U.S. $200,000,000
CREDIT AGREEMENT
Dated as of November 18, 1996
Among
▇▇▇▇▇▇ WIRE & CABLE COMPANY
as Borrower,
THE BANKS NAMED HEREIN
as Banks,
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
as Administrative Agent
TABLE OF CONTENTS
ARTICLE 1.
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Computation of Time Periods . . . . . . . . . . . . . . . . 10
Section 1.3 Accounting Terms. . . . . . . . . . . . . . . . . . . . . . 11
Section 1.4 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 2.
CREDIT FACILITY
Section 2.1 The A Advances . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.2 The B Advances . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.3 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.4 Interest . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.5 Payments, Etc . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.6 Payments Pro Rata . . . . . . . . . . . . . . . . . . . . . 23
Section 2.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.8 Breakage Costs . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.9 Increased Costs . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.10 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . 25
Section 2.11 Certain Tax Regulations . . . . . . . . . . . . . . . . . 26
Section 2.12 Illegality . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.13 Market Failure . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.14 Removal of Certain Banks . . . . . . . . . . . . . . . . . 27
ARTICLE 3.
CONDITIONS
Section 3.1 Conditions to First Advances . . . . . . . . . . . . . . . 28
Section 3.2 A Borrowings . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.3 B Borrowings . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
Section 4.1 Corporate Existence and Power . . . . . . . . . . . . . . . 30
Section 4.2 Corporate Authority . . . . . . . . . . . . . . . . . . . . 30
Section 4.3 Financial Condition . . . . . . . . . . . . . . . . . . . . 31
Section 4.4 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.5 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.6 Use of Advances.. . . . . . . . . . . . . . . . . . . . . . 31
Section 4.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.8 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . 32
Section 4.9 Credit Agreement . . . . . . . . . . . . . . . . . . . . . 32
Section 4.10 Titles, Etc. . . . . . . . . . . . . . . . . . . . . . . . 32
Section 4.11 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 4.12 Validity, Etc. . . . . . . . . . . . . . . . . . . . . . . 32
Section 4.13 Environmental Matters. . . . . . . . . . . . . . . . . . . 32
ARTICLE 5.
COVENANTS
Section 5.1 Financial Statements . . . . . . . . . . . . . . . . . . . 33
Section 5.2 Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.3 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.4 Merger and Sale of Assets . . . . . . . . . . . . . . . . . 36
Section 5.5 Subsidiary Guaranties . . . . . . . . . . . . . . . . . . . 37
Section 5.6 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.7 Sale-and-Leaseback . . . . . . . . . . . . . . . . . . . . 37
Section 5.8 Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.9 Maintenance of Property; Insurance . . . . . . . . . . . . 38
Section 5.10 Compliance with Laws . . . . . . . . . . . . . . . . . . . 38
ARTICLE 6.
EVENTS OF DEFAULT
ARTICLE 7.
THE AGENT
Section 7.1 Authorization and Action . . . . . . . . . . . . . . . . . 41
Section 7.2 Agent's Reliance, Etc . . . . . . . . . . . . . . . . . . . 41
Section 7.3 The Agent and Affiliates . . . . . . . . . . . . . . . . . 42
Section 7.4 Bank Credit Decision . . . . . . . . . . . . . . . . . . . 42
Section 7.5 Indemnification . . . . . . . . . . . . . . . . . . . . . . 43
Section 7.6 Successor Agent . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE 8.
MISCELLANEOUS
Section 8.1 Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . 44
Section 8.2 Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . 45
Section 8.3 No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . 45
Section 8.4 Costs, Expenses, and Taxes . . . . . . . . . . . . . . . . 45
Section 8.5 Right of Set-off . . . . . . . . . . . . . . . . . . . . . 46
Section 8.6 Assignments and Participations . . . . . . . . . . . . . . 46
Section 8.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.8 Execution in Counterparts . . . . . . . . . . . . . . . . . 49
Section 8.9 Survival of Agreements . . . . . . . . . . . . . . . . . . 49
Section 8.10 Borrower's Right to Apply Deposits . . . . . . . . . . . . 49
Section 8.11 Binding Effect . . . . . . . . . . . . . . . . . . . . . . 50
Section 8.12 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . 50
Section 8.13 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . 50
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EXHIBITS
Exhibit A-1 Form of A Promissory Note
Exhibit A-2 Form of B Promissory Note
Exhibit B-1 Form of Request for A Borrowing
Exhibit B-2 Form of Request for B Borrowing
Exhibit B-3 Form of Offer of B Advances
Exhibit B-4 Form of Acceptance of B Advances
Exhibit C Form of Compliance Certificate
Exhibit D Form of Guaranty
Exhibit E Form of Assignment and Acceptance
SCHEDULES
Schedule I Borrower, Agent and Bank Information
Schedule II Borrower's List of Subsidiaries
Schedule III Borrower Disclosures
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CREDIT AGREEMENT
This Credit Agreement dated as of November 18, 1996, is by and among the
Borrower, the Agent, and the Banks. In consideration of the mutual
covenants and agreements contained herein, the Borrower, the Agent, and the
Banks hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Advance" means an advance by a Bank to the Borrower as part of an A
Borrowing and refers to a Base Rate Advance or a LIBOR Rate Advance, each
of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A Advances of
the same Type to the Borrower made by each of the Banks pursuant to Section
2.1.
"A Note" means a promissory note of the Borrower payable to the order of
any Bank, in substantially the form of Exhibit A-1, evidencing the
aggregate indebtedness of the Borrower to such Bank resulting from A
Advances.
"Acceptance of B Advances" means an Acceptance of B Advances in the form of
Exhibit B-4, fully completed with the required information and executed by
the Borrower.
"Advance" means an A Advance or a B Advance.
"Affiliate" means, with respect to any Person, either a wholly-owned
subsidiary of such Person or a wholly-owned subsidiary of any corporation
controlling such Person.
"Agent" means Bank of America National Trust and Savings Association, in
its capacity as agent pursuant to Article 7 hereof or any successor Agent
pursuant to Section 7.6.
"Agent's Fee Letter" means the letter agreement dated as of October 18,
1996, between the Agent and the Borrower.
"Agreement" means this Credit Agreement dated as of November 18, 1996,
among the Borrower, the Agent, and the Banks.
"Alternate Currency" means Pounds Sterling, German Marks, French Francs,
Italian Lira, Dutch Guilders, Japanese Yen, Canadian Dollars, Swiss Francs,
Australian Dollars and any other currency (other than Dollars) approved by
the Banks which is freely transferable and convertible into Dollars and in
which dealings in deposits are carried out on the London interbank market.
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"Alternate Currency A Advance" means an A Advance made in an Alternate
Currency.
"Alternate Currency B Advance" means a B Advance made in an Alternate
Currency.
"Alternate Currency Advance" means an Alternate Currency A Advance or an
Alternate Currency B Advance.
"Alternate Lending Office" means, with respect to any Bank, the office of
such Bank specified as its "Alternate Lending Office" opposite its name on
Schedule I hereto or if no such office is specified, its Domestic Lending
Office (or with respect to any assignee becoming a Bank hereunder in
accordance with Section 8.6(e), as set forth in the applicable Assignment),
or such other office of such Bank as such Bank may from time to time
specify to the Borrower and the Agent.
"Applicable Currency" means, as to any particular payment or Advance,
Dollars or the Alternate Currency in which it is denominated or is payable.
"Applicable Facility Fee" means, with respect to the Facility Fee paid by
the Borrower to the Banks under Section 2.3(a) and for any period during
which such Applicable Facility Fee shall be in effect, the percentage
amount set forth in the appropriate column in the definition of "Applicable
Interest Margin". The Agent shall determine the Applicable Facility Fee
based upon the most recent quarterly or year-end financial statements
delivered to the Agent pursuant to Sections 5.1(a) and (b). Any
adjustments to the Applicable Facility Fee shall become effective three
Business Days following the date of delivery of such financial statements
to the Agent or, if the financial information required for such
determination is according to regular practice made public prior to such
date, three Business Days after the date such financial information is made
public. Upon any change in the Applicable Facility Fee, the Agent shall
promptly notify the Borrower and the Banks of the new Applicable Facility
Fee.
"Applicable Interest Margin" means, with respect to any A Advance which is
a LIBOR Rate Advance and for any period during which such Applicable
Interest Margin shall be in effect, the percentage amount set forth in the
appropriate column in the table below, relating to the applicable Leverage
Ratio. The Agent shall determine the Applicable Interest Margin based upon
the most recent quarterly or year-end financial statements delivered to the
Agent pursuant to Sections 5.1(a) and (b). Any adjustments to the
Applicable Interest Margin shall become effective three Business Days
following the date of delivery of such financial statements to the Agent
or, if the financial information required for such determination is
according to regular practice made public prior to such date, three
Business Days after the date such financial information is made public.
Upon any change in the Applicable Interest Margin, the Agent shall promptly
notify the Borrower and the Banks of the new Applicable Interest Margin.
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Level I Level II Level III Level IV Level V
Leverage Ratio Less than 40% Equal to or Equal to or Equal to or Equal to or
greater than 40% greater than 45% greater than 55% greater than 60%
but less than but less than but less than 60%
45% 55%
Applicable Facility 9.0 10.0 12.5 17.5 25.0
Fee: (in basis points)
Applicable Interest Margin: 23.5 25.0 27.5 32.5 50.0
(in basis points)
For example, if the Leverage Ratio is less than 40%, the Applicable
Facility Fee is 9/100 of one percent.
"Applicable Lending Office" means, with respect to each Bank, such Bank's
Domestic Lending Office in the case of a Base Rate Advance, such Bank's
Alternate Lending Office in the case of a LIBOR Rate Advance, and, in the
case of a B Advance, the office of such Bank notified by such Bank to the
Agent as its Applicable Lending Office with respect to such B Advance.
"Assignment" means an assignment and acceptance in substantially the form
of Exhibit E executed by an assignor Bank and an assignee Bank in
accordance with Section 8.6(d).
"Attorney Costs" means and includes all reasonable fees and disbursements
of any law firm or other external counsel, the reasonable allocated cost of
internal legal services and all disbursements of internal counsel.
"B Advance" means an advance by a Bank to the Borrower as part of a B
Borrowing resulting from the bidding procedure described in Section 2.2.
"B Borrowing" means a borrowing consisting of simultaneous B Advances to
the Borrower from each of the Banks whose offer to make one or more B
Advances as part of such borrowing has been accepted by the Borrower under
the bidding procedure described in Section 2.2.
"B Note" means a promissory note of the Borrower payable to the order of
any Bank, in substantially the form of Exhibit A-2, evidencing the
indebtedness of the Borrower to such Bank resulting from a B Advance made
to the Borrower by such Bank.
"Banks" means the banks listed on the signature pages hereof and each other
Person that becomes a Bank in accordance with Section 8.6(e).
"Base Rate" means a fluctuating interest rate per annum as shall be in
effect from time to time which rate per annum shall at all times be equal
to the highest of (a) the Reference Rate or (b) 0.500% per annum above the
Federal Funds Rate in effect from time to time.
"Base Rate Advance" means an A Advance which bears interest as provided in
Section 2.4(a)(i).
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"Belden" means ▇▇▇▇▇▇ Inc., a Delaware corporation, or ▇▇▇▇▇▇ Wire & Cable
Company following any merger of ▇▇▇▇▇▇ Inc. into ▇▇▇▇▇▇ Wire & Cable
Company pursuant to Section 5.4(a).
"Borrower" means ▇▇▇▇▇▇ Wire & Cable Company, a Delaware corporation, or
▇▇▇▇▇▇ Inc., a Delaware corporation, following any merger of ▇▇▇▇▇▇ Wire &
Cable Company into ▇▇▇▇▇▇ Inc. pursuant to Section 5.4(a).
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year on which commercial banks are not
required or authorized to close in Chicago, Illinois, San Francisco,
California, or New York, New York, and, if the applicable Business Day
relates to any LIBOR Rate Advances or Alternate Currency Advances, on which
dealings in deposits in the Applicable Currency are carried on in the
London interbank market.
"Capitalized Lease Obligations" means any and all lease obligations which,
in accordance with generally accepted accounting principles, have been or
should be capitalized on the books of the lessee.
"Change in Control" means, with respect to any Person, the direct or
indirect acquisition by any other person (as such term is used in Section
13(d) and Section 14(d)(2) of the Exchange Act), or related persons
constituting a group (as such term is used in Rule 13d-5 under the Exchange
Act), of (a) beneficial ownership of issued and outstanding shares of
voting stock of such Person, the result of which acquisition is that such
other person or such group possesses in excess of 50 percent of the
combined voting power of all then-issued and outstanding voting stock of
such Person, or (b) the power to elect, appoint, or cause the election or
appointment of at least a majority of the members of the board of directors
of such Person.
"Commitment" means with respect to any Bank and at any time of its
determination, the amount set forth opposite such Bank's name on the
signature pages hereof, as such amount may be terminated, reduced, or
increased pursuant to Section 2.1(a)(ii), Section 2.14(b), Section 8.6(e),
or Article 6.
"Compliance Certificate" means a compliance certificate in substantially
the form of Exhibit C executed by an appropriate officer of the Borrower
evidencing the Borrower's compliance with the terms hereof.
"Credit Documents" means this Agreement, the Notes, the Guaranties, and
each other agreement, instrument, or document executed by the Borrower or
any Guarantor at any time in connection with this Agreement.
"Debt" means, for any Person and at any time of its determination, (a) the
indebtedness for borrowed money of such Person, (b) the Capitalized Lease
Obligations of such Person, (c) the obligations of such Person for the
purchase of property or services which have been deferred for 91 days or
more, (d) the obligations of such Person to assure the payment of such
indebtedness, Capitalized Lease Obligations, and deferred purchase prices
of others, whether by guarantee or agreement to purchase, provide funds for
payment, supply funds, or otherwise invest in the other debtor, and (e) the
unpaid amount of any accounts or notes receivable sold by such Person
(other than receivables sold to a consolidated subsidiary of such Person)
and, without duplication, any repurchase obligations, guarantees, or other
Document #0021220 4
liabilities of such Person in connection with such sale; in each case of
(a) through (e) above whether direct or indirect, contingent or otherwise;
provided, however, that Debt shall not include accounts payable (other than
for borrowed money or for such deferred purchase price) and accrued
expenses incurred in the ordinary course of business if the same are not
overdue in a material amount or, if overdue, are being contested in good
faith and by appropriate proceedings, and Debt shall not include contingent
obligations for the payment of deferred purchase prices unless required to
be disclosed on the balance sheet of such Person in accordance with
generally accepted accounting principles.
"Default" means an Event of Default or an event which, with the giving of
notice or lapse of time or both, would constitute an Event of Default.
"Dollars or $" means lawful money of the United States of America.
"Dollar Equivalent" means (a) in relation to any amount denominated in
Dollars, the amount thereof and (b) in relation to an amount denominated in
any Alternate Currency, the amount of such Dollars required to purchase the
relevant stated amount of Alternate Currency at the Exchange Rate on the
date of determination. For the purposes of this Agreement, unless otherwise
expressly stated herein, the Dollar Equivalent principal amount of any
Alternate Currency A Advance shall be determined on the date on which the
borrowing notice is received with respect thereto and, in the case of any
Alternate Currency B Advance, the date on which the relevant offer from the
participating Banks is accepted by the Borrower under Section 2.2(b)(iii).
"Domestic Lending Office" means, with respect to any Bank, the office of
such Bank specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto (or with respect to any assignee becoming a Bank
hereunder in accordance with Section 8.6(e), as set forth in the applicable
Assignment) or such other office of such Bank as such Bank may from time to
time specify to the Borrower and the Agent.
"Environmental Laws" means any and all federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements, and other
governmental restrictions relating to the environment or to emissions,
discharges, or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals, or industrial, toxic, or hazardous substances or
wastes into the environment including ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals, or
industrial, toxic, or hazardous substances or wastes or the clean-up or
other remediation thereof.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended from time to time, including any rules or regulations promulgated
thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Events of Default" has the meaning specified in Article 6.
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"Exchange Rate" means, in relation to the exchange of Dollars with an
Alternate Currency, the rate of exchange provided by the Federal Reserve
Bank of New York in its 12 Noon Midpoint - New York Interbank Market -
Consensus Rates on the date of determination for the spot purchase in the
foreign exchange market of the applicable amount of Dollars with such
Alternate Currency.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by it.
"Fixed Rate Advance" means a LIBOR Rate Advance or a B Advance.
"Guaranties" means the Guaranty in the form of Exhibit D dated as of
November 18, 1996, made by Belden in favor of the Agent for the ratable
benefit of the Banks, any guaranties executed by Subsidiaries of the
Borrower pursuant to Section 5.5, and any other guaranty of the Advances or
any other obligations of the Borrower to the Banks or the Agent now or
hereafter executed.
"Guarantors" means Belden, any Subsidiaries of the Borrower which execute a
Guaranty pursuant to Section 5.5, and any other Affiliate of the Borrower
now or hereafter obligated to the Agent or the Banks under a Guaranty.
"Interest Period" means, with respect to each LIBOR Rate Advance comprising
part of the same A Borrowing or with respect to each B Advance bearing
interest based upon the LIBOR plus a margin as part of any B Borrowing, the
period commencing on the date of such Advance and ending on the last day of
the period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three, or six
months, in each case as the Borrower may select in the applicable Request
For A Borrowing or Request for B Borrowing; provided, however, that:
(a) Interest Periods for Advances comprising part of the same
Borrowing shall be of the same duration;
(b) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day;
provided that if such extension would cause the last day of such
Interest Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next preceding
Business Day;
(c) any Interest Period which begins on the last Business Day of the
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month in
which it would have ended if there were a numerically corresponding
day in such calendar month; and
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(d) the Borrower may not select an Interest Period for any Advance if
the last day of such Interest Period would be later than the
Termination Date.
"Leverage Ratio" means, with respect to Belden, the ratio of ▇▇▇▇▇▇'▇
consolidated Debt to Total Capitalization.
