclass ST
Emson Foreign Sales Corp. Fleet Bank No V 0.00% 03/31/99 04/05/99
Emson, Inc. Fleet Bank No V 0.00% 03/31/99 04/05/99
Emson, Inc. Fleet Bank No V 0.00% 03/31/99 04/05/99
Emson, Inc. Fleet Bank No V 0.00% 03/31/99 04/05/99
General plastics BNP Bank No V 3.88% 2/15/98 4/15/99
Novares S p A IMI-S PAOLO Bank N/A F 5.60% 2/98 8/99
Novares S p A IBM Semea Other N/A F 9.35% 10/98 12/99
S Loffler Ltd BOA Bank No V 6.00% 11/2/99 5/5/99
Sar France Groupe Soval Bank No V 10.90% 11/96 5/99
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Germany DM Eurokredit Bank No V 3.96% 2/15/99 5/15/99
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Germany DB Eurokredit Bank No V 3.96% 3/11/99 6/11/99
SV Australia ABN Amro Bank Yes V 5.35% 3/24/99 5/24/99
SV Australia ABN Amro Bank Yes V 5.38% 3/29/99 4/29/99
Valois CIN Bank No V 3.24% 3/18/99 4/1/99
Valois CIN Bank No V 3.24% 3/19/99 4/1/99
Valois CIN Bank No V 3.23% 3/22/99 4/1/99
DISCOUNTED NOTES
Valois Spain Bilbao Vizcaya Bank No V 7.00% 1/23/99 4/25/99
LC - ST LC - LT TOTAL - LC US$ - ST US$ - LT TOTAL $
------------------------------------------------------------------------------
OVERDRAFTS
0 0 0 0 0
AptarGroup 15,000,000 15,000,000 15,000,000 0 15,000,000
AptarGroup 600,000 600,000 600,000 0 600,000
AptarGroup 10,500,000 10,500,000 10,500,000 0 10,500,000
AptarGroup 123,000,000 123,000,000 123,000,000 0 123,000,000
China 828,000 828,000 100,022 0 100,022
China 15,000,000 15,000,000 1,812,000 0 1,812,000
China 10,000,000 10,000,000 1,208,000 0 1,208,000
Elims (25,000,000) (25,000,000) (25,000,000) (25,000,000)
Emson Foreign Sales Corp. 21,641 21,641 21,641 0 21,641
Emson, Inc. 1,084,366 1,084,366 1,084,366 0 1,084,366
Emson, Inc, 104,788 104,788 104,788 0 104,788
Emson, Inc. 45,608 45,608 45,608 0 45,608
General plastics 274,500 274,500 45,070 0 45,070
Novares S p A 5,000,000 5,000,000 2,781,000 0 2,781,000
Novares S p A 677,552 677,552 378,854 0 376,854
S Loffler Ltd 1,300,000 1,300,000 2,095,340 0 2,095,340
Sar France 17,573 17,573 2,885 0 2,885
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Germany 2,000,000 2,000,000 1,101,322 0 1,101,322
▇▇▇▇▇▇▇▇ Loffler Germany 2,000,000 2,000,000 1,101,322 0 1,101,322
SV Australia 100,000 100,000 63,430 0 63,430
SV Australia 100,000 100,000 63,430 0 63,430
Valois 2,800,000 2,800,000 459,726 0 459,726
Valois 9,200,000 9,200,000 1,510,530 0 1,510,530
Valois 3,500,000 3,500,000 574,658 0 574,658
---------------------------------------------
138,651,993 0 138,651,993
---------------------------------------------
DISCOUNTED NOTES
Valois Spain 1,005,662 1,005,662 6,510 0 6,510
---------------------------------------------
6,510 0 6,510
---------------------------------------------
Schedule 5.18
SCHEDULE 5.18
-------------
DEBT
Description Secured by Rate - fixed Interest Issue Maturity
Bank name of Debt Assets or variable? Rate Date Date LC - ST LC - LT
--------- ------- ------ ----------- ---- ---- ---- ------- -------
NOTES PAYABLE
AptarGroup Nationwide Life Other No F 7.08% 10/1/95 9/30/05 3,571,429 21,428,571
AptarGroup Reclass ST Other No 4/29/01 25,000,000
Emson, Inc. Bank Term Loan Bank No V 6.53% 4/15/98 5/1/03 800,000 2,466,667
Emson, Inc. Revolver Bank No V 5.56% 4/15/98 5/1/01 0 7,700,000
