EXHIBIT 10.8
================================================================================
CREDIT AGREEMENT
DATED AS OF
AUGUST 4, 1998
AMONG
STONERIDGE, INC.
AS BORROWER
THE LENDING INSTITUTIONS NAMED THEREIN
AS LENDERS
NATIONAL CITY BANK
AS SWING LINE LENDER AND
AS ADMINISTRATIVE AGENT
================================================================================
TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINITIONS AND TERMS.................................................... 1
1.1. CERTAIN DEFINED TERMS.................................................... 1
1.2. COMPUTATION OF TIME PERIODS.............................................. 16
1.3. ACCOUNTING TERMS......................................................... 16
1.4. CURRENCY EQUIVALENTS..................................................... 17
SECTION 2. AMOUNT AND TERMS OF LOANS................................................ 17
2.1. COMMITMENTS FOR LOANS.................................................... 17
2.2. MINIMUM BORROWING AMOUNTS, ETC.; PRO RATA BORROWINGS..................... 18
2.3. BORROWING PROCEDURES..................................................... 18
2.4. DISBURSEMENT OF FUNDS FROM BORROWINGS.................................... 20
2.5. REFUNDING OF, OR PARTICIPATION IN, SWING LINE REVOLVING LOANS............ 20
2.6. NOTES; LOAN ACCOUNTS..................................................... 22
2.7. VOLUNTARY CONVERSION OF DOLLAR DENOMINATED GENERAL REVOLVING LOANS;
REDENOMINATION OF GENERAL REVOLVING LOANS............................... 23
2.8. INTEREST................................................................. 24
2.9. INTEREST PERIODS......................................................... 26
2.10. INCREASED COSTS, ILLEGALITY, ETC......................................... 27
2.11. BREAKAGE COMPENSATION.................................................... 28
2.12. CHANGE OF LENDING OFFICE; REPLACEMENT OF LENDERS......................... 29
2.13. EUROPEAN ECONOMIC AND MONETARY UNION..................................... 29
SECTION 3. LETTERS OF CREDIT........................................................ 31
3.1. LETTERS OF CREDIT........................................................ 31
3.2. LETTER OF CREDIT REQUESTS: NOTICES OF ISSUANCE........................... 32
3.3. AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS............................. 33
3.4. LETTER OF CREDIT PARTICIPATIONS.......................................... 33
3.5. INCREASED COSTS.......................................................... 35
3.6. GUARANTY OF LETTER OF CREDIT OBLIGATIONS OF OTHER LETTER OF CREDIT
OBLIGORS................................................................. 36
SECTION 4. FEES; COMMITMENTS........................................................ 37
4.1. FEES 37
4.2. VOLUNTARY TERMINATION/REDUCTION OF COMMITMENTS........................... 39
4.3. MANDATORY TERMINATION OF COMMITMENTS, ETC................................ 39
4.4. EXTENSION OF MATURITY DATE............................................... 39
SECTION 5. PAYMENTS................................................................. 40
5.1. VOLUNTARY PREPAYMENTS.................................................... 40
5.2. MANDATORY PREPAYMENTS.................................................... 41
5.3. METHOD AND PLACE OF PAYMENT.............................................. 42
5.4. NET PAYMENTS............................................................. 42
SECTION 6. CONDITIONS PRECEDENT..................................................... 44
6.1. CONDITIONS PRECEDENT AT CLOSING DATE..................................... 44
6.2. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS................................ 45
SECTION 7. REPRESENTATIONS AND WARRANTIES.......................................... 45
7.1. CORPORATE STATUS, ETC................................................... 45
7.2. SUBSIDIARIES............................................................ 45
7.3. CORPORATE POWER AND AUTHORITY, ETC...................................... 46
7.4. NO VIOLATION............................................................ 46
7.5. GOVERNMENTAL APPROVALS.................................................. 46
7.6. LITIGATION.............................................................. 46
7.7. USE OF PROCEEDS; MARGIN REGULATIONS..................................... 46
7.8. FINANCIAL STATEMENTS, ETC............................................... 46
7.9. NO MATERIAL ADVERSE CHANGE.............................................. 47
7.10. TAX RETURNS AND PAYMENTS................................................ 47
7.11. TITLE TO PROPERTIES, ETC................................................ 47
7.12. LAWFUL OPERATIONS, ETC.................................................. 47
7.13. ENVIRONMENTAL MATTERS................................................... 47
7.14. COMPLIANCE WITH ERISA................................................... 48
7.15. INTELLECTUAL PROPERTY, ETC.............................................. 48
7.16. INVESTMENT COMPANY...................................................... 48
7.17. YEAR 2000 COMPUTER MATTERS.............................................. 48
7.18. EXISTING INDEBTEDNESS................................................... 49
7.19. TRUE AND COMPLETE DISCLOSURE............................................ 49
SECTION 8. AFFIRMATIVE COVENANTS................................................... 49
8.1. REPORTING REQUIREMENTS.................................................. 49
8.2. BOOKS, RECORDS AND INSPECTIONS.......................................... 51
8.3. INSURANCE............................................................... 52
8.4. PAYMENT OF TAXES AND CLAIMS............................................. 52
8.5. CORPORATE FRANCHISES.................................................... 52
8.6. GOOD REPAIR............................................................. 52
8.7. COMPLIANCE WITH STATUTES, ETC........................................... 52
8.8. COMPLIANCE WITH ENVIRONMENTAL LAWS...................................... 52
8.9. FISCAL YEARS, FISCAL QUARTERS........................................... 53
8.10. HEDGE AGREEMENTS, ETC................................................... 53
8.11. SENIOR DEBT............................................................. 53
SECTION 9. NEGATIVE COVENANTS...................................................... 53
9.1. CHANGES IN BUSINESS..................................................... 53
9.2. CONSOLIDATION, MERGER, ACQUISITIONS, ASSET SALES, ETC................... 53
9.3. LIENS 55
9.4. INDEBTEDNESS............................................................ 56
9.5. ADVANCES, INVESTMENTS, LOANS AND GUARANTY OBLIGATIONS................... 56
9.6. DIVIDENDS, ETC.......................................................... 58
9.7. MINIMUM CONSOLIDATED NET WORTH.......................................... 58
9.8. CONSOLIDATED TOTAL DEBT/CONSOLIDATED EBITDA RATIO....................... 58
9.9. CONSOLIDATED TOTAL DEBT/CONSOLIDATED TOTAL CAPITAL RATIO................ 58
9.10. LIMITATION ON CERTAIN RESTRICTIVE AGREEMENTS............................ 58
9.11. PREPAYMENTS AND REFINANCINGS OF OTHER DEBT, ETC......................... 59
9.12. TRANSACTIONS WITH AFFILIATES............................................ 59
9.13. PLAN TERMINATIONS, MINIMUM FUNDING, ETC................................. 59
SECTION 10. EVENTS OF DEFAULT....................................................... 60
10.1. EVENTS OF DEFAULT....................................................... 60
10.2. ACCELERATION, ETC....................................................... 61
10.3. APPLICATION OF LIQUIDATION PROCEEDS..................................... 61
SECTION 11. THE ADMINISTRATIVE AGENT................................................ 62
11.1. APPOINTMENT............................................................. 62
11.2. DELEGATION OF DUTIES.................................................... 62
11.3. EXCULPATORY PROVISIONS.................................................. 62
11.4. RELIANCE BY ADMINISTRATIVE AGENT........................................ 63
11.5. NOTICE OF DEFAULT....................................................... 63
11.6. NON-RELIANCE............................................................ 63
11.7. INDEMNIFICATION......................................................... 64
11.8. THE ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY......................... 64
11.9. SUCCESSOR ADMINISTRATIVE AGENT.......................................... 64
11.10. OTHER AGENTS............................................................ 64
SECTION 12. MISCELLANEOUS........................................................... 64
12.1. PAYMENT OF EXPENSES ETC................................................. 64
12.2. RIGHT OF SETOFF......................................................... 66
12.3. NOTICES 66
12.4. BENEFIT OF AGREEMENT.................................................... 66
12.5. NO WAIVER: REMEDIES CUMULATIVE.......................................... 68
12.6. PAYMENTS PRO RATA....................................................... 68
12.7. CALCULATIONS: COMPUTATIONS.............................................. 68
12.8. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.. 68
12.9. COUNTERPARTS............................................................ 69
12.10. EFFECTIVENESS........................................................... 69
12.11. HEADINGS DESCRIPTIVE.................................................... 69
12.12. AMENDMENT OR WAIVER..................................................... 69
12.13. SURVIVAL OF INDEMNITIES................................................. 70
12.14. DOMICILE OF LOANS....................................................... 70
12.15. CONFIDENTIALITY......................................................... 70
12.16. LENDER REGISTER......................................................... 70
12.17. LIMITATIONS ON LIABILITY OF THE LETTER OF CREDIT ISSUERS................ 70
12.18. GENERAL LIMITATION OF LIABILITY......................................... 71
12.19. NO DUTY................................................................. 71
12.20. LENDERS AND AGENT NOT FIDUCIARY TO BORROWER, ETC........................ 71
12.21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.............................. 71
12.22. JUDGMENT CURRENCY....................................................... 71
-------------------------
ANNEX I - INFORMATION AS TO LENDERS
ANNEX II - INFORMATION AS TO SUBSIDIARIES
ANNEX III - DESCRIPTION OF EXISTING INDEBTEDNESS
ANNEX IV - DESCRIPTION OF EXISTING LIENS
ANNEX V - DESCRIPTION OF EXISTING ADVANCES, LOANS,
INVESTMENTS AND GUARANTEES
ANNEX VI - DESCRIPTION OF LETTERS OF CREDIT DEEMED
ISSUED UNDER THE CREDIT AGREEMENT
EXHIBIT A-1 - FORM OF GENERAL REVOLVING NOTE
EXHIBIT A-2 - FORM OF SWING LINE REVOLVING NOTE
EXHIBIT B-1 - FORM OF NOTICE OF BORROWING
EXHIBIT B-2 - FORM OF NOTICE OF CONVERSION
EXHIBIT B-3 - FORM OF LETTER OF CREDIT REQUEST
EXHIBIT B-4 - FORM OF NOTICE OF REDENOMINATION
EXHIBIT C - FORM OF OPINION OF COUNSEL TO THE BORROWER
EXHIBIT D - FORM OF ASSIGNMENT AGREEMENT
EXHIBIT E - FORM OF SECTION 5.4(B)(II) CERTIFICATE
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of August 4, 1998, among the following:
(i) STONERIDGE, INC., an Ohio corporation (herein, together with its
successors and assigns, the "BORROWER");
(ii) the lending institutions listed in Annex I hereto (each a
"LENDER" and collectively, the "LENDERS"); and
(iii) NATIONAL CITY BANK, a national banking association, as the
Swing Line Lender (defined below), and as administrative agent (the
"ADMINISTRATIVE AGENT"):
PRELIMINARY STATEMENTS:
(1) Unless otherwise defined herein, all capitalized terms used herein and
defined in section 1 are used herein as so defined.
(2) The Borrower has applied to the Lenders for credit facilities in order
to provide working capital and funds for other lawful purposes.
(3) Subject to and upon the terms and conditions set forth herein, the
Lenders are willing to make available to the Borrower the credit facilities
provided for herein.
NOW, THEREFORE, it is agreed:
SECTION 1. DEFINITIONS AND TERMS.
1.1. CERTAIN DEFINED TERMS. As used herein, the following terms shall have
the meanings herein specified unless the context otherwise requires. Defined
terms in this Agreement shall include in the singular number the plural and in
the plural the singular:
"ACQUISITION" shall mean and include (i) any acquisition on a going concern
basis (whether by purchase, lease or otherwise) of any facility and/or business
operated by any person who is not a Subsidiary of the Borrower, and (ii)
acquisitions of a majority of the outstanding equity or other similar interests
in any such person (whether by merger, stock purchase or otherwise).
"ADMINISTRATIVE AGENT" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to section 11.9.
"AFFILIATE" shall mean, with respect to any person, any other person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such person. A person shall be deemed to control a second
person if such first person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors or managers of such second person or (ii) to direct or cause the
direction of the management and policies of such second person, whether through
the ownership of voting securities, by contract or otherwise. Notwithstanding
the foregoing, (x) a director, officer or employee of a person shall not, solely
by reason of such status, be considered an Affiliate of such person; and (y)
neither the Administrative Agent nor any Lender shall in any event be considered
an Affiliate of the Borrower or any of its Subsidiaries.
"AGREEMENT" shall mean this Credit Agreement, as the same may be from time
to time further modified, amended and/or supplemented.
"ALTERNATIVE CURRENCY" shall mean and include (i) Dutch Guilders, German
Marks, French Francs, Pounds Sterling, Swedish Krona, Japanese Yen and European
Currency Units (ECUs), if at the time any such currency is readily and freely
transferable and convertible into Dollars; (ii) after the commencement of the
third stage of EMU, the euro (as such terms are defined in section 2.13), if at
the time the euro is readily and freely transferable and convertible into
Dollars; and (iii) any other lawful currency other than Dollars which is readily
and freely transferable and convertible into Dollars and which (A) in the case
of any General Revolving Loans to be denominated in such Alternative Currency,
is acceptable to all of the Lenders with General Revolving Commitments, or (B)
in the case of any Letter of Credit which is payable in such Alternative
Currency, is acceptable to the Required Lenders and any applicable Letter of
Credit Issuer.
"ALTERNATIVE CURRENCY SUBLIMIT" shall have the meaning provided in section
2.1(a).
"APPLICABLE EUROCURRENCY MARGIN" shall have the meaning provided in section
2.8(h).
"APPLICABLE FACILITY FEE RATE" shall have the meaning provided in section
4.1(a).
"APPLICABLE LENDING OFFICE" shall mean, (i) with respect to each Lender
with a General Revolving Commitment, (A) such Lender's Domestic Lending Office
in the case of Borrowings consisting of Prime Rate Loans, and (B) such Lender's
Eurocurrency Lending Office in the case of Borrowings consisting of Eurocurrency
Loans, and (ii) with respect to the Swing Line Lender, its Domestic Lending
Office.
"ASSET SALE" shall mean the sale, transfer or other disposition (including
by means of Sale and Lease-Back Transactions, and by means of mergers,
consolidations, and liquidations of a corporation, partnership or limited
liability company of the interests therein of the Borrower or any Subsidiary) by
the Borrower or any Subsidiary to any person other than the Borrower or any
Subsidiary of any of their respective assets, PROVIDED that the term Asset Sale
specifically excludes any sales, transfers or other dispositions of inventory,
or obsolete or excess furniture, fixtures, equipment or other property, tangible
or intangible, in each case in the ordinary course of business.
"ASSIGNMENT AGREEMENT" shall mean an Assignment Agreement substantially in
the form of Exhibit D hereto.
"AUTHORIZED OFFICER" shall mean any officer or employee of the Borrower
designated as such in writing to the Administrative Agent by the Borrower.
"BANKRUPTCY CODE" shall have the meaning provided in section 10.1(g).
"BORROWER" shall have the meaning provided in the first paragraph of this
Agreement.
"BORROWING" shall mean and include (i) the incurrence of General Revolving
Loans, denominated in a single currency, consisting of a single Type of Loan, by
the Borrower from all of the Lenders having Commitments in respect thereof on a
PRO RATA basis on a given date (or resulting from conversions on a given date),
having in the case of Eurocurrency Loans the same Interest Period; and (ii) the
incurrence of a Swing Line Revolving Loan, which shall consist of a single Type
of Loan, by the Borrower from the Swing Line Lender on a given date.
"BUSINESS DAY" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which shall be
in the city in which the applicable Payment Office is located a legal holiday or
a day on which banking institutions are authorized by law or other governmental
actions to close and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurocurrency Loans,
any day which is a Business Day described in clause (i) and which is also a day
on which dealings are carried on in the London interbank market and banks are
open for business in London and in the country of issue of any Alternative
Currency in which any applicable Eurocurrency Loans are denominated.
2
"CAPITAL LEASE" as applied to any person shall mean any lease of any
property (whether real, personal or mixed) by that person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that person.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all obligations under Capital
Leases of the Borrower or any of its Subsidiaries in each case taken at the
amount thereof accounted for as liabilities in accordance with GAAP.
"CASH EQUIVALENTS" shall mean any of the following:
(i) securities issued or directly and fully guaranteed or insured by
the United States of America or any agency or instrumentality thereof
(PROVIDED that the full faith and credit of the United States of America is
pledged in support thereof) having maturities of not more than one year
from the date of acquisition;
(ii) U.S. dollar denominated time deposits, certificates of deposit
and bankers' acceptances of (x) any Lender or (y) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof
or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent thereof (any such bank,
an "APPROVED BANK"), in each case with maturities of not more than 90 days
from the date of acquisition;
(iii) commercial paper issued by any Lender or Approved Bank or by
the parent company of any Lender or Approved Bank and commercial paper
issued by, or guaranteed by, any industrial or financial company with a
short- term commercial paper rating of at least A-1 or the equivalent
thereof by S&P or at least P-1 or the equivalent thereof by Moody's, or
guaranteed by any industrial company with a long term unsecured debt rating
of at least A or A2, or the equivalent of each thereof, from S&P or
Moody's, as the case may be, and in each case maturing within 90 days after
the date of acquisition;
(iv) investments in money market funds substantially all the assets of
which are comprised of securities of the types described in clauses (i)
through (iii) above;
(v) investments in money market funds access to which is provided as
part of "sweep" accounts maintained with a Lender or an Approved Bank;
(vi) investments in industrial development revenue bonds which (i)
"re-set" interest rates not less frequently than quarterly, (ii) are
entitled to the benefit of a remarketing arrangement with an established
broker dealer, and (iii) are supported by a direct pay letter of credit
covering principal and accrued interest which is issued by an Approved
Bank; and
(vii) investments in pooled funds or investment accounts consisting
of investments of the nature described in the foregoing clause (vi).
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as the same may be amended from time to time, 42
U.S.C. (S) 9601 ET SEQ.
"CHANGE OF CONTROL" shall mean and include any of the following:
(i) during any period of two consecutive calendar years, individuals
who at the beginning of such period constituted the Borrower's Board of
Directors (together with any new directors (x) whose election by the
Borrower's Board of Directors was, or (y) whose nomination for election by
the Borrower's shareholders was (prior to the date of the proxy or consent
solicitation relating to such nomination), approved by a vote of at least
two-thirds of the directors then still in office who either were directors
at the beginning of such period or whose election or nomination for
election was previously so approved), shall cease for any reason to
constitute a majority of the directors then in office;
3
(ii) any person or group (as such term is defined in section 13(d)(3)
of the 1934 Act), other than the Borrower, any trustee or other fiduciary
holding securities under an employee benefit plan of the Borrower, or any
members of the Current Holder Group, shall acquire, directly or indirectly,
beneficial ownership (within the meaning of Rule 13d-3 and 13d-5 of the
▇▇▇▇ ▇▇▇) of more than 35%, on a fully diluted basis, of the economic or
voting interest in the Borrower's capital stock;
(iii) the shareholders of the Borrower approve a merger or
consolidation of the Borrower with any other person, OTHER than a merger or
consolidation which would result in the voting securities of the Borrower
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted or exchanged for voting
securities of the surviving or resulting entity) more than 75% of the
combined voting power of the voting securities of the Borrower or such
surviving or resulting entity outstanding after such merger or
consolidation;
(iv) the shareholders of the Borrower approve a plan of complete
liquidation of the Borrower or an agreement or agreements for the sale or
disposition by the Borrower of all or substantially all of the Borrower's
assets; and/or
(vi) any "change in control" or any similar term as defined in any of
the indentures, credit agreements or other instruments governing any
Indebtedness of the Borrower or any of its Subsidiaries with an outstanding
principal amount, or providing for commitments to lend in an outstanding
principal amount, of at least $10,000,000 (or the equivalent amount in any
other currency).
As used in this definition, the term"CURRENT HOLDER GROUP" shall mean (i) ▇▇▇
▇▇▇▇▇▇, (ii) those other persons who are officers and directors of the Borrower
at the Effective Date, (iii) the spouses, heirs, legatees, descendants and blood
relatives to the third degree of consanguinity of any such person, (iv) the
executors and administrators of the estate of any such person, and any court
appointed guardian of any such person, and (v) any trust, family partnership or
similar investment entity for the benefit of any such person referred to in the
foregoing clauses (i), (ii) and (iii) or any other persons (including for
charitable purposes), so long as one or more members of the Current Holder Group
has the exclusive or a joint right to control the voting and disposition of
securities held by such trust, family partnership or other investment entity.
"CLOSING DATE" shall mean the date, on or after the Effective Date, upon
which the conditions specified in section 6.1 are satisfied.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Effective
Date and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
"COMMITMENT" shall mean, with respect to each Lender, its General Revolving
Commitment or its Swing Line Commitment, or both, if such Lender shall have both
a General Revolving Commitment or its Swing Line Loan Commitment.
"CONSOLIDATED AMORTIZATION EXPENSE" shall mean, for any period, all
amortization expenses of the Borrower and its Subsidiaries, all as determined
for the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED CAPITAL EXPENDITURES" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including in all events amounts expended or capitalized under Capital Leases
but excluding any amount representing capitalized interest) by the Borrower and
its Subsidiaries during that period that, in conformity with GAAP, are or are
required to be included in the property, plant and equipment reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries.
4
"CONSOLIDATED DEPRECIATION EXPENSE" shall mean, for any period, all
depreciation expenses of the Borrower and its Subsidiaries, all as determined
for the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED EBIT" shall mean, for any period, Consolidated Net Income for
such period; PLUS (A) the sum of the amounts for such period included in
determining such Consolidated Net Income of (i) Consolidated Interest Expense,
(ii) Consolidated Income Tax Expense, (iii) amortization or write-off of
deferred financing costs and charges for prepayment penalties on prepayment of
Indebtedness, and (iv) extraordinary and other non-recurring non-cash losses and
charges; LESS (B) gains on sales of assets and other extraordinary gains and
other non-recurring non-cash gains; all as determined for the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP, EXCEPT that in
computing Consolidated Net Income for purposes of this definition, there shall
be excluded therefrom (x) the income, (or loss) of any entity (other than
Subsidiaries of the Borrower) in which the Borrower or any of its Subsidiaries
has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to the Borrower or any of its Subsidiaries during
such period, and (y) the income of any Subsidiary of the Borrower to the extent
that the declaration or payment of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated EBIT for
such period; PLUS the sum (without duplication) of the amounts for such period
included in determining such Consolidated EBIT of (i) Consolidated Depreciation
Expense, and (ii) Consolidated Amortization Expense, all as determined for the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
PROVIDED that, notwithstanding anything to the contrary contained herein, the
Borrower's Consolidated EBITDA for any Testing Period shall (x) include the
appropriate financial items for any person or business unit which has been
acquired by the Borrower for any portion of such Testing Period prior to the
date of acquisition, and (y) exclude the appropriate financial items for any
person or business unit which has been disposed of by the Borrower, for the
portion of such Testing Period prior to the date of disposition.
"CONSOLIDATED INCOME TAX EXPENSE" shall mean, for any period, all
provisions for taxes based on the net income of the Borrower or any of its
Subsidiaries (including, without limitation, any additions to such taxes, and
any penalties and interest with respect thereto), all as determined for the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, total interest
expense (including that which is capitalized and that which is attributable to
Capital Leases, in accordance with GAAP) of the Borrower and its Subsidiaries on
a consolidated basis with respect to all outstanding Indebtedness of the
Borrower and its Subsidiaries including, without limitation, net costs under
Hedge Agreements, but excluding, however, any amortization of deferred financing
costs, all as determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" shall mean for any period, the net income (or
loss), without deduction for minority interests, of the Borrower and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP.
"CONSOLIDATED NET WORTH" shall mean at any time for the determination
thereof all amounts which, in conformity with GAAP, would be included under the
caption "total stockholders' equity" (or any like caption) on a consolidated
balance sheet of the Borrower as at such date, PROVIDED that in no event shall
Consolidated Net Worth include any amounts in respect of Redeemable Stock.
"CONSOLIDATED TOTAL ASSETS" shall mean with respect to any person at any
date of determination the net book value of all assets which would appear on a
consolidated balance sheet of such person and its consolidated Subsidiaries at
such date which is prepared in accordance with GAAP.
"CONSOLIDATED TOTAL CAPITAL" shall mean the sum of Consolidated Total Debt
and Consolidated Net Worth.
5
"CONSOLIDATED TOTAL DEBT" shall mean at any time of determination thereof
the sum (without duplication) of the principal amount (or Capitalized Lease
Obligation, in the case of a Capital Lease) of all Indebtedness of the Borrower
and of each of its Subsidiaries, all as determined on a consolidated basis.
"CREDIT DOCUMENTS" shall mean this Agreement, the Notes, and any Letter of
Credit Document.
"CREDIT EVENT" shall mean the making of any Loans and/or the issuance of
any Letter of Credit.
"CREDIT PARTY" shall mean the Borrower and each Subsidiary or Affiliate
which is a party to any Credit Document.
"DEFAULT" shall mean any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with, respect to which a Lender
Default is in effect.
"DOLLARS", "U.S. DOLLARS", "U.S.DOLLARS" and the sign "$" each means lawful
money of the United States.
"DOMESTIC LENDING OFFICE" shall mean, with respect to any Lender, the
office of such Lender specified as its Domestic Lending Office in Annex I or in
the Assignment Agreement pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"EFFECTIVE DATE" shall have the meaning provided in section 12.10.
"ELIGIBLE TRANSFEREE" shall mean and include a commercial bank, financial
institution or other "accredited investor" (as defined in SEC Regulation D), in
each case which:
(i) is not disapproved in writing by the Borrower in a notice given to
a requesting Lender and the Administrative Agent, specifying the reasons
for such disapproval, within five Business Days following the giving of
notice to the Borrower of the identity of any proposed transferee (any such
disapproval by the Borrower must be reasonable), PROVIDED that the Borrower
shall not be entitled to exercise the foregoing right of disapproval if and
so long as any Event of Default shall have occurred and be continuing; and
(ii) is not a direct competitor of the Borrower or engaged in the same
or similar principal lines of business as the Borrower and its
Subsidiaries considered as a whole, or is not an Affiliate of any such
competitor of the Borrower and its Subsidiaries.
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of non-
compliance or violation, investigations or proceedings arising under any
Environmental Law or any permit issued under any such law (hereafter "CLAIMS"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
the storage, treatment or Release (as defined in CERCLA) of any Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment.
"ENVIRONMENTAL LAW" shall mean any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, binding and enforceable
guideline, binding and enforceable written policy and rule of common law now or
hereafter in effect and in each case as amended, and any binding and enforceable
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment issued to or rendered against
the Borrower or any of its Subsidiaries relating to the environment, employee
health and safety or Hazardous Materials, including, without limitation, CERCLA;
RCRA; the Federal Water Pollution Control Act, 33 U.S.C. (S)
6
2601 ET SEQ.; the Clean Air Act, 42 U.S.C. (S) 7401 ET SEQ.; the Safe Drinking
Water Act, 42 U.S.C. (S) 3803 ET SEQ.; the Oil Pollution Act of 1990, 33 U.S.C.
(S) 2701 ET SEQ.; the Emergency Planning and the Community Right-to-Know Act of
1986, 42 U.S.C. (S) 11001 ET SEQ., the Hazardous Material Transportation Act, 49
U.S.C. (S) 1801 ET SEQ. and the Occupational Safety and Health Act, 29 U.S.C.
(S) 651 ET SEQ. (to the extent it regulates occupational exposure to Hazardous
Materials); and any state and local or foreign counterparts or equivalents, in
each case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the
Effective Date and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in section 3(9) of
ERISA) which together with the Borrower or a Subsidiary of the Borrower would be
deemed to be a "single employer" (i) within the meaning of section 414(b),(c),
(m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary of
the Borrower being or having been a general partner of such person.
"EUROCURRENCY LENDING OFFICE" shall mean, with respect to any Lender, the
office of such Lender specified as its Eurocurrency Lending Office in Annex I or
in the Assignment Agreement pursuant to which it became a Lender, or such other
office or offices (for Eurocurrency Loans denominated in Dollars or particular
Alternative Currencies) of such Lender as such Lender may from time to time
specify to the Borrower and the Administrative Agent.
"EUROCURRENCY LOANS" shall mean each Loan, denominated in U.S. Dollars or
in an Alternative Currency, bearing interest at the rates provided in section
2.8(b).
"EUROCURRENCY RATE" shall mean with respect to each Interest Period for a
Eurocurrency Loan, (A) either (i) the rate per annum for deposits in Dollars or
in the relevant Alternative Currency for a maturity most nearly comparable to
such Interest Period which appears on page 3740 or 3750, as applicable, of the
Dow ▇▇▇▇▇ Telerate Screen as of 11:00 A.M. (local time at the Notice Office) on
the date which is two Business Days prior to the commencement of such Interest
Period, or (ii) if such a rate does not appear on such a page, an interest rate
per annum equal to the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the rate per
annum at which deposits in Dollars or in the relevant Alternative Currency are
offered by each of the Reference Banks to prime banks in the London interbank
Eurocurrency market for deposits of amounts in same day funds comparable to the
outstanding principal amount of the Eurocurrency Loan for which an interest rate
is then being determined with maturities comparable to the Interest Period to be
applicable to such Eurocurrency Loan, determined as of 11:00 A.M. (London time)
on the date which is two Business Days prior to the commencement of such
Interest Period, in each case divided (and rounded upward to the nearest whole
multiple of 1/16th of 1%) by (B) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or any successor category of liabilities
under Regulation D).
"EVENT OF DEFAULT" shall have the meaning provided in section 10.1.
"EXISTING INDEBTEDNESS" shall have the meaning provided in section 7.18.
"EXISTING INDEBTEDNESS AGREEMENTS" shall have the meaning provided in
section 7.18.
"EXISTING LETTER OF CREDIT" shall have the meaning provided in section
3.1(d).
"FACILITY" shall mean either the General Revolving Facility or the Swing
Line Revolving Facility, or both, if the context so requires.
"FACILITY FEE" shall have the meaning provided in section 4.1(a).
7
"FACING FEE" shall have the meaning provided in section 4.1(c).
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"FEES" shall mean all amounts payable pursuant to, or referred to in,
section 4.1.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary (i) which is not
incorporated in the United States and substantially all of whose assets and
properties are located, or substantially all of whose business is carried on,
outside the United States, or (ii) substantially all of whose assets consist of
Subsidiaries that are Foreign Subsidiaries as defined in clause (i) of this
definition.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect from time to time; it being understood and agreed
that determinations in accordance with GAAP for purposes of section 9, including
defined terms as used therein, are subject (to the extent provided therein) to
sections 1.3 and 12.7(a).
"GENERAL REVOLVING FACILITY" shall mean the Facility evidenced by the Total
General Revolving Commitment.
"GENERAL REVOLVING FACILITY PERCENTAGE" shall mean at any time for any
Lender with a General Revolving Commitment, the percentage obtained by dividing
such Lender's General Revolving Commitment by the Total General Revolving
Commitment, PROVIDED, that if the Total General Revolving Commitment has been
terminated, the General Revolving Facility Percentage for each Lender shall be
determined by dividing such Lender's General Revolving Commitment immediately
prior to such termination by the Total General Revolving Commitment immediately
prior to such termination.
"GENERAL REVOLVING LOAN" shall have the meaning provided in section 2.1(a).
"GENERAL REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
amount, if any, set forth opposite such Lender's name in Annex I as its "General
Revolving Commitment" as the same may be reduced from time to time pursuant to
section 4.2, adjusted from time to time as a result of assignments to or from
such Lender pursuant to section 12.4(b), or terminated pursuant to section 4.2,
4.3 or 10.2.
"GENERAL REVOLVING NOTE" shall have the meaning provided in section 2.6(a).
"GUARANTY OBLIGATIONS" shall mean as to any person (without duplication)
any obligation of such person guaranteeing any Indebtedness ("PRIMARY
INDEBTEDNESS") of any other person (the "PRIMARY OBLIGOR") in any manner,
whether directly or indirectly, including, without limitation, any obligation of
such person, whether or not contingent, (a) to purchase any such primary
Indebtedness or any property constituting direct or indirect security therefor,
(b) to advance or supply funds (i) for the purchase or payment of any such
primary Indebtedness or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary Indebtedness of the
ability of the primary obligor to make payment of such primary Indebtedness, or
(d) otherwise to assure or hold harmless the owner of such primary Indebtedness
against loss in respect thereof, PROVIDED, HOWEVER, that the term Guaranty
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary Indebtedness in respect of which such Guaranty Obligation
is
8
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such person is required to perform
thereunder) as determined by such person in good faith.
"HEDGE AGREEMENT" shall mean (i) any interest rate swap agreement, any
interest rate cap agreement, any interest rate collar agreement or other similar
agreement or arrangement designed to protect against fluctuations in interest
rates, and (ii) any currency swap agreement, forward currency purchase agreement
or similar agreement or arrangement designed to protect against fluctuations in
currency exchange rates.
"HAZARDOUS MATERIALS" shall mean (i) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (ii) any chemicals, materials or substances defined as or
included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "restricted hazardous materials", "extremely hazardous
wastes", "restrictive hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants", or words of similar meaning and regulatory
effect under any applicable Environmental Law.
"INDEBTEDNESS" of any person shall mean without duplication:
(i) all indebtedness of such person for borrowed money;
(ii) all bonds, notes, debentures and similar debt securities of
such person;
(iii) the deferred purchase price of capital assets or services
which in accordance with GAAP would be shown on the liability side of the
balance sheet of such person;
(iv) the face amount of all letters of credit issued for the
account of such person and, without duplication, all drafts drawn
thereunder;
(v) all obligations, contingent or otherwise, of such person in
respect of bankers' acceptances;
(vi) all Indebtedness of a second person secured by any Lien on any
property owned by such first person, whether or not such indebtedness has
been assumed;
(vii) all Capitalized Lease Obligations of such person;
(viii) the present value, determined on the basis of the implicit
interest rate, of all basic rental obligations under all "synthetic" leases
(I.E. leases accounted for by the lessee as operating leases under which
the lessee is the "owner" of the leased property for Federal income tax
purposes);
(ix) all obligations of such person to pay a specified purchase
price for goods or services whether or not delivered or accepted, I.E.,
take-or-pay and similar obligations;
(x) all net obligations of such person under Hedge Agreements;
(xi) the full outstanding balance of trade receivables, notes or
other instruments sold with full recourse (and the portion thereof subject
to potential recourse, if sold with limited recourse), other than in any
such case any thereof sold solely for purposes of collection of delinquent
accounts;
(xii) the stated value, or liquidation value if higher, of all
Redeemable Stock of such person; and
(xiii) all Guaranty Obligations of such person;
9
PROVIDED that (x) neither trade payables nor other similar accrued expenses, in
each case arising in the ordinary course of business, nor obligations in respect
of insurance policies or performance or surety bonds which themselves are not
guarantees of Indebtedness (nor drafts, acceptances or similar instruments
evidencing the same nor obligations in respect of letters of credit supporting
the payment of the same), shall constitute Indebtedness; and (y) the
Indebtedness of any person shall in any event include (without duplication) the
Indebtedness of any other entity (including any general partnership in which
such person is a general partner) to the extent such person is liable thereon as
a result of such person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide expressly
that such person is not liable thereon.
"INTEREST PERIOD" with respect to any Eurocurrency Loan shall mean the
interest period applicable thereto, as determined pursuant to section 2.9.
"LEASEHOLDS" of any person means all the right, title and interest of such
person as lessee or licensee in, to and under leases or licenses of land,
improvements and/or fixtures.
"LENDER" shall have the meaning provided in the first paragraph of this
Agreement.