"LIBOR" means: (a) with respect to any A Borrowing, an interest rate per
annum equal to the rate per annum at which deposits in the Applicable
Currency are offered by the principal office of the Agent in London,
England, to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to the amount of the LIBOR Rate
Advance of the Agent comprising part of such A Borrowing to be outstanding
during the applicable Interest Period for such A Borrowing; and (b) with
respect to any B Borrowing, an interest rate per annum equal to the rate
per annum at which deposits in an amount substantially equal to the
smallest B Advance to be made as part of such B Borrowing in the Applicable
Currency for such B Borrowing and for periods substantially equal to the
period of such B Borrowing are offered by the principal office of the Agent
in London, England, to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the date of such B Borrowing.
"LIBOR Rate Advance" means an A Advance which bears interest as provided in
Section 2.4(a)(ii).
"LIBOR Reserve Percentage" means, with respect to any Bank for the Interest
Period for any LIBOR Rate Advance, the reserve percentage applicable during
such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including any emergency, supplemental, or other
marginal reserve requirement) for such Bank with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities having a term
equal to such Interest Period.
"Majority Banks" means, at any time, Banks having at least 66-2/3% of the
Commitments or, if all Commitments have terminated, Banks holding at least
66-2/3% of the then aggregate outstanding principal amount of the Advances
held by the Banks.
"Net Worth" means, for any Person and at any time of its determination, the
consolidated shareholders' equity of such Person determined in accordance
with generally accepted accounting principles.
"Note" means an A Note or a B Note.
"Offer of B Advances" means an Offer of B Advances in the form of Exhibit
B-3, fully completed with the required information specified therein and
executed by a Bank.
"Operating Earnings" means, for any Person and for any period of its
determination, the consolidated income of such Person for such period
before extraordinary items, income taxes, interest expense, general
corporate expenses, and changes in accounting principles, determined in
accordance with generally accepted accounting principles.
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"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Payment Office" means, with respect to the Agent for payment in Dollars or
Alternate Currency, the address for payments in the relevant currency to
the Agent set forth on Schedule I or such other address as the Agent may
from time to time specify in accordance with Section 8.2.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, or other entity, or a government or any political
subdivision or agency thereof, or any trustee, receiver, custodian, or
similar official.
"Plan" means any employee benefit or other plan maintained by the Borrower
or any of its Subsidiaries for their employees and covered by Title IV of
ERISA or to which Section 412 of the Internal Revenue Code of 1986, as
amended, applies.
"Reference Rate" means the rate of interest in effect for such day as
publicly announced from time to time by Bank of America National Trust and
Savings Association in San Francisco, California, as its "reference rate".
(The "reference rate" is a rate set by Agent based upon various factors
including its cost and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change in
the reference rate announced by Agent shall take effect at the opening of
business on the day specified in the public announcement of such change.)
"Regulatory Change" means any change after the date of the Agreement in
United States federal or state, or foreign, laws or regulations or the
adoption or making after such date of any interpretations, directives, or
requests applying to a class of banks including any Bank of or under any
United States federal or state, or any foreign, laws or regulations
(whether or not having the force of law) by any court or governmental or
monetary authority charged with the interpretation or administration
thereof.
"Request for Borrowing" means a Request For A Borrowing or a Request For B
Borrowing.
"Request for A Borrowing" means a Request For A Borrowing in the form of
Exhibit B-1, fully completed with the required information specified
therein and executed by the Borrower.
"Request for B Borrowing" means a Request for B Borrowing in the form of
Exhibit B-2, fully completed with the required information specified
therein and executed by the Borrower.
"Significant Subsidiary" means, with respect to the Borrower and at any
time of its determination, any Subsidiary of the Borrower which has
contributed five percent or more of the consolidated revenues of the
Borrower for the fiscal year of the Borrower most recently ended.
"Subsidiary" means, with respect to any Person and at any time of its
determination, any corporation, partnership, or other business entity for
which such Person directly or indirectly owns at least a majority of the
securities or ownership interests having ordinary voting power for the
Document #0021220 8
election of directors or other management of such corporation, partnership,
or other business entity (other than securities or ownership interests
having such power only by reason of the happening of a contingency).
"Termination Date" means (a) November 18, 2001, or (b) any earlier date of
the termination in whole of the Commitments pursuant to Section 2.1(a)(ii)
or Article 6.
"Termination Event" means any event or condition which would constitute
grounds under Section 4042 of ERISA for the termination of, or for the
appointment of a trustee to administer, any Plan.
"Total Capitalization" means, for any Person and at any time of its
determination, the sum of the consolidated Debt of such Person and the
consolidated Net Worth of such Person.
"Type" shall have the meaning set forth in the definition of the term "A
Advance" above.
Section 1.2 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each means "to but excluding."
Section 1.3 Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles, and each reference herein to "generally accepted accounting
principles" shall mean generally accepted accounting principles consistent
with those applied in the preparation of the financial statements referred
to in Section 4.3.
Section 1.4 Miscellaneous. The words "hereof," "herein," and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement,
and Article, Section, Schedule, and Exhibit references are to Articles and
Sections of and Schedules and Exhibits to this Agreement, unless otherwise
specified.
ARTICLE 2.
CREDIT FACILITY
Section 2.1 The A Advances.
(a) Commitment.
(i) Each Bank severally agrees, on the terms and conditions
hereinafter set forth, to make A Advances to the Borrower from
time to time on any Business Day during the period from the date
hereof until the Termination Date in an aggregate outstanding
Dollar Equivalent principal amount not to exceed such Bank's
Commitment, provided that following the making of any A Borrowing
the aggregate outstanding Dollar Equivalent principal amount of
Advances shall not exceed the aggregate amount of the
Commitments. Each A Borrowing shall consist of A Advances of the
same Type and the same Applicable Currency made to the Borrower
on the same day by the Banks ratably in accordance with their
respective Commitments. Within the limits set forth in this
Document #0021220 9
Section 2.1, the Borrower may from time to time borrow pursuant
to paragraph (b) below, prepay pursuant to paragraph (c) below,
and reborrow under this Section 2.1. The indebtedness of the
Borrower resulting from the A Advances made from time to time by
each Bank shall be conclusively evidenced by the records of such
Bank, absent manifest error, and, if requested by such Bank,
evidenced by an A Note of the Borrower payable to the order of
such Bank.
(ii) The Borrower shall have the right, upon at least five
Business Days' notice to the Agent, to terminate in whole or
reduce ratably in part the unused portions of the respective
Commitments of the Banks, provided that each partial reduction
shall be in the aggregate amount of at least $5,000,000 and be
made in increments of $1,000,000, and provided further that the
aggregate amount of the Commitments of the Banks shall not be
reduced to an amount which is less than the aggregate Dollar
Equivalent principal amount of the Advances then outstanding. Any
such reduction or termination of the Commitments shall be
permanent.
(b) Method of Advancing.
(i) The Borrower may request an A Borrowing by delivering to the
Agent, not later than 11:00 A.M. (Chicago time), a Request for A
Borrowing, in the case of a proposed Borrowing comprised of LIBOR
Rate Advances, at least three Business Days prior to the date of
the proposed Borrowing, and in the case of a proposed Borrowing
comprised of Base Rate Advances, on the Business Day of the
proposed Borrowing. The Agent shall give to each Bank prompt
notice thereof. Each A Borrowing comprised of Base Rate Advances
shall be in Dollars and shall be in an aggregate principal amount
of not less than $1,000,000 and be made in $100,000 multiples.
Each A Borrowing comprised of LIBOR Rate Advances shall be in an
aggregate Dollar Equivalent principal amount of not less than
$5,000,000 and be made in 1,000,000 unit multiples of the
Applicable Currency. In the case of a proposed A Borrowing
comprised of LIBOR Rate Advances, the Agent shall promptly notify
each Bank of the applicable interest rate under Section
2.4(a)(ii). At no time shall there be outstanding more than five
A Borrowings comprised of LIBOR Rate Advances. Each Bank shall,
before 11:00 A.M. (local time at the applicable Payment Office)
on the date of such A Borrowing, make available for the account
of its Applicable Lending Office to the Agent at its Payment
Office, in same day funds, such Bank's ratable portion of such A
Borrowing. Upon fulfillment of the applicable conditions set
forth herein and, except as specified in paragraph (iv) below,
after receipt by the Agent of such funds, the Agent shall make
such funds available to the Borrower at the Agent's applicable
Payment Office.
(ii) If the Borrower has requested a proposed A Borrowing
consisting of LIBOR Rate Advances and then receives notice of
circumstances referred to in Sections 2.9(b), 2.12, or 2.13 the
result of which is that any part of such A Borrowing would not
consist of LIBOR Rate Advances, the Borrower may, by notice given
not later than 11:00 A.M. (Chicago time) at least two Business
Days prior to the date such proposed A Borrowing would otherwise
Document #0021220 10
be made, cancel such A Borrowing, in which case such A Borrowing
shall be cancelled and no Advances shall be made as a result of
such requested A Borrowing, but the Borrower shall indemnify the
Banks which are not subject to one of the circumstances referred
to above in connection with such cancellation as contemplated by
Section 2.8.
(iii) Except as specified in paragraph (ii) above, each Request
for A Borrowing shall be irrevocable and binding on the Borrower,
and the Borrower shall indemnify the Banks in accordance with
Section 2.8 for any failure to borrow any requested A Borrowing
comprised of LIBOR Rate Advances, including failures caused by
the Borrower's failure to fulfill the applicable conditions
precedent.
(iv) Unless the Agent shall have received notice from a Bank
prior to the date of any A Borrowing that such Bank shall not
make available to the Agent such Bank's ratable portion of such A
Borrowing, the Agent may assume that such Bank has made such
portion available to the Agent on the date of such A Borrowing in
accordance with paragraph (a) of this Section 2.1 and the Agent
may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the
extent that such Bank shall not have so made such ratable portion
available to the Agent, such Bank and the Borrower severally
agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until
the date such amount is repaid to the Agent, at (A) in the case
of the Borrower, the interest rate applicable at the time to the
A Advances comprising such A Borrowing computed on the same basis
and (B) in the case of such Bank, the Federal Funds Rate computed
on the basis of a year of 360-days for the actual number of days
elapsed, with respect to an A Advance to be made in Dollars, or
the Agent's cost of funds for the Applicable Currency computed on
the same basis as regular interest on loans made hereunder in
such Applicable Currency, with respect to an A Advance to be made
in an Alternate Currency, provided that if such amount is not
repaid by such Bank by the end of the second day after the date
of the Agent's demand, the interest rates specified under (B)
above shall be increased by an additional 2% per annum on the
third day after the date of the Agent's demand and shall remain
at such increased rate thereafter. If such Bank shall repay to
the Agent such corresponding amount, such amount so repaid shall
constitute such Bank's A Advance as part of such A Borrowing for
purposes of this Agreement. The failure of any Bank to make the A
Advance to be made by it as part of any A Borrowing shall not
relieve any other Bank of its obligation, if any, hereunder to
make its A Advance on the date of such A Borrowing, but no Bank
shall be responsible for the failure of any other Bank to make
the A Advance to be made by such other Bank on the date of any A
Borrowing.
(c) Prepayment. The Borrower may prepay any A Borrowing by giving the
Agent at least one Business Day's notice, with respect to an A
Borrowing comprised of Base Rate Advances, and three Business Days'
notice, with respect to an A Borrowing comprised of LIBOR Rate
Advances, stating the proposed Business Day and aggregate principal
Document #0021220 11
amount of the prepayment. If such notice is given the Borrower shall
prepay the outstanding principal amounts of the A Advances comprising
part of such A Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal
amount prepaid and amounts, if any, required to be paid pursuant to
Section 2.8 as a result of such prepayment. Each partial prepayment
pursuant to this Section 2.1(c) with respect to an A Borrowing
comprised of Base Rate Advances shall be made in $100,000 multiples
and in an aggregate principal amount such that after giving effect
thereto such A Borrowing shall have a principal amount outstanding of
at least $1,000,000. Each partial prepayment pursuant to this Section
2.1(c) with respect to an A Borrowing comprised of LIBOR Rate Advances
shall be made in 1,000,000 unit multiples of the Applicable Currency
and in an aggregate principal amount such that after giving effect
thereto such A Borrowing shall have a Dollar Equivalent principal
amount outstanding of at least $5,000,000.
(d) Repayment. The Borrower shall repay the unpaid principal amount of
each Base Rate Advance on the Termination Date. The Borrower shall
repay the unpaid principal amount of each LIBOR Rate Advance on the
last day of the Interest Period for such LIBOR Rate Advance; provided
that if any LIBOR Rate Advance denominated in Dollars is not repaid at
the expiration of the Interest Period for such LIBOR Rate Advance,
such LIBOR Rate Advance shall automatically convert to a Base Rate
Advance.
Section 2.2 The B Advances.
(a) Generally. Each Bank severally agrees that the Borrower may
request B Borrowings under this Section 2.2 from time to time on any
Business Day during the period from the date hereof until the date
occurring 30 days prior to the Termination Date in the manner set
forth below; provided that, following the making of each B Borrowing,
the aggregate outstanding Dollar Equivalent principal amount of the
Advances shall not exceed the aggregate amount of the Commitments.
Within the limits and on the conditions set forth in this Section 2.2,
the Borrower may from time to time borrow pursuant to paragraph (b)
below, prepay and repay pursuant to paragraphs (c) and (d) below, and
reborrow under this Section 2.2. The indebtedness of the Borrower
resulting from each B Advance made to the Borrower as part of a B
Borrowing shall be conclusively evidenced by the records of each Bank
making such B Advances, absent manifest error, and, upon request of
such Bank, by a separate B Note of the Borrower payable to the order
of such Bank.
(b) Method of Advancing.
(i) The Borrower may request a B Borrowing by delivering to the
Agent, not later than 9:00 A.M. (Chicago time), a Request for B
Borrowing at least four Business Days prior to the date of the
proposed B Borrowing, with respect to B Borrowings to be
comprised of Alternate Currency B Advances or B Advances with
interest rates to be determined based upon the LIBOR, and at
least one Business Day prior to the date of the proposed B
Borrowing, with respect to B Borrowings to be comprised of Dollar
B Advances with interest rates to be based upon an absolute rate.
Each proposed B Borrowing shall be in an aggregate Dollar
Equivalent principal amount of not less than $2,000,000, be made
Document #0021220 12
in 1,000,000 unit multiples of the Applicable Currency, and
otherwise conform to the requirements specified in Exhibit B-2.
Any Request for B Borrowing that does not substantially conform
to the form of Exhibit B-2 and contain the information required
therein may be rejected by the Agent by delivering prompt notice
of the rejection to the Borrower. The Agent shall promptly notify
the Banks of the Request for B Borrowing and the terms of the
proposed B Borrowing. Without the prior approval of the Agent, no
B Borrowing may be requested within five Business Days of the
delivery of any other Request for B Borrowing and no more than
three Requests for B Borrowings may be delivered in any month.
(ii) Each Bank may, in its sole discretion, irrevocably offer or
decline to offer to make one or more B Advances to the Borrower
as part of such proposed B Borrowing by providing the Agent with
an Offer of B Advances notifying the Agent of such decision
before 9:00 A.M. (Chicago time) at least three Business Days
prior to the date of the proposed B Borrowing, with respect to B
Borrowings to be comprised of Alternate Currency B Advances or B
Advances with interest rates to be determined based upon the
LIBOR and on the Business Day of the proposed B Borrowing, with
respect to B Borrowings to be comprised of Dollar B Advances with
interest rates to be based upon an absolute rate. If the Agent,
in its capacity as a Bank hereunder, elects to make any offers in
response to any Request for B Borrowing, the Agent shall make its
offers in accordance with this paragraph except that the Agent
shall deliver its Offer of B Advances directly to the Borrower
before 8:30 A.M. (Chicago time) on the applicable date. Each
offer to make a B Advance must be in a minimum Dollar Equivalent
principal amount of $2,000,000, be made in 1,000,000 unit
multiples of the Applicable Currency, and otherwise conform to
the requirements specified in Exhibit B-3. Any Offer of B
Advances that does not substantially conform to the form of
Exhibit B-3 and contain the information required therein may be
rejected by the Agent by delivering prompt notice of the
rejection to the Bank which has submitted the rejected Offer of B
Advances. The Agent shall promptly notify the Borrower of all
Offers of B Advances. Any Bank which has not responded to the
Agent prior to the time specified above shall be deemed to have
elected to decline to make such an offer. Any Offer of B Advances
submitted pursuant to this paragraph shall be irrevocable.
(iii) The Borrower shall, in turn, before 10:00 A.M. (Chicago
time) at least three Business Days prior to the date of the
proposed B Borrowing, with respect to B Borrowings to be
comprised of Alternate Currency B Advances or B Advances with
interest rates to be determined based upon the LIBOR, and on the
Business Day of the proposed B Borrowing, with respect to B
Borrowings to be comprised of Dollar B Advances with interest
rates to be based upon an absolute rate, either (A) cancel such B
Borrowing by giving the Agent notice to that effect, or (B)
accept one or more of the offers made by any Bank or Banks by
giving the Agent an Acceptance of B Advances stating the amount
of B Advances offered by the Banks which the Borrower has
accepted and of the rejection of the remaining offers made by the
Banks. If the Borrower does not timely respond, the Borrower
shall be deemed to have rejected all of the offers. If the
Borrower elects to accept any offers, the resulting B Borrowing
Document #0021220 13
must be in an aggregate Dollar Equivalent principal amount of not
less than $2,000,000, be made in 1,000,000 unit multiples of the
Applicable Currency, and cannot exceed the principal amount
specified in the relevant Request for B Borrowing. The Borrower
must accept offers made by the Banks on the basis of the lowest
interest rate offers first. Subject to the provisions of the next
sentence, all offers of individual B Advances must be accepted in
at least the minimum amount specified in the applicable Offer of
B Advances or rejected in whole. If multiple offers are made at
the same interest rate, all offers accepted by the Borrower at
such interest rate must be allocated by the Borrower among the
Banks having made offers at such interest rate ratably based upon
the maximum amounts of such offers made by the Banks, provided
that if the effect of the ratable allocation would cause the
amount allocated to any Bank to be less than a Dollar Equivalent
principal amount of $500,000, then the Borrower shall reject the
smallest offers made at such interest rate first such that the
ratable allocation to the remaining offers at such interest rate
results in all remaining offers which are accepted having minimum
Dollar Equivalent principal amounts greater than $500,000, but in
the event that offers at the same interest rate are in equal
principal amounts, the Borrower may in its discretion select
which such equal principal offers to reject first to ensure that
all remaining offers which are accepted have minimum Dollar
Equivalent principal amounts greater than $500,000.