Emson, Inc. Revolver Bank No V 5.46% 4/15/98 5/1/01 0 10,000,000
Emson India Pavron Loan No V 0.00% 0 2,022,022
General Plastics BNP Bank No F 5.11% 8/98 7/03 372,739 1,389,120
General Plastics Bred Bank No F 4.90% 8/97 7/01 100,668 142,115
General Plastics Bred Bank No F 4.90% 8/97 7/01 251,670 355,287
General Plastics Credipar Bank No F 11.08% 11/95 10/99 14,674 0
General Plastics SNVB Codevi Bank No F 6.10% 7/96 7/00 257,500 128,750
General Plastics SNVB Codevi Bank No V 5.60% 8/96 8/00 198,750 99,375
Graphocolor Agency Bassin Other No F 0.50% 10/16/97 10/16/08 42,000 378,000
Graphocolor Agency Bassin Other No F 0.50% 3/26/91 3/16/00 0 106,400
Graphocolor Agency Bassin Other No F 0.50% 1/16/97 1/16/00 0 1,052,800
Graphocolor SDR Other No F 7.20% 1/1/90 1/1/99 190,214 0
Graphocolor CMT Other No V 3.80% 8/20/96 8/20/03 1,232,145 6,160,705
Graphocolor CMT Other No V 3.80% 8/20/96 8/20/03 375,000 1,875,000
MPN Credit General
Industriel Bank F 0.00% 0 0 0 0
MPN Societe General Bank No F 4.95% 8/98 1/00 245,725 646,442
MPN Societe General Bank Yes F 6.10% 6/96 5/00 88,043 109,721
MPN CIC Bank No F 5.40% 8/97 7/01 120,863 171,622
MPN Societe General Bank No V 5.14% 8/97 7/01 276,538 391,488
SAR Loan L Other No F 3.69% 1/13/95 7/29/09 0 1,392,973
SAR Loan I Other No F 0.00% ▇/▇▇ ▇/▇▇ ▇ ▇
▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Other Bank Yes F 0.00% 0 0 273,696 136,848
▇▇▇▇▇▇▇▇
Loffler Germany GEFA 83165 Other No F 4.94% 3/1/97 1/1/99 0 0
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Germany GEFA 83166 Other No F 4.74% 4/1/97 2/1/99 0 0
▇▇▇▇▇▇▇▇
Loffler Germany GEFA 83167 Other No F 5.70% 12/1/97 10/1/99 101,500 0
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Germany GEFA 83153 Other No F 5.79% 5/1/98 3/1/00 99,000 22,000
▇▇▇▇▇▇▇▇
Loffler Germany GEFA 83154 Other No F 5.53% 5/1/98 3/1/00 174,150 77,400
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Germany GEFA 83155 Other No F 5.53% 6/1/98 4/1/00 124,470 41,490
▇▇▇▇▇▇▇▇
Loffler Germany GEFA 83152 Other No F 5.24% 10/1/97 8/1/99 27,500 0
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Germany ▇▇▇▇▇▇▇▇ Loan Other No F 4.90% 7/31/98 9/30/04 623,679 6,082,522
▇▇▇▇▇▇ ▇▇▇▇▇ Bank No F 0.00% 9/4/92 6/30/00 200,000 200,000
Valois Participation Other No F 6.00% 4/1/93 4/1/03 5,406,901 28,744,466
Valois Italiana Mediocredito Bank No V 1.20% 12/31/98 6/30/08 40,000 360,786
Valois of
America CDA Other Yes F 4.50% 11/28/95 6/1/95 91,808 605,240
TOTAL - LC US$ - ST US$ - LT TOTAL $
-------------------------------------------------
NOTES PAYABLE
AptarGroup 25,000,000 3,571,429 21,428,571 25,000,000
AptarGroup 25,000,000 0 25,000,000 25,000,000
Emson, Inc. 3,266,667 800,000 2,466,667 3,266,667
Emson, Inc. 7,700,000 0 7,700,000 7,700,000
Emson, Inc. 10,000,000 0 10,000,000 10,000,000
Emson India 2,022,022 0 47,659 47,659
General Plastics 1,761,859 61,199 228,077 289,276
General Plastics 242,783 16,528 23,334 39,882
General Plastics 606,957 41,321 58,334 99,655
General Plastics 14,674 2,409 0 2,409
General Plastics 386,250 42,278 21,139 63,418
General Plastics 298,125 32,632 16,316 48,949
Graphocolor 420,000 6,896 62,063 68,959
Graphocolor 106,400 0 17,470 17,470
Graphocolor 1,052,800 0 172,857 172,857
