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EXHIBIT 4
U.S. $185,000,000
MULTICURRENCY CREDIT AGREEMENT
dated as of
September 9, 1999
among
CLARCOR INC.,
THE GUARANTORS PARTY HERETO,
THE BANKS PARTY HERETO,
FIRSTAR BANK MILWAUKEE, NATIONAL ASSOCIATION,
as agent,
and
BANK ONE, ILLINOIS, NA
and
AMCORE BANK N.A.
as co-agents
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TABLE OF CONTENTS
(This Table of Contents is not part of the Agreement)
Section Page
------- ----
1. The Committed Facility ................................................
1.1. The Revolving Credit Commitments .............................
1.2. Letters of Credit ............................................
(a) General Terms ...........................................
(b) Applications ............................................
(c) The Reimbursement Obligations ...........................
(d) The Participating Interests .............................
(e) Indemnification .........................................
1.3. Applicable Interest Rates ....................................
(a) Domestic Rate Loans .....................................
(b) Eurocurrency Loans ......................................
(c) Applicable Margin .......................................
(d) Alternative Currencies ..................................
(e) Rate Determinations .....................................
1.4. Minimum Borrowing Amounts.....................................
1.5. Manner of Borrowing Committed Revolving Loans and Designating
Interest Rates Applicable to Committed Revolving Loans .......
(a) Notice to the Agent .....................................
(b) Notice to the Banks .....................................
(c) Borrower's Failure to Notify ............................
(d) Disbursement of Committed Revolving Loans ...............
(e) Agent Reliance on Bank Funding ..........................
2. The Swing Line ........................................................
2.1. Swing Loans ..................................................
2.2. Interest on Swing Loans ......................................
2.3. Requests for Swing Loans .....................................
2.4. Conversion of Swing Line Loans into Revolving Credit
Loans ......................................................
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3. General Provisions Applicable to All Loans ............................
3.1. Interest Periods .............................................
3.2. Maturity of Loans ............................................
3.3. Prepayments ..................................................
(a) Committed Revolving Loans ...............................
(b) Swing Loans .............................................
(c) Mandatory Prepayments ...................................
3.4. Default Rate .................................................
3.5. The Notes ....................................................
3.6. Funding Indemnity ............................................
3.7. Commitment Terminations ......................................
4. Fees...................................................................
4.1. Commitment Fee ...............................................
4.2. Letter of Credit Fees ........................................
4.3. Closing Fee ..................................................
4.4. Other Fees ...................................................
4.5. Fee Calculations .............................................
5. Place and Application of Payments .....................................
6. Definitions; Interpretation ...........................................
6.1. Definitions ..................................................
6.2. Interpretation ...............................................
7. Representations and Warranties ........................................
7.1. Corporate Organization and Authority .........................
7.2. Subsidiaries .................................................
7.3. Corporate Authority and Validity of Obligations ..............
7.4. Financial Statements .........................................
7.5. No Litigation; No Labor Controversies ........................
7.6. Taxes ........................................................
7.7. Approvals ....................................................
7.8. ERISA ........................................................
7.9. Government Regulation ........................................
7.10. Margin Stock .................................................
7.11. Licenses and Authorizations: Compliance with
Environmental and Health Laws .............................
7.12. Ownership of Property; Liens .................................
7.13. No Burdensome Restrictions: Compliance with
Agreements ...................................................
7.14. Full Disclosure ..............................................
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7.15. Year 2000 ....................................................
8. Conditions Precedent ..................................................
8.1. Initial Credit Event .........................................
8.2. All Credit Events ............................................
9. Covenants .............................................................
9.1. Corporate Existence; Subsidiaries ............................
9.2. Maintenance ..................................................
9.3. Taxes ........................................................
9.4. ERISA ........................................................
9.5. Insurance ....................................................
9.6. Financial Reports and Other Information ......................
9.7. Bank Inspection Rights .......................................
9.8. Conduct of Business ..........................................
9.9. Liens ........................................................
9.10. Use of Proceeds; Regulation U ................................
9.11. Sales and Leasebacks .........................................
9.12. Mergers, Consolidations and Sales of Assets ..................
9.13. Use of Property and Facilities; Environmental and Health
and Safety Laws .........................................
9.14. Investments, Acquisitions, Loans, Advances and Guaranties ....
9.15. Consolidated Net Worth .......................................
9.16. Leverage Ratio ...............................................
9.17. Debt to Capitalization Ratio .................................
9.18. Interest Coverage Ratio ......................................
9.19. Dividends and Other Shareholder Distributions ................
9.20. Subsidiary Debt...............................................
9.21. Transactions with Affiliates..................................
9.22. Compliance with Laws .........................................
9.23. Change in Fiscal Year ........................................
9.24. Year 2000 ....................................................
9.25. ▇▇▇▇ ▇▇ Acquisition ..........................................
9.26 Priority Debt ................................................
10. Events of Default and Remedies ........................................
10.1. Events of Default ............................................
10.2. Nonbankruptcy Defaults .......................................
10.3. Bankruptcy Defaults ..........................................
10.4. Collateral for Undrawn Letters of Credit .....................
10.5. Notice of Default ............................................
10.6. Expenses .....................................................
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11. Change in Circumstances ...............................................
11.1. Change of Law ................................................
11.2. Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR .....................................