Notwithstanding the foregoing, the Borrower may in its discretion
adjust the ratable allocation to any Bank by an amount up to
50,000 units of the Applicable Currency. Any Acceptance of B
Advances that does not substantially conform to the form of
Exhibit B-4 and otherwise contain the information required
therein may be rejected by the Agent by delivering prompt notice
of the rejection to the Borrower. Each Acceptance of B Advances
shall be irrevocable and binding on the Borrower, and the
Borrower shall indemnify the Banks in accordance with Section 2.8
for any failure to borrow any accepted B Advances, including
failures caused by the Borrower's failure to fulfill the
applicable conditions precedent.
(iv) The Agent shall in turn promptly notify the Banks of the
cancellation of the B Borrowing or of the date and aggregate
amount of such B Borrowing, including the ranges of bids
submitted and the highest and lowest bids accepted for each
Interest Period. The Agent shall promptly notify each Bank that
is to make a B Advance as part of such B Borrowing of the amount
of each B Advance to be made by such Bank as part of such B
Borrowing and, if the interest rate basis for such B Borrowing is
an absolute rate, the applicable interest rate for each such B
Advance. If the interest rate basis for the B Borrowing is the
LIBOR plus a margin, the Agent shall provide each Bank that is to
make a B Advance as part of such B Borrowing with the appropriate
LIBOR and the applicable interest rate for each such B Advance
promptly after determining the same. Each Bank that is to make a
B Advance as part of such B Borrowing shall, before 11:00 A.M.
(local time at the applicable Payment Office) on the date of such
B Borrowing specified in the notice received from the Agent, make
available to the Agent at the Agent's Payment Office such Bank's
portion of such B Borrowing, in immediately available funds. Upon
fulfillment of the applicable conditions set forth herein and,
Document #0021220 14
except as specified in paragraph (v) below, after receipt by the
Agent of such funds, the Agent shall make such funds available to
the Borrower at the Agent's applicable Payment Office.
(v) Unless the Agent shall have received notice from a Bank prior
to the date of any B Borrowing that such Bank shall not make
available to the Agent such Bank's portion of such B Borrowing,
the Agent may assume that such Bank has made such portion
available to the Agent on the date of such B Borrowing in
accordance with paragraph (a) of this Section 2.2 and the Agent
may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the
Document #0021220 15
extent that such Bank shall not have so made such ratable portion
available to the Agent, such Bank and the Borrower severally
agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower
until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, the interest rate applicable at the time to
the B Advances comprising such B Borrowing computed on the same
basis and (ii) in the case of such Bank, the Federal Funds Rate
computed on the basis of a year of 360 days for the actual number
of days elapsed, with respect to an B Advance to be made in
Dollars, or the Agent's cost of funds for the Applicable Currency
computed on the same basis as regular interest on loans made
hereunder in such Applicable Currency, with respect to an B
Advance to be made in an Alternate Currency, provided that if
such amount is not repaid by such Bank by the end of the second
day after the date of the Agent's demand, the interest rates
specified under (ii) above shall be increased by an additional 2%
per annum on the third day after the date of the Agent's demand
and shall remain at such increased rate thereafter. If such Bank
shall repay to the Agent such corresponding amount, such amount
so repaid shall constitute such Bank's B Advance as part of such
B Borrowing for purposes of this Agreement. The failure of any
Bank to make the B Advance to be made by it as part of any B
Borrowing shall not relieve any other Bank of its obligation, if
any, hereunder to make its B Advance on the date of such B
Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the B Advance to be made by such other
Bank on the date of any B Borrowing.
(c) Prepayment. The Borrower may prepay any B Borrowing by giving the
Agent three Business Days' notice stating the proposed Business Day
and aggregate principal amount of the prepayment. If such notice is
given the Borrower shall prepay the outstanding principal amounts of
the B Advances comprising part of such B Borrowing in whole or ratably
in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid and amounts, if any, required to be
paid pursuant to Section 2.8 as a result of such prepayment. Each
partial prepayment pursuant to this Section 2.2(c) with respect to any
B Borrowing shall be made in 1,000,000 unit multiples of the
Applicable Currency and in an aggregate principal amount such that
after giving effect thereto such B Borrowing shall have a Dollar
Equivalent principal amount outstanding of at least $2,000,000.
(d) Repayment. The Borrower shall repay to the Agent for the account
of each Bank which has made a B Advance to the Borrower on the
maturity date of each B Advance (such maturity date being that
specified by the Borrower for repayment of such B Advance in the
related Acceptance of B Advances delivered pursuant to paragraph
(b)(iii) above) the then unpaid principal amount of such B Advance.
Section 2.3 Fees.
(a) Facility Fee. The Borrower agrees to pay each Bank the Applicable
Facility Fee on such Bank's Commitment from time to time from the date
hereof until the Termination Date at a rate per annum equal to the
Applicable Facility Fee in effect from time to time, payable in
arrears on the last day of each calendar quarter during the term of
Document #0021220 16
such Bank's Commitment, and on the Termination Date. All computations
of the fees shall be made by the Agent on the basis of a 365/366-day
year for the actual number of days elapsed.
(b) Agent's Fee. The Borrower agrees to pay to the Agent, for its sole
account, the fees set forth in the Agent's Fee Letter. The Borrower's
obligations under the Agent's Fee Letter are independent of the
satisfaction of the conditions to effectiveness set forth in Section
3.1 of this Agreement.
Section 2.4 Interest.
(a) A Advances. The Borrower shall pay each Bank interest on the
unpaid principal amount of each A Advance made by such Bank from the
date of such A Advance until such principal amount shall be paid in
full, at the following rates per annum:
(i) Base Rate Advances. If such A Advance is a Base Rate Advance,
at a rate per annum equal at all times to the Base Rate in effect
from time to time for such A Advance, payable on the last day of
each calendar quarter while such A Advance is outstanding and on
the Termination Date. All computations of interest on Base Rate
Advances shall be made by the Agent on the basis of a 365/366-day
year for the actual number of days elapsed; and
(ii) LIBOR Rate Advances. If such A Advance is a LIBOR Rate
Advance, at a rate per annum equal at all times during the
Interest Period for such A Advance to the sum of the LIBOR for
such Interest Period plus the Applicable Interest Margin in
effect from time to time for such A Advance , payable on the last
day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day which occurs
during such Interest Period every three months from the first day
of such Interest Period. All computations of interest on LIBOR
Rate Advances shall be made by the Agent on the basis of a
360-day year or, in the case of an Alternate Currency Advance, on
the basis which is customary for the computation of interest in
the Applicable Currency in the London interbank market, in each
case for the actual number of days elapsed.
(b) Additional Interest on LIBOR Rate Advances. The Borrower shall pay
to each Bank, so long as such Bank shall be required under regulations
of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each LIBOR Rate Advance of such Bank, from the
date of such Advance until such principal amount is paid in full, at
an interest rate per annum equal at all times to the difference
obtained by subtracting (i) the LIBOR for the Interest Period for such
Advance from (ii) the rate obtained by dividing such LIBOR by a
percentage equal to lOO% minus the LIBOR Reserve Percentage of such
Bank for such Interest Period, payable on each date on which interest
is payable on such Advance. Such additional interest shall be
determined by such Bank and notified to the Borrower through the
Agent. A certificate in reasonable detail as to the amount of such
additional interest submitted to the Borrower and the Agent by such
Bank shall be conclusive evidence thereof, absent manifest error.
Document #0021220 17
(c) B Advances. The Borrower shall pay interest on the unpaid
principal amount of each B Advance from the date of such B Advance to
the date the principal amount of such B Advance shall be paid in full,
at the rate of interest for such B Advance specified by the Bank
making such B Advance in its Offer of B Advances with respect thereto
delivered pursuant to Section 2.2(b)(ii) above, payable on the
interest payment date or dates specified by the Borrower for such B
Advance in the related Acceptance of B Advances delivered pursuant to
Section 2.2(b)(iii) above. All computations of interest on B Advances
shall be made by the Agent on the basis specified in the relevant
Acceptance of B Advances delivered pursuant to Section 2.2(b)(iii)
above, or in the absence of such specification on the basis of a
360-day year or, in the case of an Alternate Currency Advance, on the
basis which is customary for the computation of interest in the
Applicable Currency in the London interbank market, but in any case
for the actual number of days elapsed.
Section 2.5 Payments, Etc.
(a) The Borrower shall make each payment under the Credit Documents to
be made by it not later than 12:00 P.M. (local time at the place of
payment) on the day when due in the Applicable Currency to the Agent
at the Agent's applicable Payment Office in immediately available
funds. The Applicable Currency for principal and interest payments
shall be the currency in which the related Advance was made. The
Applicable Currency for all other payments hereunder shall be Dollars.
The Agent shall promptly thereafter cause to be distributed like funds
relating to the payment of principal, interest or fees ratably (other
than amounts payable pursuant to Section 2.2, 2.4(b), 2.8, 2.9, 2.10,
2.11, or 2.14(b)) to the Banks for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Bank to such Bank for the account of
its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. In no event shall any
Bank be entitled to share any fees paid to the Agent pursuant to
Section 2.3(b) or any other fee paid to the Agent, as such.
(b) Whenever any payment under the Credit Documents shall be stated to
be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall
in such case be included in the computation of payment of interest or
fee, as the case may be.
(c) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due by the Borrower to any
Bank hereunder that the Borrower shall not make such payment in full,
the Agent may assume that the Borrower has made such payment in full
to the Agent on such date and the Agent may, in reliance upon such
assumption, cause to be distributed to each Bank on such due date an
amount equal to the amount then due such Bank. If and to the extent
the Borrower shall not have so made such payment in full to the Agent,
each Bank shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day
from the date such amount is distributed to such Bank until the date
such Bank repays such amount to the Agent, at the Federal Funds Rate
computed on the basis of a year of 360 days for the actual number of
days elapsed, with respect to an amount due in Dollars, or the Agent's
cost of funds computed on the same basis as regular interest on loans
Document #0021220 18
made hereunder in such Applicable Currency, with respect to an amount
due in an Alternate Currency, and if such amount is not repaid by the
end of the second day after the date of the Agent's demand, the
interest rates specified shall be increased by an additional 2% per
annum on the third day after the date of the Agent's demand and shall
remain at such increased rate thereafter.
(d) Whenever any reference is made to any Bank's "ratable share" or
"ratable portion" (or any similar reference) of any amount hereunder,
such share or portion shall be calculated to at least eight decimal
places, rounding up or down, as appropriate.
(e) Except as provided in Sections 2.1(b)(iv), 2.2(b)(v), and 2.5(c),
any amount payable under the Credit Documents (including principal,
interest, fees, and other amounts) which is not paid when due (whether
at stated maturity, by acceleration, or otherwise) shall bear
interest, to the extent permitted by law, from the date on which such
amount became due until such amount is paid in full, payable on
demand, at a rate per annum equal at all times to the greater of (i)
the sum of the Base Rate in effect from time to time plus 2% per annum
computed on the basis of a year of 365/366 days for the actual number
of days elapsed, with respect to amounts due in Dollars, or (ii) the
applicable Bank's cost of funds for the Applicable Currency plus 2%
per annum computed on the same basis as regular interest on loans made
hereunder in such Applicable Currency, with respect to principal and
interest due on B Advances due in an Alternate Currency, and the
Agent's cost of funds for the Applicable Currency plus 2% per annum
computed on the same basis as regular interest on loans made hereunder
in such Applicable Currency, with respect to all other amounts due in
an Alternate Currency .
(f) If any sum due from the Borrower under this Agreement or any order
or judgment given in relation hereto has to be converted from the
currency (the "first currency") in which the same is payable hereunder
or under such order or judgment into another currency (the "second
currency") for the purpose of (i) making or filing a claim or proof
against the Borrower with any governmental authority or in any court
or tribunal or (ii) enforcing any order or judgment given in relation
hereto, the Borrower shall indemnify each of the Persons to whom such
sum is due against any loss actually suffered as a result of any
discrepancy between (a) the rate of exchange used when restating the
amount in question from the first currency into the second currency
and (b) the rate or rates of exchange at which such Person, acting in
good faith in a commercially reasonable manner, purchased the first
currency with the second currency after receipt of a sum paid to it in
the second currency in satisfaction, in whole or in part, of any such
order, judgment, claim, or proof. The foregoing indemnity shall
constitute a separate obligation of the Borrower distinct from its
other obligations hereunder and shall survive the giving or making of
any judgment or order in relation to all or any of such other
obligations.
Section 2.6 Payments Pro Rata. Except as provided in Sections 2.2, 2.4(b),
2.8, 2.9, 2.10, 2.11, and 2.14(b), each of the Banks agrees that if it
should receive any payment (whether by voluntary payment, by realization
upon security (if any), by the exercise of the right of setoff or banker's
lien, by counterclaim or cross action, by the enforcement of any right
under the Credit Documents, or otherwise) in respect of any obligation
Document #0021220 19
ofthe Borrower to pay principal, interest, fees, or any other obligation
incurred under the Credit Documents in a proportion greater than the total
amount of principal, interest, fees, or any other obligation incurred, as
the case may be, then owed and due to such Bank bears to the total amount
of principal, interest, fees, or any such other obligation then owed and
due to all of the Banks immediately prior to such receipt, then such Bank
receiving such excess payment shall purchase for cash without recourse from
the other Banks an interest in the obligations of the Borrower to such
Banks in such amount as shall result in a proportional participation by all
of the Banks in the aggregate unpaid amount of principal, interest, fees,
or any such other obligation, as the case may be, owed to all of the Banks;
provided that if all or any portion of such excess payment is thereafter
recovered from such Bank, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
Section 2.7 Taxes. If any taxes, other than (i) taxes imposed on the
overall net income of any Bank or the Agent or of the Applicable Lending
Office of any Bank or the Agent (the "Net Income Taxes"), or (ii) taxes
which are Increased Costs (which are covered by Section 2.9), are at any
time imposed on any payments required by the Borrower under or in respect
of this Agreement or any related instrument or agreement, the Borrower
shall pay all such taxes. It is agreed that if the Borrower shall be
required by law to deduct any such taxes from or in respect of any sum
payable by it hereunder to any Bank or the Agent, (x) the sum payable shall
be increased as may be necessary so that, after making all required
deductions, such Bank or the Agent receives an amount equal to the sum it
would have received had no such deductions been made, (y) the Borrower
shall make such deductions, and (z) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
Section 2.8 Breakage Costs. The Borrower shall pay to any Bank, upon the
request of such Bank, such amount or amounts as shall be sufficient to
compensate such Bank for any loss, cost, or expense incurred by such Bank
as a result of (a) any payment or prepayment of a Fixed Rate Advance on a
date other than the scheduled payment date for such Fixed Rate Advance; or
(b) any failure by the Borrower to borrow any Fixed Rate Advance on the
date for such borrowing specified in the relevant Request for Borrowing
hereunder, including failures caused by the Borrower's failure to fulfill
the applicable conditions precedent for such borrowing; such compensation
to include an amount equal to the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount so paid, prepaid,
or not borrowed for the period from the date of such payment, prepayment,
or failure to borrow to the scheduled payment date for such Fixed Rate
Advance (the "Calculated Accrued Interest") at the applicable rate of
interest for such Fixed Rate Advance provided for herein over (ii) the
Calculated Accrued Interest at the LIBOR as of the date of such payment,
prepayment, or failure to borrow for deposits of comparable amounts,
maturities, and Applicable Currencies. Any Bank claiming amounts under this
Section 2.8 shall submit calculations of the amounts due to the Borrower
and the Agent in certificates in reasonable detail, and such calculations
if reasonable and made in good faith shall be conclusive evidence thereof,
absent manifest error.
Section 2.9 Increased Costs.
(a) The Borrower shall pay any Bank from time to time such amounts as
such Bank determines to be necessary to compensate such Bank for any
Document #0021220 20
increases in costs incurred by such Bank attributable to such Bank
making or maintaining of any Fixed Rate Advances, or any reduction in
any amount receivable by such Bank under this Agreement in respect of
any of such Fixed Rate Advances (such increases in costs and
reductions in amounts receivable being herein called "Additional
Costs") resulting from any Regulatory Change which: (i) changes the
basis of taxation of, or imposes any new taxes or withholdings on, any
amounts payable to such Bank under this Agreement in respect of any of
such Fixed Rate Advances (other than Net Income Taxes); or (ii)
imposes or modifies any reserve, special deposit, deposit insurance
assessment, or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other liabilities
of, such Bank (including any such Fixed Rate Advances or any deposits
referred to in the definition of "LIBOR," but excluding any amounts
covered by Section 2.4(b)); or (iii) imposes any other condition
affecting this Agreement or any such extensions of credit or
liabilities. With respect to taxes and withholdings covered in (i)
above, it is agreed that if the Borrower shall be required by law to
deduct any such taxes from or in respect of any sum payable by it
hereunder to any Bank or the Agent, (x) the sum payable shall be
increased as may be necessary so that, after making all required
deductions, such Bank or the Agent receives an amount equal to the sum
it would have received had no such deductions been made, (y) the
Borrower shall make such deductions, and (z) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law. Any Bank claiming amounts
under this Section 2.9(a) shall submit calculations of the amounts due
to the Borrower and the Agent in certificates in reasonable detail,
and such calculations, if reasonable and made in good faith, shall be
conclusive evidence thereof, absent manifest error. Such Bank may not
claim compensation under this Section 2.9(a) for any period of time
before 90 days prior to the delivery of any such certificate.
(b) Without limiting the effect of Section 2.9(a) hereof, in the event
that, by reason of any Regulatory Change, any Bank either (i) incurs
Additional Costs based on or measured by the excess above a specified
level of the amount of a category of deposits or other liabilities of
such Bank which includes deposits by reference to which the interest
rate on any LIBOR Rate Advances is determined as provided in this
Agreement or a category of extensions of credit or other assets of
such Bank which includes any LIBOR Rate Advances or (ii) becomes
subject to restrictions on the amount of such a category of
liabilities or assets which it may hold, then, if such Bank so elects
by notice to the Borrower, the obligation of such Bank to make LIBOR
Rate Advances hereunder shall be suspended until the date such
Regulatory Change ceases to be in effect, and all A Advances required
to be made by such Bank hereunder shall be made as Base Rate Advances.