Graphocolor 190,214 31,231 0 31,231
Graphocolor 7,392,850 202,303 1,011,514 1,213,817
Graphocolor 2,250,000 61,571 307,853 369,423
MPN 0 0 0 0
MPN 892,167 40,345 106,138 146,483
MPN 197,764 14,456 18,015 32,470
MPN 292,485 19,844 28,178 48,023
MPN 668,026 45,404 64,278 109,682
SAR 1,392,973 0 774,772 774,772
▇▇▇ ▇ ▇ ▇ ▇
▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ 410,544 28,738 14,369 43,107
▇▇▇▇▇▇▇▇
Loffler Germany 0 0 0 0
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Germany 0 0 0 0
▇▇▇▇▇▇▇▇
Loffler Germany 101,500 55,892 0 55,892
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Germany 121,000 54,515 12,115 66,630
▇▇▇▇▇▇▇▇
Loffler Germany 251,550 95,898 42,621 138,519
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Germany 165,960 68,541 22,847 91,388
▇▇▇▇▇▇▇▇
Loffler Germany 27,500 15,143 0 15,143
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Germany 6,706,201 343,436 3,349,408 3,692,843
Valois 400,000 32,838 32,838 65,675
Valois 34,151,367 887,748 4,719,496 5,607,245
Valois Italiana 400,786 22,248 200,669 222,917
Valois of
America 697,048 91,808 605,240 697,048
ROUNDING (1) (1)
--------------------------------------
TOTAL NOTES PAYABLE 6,686,652 78,552,836 85,239,487
--------------------------------------
Schedule 5.18
SCHEDULE 5.18
DEBT
Bank name Description Secured by Rate - fixed Interest Issue Maturity LC - ST
--------- of Debt Assets or Variable? Rate Date Date -------
------- ------ ----------- ---- ---- ----
MORTGAGES PAYABLE
General Plastics Credit Agricole Bank Yes F 5.90% 1/97 12/00 260,718
General Plastics Societe General Bank Yes V 4.65% 4/98 1/02 225,000
General Plastics Credit Agricole Bank Yes F 5.05% 8/98 7/02 153,886
General Plastics SNVB Bank Yes F 4.80% 8/98 7/02 199,094
General Plastics SNVB Bank Yes F 5.25% 8/98 7/02 188,740
General Plastics Bred Bank Yes F 4.80% 10/98 7/02 177,350
General Plastics BNP Bank Yes F 4.09% 3/99 9/03 91,066
General Plastics BNP Bank Yes F 4.09% 3/99 2/03 772,842
Novares S.p.A. Loan BNL Other No F 2.10% 12/22/98 6/30/08 269,260
▇▇▇▇▇▇▇▇ GmbH Commerzbank Bank Yes F 4.70% 06/96 3/99 0
▇▇▇▇▇▇▇▇ GmbH West LB Bank Yes F 5.00% 06/96 12/01 161,515
▇▇▇▇▇▇▇▇ GmbH Sparkasse Bank No F 4.95% 3/98 12/02 1,000,000
▇▇▇▇▇▇▇▇ GmbH BW Bank Bank No F 4.90% 11/97 12/02 1,000,000
▇▇▇▇▇▇▇▇ GmbH BW Bank Bank No F 5.00% 06/96 12/99 625,000
Sar Loan Other Yes F 5.25% 12/31/94 6/30/04 599,035
INDUSTRIAL ▇▇▇ ▇▇▇▇▇
SPD US IRB IRB No V 6.05% 12/96 12/01 333,400
LC - LT TOTAL - LC US$ - ST US$ - LT TOTAL $
--------------------------------------------------------------
MORTGAGES PAYABLE
General Plastics 205,859 466,577 42,807 33,800 76,606
General Plastics 450,000 675,000 36,942 73,885 110,827
General Plastics 572,747 726,633 25,266 94,038 119,304
General Plastics 503,378 702,472 32,689 82,649 115,337
General Plastics 480,816 669,556 30,989 78,944 109,933
General Plastics 692,111 869,461 29,119 113,636 142,755
General Plastics 908,934 1,000,000 14,952 149,236 164,188
General Plastics 3,427,158 4,200,000 126,891 562,698 689,590
Novares S.p.A. 2,530,740 2,800,000 149,762 1,407,598 1,557,360
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇ ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ 323,338 484,853 88,940 178,050 266,990