"LENDER DEFAULT" shall mean (i) the refusal (which has not been retracted)
of a Lender in violation of the requirements of this Agreement to make available
its portion of any incurrence of Loans or to fund its portion of any
unreimbursed payment under section 3.4(c) or (ii) a Lender having notified the
Administrative Agent and/or the Borrower that it does not intend to comply with
the obligations under section 2.1 and/or section 3.4(c), in the case of either
(i) or (ii) as a result of the appointment of a receiver or conservator with
respect to such Lender at the direction or request of any regulatory agency or
authority.
"LENDER REGISTER" shall have the meaning provided in section 12.16.
"LETTER OF CREDIT" shall have the meaning provided in section 3.1(a).
"LETTER OF CREDIT DOCUMENTS" shall have the meaning specified in section
3.2(a).
"LETTER OF CREDIT FEE" shall have the meaning provided in section 4.1(b).
"LETTER OF CREDIT ISSUER" shall mean (i) in respect of each Existing Letter
of Credit, the Lender that has issued same as of the Effective Date; and/or (ii)
any other Lender that is requested, and agrees, to so act by the Borrower, and
is approved by the Administrative Agent and the Required Lenders; PROVIDED, that
unless otherwise agreed by the Borrower and NCB, NCB will act as the Letter of
Credit Issuer for Letters of Credit issued after the Effective Date for any of
the purposes contemplated by section 3.1(a).
"LETTER OF CREDIT OBLIGOR" shall have the meaning provided in section
3.1(a).
"LETTER OF CREDIT OUTSTANDINGS" shall mean, at anytime, the sum, without
duplication, of (i) the aggregate Stated Amount of all outstanding Letters of
Credit and (ii) the aggregate amount of all Unpaid Drawings.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in section
3.2(a).
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement or any lease
in the nature thereof).
"LOAN" shall have the meaning provided in section 2.1. As provided herein,
(i) Loans under the General Revolving Facility are General Revolving Loans, and
General Revolving Loans may be Eurocurrency Loans or Prime Rate Loans, which are
the only Types of General Revolving Loans which can be outstanding hereunder;
and (ii) Loans under the Swing Line Revolving Facility are Swing Line Revolving
Loans, and Swing Line Revolving Loans
10
may be Money Market Rate Loans or Prime Rate Loans, which are the only Types of
Swing Line Revolving Loans which can be outstanding hereunder.
"MARGIN STOCK" shall have the meaning provided in Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the
business, operations, property, assets, liabilities or financial condition of,
(i) when used with reference to the Borrower or any of its Subsidiaries, the
Borrower and its Subsidiaries, taken as a whole, or (ii) when used with
reference to any other person, such person and its Subsidiaries, taken as a
whole, as the case may be.
"MATERIAL SUBSIDIARY" shall mean, at any time, with reference to any
person, any Subsidiary of such person (i) that has assets at such time
comprising 5% or more of the consolidated assets of such person and its
Subsidiaries, or (ii) whose operations in the current fiscal year are expected
to, or whose operations in the most recent fiscal year did (or would have if
such person had been a Subsidiary for such entire fiscal year), represent 5% or
more of the consolidated earnings before interest, taxes, depreciation and
amortization of such person and its Subsidiaries for such fiscal year.
"MATURITY DATE" shall mean July 31, 2003, unless earlier terminated.
"MINIMUM BORROWING AMOUNT" shall mean:
(i) for General Revolving Loans which are Prime Rate Loans,
$1,000,000, with minimum increments thereafter of $500,000;
(ii) for General Revolving Loans which are Eurocurrency Loans
denominated in Dollars, $1,000,000, with minimum increments thereafter of
$500,000;
(iii) for General Revolving Loans which are Eurocurrency Loans
denominated in an Alternative Currency, the substantial equivalent in such
Alternative Currency of $1,000,000, with minimum increments thereafter of
the substantial equivalent of $500,000 in such Alternative Currency); and
(iv) for Swing Line Revolving Loans, $100,000, with minimum
increments thereafter of $50,000.
"MONEY MARKET RATE LOANS" shall mean Swing Line Revolving Loans,
denominated in U.S. Dollars, bearing interest at a Quoted Rate.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan, as defined in section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions or has within any of the preceding
three plan years made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" shall mean an employee benefit plan, other than a
Multiemployer Plan, to which the Borrower or any ERISA Affiliate, and one or
more employers other than the Borrower or an ERISA Affiliate, is making or
accruing an obligation to make contributions or, in the event that any such plan
has been terminated, to which the Borrower or an ERISA Affiliate made or accrued
an obligation to make contributions during any of the five plan years preceding
the date of termination of such plan.
"NCB" shall mean National City Bank, a national banking association,
together with its successors and assigns.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended.
11
"NON-DEFAULTING LENDER" shall mean each Lender other than a Defaulting
Lender.
"NOTE" shall mean a General Revolving Note or a Swing Line Revolving Note,
as the case may be.
"NOTICE OF BORROWING" shall have the meaning provided in section 2.3(a).
"NOTICE OF CONVERSION" shall have the meaning provided in section 2.7(a).
"NOTICE OFFICE" shall mean the office of the Administrative Agent at
National City Center, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President (telephone: (▇▇▇) ▇▇▇-▇▇▇▇; facsimile: (216) 575-
9396), or such other office, located in a city in the United States Eastern Time
Zone, as the Administrative Agent may designate to the Borrower from time to
time.
"NOTICE OF REDENOMINATION" shall have the meaning provided in section
2.7(b).
"NOTICE OF SWING LINE REFUNDING" shall have the meaning provided in section
2.5(a).
"OBLIGATIONS" shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing by the
Borrower or any other Credit Party to the Administrative Agent or any Lender
pursuant to the terms of this Agreement or any other Credit Document.
"PARTICIPANT" shall have the meaning provided in section 3.4(a).
"PAYMENT OFFICE" shall mean (i) in the case of all payments to be made in
Dollars, the office of the Administrative Agent at National City Center, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Money
Desk Manager (telephone: (▇▇▇) ▇▇▇-▇▇▇▇; facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), or such
other office, located in a city in the United States Eastern Time Zone, as the
Administrative Agent may designate to the Borrower from time to time, and (ii)
in the case of all payments to be made in an Alternative Currency, such office
of the Administrative Agent, one of its Affiliate banks or branches, or such
correspondent bank, as is specified in Annex I or as the Administrative Agent
may designate to the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to section 4002 of ERISA, or any successor thereto.
"PERMITTED ACQUISITION" shall mean and include any Acquisition as to which
all of the following conditions are satisfied:
(i) such Acquisition involves a line or lines of business which is
complementary to the lines of business in which the Borrower and its
Subsidiaries, considered as an entirety, UNLESS the Required Lenders
specifically approve or consent to such Acquisition in writing;
(ii) such Acquisition is not actively opposed by the Board of
Directors (or similar governing body) of the selling person or the person
whose equity interests are to be acquired, UNLESS all of the Lenders
specifically approve or consent to such Acquisition in writing;
(iii) the Borrower would, after giving effect to such Acquisition, be
in compliance, on a PRO FORMA basis, with the financial covenants
contained in sections 9.8 and 9.9; and
(iv) if the aggregate consideration for such Acquisition, including
the principal amount of any assumed Indebtedness and (without duplication)
any Indebtedness of any acquired person or persons, exceeds $50,000,000, at
least 10 Business Days prior to the completion of such transaction the
Borrower shall have delivered to the Lenders a certificate of a responsible
financial or accounting officer of the Borrower demonstrating, in
reasonable detail, the computation of the ratios referred to in sections
9.8 and 9.9 on a PRO
12
FORMA basis, such PRO FORMA ratios being determined as if (x) such
Acquisition had been completed at the beginning of the most recent period
of four consecutive fiscal quarters of the Borrower for which financial
information for the Borrower and the business or person to be acquired, is
available and has been delivered to the Lenders at least 10 Business Days
prior to the completion of such transaction (which shall in the case of the
acquired business include audited financial statements for the most recent
fiscal year, unless the same are unavailable and unaudited financial
statements are acceptable to the Required Lenders), and (y) any such
Indebtedness, or other Indebtedness incurred to finance such Acquisition,
had been outstanding for such period;
PROVIDED, that the term Permitted Acquisition specifically excludes any loans,
advances or minority investments otherwise permitted pursuant to section 9.5.
"PERMITTED LIENS" shall mean Liens described in section 9.3.
"PERSON" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" shall mean any multiemployer or single-employer plan as defined in
section 4001 of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribute by) the Borrower or a Subsidiary of the
Borrower or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which the Borrower, or a Subsidiary of
the Borrower or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"PRIME RATE" shall mean, for any period, 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 greater of (i) the rate of interest established by NCB in
Cleveland, Ohio, from time to time, as its prime rate, whether or not publicly
announced, which interest rate may or may not be the lowest rate charged by it
for commercial loans or other extensions of credit; and (ii) the Federal Funds
Effective Rate in effect from time to time PLUS 1/2 of 1% per annum.
"PRIME RATE LOAN" shall mean each Loan, denominated in U. S. Dollars,
bearing interest at the rates provided in section 2.8(a).
"PROHIBITED TRANSACTION" shall mean a transaction with respect to a Plan
that is prohibited under section 4975 of the Code or section 406 of ERISA and
not exempt under section 4975 of the Code or section 408 of ERISA.
"QUOTED RATE" shall have the meaning provided in section 2.3(c).
"RCRA" shall mean the Resource Conservation and Recovery Act, as the same
may be amended from time to time, 42 U.S.C. (S) 6901 ET SEQ.
"REAL PROPERTY" of any person shall mean all of the right, title and
interest of such person in and to land, improvements and fixtures, including
Leaseholds.
"REDEEMABLE STOCK" shall mean with respect to any person any capital stock
or similar equity interests of such person that (i) is by its terms subject to
mandatory redemption, in whole or in part, pursuant to a sinking fund, scheduled
redemption or similar provisions, at any time prior to the Maturity Date; or
(ii) otherwise is required to be repurchased or retired on a scheduled date or
dates, upon the occurrence of any event or circumstance, at the option of the
holder or holders thereof, or otherwise, at any time prior to the Maturity Date,
other than any such repurchase or retirement occasioned by a "change of control"
or similar event.
"REFERENCE BANKS" shall mean (i) NCB and (ii) any other Lender or Lenders
selected as a Reference Bank by the Administrative Agent and the Required
Lenders, PROVIDED, that if any of such Reference Banks is no longer
13
a Lender, such other Lender or Lenders as may be selected by the Administrative
Agent acting on instructions from the Required Lenders.
"REGULATION D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"REGULATION U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
"REPORTABLE EVENT" shall mean an event described in section 4043 of ERISA
or the regulations thereunder with respect to a Plan, other than those events as
to which the notice requirement is waived under subsections .22, .23, .25, .27,
.28, .29, .30, .31, .32, .34, .35, .62, .63, .64, .65 or .67 of PBGC Regulation
section 4043.
"REQUIRED LENDERS" shall mean Non-Defaulting Lenders whose outstanding
General Revolving Loans and Unutilized General Revolving Commitments constitute
at least 66+2/3% of the sum of the total outstanding General Revolving Loans and
Unutilized General Revolving Commitments of Non-Defaulting Lenders (PROVIDED
that, for purposes hereof, neither the Borrower, nor any of its Affiliates,
shall be included in (i) the Lenders holding such amount of the General
Revolving Loans or having such amount of the Unutilized General Revolving
Commitments, or (ii) determining the aggregate unpaid principal amount of the
General Revolving Loans or Unutilized General Revolving Commitments).
"SALE AND LEASE-BACK TRANSACTION" shall mean any arrangement with any
person providing for the leasing by the Borrower or any Subsidiary of the
Borrower of any property (except for temporary leases for a term, including any
renewal thereof, of not more than one year and except for leases between the
Borrower and a Subsidiary or between Subsidiaries), which property has been or
is to be sold or transferred by the Borrower or such Subsidiary to such person.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., and its successors.
"SEC" shall mean the United States Securities and Exchange Commission.
"SEC REGULATION D" shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time to
time.
"SECTION 5.4(B)(II) CERTIFICATE" shall have the meaning provided in section
5.4(b)(ii).
"STANDARD PERMITTED LIENS" shall mean the following:
(i) Liens for taxes not yet delinquent or Liens for taxes being
contested in good faith and by appropriate proceedings for which adequate
reserves (in the good faith judgment of the management of the Borrower)
have been established;
(ii) Liens in respect of property or assets imposed by law which
were incurred in the ordinary course of business, such as carriers',
warehousemen's, materialmen's and mechanics' Liens and other similar Liens
arising in the ordinary course of business, which do not in the aggregate
materially detract from the value of such property or assets or materially
impair the use thereof in the operation of the business of the Borrower or
any Subsidiary;
(iii) Liens created by this Agreement or the other Credit Documents;
(iv) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under section 10.1(f);
14
(v) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security; and mechanic's Liens, carrier's Liens, and other Liens to secure
the performance of tenders, statutory obligations, contract bids,
government contracts, performance and return-of-money bonds and other
similar obligations, incurred in the ordinary course of business (exclusive
of obligations in respect of the payment for borrowed money) whether
pursuant to statutory requirements, common law or consensual arrangements;
(vi) Leases or subleases granted to others not interfering in any
material respect with the business of the Borrower or any of its
Subsidiaries and any interest or title of a lessor under any lease not in
violation of this Agreement;
(vii) easements, rights-of-way, zoning or deed restrictions, minor
defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries
considered as an entirety; and
(viii) Liens arising from financing statements regarding property
subject to leases not in violation of the requirements of this Agreement,
PROVIDED that such Liens are only in respect of the property subject to,
and secure only, the respective lease (and any other lease with the same or
an affiliated lessor).
"STATED AMOUNT" of each Letter of Credit shall mean the maximum available
to be drawn thereunder (regardless of whether any conditions or other
requirements for drawing could then be met).
"SUBSIDIARY" of any person shall mean and include (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"SUBORDINATED INDEBTEDNESS" shall mean any Indebtedness which has been
subordinated to the Obligations in such manner and to such extent as the
Required Lenders may require.
"SWING LINE COMMITMENT" shall mean, with respect to the Swing Line Lender,
the amount set forth opposite such Lender's name in Annex I as its "Swing Line
Commitment" as the same may be reduced from time to time pursuant to section
4.2, adjusted from time to time as a result of assignments to or from such
Lender pursuant to section 12.4(b), or terminated pursuant to section 4.2, 4.3
or 10.2.
"SWING LINE LENDER" shall mean the Lender which has the Swing Line
Revolving Commitment.
"SWING LINE REVOLVING FACILITY" shall mean the credit facility evidenced by
the Swing Line Revolving Commitment.
"SWING LINE PARTICIPATION AMOUNT" shall have the meaning provided in
section 2.5(b).
"SWING LINE REVOLVING LOAN" shall have the meaning provided in section
2.1(b).
"SWING LINE REVOLVING NOTE" shall have the meaning provided in section
2.5(a).
"TESTING PERIOD" shall mean for any determination a single period
consisting of the four consecutive fiscal quarters of the Borrower then last
ended (whether or not such quarters are all within the same fiscal year).
15
"TOTAL CAPITALIZATION" shall mean the sum of Consolidated Total
Indebtedness and Consolidated Net Worth.
"TOTAL GENERAL REVOLVING COMMITMENT" shall mean the sum of the General
Revolving Commitments of the Lenders.
"TYPE" shall mean any type of Loan determined with respect to the interest
option applicable thereto, I.E., (i) in the case of General Revolving Loans, a
Prime Rate Loan or a Eurocurrency Loan, and (ii) in the case of Swing Line
Revolving Loans, a Prime Rate Loan or a Money Market Rate Loan.
"UCC" shall mean the Uniform Commercial Code.
"UNFUNDED CURRENT LIABILITY" of any Plan shall mean the amount, if any, by
which the actuarial present value of the accumulated plan benefits under the
Plan as of the close of its most recent plan year exceeds the fair market value
of the assets allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 87, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of the Plan.
"UNITED STATES" and "U.S." each means United States of America.
"UNPAID DRAWING" shall have the meaning provided in section 3.3(a).
"UNUTILIZED TOTAL GENERAL REVOLVING COMMITMENT" shall mean, at any time,
the excess of (i) the Total General Revolving Commitment at such time over (ii)
the sum of (x) the aggregate principal amounts of all General Revolving Loans
then outstanding plus (y) the aggregate Letter of Credit Outstandings at such
time.
"UNUTILIZED SWING LINE REVOLVING COMMITMENT" shall mean, at any time, the
excess of (i) the Swing Line Revolving Commitment at such time over (ii) the
aggregate principal amount of all Swing Line Revolving Loans then outstanding.
"WHOLLY-OWNED SUBSIDIARY" shall mean each Subsidiary of the Borrower at
least 95% of whose capital stock, equity interests and partnership interests,
other than director's qualifying shares or similar interests, are owned directly
or indirectly by the Borrower.
"WRITTEN", "WRITTEN" or "IN WRITING" shall mean any form of written
communication or a communication by means of telex, facsimile transmission,
telegraph or cable.
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".
1.3. ACCOUNTING TERMS. Except as otherwise specifically provided herein,
all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; PROVIDED that, if the Borrower
notifies the Administrative Agent that the Borrower requests an amendment to any
provision of section 8 or 9 hereof to eliminate the effect of any change
occurring after the Effective Date in GAAP or in the application thereof to such
provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any such provision hereof for such
purposes), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance with the requirements of this
Agreement.
1.4. CURRENCY EQUIVALENTS. For purposes of this Agreement, except as
otherwise specified herein, (i) the equivalent in Dollars of any Alternative
Currency shall be determined by using the quoted spot rate at which the
Administrative Agent offers to exchange Dollars for such Alternative Currency at
its Payment Office at 9:00 A.M.
16
(local time at the Payment Office) two Business Days prior to the date on which
such equivalent is to be determined, (ii) the equivalent in any Alternative
Currency of any other Alternative Currency shall be determined by using the
quoted spot rate at which the Administrative Agent's Payment Office offers to
exchange such Alternative Currency for the equivalent in Dollars of such other
Alternative Currency at such Payment Office at 9:00 A.M. (local time at the
Payment Office) two Business Days prior to the date on which such equivalent is
to be determined, and (iii) the equivalent in any Alternative Currency of
Dollars shall be determined by using the quoted spot rate at which the
Administrative Agent's Payment Office offers to exchange such Alternative
Currency for Dollars at the Payment Office at 9:00 A.M. (local time at the
Payment Office) two Business Days prior to the date on which such equivalent is
to be determined; PROVIDED, that (A) the equivalent in Dollars of each
Eurocurrency Loan made in an Alternative Currency shall be recalculated
hereunder on each date that it shall be necessary (or the Administrative Agent
shall elect) to determine the unused portion of each Lender's General Revolving
Commitment, or any or all Loan or Loans outstanding on such date; (B) the
equivalent in Dollars of any Unpaid Drawing in respect of any Letter of Credit
denominated in an Alternative Currency shall be determined at the time the
drawing under such Letter of Credit was paid or disbursed by the applicable
Letter of Credit Issuer; (C) for purposes of sections 2.1(a), 3.1(b) and 5.2,
the equivalent in Dollars of the Stated Amount of any Letter of Credit
denominated in an Alternative Currency shall be calculated (x) on the date of
the issuance of the respective Letter of Credit, (y) on the first Business Day
of each calendar month thereafter and (z) in any other case where the same is
required or permitted to be calculated, on such other day as the Administrative
Agent may, in its sole discretion, consider appropriate; and (D) for purposes of
sections 4.1(b) and (c), the equivalent in Dollars of the Stated Amount of any
Letter of Credit denominated in an Alternative Currency shall be calculated on
the first day of each calendar month in the quarterly period in which the
respective payment is due pursuant to said sections.
SECTION 2. AMOUNT AND TERMS OF LOANS.
2.1. COMMITMENTS FOR LOANS. Subject to and upon the terms and conditions
herein set forth, each Lender severally agrees to make a loan or loans (each a
"LOAN" and, collectively, the "LOANS") to the Borrower, which Loans shall be
drawn, to the extent such Lender has a commitment under a Facility for the
Borrower, under the applicable Facility, as set forth below:
(A GENERAL REVOLVING FACILITY. Loans to the Borrower under the
General Revolving Facility (each a "GENERAL REVOLVING LOAN" and,
collectively, the "GENERAL REVOLVING LOANS"): (i) may be made at any time
and from time to time on and after the Closing Date and prior to the
Maturity Date; (ii) except as otherwise provided, may, at the option of the
Borrower, be incurred and maintained as, or converted into, General
Revolving Loans which are Prime Rate Loans denominated in Dollars, or
Eurocurrency Loans denominated in Dollars or in an Alternative Currency,
PROVIDED that all General Revolving Loans made as part of the same
Borrowing shall, unless otherwise specifically provided herein, consist of
General Revolving Loans of the same currency and Type; (iii) may not be
incurred in an Alternative Currency if after giving effect thereto the
equivalent in Dollars of the aggregate outstanding principal amount of
General Revolving Loans denominated in an Alternative Currency would exceed
$20,000,000 (the "ALTERNATIVE CURRENCY SUBLIMIT"); (iv) may be repaid or
prepaid and reborrowed in accordance with the provisions hereof; (v) may
only be made if after giving effect thereto the Unutilized Total General
Revolving Commitment exceeds the outstanding Swing Line Revolving Loans;
and (vi) shall not exceed for any Lender at any time outstanding that
aggregate principal amount which, when added to the product at such time of
(A0 such Lender's General Revolving Facility Percentage, TIMES (B) the
aggregate Letter of Credit Outstandings, equals the General Revolving
Commitment of such Lender at such time.
(B SWING LINE REVOLVING FACILITY. Loans to the Borrower under the
Swing Line Revolving Facility (each a "SWING LINE REVOLVING LOAN" and,
collectively, the "SWING LINE REVOLVING LOANS") (i) shall be made only by
the Swing Line Lender, (ii) may be made at any time and from time to time
on and after the Closing Date and prior to the Maturity Date; (iii) shall
be made only in U.S. Dollars; (iv) shall have a maturity of 30 days or
less; (v) shall be incurred only for working capital requirements of the
Borrower and its Subsidiaries; (vi) may only be incurred as Prime Rate
Loans or as Money Market Rate Loans; (vii) may be repaid or prepaid and
reborrowed in accordance with the provisions hereof; (viii) may only be
made
17
if after giving effect thereto the Unutilized Total General Revolving
Commitment exceeds the outstanding Swing Line Revolving Loans; and (ix)
shall not exceed for the Swing Line Lender at any time outstanding its
Swing Line Commitment at such time.
2.2. MINIMUM BORROWING AMOUNTS, ETC.; PRO RATA BORROWINGS. (a) The
aggregate principal amount of each Borrowing by the Borrower under a Facility
shall not be less than the Minimum Borrowing Amount for such Borrowing. More
than one Borrowing may be incurred by the Borrower on any day, PROVIDED that if
there are two or more Borrowings on a single day under the General Revolving
Facility which consist of Eurocurrency Loans denominated in the same currency,
each such Borrowing shall have a different initial Interest Period. There shall
be no more than 6 Borrowings comprised of Eurocurrency Loans outstanding at any
time and only one Borrowing may be made on any day under the Swing Line
Revolving Facility.
(b All Borrowings of Loans under a Facility shall be made by the Lenders
having Commitments under such Facility PRO RATA on the basis of their respective
Commitments under such Facility. It is understood that no Lender shall be
responsible for any default by any other Lender in its obligation to make Loans
hereunder and that each Lender shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to
fulfill its Commitments hereunder.
2.3. BORROWING PROCEDURES. (A NOTICE OF BORROWING. Whenever the
Borrower desires to incur Loans, the Borrower shall give the Administrative
Agent at its Notice Office,
(A) BORROWINGS UNDER THE GENERAL REVOLVING FACILITY OF EUROCURRENCY
LOANS DENOMINATED IN DOLLARS: in the case of any Borrowing under the
General Revolving Facility of Eurocurrency Loans denominated in Dollars to
be made hereunder, prior to 1:00 P.M. (local time at its Notice Office), at
least three Business Days' prior written or telephonic notice thereof (in
the case of telephonic notice, promptly confirmed in writing if so
requested by the Administrative Agent),
(B) BORROWINGS UNDER THE GENERAL REVOLVING FACILITY OF EUROCURRENCY
LOANS DENOMINATED IN AN ALTERNATIVE CURRENCY: in the case of any Borrowing
under the General Revolving Facility of Eurocurrency Loans denominated in
an Alternative Currency to be made hereunder, prior to 1:00 P.M. (local
time at its Notice Office), at least five Business Days' prior written or
telephonic notice thereof (in the case of telephonic notice, promptly
confirmed in writing if so requested by the Administrative Agent),
(C) BORROWINGS UNDER ANY FACILITY OF PRIME RATE LOANS: in the case of
any Borrowing under any Facility of Prime Rate Loans to be made hereunder,
prior to 1:00 P.M. (local time at its Notice Office) on the proposed date
thereof written or telephonic notice thereof (in the case of telephonic
notice, promptly confirmed in writing if so requested by the Administrative
Agent), or
(D) BORROWINGS UNDER THE SWING LINE FACILITY OF MONEY MARKET RATE
LOANS: in the case of any Borrowing under the Swing Line Revolving
Facility of Money Market Rate Loans to be made hereunder, if the
Administrative Agent shall have furnished the Borrower with a Quoted Rate
therefor, prior to 1:00 P.M. (local time at its Notice Office) on the
proposed date thereof (which shall be within such period as the
Administrative Agent shall have specified for such Quoted Rate) written or
telephonic notice thereof (in the case of telephonic notice, promptly
confirmed in writing if so requested by the Administrative Agent).
Each such notice (each such notice, a "NOTICE OF BORROWING") shall (if requested
by the Administrative Agent to be confirmed in writing), be substantially in the
form of Exhibit B-1, and in any event shall be irrevocable and shall specify:
(i) the Facility under which the Borrowing is to be incurred, (ii) the aggregate
principal amount of the Loans to be made pursuant to such Borrowing; (iii) the
date of the Borrowing (which shall be a Business Day); (iv) whether the
Borrowing shall consist of Prime Rate Loans, Eurocurrency Loans or Money Market
Rate Loans; (v) if the requested Borrowing consists of Eurocurrency Loans, the
Interest Period to be initially applicable thereto; (vi) in the case of a
requested Borrowing consisting of Loans which are Eurocurrency Loans, the
currency, if other than Dollars, in which such Loans are requested; and (vii) if
the Borrowing consists of Swing Line Revolving Loans, the maturity
18
date thereof (which shall not be more than 30 days), and if such Swing Line
Revolving Loans are Money Market Rate Loans, the Quoted Rate therefor. If the
Borrower fails to specify in a Notice of Borrowing the maturity date of any
Swing Line Revolving Loans, such maturity date shall be deemed to be 30 days.
The Administrative Agent shall promptly give each Lender which has a Commitment
under any applicable Facility written notice (or telephonic notice promptly
confirmed in writing) of each proposed Borrowing under the applicable Facility,
of such Lender's proportionate share thereof and of the other matters covered by
the Notice of Borrowing relating thereto.
(B CONDITIONS TO BORROWING OF EUROCURRENCY LOANS DENOMINATED IN AN
ALTERNATIVE CURRENCY. In the case of a proposed Borrowing comprised of General
Revolving Loans which are Eurocurrency Loans denominated in an Alternative
Currency, the obligation of each affected Lender to make its Eurocurrency Loan
in the requested Alternative Currency as part of such Borrowing is subject to:
(A) if such requested Alternative Currency is an Alternative Currency
described in clause (i) or (ii) of the definition of the term Alternative
Currency, the confirmation by the Administrative Agent to the Borrower not
later than the fourth Business Day before the requested date of such
Borrowing that such Alternative Currency is readily and freely transferable
and convertible into Dollars, or
(B) if such requested Alternative Currency is not an Alternative
Currency described in clause (i) or (ii) of the definition of the term
Alternative Currency, such requested Alternative Currency shall be
acceptable to such Lender (which acceptability shall be presumed if such
Lender fails to notify the Administrative Agent in writing not later than
the third Business Day before the requested date of such Borrowing that
such Alternative Currency is not acceptable to such Lender (any such notice
of unacceptability of an Alternative Currency shall be notified immediately
by the Administrative Agent to the Borrower.
If the Administrative Agent shall not have provided the confirmation referred to
in clause (A) above, or any affected Lender shall have so notified the
Administrative Agent that a particular Alternative Currency is not acceptable to
it as provided in clause (B) above, the Administrative Agent shall promptly
notify the Borrower and each affected Lender thereof, whereupon the Borrower
may, by notice to the Administrative Agent not later than the third Business Day
before the requested date of such Borrowing, withdraw the Notice of Borrowing
relating to such requested Borrowing. If the Borrower does so withdraw such
Notice of Borrowing, the Borrowing requested in such Notice of Borrowing shall
not occur and the Administrative Agent shall promptly so notify each affected
Lender. If the Borrower does not so withdraw such Notice of Borrowing, the
Administrative Agent shall promptly so notify each affected Lender and such
Notice of Borrowing shall be deemed to be a Notice of Borrowing which requests a
Borrowing of General Revolving Loans comprised of Eurocurrency Loans in an
aggregate amount in Dollars equivalent, on the date the Administrative Agent so
notifies each affected Lender, to the amount of the originally requested
Borrowing in an Alternative Currency; and in such notice by the Administrative
Agent to each affected Lender the Administrative Agent shall state such
aggregate equivalent amount of such Borrowing in Dollars and such Lender's
ratable portion of such Borrowing.
(C BORROWINGS OF MONEY MARKET RATE LOANS. Whenever the Borrower proposes
to submit a Notice of Borrowing with respect to Swing Line Revolving Loans which
will be Money Market Rate Loans, it will prior to submitting such Notice of
Borrowing notify the Administrative Agent of its intention and request the
Administrative Agent to quote a fixed or floating interest rate (the "QUOTED
RATE") to be applicable thereto prior to the proposed maturity thereof. The
Administrative Agent will immediately so notify the Swing Line Lender, and if
the Swing Line Lender is agreeable to a particular interest rate for the
proposed maturity of such Money Market Rate Loans if such Loans are made on or
prior to a specified date, the Administrative Agent shall quote such interest
rate to the Borrower as the Quoted Rate applicable to such proposed Money Market
Rate Loans if made on or before such specified date for a maturity as so
proposed by the Borrower. The Swing Line Lender contemplates that any Quoted
Rate will be a rate of interest which reflects a margin corresponding to (or
greater than) the sum of (x) the Applicable Eurocurrency Margin in effect at the
time of quotation of any Quoted Rate, PLUS (y) the Applicable Facility Fee Rate
in effect at such time, over the then prevailing Federal Funds Effective Rate,
commercial paper, call money, overnite repurchase or other commonly quoted
interest rate, or the Swing Line Lender's average cost of short term funds, in
19
each case as selected by the Swing Line Lender. Nothing herein shall be deemed
to permit any Lender other than the Swing Line Lender any right of approval with
respect to a Quoted Rate.
(D ACTIONS BY ADMINISTRATIVE AGENT ON TELEPHONIC NOTICE. Without in any
way limiting the obligation of the Borrower (on behalf of any applicable
Borrower) to confirm in writing any telephonic notice permitted to be given
hereunder, the Administrative Agent may act prior to receipt of written
confirmation without liability upon the basis of such telephonic notice believed
by the Administrative Agent in good faith to be from an Authorized Officer of
the Borrower entitled to give telephonic notices under this Agreement on behalf
of any applicable Borrower. In each such case, the Administrative Agent's record
of the terms of such telephonic notice shall be conclusive absent manifest
error.
2.4. DISBURSEMENT OF FUNDS FROM BORROWINGS. (a) No later than 2:00 P.M.
(local time at the Payment Office of the Administrative Agent) on the date
specified in each Notice of Borrowing relating to Eurocurrency Loans, and no
later than 2:00 P.M. (local time at the Payment Office of the Administrative
Agent) on the date specified in each Notice of Borrowing relating to any other
Loans, each Lender with a Commitment under the applicable Facility relating to
such Loans will make available its PRO RATA share, if any, of each Borrowing
under such Facility requested to be made on such date in the manner provided
below. All amounts relating to any Borrowing by the Borrower shall be made
available to the Administrative Agent in U.S. dollars or the applicable
Alternative Currency and immediately available funds at the Administrative
Agent's Payment Office and the Administrative Agent promptly will make available
to the Borrower by depositing to its account at such Payment Office, or at such
other account in another financial institution designated by the Borrower to the
Administrative Agent, the aggregate of the amounts so made available in the
currency and type of funds received. Unless the Administrative Agent shall have
been notified by any Lender prior to the date of a Borrowing that such Lender
does not intend to make available to the Administrative Agent its portion of the
Borrowing or Borrowings to be made on such date, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent on such date of Borrowing, and the Administrative Agent, in reliance upon
such assumption, may (in its sole discretion and without any obligation to do
so) make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender and the Administrative Agent has made available same to the
Borrower, the Administrative Agent shall be entitled to recover such
corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent.
The Administrative Agent shall also be entitled to recover from such Lender or
the Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to the Borrower to the date such corresponding
amount is recovered by the Administrative Agent at a rate per annum equal to (x)
if paid by such Lender, at the overnight Federal Funds Effective Rate, in the
case of any Loan denominated in Dollars, or at the weighted average overnite or
weekend borrowing rate for immediately available and freely transferrable funds
in the applicable Alternative Currency which is offered to the Administrative
Agent in the international markets, in the case of any General Revolving Loan
denominated in an Alternative Currency, or (y) if paid by the Borrower, the then
applicable rate of interest, calculated in accordance with section 2.8, for the
respective Loan (but without any requirement to pay any amounts in respect
thereof pursuant to section 2.11).
(b Nothing herein and no subsequent termination of the Commitments
pursuant to section 4.2 or 4.3 shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder and in existence from time to
time or to prejudice any rights which the Borrower may have against any Lender
as a result of any default by such Lender hereunder.
2.5. REFUNDING OF, OR PARTICIPATION IN, SWING LINE REVOLVING LOANS. (a)
If any Event of Default exists, the Swing Line Lender may, in its sole and
absolute discretion, direct that the Swing Line Revolving Loans owing to it be
refunded by delivering a notice to such effect to the Administrative Agent,
specifying the aggregate principal amount thereof (a "NOTICE OF SWING LINE
REFUNDING"). Promptly upon receipt of a Notice of Swing Line Refunding, the
Administrative Agent shall give notice of the contents thereof to the Lenders
with General Revolving Commitments and, unless an Event of Default specified in
section 10.1(g) in respect of the Borrower has occurred,
20
also to the Borrower. Each such Notice of Swing Line Refunding shall be deemed
to constitute delivery by the Borrower of a Notice of Borrowing requesting
General Revolving Loans consisting of Prime Rate Loans in the amount of the
Swing Line Revolving Loans to which it relates. Each Lender with a General
Revolving Commitment (including the Swing Line Lender, in its capacity as a
Lender) hereby unconditionally agrees (notwithstanding that any of the
conditions specified in section 6.2 hereof or elsewhere in this Agreement shall
not have been satisfied, but subject to the provisions of paragraph (b) below)
to make a General Revolving Loan to the Borrower in an amount equal to such
Lender's General Revolving Facility Percentage of the aggregate amount of the
Swing Line Revolving Loans to which such Notice of Swing Line Refunding relates.
Each such Lender shall make the amount of such General Revolving Loan available
to the Administrative Agent in immediately available funds at the Payment Office
not later than 2:00 P.M. (local time at the Payment Office), if such notice is
received by such Lender prior to 11:00 A.M. (local time at its Domestic Lending
Office), or not later than 2:00 P.M. (local time at the Payment Office) on the
next Business Day, if such notice is received by such Lender after such time.