Section 2.10 Capital Adequacy. If any Bank determines that the effect of
the imposition of or modification in any capital adequacy or similar
requirement (including a requirement which affects the Bank's allocation of
capital resources to its obligations) is to (a) directly or indirectly to
increase the cost to such Bank of making or maintaining amounts available
under this Agreement, (b) reduce the amount of any payment of principal or
interest receivable by such Bank, under this Agreement, or (c) reduce the
Bank's return under this Agreement or on all or any of its capital, and
such effect is due solely to its obligations hereunder and/or their
performance or such Bank is, in its sole opinion, unable to obtain the
Document #0021220 21
rateof return on all or any of its capital that it would have been able to
achieve but for its obligations hereunder and/or their performance, then
the Borrower shall pay to such Bank such additional amounts as such Bank
may determine to be required to compensate such Bank on an after-tax basis
for such additional cost or reduction of amounts receivable. Any Bank
claiming amounts under Section 2.10 shall submit calculations of the
amounts due to the Borrower and the Agent in certificates in reasonable
detail, and such calculations, if reasonable and made in good faith, shall
be conclusive evidence thereof, absent manifest error. Such Bank may not
claim compensation under this Section 2.10 for any period of time before 90
days prior to the delivery of any such certificate.
Section 2.11 Certain Tax Regulations. Each Bank that is not incorporated
under the laws of the United States of America or a state thereof agrees
that it shall deliver to the Borrower and the Agent on the date of this
Agreement or upon the effectiveness of any Assignment under Section 8.6(e)
(a) two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224 or successor applicable form, as the case may be,
certifying in each case that such Bank is entitled to receive payments
under the Credit Documents payable to it, without deduction or withholding
of any United States federal income taxes; (b) if applicable, an Internal
Revenue Service Form W-8 or W-9 or successor applicable form, as the case
may be, to establish an exemption from United State backup withholding tax;
and (c) any other governmental forms or other documents which are necessary
or required under an applicable tax treaty or otherwise by law to reduce or
eliminate any withholding tax, which have been reasonably requested by the
Borrower. Each Bank which delivers to the Borrower and the Agent a Form
1001 or 4224 and Form W-8 or W-9 pursuant to the next preceding sentence
further undertakes to deliver to the Borrower and the Agent two further
copies of the said Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms, or other manner of certification, as the case may be, on
or before the date that any such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower and the Agent, and such
extensions or renewals thereof as may reasonably be requested by the
Borrower and the Agent certifying, in the case of a Form 1001 or 4224, that
such Bank is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes unless
an event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which
would prevent such Bank from duly completing and delivering any such form
with respect to it and such Bank advises the Borrower and the Agent that it
is not capable of receiving payments without any deduction or withholding
of United States federal income tax. The Borrower shall withhold tax at the
rate and in the manner required by the laws of the United States with
respect to payment made to a Bank failing to timely provide the requisite
Internal Revenue Service forms, with no penalty for increased costs to
Borrower.
Section 2.12 Illegality. Notwithstanding any other provision in this
Agreement, in the event that it becomes unlawful for any Bank or its
Applicable Lending Office to honor its obligation to make or maintain LIBOR
Rate Advances hereunder, such Bank's obligation to make LIBOR Rate Advances
shall be suspended until such time as such Bank may again make and maintain
LIBOR Rate Advances and the Borrower shall, upon the request of such Bank,
prepay any such LIBOR Rate Advances then outstanding hereunder together
with accrued interest thereon. So long as such condition remains in
Document #0021220 22
effect, such Bank shall be under no obligation to make LIBOR Rate Advances
hereunder, and all A Advances required to be made by such Bank hereunder
shall be made as Base Rate Advances.
Section 2.13 Market Failure. Anything herein to the contrary
notwithstanding, if the Agent determines that: (a) quotations of interest
rates for the relevant deposits referred to in the definition of "LIBOR"
are not being provided in the relevant currencies, amounts, or maturities
for purposes of determining the rate of interest referred to in the
definition of "LIBOR" or (b) the relevant rates of interest referred to in
the definition of "LIBOR" which are used as the basis to determine the rate
of interest for LIBOR Rate Advances are not likely to adequately cover the
cost to the Banks of making or maintaining such LIBOR Rate Advances; then
the Agent shall give the Borrower prompt notice thereof and, so long as
such condition remains in effect, the Banks shall be under no obligation to
make LIBOR Rate Advances, and all A Advances required to be made by any
Bank hereunder shall be made as Base Rate Advances.
Section 2.14 Removal of Certain Banks. In the event that any Bank makes a
demand for payment under Section 2.4(b), 2.8, 2.9(a), or 2.10 or any Bank
has suspended its funding of LIBOR Rate Advances pursuant to Section
2.9(b), then with respect to such Bank, the Borrower may within 90 days of
such demand or the beginning of such suspension, if no Default then exists,
either:
(a) replace such Bank with another commercial bank selected by the
Borrower and approved by the Agent, which approval may not be
unreasonably withheld, and such Bank being replaced agrees to execute
an appropriate Assignment specifying the full transfer of all of such
Bank's rights and obligations hereunder, return all of its Notes, and
otherwise take such actions as necessary to comply with the provisions
of 8.6(d) such that the effect of the transfer under Section 8.6(e) is
to make the replacement bank a Bank hereunder with the same rights and
obligations as the Bank being replaced, provided that in connection
with such transfer all obligations of the Bank being replaced to lend
hereunder shall be terminated and the obligations of the Borrower to
pay principal, interest, and all other obligations owed to such Bank
hereunder shall be purchased by the replacement bank in full without
recourse at par and the Borrower will pay the Bank being replaced any
breakage costs pursuant to Section 2.8 as if such purchase were a
prepayment; or
(b) terminate such Bank as a Bank hereunder provided that (i) all
obligations of such Bank to lend hereunder shall be terminated and the
obligations of the Borrower to pay principal, interest, and all other
obligations owed to such Bank hereunder shall be paid in full and (ii)
such other actions shall be taken by the Borrower and such Bank as may
be appropriate to effect the termination of such Bank as a Bank
hereunder.
ARTICLE 3.
CONDITIONS
Section 3.1 Conditions to First Advances.
(a) The obligations of the Banks to make the first Advances under this
Agreement are subject to the condition precedent that the Agent shall
Document #0021220 23
have received on or before the date hereof, in form and substance
satisfactory to the Agent and (except for the Notes and the Agent's
Fee Letter) in sufficient copies for each Bank:
(i) This Agreement, the Agent's Fee Letter, the A Notes and B
Notes , and the Guaranty made by Belden in favor of the Agent;
(ii) A favorable opinion of ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, General Counsel
for the Borrower;
(iii) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the existence of the Borrower, a
certificate of good standing for the Borrower, the certificate of
incorporation of the Borrower, the bylaws of the Borrower, the
resolutions of the Board of Directors of the Borrower authorizing
this Agreement and related transactions, and the incumbency and
signatures of the officers of the Borrower authorized to execute
this Agreement and related documents;
(iv) A certificate of the Secretary or an Assistant Secretary of
Belden certifying the existence of Belden, a certificate of good
standing for Belden, the certificate of incorporation of Belden,
the bylaws of Belden, the resolutions of the Board of Directors
of Belden authorizing the Guaranty of Belden and related
transactions, and the incumbency and signatures of the officers
of Belden authorized to execute the Guaranty of Belden and
related documents; and
(v) Such other approvals, opinions, or documents which any Bank
through the Agent may reasonably request.
(b) The obligations of the Banks to make the first Advances under this
Agreement are subject to the further condition precedent that the
following shall be true on the date of such first Advances:
(i) There shall have been no material adverse change in the
financial condition or operations of the Borrower since December
31, 1995; and
(ii) The Borrower shall have made arrangements satisfactory to
the Agent that on or before November 18, 1996, in connection with
the making of the first Advances hereunder, the Borrower shall
repay any outstanding indebtedness under the Credit Agreement
dated as of August 5, 1994, with certain financial institutions
and in connection with such repayment shall terminate its credit
facilities under such Credit Agreement.
Section 3.2 A Borrowings. The obligation of each Bank to make an A Advance
on the occasion of any A Borrowing (including the initial A Borrowing)
shall be subject to the further conditions precedent that on the date of
such A Borrowing the following statements shall be true (and each of the
giving of the applicable Request for A Borrowing and the acceptance by the
Borrower of the proceeds of such A Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such A
Borrowing such statements are true):
(a) the representations and warranties contained in Article 4 are
correct on and as of the date of such A Borrowing, before and after
Document #0021220 24
giving effect to such A Borrowing, and to the application of the
proceeds therefrom, as though made on and as of such date,
(b) no event has occurred and is continuing, or would result from such
A Borrowing or from the application of the proceeds therefrom, which
constitutes a Default or an Event of Default, and
(c) following the making of such A Borrowing and all other Borrowings
to be made on the same day to the Borrower under this Agreement, the
aggregate outstanding Dollar Equivalent principal amount of Advances
shall not exceed the aggregate amount of the Commitments.
Section 3.3 B Borrowings. The obligation of each Bank to make any B Advance
as part of any B Borrowing is subject to the further conditions precedent
that (a) at or before the time required by paragraph (iii) of Section
2.2(b), the Agent shall have received the written confirmatory notice of
such B Borrowing contemplated by such paragraph; and (b) on the date of
such B Borrowing the following statements shall be true (and each of the
giving of the applicable Request for B Borrowing and the acceptance by the
Borrower of the proceeds of such B Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such B
Borrowing such statements are true):
(i) the representations and warranties contained in Article 4 are
correct on and as of the date of such B Borrowing, before and
after giving effect to such B Borrowing, and to the application
of the proceeds therefrom, as though made on and as of such date,
(ii) no event has occurred and is continuing, or would result
from such B Borrowing or from the application of the proceeds
therefrom, which constitutes a Default or an Event of Default,
and
(iii) following the making of such B Borrowing and all other
Borrowings to be made on the same day to the Borrower under this
Agreement, the aggregate outstanding Dollar Equivalent principal
amount of Advances shall not exceed the aggregate amount of the
Commitments.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as follows:
Section 4.1 Corporate Existence and Power. The Borrower is a corporation
duly incorporated and validly existing under the laws of the State of
Delaware, is in good standing therein, is duly qualified to transact
business in all places where, in the opinion of the Borrower, such
qualification is necessary and material, and has corporate power to make
this Agreement and to borrow and perform its obligations hereunder. Each
Significant Subsidiary is in good standing in its respective jurisdiction
of incorporation and is duly qualified to transact business in all places
where, in the opinion of the Borrower, such qualification is necessary and
material.
Section 4.2 Corporate Authority. The making and performance by the Borrower
of this Agreement (a) have been duly authorized by all necessary corporate
Document #0021220 25
action; (b) shall not violate any provision of law or of its Certificate of
Incorporation or its bylaws; and (c) as of the date of this Agreement, do
not result in the breach of, or constitute a default under, or require any
consent under, any agreement presently in effect providing for or relating
to extensions of credit (including credit agreements, indentures,
guaranties, and other instruments), other than for goods and services
purchased in the ordinary course of business (which are not material in
amount), to which the Borrower or any of its Significant Subsidiaries or
any of their property may be bound or affected, except as previously
disclosed to the Agent and the Banks in writing
Section 4.3 Financial Condition. The financial statements of ▇▇▇▇▇▇ Inc., a
Delaware corporation, with the opinion thereon of Ernst & Young, dated as
of December 31, 1995, heretofore furnished to the Agent and the Banks,
present fairly, in all material respects, the consolidated financial
condition of ▇▇▇▇▇▇ Inc. as of the date of such financial statements, and
the consolidated results of operations and cash flows for fiscal year 1995,
in conformity with generally accepted accounting principles. The financial
statements of ▇▇▇▇▇▇ Inc. dated as of June 30, 1996, heretofore furnished
to the Agent and the Banks, present fairly, in all material respects, the
consolidated financial condition of ▇▇▇▇▇▇ Inc. as of the date of such
financial statements, and the consolidated results of operations and cash
flows for the first fiscal half of 1996, and include all adjustments,
consisting only of normal recurring adjustments, necessary for a fair
presentation of the financial information for the periods indicated. To the
best of the Borrower's knowledge and belief, neither the Borrower nor any
of its Subsidiaries had on December 31, 1995, any contingent liabilities,
liabilities for taxes, or unusual forward or long-term commitments which
are substantial in amount in relation to the consolidated financial
condition of the Borrower, except as referred to or reflected or provided
for in said consolidated financial statements as at that date.
Section 4.4 Litigation. There are no suits or proceedings pending, or to
the knowledge of the Borrower threatened, against or affecting the Borrower
or any of its Significant Subsidiaries which would, in the opinion of the
Borrower, if determined adversely to the Borrower or such Significant
Subsidiary, result in the occurrence of an Event of Default.
Section 4.5 Liens. The properties and assets of the Borrower and its
Significant Subsidiaries are not subject to any lien or encumbrance, other
than those permitted by Section 5.3.
Section 4.6 Use of Advances. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U or X of the Board
of Governors of the Federal Reserve System) and no part of the proceeds of
any Advance hereunder shall be used to purchase or carry any margin stock.
Section 4.7 Taxes. The Borrower and each of its Significant Subsidiaries
have filed all tax returns which were required to be filed and paid all
taxes shown thereon to be due, including interest and penalties, or
provided adequate reserves for payment thereof.
Section 4.8 Subsidiaries. Schedule II contains a complete and correct list,
as of the date of this Agreement, of all Subsidiaries of the Borrower.
Except as disclosed in Schedule II, as of the date of this Agreement, the
Borrower and its Subsidiaries own, free and clear of all liens, charges,
Document #0021220 26
encumbrances, and rights of others whatsoever, all the shares of the
Subsidiaries indicated in Schedule II as owned by the Borrower or such
Subsidiary, as the case may be, and all such shares are validly issued and
fully paid.
Section 4.9 Credit Agreement. Schedule III contains a complete and correct
list of all material credit agreements, indentures, purchase agreements,
guaranties, and other instruments in effect as of the date of this
Agreement providing for or relating to extensions of credit for a term of
more than one year in respect of which the Borrower or any of its
Subsidiaries is or may become directly or contingently obligated, and the
maximum principal or face amounts of the indebtedness in question,
outstanding or to be outstanding, are correctly stated in Schedule III.
Section 4.10 Titles, Etc. The Borrower and each of its Significant
Subsidiaries have good title to their respective properties and assets,
free and clear of all mortgages, liens, and encumbrances, except such as
are permitted by Section 5.3 and except covenants, restrictions, rights,
easements, and minor irregularities in title which do not interfere with
the occupation, use, and enjoyment by the Borrower or such Significant
Subsidiaries of such properties and assets in the normal course of business
as presently conducted or materially impair the value thereof for such
business.
Section 4.11 ERISA. The Borrower and each Significant Subsidiary have met
their minimum funding requirements under ERISA with respect to all of their
respective Plans and have not incurred any material liabilities to PBGC
under ERISA in connection with any such Plan.
Section 4.12 Validity, Etc. All acts necessary to make the Advances, when
made hereunder, the valid and binding obligations of the Borrower, and to
constitute this Agreement the valid and binding agreement of the Borrower
in accordance with its terms, have been done; this Agreement is a valid and
binding agreement of the Borrower enforceable in accordance with its terms;
and the Advances, when made hereunder, shall constitute valid and binding
obligations of the Borrower, enforceable in accordance with their terms.
Section 4.13 Environmental Matters. In the ordinary course of its business,
the Borrower conducts an ongoing review of the effect of Environmental Laws
on the business, operations, and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including any capital or operating expenditures
required for clean-up or closure of properties presently or previously
owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law
or as a condition of any license, permit, or contract, any related
constraints on operating activities, including any periodic or permanent
shutdown of any facility or reduction in the level of or change in the
nature of operations conducted thereat, and any actual or potential
liabilities to third parties, including employees, and any related costs
and expenses). On the basis of this review, the Borrower has reasonably
concluded that the effect of Environmental Laws is unlikely to result in
the occurrence of an Event of Default.
Document #0021220 27
ARTICLE 5.
COVENANTS
So long as any amount of principal, interest, or fees under the Credit
Documents shall remain unpaid or any Bank shall have any Commitment
hereunder, unless the Majority Banks shall otherwise consent in writing:
Section 5.1 Financial Statements. The Borrower shall deliver to the Bank:
(a) As soon as available and in any event within 60 days after the end
of each of the first three fiscal quarters in each fiscal year,
consolidated statements of results of operations of Belden for the
period from the beginning of such fiscal year to the end of such
fiscal quarter, the related consolidated balance sheet of Belden as at
the end of such fiscal quarter, and the related consolidated
statements of cash flows, setting forth in comparative form the
corresponding figures for the corresponding period of the preceding
fiscal year, all in reasonable detail and accompanied by (i) a
certificate signed by an authorized financial officer of the Borrower
stating that said financial statements include all adjustments,
consisting only of normal recurring adjustments, necessary for a fair
presentation of the financial information for the periods indicated,
which certificate shall include a statement that such officer has no
knowledge, except as specifically stated, of any Default by the
Borrower in the observance of any of the provisions in this Agreement;
and (ii) a certificate signed by an authorized financial officer of
the Borrower in form and substance satisfactory to the Agent,
demonstrating compliance with the covenants contained below in this
Section 5.
(b) As soon as available and in any event within 120 days after the
end of each fiscal year, consolidated statements of results of
operations and reconciliation of capital accounts of Belden for such
year, and the related consolidated balance sheets of Belden and
consolidated statements of cash flows, setting forth in each case in
comparative form the corresponding figures for the preceding fiscal
year, all in reasonable detail and accompanied by (i) an unqualified
opinion of independent public accountants of recognized standing and
acceptable to the Agent together with a written statement of such
accountants to the effect that in making the audit necessary to such
opinion they have obtained no knowledge of any Default by the Borrower
in the fulfillment of any of the covenants contained in this Agreement
or if, in the opinion of such accountants any such Default exists,
specifying such Default and the nature thereof; (ii) a certificate
signed by an authorized financial officer of the Borrower stating that
said financial statements fairly present in accordance with generally
accepted accounting principles the financial condition and the results
of operation of Belden and its Subsidiaries at the end of such year
and for the year involved and that such officer has no knowledge,
except as specifically stated, of any Default by the Borrower in the
observance of any of the provisions in this Agreement; and (iii) a
certificate signed by an authorized financial officer of the Borrower,
in form and substance satisfactory to the Agent, demonstrating
compliance with the covenants contained below in this Section 5.