▇▇▇▇▇▇▇▇ GmbH 3,000,000 4,000,000 550,661 1,651,983 2,202,644
▇▇▇▇▇▇▇▇ GmbH 3,000,000 4,000,000 550,661 1,651,983 2,202,644
▇▇▇▇▇▇▇▇ GmbH 0 625,000 344,163 0 344,163
Sar 3,115,244 3,714,279 333,183 1,732,699 2,065,882
ROUNDING (1) (1)
-----------------------------------
TOTAL MORT PAYABLE 2,357,025 7,811,198 10,168,223
-----------------------------------
INDUSTRIAL ▇▇▇ ▇▇▇▇▇
SPD US 582,450 915,850 333,400 582,450 915,850
-----------------------------------
Schedule 5.18
SCHEDULE 5.18
-------------
DEBT
Description Secured by Rate - fixed Interest Issue Maturity
Bank name of Debt Assets or variable? Rate Date Date
--------- ----------- --------- ----------- ------- ----- --------
CAPITAL LEASES
Dispray Capital Lease Building Yes F 2.50% 7/88 7/03
Dispray Capital Lease Building Yes F 6.62% 3/95 3/05
General Plastics Capital Lease Press Yes F 8.02% 3/15/95 3/15/00
General Plastics Capital Lease Press Yes F 8.32% 8/15/95 8/15/00
General Plastics Capital Lease Press Yes F 7.59% 4/1/96 11/26/00
Graphocolor Capital Lease Misc Equip No V 4.08% 12/30/96 12/30/08
MPN Capital Lease Sofinbail Yes F 7.49% 3/95 3/00
▇▇▇▇▇▇▇▇-Vlaois UK Capital Lease Fork Lift Truc No F 12.43% 7/1/98 6/30/03
Rounding
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Czech Capital Lease Machine Yes F 7.00% 7/1/98 6/1/02
SVC Australia Capital Lease Volkswagon Yes F 7.24% 3/22/99 3/22/03
SVC Australia Capital Lease Subaru Yes F 6.99% 11/7/97 11/7/01
Valois Capital Lease Domibail Yes V 3.88% 6/30/90 6/30/05
Valois Capital Lease Domibail Yes V 3.85% 12/1/93 12/1/08
Valois Capital Lease Domibail Yes V 4.80% 1/10/90 7/4/05
LC - ST LC - LT TOTAL - LC US$ - ST US$ - LT TOTAL $
-------------------------------------------------------------------------
CAPITAL LEASES
Dispray 16,932 1,150,598 1,167,530 11,429 776,654 788,083
Dispray 16,418 1,190,101 1,206,519 11,082 803,318 814,400
General Plastics 372,964 0 372,964 61,236 0 61,236
General Plastics 99,557 48,564 148,121 16,346 7,974 24,320
General Plastics 101,831 79,678 181,509 16,719 13,082 29,802
Graphocolor 903,591 13,763,159 14,666,750 148,359 2,259,746 2,408,104
MPN 191,346 0 191,346 31,417 0 31,417
▇▇▇▇▇▇▇▇-Vlaois 3,126 14,406 17,532 5,038 23,220 28,258
Rounding ROUNDING 2 2
▇▇▇▇▇▇▇▇ Loffler Czech 4,360,447 16,421,359 20,781,806 121,787 458,649 580,436
SVC Australia 6,226 42,608 48,834 3,949 27,026 30,975
SVC Australia 5,182 25,789 30,971 3,287 16,358 19,645
Valois 2,031,127 8,784,702 10,815,829 333,487 1,442,343 1,775,829
Valois 1,842,110 11,099,429 12,941,539 302,452 1,822,393 2,124,845
Valois 912,145 6,850,357 7,762,502 149,763 1,124,746 1,274,510
-----------------------------------
TOTAL CAPITAL LEASES 1,216,355 8,775,508 9,991,862
-----------------------------------
Schedule 5.18
SCHEDULE 5.18
-------------
DEBT
Description Secured by Rate - fixed Interest Issue Maturity
Bank name of Debt Assets or variable? Rate Date Date
--------- ----------- ---------- ------------ -------- ----- --------
All other Debt between
March 31, 1999 and the
Effective Date which had an
original principal amount in
excess of $25,000,000:
AptarGroup debt placement Various Private No Fixed 6.62% 5/28/99 5/30/11
institutions Placement