The proceeds of such General Revolving Loans shall be made immediately available
to the Swing Line Lender and applied by it to repay the principal amount of the
Swing Line Revolving Loans to which such Notice of Swing Line Refunding related.
The Borrower irrevocably and unconditionally agrees that, notwithstanding
anything to the contrary contained in this Agreement, General Revolving Loans
made as herein provided in response to a Notice of Swing Line Refunding shall
constitute General Revolving Loans hereunder consisting of Prime Rate Loans.
(b If prior to the time a General Revolving Loan would otherwise have
been made as provided above as a consequence of a Notice of Swing Line
Refunding, any of the events specified in section 10.1(g) shall have occurred in
respect of the Borrower or one or more of the Lenders with General Revolving
Commitments shall determine that it is legally prohibited from making a General
Revolving Loan under such circumstances, each Lender (other than the Swing Line
Lender), or each Lender (other than the Swing Line Lender) so prohibited, as the
case may be, shall, on the date such General Revolving Loan would have been made
by it (the "PURCHASE DATE"), purchase an undivided participating interest in the
outstanding Swing Line Revolving Loans to which such Notice of Swing Line
Refunding related, in an amount (the "SWING LINE PARTICIPATION AMOUNT") equal to
such Lender's General Revolving Facility Percentage of such Swing Line Revolving
Loans. On the Purchase Date, each such Lender or each such Lender so prohibited,
as the case may be, shall pay to the Swing Line Lender, in immediately available
funds, such Lender's Swing Line Participation Amount, and promptly upon receipt
thereof the Swing Line Lender shall, if requested by such other Lender, deliver
to such Lender a participation certificate, dated the date of the Swing Line
Lender's receipt of the funds from, and evidencing such Lender's participating
interest in such Swing Line Revolving Loans and its Swing Line Participation
Amount in respect thereof. If any amount required to be paid by a Lender to the
Swing Line Lender pursuant to the above provisions in respect of any Swing Line
Participation Amount is not paid on the date such payment is due, such Lender
shall pay to the Swing Line Lender on demand interest on the amount not so paid
at the overnight Federal Funds Effective Rate from the due date until such
amount is paid in full.
(c Whenever, at any time after the Swing Line Lender has received from
any other Lender such Lender's Swing Line Participation Amount, the Swing Line
Lender receives any payment from or on behalf of the Borrower on account of the
related Swing Line Revolving Loans, the Swing Line Lender will promptly
distribute to such Lender its General Revolving Facility Percentage of such
payment on account of its Swing Line Participation Amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Lender's participating interest was outstanding and funded);
PROVIDED, HOWEVER, that in the event such payment received by the Swing Line
Lender is required to be returned, such Lender will return to the Swing Line
Lender any portion thereof previously distributed to it by the Swing Line
Lender.
(d Each Lender's obligation to make General Revolving Loans and/or to
purchase participations in connection with a Notice of Swing Line Refunding
(which shall in all events be within such Lender's Unutilized General Revolving
Commitment, taking into account all outstanding participations in connection
with Swing Line Refundings) shall be subject to the conditions that:
(i such Lender shall have received a Notice of Swing Line Refunding
complying with the provisions hereof, and
21
(ii at the time the Swing Line Revolving Loans which are the subject
of such Notice of Swing Line Refunding were made, the Swing Line Lender had
(x) no knowledge that any Default under section 10.1(a) had occurred and
was continuing, and (y) no actual written notice from another Lender that
an Event of Default had occurred and was continuing,
but otherwise shall be absolute and unconditional, shall be solely for the
benefit of the Swing Line Lender, and shall not be affected by any circumstance,
including, without limitation, (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against any other Lender, any
Credit Party, or any other person, or any Credit Party may have against any
Lender or other person, as the case may be, for any reason whatsoever; (B0 the
occurrence or continuance of a Default or Event of Default; (C) any event or
circumstance involving a Material Adverse Effect upon the Borrower; (D) any
breach of any Credit Document by any party thereto; or (E) any other
circumstance, happening or event, whether or not similar to any of the
foregoing.
2.6. NOTES; LOAN ACCOUNTS. (A FORMS OF NOTES. The Borrower's obligation
to pay the principal of, and interest on, the General Revolving Loans made to it
by each Lender with a General Revolving Commitment shall be evidenced by a
promissory note of such Borrower substantially in the form of Exhibit A-1 (each
a "GENERAL REVOLVING NOTE" and, collectively, the "GENERAL REVOLVING NOTES").
The Borrower's obligation to pay the principal of, and interest on, the Swing
Line Revolving Loans made to it by the Swing Line Lender shall be evidenced by a
promissory note of the Borrower substantially in the form of Exhibit A-2 with
blanks appropriately completed in conformity herewith (the "SWING LINE REVOLVING
NOTE").
(B GENERAL REVOLVING NOTES. The General Revolving Note issued by the
Borrower to a Lender with a General Revolving Commitment shall: (i) be executed
by the Borrower; (ii) be payable to the order of such Lender and be dated on or
prior to the date of any General Revolving Loan evidenced thereby; (iii) be
payable in the principal amount of General Revolving Loans evidenced thereby;
(iv) mature on the Maturity Date; (v) bear interest as provided in section 2.8
in respect of the Prime Rate Loans or Eurocurrency Loans, as the case may be,
evidenced thereby; (vi) be subject to mandatory prepayment as provided in
section 5.2; and (vii) be entitled to the benefits of this Agreement and the
other Credit Documents.
(C SWING LINE REVOLVING NOTE. The Swing Line Revolving Note issued by
the Borrower to the Swing Line Lender shall: (i) be executed by the Borrower;
(ii) be payable to the order of the Swing Line Lender and be dated on or prior
to the date of any Swing Line Revolving Loan evidenced thereby; (iii) be in a
stated principal amount equal to the Swing Line Revolving Commitment of the
Swing Line Lender; (iv) be payable in the principal amount of Swing Line
Revolving Loans evidenced thereby; (v) mature as to any Swing Line Revolving
Loan evidenced thereby on the maturity date, not later than 30 days following
the date such Swing Line Revolving Loan was made, specified in the applicable
Notice of Borrowing; (vi) bear interest as provided in section 2.8 in respect of
the Prime Rate Loans or Money Market Rate Loans, as the case may be, evidenced
thereby; (vii) be subject to mandatory prepayment as provided in section 5.2;
and (viii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(D LOAN ACCOUNTS OF LENDERS. Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(E LOAN ACCOUNTS OF ADMINISTRATIVE AGENT. The Administrative Agent shall
maintain accounts in which it shall record (i) the amount of each Loan made
hereunder, the Type thereof, the particular Facility under which such Loan was
made, and (to the extent applicable) the Interest Period if such Loan is a
Eurodollar Loan, or the Quoted Rate and maturity thereof if such Loan is a Money
Market Rate Loan, (ii) the amount of any principal due and payable or to become
due and payable from the Lender to each Lender hereunder, and (iii) the amount
of any sum received by the Administrative Agent hereunder for the account of the
Lenders and each Lender's share thereof.
(F EFFECT OF LOAN ACCOUNTS, ETC. The entries made in the accounts
maintained pursuant to section 2.6(d) and (e) shall be PRIMA FACIE evidence of
the existence and amounts and amounts of the obligations recorded
22
therein; provided, that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay or prepay the Loans in accordance with the
terms of this Agreement.
(g ENDORSEMENTS OF AMOUNTS ON NOTES PRIOR TO TRANSFER. Each Lender will,
prior to any transfer of any of the Notes issued to it by the Borrower, endorse
on the reverse side thereof or the grid attached thereto the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in any such notation shall not affect the Borrower's obligations in
respect of such Loans.
2.7. VOLUNTARY CONVERSION OF DOLLAR DENOMINATED GENERAL REVOLVING LOANS;
REDENOMINATION OF GENERAL REVOLVING LOANS. (a) The Borrower shall have the
option to convert on any Business Day all or a portion at least equal to the
applicable Minimum Borrowing Amount of the outstanding principal amount of its
General Revolving Loans denominated in Dollars of one Type owing by it pursuant
to the General Revolving Facility into a Borrowing or Borrowings pursuant to the
same Facility of the other Type of Loans denominated in Dollars which can be
made pursuant to such Facility, PROVIDED that: (i) no partial conversion of a
Borrowing of Eurocurrency Loans shall reduce the outstanding principal amount of
the Eurocurrency Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto; (ii) any conversion of Eurocurrency Loans
into Prime Rate Loans shall be made on, and only on, the last day of an Interest
Period for such Eurocurrency Loans; (iii) Prime Rate Loans may only be converted
into Eurocurrency Loans if no Default under section 10.1(a) or Event of Default
is in existence on the date of the conversion unless the Required Lenders
otherwise agree; and (iv) Borrowings of Eurocurrency Loans resulting from this
section 2.7 shall conform to the requirements of section 2.2. Each such
conversion shall be effected by the Borrower giving the Administrative Agent at
its Notice Office, prior to 11:00 A.M. (local time at such Notice Office), at
least three Business Days', in the case of conversion into Eurodollar Loans (or
prior to 11:00 A.M. (local time at such Notice Office) same Business Day's, in
the case of a conversion into Prime Rate Loans) prior written notice (or
telephonic notice promptly confirmed in writing if so requested by the
Administrative Agent) (each a "NOTICE OF Conversion"), substantially in the form
of Exhibit B-2, specifying the Loans to be so converted, the Type of Loans to be
converted into and, if to be converted into a Borrowing of Eurocurrency Loans,
the Interest Period to be initially applicable thereto. The Administrative Agent
shall give each Lender prompt notice of any such proposed conversion affecting
any of its Loans. For the avoidance of doubt, the prepayment or repayment of any
General Revolving Loans out of the proceeds of other General Revolving Loans by
the Borrower is not considered a conversion of such General Revolving Loans into
other General Revolving Loans.
(b The Borrower may, upon notice given to the Administrative Agent at
least three Business Days prior to the date of the proposed Redenomination,
request that all General Revolving Loans comprising the same Borrowing by the
Borrower be Redenominated from Dollars into an Alternative Currency or from an
Alternative Currency into Dollars or another Alternative Currency; PROVIDED,
HOWEVER, that any Redenomination of Eurocurrency Loans shall be made on, and
only on, the last day of an Interest Period for such Loans; and PROVIDED,
FURTHER, that no Redenomination shall be made if at the time thereof a Default
under section 10.1(a) or Event of Default shall have occurred and be continuing
unless the Required Lenders otherwise agree. Each such notice of request of a
Redenomination (a "NOTICE OF REDENOMINATION") shall be by telecopier, telex or
cable (confirmed immediately in writing if so requested by the Administrative
Agent), in substantially the form of Exhibit B-4 hereto, specifying (i) the
amount and currency of the General Revolving Loans comprising the specific
Borrowing to be Redenominated, (ii the date of the proposed Redenomination,
(iii) the currency into which such Loans are to be Redenominated, and (iv if
such Loans as so Redenominated are to be Eurocurrency Loans, the duration of the
Interest Period for such Loans upon being so Redenominated. The Administrative
Agent shall promptly notify each affected Lender of any such requested
Redenomination. In the case of a Notice of Redenomination which requests a
Redenomination of Loans into an Alternative Currency, such Redenomination is
subject to (x) if it involves a Redenomination into an Alternative Currency
described in clause (i) or (ii) of the definition of the term Alternative
Currency, the confirmation by the Administrative Agent to the Borrower that such
Alternative Currency is readily and freely transferable and convertible into
Dollars, or (y) if it involves a Redenomination into an Alternative Currency
described in clause (iii) of the definition of the term Alternative Currency,
the willingness of each Lender which has a General Revolving Commitment to
effect such Redenomination. If any affected Lender has not, by 2:00 P.M. (local
time at the Notice Office) on the second Business Day before the requested date
of such Redenomination, notified the Administrative
23
Agent that a particular requested Redenomination is not acceptable to it, such
requested Redenomination shall be conclusively presumed to be acceptable to it.
Any objection by a Lender to a requested Redenomination shall be notified
immediately by the Administrative Agent to the Borrower. If any affected Lender
shall have so notified the Administrative Agent of its objection to a requested
Redenomination, or if the Administrative Agent shall have confirmed to the
Borrower that the Alternative Currency involved in such Redenomination is not
readily and freely transferable and convertible into Dollars, the requested
Redenomination will not occur and the Administrative Agent shall promptly notify
the Borrower and each affected Lender that a Lender is unwilling to make such
requested Redenomination and that the requested Redenomination will not occur.
If no affected Lender shall have so provided to the Administrative Agent notice
of its unwillingness to effect a requested Redenomination or if such Notice of
Redenomination requests a Redenomination of Loans into Dollars, each General
Revolving Loan so requested to be Redenominated will be Redenominated, on the
date specified therefor in such Notice of Redenomination, into an equivalent
amount thereof in the currency requested in such Notice of Redenomination, such
equivalent amount to be determined on such date by the Administrative Agent in
accordance with section 1.5, and in the case of any such General Revolving Loan
being so Redenominated which will be a Eurocurrency Loan, such Eurocurrency Loan
will have an initial Interest Period as requested in such Notice of
Redenomination.
2.8. INTEREST. (a) INTEREST ON PRIME RATE LOANS. The unpaid principal
amount of each General Revolving Loan or Swing Line Revolving Loan which is a
Prime Rate Loan shall bear interest from the date of the Borrowing thereof until
maturity (whether by acceleration or otherwise) at a fluctuating rate per annum
which shall at all times be equal to the Prime Rate in effect from time to time.
(b INTEREST ON EUROCURRENCY LOANS. The unpaid principal amount of
each General Revolving Loan which is a Eurocurrency Loan shall bear interest
from the date of the Borrowing thereof until maturity (whether by acceleration
or otherwise) at a rate per annum which shall at all times be the Applicable
Eurocurrency Margin (as defined below) for such Eurocurrency Loan PLUS the
relevant Eurocurrency Rate.
(c INTEREST ON MONEY MARKET RATE LOANS. The unpaid principal amount
of each Swing Line Revolving Loan which is a Money Market Rate Loan shall bear
interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at the rate per annum which shall be equal to the
Quoted Rate therefor.
(d DEFAULT INTEREST. Notwithstanding the above provisions, if a
Default under section 10.1(a) or Event of Default is in existence, all
outstanding amounts of principal and, to the extent permitted by law, all
overdue interest, in respect of each Loan shall bear interest, payable on
demand, at a rate per annum equal to the Prime Rate in effect from time to time
PLUS 2% per annum. If any amount (other than the principal of and interest on
the Loans) payable by the Borrower under the Credit Documents is not paid when
due, such amount shall bear interest, payable on demand, at a rate per annum
equal to the Prime Rate in effect from time to time PLUS 2% per annum.
(e ACCRUAL AND PAYMENT OF INTEREST. Interest shall accrue from and
including the date of any Borrowing to but excluding the date of any prepayment
or repayment thereof and shall be payable:
(i in the case of any Swing Line Revolving Loan, (A) at the
maturity date thereof, which shall in no event exceed 30 days, (B) on
any prepayment (on the amount prepaid), and (C) after maturity (whether
by acceleration or otherwise), on demand; and
(ii in the case of any General Revolving Loan, (A) which is a
Prime Rate Loan, quarterly in arrears on the last Business Day of
March, June, September and December, (B) which is a Eurodollar Loan, on
the last day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on the dates
which are successively three months after the commencement of such
Interest Period, and (C) on any repayment, prepayment, conversion or
Redenomination (on the amount repaid, prepaid, converted or
Redenominated), at maturity (whether by acceleration or otherwise) and,
after such maturity, on demand.
24
(f COMPUTATIONS OF INTEREST. All computations of interest hereunder
shall be made in accordance with section 12.7(b).
(g INFORMATION AS TO INTEREST RATES. Each Reference Bank agrees to
furnish the Administrative Agent timely information for the purpose of
determining the Eurocurrency Rate for any Borrowing consisting of Eurocurrency
Loans. If any one or more of the Reference Banks shall not timely furnish such
information, the Administrative Agent shall determine the Eurocurrency Rate on
the basis of timely information furnished by the remaining Reference Banks. The
Administrative Agent upon determining the interest rate for any Borrowing shall
promptly notify the Borrower and the affected Lenders thereof.
(h APPLICABLE EUROCURRENCY MARGIN. As used herein, the term
"APPLICABLE EUROCURRENCY MARGIN", as applied to any General Revolving Loan which
is a Eurocurrency Loan, means the particular rate per annum determined by the
Administrative Agent in accordance with the Pricing Grid Table which appears
below, based on the Borrower's ratio of Consolidated Total Debt to Consolidated
EBITDA and such Pricing Grid Table, and the following provisions:
(i Initially, until changed hereunder in accordance with the
following provisions, the Applicable Eurocurrency Margin for General
Revolving Loans will be 40 basis points per annum.
(ii Commencing with the fiscal quarter of the Borrower ended
on or nearest to June 30, 1998, and continuing with each fiscal quarter
thereafter, the Administrative Agent will determine the Applicable
Eurocurrency Margin for any Eurocurrency Loan in accordance with the
Pricing Grid Table, based on the Borrower's ratio of (x) Consolidated
Total Debt as of the end of the fiscal quarter, to (y) Consolidated
EBITDA for the Testing Period ended on the last day of the fiscal
quarter, and identified in such Table. Changes in the Applicable
Eurocurrency Margin based upon changes in such ratio shall become
effective on the first day of the month following the receipt by the
Administrative Agent pursuant to section 8.1(a) or (b) of the financial
statements of the Borrower, accompanied by the certificate and
calculations referred to in section 8.1(c), demonstrating the
computation of such ratio, based upon the ratio in effect at the end of
the applicable period covered (in whole or in part) by such financial
statements.
(iii Notwithstanding the above provisions, during any period
when (A) the Borrower has failed to timely deliver its consolidated
financial statements referred to in section 8.1(a) or (b), accompanied
by the certificate and calculations referred to in section 8.1(c), (B)
a Default under section 10.1(a) has occurred and is continuing, or (C)
an Event of Default has occurred and is continuing, the Applicable
Eurocurrency Margin shall be the highest rate per annum indicated
therefor in the Pricing Grid Table, regardless of the Borrower's ratio
of Consolidated Total Debt to Consolidated EBITDA at such time.
(iv Any changes in the Applicable Eurocurrency Margin shall
be determined by the Administrative Agent in accordance with the above
provisions and the Administrative Agent will promptly provide notice of
such determinations to the Borrower and the Lenders. Any such
determination by the Administrative Agent pursuant to this section
2.8(h) shall be conclusive and binding absent manifest error.
PRICING GRID TABLE
(EXPRESSED IN BASIS POINTS)
----------------------------------------- ----------------------------------- -------------------------------------
RATIO OF APPLICABLE
CONSOLIDATED TOTAL DEBT EUROCURRENCY MARGIN
TO FOR APPLICABLE
CONSOLIDATED EBITDA GENERAL REVOLVING LOANS FACILITY FEE RATE
----------------------------------------- ----------------------------------- -------------------------------------
----------------------------------------- ----------------------------------- -------------------------------------
25
----------------------------------------- ----------------------------------- -------------------------------------
RATIO OF APPLICABLE
CONSOLIDATED TOTAL DEBT EUROCURRENCY MARGIN
TO FOR APPLICABLE
CONSOLIDATED EBITDA GENERAL REVOLVING LOANS FACILITY FEE RATE
----------------------------------------- ----------------------------------- -------------------------------------
greater than 3.00 to 1.00 100.00 25.00
----------------------------------------- ----------------------------------- -------------------------------------
greater than or equal to 2.50 to 1.00
but less than or equal to 3.00 to 1.00 75.00 25.00
----------------------------------------- ----------------------------------- -------------------------------------
greater than or equal to 1.75 to 1.00
but less than 2.50 to 1.00 62.50 12.50
----------------------------------------- ----------------------------------- -------------------------------------
greater than or equal to 1.00 to 1.00
but less than 1.75 to 1.00 50.00 12.50
----------------------------------------- ----------------------------------- -------------------------------------
less than 1.00 to 1.00 40.00 10.00
----------------------------------------- ----------------------------------- -------------------------------------
2.9. INTEREST PERIODS. (a) At the time the Borrower gives a Notice of
Borrowing, Notice of Conversion or Notice of Redenomination in respect of the
making of, conversion into, or Redenomination of, a Borrowing of Eurocurrency
Loans (in the case of the initial Interest Period applicable thereto) or prior
to 11:00 A.M. (local time at the Notice Office) on the third Business Day prior
to the expiration of an Interest Period applicable to a Borrowing of
Eurocurrency Loans, it shall have the right to elect by giving the
Administrative Agent written or telephonic notice (in the case of telephonic
notice, promptly confirmed in writing if so requested by the Administrative
Agent) of the Interest Period applicable to such Borrowing, which Interest
Period shall, at the option of the Borrower, be a one, two, three or six month
period. Notwithstanding anything to the contrary contained above:
(i the initial Interest Period for any Borrowing of
Eurocurrency Loans shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing of Prime Rate
Loans) and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(ii if any Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month;
(iii if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day, PROVIDED that if any Interest Period
would otherwise expire on a day which is not a Business Day but is a
day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business
Day;
(iv no Interest Period for any Eurocurrency Loan may be
selected which would end after the Maturity Date; and
(v no Interest Period may be elected at any time when a
Default under section 10.1(a) or an Event of Default is then in
existence unless the Required Lenders otherwise agree.
26
(b If upon the expiration of any Interest Period the Borrower has
failed to (or may not) elect a new Interest Period to be applicable to the
respective Borrowing of Eurocurrency Loans as provided above, (i) in the case of
any such Eurocurrency Loans which are denominated in Dollars, the Borrower shall
be deemed to have elected to convert such Borrowing to Prime Rate Loans
effective as of the expiration date of such current Interest Period, and (ii) in
the case of any such Eurocurrency Loans which are denominated in an Alternative
Currency, the Borrower shall be deemed to have elected effective as of the
expiration date of such current Interest Period to Redenominate such Loans from
the applicable Alternative Currency into an equivalent amount thereof in
Dollars, such equivalent amount to be determined on such date by the
Administrative Agent in accordance with section 1.5, and to treat such Loans as
so Redenominated as Prime Rate Loans.
2.10. INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x) in
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Lender, shall have determined on a reasonable
basis (which determination shall, absent manifest error, be final and conclusive
and binding upon all parties hereto):
(i) on any date for determining the Eurocurrency Rate for
Eurocurrency Loans denominated in Dollars or in an Alternative Currency
for any Interest Period that, by reason of any changes arising after
the Effective Date affecting the interbank Eurocurrency market,
adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of
Eurocurrency Rate; or
(ii) at any time, that such Lender shall incur increased costs
or reductions in the amounts received or receivable hereunder in an
amount which such Lender deems material with respect to any
Eurocurrency Loans (other than any increased cost or reduction in the
amount received or receivable resulting from the imposition of or a
change in the rate of taxes or similar charges) because of (x) any
change since the Effective Date in any applicable law, governmental
rule, regulation, guideline, order or request (whether or not having
the force of law), or in the interpretation or administration thereof
and including the introduction of any new law or governmental rule,
regulation, guideline, order or request (such as, for example, but not
limited to, a change in official reserve requirements, but, in all
events, excluding reserves includable in the Eurocurrency Rate pursuant
to the definition thereof), and/or (y) other circumstances adversely
affecting the interbank Eurocurrency market or the position of such
Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurocurrency Loan denominated in Dollars or in an Alternative Currency
has become unlawful by compliance by such Lender in good faith with any
change since the Effective Date in any law, governmental rule,
regulation, guideline or order, or the interpretation or application
thereof, or would conflict with any thereof not having the force of law
but with which such Lender customarily complies or has become
impracticable as a result of a contingency occurring after the
Effective Date which materially adversely affects the interbank
Eurocurrency market;
THEN, and in any such event, such Lender (or the Administrative Agent in the
case of clause (i) above) shall (x) on or promptly following such date or time
and (y) within 10 Business Days of the date on which such event no longer exists
give notice (by telephone confirmed in writing) to the Borrower and to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other applicable Lenders).
Thereafter (x) in the case of clause (i) above, Eurocurrency Loans shall no
longer be available in the applicable currency until such time as the
Administrative Agent notifies the Borrower and the applicable Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing, Notice of Conversion or Notice of
Redenomination given by the Borrower with respect to Eurocurrency Loans
denominated in such currency which have not yet been incurred, converted or
Redenominated shall be deemed rescinded by the Borrower or, in the case of a
Notice of Borrowing, shall, at the option of the Borrower, be deemed converted
into a Notice of Borrowing for Prime Rate Loans to be made on the date of
Borrowing contained in such Notice of Borrowing, (y) in the case of clause (ii)
above, the Borrower shall pay to such Lender, upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Lender shall determine) as shall
be required to compensate such Lender, for such increased costs or reductions in
amounts receivable hereunder (a written notice as to the additional amounts owed
to such Lender,
27
showing the basis for the calculation thereof, which basis must be reasonable,
submitted to the Borrower by such Lender shall, absent manifest error, be final
and conclusive and binding upon all parties hereto) and (z) in the case of
clause (iii) above, the Borrower shall take one of the actions specified in
section 2.10(b) as promptly as possible and, in any event, within the time
period required by law.
(b) At any time that any Eurocurrency Loan denominated in Dollars or
an Alternative Currency is affected by the circumstances described in section
2.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurocurrency Loan
affected pursuant to section 2.10(a)(iii) the Borrower shall) either (i) if the
affected Eurocurrency Loan is then being made pursuant to a Borrowing, by giving
the Administrative Agent telephonic notice (confirmed promptly in writing if
requested) thereof on the same date that the Borrower was notified by a Lender
pursuant to section 2.10(a)(ii) or (iii), cancel said Borrowing, convert the
related Notice of Borrowing into one requesting a Borrowing of Prime Rate Loans
or require the affected Lender to make its requested Loan as a Prime Rate Loan,
or (ii) if the affected Eurocurrency Loan is then outstanding, upon at least one
Business Day's notice to the Administrative Agent, require the affected Lender
to convert each such Eurocurrency Loan denominated in Dollars into a Prime Rate
Loan, or require the affected Lender to Redenominate each such Eurocurrency Loan
denominated in an Alternative Currency into a Prime Rate Loan denominated in
Dollars, PROVIDED that if more than one Lender is affected at any time, then all
affected Lenders must be treated the same pursuant to this section 2.10(b).
(c) If any Lender shall have determined that after the Effective
Date, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged by law with the interpretation or administration thereof, or
compliance by such Lender or its parent corporation with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank, or comparable agency, in each case made
subsequent to the Effective Date, has or would have the effect of reducing by an
amount reasonably deemed by such Lender to be material the rate of return on
such Lender's or its parent corporation's capital or assets as a consequence of
such Lender's commitments or obligations hereunder to a level below that which
such Lender or its parent corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's or
its parent corporation's policies with respect to capital adequacy), THEN from
time to time, within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or its parent corporation for
such reduction. Each Lender, upon determining in good faith that any additional
amounts will be payable pursuant to this section 2.10(c), will give prompt
written notice thereof to the Borrower, which notice shall set forth, in
reasonable detail, the basis of the calculation of such additional amounts,
which basis must be reasonable, although the failure to give any such notice
shall not release or diminish the Borrower's obligations to pay additional
amounts pursuant to this section 2.10(c) upon the subsequent receipt of such
notice.
(d) Notwithstanding anything in this Agreement to the contrary, (i)
no Lender shall be entitled to compensation or payment or reimbursement of other
amounts under section 2.10, 3.5 or 5.4 for any amounts incurred or accruing more
than 180 days prior to the giving of notice to the Borrower of additional costs
or other amounts of the nature described in such sections, and (ii) no Lender
shall demand compensation for any reduction referred to in section 2.10(c) or
payment or reimbursement of other amounts under section 3.5 or 5.4 if it shall
not at the time be the general policy or practice of such Lender to demand such
compensation, payment or reimbursement in similar circumstances under comparable
provisions of other credit agreements.
2.11. BREAKAGE COMPENSATION. The Borrower shall compensate each
applicable Lender, upon its written request (which request shall set forth the
detailed basis for requesting and the method of calculating such compensation),
for all reasonable losses, expenses and liabilities (including, without
limitation, any loss, expense or liability incurred by reason of the liquidation
or reemployment of deposits or other funds required by such Lender to fund its
Eurocurrency Loans or Money Market Rate Loans) which such Lender may sustain:
(i) if for any reason (other than a default by such Lender or the Administrative
Agent), (A) a Borrowing of Eurocurrency Loans by the Borrower does not occur on
a date specified therefor in a Notice of Borrowing, Notice of Conversion or
Notice of Redenomination (whether or not rescinded or withdrawn by or on behalf
of the Borrower or deemed rescinded or
28
withdrawn pursuant to section 2.10(a)), or (B) a Borrowing of Money Market Rate
Loans by the Borrower does not occur on a date specified therefor in a Notice of
Borrowing; (ii) if any repayment, prepayment, conversion or Redenomination of
any of its Eurocurrency Loans occurs on a date which is not the last day of an
Interest Period applicable thereto; (iii) if any repayment or prepayment of any
of the Borrower's Money Market Rate Loans occurs on a date which is not the
maturity date thereof; (iv) if any prepayment of any of its Eurocurrency Loans
or Money Market Rate Loans, as the case may be, is not made on any date
specified in a notice of prepayment given by the Borrower; (v) if such Lender
transfers its Eurocurrency Loans pursuant to a request by the Borrower under
section 2.12(b) hereof; or (vi) as a consequence of (x) any other default by the
Borrower to repay its Eurocurrency Loans or Money Market Rate Loans, as the case
may be, when required by the terms of this Agreement or (y) an election made
pursuant to section 2.10(b).
2.12. CHANGE OF LENDING OFFICE; REPLACEMENT OF LENDERS. (a) Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of section 2.10(a)(ii) or (iii), 2.10(c), 3.5 or 5.4 with respect to
such Lender, it will, if requested by the Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another
Applicable Lending Office for any Loans or Commitment affected by such event,
PROVIDED that such designation is made on such terms that such Lender and its
Applicable Lending Office suffer no material economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such section.
(b) If any Lender requests any compensation, reimbursement or other
payment under section 2.10(a)(ii) or (iii), 2.10(c) or 3.5 with respect to such
Lender, or if the Borrower is required to pay any additional amount to any
Lender or governmental authority pursuant to section 5.4, or if any Lender is a
Defaulting Lender, THEN the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with the restrictions
contained in section 12.4(b)), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); PROVIDED that (i)
the Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not be unreasonably withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts,
including any breakage compensation under section 2.11 hereof), and (iii) in the
case of any such assignment resulting from a claim for compensation,
reimbursement or other payments required to be made under section 2.10(a)(ii) or
(iii), 2.10(c) or 3.5 with respect to such Lender, or resulting from any
required payments to any Lender or governmental authority pursuant to section
5.4, such assignment will result in a reduction in such compensation,
reimbursement or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
(c) Nothing in this section 2.12 shall affect or postpone any of the
obligations of any Borrower or the right of any Lender provided in section 2.10,
3.5 or 5.4.
2.13. EUROPEAN ECONOMIC AND MONETARY UNION. The applicable provisions
of the foregoing section 2 and the other provisions of this Agreement which
relate to Alternative Currencies are subject to the following provisions:
(a) DEFINITIONS. In this section 2.13 and in each other provision of
this Agreement to which reference is made expressly or impliedly, the following
terms have the meanings given to them in this section 2.13:
"COMMENCEMENT OF THE THIRD STAGE OF EMU" shall mean the date of
commencement of the third stage of EMU (at the date hereof expected to
be January 1, 1999) or the date on which circumstances arise which (in
the opinion of the Administrative Agent) have substantially the same
effect and result in substantially the same consequences as
commencement of the third stage of EMU as contemplated by the Treaty on
European Union.
29
"EMU" shall mean the economic and monetary union as
contemplated by the Treaty on European Union.
"EMU LEGISLATION" shall mean legislative measures of the
European Council for the introduction of, changeover to or operation of
a single or unified European currency (whether known as the euro or
otherwise), being in part the implementation of the third stage of EMU.
"EURO" shall mean the single currency of participating member
states of the European Union.
"EURO UNIT" shall mean the currency unit of one euro.
"NATIONAL CURRENCY UNIT" shall mean the unit of currency
(other than a euro unit) of a participating member state.
"PARTICIPATING MEMBER STATE" shall mean each state so
described in any EMU legislation.
"TREATY ON EUROPEAN UNION" shall mean the Treaty of Rome of
March 25, 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the
Maastricht Treaty (which was signed in Maastricht on February 7, 1992,
and came into force on November 1, 1993), as amended from time to time.
(b) EFFECTIVENESS OF PROVISIONS. The provisions of paragraphs (c) to
(j) below (inclusive) shall be effective at and from the time commencement of
the third stage of EMU, PROVIDED, that, if and to the extent that any such
provision relates to any state (or currency of such state) that is not a
participating member state on the commencement of the third stage of EMU, such
provision shall become effective in relation to such state (and the currency of
such state) at and from the date on which such state becomes a participating
member state.
(c) REDENOMINATION AND ALTERNATIVE CURRENCIES. Each obligation under
this Agreement of a party to this Agreement which has been denominated in the
national currency unit or a participating member state shall be Redenominated
into the euro unit in accordance with the EMU legislation, PROVIDED, that if and
to the extent that any EMU legislation provides that following the commencement
of the third stage of EMU an amount denominated either in the euro or in the
national currency unit of a participating member state and payable within that
participating member state by crediting an account of the creditor can be paid
by the debtor either in the euro unit or in that national currency unit, each
party to this Agreement shall be entitled to pay or repay such amount either in
the euro unit or in such national currency unit.
(d) LOANS. Any Loan in the currency of a participating member state
shall be made in the euro unit.
(e) BUSINESS DAYS. With respect to any amount denominated or to be
denominated in the euro or a national currency unit, any reference to a
"Business Day" shall be construed as a reference to a day (other than a Saturday
or a Sunday) on which banks are generally open for business in (i) Cleveland,
Ohio; and (ii) on which prime banks in the London, England interbank market will
provide quotations for deposits in the relevant currency.
(f) PAYMENTS TO THE ADMINISTRATIVE AGENT. Sections 5.3 and 5.4 shall be
construed so that, in relation to the payment of any amount of euro units or
national currency units, such amount shall be made available to the
Administrative Agent in immediately available, freely transferable, cleared
funds to the Payment Office, or such account with such bank in Frankfurt am
Main, Germany (or such principal financial center in such participating member
state or states as the Administrative Agent may from time to time nominate for
this purpose), as the Administrative Agent shall from time to time nominate for
this purpose.
(g) PAYMENTS MADE BY THE ADMINISTRATIVE AGENT TO THE LENDERS. Any
amount payable by the Administrative Agent to the Lenders under this Agreement
in the currency of a participating member state shall be paid in the euro unit.
30
(h) PAYMENTS BY THE ADMINISTRATIVE AGENT GENERALLY. With respect to the
payment of any amount denominated in the euro or in a national currency unit,
the Administrative Agent shall not be liable to the Borrower or any of the
Lenders in any way whatsoever for any delay, or the consequences of any delay,
in the crediting to any account of any amount required by this Agreement to be
paid by the Administrative Agent if the Administrative Agent shall have taken
all relevant steps to achieve, on the date required by this Agreement, the
payment of such amount in immediately available, freely transferable, cleared
funds (in the euro unit or, as the case may be, in a national currency unit) to
the account of the bank in the principal financial center in the participating
member state which the Borrower or, as the case may be, any Lender shall have
specified for such purpose. In this paragraph (h), "all relevant steps" means
all such steps as may be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as the Administrative
Agent may from time to time determine for the purpose of clearing or settling
payments of the euro.