(c) Promptly upon a responsible financial officer of the Borrower
becoming aware of the existence of a condition, event, or act which
Document #0021220 28
constitutes a Default or Event of Default, a written notice specifying
the nature and period of existence thereof and what action the
Borrower or its Subsidiary, as the case may be, is taking or proposes
to take with respect thereto.
(d) Promptly after their becoming available:
(i) Copies of all financial statements, reports, and proxy
statements which Belden or any of its Subsidiaries shall have
sent to its stockholders generally (other than the Borrower,
▇▇▇▇▇▇ Inc. or any Subsidiary of the Borrower or ▇▇▇▇▇▇ Inc.).
(ii) Copies of all regular and periodic reports, if any, which
Belden or any of its Subsidiaries shall have filed with the
Securities and Exchange Commission.
(iii) From time to time, with reasonable promptness, such
additional information regarding the business, affairs, and
financial condition of the Borrower and its Subsidiaries as the
Agent or any Bank may reasonably request.
Section 5.2 Leverage Ratio. The Borrower and its Subsidiaries may incur,
create, assume, or suffer to exist any Debt provided that the Borrower
shall at no time permit the Leverage Ratio to exceed 65 percent .
Section 5.3 Liens. The Borrower shall not, nor shall it permit any of its
Significant Subsidiaries to, create or suffer to exist any mortgage,
pledge, security interest, conditional sale, or other title retention
agreement, lien, charge, or encumbrance upon any of its property or assets,
now owned or hereafter acquired, securing any indebtedness or obligation
(all such security being hereinafter called "liens"), except:
(a) Materialmen's, suppliers', tax, and other like liens arising in
the ordinary course of business securing obligations which are not
overdue or are being contested in good faith by appropriate
proceedings.
(b) Other liens incidental to the conduct of its business or the
ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit, and which do not in the aggregate materially detract from the
value of its property or assets or materially impair the use thereof
in the operation of its business.
(c) Liens on property or assets of any corporation existing on the
date such corporation becomes a Subsidiary of the Borrower or such
property or assets become property or assets of the Borrower; provided
that such liens had not been created in anticipation of such
corporation becoming a Subsidiary of the Borrower or such property or
assets being acquired by the Borrower.
(d) Any lien renewing, extending, or refunding any lien permitted by
clause (c) immediately above; provided that the principal amount
secured is not increased and the lien is not extended to any other
property.
(e) The Borrower or any of its Significant Subsidiaries may create or
suffer to exist or renew, extend, or refund any interests existing in
Document #0021220 29
favor of lessors under leases which secure Capitalized Lease
Obligations arising as an incident to the financing of new facilities
by means of pollution control or other industrial revenue bonds to be
issued by public authorities.
(f) Liens, not otherwise permitted by the foregoing provisions of this
Section 5.3, attached to property of the Borrower and its Significant
Subsidiaries provided that the outstanding principal amount of the
indebtedness so secured does not exceed five percent of Net Worth of
the Borrower at any time.
Section 5.4 Merger and Sale of Assets. The Borrower shall not, nor shall it
permit any of its Subsidiaries to, merge or consolidate with or into any
other Person, acquire by purchase or otherwise all or substantially all of
the stock or assets of any Person, or sell, lease, transfer, or otherwise
dispose of all or a substantial part of its assets, or any assets which
shall have contributed ten percent or more of consolidated Operating
Earnings of the Borrower for the fiscal year then most recently ended, to
any Person, provided that:
(a) ▇▇▇▇▇▇ Wire & Cable Company may merge into ▇▇▇▇▇▇ Inc. provided
that ▇▇▇▇▇▇ Inc. has at the time of the merger no liabilities and no
material operations except those related to the ownership of ▇▇▇▇▇▇
Wire & Cable Company, the merger would not otherwise cause a Default
or Event of Default, and ▇▇▇▇▇▇ Inc., if the successor entity, shall
execute any assumption agreements reasonably requested by the Agent to
confirm that ▇▇▇▇▇▇ Inc. shall be bound by the terms of this Agreement
and the Credit Documents as successor to ▇▇▇▇▇▇ Wire & Cable Company;
(b) Any Subsidiary of the Borrower may merge or consolidate with the
Borrower (provided that the Borrower shall be the successor
corporation unless the purpose of such merger or consolidation is to
effect a change in the State of incorporation of the Borrower) or with
any one or more other Subsidiaries of the Borrower;
(c) Any Subsidiary of the Borrower may sell, lease, dispose of, or
otherwise transfer any of its assets to the Borrower or another
Subsidiary of the Borrower and any Subsidiary of the Borrower that is
not a Significant Subsidiary may sell, lease, dispose of, or otherwise
transfer any of its assets to any Person for fair value; and
(d) Any corporation not a Subsidiary of the Borrower may be merged
into or consolidated with the Borrower or any of its Subsidiaries, or
the Borrower or any of its Subsidiaries may acquire all or
substantially all of the stock or assets of any Person provided that,
in the case of each such transaction, immediately thereafter and after
giving effect thereto:
(i) the Borrower shall be in compliance with this Agreement;
(ii) in the case of any merger into or consolidation with the
Borrower, the Borrower shall be the successor corporation; and
(iii) if the consideration payable by the Borrower or the
Subsidiaries of the Borrower in connection with any such
transaction shall consist, in whole or in part, of shares of
stock of the Borrower (except for liabilities to dissenting
shareholders), the total number of shares of stock of the
Document #0021220 30
Borrower having ordinary voting power for the election of
directors issued or exchanged in connection with, or added to
those outstanding as a result of, such transaction shall not
exceed 40 percent of the total of such voting shares of the
Borrower outstanding immediately prior to such transaction.
Section 5.5 Subsidiary Guaranties. The Borrower shall cause each of its
Subsidiaries to execute a guaranty in substantially the form of Exhibit D
with such changes as the Agent may reasonably request or such other form of
guaranty reasonably requested by the Agent which is required to have the
same effect with respect to guaranties executed by Subsidiaries organized
under a jurisdiction outside of the United States; provided that the
Borrower may exempt any of its Subsidiaries organized under a jurisdiction
outside of the United States and any of its Subsidiaries which are not
Significant Subsidiaries from this requirement so long as (a) the aggregate
assets of such Subsidiaries which have not executed Guaranties does not
exceed 35 percent of the consolidated assets of the Borrower and (b) the
aggregate net income before taxes of such Subsidiaries which have not
executed Guaranties for the most recent 12 months then ended does not
exceed 35 percent of the consolidated net income before taxes of the
Borrower for the most recent 12 months then ended. Provided that no Default
or Event of Default shall exist, at the request of the Borrower the Agent
shall release any Guaranty from any Subsidiary which the Borrower could at
the time of the Borrower's request elect to exempt from the execution of
such Guaranty under the proviso in the preceding sentence.
Section 5.6 Taxes. The Borrower shall, and shall cause each of its
Significant Subsidiaries to, pay and discharge all taxes, assessments, and
governmental charges or levies imposed on it or on its income or profits or
on any of its property prior to the date on which penalties attach thereto,
except that no corporation shall be required hereby to pay any such tax,
assessment, charge, or levy, the payment of which is being contested in
good faith and by proper proceedings.
Section 5.7 Sale-and-Leaseback. The Borrower shall not, nor shall it permit
any of its Significant Subsidiaries to, sell or transfer to a Person (other
than the Borrower or a Subsidiary of the Borrower) any property, whether
now owned or hereafter acquired, if at the time or thereafter the Borrower
or a Subsidiary of the Borrower shall lease as lessee such property or any
part thereof or other property which the Borrower or a Subsidiary of the
Borrower intends to use for substantially the same purpose as the property
sold or transferred except such transactions:
(a) Incident to transactions permitted by 5.3(e).
(b) From which arise Capital Lease Obligations and other rental
obligations not exceeding five percent of Net Worth in the aggregate
at any one time.
Section 5.8 Net Worth. The Borrower shall at no time permit the
consolidated Net Worth of Belden to be less than the sum of (a) 80% of
▇▇▇▇▇▇'▇ consolidated Net Worth as of June 30, 1996 and (b) 50 percent of
an amount equal to the cumulative consolidated quarterly net income of
Belden, determined in accordance with generally accepted accounting
principles, beginning with the quarter ending September 30, 1996, through
the end of ▇▇▇▇▇▇'▇ most recently ended fiscal quarter, but excluding
consolidated net income for any fiscal quarter in which consolidated net
income is not a positive number.
Document #0021220 31
Section 5.9 Maintenance of Property; Insurance. The Borrower shall keep,
and shall cause each Significant Subsidiary to keep, all property useful
and necessary in its business in good working order and condition, ordinary
wear and tear excepted; shall maintain, and shall cause each Significant
Subsidiary to maintain (either in the name of the Borrower or in such
Significant Subsidiary's own name) either with financially sound and
reputable insurance companies or pursuant to a plan of self-insurance
established in accordance with sound and appropriate practices, insurance
on all their property in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies
of established repute engaged in the same or a similar business.
Section 5.10 Compliance with Laws. The Borrower shall, and shall cause each
of its Significant Subsidiaries to, comply, in all material respects with
all federal, state, and local laws and regulations which are applicable to
the operations and property of the Borrower and its Significant
Subsidiaries, including laws related to taxation, ERISA, and environmental
laws, unless noncompliance with such laws and regulations would not have a
material adverse effect on the consolidated financial condition of the
Borrower and provided that this Section shall not prevent the Borrower or
any such Significant Subsidiary from, in good faith and with reasonable
diligence, contesting the validity or application of any such laws or
regulations by appropriate legal proceedings for which adequate reserves
have been established in accordance with generally accepted accounting
principles.
ARTICLE 6.
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur and be
continuing:
(a) The Borrower shall fail to pay when due any principal, interest,
or fees due under the Credit Documents;
(b) Any representation or warranty made or deemed made in the Credit
Documents by the Borrower or any Guarantor, or any certificate
furnished to the Agent or any Bank under the Credit Documents, shall
prove to have been incorrect in any material respect;
(c) The Borrower shall fail to perform (i) any agreement contained in
Sections 5.3, 5.4, or 5.7 of this Agreement or (ii) any agreement
contained in Section 5 (other than agreements in Sections 5.1(a), (b),
and (d), Section 5.6 and Section 5.9) or Section 6(f) hereof which
shall remain unremedied for 10 days after the Borrower shall have had
knowledge of the occurrence thereof;
(d) The Borrower shall fail to perform any other agreement herein
which shall remain unremedied for 30 days after written notice thereof
shall have been given by the Agent to the Borrower;
(e) Any Guaranty shall at any time (before its expiration according to
its terms) or for any reason cease to be in full force and effect or
shall be contested by any party thereto, or any party thereto shall
deny it has any further liability or obligation thereunder, or any
provision of any Guaranty shall be breached by any party thereto
(provided that if any Guaranty shall cease to be in full force and
Document #0021220 32
effect due to changes in law, then such failure shall not create an
Event of Default unless such failure shall remain unremedied for 30
days after written notice thereof shall have been given by the Agent
to the Borrower);
(f) Any payment on any bond, debenture, note, or other evidence of
indebtedness of the Borrower, any of its Subsidiaries, or any
Guarantor, exceeding in aggregate five percent of the consolidated
Net Worth of Belden as of the date of the most recent financial
statement received by the Agent pursuant to Section 5.1, shall become
due whether by maturity, acceleration, or otherwise and shall not be
promptly paid; or if there shall occur any default or event of
default, however denominated, under any cross default provision in any
such debt instrument described above (and the Borrower agrees to
promptly provide the Agent with copies of such cross default
provisions and, at the request of the Agent or any Bank, the Borrower
agrees to amend this Agreement to include any such cross default
provision in this Agreement);
(g) Any of the Borrower, its Subsidiaries, or any Guarantor shall (i)
apply for or consent to the appointment of a receiver, trustee, or
liquidator of itself or of its property, (ii) be unable, or admit in
writing inability, to pay its debts as they mature, (iii) make a
general assignment for the benefit of creditors, (iv) be adjudicated a
bankrupt or insolvent, or (v) file a voluntary petition in bankruptcy
or a petition or answer seeking reorganization or an arrangement with
creditors or to take advantage of any insolvency law or an answer
admitting the material allegations of a petition filed against it in
any bankruptcy, reorganization, or insolvency proceeding, or corporate
action shall be taken by it for the purpose of effecting any of the
foregoing;
(h) An order, judgment, or decree shall be entered, without the
application, approval, or consent of the Borrower, any of its
Subsidiaries, or any Guarantor, respectively, by any court or
governmental agency of competent jurisdiction, approving a petition
seeking reorganization of any such Person, or appointing a receiver,
trustee, liquidator, intervenor, or the like for any such Person, or
of all or a substantial part of any such Person's assets, and such
order, judgment, or decree, if being contested in good faith and by
appropriate proceedings, shall continue unstayed and in effect for any
period of 30 consecutive days;
(i) Any Termination Event shall have occurred and shall have continued
under circumstances which may result in an uninsured payment or
repayment liability of the Borrower, any of its Subsidiaries, or any
Guarantor to the PBGC in an amount which is material in relation to
the financial position of the Borrower; or
(j) The occurrence of any Change in Control of Belden, or ▇▇▇▇▇▇ Inc.
shall at any time and for any reason cease to own 100 percent of the
issued and outstanding common stock of the Borrower (except pursuant
to a merger of ▇▇▇▇▇▇ Inc. into ▇▇▇▇▇▇ Wire & Cable Company pursuant
to Section 5.4(a));
then, and in any such event, the Agent (i) may, or shall at the request of
the Majority Banks, by notice to the Borrower, declare all of the
Commitments and the obligation of each Bank to make Advances to be
Document #0021220 33
terminated, whereupon all of the Commitments and each such obligation shall
forthwith terminate, and (ii) may, or shall at the request of the Majority
Banks, by notice to the Borrower declare the aggregate outstanding
principal amount of all Advances, all interest thereon, and all other
amounts payable by the Borrower under the Credit Documents to be forthwith
due and payable, whereupon such principal, interest, and other amounts
shall become and be forthwith due and payable, without requirement of any
presentment, demand, protest, notice of intent to accelerate, further
notice of acceleration, or other further notice of any kind (other than the
notice expressly provided for above), all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of any Event
of Default described in paragraphs (g) or (h), the obligation of each Bank
to make Advances shall automatically be terminated and such principal,
interest, and other amounts shall automatically become and be due and
payable, without presentment, demand, protest, notice of intent to
accelerate, notice of acceleration, or any other notice of any kind, all of
which are hereby expressly waived by the Borrower.
ARTICLE 7.
THE AGENT
Section 7.1 Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and
toexercise such powers under the Credit Documents as are delegated to the
Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for
by the Credit Documents (including enforcement or collection of the
Advances), the Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from acting) upon
the instructions of the Majority Banks, and such instructions shall be
binding upon all Banks and all holders of any interests under the Banks;
provided, however, that the Agent shall not be required to take any action
which exposes the Agent to personal liability or which is contrary to any
Credit Document or applicable law, nor shall the Agent have or be deemed to
have any fiduciary relationship with any Bank. The Agent agrees to give to
each Bank prompt notice of each material notice given to it by the Borrower
pursuant to the terms of this Agreement. The Agent may execute any of its
duties under this Agreement or any other Loan 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 that it selects with reasonable care.
Section 7.2 Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents, or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with the
Credit Documents, INCLUDING ACTIONS WHICH ARE NEGLIGENT, except for its or
their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Agent: (a) may treat each Bank of record
as the holder of its interests under the Credit Documents unless the Agent
has received an Assignment pursuant to Section 8.6(d); (b) may consult with
legal counsel (including counsel for the Borrower), independent public
accountants, and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance
Document #0021220 34
with the advice of such counsel, accountants, or experts; (c) makes no
warranty or representation to any Bank and shall not be responsible to any
Bank for any statements, warranties, or representations made in or in
connection with the Credit Documents; (d) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the
terms, covenants, or conditions of the Credit Documents on the part of the
Borrower to inspect the property (including the books and records) of the
Borrower; (e) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency, or value of
the Credit Documents; and (f) shall incur no liability under or in respect
of the Credit Documents by acting upon any notice, consent, certificate, or
other instrument or writing (which may be by telecopier, telegram, cable,
or telex) believed by it to be genuine and signed or sent by the proper
party or parties. 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
Majority Banks as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Majority Banks against any
and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or
consent of the Majority Banks and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the Banks.
Section 7.3 The Agent and Affiliates. With respect to its Commitment and
the Advances made by it, the Agent shall have the same rights and powers
under the Credit Documents as any other Bank and may exercise the same as
though it was not the Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include the Agent in its individual
capacity. The Agent and its affiliates may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in any kind of
business with the Borrower, any Subsidiary of the Borrower, and any Person
who may do business with or own securities of the Borrower or any such
Subsidiary, all as if the Agent were not the Agent and without any duty to
account therefor to the Banks.
Section 7.4 Bank Credit Decision. Each Bank represents to the Agent that it
has, independently and without reliance upon the Agent or any other Bank
and based on the financial statements referred to in Section 4.3 and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the
Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Documents.
Section 7.5 Indemnification. The Banks agree to indemnify the Agent (to the
extent not reimbursed by the Borrower), ratably according to the respective
outstanding principal amounts of the A Advances made by each of them (or if
no A Advances are at the time outstanding or are held by Persons which are
not Banks, ratably according to either (a) the respective amounts of their
Commitments, or (b) if all Commitments have terminated, the respective
amounts of the Commitments immediately prior to the time the Commitments
terminated), from and against any and all losses, liabilities, claims,
damages, or expenses of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating to or
arising out of the Credit Documents or any action taken or omitted by the
Document #0021220 35
Agent under the Credit Documents, INCLUDING ACTIONS OR OMISSIONS WHICH
REPRESENT THE AGENT'S OWN NEGLIGENCE; provided that no Bank shall be liable
to the Agent for any portion of such losses, liabilities, claims, damages,
or expenses resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share of any
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, the Credit Documents to the extent that the
Agent is not reimbursed for such expenses by the Borrower. The undertaking
in this Section shall survive the payment of all obligations hereunder and
the resignation or replacement of the Agent.