Repay ST note from proceeds BOA Updated
Total
LC - ST LC - LT TOTAL - LC US$ - ST US$ - LT TOTAL $
------------------------------------------------------------------------------
GRAND TOTAL DEBT PER BOOKS
at March 31, 1999 159,652,362 95,721,991 255,374,353
=========================================
All other Debt between
March 31, 1999 and the
Effective Date which had an
original principal amount in
excess of $25,000,000:
AptarGroup debt placement
0 107,000,000 107,000,000
Repay ST note from proceeds BOA (107,000,000) (107,000,000)
-----------------------------------------
52,652,362 202,721,991 255,374,353
=========================================
Schedule 5.18
SCHEDULE 6.15
EXISTING INVESTMENTS
Equity investments:
Seaplast (50%) 1,585,681
TES (40%) 74,923
CosterSeaquist LLC (50%) 2,624,757
----------
Subtotal 4,285,361
Other:
Fadeva loan 500,000
----------
Grand Total 4,785,361
==========
SCHEDULE 10.2
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
BANK OF AMERICA NATIONAL TRUST
------------------------------
AND SAVINGS ASSOCIATION,
-----------------------
As Administrative Agent
Bank of America National Trust
and Savings Association
Agency Management Services #5596
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Bank of America National Trust and Savings Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇▇▇, Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ADMINISTRATIVE AGENT'S PAYMENT OFFICE
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Bank of America National Trust
and Savings Association
Agency Management Services #5596
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ABA No. ▇▇▇-▇▇▇-▇▇▇
For Credit to Account No.: 12336-17053
Ref: AptarGroup, Inc.
BANK OF AMERICA NATIONAL TRUST
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AND SAVINGS ASSOCIATION,
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As a Lender
Domestic and Offshore Lending Office:
Bank of America National Trust
and Savings Association
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Bank of America National Trust
and Savings Association
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Attention: ▇.▇. ▇▇▇▇▇▇▇▇, Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ABN AMRO BANK N.V.
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Domestic and Offshore Lending Office:
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Attention: Credit Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
ABN AMRO Bank N.V.
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SOCIETE GENERALE - CHICAGO BRANCH
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET NATIONAL BANK
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Domestic and Offshore Lending Office:
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Attention:
Telephone:
Facsimile:
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Mail Stop CT FD KO2A
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Attention: ▇. ▇▇▇▇▇▇▇ Caner
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
APTARGROUP, INC.
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AptarGroup, Inc.
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Attention: Vice President-Risk Management
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