(i) BASIS OF ACCRUAL. If the basis of accrual of interest or Fees
expressed in this Agreement with respect to the currency of any state that
becomes a participating member state shall be inconsistent with any convention
or practice in the London Interbank Market or otherwise provided in this
Agreement for the basis of accrual of interest or fees in respect of the euro,
such convention or practice shall replace such expressed basis effective as of
and from the date on which such state becomes a participating member state;
PROVIDED, that if any Loan in the currency of such state is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
(j) ROUNDING AND OTHER CONSEQUENTIAL CHANGES. Without prejudice and in
addition to any method of conversion or rounding prescribed by EMU legislation
and without prejudice to the respective liabilities for indebtedness of the
Borrower to the Lenders and the Lenders to the Borrower under or pursuant to
this Agreement:
(i) each reference in this Agreement to a minimum amount (or an
integral multiple thereof) in a national currency unit to be paid to or
by the Administrative Agent shall be replaced by a reference to such
reasonably comparable and convenient amount (or an integral multiple
thereof) in the euro unit as the Administrative Agent may from time to
time specify; and
(ii) except as expressly provided in this section 2.13, each
provision of this Agreement shall be subject to such reasonable changes
of construction as the Administrative Agent may from time to time
specify to be necessary or appropriate to reflect the introduction of
or changeover to the euro in participating member states.
(k) INCREASED COSTS. The Borrower shall from time to time, at the
request of the Administrative Agent, pay to the Administrative Agent for the
account of each Lender the amount of any cost or increased cost incurred by, or
of any reduction in any amount payable to or in the effective return on its
capital to, or of interest or other return foregone by such Lender or any
holding company of such Lender as a result of the introduction of, changeover to
or operation of the euro in any participating member state, other than any such
cost or reduction or amount foregone reflected in the Eurocurrency Rate.
SECTION 3. LETTERS OF CREDIT.
31
3.1. LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request a Letter of Credit Issuer
at any time and from time to time on or after the Closing Date and prior to the
date that is 15 Business Days prior to the Maturity Date to issue, for the
account of the Borrower, any of its Subsidiaries, or any Affiliate which is at
least 45% owned by the Borrower and its Subsidiaries (the Borrower, any such
Subsidiary or any such Affiliate, a "LETTER OF CREDIT OBLIGOR"), and in support
of worker compensation, liability insurance, releases of contract retention
obligations, contract performance guarantee requirements and other bonding
obligations of the Borrower or any such other Letter of Credit Obligor incurred
in the ordinary course of its business, and such other standby obligations of
the Borrower and the other Letter of Credit Obligors that are acceptable to the
Letter of Credit Issuer, and subject to and upon the terms and conditions herein
set forth, such Letter of Credit Issuer agrees to issue from time to time,
irrevocable standby letters of credit denominated and payable in Dollars or an
Alternative Currency in such form as may be approved by such Letter of Credit
Issuer and the Administrative Agent (each such letter of credit (and each
Existing Letter of Credit described in section 3.1(d)), a "LETTER OF CREDIT" and
collectively, the "LETTERS OF CREDIT").
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings at such time, would exceed either (x) $10,000,000 or (y) when added
to the aggregate principal amount of all General Revolving Loans and Swing Line
Revolving Loans then outstanding, an amount equal to the Total General Revolving
Commitment at such time; (ii) no individual Letter of Credit (other than any
Existing Letter of Credit) shall be issued which has an initial Stated Amount
less than $100,000 unless such lesser Stated Amount is acceptable to the Letter
of Credit Issuer; and (iii) each Letter of Credit shall have an expiry date
(including any renewal periods) occurring not later than the earlier of (A) one
year from the date of issuance thereof, unless a longer period is approved by
the relevant Letter of Credit Issuer and Lenders (other than any Defaulting
Lender) holding a majority of the Total General Revolving Commitment, and (B) 15
Business Days prior to the Maturity Date, in each case on terms acceptable to
the Administrative Agent and the relevant Letter of Credit Issuer.
(c) Notwithstanding the foregoing, in the event a Lender Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless either (i) such Letter of Credit Issuer has entered into
arrangements satisfactory to it and the Borrower to eliminate such Letter of
Credit Issuer's risk with respect to the participation in Letters of Credit of
the Defaulting Lender or Lenders, including by cash collateralizing such
Defaulting Lender's or Lenders' General Revolving Facility Percentage of the
Letter of Credit Outstandings; or (ii) the issuance of such Letter of Credit,
taking into account the potential failure of the Defaulting Lender or Lenders to
risk participate therein, will not cause the Letter of Credit Issuer to incur
aggregate credit exposure hereunder with respect to General Revolving Loans and
Letter of Credit Outstandings in excess of its General Revolving Commitment, and
the Borrower has undertaken, for the benefit of such Letter of Credit Issuer,
pursuant to an instrument satisfactory in form and substance to such Letter of
Credit Issuer, not to thereafter incur Loans or Letter of Credit Outstandings
hereunder which would cause the Letter of Credit Issuer to incur aggregate
credit exposure hereunder with respect to General Revolving Loans and Letter of
Credit Outstandings in excess of its General Revolving Commitment.
(d) Annex VI hereto contains a description of all letters of credit
outstanding on, and to continue in effect after, the Closing Date. Each such
letter of credit issued by a bank that is or becomes a Lender under this
Agreement on the Effective Date (each, an "EXISTING LETTER OF CREDIT") shall
constitute a "Letter of Credit" for all purposes of this Agreement, issued, for
purposes of section 3.4(a), on the Closing Date, and the Borrower, the
Administrative Agent and the applicable Lenders hereby agree that, from and
after such date, the terms of this Agreement shall apply to such Letters of
Credit, superseding any other agreement theretofore applicable to them to the
extent inconsistent with the terms hereof.
3.2. LETTER OF CREDIT REQUESTS: NOTICES OF ISSUANCE. (a) Whenever it
desires that a Letter of Credit be issued, the Borrower shall give the
Administrative Agent and the Letter of Credit Issuer written or telephonic
notice (in the case of telephonic notice, promptly confirmed in writing if so
requested by the Administrative Agent) which, if in the form of written notice
shall be substantially in the form of Exhibit B-3, or transmit by electronic
communication (if arrangements for doing so have been approved by the Letter of
Credit Issuer), prior to 12:00 noon (local time at its Notice Office) at least
three Business Days (or such shorter period as may be acceptable to the
32
relevant Letter of Credit Issuer) prior to the proposed date of issuance (which
shall be a Business Day) (each a "LETTER OF CREDIT REQUEST"), which Letter of
Credit Request shall include such supporting documents that such Letter of
Credit Issuer customarily requires in connection therewith (including, in the
case of a Letter of Credit for an account party other than the Borrower, an
application for, and if applicable a reimbursement agreement with respect to,
such Letter of Credit). Any such documents executed in connection with the
issuance of a Letter of Credit, including the Letter of Credit itself, are
herein referred to as "LETTER OF CREDIT DOCUMENTS". In the event of any
inconsistency between any of the terms or provisions of any Letter of Credit
Document and the terms and provisions of this Agreement respecting Letters of
Credit, the terms and provisions of this Agreement shall control. The
Administrative Agent shall promptly notify each Lender of each Letter of Credit
Request.
(b) Each Letter of Credit Issuer shall, on the date of each issuance
of a Letter of Credit by it, give the Administrative Agent, each applicable
Lender and the Borrower written notice of the issuance of such Letter of Credit,
accompanied by a copy to the Administrative Agent of the Letter of Credit or
Letters of Credit issued by it. Each Letter of Credit Issuer shall provide to
the Administrative Agent a quarterly (or monthly if requested by any applicable
Lender) summary describing each Letter of Credit issued by such Letter of Credit
Issuer and then outstanding and an identification for the relevant period of the
daily aggregate Letter of Credit Outstandings represented by Letters of Credit
issued by such Letter of Credit Issuer.
3.3. AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The Borrower
hereby agrees to reimburse (or cause any Letter of Credit Obligor for whose
account a Letter of Credit was issued to reimburse) each Letter of Credit
Issuer, by making payment directly to such Letter of Credit Issuer in
immediately available funds at the payment office of such Letter of Credit
Issuer, for any payment or disbursement made by such Letter of Credit Issuer
under any Letter of Credit (each such amount so paid or disbursed until
reimbursed, an "UNPAID DRAWING") immediately after, and in any event on the date
on which, such Letter of Credit Issuer notifies the Borrower (or any such other
Letter of Credit Obligor for whose account such Letter of Credit was issued) of
such payment or disbursement (which notice to the Borrower (or such other Letter
of Credit Obligor) shall be delivered reasonably promptly after any such payment
or disbursement), such payment to be made in Dollars (and in the amount which is
the Dollar equivalent of any such payment or disbursement made or denominated in
an Alternative Currency), with interest on the amount so paid or disbursed by
such Letter of Credit Issuer, to the extent not reimbursed prior to 1:00 P.M.
(local time at the payment office of the Letter of Credit Issuer) on the date of
such payment or disbursement, from and including the date paid or disbursed to
but not including the date such Letter of Credit Issuer is reimbursed therefor
at a rate per annum which shall be the rate then applicable to General Revolving
Loans which are Prime Rate Loans (plus an additional 2% per annum if not
reimbursed by the third Business Day after the date of such payment or
disbursement), any such interest also to be payable on demand.
(b) The Borrower's obligation under this section 3.3 to reimburse, or
cause another Letter of Credit Obligor to reimburse, each Letter of Credit
Issuer with respect to Unpaid Drawings (including, in each case, interest
thereon) shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower or any other Letter of Credit Obligor may have or have had against such
Letter of Credit Issuer, the Administrative Agent, any other Letter of Credit
Issuer or any Lender, including, without limitation, any defense based upon the
failure of any drawing under a Letter of Credit to conform to the terms of the
Letter of Credit or any non-application or misapplication by the beneficiary of
the proceeds of such drawing, PROVIDED, HOWEVER that the Borrower shall not be
obligated to reimburse, or cause another Letter of Credit Obligor to reimburse,
a Letter of Credit Issuer for any wrongful payment made by such Letter of Credit
Issuer under a Letter of Credit as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of such Letter of Credit
Issuer.
3.4. LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by a Letter of Credit Issuer of any Letter of Credit (and on the
Closing Date with respect to any Existing Letter of Credit), such Letter of
Credit Issuer shall be deemed to have sold and transferred to each Lender with a
Commitment under the General Revolving Facility, and each such Lender (each a
"PARTICIPANT") shall be deemed irrevocably and unconditionally to have purchased
and received from such Letter of Credit Issuer, without recourse or warranty, an
undivided interest and participation, to the extent of such Lender's General
Revolving Facility Percentage, in such Letter of Credit, each
33
substitute letter of credit, each drawing made thereunder, the obligations of
the Borrower under this Agreement with respect thereto (although Letter of
Credit Fees shall be payable directly to the Administrative Agent for the
account of the Lenders as provided in section 4.1(b) and the Participants shall
have no right to receive any portion of any fees of the nature contemplated by
section 4.1(c)), the obligations of any Letter of Credit Obligor under any
Letter of Credit Documents pertaining thereto, and any security for, or guaranty
pertaining to, any of the foregoing. Upon any change in the General Revolving
Commitments of the Lenders pursuant to section 12.4(b), it is hereby agreed
that, with respect to all outstanding Letters of Credit and Unpaid Drawings,
there shall be an automatic adjustment to the participations pursuant to this
section 3.4 to reflect the new General Revolving Facility Percentages of the
assigning and assignee Lender.
(b) In determining whether to pay under any Letter of Credit, a
Letter of Credit Issuer shall not have any obligation relative to the
Participants other than to determine that any documents required to be delivered
under such Letter of Credit have been delivered and that they appear to comply
on their face with the requirements of such Letter of Credit. Any action taken
or omitted to be taken by a Letter of Credit Issuer under or in connection with
any Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for such Letter of Credit Issuer any
resulting liability.
(c) In the event that a Letter of Credit Issuer makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed (or caused
any applicable Letter of Credit Obligor to reimburse) such amount in full to
such Letter of Credit Issuer pursuant to section 3.3(a), such Letter of Credit
Issuer shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify each Participant of such failure, and each
Participant shall promptly and unconditionally pay to the Administrative Agent
for the account of such Letter of Credit Issuer, the amount of such
Participant's General Revolving Facility Percentage of such payment in U.S.
Dollars (the Administrative Agent having determined in the case of any payment
by a Letter of Credit Issuer made in an Alternative Currency the equivalent
thereof in Dollars) and in same day funds, PROVIDED, HOWEVER, that no
Participant shall be obligated to pay to the Administrative Agent its General
Revolving Facility Percentage of such unreimbursed amount for any wrongful
payment made by such Letter of Credit Issuer under a Letter of Credit as a
result of acts or omissions constituting willful misconduct or gross negligence
on the part of such Letter of Credit Issuer. If the Administrative Agent so
notifies any Participant required to fund a payment under a Letter of Credit
prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such
Participant shall make available to the Administrative Agent for the account of
the relevant Letter of Credit Issuer such Participant's General Revolving
Facility Percentage of the amount of such payment on such Business Day in same
day funds. If and to the extent such Participant shall not have so made its
General Revolving Facility Percentage of the amount of such payment available to
the Administrative Agent for the account of the relevant Letter of Credit
Issuer, such Participant agrees to pay to the Administrative Agent for the
account of such Letter of Credit Issuer, forthwith on demand such amount,
together with interest thereon, for each day from such date until the date such
amount is paid to the Administrative Agent for the account of such Letter of
Credit Issuer at the Federal Funds Effective Rate. The failure of any
Participant to make available to the Administrative Agent for the account of the
relevant Letter of Credit Issuer its General Revolving Facility Percentage of
any payment under any Letter of Credit shall not relieve any other Participant
of its obligation hereunder to make available to the Administrative Agent for
the account of such Letter of Credit Issuer its General Revolving Facility
Percentage of any payment under any Letter of Credit on the date required, as
specified above, but no Participant shall be responsible for the failure of any
other Participant to make available to the Administrative Agent for the account
of such Letter of Credit Issuer such other Participant's General Revolving
Facility Percentage of any such payment.
(d) Whenever a Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to section 3.4(c) above, such Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its General Revolving Facility Percentage thereof, in
U.S. dollars and in same day funds, an amount equal to such Participant's
General Revolving Facility Percentage of the principal amount thereof and
interest thereon accruing after the purchase of the respective participations,
as and to the extent so received.
34
(e) The obligations of the Participants to make payments to the
Administrative Agent for the account of each Letter of Credit Issuer with
respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, set-off defense or other right
which the Borrower (or any other Letter of Credit Obligor) may have at
any time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any person for whom any such
transferee may be acting), the Administrative Agent, any Letter of
Credit Issuer, any Lender, or other person, whether in connection with
this Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transaction between the Borrower (or any other Letter of Credit
Obligor) and the beneficiary named in any such Letter of Credit), other
than any claim which the Borrower (or any other Letter of Credit
Obligor which is the account party with respect to a Letter of Credit)
may have against any applicable Letter of Credit Issuer for gross
negligence or wilful misconduct of such Letter of Credit Issuer in
making payment under any applicable Letter of Credit;
(iii) any draft, certificate or other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents: or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified by
the Borrower, the Participants will reimburse and indemnify the Letter of Credit
Issuer, in proportion to their respective General Revolving Facility
Percentages, for and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, costs, expenses or disbursements
of whatsoever kind or nature which may be imposed on, asserted against or
incurred by the Letter of Credit Issuer in performing its respective duties in
any way related to or arising out of its issuance of Letters of Credit, PROVIDED
that no Participants shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements resulting from the Letter of Credit Issuer's gross
negligence or willful misconduct.
3.5. INCREASED COSTS. If after the Effective Date, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Letter of Credit Issuer or any Lender with any
request or directive (whether or not having the force of law) by any such
authority, central bank or comparable agency (in each case made subsequent to
the Effective Date) shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against Letters of
Credit issued by such Letter of Credit Issuer or such Lender's participation
therein, or (ii) shall impose on such Letter of Credit Issuer or any Lender any
other conditions affecting this Agreement, any Letter of Credit or such Lender's
participation therein; and the result of any of the foregoing is to increase the
cost to such Letter of Credit Issuer or such Lender of issuing, maintaining or
participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by such Letter of Credit Issuer or such Lender hereunder
(other than any increased cost or reduction in the amount received or receivable
resulting from the imposition of or a change in the rate of taxes or similar
charges), then, upon demand to the Borrower by such Letter of Credit Issuer or
such Lender (a copy of which notice shall be sent by such Letter of Credit
Issuer or such Lender to the Administrative Agent), the Borrower shall pay to
such Letter of Credit Issuer or such Lender such additional amount or amounts as
will compensate any such
35
Letter of Credit Issuer or such Lender for such increased cost or reduction. A
certificate submitted to the Borrower by any Letter of Credit Issuer or any
Lender, as the case may be (a copy of which certificate shall be sent by such
Letter of Credit Issuer or such Lender to the Administrative Agent), setting
forth, in reasonable detail, the basis for the determination of such additional
amount or amounts necessary to compensate any Letter of Credit Issuer or such
Lender as aforesaid shall be conclusive and binding on the Borrower absent
manifest error, although the failure to deliver any such certificate shall not
release or diminish any of the Borrower's obligations to pay additional amounts
pursuant to this section 3.5. Reference is hereby made to the provisions of
section 2.10(d) for certain limitations upon the rights of a Letter of Credit
Issuer or Lender under this section.
3.6. GUARANTY OF LETTER OF CREDIT OBLIGATIONS OF OTHER LETTER OF
CREDIT OBLIGORS. (a) The Borrower hereby unconditionally guarantees, for the
benefit of the Administrative Agent and the Lenders, the full and punctual
payment of the Obligations of each Other Letter of Credit Obligor under each
Letter of Credit Document to which such Other Letter of Credit Obligor is now or
hereafter becomes a party. Upon failure by any such Other Letter of Credit
Obligor to pay punctually any such amount, the Borrower shall forthwith on
demand by the Administrative Agent pay the amount not so paid at the place and
in the currency and otherwise in the manner specified in this Agreement or any
applicable Letter of Credit Document.
(b) As a separate, additional and continuing obligation, the Borrower
unconditionally and irrevocably undertakes and agrees, for the benefit of the
Administrative Agent and the Lenders, that, should any amounts not be
recoverable from the Borrower under section 3.6(a) for any reason whatsoever
(including, without limitation, by reason of any provision of any Credit
Document or any other agreement or instrument executed in connection therewith
being or becoming void, unenforceable, or otherwise invalid under any applicable
law) then, notwithstanding any notice or knowledge thereof by any Lender, the
Administrative Agent, any of their respective Affiliates, or any other person,
at any time, the Borrower as sole, original and independent obligor, upon demand
by the Administrative Agent, will make payment to the Administrative Agent, for
the account of the Lenders and the Administrative Agent, of all such obligations
not so recoverable by way of full indemnity, in such currency and otherwise in
such manner as is provided in the Credit Documents.
(c) The obligations of the Borrower under this section shall be
unconditional and absolute and, without limiting the generality of the foregoing
shall not be released, discharged or otherwise affected by the occurrence, one
or more times, of any of the following:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect to any obligation of any Other Letter of Credit
Obligor under any Letter of Credit Document, by operation of law or
otherwise;
(ii) any modification or amendment of or supplement to this
Agreement, any Note or any other Credit Document;
(iii) any release, non-perfection or invalidity of any direct or
indirect security for any obligation of the Borrower under this
Agreement, any Note or any other Credit Document or of any Other Letter
of Credit Obligor under any Letter of Credit Document;
(iv) any change in the corporate existence, structure or
ownership of any Other Letter of Credit Obligor or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting any
Other Letter of Credit Obligor or its assets or any resulting release
or discharge of any obligation of any Other Letter of Credit Obligor
contained in any Letter of Credit Document;
(v) the existence of any claim, set-off or other rights which
the Borrower may have at any time against any Other Letter of Credit
Obligor, the Administrative Agent, any Lender or any other person,
whether in connection herewith or any unrelated transactions;
36
(vi) any invalidity or unenforceability relating to or against
any Other Letter of Credit Obligor for any reason of any Letter of
Credit Document, or any provision of applicable law or regulation
purporting to prohibit the payment by any Other Letter of Credit
Obligor of any Obligations in respect of any Letter of Credit; or
(vii) any other act or omission to act or delay of any kind by
any Other Letter of Credit Obligor, the Administrative Agent, any
Lender or any other person or any other circumstance whatsoever which
might, but for the provisions of this section, constitute a legal or
equitable discharge of the Borrower's obligations under this section.
(d) The Borrower's obligations under this section shall remain in
full force and effect until the Commitments shall have terminated and the
principal of and interest on the Notes and all other amounts payable by the
Borrower under the Credit Documents and by any Other Letter of Credit Obligor
under the Letter of Credit Documents shall have been paid in full. If at any
time any payment of any of the Obligations of any Other Letter of Credit Obligor
in respect of any Letter of Credit Documents is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of such
Other Letter of Credit Obligor, the Borrower's obligations under this section
with respect to such payment shall be reinstated at such time as though such
payment had been due but not made at such time.
(e) The Borrower irrevocably waives acceptance hereof, presentment,
demand, protest and any notice not provided for herein, as well as any
requirement that at any time any action be taken by any person against any Other
Letter of Credit Obligor or any other person, or against any collateral or
guaranty of any other person.
(f) Until the indefeasible payment in full of all of the Obligations
and the termination of the Commitments of the Lenders hereunder, the Borrower
shall have no rights, by operation of law or otherwise, upon making any payment
under this section to be subrogated to the rights of the payee against any Other
Letter of Credit Obligor with respect to such payment or otherwise to be
reimbursed, indemnified or exonerated by any Other Letter of Credit Obligor in
respect thereof.
(g) In the event that acceleration of the time for payment of any
amount payable by any Other Letter of Credit Obligor under any Letter of Credit
Document is stayed upon insolvency, bankruptcy or reorganization of such Other
Letter of Credit Obligor, all such amounts otherwise subject to acceleration
under the terms of any applicable Letter of Credit Document shall nonetheless be
payable by the Borrower under this section forthwith on demand by the
Administrative Agent.
SECTION 4. FEES; COMMITMENTS.
4.1. FEES. (a) FACILITY FEE. (i) The Borrower agrees to pay to the
Administrative Agent a Facility Fee ("FACILITY FEE") for the account of each
Non-Defaulting Lender which has a General Revolving Commitment for the period
from and including the Effective Date to but not including the date the Total
General Revolving Commitment has been terminated, which, for any such Lender,
shall be computed on the daily amount of the General Revolving Commitment of
such Lender, whether used or unused, at the Applicable Facility Fee Rate,
payable quarterly in arrears on the last Business Day of each March, June,
September and December and on the Maturity Date, commencing with the last
Business Day of September 1998 for the period from the Effective Date to such
date.
(ii) As used herein, the term "APPLICABLE FACILITY FEE RATE" means the
particular rate per annum determined by the Administrative Agent in accordance
with the Pricing Grid Table which appears in section 2.8(h), based on the
Borrower's ratio of Consolidated Total Debt to Consolidated EBITDA and such
Pricing Grid Table, and the following provisions:
(A) Initially, until changed hereunder in accordance with the
following provisions, the Applicable Facility Fee Rate will be 10 basis
points per annum.
37
(B) Commencing with the fiscal quarter of the Borrower ended
on or nearest to June 30, 1998, and continuing with each fiscal quarter
thereafter, the Administrative Agent will determine the Applicable
Facility Fee Rate in accordance with the Pricing Grid Table, based on
the Borrower's ratio of (x) Consolidated Total Debt as of the end of
the fiscal quarter, to (y) Consolidated EBITDA for the Testing Period
ended on the last day of the fiscal quarter, and identified in such
Table. Changes in the Applicable Facility Fee Rate based upon changes
in such ratio shall become effective on the first day of the month
following the receipt by the Administrative Agent pursuant to section
8.1(a) or (b) of the financial statements of the Borrower, accompanied
by the certificate and calculations referred to in section 8.1(c),
demonstrating the computation of such ratio, based upon the ratio in
effect at the end of the applicable period covered (in whole or in
part) by such financial statements.
(C) Notwithstanding the above provisions, during any period
when (1) the Borrower has failed to timely deliver its consolidated
financial statements referred to in section 8.1(a) or (b), accompanied
by the certificate and calculations referred to in section 8.1(c), (2)
a Default under section 10.1(a) has occurred and is continuing, or (3)
an Event of Default has occurred and is continuing, the Applicable
Facility Fee Rate shall be the highest rate per annum indicated
therefor in the Pricing Grid Table, regardless of the Borrower's ratio
of Consolidated Total Debt to Consolidated EBITDA at such time.
(D) Any changes in the Applicable Facility Fee Rate shall be
determined by the Administrative Agent in accordance with the above
provisions and the Administrative Agent will promptly provide notice of
such determinations to the Borrower and the Lenders. Any such
determination by the Administrative Agent pursuant to this section
4.1(a) shall be conclusive and binding absent manifest error.
(b) LETTER OF CREDIT FEES. The Borrower agrees to pay to the
Administrative Agent, for the account of each Non-Defaulting Lender which has a
General Revolving Commitment, PRO RATA on the basis of its General Revolving
Facility Percentage, a fee in respect of each Letter of Credit (the "LETTER OF
CREDIT FEE"), computed for each day at the rate per annum equal to the
Applicable Eurocurrency Margin then in effect, on the Stated Amount of all
Letters of Credit outstanding on such day. Accrued Letter of Credit Fees shall
be payable on the last Business Day of each March, June, September and December
and on the date on which the Total General Revolving Commitment is terminated.
Notwithstanding the above provisions, if a Default under section 10.1(a) or
Event of Default is in existence, the Borrower will pay to the Administrative
Agent, on demand, for the account of each Non-Defaulting Lender which has a
General Revolving Commitment, PRO RATA on the basis of its General Revolving
Facility Percentage, an additional Letter of Credit Fee for each outstanding
Letter of Credit, computed at 2% per annum above the then prevailing rate for
the Letter of Credit Fee on the Stated Amount of such outstanding Letter of
Credit for the period such Default or Event of Default is in existence.
(c) FACING FEE. The Borrower agrees to pay directly to each Letter of
Credit Issuer, for its own account, a fee in respect of all Letters of Credit
issued by it (a "FACING FEE"), computed for each day at 1/8 of 1% per annum on
the Stated Amount of all Letters of Credit outstanding on such day. Accrued
Facing Fees shall be payable on the last Business Day of each March, June,
September and December on the date on which the Total General Revolving
Commitment is terminated.
(d) ADDITIONAL CHARGES OF LETTER OF CREDIT ISSUER. The Borrower
agrees to pay directly to each Letter of Credit Issuer upon each issuance of,
drawing under, and/or amendment, extension, renewal or transfer of, a Letter of
Credit issued by it such amount as shall at the time of such issuance, drawing,
amendment, extension, renewal or transfer be the administrative or processing
charge which such Letter of Credit Issuer is customarily charging for issuances
of, drawings under or amendments, extensions, renewals or transfers of, letters
of credit issued by it.
(e) OTHER FEES. The Borrower shall pay to the Administrative Agent on
the Effective Date and thereafter for its own account and/or for distribution to
the Lenders such fees as heretofore agreed by the Borrower and the
Administrative Agent.
38
(f) COMPUTATIONS OF FEES. All computations of Fees shall be made in
accordance with section 12.7(b).
4.2. VOLUNTARY TERMINATION/REDUCTION OF COMMITMENTS. Upon at least
three Business Days' prior written notice (or telephonic notice confirmed in
writing) to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the affected Lenders),
the Borrower shall have the right, without premium or penalty, to:
(a) terminate the Total Commitment, PROVIDED that (i) all
outstanding Loans are contemporaneously prepaid in accordance with
section 5.1, and (ii) either (A) no Letters of Credit remain
outstanding, or (B) the Borrower shall contemporaneously either (x)
cause all outstanding Letters of Credit to be surrendered for
cancellation, or (y) if all of the Lenders with General Revolving
Commitments are, in their discretion, willing to permit Letters of
Credit to remain outstanding if supported by letters of credit issued
by other financial institutions, cause one or more financial
institutions, acceptable to the Required Lenders, to issue letters of
credit, satisfactory to the Administrative Agent, in favor of the
Administrative Agent, supporting the Letters of Credit remaining
outstanding hereunder, or (z) the Borrower shall pay to the
Administrative Agent an amount in cash and/or Cash Equivalents equal to
100% of the Letter of Credit Outstandings and the Administrative Agent
shall hold such payment as security for the reimbursement obligations
of the Borrower hereunder in respect of Letters of Credit pursuant to a
cash collateral agreement to be entered into in form and substance
reasonably satisfactory to the Administrative Agent and the Borrower
(which shall permit certain investments in Cash Equivalents
satisfactory to the Administrative Agent and the Borrower until the
proceeds are applied to the secured obligations);
(b) terminate the Swing Line Revolving Commitment, PROVIDED
that all outstanding Swing Line Revolving Loans are contemporaneously
prepaid in accordance with section 5.1;
(c) partially and permanently reduce the Unutilized Total
General Revolving Commitment, PROVIDED that (i) any such reduction
shall apply to proportionately and permanently reduce the General
Revolving Commitment of each of the Lenders; (ii) any partial reduction
of the Unutilized Total General Revolving Commitment pursuant to this
section 4.2(c) shall be in the amount of at least $10,000,000 (or, if
greater, in integral multiples of $1,000,000); and (iii) after giving
effect to any such partial reduction of the Unutilized Total General
Revolving Commitment, the Total General Revolving Commitment then in
effect shall exceed the Swing Line Revolving Commitment then in effect
by at least $10,000,000; and/or
(d) partially and permanently reduce the Unutilized Swing Line
Revolving Commitment, PROVIDED that any partial reduction of the
Unutilized Swing Line Revolving Commitment pursuant to this section
4.2(d) shall be in the amount of at least $1,000,000 (or, if greater,
in integral multiples of $1,000,000).
4.3. MANDATORY TERMINATION OF COMMITMENTS, ETC. (a) The Total
Commitment (and the Commitment of each Lender) shall terminate on August 15,
1998, unless the Closing Date has occurred on or prior to such date.
(b) The Total Commitment shall terminate (and the Commitment of each
Lender shall terminate) on the date on which a Change of Control occurs.
4.4. EXTENSION OF MATURITY DATE. At any time after January 1, 2001,
and during the 30 day period following delivery by the Borrower pursuant to
section 8.1(a) of its consolidated financial statements for its fiscal year most
recently ended, and annually thereafter during the 30 day period following
delivery by the Borrower of its consolidated financial statements pursuant to
section 8.1(a), the Borrower may request the Administrative Agent to determine
if all of the Lenders are then willing to extend the Maturity Date for a single
additional year. If the Borrower so requests, the Administrative Agent will so
advise such Lenders. If all of such Lenders in their sole discretion are all
willing to so extend the Maturity Date, after taking into account such
considerations as any such
39
Lender may deem relevant, the Borrower, the Administrative Agent and all of such
Lenders shall execute and deliver a definitive written instrument so extending
the Maturity Date. No such extension of the Maturity Date shall be valid or
effective for any purpose unless such definitive written instrument is so signed
and delivered within 60 days following the giving by the Administrative Agent of
notice to the Lenders that the Borrower has requested such an extension.
SECTION 5. PAYMENTS.
5.1. VOLUNTARY PREPAYMENTS. The Borrower shall have the right to prepay
any of its Loans, in whole or in part, without premium or penalty, from time to
time on the following terms and conditions:
(a) the Borrower shall give the Administrative Agent at the
Notice Office written or telephonic notice (in the case of telephonic
notice, promptly confirmed in writing if so requested by the
Administrative Agent) of its intent to prepay the Loans, the amount of
such prepayment and (in the case of Eurocurrency Loans) the specific
Borrowing(s) pursuant to which made, which notice shall be received by
the Administrative Agent by
(x) 11:00 A.M. (local time at the Notice Office) three
Business Days prior to the date of such prepayment, in the
case of any prepayment of Eurocurrency Loans, or
(y) 12:00 noon (local time at the Notice Office) on the
date of such prepayment, in the case of any prepayment of
Prime Rate Loans or Money Market Rate Loans,
and which notice shall promptly be transmitted by the Administrative
Agent to each of the affected Lenders;
(b) in the case of prepayment of any Borrowings under the
General Revolving Facility, each partial prepayment of any such
Borrowing shall be in an aggregate principal of at least:
(i) $1,000,000 or an integral multiple of $500,000 in
excess thereof, in the case of Prime Rate Loans,
(ii) $1,000,000 or an integral multiple of $500,000 in
excess thereof, in the case of Eurocurrency Loans denominated
in Dollars, and
(iii) the substantial equivalent of $1,000,000 or an
integral multiple of the substantial equivalent of $500,000 in
excess thereof, in the case of Eurocurrency Loans denominated
in an Alternative Currency;
(c) in the case of prepayment of any Borrowings under the
Swing Line Revolving Facility, each partial prepayment of any such
Borrowing shall be in an aggregate principal of at least $100,000 or an
integral multiple of $50,000 in excess thereof;
(d) no partial prepayment of any Loans made pursuant to a
Borrowing shall reduce the aggregate principal amount of such Loans
outstanding pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto;
(e) each prepayment in respect of any Loans made pursuant to a
Borrowing shall be applied PRO RATA among such Loans; and
(f) each prepayment of Eurocurrency Loans or Money Market Rate
Loans pursuant to this section 5.1 on any date other than the last day
of the Interest Period applicable thereto, in the case of
40
Eurocurrency Loans, or the maturity date thereof, in the case of Money
Market Rate Loans, shall be accompanied by any amounts payable in
respect thereof under section 2.11.
5.2. MANDATORY PREPAYMENTS. The Loans shall be subject to mandatory
prepayment in accordance with the following provisions:
(a) IF OUTSTANDING GENERAL REVOLVING LOANS AND LETTER OF
CREDIT OUTSTANDINGS EXCEED TOTAL GENERAL REVOLVING COMMITMENT. If on
any date (after giving effect to any other payments on such date) the
sum of (i) the aggregate outstanding principal amount of General
Revolving Loans PLUS (ii) the aggregate amount of Letter of Credit
Outstandings, exceeds the Total General Revolving Commitment as then in
effect, the Borrower shall prepay on such date that principal amount of
General Revolving Loans and, after General Revolving Loans have been
paid in full, Unpaid Drawings, in an aggregate amount at least equal to
such excess and conforming in the case of partial prepayments of
General Revolving Loans to the requirements as to the amounts of
partial prepayments of General Revolving Loans which are contained in
section 5.1. If, after giving effect to the prepayment of General
Revolving Loans and Unpaid Drawings, the aggregate amount of Letter of
Credit Outstandings exceeds the Total General Revolving Commitment as
then in effect, the Borrower shall pay to the Administrative Agent an
amount in cash and/or Cash Equivalents equal to such excess and the
Administrative Agent shall hold such payment as security for the
reimbursement obligations of the Borrower hereunder in respect of
Letters of Credit pursuant to a cash collateral agreement to be entered
into in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower (which shall permit certain
investments in Cash Equivalents satisfactory to the Administrative
Agent and the Borrower until the proceeds are applied to the secured
obligations).
(b) IF OUTSTANDING SWING LINE REVOLVING LOANS EXCEED
UNUTILIZED TOTAL GENERAL REVOLVING COMMITMENT. If on any date (after
giving effect to any other payments on such date) the aggregate
outstanding principal amount of Swing Line Revolving Loans exceeds the
Unutilized Total General Revolving Commitment as then in effect, the
Borrower shall prepay on such date Swing Line Revolving Loans in an
aggregate amount at least equal to such excess and conforming in the
case of partial prepayments of Swing Line Revolving Loans to the
requirements as to the amounts of partial prepayments of Swing Line
Revolving Loans which are contained in section 5.1.