Section 7.6 Successor Agent. The Agent may be removed by the Borrower at
any time upon 90 days' advance notice to that effect from the Borrower,
provided that there shall exist no Default or Event of Default at any time
during the period from such notice to the date of the transfer, one of the
Banks has agreed to become the successor Agent hereunder, and such
successor Agent shall hold 10% or more of the Commitments hereunder. The
Agent may resign at any time as Agent hereunder by giving notice thereof to
the Banks and the Borrower. The Agent may be removed by the Majority Banks
at any time upon 60 days' advance notice to that effect from the Majority
Banks. Following the resignation of the Agent or the removal of the Agent
by the Majority Banks, (i) if there shall exist no Default or Event of
Default, the Borrower may appoint one of the Banks as Agent hereunder or
(ii) if there shall exist any Default or Event of Default hereunder, or if
the Borrower does not appoint a successor Agent under the preceding clause,
the Majority Banks may appoint any Bank to become the successor Agent
hereunder. If no successor Agent shall have been so appointed by the
Borrower or the Majority Banks and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of resignation
or the Majority Banks' removal of the retiring Agent, then the retiring
Agent may, on behalf of the Banks, appoint a successor Agent, which shall
be a Bank which is a commercial bank having a combined capital and surplus
of at least $500,000,000. 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 Banks shall perform all of the duties of
the Agent hereunder until such time, if any, as the Majority Banks appoint
a successor agent as provided for above. Upon the acceptance of any
appointment as Agent under this Agreement by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, and duties of the retiring Agent and shall
function as the Agent under this Agreement, and the retiring Agent shall be
discharged from its duties and obligations as Agent under this Agreement.
After any retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article 7 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
ARTICLE 8.
MISCELLANEOUS
Section 8.1 Amendments, Etc. No amendment or waiver of any provision of any
Credit Document, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and
Document #0021220 36
signed by the Borrower and the Majority Banks, and then such waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment,
waiver, or consent shall, unless in writing and signed by all the Banks, do
any of the following: (a) increase the Commitments of any Bank or subject
any Bank to any additional obligations, (b) reduce the principal of, or
interest on, the Advances or any fees or other amounts payable hereunder,
(c) postpone any date fixed for any payment of principal of, or interest
on, the Advances or any fees or other amounts payable hereunder, (d) take
action which requires the signing of all the Banks pursuant to the terms of
this Agreement, (e) change the definition of "Majority Banks" or otherwise
change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this
Agreement or any other Credit Document, (f) amend this Section 8.1, or (g)
impair any indemnification received by any Bank under this Agreement or any
other Credit Document; provided, further, that no amendment, waiver, or
consent shall, unless in writing and signed by the Agent in addition to the
Banks required above to take such action, affect the rights or duties of
the Agent under any Credit Document.
Section 8.2 Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telecopy or telex communication)
and mailed, delivered, telecopied, or telexed to the addresses specified on
Schedule I hereto or specified in an Assignment pursuant to Section 8.6(d)
or to such other address as shall be designated by such party in a written
notice to the other parties hereto. Mailed or delivered notice shall be
effective when received, telecopied notice shall be effective when sent by
telecopier and confirmed, and telexed notice shall be effective when
telexed and confirmed by telex answerback, respectively, except that
notices and communications to the Agent pursuant to Article 2 or 8 shall
not be effective until received by the Agent.
Section 8.3 No Waiver; Remedies. No failure on the part of any Bank or the
Agent to exercise, and no delay in exercising, any right under any Credit
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof
or the exercise of any other right. The remedies provided in the Credit
Documents are cumulative and not exclusive of any remedies provided by law.
Section 8.4 Costs, Expenses, and Taxes.
(a) The Borrower agrees to pay on demand (i) all reasonable costs and
expenses of the Agent in connection with the creation, modification,
and amendment of any Credit Document, including reasonable Attorney
Costs with respect thereto; and (ii) all costs and expenses, if any
(including Attorney Costs), of the Agent and each Bank in connection
with the enforcement (whether through negotiations, legal proceedings,
or otherwise) against the Borrower of any Credit Document.
(b) The Borrower agrees to indemnify the Agent and each Bank and their
respective officers, directors, employees, and agents from, and hold
each of them harmless against, any and all losses, liabilities,
claims, damages, or expenses (including reasonable Attorney Costs)
incurred by, imposed upon, or asserted against any of them arising out
of or by reason of any actual or threatened litigation or other
proceeding relating to the making or performance by the Borrower of
this Agreement and the Credit Documents, any actual or proposed use by
Document #0021220 37
the Borrower of the proceeds of any of the Advances, and any actions
of the Agent or the Banks or such Persons related to the enforcement
of the rights of the Agent and the Banks under this Agreement and the
other Credit Documents, INCLUDING ACTIONS WHICH CONSTITUTE THE
NEGLIGENCE OF THE AGENT OR THE BANKS, but excluding any such losses,
liabilities, claims, damages, or expenses incurred by reason of the
gross negligence or willful misconduct of the Person or entity to be
indemnified. The obligations of the Borrower under this Section 8.4(b)
shall survive the termination of this Agreement.
(c) After any retiring Agent's resignation or removal hereunder as
Agent and after any Bank ceases to be a Bank hereunder, the provisions
of Section 8.4(a) and 8.4(b) shall continue to inure to such Agent's
and such Bank's benefit as to any actions taken or omitted to be taken
while such Agent or such Bank was Agent or a Bank under this
Agreement.
Section 8.5 Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the delivery of any notice
required under Article 6 to authorize the Agent to declare the Advances due
and payable pursuant to the provisions of Article 6, the Agent and each
Bank is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by the Agent or such Bank to or for
the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under the Credit
Documents, irrespective of whether or not such Bank shall have made any
demand under the Credit Documents and although such obligations may be
unmatured. The Agent and each Bank, respectively, agrees promptly to notify
the Borrower after such set-off and application made by the Agent or such
Bank, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Agent and each
Bank under this Section are in addition to other rights and remedies
(including other rights of set-off) which the Agent or any such Bank may
have.
Section 8.6 Assignments and Participations. Except as specified in this
Section 8.6, no Bank may assign and delegate its rights and obligations
under this Agreement or any other Credit Document.
(a) Assignment by Right. Any Bank may (i) assign, as collateral or
otherwise, all or any portion of its rights (including all or a
portion of the Advances owing to it) under this Agreement and the
Credit Documents to any Federal Reserve Bank without notice to or the
consent of the Borrower or the Agent; (ii) assign all or any portion
of its rights to any Advances to any Affiliate of such assignor Bank,
but without releasing the obligations of the assignor Bank hereunder;
and (iii) upon written notice to the Borrower and the Agent, on the
terms of and in accordance with the procedures specified in paragraph
(d) below, assign and delegate all or any portion of its rights and
obligations under this Agreement and the Credit Documents (including
the Advances owing to it and its Commitment hereunder) to any
Affiliate of such Bank, provided that (A) such Affiliate or the
financial institution or holding company directly or indirectly owning
such Affiliate has at the time of such assignment a rating on its
unsecured long-term debt at least equal to A from Standard & Poor's
Corporation or at least equal to A2 from ▇▇▇▇▇'▇ Investors Services
Document #0021220 38
and (B) such Affiliate has retained capital and surplus of at least
$500,000,000. Notwithstanding anything to the contrary in this
Agreement, if any Bank makes an assignment under this paragraph (a),
the Borrower shall not be obliged to pay any greater amount to such
assignee under this Agreement and the Credit Documents than it would
have been obliged to pay had there been no such assignment.
(b) Assignment by Approval. Upon the approval of the Borrower, in the
Borrower's sole discretion, and the approval of the Agent, which
approval may not be unreasonably withheld, any Bank may on the terms
of and in accordance with the procedures specified in paragraph (d)
below assign to one or more financial institutions all or any portion
of its rights and obligations under this Agreement (including the
Advances owing to it and its Commitment).
(c) The Register. The Agent shall maintain at its address referred to
on Schedule I a copy of each Assignment delivered to and accepted by
it and a register for the recordation of the names and addresses of
the Banks and the Commitments of, and principal amount of the Advances
owing to, each Bank from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agent, and the Banks may treat
each Person whose name is recorded in the Register as a Bank hereunder
for all purposes of this Agreement. The Register shall be available
Document #0021220 39
for inspection by the Borrower or any Bank at any reasonable time and
from time to time upon reasonable prior notice.
(d) Terms and Procedures for Assignments. Any assignments made
pursuant to paragraph (a)(iii) or (b) above must meet the following
requirements: (i) each delegation of an assignor Bank's Commitment
shall be of a constant, and not a varying, percentage of all of such
assignor Bank's obligations under this Agreement in respect of such
Commitment; (ii) the amount of the resulting Commitment and Advances
of the assignor Bank (unless it is assigning all its Commitment) and
the assignee Bank pursuant to each such assignment (determined as of
the date of the Assignment with respect to such assignment) shall in
no event be less than $10,000,000 and shall be an integral multiple of
$1,000,000; (iii) the parties to each such assignment shall execute
and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment, together with any Note or Notes subject to
such assignment; and (iv) each assignee not already a Bank hereunder
shall pay to the Agent an assignment fee of $2,500 in connection with
such assignment. Upon receipt of an Assignment executed by an assignor
Bank and an assignee, together with any Note or Notes subject to such
assignment, the Agent shall, if such Assignment has been completed and
is in substantially the form of the attached Exhibit E, and if such
Assignment has been approved pursuant to paragraph (a)(iii) or (b)
above, accept such Assignment, record the information contained
therein in the Register, and give prompt notice thereof to the
Borrower. Within five Business Days after its receipt of such notice,
the Borrower, at its own expense, shall execute and deliver to the
Agent (x) in exchange for any surrendered A Note and at the request of
the assignee, a new A Note to the order of the assignee in an amount
equal to the Commitment assumed by it pursuant to such Assignment and,
if the assignor has retained any Commitment hereunder, at the request
of the assignor, a new A Note to the order of the assignor in an
amount equal to the Commitment retained by it hereunder, and (y) in
exchange for any surrendered B Note, and at the request of the
assignee, a new B Note to the order of such assignee and, if the
assignor has retained any B Advances hereunder, at the request of the
assignor, a new B Note to the order of such assignor in the amount
equal to the B Advances under such surrendered B Note retained by it
hereunder. Such new A Notes and B Notes shall be dated the effective
date of such Assignment and shall otherwise be in substantially the
form of Exhibit A-1 or Exhibit A-2, as the case may be.
(e) Effect of Assignments. By executing and delivering an Assignment
in accordance with paragraph (d) above, the assignor and the assignee
thereunder confirm to and agree with the Borrower, the Agent, and the
other parties hereto the matters set forth therein. Upon the
execution, delivery, acceptance, and recording of the Assignment with
the Agent, from and after the effective date specified in each
Assignment, which effective date shall be at least three Business Days
after the execution thereof, (i) the assignee thereunder shall be a
party hereto for all purposes and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such
Assignment, have the rights and obligations of a Bank hereunder and
(ii) the assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Assignment, relinquish its rights and be released from its obligations
under this Agreement (and, in the case of an Assignment covering all
or the remaining portion of the assignor's rights and obligations
Document #0021220 40
under this Agreement, the assignor shall cease to be a party hereto).
(f) Participations. Any Bank may sell participations in all or any
portion of its rights and obligations under this Agreement and the
Credit Documents (including the Advances owing to it and its
Commitment hereunder) to another financial institution, but no
participant shall have any rights under this Agreement (the
participant's rights against such Bank in respect of such
participation to be those set forth in the agreement executed between
such Bank and the participant relating thereto) and all amounts
payable by the Borrower under this Agreement and the Credit Documents
shall be determined as if such Bank had not sold such participation.
The Agent or any Bank may furnish to participants and prospective
participants copies of this Agreement, the Notes, any Guaranties,
other Credit Documents, other information described in Section 3.1,
any amendments, supplements, modifications, and waivers relating to
the Credit Documents, and any other documents or information expressly
required by this Agreement to be furnished to the Agent or any Bank
under this Agreement.
Section 8.7 Governing Law. This Agreement and the other Credit Documents
shall be governed by, and construed in accordance with, the laws of the
State of Illinois.
Section 8.8 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
Section 8.9 Survival of Agreements. All warranties, representations, and
covenants made by the Borrower or any officer of the Borrower herein, or in
any certificate or other document delivered in connection with this
Agreement, shall be considered to have been relied upon by the Banks and
shall survive the issuance and delivery of any notes and the making of the
Advances regardless of any investigation. The indemnities and other
obligations of the Borrower contained in this Agreement, and the
indemnities by the Banks in favor of the Agent and its officers, directors,
employees, and agents, shall survive the repayment of the Advances and the
termination of this Agreement.
Section 8.10 Borrower's Right to Apply Deposits. In the event that any Bank
is placed in receivership or enters a similar proceeding, the Borrower may,
to the full extent permitted by law, make any payment due to such Bank
hereunder, to the extent of finally collected unrestricted deposits of the
Borrower in Dollars held by such Bank, by giving notice to the Agent and
such Bank directing such Bank to apply such deposits to such indebtedness.
If the amount of such deposits is insufficient to pay such indebtedness
then due and owing in full, the Borrower shall pay the balance of such
insufficiency in accordance with this Agreement.
Section 8.11 Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower and the Agent, and when each Bank
listed on the signature pages hereof has delivered an executed counterpart
hereof to the Agent, has sent to the Agent a facsimile copy of its
signature hereon, or has notified the Agent that such Bank has executed
this Agreement and thereafter shall be binding upon and inure to thebenefit
of the Borrower, the Agent, each Bank, and its respective successors and
Document #0021220 41
assigns, except that the Borrower shall not have the right to assign any of
its respective rights hereunder or any interest herein without the prior
written consent of the Banks.
Section 8.12 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, AND THE BANKS
IRREVOCABLY WAIVE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 8.13 ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT AND THE CREDIT
DOCUMENTS, AS DEFINED IN THIS AGREEMENT, REPRESENT THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
BORROWER:
▇▇▇▇▇▇ WIRE & CABLE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
COMMITMENTS BANKS
AGENT:
$35,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
CO-AGENT:
$25,000,000 NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. Vice President
Document #0021220 42
COMMITMENTS BANKS
$35,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
$30,000,000 ABN AMRO Bank N.V., Chicago Branch
By: ABN AMRO North America, Inc., as
agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Group Vice President
$30,000,000 ROYAL BANK OF CANADA
By: /s/ ▇▇▇ ▇▇▇▇▇
Title: Vice President
$20,000,000 THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Document #0021220 43
COMMITMENTS BANKS
$15,000,000 COMMERZBANK AKTIENGESELLSCHAFT,
Chicago BRANCH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
$10,000,000 THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Document #0021220 44
Exhibit A-1
A PROMISSORY NOTE
U.S. $[__________________] [date_____________]
For value received, the undersigned, ▇▇▇▇▇▇ WIRE & CABLE COMPANY, a
Delaware corporation (the "Borrower"), hereby promises to pay to the order
of [___________________________] (the "Bank"), for the account of its
Applicable Lending Office (as defined in the Credit Agreement referred to
below, the defined terms of which are used herein unless otherwise defined
herein), the principal amount of each A Advance made by the Bank to the
Borrower pursuant to the Credit Agreement at such times as are specified in
the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount
of each A Advance from the date of such A Advance until such principal
amount is paid in full, at such interest rates, and payable at such times,
as are specified in the Credit Agreement.
Both principal and interest are payable in the Applicable Currency to
Bank of America National Trust and Savings Association, as Agent, for the
Account of the Bank at the applicable Payment Office in immediately
available funds. Each A Advance made by the Bank to the Borrower and the
maturity thereof, and all payments made on account of principal thereof,
shall be recorded by the Bank and, prior to any transfer hereof, endorsed
on a schedule attached hereto which is part of this Promissory Note;
provided that failure to make such recordings or to attach such schedule
shall not impair the Borrower's obligations under this Promissory Note.
This Promissory Note is one of the A Notes referred to in, and is
subject to and entitled to the benefits of, the Credit Agreement dated as
of November 18, 1996 (as amended from time to time, the "Credit
Agreement"), among the Borrower, the Bank, certain other financial
institutions parties thereto, and Bank of America National Trust and
Savings Association, as Agent. The Credit Agreement, among other things,
provides for the making of A Advances by the Bank to the Borrower from time
to time pursuant to Section 2.1 of the Credit Agreement in an aggregate
outstanding amount not to exceed at any time the Dollar Equivalent of the
Dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such A Advance being evidenced by this Promissory Note,
and contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
THIS WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS, AS DEFINED IN THE
CREDIT AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
▇▇▇▇▇▇ WIRE & CABLE COMPANY
By:_________________________
Name:_______________________
Title:______________________
Exhibit A-2
B PROMISSORY NOTE
U.S. $[_____________________] [date________________]
For value received, the undersigned, ▇▇▇▇▇▇ WIRE & CABLE COMPANY, a
Delaware corporation (the "Borrower"), hereby promises to pay to the order
of [_____________________] (the "Bank") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below, the
defined terms of which are used herein unless otherwise defined herein),
the principal amount of each B Advance made by the Bank to the undersigned
from time to time from the date hereof up to the Termination Date, together
with interest accrued thereon and at such rates as may be so offered and
accepted, on the last day of the Interest Period for such B Advance, in the
currency in which the loan made hereunder was made by the Bank to the
Borrower.
Both principal and interest are payable in the currency specified
above to Bank of America National Trust and Savings Association, as Agent,
for the account of the Bank at the applicable Payment Office in immediately
available funds. The amounts and dates of all B Advances and the amounts
and dates of all payments thereon shall be endorsed by the Bank on a grid
in the form of the Schedule attached hereto, which is a part of this Note.
Any failure by the Bank to endorse or such grid shall not negate the
obligation of the Borrower to repay amounts due and owing hereunder.
This Promissory Note is one of the B Notes referred to in, and is
subject to and entitled to the benefits of, the Credit Agreement dated as
of November 18, 1996 (as amended from time to time, the "Credit
Agreement"), among the Borrower, the Bank, certain other financial
institutions parties thereto, and Bank of America National Trust and
Savings Association, as Agent. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events.