(c) IF OUTSTANDING SWING LINE REVOLVING LOANS EXCEED SWING
LINE REVOLVING COMMITMENT. If on any date (after giving effect to any
other payments on such date) the aggregate outstanding principal amount
of Swing Line Revolving Loans exceeds the Swing Line Revolving
Commitment at such time, the Borrower shall prepay on such date Swing
Line Revolving Loans in an aggregate amount at least equal to such
excess and conforming in the case of partial prepayments of Swing Line
Revolving Loans to the requirements as to the amounts of partial
prepayments of Swing Line Revolving Loans which are contained in
section 5.1.
(d) IF OUTSTANDING GENERAL REVOLVING LOANS DENOMINATED IN
ALTERNATIVE CURRENCIES EXCEED ALTERNATIVE CURRENCY SUBLIMIT. If on any
date (after giving effect to any other payments on such date) the U.S.
Dollar equivalent of the aggregate outstanding principal amount of
General Revolving Loans denominated in Alternative Currencies exceeds
the Alternative Currency Sublimit, the Borrower shall prepay on such
date General Revolving Loans denominated in Alternative Currencies in
an aggregate amount at least equal to such excess and conforming in the
case of partial prepayments of General Revolving Loans to the
requirements as to the amounts of partial prepayments of General
Revolving Loans which are contained in section 5.1.
(e) CHANGE OF CONTROL. On the date of which a Change of
Control occurs, notwithstanding anything to the contrary contained in
this Agreement, no further Borrowings shall be made and the then
outstanding principal amount of all Loans, if any, shall become due and
payable and shall be prepaid in full, and the Borrower shall
contemporaneously either (i) cause all outstanding Letters of Credit to
be surrendered for cancellation, or (ii) if all of the Lenders with
General Revolving Commitments are, in their discretion, willing to
permit Letters of Credit to remain outstanding if supported by letters
of credit issued by other
41
financial institutions, cause one or more financial institutions,
acceptable to the Required Lenders, to issue letters of credit,
satisfactory to the Administrative Agent, in favor of the
Administrative Agent, supporting the Letters of Credit remaining
outstanding hereunder, or (iii) the Borrower shall pay to the
Administrative Agent an amount in cash and/or Cash Equivalents equal to
100% of the Letter of Credit Outstandings and the Administrative Agent
shall hold such payment as security for the reimbursement obligations
of the Borrower hereunder in respect of Letters of Credit pursuant to a
cash collateral agreement to be entered into in form and substance
reasonably satisfactory to the Administrative Agent and the Borrower
(which shall permit certain investments in Cash Equivalents
satisfactory to the Administrative Agent and the Borrower until the
proceeds are applied to the secured obligations).
(f) PARTICULAR LOANS TO BE PREPAID. With respect to each
repayment or prepayment of Loans required by this section 5.2, the
Borrower shall designate the Types of Loans which are to be prepaid and
the specific Borrowing(s) pursuant to which such repayment or
prepayment is to be made, PROVIDED that (i) the Borrower shall first so
designate all Loans that are Prime Rate Loans and Eurocurrency Loans
with Interest Periods ending on the date of repayment or prepayment
prior to designating any other Eurocurrency Loans for repayment or
prepayment, (ii) if the outstanding principal amount of Eurocurrency
Loans made pursuant to a Borrowing is reduced below the applicable
Minimum Borrowing Amount as a result of any such repayment or
prepayment, then all the Loans outstanding pursuant to such Borrowing
shall be converted into Prime Rate Loans, and (iii) each repayment and
prepayment of any Loans made pursuant to a Borrowing shall be applied
PRO RATA among such Loans. In the absence of a designation by the
Borrower as described in the preceding sentence, the Administrative
Agent shall, subject to the above, make such designation in its sole
discretion with a view, but no obligation, to minimize breakage costs
owing under section 2.11. Any repayment or prepayment of Eurocurrency
Loans or Money Market Rate Loans pursuant to this section 5.2 shall in
all events be accompanied by such compensation as is required by
section 2.11.
5.3. METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the
Administrative Agent for the ratable (based on its PRO RATA share) account of
the Lenders entitled thereto, not later than 12:00 noon (local time at the
Payment Office) on the date when due and shall be made at the Payment Office in
immediately available funds and (i) in the case of payments of principal or
interest relating to General Revolving Loans denominated in an Alternative
Currency, in that Alternative Currency, and (ii) in all other cases, in lawful
money of the United States of America, it being understood that written notice
by the Borrower to the Administrative Agent to make a payment from the funds in
the Borrower's account at the Payment Office shall constitute the making of such
payment to the extent of such funds held in such account. Any payments under
this Agreement which are made later than 12:00 noon (local time at the Payment
Office) shall be deemed to have been made on the next succeeding Business Day.
Whenever any payment to be made hereunder shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
5.4. NET PAYMENTS. (a) All payments made by the Borrower hereunder,
under any Note or any other Credit Document, will be made without setoff,
counterclaim or other defense. Except as provided for in section 5.4(b), all
such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in the
second succeeding sentence, any tax, imposed on or measured by the net income or
net profits of a Lender pursuant to the laws of the jurisdiction under which
such Lender is organized or the jurisdiction in which the principal office or
Applicable Lending Office of such Lender is located or any subdivision thereof
or therein) and all interest, penalties or similar liabilities with respect to
such non excluded taxes, levies imposts, duties, fees, assessments or other
charges (all such nonexcluded taxes levies, imposts, duties, fees assessments or
other charges being referred to collectively as "TAXES"). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes and
such additional amounts as may be necessary so that every payment by it of all
amounts due hereunder, under any Note or under any other Credit Document, after
withholding or deduction for or on account of any Taxes will not be less than
the amount provided for herein or in such Note or
42
in such other Credit Document. If any amounts are payable in respect of Taxes
pursuant to the preceding sentence, the Borrower agrees to reimburse each
Lender, upon the written request of such Lender for taxes imposed on or measured
by the net income or profits of such Lender pursuant to the laws of the
jurisdiction in which such Lender is organized or in which the principal office
or Applicable Lending Office of such Lender is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which the
principal office or Applicable Lending Office of such Lender is located and for
any withholding of income or similar taxes imposed by the United States of
America as such Lender shall determine are payable by, or withheld from, such
Lender in respect of such amounts so paid to or on behalf of such Lender
pursuant to the preceding sentence and in respect of any amounts paid to or on
behalf of such Lender pursuant to this sentence, which request shall be
accompanied by a statement from such Lender setting forth, in reasonable detail,
the computations used in determining such amounts. The Borrower will furnish to
the Administrative Agent within 45 days after the date the payment of any Taxes,
or any withholding or deduction on account thereof, is due pursuant to
applicable law certified copies of tax receipts, or other evidence satisfactory
to the Lender, evidencing such payment by the Borrower. The Borrower will
indemnify and hold harmless the Administrative Agent and each Lender, and
reimburse the Administrative Agent or such Lender upon its written request, for
the amount of any Taxes so levied or imposed and paid or withheld by such
Lender.
(b) Each Lender that is not a United States person (as such term is
defined in section 7701(a)(30) of the Code) for Federal income tax purposes
agrees to provide to the Borrower and the Administrative Agent on or prior to
the Effective Date, or in the cases of a Lender that is an assignee or
transferee of an interest under this Agreement pursuant to section 12.4 (unless
the respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer and such Lender is in compliance with the provisions of
this section 5.4(b)), on the date of such assignment or transfer to such Lender,
(i) two accurate and complete original signed copies of Internal Revenue Service
Form 4224 or 1001 (or successor forms) certifying to such Lender's entitlement
to a complete exemption from United States withholding tax with respect to
payments to be made under this Agreement, any Note or any other Credit Document,
or (ii) if the Lender is not a "bank" within the meaning of section 881(c)(3)(A)
of the Code and cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit E (any such certificate, a "SECTION 5.4(B)(II) CERTIFICATE") and (y) two
accurate and complete original signed copies of Internal Revenue Service Form
W-8 (or successor form) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement, any Note or any other Credit Document.
In addition, each Lender agrees that from time to time after the Effective Date,
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the Borrower and the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001, or Form W-8 and a
Section 5.4(b)(ii) Certificate, as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement, any Note or any other Credit Document,
or it shall immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate, in which case such Lender
shall not be required to deliver any such Form or Certificate pursuant to this
section 5.4(b). Notwithstanding anything to the contrary contained in section
5.4(a), but subject to section 12.4(b) and the immediately succeeding sentence,
(x) the Borrower shall be entitled, to the extent it is required to do so by
law, to deduct or withhold income or other similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of any
Lender which is not a United States person (as such term is defined in section
7701(a)(30) of the Code) for United States federal income tax purposes and which
has not provided to the Borrower such forms that establish a complete exemption
from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to section 5.4(a) hereof to gross-up payments to be made to a Lender in
respect of income or similar taxes imposed by the United States or any
additional amounts with respect thereto (I) if such Lender has not provided to
the Borrower the Internal Revenue Service forms required to be provided to the
Borrower pursuant to this section 5.4(b) or (II) in the case of a payment other
than interest, to a Lender described in clause (ii) above, to the extent that
such forms do not establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this section 5.4 and except as specifically provided for in section
12.4(b), the Borrower agrees to pay additional amounts and indemnify each Lender
in the manner set forth in section 5.4(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any Taxes
deducted or withheld by it as described
43
in the previous sentence as a result of any changes after the Effective Date in
any applicable law, treaty, governmental rule, regulation, guideline or order,
or in the interpretation thereof, relating to the deducting or withholding of
income or similar Taxes.
(c) If any Lender, in its sole opinion, determines that it has finally
and irrevocably received or been granted a refund in respect of any Taxes paid
as to which indemnification has been paid by the Borrower pursuant to this
section, it shall promptly remit such refund (including any interest received in
respect thereof), net of all out-of-pocket costs and expenses; PROVIDED, that
the Borrower agrees to promptly return any such refund (plus interest) to such
Lender in the event such Lender is required to repay such refund to the relevant
taxing authority. Any such Lender shall provide the Borrower with a copy of any
notice of assessment from the relevant taxing authority (redacting any unrelated
confidential information contained therein) requiring repayment of such refund.
Nothing contained herein shall impose an obligation on any Lender to apply for
any such refund.
(d) Reference is hereby made to the provisions of section 2.10(d) for
certain limitations upon the rights of a Lender under this section.
SECTION 6. CONDITIONS PRECEDENT.
6.1. CONDITIONS PRECEDENT AT CLOSING DATE. The obligation of the
Lenders to make Loans, and of any Letter of Credit Issuer to issue Letters of
Credit, is subject to the satisfaction of each of the following conditions on
the Closing Date:
(a) EFFECTIVENESS; NOTES. On or prior to the Closing Date, (i)
the Effective Date shall have occurred and (ii) there shall have been
delivered to the Administrative Agent for the account of each Lender
each appropriate Note executed by the Borrower, in each case, in the
amount, maturity and as otherwise provided herein.
(b) FEES, ETC. The Borrower shall have paid or caused to be
paid all fees required to be paid by it on or prior to such date
pursuant to section 4.1 hereof and all reasonable fees and expenses of
the Administrative Agent and of special counsel to the Administrative
Agent which have been invoiced on or prior to such date in connection
with the preparation, execution and delivery of this Agreement and the
other Credit Documents and the consummation of the transactions
contemplated hereby and thereby.
(c) CORPORATE RESOLUTIONS AND APPROVALS. The Administrative
Agent shall have received, in sufficient quantity for the
Administrative Agent and the Lenders, certified copies of the
resolutions of the Board of Directors of the Borrower, approving the
Credit Documents to which the Borrower is or may become a party, and of
all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to the execution, delivery
and performance by the Borrower of the Credit Documents to which it is
or may become a party.
(d) INCUMBENCY CERTIFICATE. The Administrative Agent shall
have received, in sufficient quantity for the Administrative Agent and
the Lenders, a certificate of the Secretary or an Assistant Secretary
of the Borrower, certifying the names and true signatures of the
officers of the Borrower authorized to sign the Credit Documents to
which the Borrower is a party and any other documents to which the
Borrower is a party which may be executed and delivered in connection
herewith.
(e) OPINION OF COUNSEL. On the Closing Date, the
Administrative Agent shall have received an opinion, addressed to the
Administrative Agent and each of the Lenders and dated the Closing
Date, from ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Borrower,
substantially in the form of Exhibit C hereto and covering such other
matters incident to the transactions contemplated hereby as the
Administrative Agent may reasonably request, such opinion to be in form
and substance satisfactory to the Administrative Agent.
44
(f) EXISTING CREDIT AGREEMENT. Contemporaneously with the
Closing Date, the Borrower shall have terminated the commitments of the
lenders under its Credit Agreement, dated as of September 15, 1997, as
amended, prepaid any borrowings thereunder, and if required in
connection with such termination, made effective provision for any
letters of credit issued thereunder to become Existing Letters of
Credit deemed issued hereunder.
(g) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings and all documents incidental to the transactions
contemplated hereby shall be satisfactory in substance and form to the
Administrative Agent and the Lenders and the Administrative Agent and
its special counsel and the Lenders shall have received all such
counterpart originals or certified or other copies of such documents as
the Administrative Agent or its special counsel or any Lender may
reasonably request.
6.2. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligations of the
Lenders to make each Loan and/or of a Letter of Credit Issuer to issue each
Letter of Credit is subject, at the time thereof, to the satisfaction of the
following conditions:
(a) NOTICE OF BORROWING, ETC. The Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of section 2.3
with respect to the incurrence of Loans or a Letter of Credit Request
meeting the requirement of section 3.2 with respect to the issuance of
a Letter of Credit.
(b) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of
each Credit Event and also after giving effect thereto, (i) there shall
exist no Default or Event of Default and (ii) all representations and
warranties of the Credit Parties contained herein or in the other
Credit Documents shall be true and correct in all material respects
with the same effect as though such representations and warranties had
been made on and as of the date of such Credit Event, except to the
extent that such representations and warranties expressly relate to an
earlier specified date, in which case such representations and
warranties shall have been true and correct in all material respects as
of the date when made.
The acceptance of the benefits of each Loan or issuance of a Letter of Credit
shall constitute a representation and warranty by the Borrower to each of the
Lenders that all of the applicable conditions specified in section 6.1 and/or
6.2, as the case may be, exist as of that time. All of the certificates, legal
opinions and other documents and papers referred to in section 6.1 or this
section 6.2, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts for each of the Lenders, and the
Administrative Agent will promptly distribute to the Lenders their respective
Notes and the copies of such other certificates, legal opinions and documents.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders to enter into this Agreement and to make
the Loans, and/or to issue and/or to participate in the Letters of Credit
provided for herein, the Borrower makes the following representations and
warranties to, and agreements with, the Lenders, all of which shall survive the
execution and delivery of this Agreement and each Credit Event:
7.1. CORPORATE STATUS, ETC. Each of the Borrower and its Subsidiaries
(i) is a duly organized or formed and validly existing corporation, partnership
or limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its formation and has the corporate, partnership or
limited liability company power and authority, as applicable, to own its
property and assets and to transact the business in which it is engaged and
presently proposes to engage, and (ii) has duly qualified and is authorized to
do business in all jurisdictions where it is required to be so qualified except
where the failure to be so qualified would not have a Material Adverse Effect.
7.2. SUBSIDIARIES. Annex II hereto lists, as of the date hereof, each
Subsidiary of the Borrower (and the direct and indirect ownership interest of
the Borrower therein).
45
7.3. CORPORATE POWER AND AUTHORITY, ETC. The Borrower has the corporate
power and authority to execute, deliver and carry out the terms and provisions
of the Credit Documents to which it is party and has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Credit Documents to which it is party. The Borrower has duly executed and
delivered each Credit Document to which it is party and each Credit Document to
which it is party constitutes the legal, valid and binding agreement or
obligation of the Borrower enforceable in accordance with its terms, except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
7.4. NO VIOLATION. Neither the execution, delivery and performance by
the Borrower of the Credit Documents to which it is party nor compliance with
the terms and provisions thereof, nor the consummation of the loan transactions
contemplated therein (i) will contravene any provision of any law, statute,
rule, regulation, order, writ, injunction or decree of any court or governmental
instrumentality applicable to the Borrower or its properties and assets, (ii)
will conflict with or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of the Borrower or any of its Subsidiaries
pursuant to the terms of any promissory note, bond, debenture, indenture,
mortgage, deed of trust, credit or loan agreement, or any other material
agreement or other instrument, to which the Borrower or any of its Subsidiaries
is a party or by which it or any of its property or assets are bound or to which
it may be subject, or (iii) will violate any provision of the articles of
incorporation or code of regulations of the Borrower.
7.5. GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required as a
condition to (i) the execution, delivery and performance by the Borrower of any
Credit Document or (ii) the legality, validity, binding effect or enforceability
of any Credit Document.
7.6. LITIGATION. There are no actions, suits or proceedings pending or,
to, the knowledge of the Borrower, threatened with respect to the Borrower or
any of its Subsidiaries (i) that have, or could reasonably be expected to have,
a Material Adverse Effect, or (ii) which question the validity or enforceability
of any of the Credit Documents, or of any action to be taken by the Borrower
pursuant to any of the Credit Documents.
7.7. USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of all Loans
shall be utilized for lawful purposes not inconsistent with the requirements of
this Agreement.
(b) No part of the proceeds of any Credit Event will be used directly
or indirectly to purchase or carry Margin Stock, or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock, in violation of any
of the provisions of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System. The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. At no time
would more than 25% of the value of the assets of the Borrower or of the
Borrower and its consolidated Subsidiaries that are subject to any "arrangement"
(as such term is used in section 221.2(g) of such Regulation U) hereunder be
represented by Margin Stock.
7.8. FINANCIAL STATEMENTS, ETC. (a) The Borrower has furnished to the
Lenders and the Administrative Agent complete and correct copies of (i) the
audited consolidated balance sheets of the Borrower and its consolidated
subsidiaries as of December 31, 1997 and December 31, 1996 and the related
audited consolidated statements of income, shareholders' equity, and cash flows
of the Borrower and its consolidated subsidiaries for the fiscal years then
ended, accompanied by the report thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP; and (ii) the
condensed consolidated balance sheets of the Borrower and its consolidated
subsidiaries as of March 31, 1998, and the related condensed consolidated
statements of income and of cash flows of the Borrower and its consolidated
subsidiaries for the three months then ended, as included in the Borrower's
Report on Form 10-Q filed with the SEC. All such financial statements have been
prepared in accordance with GAAP, consistently applied (except as stated
therein), and fairly present the financial position of the Borrower and its
consolidated subsidiaries as of the respective dates indicated and the
46
consolidated results of their operations and cash flows for the respective
periods indicated, subject in the case of any such financial statements which
are unaudited, to normal audit adjustments, none of which will involve a
Material Adverse Effect.
(b) The Borrower has received consideration which is the reasonable
equivalent value of the obligations and liabilities that the Borrower has
incurred to the Administrative Agent and the Lenders. The Borrower now has
capital sufficient to carry on its business and transactions and all business
and transactions in which it is about to engage and is now solvent and able to
pay its debts as they mature and the Borrower, as of the Closing Date, owns
property having a value, both at fair valuation and at present fair salable
value, greater than the amount required to pay the Borrower's debts; and the
Borrower is not entering into the Credit Documents with the intent to hinder,
delay or defraud its creditors. For purposes of this section 7.8(b), "DEBT"
means any liability on a claim, and "CLAIM" means (x) right to payment whether
or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured; or (y) right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
(c) The Borrower has delivered to the Lenders prior to the execution
and delivery of this Agreement a copy of the Borrower's Report on Form 10-K as
filed (without Exhibits) with the SEC for its fiscal year ended December 30,
1997, which contains a general description of the business and affairs of the
Borrower and its Subsidiaries.
7.9. NO MATERIAL ADVERSE CHANGE. Since December 31, 1997, there has
been no change in the condition, business or affairs of the Borrower and its
Subsidiaries taken as a whole, or their properties and assets considered as an
entirety, except for changes none of which, individually or in the aggregate,
has had or could reasonably be expected to have, a Material Adverse Effect.
7.10. TAX RETURNS AND PAYMENTS. Each of the Borrower and each of its
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, other than
those not yet delinquent and except for those contested in good faith. The
Borrower and each of its Subsidiaries has established on its books such charges,
accruals and reserves in respect of taxes, assessments, fees and other
governmental charges for all fiscal periods as are required by GAAP. The
Borrower knows of no proposed assessment for additional federal, foreign or
state taxes for any period, or of any basis therefor, which, individually or in
the aggregate, taking into account such charges, accruals and reserves in
respect thereof as the Borrower and its Subsidiaries have made, could reasonably
be expected to have a Material Adverse Effect.
7.11. TITLE TO PROPERTIES, ETC. The Borrower and each of its
Subsidiaries has good and marketable title, in the case of real property, and
good title (or valid Leaseholds, in the case of any leased property), in the
case of all other property, to all of its properties and assets free and clear
of Liens other than Liens permitted by section 9.3. The interests of the
Borrower and each of its Subsidiaries in the properties reflected in the most
recent balance sheet referred to in section 7.8, taken as a whole, were
sufficient, in the judgment of the Borrower, as of the date of such balance
sheet for purposes of the ownership and operation of the businesses conducted by
the Borrower and such Subsidiaries.
7.12. LAWFUL OPERATIONS, ETC. Except for known situations or incidents
which are reserved for on the most recent consolidated balance sheet referred to
in section 7.8 or which, if not so reserved, could not reasonably be expected to
have a Material Adverse Effect, the Borrower and each of its Subsidiaries is in
full compliance with all material requirements imposed by law, whether federal
or state, including (without limitation) Environmental Laws and zoning
ordinances.
7.13. ENVIRONMENTAL MATTERS. (a) The Borrower and each of its
Subsidiaries is in compliance with all Environmental Laws governing its
business, except to the extent that any such failure to comply (together with
any resulting penalties, fines or forfeitures) would not reasonably be expected
to have a Material Adverse Effect. All
47
licenses, permits, registrations or approvals required for the business of the
Borrower and each of its Subsidiaries under any Environmental Law have been
secured and the Borrower and each of its Subsidiaries is in substantial
compliance therewith, except for such licenses, permits, registrations or
approvals the failure to secure or to comply therewith is not reasonably likely
to have a Material Adverse Effect. Neither the Borrower nor any of its
Subsidiaries has received written notice, or otherwise knows, that it is in any
respect in noncompliance with, breach of or default under any Environmental
Laws, and no event has occurred and is continuing which, with the passage of
time or the giving of notice or both, would constitute noncompliance, breach of
or default thereunder, except in each such case, such noncompliance, breaches or
defaults as would not reasonably be expected to, in the aggregate, have a
Material Adverse Effect. There are no Environmental Claims pending or, to the
best knowledge of the Borrower, threatened wherein an unfavorable decision,
ruling or finding would reasonably be expected to have a Material Adverse
Effect.
(b) Hazardous Materials have not at any time been (i) generated,
used, treated or stored on, or transported to or from, any Real Property of the
Borrower or any of its Subsidiaries or (ii) released on any such Real Property,
in each case where such occurrence or event is not in compliance with
Environmental Laws and is reasonably likely to have a Material Adverse Effect.
7.14. COMPLIANCE WITH ERISA. Compliance by the Borrower with the
provisions hereof and Credit Events contemplated hereby will not involve any
prohibited transaction within the meaning of ERISA or section 4975 of the Code.
The Borrower and each of its Subsidiaries, (i) has fulfilled all obligations
under minimum funding standards of ERISA and the Code with respect to each Plan
that is not a Multiemployer Plan or a Multiple Employer Plan, (ii) has satisfied
all respective contribution obligations in respect of each Multiemployer Plan
and each Multiple Employer Plan, (iii) is in compliance in all material respects
with all other applicable provisions of ERISA and the Code with respect to each
Plan, each Multiemployer Plan and each Multiple Employer Plan, and (iv) has not
incurred any liability under the Title IV of ERISA to the PBGC with respect to
any Plan, any Multiemployer Plan, any Multiple Employer Plan, or any trust
established thereunder. No Plan or trust created thereunder has been terminated,
and there have been no Reportable Events, with respect to any Plan or trust
created thereunder or with respect to any Multiemployer Plan or Multiple
Employer Plan, which termination or Reportable Event will or could result in the
termination of such Plan, Multiemployer Plan or Multiple Employer Plan and give
rise to a material liability of the Borrower or any ERISA Affiliate in respect
thereof. Neither the Borrower nor any ERISA Affiliate is at the date hereof, or
has been at any time within the two years preceding the date hereof, an employer
required to contribute to any Multiemployer Plan or Multiple Employer Plan, or a
"contributing sponsor" (as such term is defined in section 4001 of ERISA) in any
Multiemployer Plan or Multiple Employer Plan. Neither the Borrower nor any ERISA
Affiliate has any contingent liability with respect to any post-retirement
"welfare benefit plan" (as such term is defined in ERISA) except as has been
disclosed to the Lenders in writing.
7.15. INTELLECTUAL PROPERTY, ETC. The Borrower and each of its
Subsidiaries has obtained or has the right to use all material patents,
trademarks, service marks, trade names, copyrights, licenses and other rights
with respect to the foregoing necessary for the present and planned future
conduct of its business, without any known conflict with the rights of others,
EXCEPT for such patents, trademarks, service marks, trade names, copyrights,
licenses and rights, the loss of which, and such conflicts, which in any such
case individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
7.16. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor any of its
Subsidiaries is subject to regulation with respect to the creation or incurrence
of Indebtedness under the Investment Borrower Act of 1940, as amended, the
Interstate Commerce Act, as amended, the Federal Power Act, as amended, the
Public Utility Holding Company Act of 1935, as amended, or any applicable state
public utility law.
7.17. YEAR 2000 COMPUTER MATTERS. The Borrower and its Subsidiaries
have reviewed the areas within their business and operations which could be
adversely affected by, and have developed or are developing a program to address
on a timely basis the "Year 2000 Computer Issue" (that is, the risk that
computer applications used by the Borrower and its Subsidiaries may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999). Based on such review and
program, the Borrower reasonably believes that the "Year 2000 Computer Issue" is
not reasonably likely to have a Material Adverse Effect.
48
7.18. EXISTING INDEBTEDNESS. Annex III sets forth a true and complete
list, as of the date or dates set forth therein, of all Indebtedness of the
Borrower and each of its Subsidiaries, on a consolidated basis, which (i) has an
outstanding principal amount of at least $1,000,000, or may be incurred pursuant
to existing commitments or lines of credit, or (ii) is secured by any Lien on
any property of the Borrower or any Subsidiary, and which will be outstanding on
the Closing Date after giving effect to any Borrowing hereunder which is
expected to be made on the Closing Date, other than the Indebtedness created
under the Credit Documents (all such Indebtedness, whether or not in a principal
amount meeting such threshold and required to be so listed on Annex III, herein
the "EXISTING INDEBTEDNESS"). The Borrower has provided to the Administrative
Agent prior to the date of execution hereof true and complete copies (or summary
descriptions) of all agreements and instruments governing the Indebtedness
listed on Annex III (the "EXISTING INDEBTEDNESS AGREEMENTS").
7.19. TRUE AND COMPLETE DISCLOSURE. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of the Borrower
or any of its Subsidiaries in writing to the Administrative Agent or any Lender
for purposes of or in connection with this Agreement or any transaction
contemplated herein, is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of such person in writing to any
Lender will be, true and accurate in all material respects on the date as of
which such information is dated or certified and not incomplete by omitting to
state any material fact necessary to make such information (taken as a whole)
not misleading at such time in light of the circumstances under which such
information was provided, except that any such future information consisting of
financial projections prepared by the Borrower is only represented herein as
being based on good faith estimates and assumptions believed by such persons to
be reasonable at the time made, it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
materially from the projected results.
SECTION 8. AFFIRMATIVE COVENANTS.
The Borrower hereby covenants and agrees that so long as this Agreement
is in effect and until such time as the Total Commitment has been terminated, no
Notes are outstanding and the Loans, together with interest, Fees and all other
Obligations hereunder, have been paid in full:
8.1. REPORTING REQUIREMENTS. The Borrower will furnish to each Lender
and the Administrative Agent:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in
any event within 120 days after the close of each fiscal year of the
Borrower, the consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income, of stockholders' equity and
of cash flows for such fiscal year, in each case setting forth
comparative figures for the preceding fiscal year, all in reasonable
detail and accompanied by the opinion with respect to such consolidated
financial statements of independent public accountants of recognized
national standing selected by the Borrower, which opinion shall be
unqualified and shall (i) state that such accountants audited such
consolidated financial statements in accordance with generally accepted
auditing standards, that such accountants believe that such audit
provides a reasonable basis for their opinion, and that in their
opinion such consolidated financial statements present fairly, in all
material respects, the consolidated financial position of the Borrower
and its consolidated subsidiaries as at the end of such fiscal year and
the consolidated results of their operations and cash flows for such
fiscal year in conformity with generally accepted accounting
principles, or (ii) contain such statements as are customarily included
in unqualified reports of independent accountants in conformity with
the recommendations and requirements of the American Institute of
Certified Public Accountants (or any successor organization).
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in
any event within 45 days after the close of each of the quarterly
accounting periods in each fiscal year of the Borrower, the unaudited
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarterly period and the related
unaudited consolidated statements of income and of cash flows for such
quarterly
49
period and/or for the fiscal year to date, and setting forth, in the
case of such unaudited consolidated statements of income and of cash
flows, comparative figures for the related periods in the prior fiscal
year, and which shall be certified on behalf of the Borrower by the
Chief Financial Officer or other Authorized Officer of the Borrower,
subject to changes resulting from normal year-end audit adjustments.
(c) OFFICER'S COMPLIANCE CERTIFICATES. At the time of the
delivery of the financial statements provided for in sections 8.1(a)
and (b), a certificate on behalf of the Borrower of the Chief Financial
Officer or other Authorized Officer of the Borrower to the effect that,
to the best knowledge of the Borrower, no Default or Event of Default
exists or, if any Default or Event of Default does exist, specifying
the nature and extent thereof and the actions the Borrower proposes to
take with respect thereto, which certificate shall set forth the
calculations required to establish compliance with the provisions of
sections 9.4(c), 9.4(g), 9.5(l), 9.5(m), 9.7, 9.8 and, 9.9 of this
Agreement.
(d) NOTICE OF DEFAULT, LITIGATION OR CERTAIN MATTERS INVOLVING
MAJOR CUSTOMERS OR SUPPLIERS. Promptly, and in any event within three
Business Days, in the case of clause (i) below, or five Business Days,
in the case of clause (ii) or (iii) below, after the Borrower or any of
its Subsidiaries obtains knowledge thereof, notice of
(i) the occurrence of any event which constitutes a
Default or Event of Default, which notice shall specify the
nature thereof, the period of existence thereof and what
action the Borrower proposes to take with respect thereto,
(ii) any litigation or governmental or regulatory
proceeding pending against the Borrower or any of its
Subsidiaries which is likely to have a Material Adverse Effect
or a material adverse effect on the ability of the Borrower to
perform its obligations hereunder or under any other Credit
Document, and
(iii) any significant adverse change (in the Borrower's
reasonable judgment) in the Borrower's or any Subsidiary's
relationship with, or any significant event or circumstance
which is in the Borrower's reasonable judgment likely to
adversely affect the Borrower's or any Subsidiary's
relationship with, (A) any customer (or related group of
customers) representing more than 10% of the Borrower's
consolidated revenues during its most recent fiscal year, or
(B) any supplier which is material to the operations of the
Borrower and its Subsidiaries considered as an entirety.
(e) ERISA. Promptly, and in any event within 10 days after the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate knows
of the occurrence of any of the following, the Borrower will deliver to
each of the Lenders a certificate on behalf of the Borrower of an
Authorized Officer of the Borrower setting forth the full details as to
such occurrence and the action, if any, that the Borrower, such
Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed
with or by the Borrower, the Subsidiary, the ERISA Affiliate, the PBGC,
a Plan participant or the Plan administrator with respect thereto:
(i) that a Reportable Event has occurred with respect to
any Plan;
(ii) the institution of any steps by the Borrower, any
ERISA Affiliate, the PBGC or any other person to terminate any
Plan;
(iii) the institution of any steps by the Borrower or any
ERISA Affiliate to withdraw from any Plan;
50
(iv) the institution of any steps by the Borrower or any
Subsidiary to withdraw from any Multiemployer Plan or Multiple
Employer Plan, if such withdrawal could result in withdrawal
liability (as described in Part 1 of Subtitle E of Title IV of
ERISA) in excess of $2,000,000;
(v) a non-exempt "prohibited transaction" within the
meaning of section 406 of ERISA in connection with any Plan;
(vi) that a Plan has an Unfunded Current Liability
exceeding $5,000,000;
(vii) any material increase in the contingent liability
of the Borrower or any Subsidiary with respect to any post-
retirement welfare liability; or
(viii) the taking of any action by, or the
threatening of the taking of any action by, the Internal
Revenue Service, the Department of Labor or the PBGC with
respect to any of the foregoing.
(f) ENVIRONMENTAL MATTERS. Promptly upon, and in any event
within 10 Business Days after, an officer of the Borrower or any of its
Subsidiaries obtains knowledge thereof, notice of one or more of the
following environmental matters: (i) any pending or threatened material
Environmental Claim against the Borrower or any of its Subsidiaries or
any Real Property owned or operated by the Borrower or any of its
Subsidiaries; (ii) any condition or occurrence on or arising from any
Real Property owned or operated by the Borrower or any of its
Subsidiaries that (A) results in material noncompliance by the Borrower
or any of its Subsidiaries with any applicable Environmental Law or (B)
would reasonably be expected to form the basis of a material
Environmental Claim against the Borrower or any of its Subsidiaries or
any such Real Property; (iii) any condition or occurrence on any Real
Property owned, leased or operated by the Borrower or any of its
Subsidiaries that could reasonably be expected to cause such Real
Property to be subject to any material restrictions on the ownership,
occupancy, use or transferability by the Borrower or any of its
Subsidiaries of such Real Property under any Environmental Law; and
(iv) the taking of any material removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Property owned, leased or operated by the Borrower or any of its
Subsidiaries as required by any Environmental Law or any governmental
or other administrative agency. All such notices shall describe in
reasonable detail the nature of the Environmental Claim and the
Borrower's or such Subsidiary's response thereto.
(g) SEC REPORTS AND REGISTRATION STATEMENTS. Promptly upon
transmission thereof or other filing with the SEC, copies of all
registration statements (other than the exhibits thereto and any
registration statement on Form S-8 or its equivalent) and annual,
quarterly or current reports that the Borrower or any of its
Subsidiaries files with the SEC.
(h) OTHER INFORMATION. With reasonable promptness, such other
information or documents (financial or otherwise) relating to the
Borrower or any of its Subsidiaries as any Lender may reasonably
request from time to time.
8.2. BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and will
cause each of its Subsidiaries to, (i) keep proper books of record and account,
in which full and correct entries shall be made of all financial transactions
and the assets and business of the Borrower or such Subsidiaries, as the case
may be, in accordance with GAAP; and (ii) permit, upon at least 10 Business
Days' notice to the Chief Financial Officer of the Borrower, officers and
designated representatives of the Administrative Agent or any of the Lenders to
visit and inspect any of the properties or assets of the Borrower and any of its
Subsidiaries in whomsoever's possession (but only to the extent the Borrower or
such Subsidiary has the right to do so to the extent in the possession of
another person), to examine the books of account of the Borrower and any of its
Subsidiaries, and make copies thereof and take extracts therefrom, and to
discuss the affairs, finances and accounts of the Borrower and of any of its
Subsidiaries with, and be advised as to the same by, its and their officers and
independent accountants and independent actuaries, if any, all at such
51
reasonable times and intervals and to such reasonable extent as the
Administrative Agent or any of the Lenders may request.
8.3. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, (i) maintain insurance coverage by such insurers and in such
forms and amounts and against such risks as are generally consistent with the
insurance coverage maintained by the Borrower and its Subsidiaries at the date
hereof, and (ii) forthwith upon any Lender's written request, furnish to such
Lender such information about such insurance as such Lender may from time to
time reasonably request, which information shall be prepared in form and detail
satisfactory to such Lender and certified by an Authorized Officer of the
Borrower.
8.4. PAYMENT OF TAXES AND CLAIMS. The Borrower will pay and discharge,
and will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien or charge upon any properties of the Borrower or any of its
Subsidiaries; PROVIDED that neither the Borrower nor any of its Subsidiaries
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP; and PROVIDED,
FURTHER, that the Borrower will not be considered to be in default of any of the
provisions of this sentence if the Borrower or any Subsidiary fails to pay any
such amount which, individually or in the aggregate, is immaterial. Without
limiting the generality of the foregoing, the Borrower will, and will cause each
of its Subsidiaries to, pay in full all of its wage obligations to its employees
in accordance with the Fair Labor Standards Act (29 U.S.C. sections 206-207) and
any comparable provisions of applicable law.
8.5. CORPORATE FRANCHISES. The Borrower will do, and will cause each of
its Subsidiaries to do, or cause to be done, all things necessary to preserve
and keep in full force and effect its corporate existence, rights and authority,
PROVIDED that any transaction permitted by section 9.2 will not constitute a
breach of this section 8.5.
8.6. GOOD REPAIR. The Borrower will, and will cause each of its
Subsidiaries to, ensure that its material properties and equipment used or
useful in its business in whomsoever's possession they may be, are kept in good
repair, working order and condition, normal wear and tear excepted, and that
from time to time there are made in such properties and equipment all needful
and proper repairs, renewals, replacements, extensions, additions, betterments
and improvements, thereto, to the extent and in the manner customary for
companies in similar businesses.
8.7. COMPLIANCE WITH STATUTES, ETC. The Borrower will, and will cause
each of its Subsidiaries to, comply, in all material respects, with all
applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of its business and the ownership of its property, other than those the
noncompliance with which would not have, and which would not be reasonably
expected to have, a Material Adverse Effect or a material adverse effect on the
ability of the Borrower to perform its obligations under any Credit Document.
8.8. COMPLIANCE WITH ENVIRONMENTAL LAWS. Without limitation of the
covenants contained in section 8.7, the Borrower will comply, and will cause
each of its Subsidiaries to comply, in all material respects, with all
Environmental Laws applicable to the ownership, lease or use of all Real
Property now or hereafter owned, leased or operated by the Borrower or any of
its Subsidiaries, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws which are not permitted under section 9.3. Neither the
Borrower nor any of its Subsidiaries will generate, use, treat, store, release
or dispose of, or permit the generation, use, treatment, storage, release or
disposal of, Hazardous Materials on any Real Property now or hereafter owned,
leased or operated by the Borrower or any of its Subsidiaries or transport or
permit the transportation of Hazardous Materials to or from any such Real
Property other than in compliance with applicable Environmental Laws and in the
ordinary course of business, except for such noncompliance as would not have,
and which would not be reasonably expected to have, a Material Adverse Effect or
a material adverse effect on the ability of the Borrower to perform
52
its obligations under any Credit Document. If required to do so under any
applicable order of any governmental agency, the Borrower will undertake, and
cause each of its Subsidiaries to undertake, any clean up, removal, remedial or
other action necessary to remove and clean up any Hazardous Materials from any
Real Property owned, leased or operated by the Borrower or any of its
Subsidiaries in accordance with, in all material respects, the requirements of
all applicable Environmental Laws and in accordance with, in all material
respects, such orders of all governmental authorities, except to the extent that
the Borrower or such Subsidiary is contesting such order in good faith and by
appropriate proceedings and for which adequate reserves have been established to
the extent required by GAAP.
8.9. FISCAL YEARS, FISCAL QUARTERS. If the Borrower shall change any
of its or any of its Subsidiaries' fiscal years or fiscal quarters (other than
the fiscal year or fiscal quarters of a person which becomes a Subsidiary, made
at the time such person becomes a Subsidiary to conform to the Borrower's fiscal
year and fiscal quarters), the Borrower will promptly, and in any event within
30 days following any such change, deliver a notice to the Administrative Agent
and the Lenders describing such change and any material accounting entries made
in connection therewith and stating whether such change will have any impact
upon any financial computations to be made hereunder, and if any such impact is
foreseen, describing in reasonable detail the nature and extent of such impact.
If the Required Lenders determine that any such change will have any impact upon
any financial computations to be made hereunder which is adverse to the Lenders,
the Borrower will, if so requested by the Administrative Agent, enter into an
amendment to this Agreement, in form and substance satisfactory to the
Administrative Agent and the Required Lenders, modifying any of the financial
covenants or related provisions hereof in such manner as the Required Lenders
determine is necessary to eliminate such adverse effect.
8.10. HEDGE AGREEMENTS, ETC. The Borrower will, and will cause each of
its Subsidiaries to, enter into Hedge Agreements (i) in order to provide
protection to the Borrower or any such Subsidiary from fluctuations and other
changes in interest rates and currency exchange rates, as and to the extent
considered reasonably necessary by the Borrower, but without exposing the
Borrower or its Subsidiaries to predominantly speculative risks unrelated to the
amount of assets, Indebtedness or other liabilities intended to be subject to
coverage on a notional basis under all such Hedge Agreements; and (ii) in the
case of any Hedge Agreement entered into after the Effective Date, only if the
proposed form thereof (including any proposed pricing or other material terms)
has been provided to the Administrative Agent contemporaneously with the entry
into such Hedge Agreement.
8.11. SENIOR DEBT. The Borrower will at all times ensure that (a) the
claims of the Lenders in respect of the Obligations of the Borrower will not be
subordinate to, and will in all respects at least rank PARI PASSU with, the
claims of every other senior unsecured creditor of the Borrower, and (b) any
Indebtedness subordinated in any manner to the claims of any other senior
unsecured creditor of the Borrower will be subordinated in like manner to such
claims of the Lenders.
SECTION 9. NEGATIVE COVENANTS.
The Borrower hereby covenants and agrees that on the Effective Date and
thereafter for so long as this Agreement is in effect and until such time as the
Total Commitment has been terminated, no Notes remain outstanding and the Loans,
together with interest, Fees and all other Obligations incurred hereunder are
paid in full:
9.1. CHANGES IN BUSINESS. Neither the Borrower nor any of its
Subsidiaries will engage in any business if, as a result, the general nature of
the business, taken on a consolidated basis, which would then be engaged in by
the Borrower and its Subsidiaries, would be substantially changed from the
general nature of the business engaged in by the Borrower and its Subsidiaries
on the date hereof.
9.2. CONSOLIDATION, MERGER, ACQUISITIONS, ASSET SALES, ETC. The
Borrower will not, and will not permit any Subsidiary to, (1) wind up, liquidate
or dissolve its affairs, (2) enter into any transaction of merger or
consolidation, (3) make or otherwise effect any Acquisition, (4) sell or
otherwise dispose of any of its property or assets outside the ordinary course
of business, or otherwise make or otherwise effect any Asset Sale, or (5) agree
to do any of the foregoing at any future time, EXCEPT that the following shall
be permitted:
53
(a) CERTAIN INTERCOMPANY MERGERS, ETC. If no Default or Event of
Default shall have occurred and be continuing or would result
therefrom, (i) the merger, consolidation or amalgamation of any Wholly-
Owned Subsidiary with or into the Borrower or another Wholly-Owned
Subsidiary, so long as in any merger, consolidation or amalgamation
involving the Borrower, the Borrower is the surviving or continuing or
resulting corporation; (ii) the liquidation or dissolution of any
Wholly-Owned Subsidiary of the Borrower; and (iii) the transfer or
other disposition of any property by the Borrower to any Wholly-Owned
Subsidiary or by any Wholly-Owned Subsidiary to the Borrower or any
other Wholly-Owned Subsidiary of the Borrower, if after giving effect
thereto at least 60% of the Consolidated Total Assets of the Borrower
are owned directly by the Borrower and not indirectly through
Subsidiaries, shall each be permitted.
(b) OTHER MERGERS, ETC. INVOLVING THE BORROWER. The Borrower
may consolidate or merge with any other corporation, or sell, transfer
or otherwise dispose of all or substantially all of the property and
assets of the Borrower and its Subsidiaries to any person, if (i) the
surviving, continuing or resulting corporation of such merger or
consolidation (if other than the Borrower) or the acquiring person
unconditionally assumes the obligations of the Borrower under the
Credit Documents pursuant to an assumption agreement in form and
substance reasonably satisfactory to the Required Lenders, (ii) no
Event of Default has occurred and is continuing or would result
therefrom, and (iii) no Change of Control would be occasioned thereby.
(c) PERMITTED ACQUISITIONS. If no Default or Event of Default
shall have occurred and be continuing or would result therefrom, the
Borrower or any Subsidiary may make any Acquisition which is a
Permitted Acquisition, PROVIDED that all of the conditions contained in
the definition of the term Permitted Acquisition are satisfied.
(d) PERMITTED DISPOSITIONS. If no Default or Event of Default
shall have occurred and be continuing or would result therefrom, the
Borrower or any of its Subsidiaries may (i) sell any property, land or
building (including any related receivables or other intangible assets)
to any person which is not a Subsidiary of the Borrower, or (ii) sell
the entire capital stock (or other equity interests) and Indebtedness
of any Subsidiary owned by the Borrower or any other Subsidiary to any
person which is not a Subsidiary of the Borrower, or (iii) permit any
Subsidiary to be merged or consolidated with a person which is not an
Affiliate of the Borrower, or (iv) consummate any other Asset Sale with
a person who is not a Subsidiary of the Borrower; PROVIDED that:
(A) the consideration for such transaction represents
fair value (as determined by management of the Borrower), and
at least 75% of such consideration consists of cash,
(B) the aggregate consideration for all such
transactions completed during the then current fiscal year
does not exceed an amount equal to 5% of the Borrower's
Consolidated Total Assets as of the commencement of such
fiscal year; and
(C) in the case of any such transaction involving
consideration in excess of $10,000,000, at least five Business
Days prior to the date of completion of such transaction the
Borrower shall have delivered to the Administrative Agent an
officer's certificate executed on behalf of the Borrower by an
Authorized Officer of the Borrower, which certificate shall
contain (1) a description of the proposed transaction, the
date such transaction is scheduled to be consummated, the
estimated purchase price or other consideration for such
transaction, (2) financial information pertaining to
compliance with the preceding clauses (A) and (B), (3) a
certification that no Default or Event of Default has occurred
and is continuing, or would result from consummation of such
transaction, and (4) which shall (if requested by the
Administrative Agent) include a certified copy of the draft or
definitive documentation pertaining thereto.
54
(e) LEASES. The Borrower or any of its Subsidiaries may enter
into leases of property or assets not constituting Acquisitions,
provided such leases are not otherwise in violation of this Agreement.
(f) CAPITAL EXPENDITURES: The Borrower and it Subsidiaries
shall be permitted to make any Consolidated Capital Expenditures.
(g) PERMITTED INVESTMENTS. The Borrower and it Subsidiaries
shall be permitted to make the investments permitted pursuant to
section 9.5.
9.3. LIENS. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any such Subsidiary whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with or without
recourse to the Borrower or any of its Subsidiaries, other than for purposes of
collection of delinquent accounts in the ordinary course of business) or assign
any right to receive income, or file or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute, EXCEPT that the foregoing restrictions shall not
apply to:
(a) STANDARD PERMITTED LIENS: the Standard Permitted Liens;
(b) EXISTING LIENS, ETC.: Liens (i) in existence on the
Effective Date which are listed, and the Indebtedness secured thereby
and the property subject thereto on the Effective Date described, in
Annex IV, or (ii) arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any such Liens, PROVIDED that
the principal amount of such Indebtedness is not increased and such
Indebtedness is not secured by any additional assets; and
(c) PURCHASE MONEY LIENS AND LIENS ON ACQUIRED PROPERTIES:
Liens which
(i) are placed upon equipment or machinery or improvements
to Real Property (including the associated Real Property) used
in the ordinary course of business of the Borrower or any
Subsidiary at the time of (or within 180 days after) the
acquisition of such equipment or machinery or the completion
of such improvements by the Borrower or any such Subsidiary to
secure Indebtedness incurred to pay or finance all or a
portion of the purchase price or other cost thereof, PROVIDED
that the Lien encumbering the equipment or machinery so
acquired or the Real Property so improved does not encumber
any other asset of the Borrower or any such Subsidiary; or
(ii) are existing on property or other assets at the time
acquired by the Borrower or any Subsidiary or on assets of a
person at the time such person first becomes a Subsidiary of
the Borrower; PROVIDED that (A) any such Liens were not
created at the time of or in contemplation of the acquisition
of such assets or person by the Borrower or any of its
Subsidiaries; (B) in the case of any such acquisition of a
person, any such Lien attaches only to the property and assets
of such person; and (C) in the case of any such acquisition of
property or assets by the Borrower or any Subsidiary, any such
Lien attaches only to the property and assets so acquired and
not to any other property or assets of the Borrower or any
Subsidiary;
PROVIDED that (1) the Indebtedness secured by any such Lien does not
exceed 100% of the fair market value of the property and assets to
which such Lien attaches, determined at the time of the acquisition or
improvement of such property or asset or the time at which such person
becomes a Subsidiary of the Borrower (except in the circumstances
described in clause (ii) above to the extent such Liens constituted
customary purchase money Liens at the time of incurrence and were
entered into in the ordinary course of business), and (2) the
Indebtedness secured thereby is permitted by section 9.4(c).
55
9.4. INDEBTEDNESS. The Borrower will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness of the Borrower or any of its Subsidiaries, EXCEPT:
(a) CREDIT DOCUMENTS: Indebtedness incurred under this Agreement
and the other Credit Documents;
(b) EXISTING INDEBTEDNESS: Existing Indebtedness; and any
refinancing, extension, renewal or refunding of any such Existing
Indebtedness not involving an increase in the principal amount thereof
or a reduction of more than 15% in the remaining weighted average life
to maturity thereof (computed in accordance with standard financial
practice); PROVIDED that any Existing Indebtedness identified in Annex
III or otherwise referred to in section 6.1 as being intended to be
refinanced by Loans incurred hereunder or otherwise retired, may not be
otherwise refinanced;
(c) PRIORITY DEBT: the following Indebtedness (collectively,
"PRIORITY DEBT"):
(i) Indebtedness consisting of Capital Lease Obligations
of the Borrower and its Subsidiaries,
(ii) Indebtedness secured by a Lien on any property of the
Borrower or any Subsidiary, and
(iii) other Indebtedness of Subsidiaries of the Borrower
(exclusive of Indebtedness owed pursuant to any of the Credit
Documents or to the Borrower or a Wholly-Owned Subsidiary of
the Borrower);
PROVIDED that at the time of any incurrence thereof after the date
hereof, and after giving effect thereto, (A) the Borrower would be in
compliance with sections 9.8 and 9.9, and no Event of Default shall
have occurred and be continuing or would result therefrom; and (B) the
aggregate outstanding principal amount (using Capitalized Lease
Obligations in lieu of principal amount, in the case of any Capital
Lease) of Priority Debt does not exceed the amount which is equal to
10% of the Borrower's Consolidated Net Worth as of the end of the most
recent fiscal period for which financial statements have been delivered
to the Lenders hereunder;
(d) INTERCOMPANY DEBT: Indebtedness of the Borrower to any
of its Subsidiaries, and Indebtedness of any of the Borrower's
Subsidiaries to the Borrower or to another Subsidiary of the Borrower;
(e) HEDGE AGREEMENTS: Indebtedness of the Borrower and its
Subsidiaries under Hedge Agreements;
(f) GUARANTY OBLIGATIONS: any Guaranty Obligations permitted
by section 9.5; and
(g) ADDITIONAL UNSECURED INDEBTEDNESS: additional unsecured
Indebtedness of the Borrower, PROVIDED that at the time of incurrence
thereof, and after giving effect thereto, (i) the aggregate outstanding
principal amount of any such unsecured Indebtedness of the Borrower is
not in excess of $30,000,000; (ii) the Borrower would be in compliance
with sections 9.8 and 9.9; and (iii) no Event of Default shall have
occurred and be continuing or would result therefrom.
9.5. ADVANCES, INVESTMENTS, LOANS AND GUARANTY OBLIGATIONS. The
Borrower will not, and will not permit any of its Subsidiaries to, (1) lend
money or credit or make advances to any person, (2) purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, or other investment in, any person, (3) create, acquire
or hold any Subsidiary, (4) be or become a party to any joint venture or
partnership, or (5) be or become obligated under any Guaranty Obligations (other
than those which may be created in favor of the Lenders pursuant to the Credit
Documents), EXCEPT:
56
(a) the Borrower or any of its Subsidiaries may invest in
cash and Cash Equivalents;
(b) any endorsement of a check or other medium of payment for
deposit or collection, or any similar transaction in the normal course
of business;
(c) the Borrower and its Subsidiaries may acquire and hold
receivables owing to them in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
(d) investments acquired by the Borrower or any of its
Subsidiaries (i) in exchange for any other investment held by the
Borrower or any such Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer
of such other investment, or (ii) as a result of a foreclosure by the
Borrower or any of its Subsidiaries with respect to any secured
investment or other transfer of title with respect to any secured
investment in default;
(e) loans and advances to employees for business-related
travel expenses, moving expenses, costs of replacement homes, business
machines or supplies, automobiles and other similar expenses, in each
case incurred in the ordinary course of business, shall be permitted;
(f) existing loans, advances and investments in any
Subsidiaries;
(g) to the extent not permitted by the foregoing clauses, the
existing loans, advances, investments and guarantees described on Annex
V hereto;
(h) investments of the Borrower and its Subsidiaries in Hedge
Agreements;
(i) loans and advances by any Subsidiary of the Borrower to
the Borrower, PROVIDED that the Indebtedness represented thereby
constitutes Subordinated Indebtedness;
(j) the Acquisitions permitted by section 9.2; and loans,
advances and investments of any person which are outstanding at the
time such person becomes a Subsidiary of the Borrower as a result of an
Acquisition permitted by section 9.2, but not any increase in the
amount thereof; and
(k) any unsecured Guaranty Obligation incurred by the
Borrower or any Subsidiary with respect to (i) Indebtedness of a
Wholly-Owned Subsidiary of the Borrower which is permitted under
section 9.4, or (ii) other obligations of a Wholly-Owned Subsidiary of
the Borrower which are not prohibited by this Agreement;
(l) any other unsecured Guaranty Obligations incurred by the
Borrower or any Subsidiary with respect to Indebtedness of persons who
are not Subsidiaries of the Borrower, PROVIDED that at the time of
incurrence thereof, and after giving effect thereto, (i) such Guaranty
Obligations do not cover more than $10,000,000 aggregate outstanding
principal amount (or Capitalized Lease Obligations, in the case of a
Capital Lease) of Indebtedness of such other persons; (ii) the Borrower
would be in compliance with sections 9.8 and 9.9; and (iii) no Event of
Default shall have occurred and be continuing or would result
therefrom;
(m) any other loans or advances to any Subsidiary or
Affiliate of the Borrower made after March 31, 1998, PROVIDED that (i)
at the time of making any such loan or advance no Event of Default
shall have occurred and be continuing, or would result therefrom, and
(ii) the maximum principal amount of loans and advances so made and
outstanding at any time shall not exceed $50,000,000; and
(n) any other equity investments (whether in the form of cash
or contribution of property, and if in the form of a contribution of
property, such property shall be valued for purposes of this clause at
the fair value thereof as reasonably determined by the Borrower),
including, without limitation, in or to Subsidiaries, Affiliates, joint
ventures, or other persons, not otherwise permitted by the foregoing
clauses, made after the end of the most recent fiscal quarter of the
Borrower for which financial statements were
57
furnished to the Lenders prior to the Effective Date, PROVIDED that (i)
at the time of making any such investment no Event of Default shall
have occurred and be continuing, or would result therefrom, and (ii)
the maximum cumulative amount of investments which are so made shall
not exceed an aggregate of $30,000,000.
9.6. DIVIDENDS, ETC. The Borrower will not (x) directly or
indirectly declare, order, pay or make any dividend (other than dividends
payable solely in capital stock of the Borrower) or other distribution on or in
respect of any capital stock of any class of the Borrower, whether by reduction
of capital or otherwise, or (y) directly or indirectly make, or permit any of
its Subsidiaries to directly or indirectly make, any purchase, redemption,
retirement or other acquisition of any capital stock of any class of the
Borrower (other than for a consideration consisting solely of capital stock of
the same class of the Borrower) or of any warrants, rights or options to acquire
or any securities convertible into or exchangeable for any capital stock of the
Borrower, UNLESS, immediately prior to and immediately after giving effect to
any such action, (i) no Default under section 10.1(a) or Event of Default shall
have occurred and be continuing, and (ii) the Borrower is in compliance with
section 9.7.
9.7. MINIMUM CONSOLIDATED NET WORTH. The Borrower will not permit
its Consolidated Net Worth at any time to be less than $140,000,000, EXCEPT that
(i) effective as of the end of the Borrower's fiscal quarter ended on or nearest
to September 30, 1998, and as of the end of each fiscal quarter thereafter, the
foregoing amount (as it may from time to time be increased as herein provided),
shall be increased by 50% of the Consolidated Net Income of the Borrower for the
fiscal quarter ended on such date, if any (there being no reduction in the case
of any such Consolidated Net Income which reflects a deficit), (ii) the
foregoing amount (as it may from time to time be increased as herein provided),
shall be increased by an amount equal to 100% of the cash proceeds (net of
underwriting discounts and commissions and other customary fees and costs
associated therewith) from any sale or issuance of equity by the Borrower after
March 31, 1998 (other than any sale or issuance to management or employees or
employee benefit plans pursuant to employee benefit plans of general
application), and (iii) the foregoing amount (as it may from time to time be
increased as herein provided), shall be increased by an amount equal to 100% of
the increase in Consolidated Net Worth attributable to the issuance of common
stock or other equity interests subsequent to March 31, 1998 as consideration in
any Acquisitions permitted under section 9.2.
9.8. CONSOLIDATED TOTAL DEBT/CONSOLIDATED EBITDA RATIO. The Borrower
will not at any time permit the ratio of (i) the amount of its Consolidated
Total Debt at such time to (ii) its Consolidated EBITDA for its Testing Period
most recently ended, to exceed 3.25 to 1.00.
9.9. CONSOLIDATED TOTAL DEBT/CONSOLIDATED TOTAL CAPITAL RATIO. The
Borrower will not at any time permit the ratio of (i) the amount of its
Consolidated Debt at such time to (ii) its Consolidated Total Capital as of the
end of the most recent fiscal period for which financial statements have been
delivered to the Lenders hereunder, expressed as a percentage, to exceed 50.00%
at any time.
9.10. LIMITATION ON CERTAIN RESTRICTIVE AGREEMENTS. The Borrower will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
enter into, incur or permit to exist or become effective, any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Borrower or any Subsidiary to create, incur or suffer to exist
any Lien upon any of its property or assets as security for Indebtedness, or (b)
the ability of any such Subsidiary to pay dividends or make any other
distributions on its capital stock or any other interest or participation in its
profits owned by the Borrower or any Subsidiary of the Borrower, or pay any
Indebtedness owed to the Borrower or a Subsidiary of the Borrower, or to make
loans or advances to the Borrower or any of the Borrower's other Subsidiaries,
or transfer any of its property or assets to the Borrower or any of the
Borrower's other Subsidiaries, EXCEPT for such restrictions existing under or by
reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest, (iv) customary provisions restricting
assignment of any licensing agreement entered into in the ordinary course of
business, (v) customary provisions restricting the transfer or further
encumbering of assets subject to Liens permitted under section 9.3(b) or (c),
(vi) restrictions contained in the Existing Indebtedness Agreements as in effect
on the Effective Date (and any similar restrictions contained in any agreement
governing any refinancing or refunding thereof not prohibited by this
Agreement), (vii) customary restrictions affecting only a
58
Subsidiary of the Borrower under any agreement or instrument governing any of
the Indebtedness of a Subsidiary permitted pursuant to 9.4, (viii) restrictions
affecting any Foreign Subsidiary of the Borrower under any agreement or
instrument governing any Indebtedness of such Foreign Subsidiary permitted
pursuant to 9.4, and customary restrictions contained in "comfort" letters and
guarantees of any such Indebtedness, (ix) any document relating to Indebtedness
secured by a Lien permitted by section 9.3, insofar as the provisions thereof
limit grants of junior liens on the assets securing such Indebtedness, and (x)
any operating lease or Capital Lease, insofar as the provisions thereof limit
grants of a security interest in, or other assignments of, the related leasehold
interest to any other person.
9.11. PREPAYMENTS AND REFINANCINGS OF OTHER DEBT, ETC. The Borrower
will not, and will not permit any of its Subsidiaries to, make (or give any
notice in respect thereof) any voluntary or optional payment or prepayment or
redemption or acquisition for value of (including, without limitation, by way of
depositing with the trustee with respect thereto money or securities before due
for the purpose of paying when due) or exchange of, or refinance or refund, any
Indebtedness of the Borrower or its Subsidiaries which has an outstanding
principal balance (or Capitalized Lease Obligation, in the case of a Capital
Lease) greater than $1,000,000 (other than the Obligations and intercompany
loans and advances among the Borrower and its Subsidiaries); provided that the
Borrower or any Subsidiary may refinance or refund any such Indebtedness if the
aggregate principal amount thereof (or Capitalized Lease Obligation, in the case
of a Capital Lease) is not increased and the weighted average life to maturity
thereof (computed in accordance with standard financial practice) is not reduced
by more than 10%.
9.12. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any Subsidiary to, enter into any transaction or series of
transactions with any Affiliate (other than, in the case of the Borrower, any
Subsidiary, and in the case of a Subsidiary, the Borrower or another Subsidiary)
other than in the ordinary course of business of and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary than would
obtain in a comparable arm's-length transaction with a person other than an
Affiliate, EXCEPT (i) sales of goods to an Affiliate for use or distribution
outside the United States which in the good faith judgment of the Borrower
complies with any applicable legal requirements of the Code, or (ii) agreements
and transactions with and payments to officers, directors and shareholders which
are either (A) entered into in the ordinary course of business and not
prohibited by any of the provisions of this Agreement, or (B) entered into
outside the ordinary course of business, approved by the directors or
shareholders of the Borrower, and not prohibited by any of the provisions of
this Agreement.
9.13. PLAN TERMINATIONS, MINIMUM FUNDING, ETC. The Borrower will not,
and will not permit any ERISA Affiliate to, (i) terminate any Plan or Plans so
as to result in liability of the Borrower or any ERISA Affiliate to the PBGC in
excess of, in the aggregate, the amount which is equal to the greater of (x)
$3,000,000, or (y) 5% of the Borrower's Consolidated Net Worth as of the date of
the then most recent financial statements furnished to the Lenders pursuant to
the provisions of this Agreement, (ii) permit to exist one or more events or
conditions which reasonably present a material risk of the termination by the
PBGC of any Plan or Plans with respect to which the Borrower or any ERISA
Affiliate would, in the event of such termination, incur liability to the PBGC
in excess of such amount in the aggregate, or (iii) fail to comply with the
minimum funding standards of ERISA and the Code with respect to any Plan.
SECTION 10. EVENTS OF DEFAULT.
10.1. EVENTS OF DEFAULT. Any of the following specified events shall
constitute an Event of Default (each an "EVENT OF DEFAULT"):
(a) PAYMENTS: the Borrower shall (i) default in the payment
when due of any principal of the Loans or any reimbursement obligation
in respect of any Unpaid Drawing; or (ii) default, and such default
shall continue for five or more days, in the payment when due of any
interest on the Loans or any Fees or any other amounts owing hereunder
or under any other Credit Document; or
(b) REPRESENTATIONS, ETC.: any representation, warranty or
statement made by the Borrower or any other Credit Party herein or in
any other Credit Document or in any statement or certificate delivered
59
or required to be delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or
deemed made; or
(c) CERTAIN NEGATIVE COVENANTS: the Borrower shall default in
the due performance or observance by it of any term, covenant or
agreement contained in sections 9.2 through 9.9, inclusive, of this
Agreement; or
(d) OTHER COVENANTS: the Borrower shall default in the due
performance or observance by it of any term, covenant or agreement
contained in this Agreement or any other Credit Document, other than
those referred to in section 10.1(a) or (b) or (c) above, and such
default is not remedied within 30 days after the earlier of (i) an
officer of the Borrower obtaining actual knowledge of such default and
(ii) the Borrower receiving written notice of such default from the
Administrative Agent or the Required Lenders (any such notice to be
identified as a "notice of default " and to refer specifically to this
paragraph); or
(e) CROSS DEFAULT UNDER OTHER AGREEMENTS: the Borrower or any
of its Subsidiaries shall (i) default in any payment with respect to
any Indebtedness (other than the Obligations) owed to any Lender, or
having an unpaid principal amount of $2,000,000 or greater, and such
default shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Indebtedness,
or (ii) default in the observance or performance of any agreement or
condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto (and
all grace periods applicable to such observance, performance or
condition shall have expired), or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause any such Indebtedness to become due prior to its
stated maturity; or any such Indebtedness of the Borrower or any of its
Subsidiaries shall be declared to be due and payable, or shall be
required to be prepaid (other than by a regularly scheduled required
prepayment or redemption, prior to the stated maturity thereof); or
(f) JUDGMENTS: one or more judgments or decrees shall be
entered against the Borrower and/or any of its Subsidiaries involving a
liability (other than a liability covered by insurance, as to which the
carrier has adequate claims paying ability and has not reserved its
rights) of $2,000,000 or more in the aggregate for all such judgments
and decrees for the Borrower and its Subsidiaries, and any such
judgments or decrees shall not have been vacated, discharged or stayed
or bonded pending appeal within 30 days (or such longer period, not in
excess of 60 days, during which enforcement thereof, and the filing of
any judgment lien, is effectively stayed or prohibited) from the entry
thereof; or
(g) BANKRUPTCY, ETC.: the Borrower or any of its Material
Subsidiaries shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy," as now or
hereafter in effect, or any successor thereto (the "BANKRUPTCY CODE");
or an involuntary case is commenced against the Borrower or any of its
Material Subsidiaries and the petition is not controverted within 10
days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed
for, or takes charge of, all or substantially all of the property of
the Borrower or any of its Material Subsidiaries; or the Borrower or
any of its Material Subsidiaries commences (including by way of
applying for or consenting to the appointment of, or the taking of
possession by, a rehabilitator, receiver, custodian, trustee,
conservator or liquidator (collectively, a "CONSERVATOR") of itself or
all or any substantial portion of its property) any other proceeding
under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency, liquidation, rehabilitation,
conservatorship or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower or any of its
60
Material Subsidiaries makes a general assignment for the benefit of
creditors; or any corporate (or similar organizational) action is taken
by the Borrower or any of its Material Subsidiaries for the purpose of
effecting any of the foregoing; or
(h) ERISA: (i) any of the events described in clauses (i)
through (viii) of section 8.1(e) shall have occurred; or (ii) there
shall result from any such event or events the imposition of a lien,
the granting of a security interest, or a liability or a material risk
of incurring a liability; and (iii) any such event or events or any
such lien, security interest or liability, individually, and/or in the
aggregate, in the opinion of the Required Lenders, has had, or could
reasonably be expected to have, a Material Adverse Effect.
10.2. ACCELERATION, ETC. Upon the occurrence of any Event of Default,
and at any time thereafter, if any Event of Default shall then be continuing,
the Administrative Agent shall, upon the written request of the Required
Lenders, by written notice to the Borrower, take any or all of the following
actions, without prejudice to the rights of the Administrative Agent or any
Lender to enforce its claims against the Borrower in any manner permitted under
applicable law (PROVIDED that, if an Event of Default specified in section
10.1(g) shall occur with respect to the Borrower, the result which would occur
upon the giving of written notice by the Administrative Agent as specified in
clauses (i) and (ii) below shall occur automatically without the giving of any
such notice): (i) declare the Total Commitment terminated, whereupon the
Commitment of each Lender shall forthwith terminate immediately without any
other notice of any kind; (ii) declare the principal of and any accrued interest
in respect of all Loans, all Unpaid Drawings and all obligations owing hereunder
and thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; (iii) terminate any Letter of Credit which
may be terminated in accordance with its terms; and (iv) direct the Borrower to
pay (and the Borrower hereby agrees that on receipt of such notice or upon the
occurrence of an Event of Default with respect to the Borrower under section
10.1(g), it will pay) to the Administrative Agent an amount of cash equal to the
aggregate Stated Amount of all Letters of Credit then outstanding (such amount
to be held as security for the Borrower's (and any Subsidiary which is an
account party) reimbursement obligations in respect thereof).
10.3. APPLICATION OF LIQUIDATION PROCEEDS. All monies received by the
Administrative Agent or any Lender from the exercise of remedies hereunder or
under the other Credit Documents or under any other documents relating to this
Agreement shall, unless otherwise required by the terms of the other Credit
Documents or by applicable law, be applied as follows:
(i) FIRST, to the payment of all expenses (to the extent not
paid by the Borrower) incurred by the Administrative Agent and the
Lenders in connection with the exercise of such remedies, including,
without limitation, all reasonable costs and expenses of collection,
attorneys' fees, court costs and any foreclosure expenses;
(ii) SECOND, to the payment PRO RATA of interest then accrued
on the outstanding Loans;
(iii) THIRD, to the payment PRO RATA of any fees then accrued
and payable to the Administrative Agent, any Letter of Credit Issuer or
any Lender under this Agreement in respect of the Loans or the Letter
of Credit Outstandings;
(iv) FOURTH, to the payment PRO RATA of (A) the principal
balance then owing on the outstanding Loans, and (B) the Stated Amount
of the Letter of Credit Outstandings (to be held and applied by the
Administrative Agent as security for the reimbursement obligations in
respect thereof);
(v) FIFTH, to the payment to the Lenders of any amounts then
accrued and unpaid under sections 2.10, 2.11, 3.5 and 5.5 hereof, and
if such proceeds are insufficient to pay such amounts in full, to the
payment of such amounts PRO RATA;
61
(vi) SIXTH, to the payment PRO RATA of all other amounts owed
by the Borrower to the Administrative Agent, to any Letter of Credit
Issuer or any Lender under this Agreement or any other Credit Document,
and if such proceeds are insufficient to pay such amounts in full, to
the payment of such amounts PRO RATA; and
(vii) FINALLY, any remaining surplus after all of the
Obligations have been paid in full, to the Borrower or to whomsoever
shall be lawfully entitled thereto.
SECTION 11. THE ADMINISTRATIVE AGENT.
11.1. APPOINTMENT. Each Lender hereby irrevocably designates and
appoints NCB as Administrative Agent to act as specified herein and in the other
Credit Documents, and each such Lender hereby irrevocably authorizes NCB as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and the other Credit Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent agrees to act as such upon the express conditions
contained in this section 11. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein or in the other
Credit Documents, nor any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent.
The provisions of this section 11 are solely for the benefit of the
Administrative Agent, and the Lenders, and the Borrower and its Subsidiaries
shall not have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement, the
Administrative Agent shall act solely as agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship of
agency or trust with or for the Borrower or any of its Subsidiaries.
11.2. DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Credit Document by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise required by section 11.3.
11.3. EXCULPATORY PROVISIONS. Neither the Administrative Agent nor any
of its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such person under or in connection with this Agreement (except
for its or such person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or of its Subsidiaries or any
of their respective officers contained in this Agreement, any other Credit
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Credit Document or for any failure
of the Borrower or any Subsidiary of the Borrower or any of their respective
officers to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records of
the Borrower or any of its Subsidiaries. The Administrative Agent shall not be
responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any Credit
Document or for any representations, warranties, recitals or statements made
herein or therein or made in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any other documents
in connection herewith or therewith furnished or made by the Administrative
Agent to the Lenders or by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender or be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default.