Prior to any transfer of this Note, each outstanding B Advance made by
the Bank to the undersigned under the Credit Agreement (including any
refinancing thereof), the interest rate and Interest Period applicable
thereto and all payments of principal hereof by the undersigned to the Bank
shall be endorsed on a grid schedule or grid schedules in the form of the
schedule attached hereto and by this reference thereto made a part of this
Note. Notwithstanding the foregoing, the failure to make, or an error in
making, such endorsement shall not in any manner affect the obligation of
the undersigned hereunder.
THIS WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS, AS DEFINED IN THE
CREDIT AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
▇▇▇▇▇▇ WIRE & CABLE COMPANY
By:________________________
Name:______________________
Title:_____________________
SCHEDULE
Amount of
Amount of Interest Maturity Date Principal
Date Bid Loan Rate of Interest Period Repaid Currency
Exhibit B-1
FORM OF REQUEST FOR A BORROWING
[Date]
Bank of America National Trust and Savings Association,
as Agent for the Banks parties to the
Credit Agreement referred to below
Agency Management Services
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ______________________
Telecopy: ___________________
Attention: _______________________
Agency Services Officer
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of November 18, 1996 (as
amended from time to time, the "Credit Agreement"), among the undersigned,
certain financial institutions parties thereto, and Bank of America
National Trust and Savings Association, as Agent, the defined terms of
which are used herein unless otherwise defined herein. Pursuant to Section
2.1 of the Credit Agreement, the Borrower hereby irrevocably requests an A
Borrowing under the Credit Agreement, and in that regard sets forth the
following information regarding such A Borrowing:
Date of A Borrowing 1 :
Type of Advances 2 :
Applicable Currency 3 :
Aggregate Amount :
Interest Period 4 :
The Borrower hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the proposed A
Borrowing:
1 The date of the A Borrowing must be a Business Day. The
Borrower must give three Business
Days' advance notice for A Borrowings comprised of LIBOR
Rate Advances.
2 The Type of Advances comprising the A Borrowing may be
Base Rate Advances or LIBOR Rate Advances.
3 The Applicable Currency may be U.S. Dollars, Pounds
Sterling, German Marks, French Francs, Italian Lira,
Dutch Guilders, Japanese Yen, Canadian Dollars, Swiss
Francs, Australian Dollars or any other currency approved
by the Banks.
4 Interest Period applies only to LIBOR Rate Advances
and may be one, two, three, or six months. Insert "N/A"
for Base Rate Advances.
Bank of America, as Agent
[Date]
Page 2
(a) the representations and warranties contained in Article 4 of
the Credit Agreement are correct on and as of the date of the proposed A
Borrowing, before and after giving effect to the proposed A Borrowing and
to the application of the proceeds therefrom, as though made on and as of
such date,
(b) no event has occurred and is continuing, or would result from
the proposed A Borrowing or from the application of the proceeds therefrom,
which constitutes a Default or an Event of Default, and
(c) following the making of the proposed A Borrowing and all
other Borrowings to be made on the same day to the Borrower under the
Credit Agreement, the aggregate outstanding Dollar Equivalent principal
amount of Advances shall not exceed the aggregate amount of the
Commitments.
Very truly yours,
▇▇▇▇▇▇ WIRE & CABLE COMPANY
By:_________________________
Name:_______________________
Title:______________________
-2-
Exhibit B-2
FORM OF REQUEST FOR B BORROWING
[Date]
Bank of America National Trust and Savings Association,
as Agent for the Banks parties to the
Credit Agreement referred to below
Agency Management Services
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: _______________________
Telecopy: _______________________
Attention: _______________________
Agency Services Officer
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of November 18, 1996 (as
amended from time to time, the "Credit Agreement"), among the undersigned,
certain financial institutions parties thereto, and Bank of America
National Trust and Savings Association, as Agent, the defined terms of
which are used herein unless otherwise defined herein. Pursuant to Section
2.2 of the Credit Agreement, the Borrower hereby requests offers from the
Banks to make B Advances to the Borrower as part of a B Borrowing under the
Credit Agreement, and in that regard sets forth the following information
regarding such proposed B Borrowing:
Date of B Borrowing 1 :
Applicable Currency 2 :
Aggregate Amount 3 :
Maturity Date 4 :
1 The Date of B Borrowing must be a Business Day. The Borrower
must give four Business Days' advance notice of B Borrowings to
be made in any Alternate Currency or with an interest rate basis
of LIBOR plus a margin, and one Business Day's advance notice of
B Borrowings to be made in Dollars with an interest rate basis of
an absolute rate.
2 The Applicable Currency may be U.S. Dollars, Pounds Sterling,
German Marks, French Francs, Italian Lira, Dutch Guilders,
Japanese Yen, Canadian Dollars, Swiss Francs, Australian Dollars,
or any other currency approved by the Banks.
3 The Aggregate Amount of the B Borrowing must be in a minimum
aggregate Dollar Equivalent principal amount of $2,000,000 and be
made in 1,000,000 unit multiples of the Applicable Currency.
4 The Maturity Date of the B Advances must be on a Business Day
which is 7 to 30 days after the date of the B Advances, if the B
Advances have an interest rate basis based upon an absolute rate,
or must be on the last date of an Interest Period (of 1, 2, 3, or
6 months) for such B Advances, if the B Advances have an interest
rate basis based upon the LIBOR plus a margin. In no event may
the Maturity Date exceed the Termination Date.
Interest Rate Basis 5 :
Interest Calculation Basis 6 :
Interest Payment Dates :
The Borrower requests prompt response to this Request for B Borrowing in
accordance with Section 2.2 of the Credit Agreement.
Very truly yours,
▇▇▇▇▇▇ WIRE & CABLE COMPANY
By:________________________
Name:________________________
Title:________________________
5 The Interest Rate Basis must be expressed as "Absolute Rate" or
"LIBOR Plus Margin."
6 If the Interest Rate Basis is based upon an absolute rate, the
Interest Calculation shall be specified as 360-day year,
365/366-day year, or any other method proposed by the Borrower.
If the Interest Rate Basis is based upon the LIBOR, the Interest
Calculation Basis shall be the same as the basis for computing
regular interest on A Advances in the same currency under the
Credit Agreement.
-2-
Exhibit B-3
FORM OF OFFER OF B ADVANCES
[Date]
Bank of America National Trust and Savings Association,
as Agent for the Banks parties to the
Credit Agreement referred to below
Agency Management Services
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: _______________________
Telecopy: ____________________
Attention: _______________________
Agency Services Officer
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of November 18, 1996 (as
amended from time to time, the "Credit Agreement"), among ▇▇▇▇▇▇ Wire &
Cable Company, the undersigned, certain financial institutions parties
thereto, and Bank of America National Trust and Savings Association, as
Agent, the defined terms of which are used herein unless otherwise defined
herein. In response to the Borrower's Request for B Borrowing dated
[____________] (the "Request for B Borrowing"), and pursuant to Section
2.2(b)(ii) of the Credit Agreement, the undersigned hereby irrevocably
offers to make the following B Advances to the Borrower as part of the B
Borrowing proposed by the Borrower in the Request for B Borrowing, and in
that regard sets forth the following information regarding such B Advances:
Advance #1
Minimum Amount 1 :
Maximum Amount :
Interest Rate 2 :
[Advance #2
Minimum Amount :
Maximum Amount :
Interest Rate :]
1 The Minimum Amount of each B Advance offered must be in a minimum
Dollar Equivalent principal amount of $1,000,000 and be made in
500,000 unit multiples of the Applicable Currency.
2 The Interest Rate must be expressed in accordance with the interest
rate basis specified by the Borrower in the applicable Request for B
Borrowing, either an absolute rate or a rate based upon the
applicable LIBOR plus a margin; therefore, this must be filled in
either as "____% per annum" or "LIBOR plus ____% per annum", in
each case rounded to the nearest 1/100th of one percent
Bank of America, as Agent
[Date]
Page 2
The undersigned confirms that for each offered B Advance specified above,
the date of borrowing, Applicable Currency, maturity date, interest
calculation basis, and interest payment dates shall be those proposed by
the Borrower in the Request for B Borrowing and that the undersigned is
prepared to extend credit to the Borrower on the terms described above, in
accordance with and subject to the applicable terms of the Credit
Agreement, including Section 2.2(b)(iii) regarding the allocation of B
Advances, which are deemed incorporated into this offer.
Very truly yours,
[Name of Bank]
By:_______________________
Name:_______________________
Title:_______________________
-2-
Exhibit B-4
FORM OF ACCEPTANCE OF B ADVANCES
[Date]
Bank of America National Trust and Savings Association,
as Agent for the Banks parties to the
Credit Agreement referred to below
Agency Management Services
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ______________________
Telecopy: ___________________
Attention: _______________________
Agency Services Officer
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of November 18, 1996 (as
amended from time to time, the "Credit Agreement"), among the undersigned,
certain financial institutions parties thereto, and Bank of America
National Trust and Savings Association, as Agent, the defined terms of
which are used herein unless otherwise defined herein. Pursuant to the
Request for B Borrowing dated as of [ ] (the "Request for B
Borrowing"), the Borrower requested a B Borrowing under the following
terms:
Date of B Borrowing :
Applicable Currency :
Aggregate Amount :
Maturity Date :
Interest Rate Basis :
Interest Calculation Basis :
Interest Payment Dates :
After reviewing the offers made by the Banks to the Borrower in response to
the Request for B Borrowing, pursuant to and in accordance with Section
2.2(b)(iii) of the Credit Agreement the Borrower has [elected to cancel its
request for a B Borrowing, and each offer made by the Banks in connection
with the Request for B Borrowing is rejected.] [elected to make a B
Borrowing in an aggregate amount of [_________] 1, and hereby irrevocably
accepts the following offers made by the
Banks:
1 The B Borrowing must be in an aggregate Dollar Equivalent
principal amount of $2,000,000 and be made in 1,000,000 unit
multiples of the Applicable Currency. The principal amount of
the B Borrowing may not exceed the amount specified in the
applicable Request for B Borrowing.
Bank of America, as Agent
[Date]
Page 2
Advance #1
Bank :
Date of Offer :
Amount 2 :
Interest Rate :
[Advance #2
Bank :
Date of Offer :
Amount :
Interest Rate :]
For each offered B Advance specified above, the Borrower confirms that in
such offer the date of borrowing, Applicable Currency, maturity date,
interest calculation basis, and interest payment dates were those proposed
by the Borrower in the Request for B Borrowing.
The Borrower further confirms that the offers accepted represent the lowest
interest rate offers received by the Borrower and that each offer has been
accepted in at least the minimum amount allowed pursuant to Section
2.2(b)(i) of the Credit Agreement on the terms of the offer, and if
multiple offers were made at the same interest rate all offers accepted by
the Borrower at such interest rate have been allocated among the Banks
having made offers in accordance with Section 2.2(b)(iii) of the Credit
Agreement, the terms of which were incorporated into such offers. The
Borrower rejects all other offers received in connection with the Request
for B Borrowing.
The Borrower hereby certifies that the following statements are true on the
date hereof, and will be true on the date of the proposed B Borrowing:
(a) the representations and warranties contained in Article 4 of
the Credit Agreement are correct on and as of the date of the proposed B
Borrowing, before and after giving effect to the proposed B Borrowing and
to the application of the proceeds therefrom, as though made on and as of
such date,
(b) no event has occurred and is continuing, or would result from
the proposed B Borrowing or from the application of the proceeds therefrom,
which constitutes a Default or an Event of Default, and
2 The Amount of each B Advance accepted must be at least the
minimum amount, but no greater than the maximum amount, specified
in the related offer.
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Bank of America, as Agent
[Date]
Page 3
(c) following the making of the proposed B Borrowing and all
other Borrowings to be made on the same day to the Borrower under the
Credit Agreement, the aggregate outstanding Dollar Equivalent principal
amount of Advances shall not exceed the aggregate amount of the
Commitments.
Very truly yours,
▇▇▇▇▇▇ WIRE & CABLE COMPANY
By:_________________________
Name:_______________________
Title:______________________
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Exhibit C
FORM OF COMPLIANCE CERTIFICATE
[Date]
Bank of America National Trust and Savings Association,
as Agent for the Banks parties to the
Credit Agreement referred to below
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I refer to the Credit Agreement dated as of November 18, 1996 (as amended
from time to time, the "Credit Agreement"), among ▇▇▇▇▇▇ Wire & Cable
Company, certain financial institutions parties thereto, and Bank of
America National Trust and Savings Association, as Agent, the defined terms
of which are used herein unless otherwise defined herein.
I hereby certify that I have no knowledge of any Defaults by the Borrower
in the observance of any of the provisions in the Credit Agreement which
existed as of [__] or which exist as of the date of this letter.
I also certify that the accompanying consolidated financial statements
present fairly, in all material respects, the consolidated financial
condition of ▇▇▇▇▇▇ Inc. as of [_____], and the related results of
operations for the [____] then ended, [in conformity with generally
accepted accounting principles] [and that the financial statements include
all adjustments, consisting only of normal recurring adjustments, necessary
for a fair presentation of the financial information presented therein].
The following sets forth the information and computations to demonstrate
compliance with the requirements of Sections 5.2 and 5.8 of the Credit
Agreement as of [_______]:
A. Section 5.2 Leverage Ratio
1. consolidated Debt $____________
2. consolidated Total
Capitalization $____________
3. ratio A.1 / A.2 [___] to 1.00
4. maximum 0.65 to 1.00
Bank of America, as Agent
[Date]
Page 2
B. Section 5.8 Net Worth
1. 80% of consolidated Net Worth
as of 6/30/96 $___________
2. 50% of cumulative consolidated
quarterly net income since
6/30/96 1 $___________
3. minimum Net Worth = B.1 + B.2 $___________
4. consolidated Net Worth $___________
Very truly yours,
_____________________________________
Treasurer
1 Excluding consolidated net income for any fiscal quarter in which
net income is a negative number.
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Exhibit D
FORM OF GUARANTY
This Guaranty dated as of [date] ("Agreement"), is made by
[_________________] ("Guarantor") in favor of the Agent for the ratable
benefit of the Banks referred to below.
INTRODUCTION
This Guaranty is given in connection with the Credit Agreement dated
as of November 18, 1996 (as amended from time to time, the "Credit
Agreement"), among ▇▇▇▇▇▇ Wire & Cable Company, a Delaware corporation
("Borrower"), Bank of America National Trust and Savings Association
("Agent"), and the financial institutions party thereto. Capitalized terms
used herein but not defined herein shall have the meanings specified by the
Credit Agreement. As a condition precedent to the extension of credit under
the Credit Agreement, the Agent and the Banks require the Guarantor to
enter into this Agreement. The Guarantor believes that it will obtain
substantial direct and indirect benefit from the credit extended to the
Borrower by the Banks under the Credit Agreement.
In consideration of the foregoing and for other valuable consideration
received, the Guarantor and the Agent agree as follows:
Section 1. Guaranty.
1.1 The Guarantor irrevocably guarantees to the Agent the full payment
when due of (a) all principal, interest, fees, reimbursements,
indemnifications, and other amounts now or hereafter owed by the Borrower
to the Agent and the Banks under the Credit Agreement and the other Credit
Documents, and (b) any increases, extensions, and rearrangements of the
foregoing obligations under any amendments, supplements, and other
modifications of the documents and agreements creating the foregoing
obligations (collectively, the "Guaranteed Obligations"). This is a
guaranty of payment and not merely a guaranty of collection, and the
Guarantor is liable as a primary obligor. If any of the Guaranteed
Obligations are not punctually paid when due, whether by maturity,
acceleration, or otherwise, and the Agent shall notify the Guarantor of the
existence of a declared Event of Default under the Credit Agreement and
make demand for payment hereunder, the Guarantor shall immediately pay to
the Agent, for the ratable benefit of the Banks, the full amount due. The
Guarantor shall make each payment to the Agent in U.S. Dollars (or if the
applicable Guaranteed Obligation is to be paid in an Alternate Currency, in
such Alternate Currency) in immediately available funds as directed by the
Agent. The Agent and each Bank is hereby authorized at any time following
any demand for payment hereunder to set off and apply any indebtedness owed
by the Agent or the Bank to the Guarantor against any and all of the
obligations of the Guarantor under this Agreement. The Agent and each Bank
severally agrees to promptly notify the Guarantor after any such setoff and
application, but the failure to give such notice shall not affect the
validity of such setoff and application.
1.2 If any sum due from the Guarantor under this Agreement or any
order or judgment given in relation hereto has to be converted from the
currency (the "first currency") in which the same is payable hereunder or
under such order or judgment into another currency (the "second currency")
for the purpose of (a) making or filing a claim or proof against the
Guarantor with any governmental authority or in any court or tribunal or
(b) enforcing any order or judgment given in relation hereto, the Guarantor
shall indemnify each Person to whom such sum is due against any loss
actually suffered as a result of any discrepancy between (i) the rate of
exchange used when restating the amount in question from the first currency
into the second currency and (ii) the rate or rates of exchange at which
such Person, acting in good faith in a commercially reasonable manner,
purchased the first currency with the second currency after receipt of a
sum paid to it in the second currency in satisfaction, in whole or in part,
of any such order, judgment, claim, or proof. The foregoing indemnity shall
constitute a separate obligation of the Guarantor distinct from its other
obligations hereunder and shall survive the giving or making of any
judgment or order in relation to all or any of such other obligations.
1.3 This Agreement shall continue to be effective or be reinstated,
as the case may be, if any payment on the Guaranteed Obligations must be
refunded under any bankruptcy proceeding. In the event that the Agent or
any Bank must refund any payment received against the Guaranteed
Obligations, any prior release from the terms of this Agreement given to
the Guarantor by the Agent shall be without effect, and this Agreement
shall be reinstated in full force and effect. It is the intention of the
Guarantor that the Guarantor's obligations hereunder shall not be
discharged except by final payment of the Guaranteed Obligations.
Section 2. Guaranty Absolute.
2.1 In the event that one or more other parties guarantees all or
part of the Guaranteed Obligations, such other guarantees shall not reduce
the Guarantor's obligations hereunder and the Guarantor shall remain fully
liable for all of the Guaranteed Obligations.