62
11.4. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, facsimile transmission, telex or teletype message, statement, order or
other document or conversation believed by it, in good faith, to be genuine and
correct and to have been signed, sent or made by the proper person or persons
and upon advice and statements of legal counsel (including, without limitation,
counsel to the Borrower or any of its Subsidiaries), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Credit Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required Lenders (or
all of the Lenders, as to any matter which, pursuant to section 12.12, can only
be effectuated with the consent of all Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders.
11.5. NOTICE OF DEFAULT. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder, other than a Default under section 10.1(a), UNLESS the Administrative
Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders, PROVIDED that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
11.6. NON-RELIANCE. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates have made any representations or warranties to
it and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower or any of its Subsidiaries, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent, or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower and its Subsidiaries and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent, or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrower and its Subsidiaries.
The Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, assets, property, financial and other conditions, prospects or
creditworthiness of the Borrower or any of its Subsidiaries which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
11.7. INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such ratably according to their
respective General Revolving Loans and Unutilized General Revolving Commitments,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, reasonable expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Obligations) be imposed on,
incurred by or asserted against the Administrative Agent in its capacity as such
in any way relating to or arising out of this Agreement or any other Credit
Document, or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted to be taken by
the Administrative Agent under or in connection with any of the foregoing, but
only to the
63
extent that any of the foregoing is not paid by the Borrower, PROVIDED that no
Lender shall be liable to the Administrative Agent for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent resulting
solely from the Administrative Agent's gross negligence or willful misconduct.
If any indemnity furnished to the Administrative Agent for any purpose shall, in
the opinion of the Administrative Agent, be insufficient or become impaired, the
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished. The agreements in this section 11.7 shall survive the payment of all
Obligations.
11.8. THE ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower, its Subsidiaries
and their Affiliates as though not acting as Administrative Agent hereunder.
With respect to the Loans made by it and all Obligations owing to it, the
Administrative Agent shall have the same rights and powers under this Agreement
as any Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
11.9. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as the Administrative Agent upon 20 Business Days' notice to the Lenders
and the Borrower. The Required Lenders shall appoint from among the Lenders a
successor Administrative Agent for the Lenders, subject to (unless an Event of
Default shall have occurred and be continuing) prior approval by the Borrower of
such successor (such approval not to be unreasonably withheld or delayed),
whereupon such successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall include such
successor agent effective upon its appointment, and the resigning Administrative
Agent's rights, powers and duties as the Administrative Agent shall be
terminated, without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement. After the retiring
Administrative Agent's resignation hereunder as the Administrative Agent, the
provisions of this section 11 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.
11.10. OTHER AGENTS. Any Lender identified herein as a Co-Agent,
Syndication Agent, Documentation Agent, Managing Agent, Manager or any other
corresponding title, other than "Administrative Agent", shall have no right,
power, obligation, liability, responsibility or duty under this Agreement or any
other Credit Document except those applicable to all Lenders as such. Each
Lender acknowledges that it has not relied, and will not rely, on any Lender so
identified in deciding to enter into this Agreement or in taking or not taking
any action hereunder.
SECTION 12. MISCELLANEOUS.
12.1. PAYMENT OF EXPENSES ETC. (a) Whether or not the transactions
contemplated hereby are consummated, the Borrower agrees to pay (or reimburse
the Administrative Agent and the Lenders for) all reasonable out-of-pocket costs
and expenses of the Administrative Agent and the Lenders in connection with the
negotiation, preparation, execution and delivery of the Credit Documents and the
documents and instruments referred to therein, including, without limitation,
the reasonable fees and disbursements of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, special
counsel to the Administrative Agent.
(b) The Borrower agrees to pay (or reimburse the Administrative Agent
and the Lenders for) all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Lenders in connection with any amendment, waiver or
consent relating to any of the Credit Documents which is requested by any Credit
Party, including, without limitation, the reasonable fees and disbursements of
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel to the Administrative Agent.
(c) The Borrower agrees to pay (or reimburse the Administrative Agent
and the Lenders for) all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Lenders in connection with the enforcement of any
of the Credit Documents or the other documents and instruments referred to
therein, including, without limitation, (i) the reasonable fees and
disbursements of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel to the
64
Administrative Agent, and (ii) the reasonable fees and disbursements of any
individual counsel to any Lender (including allocated costs of internal
counsel).
(d) Without limitation of the preceding section 12.1(c), in the event
of the bankruptcy, insolvency, rehabilitation or other similar proceeding in
respect of the Borrower or any of its Subsidiaries, the Borrower agrees to pay
all costs of collection and defense, including reasonable attorneys' fees in
connection therewith and in connection with any appellate proceeding or
post-judgment action involved therein, which shall be due and payable together
with all required service or use taxes.
(e) The Borrower agrees to pay and hold each of the Lenders harmless
from and against any and all present and future stamp and other similar taxes
with respect to the foregoing matters and save each of the Lenders harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to such Lender) to pay such
taxes.
(f) The Borrower agrees to indemnify each Lender, its officers,
directors, employees, representatives and agents (collectively, the
"INDEMNITEES") from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses reasonably incurred by any of them as a
result of, or arising out of, or in any way related to, or by reason of
(i) any investigation, litigation or other proceeding (whether
or not any Lender is a party thereto) related to the entering into
and/or performance of any Credit Document or the use of the proceeds of
any Loans hereunder or the consummation of any transactions
contemplated in any Credit Document, other than any such investigation,
litigation or proceeding arising out of transactions solely between any
of the Lenders or the Administrative Agent, transactions solely
involving the assignment by a Lender of all or a portion of its Loans
and Commitments, or the granting of participations therein, as provided
in this Agreement, or arising solely out of any examination of a Lender
by any regulatory or other governmental authority having jurisdiction
over it, or
(ii) the actual or alleged presence of Hazardous Materials in
the air, surface water or groundwater or on the surface or subsurface
of any Real Property owned, leased or at any time operated by the
Borrower or any of its Subsidiaries, the release, generation, storage,
transportation, handling or disposal of Hazardous Materials at any
location, whether or not owned or operated by the Borrower or any of
its Subsidiaries, if the Borrower or any such Subsidiary could have or
is alleged to have any responsibility in respect thereof, the
non-compliance of any such Real Property with foreign, federal, state
and local laws, regulations and ordinances (including applicable
permits thereunder) applicable thereto, or any Environmental Claim
asserted against the Borrower or any of its Subsidiaries, in respect of
any such Real Property,
including, in each case, without limitation, the reasonable documented fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of the gross
negligence or willful misconduct of the person to be indemnified or of any other
Indemnitee who is such person or an Affiliate of such person). To the extent
that the undertaking to indemnify, pay or hold harmless any person set forth in
the preceding sentence may be unenforceable because it is violative of any law
or public policy, the Borrower shall make the maximum contribution to the
payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
12.2. RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to the Borrower or to any other person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by such Lender (including, without limitation, by
branches and agencies of such Lender wherever located) to or for the credit or
the account of the Borrower against and on account of the Obligations and
liabilities of the Borrower to such Lender under this Agreement or under any of
the other Credit Documents, including, without limitation, all
65
interests in Obligations the Borrower purchased by such Lender pursuant to
section 12.4(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Lender shall have made any demand hereunder and although
said Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
12.3. NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile transmission or cable communication)
and mailed, telegraphed, telexed, transmitted, cabled or delivered, if to the
Borrower, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, attention: Vice
President & Chief Financial Officer (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇); if to any
Lender at its address specified for such Lender on Annex I hereto; if to the
Administrative Agent, at its Notice Office; or at such other address as shall be
designated by any party in a written notice to the other parties hereto. All
such notices and communications shall be mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, and shall be effective when
received.
12.4. BENEFIT OF AGREEMENT. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns, PROVIDED that the Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of all the Lenders, and, PROVIDED, FURTHER, that any assignment by a
Lender of its rights and obligations hereunder shall be effected in accordance
with section 12.4(b). Notwithstanding the foregoing, each Lender may at any time
grant participations in any of its rights hereunder or under any of the Notes to
(x) another Lender that is not a Defaulting Lender or to an Affiliate of such
Lender which is a commercial bank, financial institution or other "accredited
investor" (as defined in SEC Regulation D), and (y) one or more Eligible
Transferees, PROVIDED that in the case of any such participation, (i) the
participant shall not have any rights under this Agreement or any of the other
Credit Documents, including rights of consent, approval or waiver (the
participant's rights against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in favor of the
participant relating thereto), (ii) such Lender's obligations under this
Agreement (including, without limitation, its Commitment hereunder) shall remain
unchanged, (iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iv) such Lender shall
remain the holder of any Note for all purposes of this Agreement and (v) the
Borrower, the Administrative Agent, and the other Lenders shall continue to deal
solely and directly with the selling Lender in connection with such Lender's
rights and obligations under this Agreement, and all amounts payable by the
Borrower hereunder shall be determined as if such Lender had not sold such
participation, except that the participant shall be entitled to the benefits of
sections 2.10 and 2.11 of this Agreement to the extent that such Lender would be
entitled to such benefits if the participation had not been entered into or
sold, and, PROVIDED FURTHER, that no Lender shall transfer, grant or sell any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (x) extend the final scheduled
maturity of the Loans in which such participant is participating, or reduce the
rate or extend the time of payment of interest or Fees thereon (except in
connection with a waiver of the applicability of any post-default increase in
interest rates), or reduce the principal amount thereof, or increase such
participant's participating interest in any Commitment over the amount thereof
then in effect (it being understood that a waiver of any Default or Event of
Default shall not constitute a change in the terms of any such Commitment), or
(y) consent to the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement.
(b) Notwithstanding the foregoing, (x) any Lender may assign all or a
fixed portion of its Loans and/or Commitment, and its rights and obligations
hereunder, which does not have to be PRO RATA among the Facilities, to another
Lender that is not a Defaulting Lender, or to an Affiliate of any Lender
(including itself) and which is not a Defaulting Lender and which is a
commercial bank, financial institution or other "accredited investor" (as
defined in SEC Regulation D), and (y) any Lender may assign all, or if less than
all, a fixed portion, equal to at least $10,000,000 in the aggregate for the
assigning Lender or assigning Lenders, of its Loans and/or
66
Commitment and its rights and obligations hereunder, which does not have to be
PRO RATA among the Facilities, to one or more Eligible Transferees, each of
which assignees shall become a party to this Agreement as a Lender by execution
of an Assignment Agreement, PROVIDED that (i) the Swing Line Lender may only
assign its Swing Line Revolving Commitment and its Swing Line Revolving Loans as
an entirety and only if the assignee thereof is or becomes a Lender with a
General Revolving Commitment, (ii) in the case of any assignment of a portion of
any Loans and/or Commitment of a Lender, such Lender shall retain a minimum
fixed portion of all Loans and Commitments equal to at least $10,000,000, (iii)
at the time of any such assignment Annex I shall be deemed modified to reflect
the Commitments of such new Lender and of the existing Lenders, (iv) upon
surrender of the old Notes, new Notes will be issued, at the Borrower's expense,
to such new Lender and to the assigning Lender, such new Notes to be in
conformity with the requirements of section 2.6 (with appropriate modifications)
to the extent needed to reflect the revised Commitments, (v) in the case of
clause (y) only, the consent of the Administrative Agent and each Letter of
Credit Issuer shall be required in connection with any such assignment (which
consent shall not be unreasonably withheld or delayed), and (vi) the
Administrative Agent shall receive at the time of each such assignment, from the
assigning or assignee Lender, the payment of a non-refundable assignment fee of
$2,000 and, PROVIDED FURTHER, that such transfer or assignment will not be
effective until the Assignment Agreement in respect thereof is recorded by the
Administrative Agent on the Lender Register maintained by it as provided herein.
To the extent of any assignment pursuant to this section 12.4(b) the assigning
Lender shall be relieved of its obligations hereunder with respect to its
assigned Commitments. At the time of each assignment pursuant to this section
12.4(b) to a person which is not already a Lender hereunder and which is not a
United States person (as such term is defined in section 7701(a)(30) of the
Code) for Federal income tax purposes, the respective assignee Lender shall
provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable a Section 5.4(b)(ii) Certificate)
described in section 5.4(b). To the extent that an assignment of all or any
portion of a Lender's Commitment and related outstanding Obligations pursuant to
this section 12.4(b) would, at the time of such assignment, result in increased
costs under section 2.10 from those being charged by the respective assigning
Lender prior to such assignment, then the Borrower shall not be obligated to pay
such increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment). Nothing in this section 12.4(b) shall
prevent or prohibit any Lender from pledging its Notes or Loans to a Federal
Reserve Bank in support of borrowings made by such Lender from such Federal
Reserve Bank.
(c) Notwithstanding any other provisions of this section 12.4, no
transfer or assignment of the interests or obligations of any Lender hereunder
or any grant of participation therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration statement
with the SEC or to qualify the Loans under the "Blue Sky" laws of any State.
(d) Each Lender initially party to this Agreement hereby represents,
and each person that became a Lender pursuant to an assignment permitted by this
section 12.4 will, upon its becoming party to this Agreement, represent that it
is a commercial lender, other financial institution or other "accredited"
investor (as defined in SEC Regulation D) which makes or acquires loans in the
ordinary course of its business and that it will make or acquire Loans for its
own account in the ordinary course of such business, PROVIDED that subject to
the preceding sections 12.4(a) and (b), the disposition of any promissory notes
or other evidences of or interests in Indebtedness held by such Lender shall at
all times be within its exclusive control.
12.5. NO WAIVER: REMEDIES CUMULATIVE. No failure or delay on the part
of the Administrative Agent or any Lender in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing
between the Borrower and the Administrative Agent or any Lender shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Administrative
Agent or any Lender would otherwise have. No notice to or demand on the Borrower
in any case shall entitle the Borrower to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand.
12.6. PAYMENTS PRO RATA. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of the Borrower in
respect of any Obligations, it shall distribute such payment to the Lenders
(other than any Lender that has expressly waived in writing its right to receive
its PRO RATA share thereof) PRO RATA based upon their respective shares, if any,
of the Obligations with respect to which such payment was received.
67
As to any such payment received by the Administrative Agent prior to 1:00 P.M.
(local time at the Payment Office) in funds which are immediately available on
such day, the Administrative Agent will use all reasonable efforts to distribute
such payment in immediately available funds on the same day to the Lenders as
aforesaid.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such
Obligation then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the
Obligations to such Lenders in such amount as shall result in a proportional
participation by all of the Lenders in such amount, PROVIDED that if all or any
portion of such excess amount is thereafter recovered from such Lender, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding sections 12.6(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Lenders which are not Defaulting Lenders, as opposed to
Defaulting Lenders.
12.7. CALCULATIONS: COMPUTATIONS. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Lenders); PROVIDED, that if at any time the computations
determining compliance with section 9 utilize accounting principles different
from those utilized in the financial statements furnished to the Lenders, such
computations shall set forth in reasonable detail a description of the
differences and the effect upon such computations.
(b) All computations of interest on Loans hereunder and all
computations of Facility Fee, Letter of Credit Fees and other Fees hereunder
shall be made on the actual number of days elapsed over a year of 360 days.
12.8. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF OHIO, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY JURISDICTION OTHER THAN THE STATE
OF OHIO GOVERNS THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the Court of Common Pleas of Cuyahoga County, Ohio, or of the
United States for the Northern District of Ohio, and, by execution and delivery
of this Agreement, the Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Borrower hereby further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the Borrower at its address for notices pursuant to section
12.3, such service to become effective 30 days after such mailing or at such
earlier time as may be provided under applicable law. Nothing herein shall
affect the right of the Administrative Agent or any Lender to serve process in
any other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in section 12.8(a) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
68
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
12.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same agreement. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
12.10. EFFECTIVENESS. This Agreement shall become effective on the date
(the "EFFECTIVE DATE") on which the Borrower and each of the Lenders shall have
signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Administrative Agent at the Notice Office of the
Administrative Agent or, in the case of the Lenders, shall have given to the
Administrative Agent telephonic (confirmed in writing), written telex or
facsimile transmission notice (actually received) at such office that the same
has been signed and mailed to it.
12.11. HEADINGS DESCRIPTIVE. The headings of the several sections and
other portions of this Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this
Agreement.
12.12. AMENDMENT OR WAIVER. Neither this Agreement nor any terms hereof
or thereof may be changed, waived, discharged or terminated UNLESS such change,
waiver, discharge or termination is in writing signed by the Borrower and the
Required Lenders, PROVIDED that no such change, waiver, discharge or termination
shall, without the consent of each Lender (other than a Defaulting Lender)
affected thereby, (i) extend any maturity date provided for herein applicable to
a Loan or a Commitment, reduce the rate or extend the time of payment of
interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) or Fees thereon, or reduce the
principal amount thereof, or increase the Commitment of any Lender over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default shall not constitute a change in the terms of any Commitment
of any Lender), (ii) release the Borrower from any obligations as a guarantor of
its Subsidiaries' obligations under any Credit Document, (iii) change the
definition of the term "Change of Control" or any of the provisions of section
4.3 or 5.2 which are applicable upon a Change of Control, (iv) amend, modify or
waive any provision of this section 12.12, or section 11.7, 12.1, 12.4, 12.6 or
12.7(b), or any other provision of any of the Credit Documents pursuant to which
the consent or approval of all Lenders is by the terms of such provision
explicitly required, (v) reduce the percentage specified in, or otherwise
modify, the definition of Required Lenders, or (vi) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement. No provision of section 3 or 11 may be amended without the consent of
(x) any Letter of Credit Issuer adversely affected thereby or (y) the
Administrative Agent, respectively.
12.13. SURVIVAL OF INDEMNITIES. All indemnities set forth herein
including, without limitation, in section 2.10, 2.11, 3.5, 11.7 or 12.1 shall
survive the execution and delivery of this Agreement and the making and
repayment of Loans.
12.14. DOMICILE OF LOANS. Each Lender may transfer and carry its Loans
at, to or for the account of any branch office, subsidiary or affiliate of such
Lender, PROVIDED that the Borrower shall not be responsible for costs arising
under section 2.10 resulting from any such transfer (other than a transfer
pursuant to section 2.12) to the extent not otherwise applicable to such Lender
prior to such transfer.
12.15. CONFIDENTIALITY. Each Lender shall hold all non-public
information obtained pursuant to the requirements of this Agreement in
accordance with its customary procedure for handling confidential information of
this nature and in accordance with safe and sound banking practices.
Notwithstanding the foregoing, any Lender may in any event make disclosures of,
and furnish copies of such information (i) to another Lender; (ii) when
reasonably required by any BONA FIDE transferee or participant in connection
with the contemplated transfer of any Loans or Commitment or participation
therein (PROVIDED that each such prospective transferee and/or participant shall
execute
69
an agreement for the benefit of the Borrower with such prospective transferor
Lender and/or participant containing provisions substantially identical to those
contained in this section 12.15); (iii) to its parent corporation or
corporations and its and their Affiliates, and to its and their auditors and
attorneys; and (iv) as required or requested by any governmental agency or
representative thereof or pursuant to legal process, PROVIDED that, unless
specifically prohibited by applicable law or court order, each Lender shall
notify the Borrower of any request by any governmental agency or representative
thereof (other than any such request in connection with an examination of the
financial condition of such Lender by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such information. In
no event shall any Lender be obligated or required to return any materials
furnished by or on behalf of the Borrower or any of its Subsidiaries. The
Borrower hereby agrees that the failure of a Lender to comply with the
provisions of this section 12.15 shall not relieve the Borrower of any of the
obligations to such Lender under this Agreement and the other Credit Documents.
12.16. LENDER REGISTER. The Borrower hereby designates the
Administrative Agent to serve as its agent, solely for purposes of this section
12.16, to maintain a register (the "LENDER REGISTER") on or in which it will
record the names and addresses of the Lenders, and the Commitments from time to
time of each of the Lenders, the Loans made to the Borrower by each of the
Lenders and each repayment and prepayment in respect of the principal amount of
such Loans of each such Lender. Failure to make any such recordation, or (absent
manifest error) any error in such recordation, shall not affect the Borrower's
obligations in respect of such Loans. With respect to any Lender, the transfer
of the Commitment of such Lender and the rights to the principal of, and
interest on, any Loan made pursuant to such Commitment shall not be effective
until such transfer is recorded on the Lender Register maintained by the
Administrative Agent with respect to ownership of such Commitment and Loans and
prior to such recordation all amounts owing to the transferor with respect to
such Commitment and Loans shall remain owing to the transferor. The registration
of assignment or transfer of all or part of any Commitments and Loans shall be
recorded by the Administrative Agent on the Lender Register only upon the
acceptance by the Administrative Agent of a properly executed and delivered
Assignment Agreement pursuant to section 12.4(b). The Borrower agrees to
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties under
this section 12.16, except to the extent attributable to the gross negligence or
wilful misconduct of the Administrative Agent. The Lender Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
12.17. LIMITATIONS ON LIABILITY OF THE LETTER OF CREDIT ISSUERS. The
Borrower assumes all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such Letters of
Credit. Neither any Letter of Credit Issuer nor any of its officers or directors
shall be liable or responsible for: (a) the use which may be made of any Letter
of Credit or any acts or omissions of any beneficiary or transferee in
connection therewith; (b) the validity, sufficiency or genuineness of documents,
or of any endorsement thereon, even if such documents should prove to be in any
or all respects invalid, insufficient, fraudulent or forged; (c) payment by a
Letter of Credit Issuer against presentation of documents that do not comply
with the terms of a Letter of Credit, including failure of any documents to bear
any reference or adequate reference to such Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit, EXCEPT that the Borrower (or a Subsidiary which is the account party
in respect of the Letter of Credit in question) shall have a claim against a
Letter of Credit Issuer, and a Letter of Credit Issuer shall be liable to the
Borrower (or such Subsidiary), to the extent of any direct, but not
consequential, damages suffered by the Borrower (or such Subsidiary) which the
Borrower (or such Subsidiary) proves were caused by (i) such Letter of Credit
Issuer's willful misconduct or gross negligence in determining whether documents
presented under a Letter of Credit comply with the terms of such Letter of
Credit or (ii) such Letter of Credit Issuer's willful failure to make lawful
payment under any Letter of Credit after the presentation to it of documentation
strictly complying with the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing, a Letter of Credit Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation.
12.18. GENERAL LIMITATION OF LIABILITY. No claim may be made by the
Borrower, any Lender, the Administrative Agent, any Letter of Credit Issuer or
any other person against the Administrative Agent, any Letter of Credit Issuer,
or any other Lender or the Affiliates, directors, officers, employees, attorneys
or agents of any of
70
them for any damages other than actual compensatory damages in respect of any
claim for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement or any of the other
Credit Documents, or any act, omission or event occurring in connection
therewith; and each of the Borrower, each Lender, the Administrative Agent and
each Letter of Credit Issuer hereby, to the fullest extent permitted under
applicable law, waives, releases and agrees not to ▇▇▇ or counterclaim upon any
such claim for any special, consequential or punitive damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
12.19. NO DUTY. All attorneys, accountants, appraisers, consultants and
other professional persons (including the firms or other entities on behalf of
which any such person may act) retained by the Administrative Agent or any
Lender with respect to the transactions contemplated by the Credit Documents
shall have the right to act exclusively in the interest of the Administrative
Agent or such Lender, as the case may be, and shall have no duty of disclosure,
duty of loyalty, duty of care, or other duty or obligation of any type or nature
whatsoever to the Borrower, to any of its Subsidiaries, or to any other person,
with respect to any matters within the scope of such representation or related
to their activities in connection with such representation.
12.20. LENDERS AND AGENT NOT FIDUCIARY TO BORROWER, ETC. The
relationship among the Borrower and its Subsidiaries, on the one hand, and the
Administrative Agent, each Letter of Credit Issuer and the Lenders, on the other
hand, is solely that of debtor and creditor, and the Administrative Agent, each
Letter of Credit Issuer and the Lenders have no fiduciary or other special
relationship with the Borrower and its Subsidiaries, and no term or provision of
any Credit Document, no course of dealing, no written or oral communication, or
other action, shall be construed so as to deem such relationship to be other
than that of debtor and creditor.
12.21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties herein shall survive the making of Loans and the issuance of
Letters of Credit hereunder, the execution and delivery of this Agreement, the
Notes and the other documents the forms of which are attached as Exhibits
hereto, the issue and delivery of the Notes, any disposition thereof by any
holder thereof, and any investigation made by the Administrative Agent or any
Lender or any other holder of any of the Notes or on its behalf. All statements
contained in any certificate or other document delivered to the Administrative
Agent or any Lender or any holder of any Notes by or on behalf of the Borrower
or of its Subsidiaries pursuant hereto or otherwise specifically for use in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower hereunder, made as of the
respective dates specified therein or, if no date is specified, as of the
respective dates furnished to the Administrative Agent or any Lender .
12.22. JUDGMENT CURRENCY. (a) The Borrower's obligations hereunder and
under the other Credit Documents to make payments in U.S. dollars shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than U.S. dollars, except to
the extent that such tender or recovery results in the effective receipt by the
Administrative Agent or the applicable Lender of the full amount of U.S. dollars
expressed to be payable to the Administrative Agent or such Lender under this
Agreement or the other Credit Documents. If, for the purpose of obtaining or
enforcing judgment against the Borrower in any court or in any jurisdiction, it
becomes necessary to convert into or from any currency other than U.S. dollars
(such other currency being hereinafter referred to as the "JUDGMENT Currency")
an amount due in U.S. dollars, the conversion shall be made at the equivalent
thereof in Dollars determined as of the Business Day immediately preceding the
day on which the judgment is given (such Business Day being hereinafter referred
to as the "JUDGMENT CURRENCY CONVERSION DATE").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, the Borrower covenants and agrees to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of U.S. dollars which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or judicial award at the
rate of exchange prevailing on the Judgment Currency Conversion Date.
71
(c) For purposes of determining the equivalent in Dollars for this
section, such amount shall include any premium and costs payable in connection
with the conversion into or from the Judgment Currency.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
STONERIDGE, INC.
BY:___________________________________
VICE PRESIDENT-FINANCE & CFO
NATIONAL CITY BANK,
INDIVIDUALLY AND
AS ADMINISTRATIVE AGENT
BY:___________________________________
VICE PRESIDENT
PNC BANK, NATIONAL ASSOCIATION
BY:___________________________________
VICE PRESIDENT
STAR BANK, NATIONAL ASSOCIATION
BY:___________________________________
SENIOR VICE PRESIDENT
72
ANNEX I
INFORMATION AS TO LENDERS
-------------------- ------------------ --------------------------------------- ------------------------------------------
NAME OF LENDER COMMITMENT DOMESTIC LENDING OFFICE EUROCURRENCY LENDING OFFICE
-------------------- ------------------ --------------------------------------- ------------------------------------------
National City Bank National City Bank National City Bank
GENERAL National City Center National City Center
REVOLVING ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
$65,000,000 CONTACTS/NOTIFICATION METHODS:
SWING LINE National City Bank
REVOLVING National City Center
COMMITMENT: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
$10,000,000 Attn:Metro/Ohio Division
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Direct Dial: (▇▇▇) ▇▇▇-▇▇▇▇
CONTACT FOR BORROWINGS, PAYMENTS,
ETC.:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Money Desk Manager
Direct Dial: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PAYMENT INSTRUCTIONS:
ABA # ▇▇▇▇▇▇▇▇▇
Attention: Commercial Loan
Operations
Reference: Stoneridge, Inc.
-------------------- ------------------ --------------------------------------- ------------------------------------------
PNC Bank, National PNC Bank, National Association PNC Bank, National Association
Association GENERAL One PNC Plaza One PNC Plaza
REVOLVING ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
$45,000,000 CONTACTS/NOTIFICATION METHODS:
PNC Bank, National Association
Cleveland Office
-------------------- ------------------ --------------------------------------- ------------------------------------------
-------------------- ------------------ --------------------------------------- ------------------------------------------
NAME OF LENDER COMMITMENT DOMESTIC LENDING OFFICE EUROCURRENCY LENDING OFFICE
-------------------- ------------------ --------------------------------------- ------------------------------------------
Suite 1250
One Cleveland Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PRIMARY CONTACT:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Direct Dial: (▇▇▇) ▇▇▇-▇▇▇▇
BACK-UP CONTACT:
▇▇▇▇▇▇ ▇▇▇▇▇
Direct Dial: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CONTACT FOR BORROWINGS,
PAYMENTS, ETC.:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Direct Dial: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
LETTER OF CREDIT NOTIFICATION:
▇▇▇▇ ▇▇▇▇▇▇▇▇
Direct Dial: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PAYMENT INSTRUCTIONS:
Routing Transit/ABA # 043 000 096
Attention: Commercial Loan
Operations
A/C 196030010890
Ref.: Stoneridge, Inc.
-------------------- ------------------ --------------------------------------- ------------------------------------------
Star Bank, GENERAL Star Bank, National Association Star Bank, National Association
National REVOLVING ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Association COMMITMENT: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
$15,000,000 PRIMARY & SECONDARY CONTACTS:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
Direct Dial: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Vice President
Direct Dial: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-------------------- ------------------ --------------------------------------- ------------------------------------------
-------------------- ------------------ --------------------------------------- ------------------------------------------
NAME OF LENDER COMMITMENT DOMESTIC LENDING OFFICE EUROCURRENCY LENDING OFFICE
-------------------- ------------------ --------------------------------------- ------------------------------------------
CONTACT FOR BORROWINGS,
PAYMENTS, ETC.
▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PAYMENT INSTRUCTIONS:
ABA # 042 000 013
Attention: Commercial Loan Operations
A/C # 990 1893
Reference: Stoneridge, Inc.
-------------------- ------------------ --------------------------------------- ------------------------------------------
ANNEX II
INFORMATION AS TO SUBSIDIARIES
-------------------------------------------------- ------------------ ------------------ ---------------------------
PERCENTAGE OF
OUTSTANDING STOCK
NAME OF TYPE OF JURISDICTION OR OTHER EQUITY
SUBSIDIARY ORGANIZATION WHERE INTERESTS OWNED
ORGANIZED (INDICATING WHETHER
OWNED BY THE
BORROWER OR A
SPECIFIED SUBSIDIARY)
-------------------------------------------------- ------------------ ------------------ ---------------------------
Alphabet de Mexico company Mexico 99.5%, by the Borrower
(acquired 9/82)
-------------------------------------------------- ------------------ ------------------ ---------------------------
▇▇▇ de Mexico company Mexico 99.5%, by the Borrower
(acquired 2/1/92)
-------------------------------------------------- ------------------ ------------------ ---------------------------
Berifors AB company Sweden 100%, by the Borrower
(acquired 10/17/97)
-------------------------------------------------- ------------------ ------------------ ---------------------------
Berifors Production AB company Sweden 100%, by Berifors AB
(acquired 10/17/97)
-------------------------------------------------- ------------------ ------------------ ---------------------------
Berifors Electronics I Bromma AB company Sweden 100% by Berifors AB
(acquired 10/17/97)
-------------------------------------------------- ------------------ ------------------ ---------------------------
Bernt & ▇▇▇▇▇ ▇▇ company Sweden 100% by the Borrower
(acquired 10/17/97)
-------------------------------------------------- ------------------ ------------------ ---------------------------
Berifors GmbH company Germany 100%, by Berifors AB
(acquired 10/17/97)
-------------------------------------------------- ------------------ ------------------ ---------------------------
AlphaConn do Brazil Ltda. company Brazil 60% by the Borrower
(acquired 11/1/97)
-------------------------------------------------- ------------------ ------------------ ---------------------------
ANNEX III
DESCRIPTION OF EXISTING INDEBTEDNESS
BORROWED MONEY:
1. General Electric Capital Corporation (Account # ▇▇▇▇▇▇▇-001)
Dated 4/17/98
Original Principal: $3,512,000
Current Balance: $3,113,659
2. Berifors Outstanding Revolver
Amount: $508,000
CAPITAL LEASES:
3. Transportation Electronics Capital Lease
Obligation: $499,000
4. Berifors Capital Lease Equipment
Obligation: $398,000
5. Alphabet Capital Lease
Obligation: $39,000
ANNEX IV
DESCRIPTION OF EXISTING LIENS
1. Aircraft (▇▇▇▇ 31A) Mortgage, which secures debt to General Electric
Capital Corporation listed in Annex III.
ANNEX V
DESCRIPTION OF EXISTING ADVANCES, LOANS, INVESTMENTS AND GUARANTEES
1. Intercompany loan to Berifors
Dated: 3/31/98
Amount: $5,800,000
2. Intercompany loan to Positron
Dated: 1/30/98
Amount: $5,000,000
3. Intercompany loan #1 to AlphaConn do Brazil
Dated: 1/30/98
Amount: $500,000
4. Intercompany loan #2 to AlphaConn do Brazil
Dated: 7/30/98
Amount: $225,000
5. ▇▇▇ de Mexico Advance
Amount: $955,000
6. Existing Investment in Industrial Development Associates Limited
Partnership
Ownership: 30%
Approx. -$269,000 capital account
7. Existing Investment in Connecto Alphabet Joint Venture
Ownership: 40%
Approx. $420,000 capital account
8. Existing Investment in Positron
Ownership: 50%
Amount: $17,735,000
9. Guarantee of obligations of
Industrial Development Associates Limited Partnership
Amount: Less than $2,500,000
ANNEX VI
DESCRIPTION OF LETTERS OF CREDIT DEEMED ISSUED UNDER
THE CREDIT AGREEMENT
------------------------ ------------------------- ------------------------- --------------- -----------------------
LETTER OF ORIGINAL DATE AND NO./ EXPIRATION
CREDIT ISSUER APPLICANT BENEFICIARY AMOUNT DATE
------------------------ ------------------------- ------------------------- --------------- -----------------------
National City Bank Stoneridge, Inc. # 5003 $250,000 ▇/▇▇/▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇.
------------------------ ------------------------- ------------------------- --------------- -----------------------
------------------------ ------------------------- ------------------------- --------------- -----------------------
------------------------ ------------------------- ------------------------- --------------- -----------------------
------------------------ ------------------------- ------------------------- --------------- -----------------------
------------------------ ------------------------- ------------------------- --------------- -----------------------
------------------------ ------------------------- ------------------------- --------------- -----------------------
------------------------ ------------------------- ------------------------- --------------- -----------------------
EXHIBIT A-1
GENERAL REVOLVING NOTE
Cleveland, Ohio
_________, 1998
FOR VALUE RECEIVED, the undersigned STONERIDGE, INC., an Ohio
corporation (herein, together with its successors and assigns, the "BORROWER"),
hereby promises to pay to the order of ____________________ (the "Lender"), in
lawful money of the United States of America, in the case of General Revolving
Loans denominated in Dollars, or in an Alternative Currency, in the case of
General Revolving Loans denominated in such Alternative Currency (such terms and
certain other capitalized terms used herein without definition shall have the
respective meanings ascribed thereto in the Agreement referred to below), in
immediately available funds, at the Payment Office of National City Bank (the
"ADMINISTRATIVE AGENT"), on the Maturity Date, the aggregate principal amount of
all General Revolving Loans made by the Lender pursuant to the Agreement
referred to below.
The Borrower promises also to pay interest on the unpaid principal
amount of each General Revolving Loan made by the Lender at said office from the
date hereof until paid at the rates and at the times provided in section 2.8 of
the Agreement and in Dollars (in the case of General Revolving Loans denominated
in Dollars) or an Alternative Currency (in the case of General Revolving Loans
denominated in such Alternative Currency).
This Note is one of the General Revolving Notes referred to in the
Credit Agreement, dated as of June 30, 1998, among the Borrower, the financial
institutions from time to time party thereto (including the Lender), and
National City Bank, as Administrative Agent (as from time to time in effect, the
"AGREEMENT"), and is entitled to the benefits thereof and of the other Credit
Documents. As provided in the Agreement, this Note is subject to mandatory
prepayment prior to the Maturity Date, in whole or in part.
In case an Event of Default shall occur and be continuing, the
principal of and accrued interest on this Note may be declared to be due and
payable in the manner and with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note. No failure to exercise, or delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of any such rights.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF OHIO.
STONERIDGE, INC.
By:______________________
Title:
LOANS AND PAYMENTS OF PRINCIPAL
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
AMOUNT AMOUNT
OF OF
DATE LOAN TYPE PRINCIPAL UNPAID
OF AND OF INTEREST PAID OR PRINCIPAL MADE
NOTATION CURRENCY LOAN PERIOD PREPAID BALANCE BY
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
EXHIBIT A-2
SWING LINE REVOLVING NOTE
U.S.$________________ Cleveland, Ohio
_________, 1998
FOR VALUE RECEIVED, the undersigned STONERIDGE, INC., an Ohio
corporation (herein, together with its successors and assigns, the "BORROWER"),
hereby promises to pay to the order of _______________________ (the "LENDER"),
in lawful money of the United States of America in immediately available funds,
at the Payment Office (such term and certain other terms used herein without
definition shall have the meanings ascribed thereto in the Agreement referred to
below) of National City Bank (the "ADMINISTRATIVE AGENT"), the principal sum of
________________ DOLLARS ($ ) or, if less, the then unpaid principal amount of
all Swing Line Revolving Loans made by the Lender to the Borrower pursuant to
the Agreement. The Borrower will pay the principal amount of each Swing Line
Revolving Loan on the maturity date specified therefor in the Notice of
Borrowing relating thereto, which maturity date shall in no event be more than
30 days following the date such Swing Line Revolving Loan was made.
The Borrower promises also to pay interest on the unpaid principal
amount of each Swing Line Revolving Loan made by the Lender in like money at
said office from the date hereof until paid at the rates and at the times
provided in section 2.8 of the Agreement.
This Note is the Swing Line Revolving Note referred to in the Credit
Agreement, dated as of August 4, 1998, among the Borrower, the financial
institutions from time to time party thereto (including the Lender), and
National City Bank, as Administrative Agent (as from time to time in effect, the
"AGREEMENT"), and is entitled to the benefits thereof and of the other Credit
Documents. As provided in the Agreement, this Note is subject to mandatory
prepayment prior to the maturity of any Swing Line Revolving Loan evidenced
hereby, in whole or in part.
In case an Event of Default shall occur and be continuing, the
principal of and accrued interest on this Note may be declared to be due and
payable in the manner and with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note. No failure to exercise, or delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of any such rights.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF OHIO.
STONERIDGE, INC.
By: _______________________
Title:
LOANS AND PAYMENTS OF PRINCIPAL
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
TYPE AMOUNT
OF OF
DATE AMOUNT LOAN / PRINCIPAL UNPAID
OF OF MATURITY INTEREST PAID OR PRINCIPAL MADE
NOTATION LOAN DATE PERIOD PREPAID BALANCE BY
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
EXHIBIT B-1
NOTICE OF BORROWING
[Date]
National City Bank,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Commercial Loan Operations
--------------------------
Re: Notice of Borrowing under the Credit Agreement,
dated as of August 4, 1998
-----------------------------------------------
Ladies and Gentlemen:
The undersigned, Stoneridge, Inc. (the "BORROWER"), refers to the
Credit Agreement, dated as of August 4, 1998 (as amended from time to time, the
"CREDIT AGREEMENT", the terms defined therein being used herein as therein
defined), among the Borrower, the financial institutions from time to time party
thereto (the "LENDERS"), and National City Bank, as Administrative Agent for
such Lenders, and hereby gives you notice, irrevocably, pursuant to section
2.3(a) of the Credit Agreement, that the undersigned hereby requests one or more
Borrowings under the Credit Agreement, and in that connection sets forth in the
schedule attached hereto the information relating to each such Borrowing
(collectively the "PROPOSED BORROWING") as required by section 2.3(a) of the
Credit Agreement.
The undersigned hereby specifies that the Proposed Borrowing will
consist of Loans as indicated in the schedule attached hereto.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties of the Credit Parties
contained in the Credit Agreement and the other Credit Documents are
and will be true and correct in all material respects, before and after
giving effect to the Proposed Borrowing and to the application of the
proceeds thereof, as though made on such date, except to the extent
that such representations and warranties expressly relate to an earlier
specified date, in which case such representations and warranties were
true and correct in all material respects as of the date when made; and
(B) no Default or Event of Default has occurred and is
continuing, or would result from such Proposed Borrowing or from the
application of the proceeds thereof.
Very truly yours,
STONERIDGE, INC.
By: _______________________
Title:
BORROWING SCHEDULE
PROPOSED BORROWING #1:
------------------------ ------------------ -------------------------- ---------------------- ----------------------
BUSINESS DAY
OF AGGREGATE INTEREST PERIOD
PROPOSED FACILITY TYPE OF AMOUNT IF LOANS ARE
BORROWING LOANS OF LOANS EUROCURRENCY
LOANS
------------------------ ------------------ -------------------------- ---------------------- ----------------------
General Prime Rate Loans $____________ One Month
______, 19____ Revolving Loans
Eurocurrency Loans or Two Months
Swing Line Money Market Rate Loans ______ Three Months
Revolving Loans with an interest rate of in
___% and a maturity of ________ Six Months
___ days [not more than [Alternative
30 days] Currency] [Circle one of
[Circle one of above]
above] [Circle and/or [Complete
complete one of one of
above] Above]
------------------------ ------------------ -------------------------- ---------------------- ----------------------
PROPOSED BORROWING #2:
------------------------ ------------------ -------------------------- ---------------------- ----------------------
BUSINESS DAY
OF AGGREGATE INTEREST PERIOD
PROPOSED FACILITY TYPE OF AMOUNT IF LOANS ARE
BORROWING LOANS OF LOANS EUROCURRENCY
LOANS
------------------------ ------------------ -------------------------- ---------------------- ----------------------
General Prime Rate Loans $____________ One Month
______, 19____ Revolving Loans
Eurocurrency Loans or Two Months
Swing Line Money Market Rate Loans ______ Three Months
Revolving Loans with an interest rate of in
___% and a maturity of ________ Six Months
___ days [not more than [Alternative
30 days] Currency] [Circle one of
[Circle one of above]
above] [Circle and/or [Complete
complete one of one of
above] Above]
------------------------ ------------------ -------------------------- ---------------------- ----------------------
PROPOSED BORROWING #3:
------------------------ ------------------ -------------------------- ---------------------- ----------------------
BUSINESS DAY
OF AGGREGATE INTEREST PERIOD
PROPOSED FACILITY TYPE OF AMOUNT IF LOANS ARE
BORROWING LOANS OF LOANS EUROCURRENCY
LOANS
------------------------ ------------------ -------------------------- ---------------------- ----------------------
General Prime Rate Loans $____________ One Month
______, 19____ Revolving Loans
Eurocurrency Loans or Two Months
Swing Line Money Market Rate Loans ______ Three Months
Revolving Loans with an interest rate of in
___% and a maturity of ________ Six Months
___ days [not more than [Alternative
30 days] Currency] [Circle one of
[Circle one of above]
above] [Circle and/or [Complete
complete one of one of
above] Above]
------------------------ ------------------ -------------------------- ---------------------- ----------------------
PROPOSED BORROWING #4:
------------------------ ------------------ -------------------------- ---------------------- ----------------------
BUSINESS DAY
OF AGGREGATE INTEREST PERIOD
PROPOSED FACILITY TYPE OF AMOUNT IF LOANS ARE
BORROWING LOANS OF LOANS EUROCURRENCY
LOANS
------------------------ ------------------ -------------------------- ---------------------- ----------------------
General Prime Rate Loans $____________ One Month
______, 19____ Revolving Loans
Eurocurrency Loans or Two Months
Swing Line Money Market Rate Loans ______ Three Months
Revolving Loans with an interest rate of in
___% and a maturity of ________ Six Months
___ days [not more than [Alternative
30 days] Currency] [Circle one of
[Circle one of above]
above] [Circle and/or [Complete
complete one of one of
above] Above]
------------------------ ------------------ -------------------------- ---------------------- ----------------------
2
EXHIBIT B-2
NOTICE OF CONVERSION
[Date]
National City Bank,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Commercial Loan Operations
--------------------------
Re: Notice of Conversion of General Revolving
Loans, Denominated in Dollars, of one Type into
another Type, pursuant to the Credit Agreement, dated
as of August 4, 1998
----------------------------------------------------
Ladies and Gentlemen:
The undersigned, Stoneridge, Inc. (the "BORROWER"), refers to the
Credit Agreement, dated as of August 4, 1998 (as amended from time to time, the
"CREDIT AGREEMENT", the terms defined therein being used herein as therein
defined), among the Borrower, the financial institutions from time to time party
thereto (the "LENDERS"), and National City Bank, as Administrative Agent for
such Lenders, and hereby gives you notice, irrevocably, pursuant to section 2.7
of the Credit Agreement, that the undersigned hereby requests one or more
conversions of General Revolving Loans, denominated in Dollars, of one Type,
into General Revolving Loans, also denominated in Dollars, of another Type,
pursuant to section 2.7 of the Credit Agreement, and in that connection sets
forth in the schedule attached hereto the information relating to each such
conversion.
Very truly yours,
STONERIDGE, INC.
By: __________________________
Title:
CONVERSION SCHEDULE
PROPOSED CONVERSION #1
[OF THE GENERAL REVOLVING LOANS DESCRIBED IN THE FIRST TABLE BELOW INTO
GENERAL REVOLVING LOANS DESCRIBED IN THE SECOND TABLE BELOW]
------------------------- -------------------------- ------------------------ -------------------------------------
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
------------------------- -------------------------- ------------------------ -------------------------------------
One Month
____, 19__ Prime Rate Loans
$________ Two Months
Eurocurrency Loans
Three Months
[Circle One of Six Months
Above]
[Circle one of
above]
------------------------- -------------------------- ------------------------ -------------------------------------
------------------------- -------------------------- ------------------------ -------------------------------------
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
------------------------- -------------------------- ------------------------ -------------------------------------
One Month
____, 19__ Prime Rate Loans
$________ Two Months
Eurocurrency Loans
Three Months
[Circle One of Six Months
Above]
[Circle one of
above]
------------------------- -------------------------- ------------------------ -------------------------------------
PROPOSED CONVERSION #2
[OF THE GENERAL REVOLVING LOANS DESCRIBED IN THE FIRST TABLE BELOW INTO
GENERAL REVOLVING LOANS DESCRIBED IN THE SECOND TABLE BELOW]
------------------------- -------------------------- ------------------------ -------------------------------------
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
------------------------- -------------------------- ------------------------ -------------------------------------
One Month
____, 19__ Prime Rate Loans
$________ Two Months
Eurocurrency Loans
Three Months
[Circle One of Six Months
Above]
[Circle one of
above]
------------------------- -------------------------- ------------------------ -------------------------------------
------------------------- -------------------------- ------------------------ -------------------------------------
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
------------------------- -------------------------- ------------------------ -------------------------------------
One Month
____, 19__ Prime Rate Loans
$________ Two Months
Eurocurrency Loans
Three Months
[Circle One of Six Months
Above]
[Circle one of
above]
------------------------- -------------------------- ------------------------ -------------------------------------
2
EXHIBIT B-3
LETTER OF CREDIT REQUEST
No. ______________ /1/
Dated __________ /2/
National City Bank,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: International Department/ Letter of Credit Operations
-----------------------------------------------------
Ladies and Gentlemen:
The undersigned, Stoneridge, Inc. (the "BORROWER"), refers to the
Credit Agreement, dated as of August 4, 1998 (as amended, modified or
supplemented from time to time, the "CREDIT AGREEMENT", the capitalized terms
defined therein being used herein as therein defined), among the Borrower, the
financial institutions from time to time party thereto (the "LENDERS"), and
National City Bank, as Administrative Agent for such Lenders.
The undersigned hereby requests that , as a Letter of Credit Issuer,
issue a Letter of Credit on , 199 (the "DATE OF ISSUANCE") in the aggregate
amount of [U.S.$ ] [amount in specified Alternative Currency], for the account
of ____________________.
The beneficiary of the requested Letter of Credit will
be _________, /3/ and such Letter of Credit will be in support of _________ /4/
and will have a stated termination date of ___________. /5/
The undersigned hereby certifies that after giving effect to the
requested issuance of the Letter of Credit:
(i) $_________ principal amount of Loans classified as
General Revolving Loans will be outstanding;
(ii) $_________ principal amount of Loans classified as
Swing Line Revolving Loans will be outstanding; and
(iii) the Letter of Credit Outstandings will be
$___________.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the Date of Issuance:
------------------------
/1/ Letter of Request Number.
/2/ Date of Letter of Request (at Least five Business Days prior to the
Date of Issuance or such lesser number as may be agreed by the
relevant Letter of Credit Issuer).
/3/ Insert name and address of beneficiary.
/4/ Insert description of the supported obligations, name of agreement
and/or the commercial transaction to which this Letter of Credit
Request relates.
/5/ Insert last date upon which drafts may be presented (which may not be
beyond the 15th Business Day next preceding the Maturity Date).
(A) the representations and warranties of the Credit Parties
contained in the Credit Agreement and the other Credit Documents are
and will be true and correct in all material respects, before and after
giving effect to the Proposed Borrowing and to the application of the
proceeds thereof, as though made on such date, except to the extent
that such representations and warranties expressly relate to an earlier
specified date, in which case such representations and warranties were
true and correct in all material respects as of the date when made; and
(B) no Default or Event of Default has occurred and is
continuing, or would result after giving effect to the issuance of the
Letter of Credit requested hereby.
Copies of all documentation with respect to the supported transaction
are attached hereto.
Very truly yours,
STONERIDGE, INC.
By: _____________________________
Title:
2
EXHIBIT B-4
NOTICE OF REDENOMINATION
[Date]
National City Bank,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Commercial Loan Operations
--------------------------
Re: Notice of Redenomination of General Revolving
Loans, pursuant to the Credit Agreement,
dated as of August 4, 1998
-------------------------------------------------
Ladies and Gentlemen:
The undersigned, Stoneridge, Inc. (the "BORROWER"), refers to the
Credit Agreement, dated as of August 4, 1998 (as amended from time to time, the
"CREDIT AGREEMENT", the terms defined therein being used herein as therein
defined), among the Borrower, the financial institutions from time to time party
thereto (the "LENDERS"), and National City Bank, as Administrative Agent for
such Lenders, and hereby gives you notice, irrevocably, pursuant to section
2.7(b) of the Credit Agreement, that the undersigned hereby requests one or more
Redenominations of General Revolving Loans pursuant to section 2.7(b) of the
Credit Agreement, and in that connection sets forth in the schedule attached
hereto the information relating to each such Redenomination.
Very truly yours,
STONERIDGE, INC.
By: ___________________________
Title:
REDENOMINATION SCHEDULE
PROPOSED REDENOMINATION #1
[OF THE GENERAL REVOLVING LOANS DESCRIBED IN THE FIRST TABLE BELOW INTO
GENERAL REVOLVING LOANS DESCRIBED IN THE SECOND TABLE BELOW]
------------------------- -------------------------- ------------------------ -------------------------------------
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
------------------------- -------------------------- ------------------------ -------------------------------------
$________ One Month
____, 19__ Prime Rate Loans
_______ Two Months
Eurocurrency Loans [Alternative
Currency] Three Months
[Circle One of [Complete Six Months
Above] One of Above]
[Circle one of
above]
------------------------- -------------------------- ------------------------ -------------------------------------
------------------------- -------------------------- ------------------------ -------------------------------------
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
------------------------- -------------------------- ------------------------ -------------------------------------
$________ One Month
____, 19__ Prime Rate Loans
_______ Two Months
Eurocurrency Loans [Alternative
Currency] Three Months
[Circle One of [Complete Six Months
Above] One of Above]
[Circle one of
above]
------------------------- -------------------------- ------------------------ -------------------------------------
PROPOSED REDENOMINATION #2
[OF THE GENERAL REVOLVING LOANS DESCRIBED IN THE FIRST TABLE BELOW INTO
GENERAL REVOLVING LOANS DESCRIBED IN THE SECOND TABLE BELOW]
------------------------- -------------------------- ------------------------ -------------------------------------
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
------------------------- -------------------------- ------------------------ -------------------------------------
$________ One Month
____, 19__ Prime Rate Loans
_______ Two Months
Eurocurrency Loans [Alternative
Currency] Three Months
[Circle One of [Complete Six Months
Above] One of Above]
[Circle one of
above]
------------------------- -------------------------- ------------------------ -------------------------------------
------------------------- -------------------------- ------------------------ -------------------------------------
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
------------------------- -------------------------- ------------------------ -------------------------------------
$________ One Month
____, 19__ Prime Rate Loans
_______ Two Months
Eurocurrency Loans [Alternative
Currency] Three Months
[Circle One of [Complete Six Months
Above] One of Above]
[Circle one of
above]
------------------------- -------------------------- ------------------------ -------------------------------------
2
EXHIBIT C
FORM OF OPINION OF COUNSEL TO THE BORROWER
________ __, 1998
To the Administrative Agent
and each of the Lenders party
to the Credit Agreement referred to below
c/o National City Bank,
as Administrative Agent
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Re: $125,000,000 Credit Agreement,
dated as of August 4, 1998,
with Stoneridge, Inc.
---------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Stoneridge, Inc., an Ohio
corporation (the "BORROWER"), in connection with (i) the execution and delivery
of the Credit Agreement, dated as of August 4, 1998 (the "CREDIT AGREEMENT"),
among the Borrower, the financial institutions that are a party thereto (the
"LENDERS"), and National City Bank, as Administrative Agent (the "AGENT"), and
(ii) the transactions contemplated thereby. Unless otherwise indicated,
capitalized terms used herein but not otherwise defined herein shall have the
respective meanings set forth in the Credit Agreement. This opinion letter is
being furnished at the request of the Borrower pursuant to section 6.1(e) of the
Credit Agreement.
In rendering this opinion, we have examined only the following: (a) the
documents identified on Exhibit A attached hereto; (b) the certificate of the
Vice President-Finance and Chief Financial Officer of the Borrower attached
hereto as Exhibit B, certifying as to certain factual matters (the "OFFICER'S
CERTIFICATE"); and (c) such matters of law as we deemed necessary for purposes
of this opinion.
Except as may be referred to in Exhibit A, we have neither examined nor
requested an examination of the indices or records of any governmental or other
agency, authority, instrumentality or entity for purposes of this opinion.
We have, with your consent, relied as to matters of fact upon the
representations and warranties contained in the Credit Documents (as defined in
Exhibit A attached hereto) and upon the Officer's Certificate. In all instances
where any opinion herein is qualified "to our knowledge" or "known to us", we
have relied, with your consent, as to matters of fact, solely upon the Officer's
Certificate and on the absence of contrary knowledge by the attorneys in our
firm who have given substantive attention to the transactions contemplated by
the Credit Agreement, and we have not made (nor do we acknowledge any duty to
make) any independent or other investigation with respect thereto.
In rendering the opinions set forth herein, we have assumed (there
being no facts known to us to the contrary), with your approval, that (i) the
signatures of all parties (other than the Borrower with respect to the Credit
Documents) on all documents examined by us are genuine, (ii) all documents
submitted to us as originals are authentic, (iii) all documents submitted to us
as copies conform with the originals, and (iv) natural persons signing
the documents examined by us at the time of such signing were fully competent
and had full legal capacity to sign, deliver and perform their obligations under
such documents. We have also assumed, with your approval, the due authorization,
execution and delivery of the Credit Documents on the part of the Lenders and
the Agent, and the legality, validity, binding effect on, and enforceability of
the Credit Documents against, the Lenders and the Agent.
In connection with these opinions, we do not purport to be qualified to
express legal conclusions base on the laws of any state or jurisdiction other
than the laws of the State of Ohio and the United States of America, and
accordingly, we express no opinion as to the laws of any other state or
jurisdiction.
Based upon the foregoing and subject to the qualifications, assumptions
and limitations contained in this opinion letter, we are of the opinion that:
1. The Borrower is a corporation validly existing and in good
standing under the laws of the State of Ohio.
2. To our knowledge, Annex II to the Credit Agreement
correctly sets forth each Subsidiary of the Borrower and the direct and
indirect ownership interest of the Borrower therein.
3. The Borrower has all requisite corporate power and
authority to execute and deliver the Credit Documents and to perform
its obligations under each Credit Document. The execution and delivery
of, and performance by the Borrower of its obligations under, the
Credit Documents, have been duly and validly authorized by all
necessary corporate action on the part of the Borrower. Each of the
Credit Documents has been duly executed and delivered on behalf of the
Borrower and constitutes the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its
terms.
4. The execution and delivery by the Borrower of the Credit
Documents, and the performance by the Borrower of its obligations
thereunder, do not contravene, (a) any existing federal or State of
Ohio law or regulation of general applicability or (b) assuming that
the proceeds of the Loans are utilized by the Borrower for the purposes
permitted under section 7.7 of the Credit Agreement, Regulations T, U
and X of the Board of Governors of the Federal Reserve System) and do
not violate any provision of (i) the Articles of incorporation, as
amended, or Code of Regulations, as amended, of the Borrower, or (ii)
to our knowledge, (A) any order, writ, injunction, decree or demand of
any court or governmental authority binding upon the Borrower or any of
its Subsidiaries or (B) any provision of any material agreement or
instrument binding on the Borrower or any of its Subsidiaries.
5. Other than with respect to any filings contemplated by the
Credit Documents, no consent, approval or authorization of, or
registration or declaration with, any governmental authority of the
State of Ohio or any governmental authority of the United States of
America is required in connection with the Borrower's execution and
delivery of the Credit Documents.
6. To our knowledge, there are no actions, suits or
proceedings pending or threatened against the Borrower or any of its
Subsidiaries that have, or could reasonably be expected to have, a
Material Adverse Effect, or which question the validity or
enforceability of any of the Credit Documents or of any action to be
taken by the Borrower pursuant to any of the Credit Documents.
7. Neither the Borrower nor any of its Subsidiaries is subject
to regulation with respect to the creation or incurrence of
Indebtedness under the Investment Company Act of 1940, as amended, the
Interstate Commerce Act, as amended, the Federal Power Act, as amended,
the Public Utility Holding Company Act of 1935, as amended, or any
applicable state public utility law.
Despite any other express or implied statement in this letter, each of
the opinions expressed in this letter is subject to the following and further
qualifications, whether or not such opinions refer to such qualifications:
2
(i) The opinions expressed herein may be limited by: (a)
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or similar federal or state laws of judicial decisions of general
application relating to the rights of creditors; (b) as to rights of
acceleration, the appointment of a receiver, specific performance and
other remedies, by general principles of equity, including the defenses
of unconscionability, ambiguity, and economic duress, whether asserted
in equitable or in legal actions; and (c) general principles of
interpretation and rules of construction of contracts.
(ii) Certain of the remedial provisions contained in the
Credit Documents may be limited or rendered unenforceable under Ohio
law in whole or in part. For example: (a) provisions for the recovery
of legal fees and expenses in connection with the enforcement of such
remedies may not be enforceable; (b) provisions resulting in a waiver
of certain rights by the Borrower may be limited by legal and equitable
principles and public policy at the time in effect; and (c) the
availability of specific performance, injunctive relief or other
equitable remedies and the appointment of a receiver are subject to the
discretion of the court before which any proceeding therefor may be
brought.
(iii) We express no opinion as to whether a court would limit
the exercise or enforcement of rights or remedies under the Credit
Documents (a) in the event of any default by the Borrower under the
Credit Documents or any related agreement or instrument if it is
determined that such default is not material or if such exercise or
enforcement is not reasonably necessary for a creditor's protection,
and (b) if the exercise or enforcement thereof under the circumstances
would violate an implied covenant of good faith and fair dealing.
(iv) We wish to advise you that we do not express any opinion
with respect to (a) the power or authority of the Lenders to make the
Loans and/or issue (or participate in the issuance of) Letters of
Credit, pursuant to the Credit Agreement, (b) compliance by the Agent
or the Lenders with any federal or state banking law, rule, regulation
or restriction or (c) compliance by the Agent or the Lenders with any
federal or state law, rule, regulation or restriction which is or was
required to be complied with by the Agent or the Lenders (as opposed to
compliance therewith by the Borrower) in order to enforce any rights of
the Agent or the Lenders under any of the Credit Documents.
This opinion letter is being furnished only to the addressees and is
solely for their benefit and the benefit of their participants and assigns in
connection with the transactions contemplated by the Credit Documents. This
opinion letter may not otherwise be disclosed or be relied upon for any other
purpose, or relied upon by any other person, firm or corporation for any
purpose, without our prior written consent.
Very truly yours,
3
EXHIBIT A
1. An executed counterpart of the Credit Agreement.
2. The executed original General Revolving Notes, dated August 4, 1998, of
the Borrower, payable to the order of the Lenders.
3. The executed original $10,000,000 Swing Line Revolving Note, dated
August 4, 1998, of the Borrower, payable to the order of the Swing Line
Lender.
4. The Articles of Incorporation of the Borrower, as certified by the
Secretary of State of the State of Ohio on July 15, 1998, and the Code
of Regulations of the Borrower, as certified by the Secretary of the
Borrower.
5. Resolutions of the Board of Directors of the Borrower authorizing and
approving the transactions contemplated by the Credit Documents, as
certified by the Secretary of the Borrower.
6. Certificate of the Secretary of State of the State of Ohio, dated as of
July 15, 1998, evidencing that the Borrower was in good standing under
the laws of the State of Ohio, and telephonic confirmation of good
standing from the Secretary of State of the State of Ohio on August 4,
1998.
Items 1 through 3, inclusive, are collectively referred to as the "CREDIT
DOCUMENTS".
EXHIBIT B
CERTIFICATE OF OFFICER
TO
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
This Certificate is delivered to ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP by the
undersigned, ▇▇▇▇▇ ▇▇▇▇▇, the Vice President-Finance and Chief Financial Officer
of Stoneridge, Inc., an Ohio corporation (the "BORROWER"). This Certificate will
be relied upon by ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP for the accuracy and completeness of the
facts set forth herein, in rendering the legal opinions to be delivered pursuant
to the Credit Agreement, dated as of August 4, 1998, among the Borrower,
National City Bank, as Administrative Agent (the "AGENT"). and the financial
institutions that are a party thereto (the "LENDERS") (the "CREDIT AGREEMENT").
Terms not otherwise defined herein shall have the respective meanings
ascribed thereto in the Credit Agreement or in the Opinion Letter of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP of even date herewith addressed to the Agent and the Lenders.
The undersigned hereby certifies to ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP that as of
the date hereof:
1. All certificates being delivered by the officers of the Borrower to
the Agent and the Lenders pursuant to the Credit Agreement at the closing under
the Credit Agreement are true and accurate in all respects.
2. The representations and warranties of the Borrower set forth in the
Credit Agreement and the other Credit Documents are true and accurate in all
respects.
3. Accurate copies of all proceedings of the incorporator, shareholders
and board of directors of the Borrower have been made available to ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP.
4. There are no proceedings pending with respect to the merger,
consolidation, reorganization, dissolution, or liquidation of the Borrower, the
sale, lease or other disposition of all or substantially all of its assets or
otherwise affecting its corporate existence.
5. There are no actions, suits or proceedings pending or, to our
knowledge, threatened against the Borrower or any of its Subsidiaries that have,
or could reasonably be expected to have, a Material Adverse Effect, or which
question the validity or enforceability of any of the Credit Documents or of any
action to be taken by the Borrower pursuant to any of the Credit Documents.
6. The execution and delivery by the Borrower of the Credit Documents,
and the performance by the Borrower of its obligations thereunder, do not
violate any order, writ, injunction, decree or demand of any court or
governmental authority binding upon the Borrower or any of its Subsidiaries or
any provision of any material agreement or instrument binding on the Borrower or
any of its Subsidiaries.
7. Annex II to the Credit Agreement correctly sets forth each
Subsidiary of the Borrower and the direct and indirect ownership interest of the
Borrower therein.
8. No proceedings are pending or contemplated to rescind or challenge
the effectiveness of any of the resolutions of the Borrower that were adopted to
authorize the transactions contemplated by the Credit Documents.
Executed and delivered to ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP on August 4, 1998.
-------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, Vice President-Finance and
Chief Financial Officer of Stoneridge, Inc.
EXHIBIT D
----------------------------
FORM OF
ASSIGNMENT AGREEMENT
----------------------------
ASSIGNMENT AGREEMENT
DATE:_____________
Reference is made to the Credit Agreement described in Item 2 of Annex
I annexed hereto (as such Credit Agreement may hereafter be amended, modified or
supplemented from time to time, the "CREDIT AGREEMENT"). Unless defined in Annex
I attached hereto, terms defined in the Credit Agreement are used herein as
therein defined.
_____________ (the "ASSIGNOR") and ______________ (the "ASSIGNEE")
hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee without
recourse and without representation or warranty (other than as expressly
provided herein), and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the date hereof which represents the percentage
interest specified in Item 4 of Annex I (the "ASSIGNED SHARE") of all of
Assignor's outstanding rights and obligations under the Credit Agreement
indicated in Item 4 of Annex I, including, without limitation, all rights and
obligations with respect to the Assigned Share of the Assignor's Commitment and
of the Loans, Unpaid Drawings and the Notes held by the Assignor. After giving
effect to such sale and assignment, the Assignee's Commitment will be as set
forth in Item 4 of Annex I.
2. The Assignor (i) 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 liens or security interests; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or any of its Subsidiaries or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement or the other
Credit Documents or any other instrument or document furnished pursuant thereto.
3. The Assignee (i) represents and warrants that it is duly authorized
to enter into and perform the terms of this Assignment Agreement; (ii) confirms
that it has received a copy of the Credit Agreement and the other Credit
Documents, together with copies of the financial statements referred to therein
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment Agreement;
(iii) agrees that it will, independently and without reliance upon the
Administrative Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iv) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement and the other Credit Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; [and] (v) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Lender[; and (vi) to the extent legally
entitled to do so, attaches the forms described in section 5.4(b)(ii) of the
Credit Agreement. /6/
4. Following the execution of this Assignment Agreement by the Assignor
and the Assignee, an executed original hereof (together with all attachments)
will be delivered to the Administrative Agent. The effective date of this
Assignment Agreement shall be the date of execution hereof by the Assignor, the
Assignee and the consent hereof by the Administrative Agent and the receipt by
the Administrative Agent of the administrative fee referred to
----------------------------------
/6/ If the Assignee is organized under the laws of a jurisdiction outside the
United States.
in section 12.4(b) of the Credit Agreement, unless otherwise specified in Item 5
of Annex I hereto (the "SETTLEMENT DATE").
5. Upon the delivery of a fully executed original hereof to the
Administrative Agent, as of the Settlement Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment
Agreement, have the rights and obligations of a Lender thereunder and under the
other Credit Documents and (ii) the Assignor shall, to the extent provided in
this Assignment Agreement, relinquish its rights and be released from its
obligations under the Credit Agreement and the other Credit Documents.
6. It is agreed that upon the effectiveness hereof, the Assignee shall
be entitled to (x) all interest on the Assigned Share of the Loans at the rates
specified in Item 6 of Annex I, (y) all Facility Fee (if applicable) on the
Assigned Share of the Commitment at the rate specified in Item 7 of Annex I, and
(z) all Letter of Credit Fees (if applicable) on the Assignee's participation in
all Letters of Credit at the rate specified in Item 8 of Annex I hereto, which,
in each case, accrue on and after the Settlement Date, such interest and, if
applicable, Facility Fee and Letter of Credit Fees, to be paid by the
Administrative Agent, upon receipt thereof from the Borrower, directly to the
Assignee. It is further agreed that all payments of principal made by the
Borrower on the Assigned Share of the Loans which occur on and after the
Settlement Date will be paid directly by the Administrative Agent to the
Assignee. Upon the Settlement Date, the Assignee shall pay to the Assignor an
amount specified by the Assignor in writing which represents the Assigned Share
of the principal amount of the respective Loans made by the Assignor pursuant to
the Credit Agreement which are outstanding on the Settlement Date, net of any
closing costs, and which are being assigned hereunder. The Assignor and the
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement for periods prior to the Settlement Date directly between themselves
on the Settlement Date.
7. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By:____________________________ By:____________________________
Title: Title:
Acknowledged and Agreed:
National City Bank,
as Administrative Agent
By: ______________________________
Vice President
2
ANNEX I
TO
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
1. The Borrower:
STONERIDGE, INC.
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of August 4, 1998, among
Stoneridge, Inc., the Lenders from time to time party thereto,
and National City Bank, as Administrative Agent.
3. Date of Assignment Agreement:
--------- ---, -----
4. Amounts (as of date of item #3 above):
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
SWING LINE
GENERAL REVOLVING GENERAL REVOLVING REVOLVING SWING LINE
COMMITMENT LOANS COMMITMENT REVOLVING LOANS
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Aggregate Amount for $_____ $_____ $_____ $_____
all Lenders
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Assigned Share _____% _____% _____% _____%
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Amount of Assigned $_____ $_____ $_____ $_____
Share
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Amount Retained by $_____ $_____ $_____ $_____
Assignor
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
5. Settlement Date:
--------- ---, ---
6. Rate of Interest
to the Assignee: As set forth in section 2.8 of the Credit
Agreement (unless otherwise agreed to by the
Assignor and the Assignee). /7/
-----------------------
/7/ The Borrower and the Administrative Agent shall direct the entire amount of
the interest to the Assignee at the rate set forth in section 2.8 of the
Credit Agreement, with the Assignor and Assignee effecting any agreed upon
sharing of interest through payments by the Assignee to the Assignor.
7. Facility
Fee: As set forth in section 4.1(a) of the Credit
Agreement (unless otherwise agreed to by the
Assignor and the Assignee)./8/
8. Letter of
Credit Fees: As set forth in section 4.1(b) of the Credit
Agreement (unless otherwise agreed to by the
Assignor and the Assignee)./9/
9. Notices:
ASSIGNOR: ASSIGNEE:
---------------------- ----------------------
---------------------- ----------------------
---------------------- ----------------------
Attention: Attention:
Telephone No.: Telephone No.:
Facsimile No.: Facsimile No.:
10. Payment Instructions:
ASSIGNOR: ASSIGNEE:
---------------------- ----------------------
---------------------- ----------------------
---------------------- ----------------------
ABA No.: ABA No.:
Account No.: Account No.:
Reference: Reference:
Attention: Attention:
-----------------------------
/8/ The Borrower and the Administrative Agent shall direct the entire amount of
the Facility Fee to the Assignee at the rate set forth in section 4.1(a) of
the Credit Agreement, with the Assignor and the Assignee effecting any
agreed upon sharing of Facility Fee through payment by the Assignee to the
Assignor.
/9/ The Borrower and the Administrative Agent shall direct the entire amount of
the Letter of Credit Fees to the Assignee at the rate set forth in section
4.1(b) of the Credit Agreement, with the Assignor and the Assignee
effecting any agreed upon sharing of the Letter of Credit Fees through
payment by the Assignee to the Assignor.
2
EXHIBIT E
SECTION 5.4(B)(II) CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as of August 4,
1998, among Stoneridge, Inc., the financial institutions party thereto from time
to time, and National City Bank, as Administrative Agent (the "CREDIT
AGREEMENT"). Pursuant to the provisions of section 5.4(b)(ii) of the Credit
Agreement, the undersigned hereby certifies that it is not a "bank" as such term
is used in section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended.
[NAME OF BANK]
By:____________________________
Title:
Dated:__________