2.2 There are no conditions precedent to the enforcement of this
Agreement, except as expressly contained herein. It shall not be necessary
for the Agent, in order to enforce payment by the Guarantor under this
Agreement, to exhaust the Agent's remedies against the Borrower or any
other person liable for the payment of the Guaranteed Obligations, to
enforce any support for the payment of the Guaranteed Obligations, or to
enforce any other means of obtaining payment of the Guaranteed Obligations.
Neither the Agent nor the Banks shall be required to mitigate damages or
take any other action to reduce, collect, or enforce the Guaranteed
Obligations.
2.3 The Guarantor agrees that the Guarantor's obligations under this
Agreement shall not be released, diminished, or impaired by, and waives any
rights which the Guarantor might otherwise have which relate to:
(a) Any lack of validity or enforceability of the Guaranteed
Obligations, any Credit Document, or any other agreement or instrument
relating thereto;
(b) Any increase, reduction, extension, or rearrangement of the
Guaranteed Obligations, any amendment, supplement, or other modification of
the Credit Documents, or any waiver or consent granted under the Credit
Documents, including waivers of the payment and performance of the
Guaranteed Obligations;
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(c) Any release, exchange, subordination, waste, or other
impairment of any collateral, if any, securing payment of the Guaranteed
Obligations;
(d) Any full or partial release of any other guarantor, or any
other person liable for the payment of the Guaranteed Obligations;
(e) Any change in the organization or structure of the Borrower,
any guarantor, or any other person liable for the payment of the Guaranteed
Obligations; or the insolvency, bankruptcy, liquidation, or dissolution of
the Borrower or any other person liable for the payment of the Guaranteed
Obligations;
(f) The failure to apply or any manner of applying payments or
the proceeds of any collateral, if any, against the Guaranteed Obligations;
(g) The failure to give notice of the occurrence of any of the
events or actions referred to in this Section 2.3, notice of any default or
event of default, however denominated, under the Credit Documents, notice
of intent to demand, notice of demand, notice of presentment for payment,
notice of nonpayment, notice of intent to protest, notice of protest,
notice of grace, notice of dishonor, notice of intent to accelerate, notice
of acceleration, notice of bringing of suit, notice of sale or foreclosure
of any collateral, if any, for the Guaranteed Obligations, notice of the
Agent's or Banks' transfer of the Guaranteed Obligations, notice of the
financial condition of or other circumstances regarding the Borrower or any
other person liable for the Guaranteed Obligations, or any other notice of
any kind relating to the Guaranteed Obligations ; and
(h) Any other action taken or omitted which affects the
Guaranteed Obligations, whether or not such action or omission prejudices
the Guarantor or increases the likelihood that the Guarantor will be
required to pay the Guaranteed Obligations pursuant to the terms hereof--it
is the unambiguous and unequivocal intention of the Guarantor that the
Guarantor shall be obligated to pay the Guaranteed Obligations when due,
notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or uncontemplated, and whether or not
particularly described herein. Notwithstanding any other provision
contained in this Agreement, the Guarantor's liability with respect to the
principal amount of the Guaranteed Obligations shall be no greater than the
liability of the Borrower with respect thereto.
Section 3. Subrogation. [Until one year and one day after all
Guaranteed Obligations have been paid irrevocably in full, the Guarantor
agrees not to take] [The Guarantor waives] any action pursuant to any
rights which it may acquire against the Borrower or any other person liable
for the payment of the Guaranteed Obligations under this Agreement,
including any right of subrogation (including any statutory rights of
subrogation under Section 509 of the Bankruptcy Code, 11 U.S.C. 509),
contribution, indemnification, reimbursement, exoneration, or any right to
participate in any claim or remedy of the Agent or the Banks against the
Borrower or any collateral, if any, which the Agent or the Banks now have
or acquire. If any amount shall be paid to the Guarantor in violation of
the preceding sentence, such amount shall be held in trust for the benefit
of the Banks and immediately turned over to the Agent, for the ratable
benefit of the Banks, with any necessary endorsement to be applied to the
Guaranteed Obligations.
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Section 4. Miscellaneous.
4.1 The Guarantor agrees to pay on demand (i) all reasonable costs
and expenses of the Agent in connection with the creation, modification,
and amendment of this Guaranty, including the reasonable Attorney Costs for
the Agent with respect thereto; and (ii) all costs and expenses, if any
(including reasonable Attorney Costs), of the Agent and each Bank in
connection with the enforcement (whether through negotiations, legal
proceedings, or otherwise) against the Guarantor of this Guaranty.
4.2 The Guarantor agrees to indemnify the Agent and each Bank and
their respective officers, directors, employees, and agents from, and hold
each of them harmless against, any and all losses, liabilities, claims,
damages, or expenses (including the reasonable Attorney Costs) incurred by,
imposed upon, or asserted against any of them arising out of or by reason
of any actual or threatened litigation or other proceeding relating to the
making or performance by the Guarantor of this Agreement, any actual or
proposed use by the Guarantor of the proceeds of any of the Advances, and
any actions of the Agent or the Banks or such persons related to the
enforcement of the rights of the Agent and the Banks under this Agreement
and the other Credit Documents, INCLUDING ACTIONS WHICH CONSTITUTE THE
NEGLIGENCE OF THE AGENT OR THE BANKS, but excluding any such losses,
liabilities, claims, damages, or expenses incurred by reason of the gross
negligence or willful misconduct of person or entity to be indemnified. The
obligations of the Guarantor under this Section 4.2 shall survive the
termination of this Agreement.
4.3 This Agreement shall be governed by the laws of the State of
Illinois. If any provision in this Agreement is held to be unenforceable,
such provision shall be severed and the remaining provisions shall remain
in full force and effect. All representations, warranties, and covenants of
the Guarantor in this Agreement shall survive the execution of this
Agreement and any other contract or agreement. If a due date for an amount
payable is not specified in this Agreement, the due date shall be the date
on which the Agent demand payment therefor. The Agent's remedies under this
Agreement shall be cumulative, and no delay in enforcing this Agreement
shall act as a waiver of the Agent's or the Banks' rights hereunder. The
provisions of this Agreement may be waived or amended only in a writing
signed by the party against whom enforcement is sought. This Agreement
shall bind the Guarantor and its successors and assigns and shall inure to
the benefit of the Agent and its successors and assigns. The Guarantor may
not assign its rights or delegate its duties under this Agreement. The
Agent may assign its rights and delegate its duties under this Agreement.
This Agreement may be executed in multiple counterparts which together
shall constitute one and the same agreement. Unless otherwise specified,
all notices provided for in this Agreement shall be in writing, delivered
to the following addresses or to such other address as shall be designated
by one party in writing to the other parties: if to the Agent: Bank of
America National Trust and Savings Association, Attention: Mr. ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telephone:
312/▇▇▇-▇▇▇▇, Telecopy: 312/987-5833; if to the Guarantor:
[_______________]. Notice sent by telecopy shall be deemed to be given and
received when receipt of such transmission is acknowledged, and delivered
notice shall be deemed to be given and received when receipted for by, or
actually received by, an authorized officer of the receiving party.
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THE GUARANTOR AND THE AGENT IRREVOCABLY WAIVE RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
THIS WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED as of the date first above written.
[GUARANTOR]
By:______________________________
Name:____________________________
Title:___________________________
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Exhibit E
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated [ ], 19[ ]
Reference is made to the Credit Agreement dated as of November 18,
1996 (as amended from time to time, the "Credit Agreement"), among Belden
Wire & Cable Company, a Delaware corporation (the "Borrower"), the
financial institutions which are parties thereto, and Bank of America
National Trust and Savings Association, as Agent. Capitalized terms used
herein but not defined herein shall have the meanings specified by the
Credit Agreement.
Pursuant to the terms of the Credit Agreement, [ ] (the "Assignor")
wishes to assign and delegate to [ ] (the "Assignee") [ ]% 1 of its
rights and obligations under the Credit Agreement in connection with its
Commitment and its outstanding A Advances and A Note. [In addition, the
Assignor wishes to assign and delegate to the Assignee $[ ] of its
outstanding B Advance(s) and B Note]. Therefore, in accordance with Section
8.6 of the Credit Agreement, the Assignor, the Assignee, and the Agent
agree as follows:
1. The Assignor hereby sells and assigns and delegates to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
as of the Effective Date (as defined below), without recourse to the
Assignor and without representation or warranty except for the
representations and warranties specifically set forth in Section 2 hereof,
a [ ]% interest in and to all of the Assignor's rights and obligations
under the Credit Agreement in connection with its Commitment, its
outstanding A Advances, and its A Note [, and $[ ] of its outstanding
B Advance(s) and B Note]. Attached to this Agreement are the following
Notes:
A Note in a maximum principal amount of $[ ] dated as of
[ ], made by the Borrower and payable to the order of the
Assignor.
[B Note in a principal amount of $[ ] dated as of [ ], made by
the Borrower and payable to the order of the Assignor.]
The Assignor and the Assignee request that the Agent exchange such Notes
for the following Notes:
1 Specify percentage in no less than 4 decimal points.
[A Note in a maximum principal amount of $[ ] dated as of [ ],
made by the Borrower and payable to the order of the Assignee.]
[A Note in a maximum principal amount of $[ ] dated as of [ ],
made by the Borrower and payable to the order of the the Assignor.]
[B Note in a maximum principal amount of $[ ] dated as of [ ],
made by the Borrower and payable to the order of the Assignee.]
[B Note in a maximum principal amount of $[ ] dated as of [ ],
made by the Borrower and payable to the order of the Assignor.]
2. The Assignor (a) represents and warrants that, prior to executing
this Assignment and Acceptance, its Commitment is $[ ], and the aggregate
outstanding principal amount of A Advances owed to it by the Borrower is
$[ ], and the aggregate outstanding principal amount of B Advances owed
to it by the Borrower is $[ ]; and (b) represents and warrants that 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 adverse claim.
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 any
other Credit Document or the execution, legality, validity, enforceability,
genuineness, sufficiency, or value of the Credit Agreement or any other
Credit Document or any other instrument or document furnished pursuant
thereto. The Assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or
the performance or observance by the Borrower of any of its respective
obligation ▇▇▇▇▇▇ the Credit Agreement or any other credit Document or any
other instrument or document furnished pursuant thereto.
3. The Assignee (a) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred
to in Section 4.3 thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment; (b) agrees that it will, independently and
without reliance upon the Agent, the Assignor, or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (c) appoints and authorizes the Agent 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 terms thereof,
together with such powers as are reasonably incidental thereto; (d) 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 Bank; (e) specifies as its Domestic Lending Office (and address for
notices) and Alternate Lending Offices the offices set forth beneath its
name on the signature pages hereof; (f) attaches the forms prescribed by
the Internal Revenue Services of the United States certifying as to the
Assignee's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Assignee
under the Credit Agreement and its Note(s) or such other documents as are
necessary to indicate that all such payments are subject to such rates at a
rate reduced by an applicable tax treaty , and (g) represents that it an
assignee eligible under Section 8.6 of the Credit Agreement.
2 If the Assignee is organized under the laws of a jurisdiction
outside the United States.
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4. The effective date for this Assignment and acceptance shall be
[ ] (the "Effective Date") 3, and following the execution of this
Assignment, the Agent will record it.
5. Upon such recording, and as of the Effective Date, (a) the
Assignee shall be a party to the Credit Agreement for all purposes and, to
the extent provided in this Assignment, have the rights and obligations of
a Bank thereunder and (b) the Assignor shall, to the extent provided
herein, relinquish its rights (other than rights against the Borrower
pursuant to Section 8.4 of the Credit Agreement, which shall survive this
assignment) and be related from its obligations under the Credit Agreement.
6. Upon such recording, from and after the Effective Date, the Agent
shall make all payments under the Credit Agreement and the Note(s) in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest, and fees) to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payment under the
Credit Agreement and the Note(s) for periods prior to the Effective Date
directly between themselves.
7. This Assignment shall be governed by, and construed and enforced
in accordance with, the laws of the State of Illinois.
The parties hereto have caused this Assignment to be duly executed as
of the date first above written.
3 See Section 8.6(a) of the Credit Agreement. Such date shall be
at least three Business Days after the execution of this
Assignment.
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[ASSIGNOR]
By__________________________
Name________________________
Title_______________________
Address: __________________
__________________
__________________
Attention:__________________
Telephone:__________________
Telecopy: __________________
[ASSIGNEE]
By__________________________
Name_______________________
Title_______________________
Domestic Lending Office:
Address: __________________
__________________
__________________
Attention:__________________
Telephone:__________________
Telecopy: __________________
Alternate Lending Office:
By__________________________
Name________________________
Title_______________________
Address: __________________
__________________
__________________
Attention:__________________
Telephone:__________________
Telecopy: __________________
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
as Agent
By__________________________
Name________________________
Title_______________________
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SCHEDULE I
BORROWER
Notice Address: ▇▇▇▇▇▇ Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (fax)
AGENT
Notice Address: Bank of America National Trust
and Savings Association
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Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇-▇▇▇-▇▇▇▇ (fax)
Agency Administration: Bank of America National Trust
Notices and Savings Association
Agency Administrative Services #5596
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (fax)
Domestic Lending Office: Bank of America National Trust
and Savings Association
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Alternate Lending
Office: As specified by the Agent for Alternate
Currency Advances
BANKS
NationsBank, N.A.
Notice Address: NationsBank, N.A.
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Domestic Lending Office: NationsBank, N.A.
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Alternate Lending
Office: Same
The Boatmen's National Bank of St. Louis
Notice Address: The Boatmen's National Bank
of St. Louis
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Domestic Lending Office: The Boatmen's National Bank
of St. Louis
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Alternate Lending
Office: Same
Commerzbank Aktiengesellschaft, Grand Cayman Branch
Notice Address: Commerzbank Aktiengesellschaft,
c/o Chicago Branch
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Domestic Lending Office: Commerzbank Aktiengesellschaft,
c/o Chicago Branch
2 World Financial Center
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Alternate Lending
Office: Same
-2-
ABN AMRO BANK N.V.
Notice Address: ABN AMRO Bank N.V.
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Domestic Lending Office: ABN AMRO Bank N.V.
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Attn: Loan Operations
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Alternate Lending
Office: Same
THE NORTHERN TRUST COMPANY
Notice Address: The Northern Trust Company
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Domestic Lending Office: The Northern Trust Company
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Alternate Lending
Office: Same
-3-
Royal Bank of Canada
Notice Address: Royal Bank of Canada
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Domestic Lending Office: Royal Bank of Canada
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Alternate Lending
Office: Same
Wachovia Bank of Georgia, N.A.
Notice Address: Wachovia Bank of Georgia, N.A.
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Domestic Lending Office: Wachovia Bank of Georgia, N.A.
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Alternate Lending
Office: Same
-4-
SCHEDULE II
Pursuant to Section 4.8 of the Credit Agreement dated as of November 18,
1996, between Belden Wire & Cable Company, as Borrower, the banks named
herein, as Banks, and Bank of America National Trust and Savings
Association, as Agent, the following is a complete and correct list, as of
the date of this Agreement, of all Subsidiaries of the Borrower.
Subsidiary Place of Incorporation
Belden Brasil Comercial Ltda. Brazil
Belden (Canada) Inc. Ontario, Canada
Belden Electronics GmbH Germany
Belden Electronics, S.A. de C.V. Mexico
Belden Electronics S.a.r.l. France
Belden Europe B.V. The Netherlands
Belden Foreign Sales Corporation Barbados
Belden Holdings, Inc. Delaware, U.S.A.
Belden International, Inc. Delaware, U.S.A.
Belden UK Limited United Kingdom
Belden Wire & Cable B.V. The Netherlands
Grupo Belden Mexicana S.A. de C.V. Mexico
SCHEDULE III
Pursuant to Section 4.9 of the Credit Agreement dated as of November 18,
1996, between Belden Wire & Cable Company, as Borrower, the Banks named
herein, and Bank of America National Trust and Savings Association, as
Agent, the following is a complete and correct list of all material credit
agreements, indentures, purchase agreements, guaranties and other
instruments in effect as of the date of this Agreement providing for or
relating to extensions of credit for a term of more than one year in
respect of which the Borrower or any of its Subsidiaries is or may become
directly or contingently obligated.
Arrangement
Amount Obligation
$150,000,000 Multicurrency revolving credit agreement, dated August 5,
1994, among Borrower, certain financial institutions party
thereto, and NationsBank of Texas, N.A., as agent. Pursuant
to Section 3.1(b)(ii) of the Credit Agreement, Borrower
shall have made arrangements satisfactory to the Agent that,
on or before November 18, 1996, the Borrower shall repay any
outstanding indebtedness under this credit agreement and in
connection with such repayment shall terminate its credit
facilities under this agreement.
$10,000,000 Promissory note of Borrower, dated November 15, 1993,
payable to NationsBank of Texas, N.A. Borrowing
arrangements under this note are uncommitted and NationsBank
of Texas, N.A. has no obligation to make any advance under
this note.
$10,000,000 Multicurrency credit agreement, dated March 9, 1995, among
Borrower, Belden (Canada) Inc., as co-borrower, and Royal
Bank of Canada, as lender. Borrowing arrangements under
this agreement are uncommitted and Royal Bank of Canada has
no obligation to make any advance under this agreement.
$40,000,000 Multicurrency promissory note of Borrower, dated May 7,
1996, payable to Wachovia Bank of Georgia, N.A. Borrowing
arrangements under this note are uncommitted and Wachovia
Bank of Georgia, N.A. has no obligation to make any advance
under this note.
6,000,000 Overdraft facility in current account, dated
Netherlands April 20, 1995, between Belden Wire & Cable B.V.,
Guilders as borrower, and Internationale Nederlanden Bank N.V., as
lender. Borrowing arrangements under this facility are
uncommitted and Internationale Nederlanden Bank N.V. has no
obligation to make any advance under this facility.
5,000,000 Overdraft facility in current account, dated July 5,
Netherlands 1995, between Belden Wire & Cable B.V., as borrower,
Guilders and ABN AMRO Bank N.V., as lender. Borrowing
arrangements under this facility are uncommitted and ABN
AMRO Bank N.V. has no obligation to make any advance under
this facility.
Please see pages 8-13 of Form 10K for the fiscal year ended
December 31, 1995, and page 12 of Form 10-Q for the fiscal
quarter ended June 30, 1996 for a brief discussion of
environmental matters and other legal proceedings.