11.3. Increased Cost and Reduced Return ............................
11.4. Lending Offices ..............................................
11.5. Discretion of Bank as to Manner of Funding ...................
12. The Agent and the Co-Agents ...........................................
12.1. Appointment and Authorization of Agent .......................
12.2. Agent and its Affiliates .....................................
12.3. Action by Agent ..............................................
12.4. Consultation with Experts ....................................
12.5. Liability of Agent; Credit Decision ..........................
12.6. Indemnity ....................................................
12.7. Resignation of Agent and Successor Agent .....................
12.8 Co-Agents ....................................................
13. The Guarantees ........................................................
13.1. The Guarantees ...............................................
13.2. Guarantee Unconditional ......................................
13.3. Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances ........................................
13.4. Waivers ......................................................
(a) General .................................................
(b) Subrogation and Contribution ............................
13.5. Limit on Recovery ............................................
13.6. Stay of Acceleration .........................................
14. Miscellaneous .........................................................
14.1. Withholding Taxes ............................................
(a) Payments Free of Withholding ............................
(b) U.S. Withholding Tax Exemptions . .......................
(c) Inability of Bank to Submit Forms .......................
14.2. No Waiver of Rights ..........................................
14.3. Nonbusiness Day ..............................................
14.4. Documentary Taxes ............................................
14.5. Survival of Representations ..................................
14.6. Survival of Indemnities ......................................
14.7. Sharing of Set-Off ...........................................
14.8. Notices ......................................................
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14.9. Counterparts .................................................
14.10. Successors and Assigns .......................................
14.11. Participants .................................................
14.12. Assignment Agreements ........................................
14.13. Amendments ...................................................
1414. Headings .....................................................
14.15. Legal Fees, Other Costs and Indemnification ..................
14.16. Set Off ......................................................
14.17. Currency .....................................................
14.18 Confidentiality ..............................................
14.19. Entire Agreement .............................................
14.20. Governing Law ................................................
14.21. Submission to Jurisdiction: Waiver of Jury Trial .............
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EXHIBITS
A - Form of Committed Revolving Loan Note
B - Form of Swing Line Note
C - Form of Notice of Payment Request
D - Form of Compliance Certificate
E - Form of Subsidiary Guarantee Agreement
F - Form of Opinion of Counsel
G Form of Assignment and Assumption Agreement
SCHEDULE 1.2
(Standby) Form of Application for Standby Letters of Credit
SCHEDULE 1.2
(Commercial) Form of Application for Commercial Letter of Credit
SCHEDULE 7.2 Subsidiaries
SCHEDULE 9.9 Permitted Liens
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CREDIT AGREEMENT
To each of the Banks party hereto:
The undersigned, CLARCOR Inc., a Delaware corporation (the "Borrower"),
applies to you for your several commitments, subject to all the terms and
conditions hereof and on the basis of the representations and warranties
hereinafter set forth, to make available a revolving credit for loans and
letters of credit (the "Revolving Credit") and a swing line credit (the "Swing
Line") as described herein. Each of you is hereinafter referred to individually
as a "Bank," all of you are hereinafter referred to collectively as the "Banks,"
and Firstar Bank Milwaukee, National Association in its capacity as agent for
the Banks hereunder is hereinafter referred to as the "Agent" and Bank One,
Illinois, NA and Amcore Bank N.A., in their capacity as co-agents for the Banks
are hereinafter referred to individually as a "Co-Agent" and collectively as the
"Co-Agents."
1. The Committed Facility.
1.1. The Revolving Credit Commitments. Subject to the terms
and conditions hereof, each Bank, by its acceptance hereof, severally agrees to
make a loan or loans (individually a "Committed Revolving Loan" and collectively
"Committed Revolving Loans") to the Borrower from time to time on a revolving
basis in U.S. Dollars and Alternative Currencies in an aggregate outstanding
Original Dollar Amount up to the amount of its revolving credit commitment set
forth on the applicable signature page hereof (its "Revolving Credit Commitment
and, cumulatively for all the Banks, the "Revolving Credit Commitments"),
subject to any reductions thereof pursuant to the terms hereof, before the
Revolving Credit Termination Date. The sum of the aggregate Original Dollar
Amount of all Loans (whether Committed Revolving Loans or Swing Loans) and of
L/C Obligations at any time outstanding shall not exceed the Revolving Credit
Commitments in effect at such time. Each Borrowing of Committed Revolving Loans
shall be made ratably from the Banks in proportion to their respective
Percentages. As provided in Section 1.5(a) hereof, the Borrower may elect that
each Borrowing of Committed Revolving Loans denominated in U.S. Dollars be
either Domestic Rate Loans or Eurocurrency Loans. All Loans denominated in an
Alternative Currency shall be Eurocurrency Loans. Committed Revolving Loans may
be repaid and the principal amount thereof reborrowed before the Revolving
Credit Termination Date, subject to all the terms and conditions hereof. On the
Revolving Credit Termination Date, the principal amount of, and all accrued and
unpaid interest on,
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the Loans and L/C Obligations, and all other amounts owed by the Borrower
hereunder and under the other Credit Documents shall be immediately due and
payable.
1.2. Letters of Credit.
(a) General Terms. Subject to the terms and conditions hereof,
as part of the credit available under the Revolving Credit Commitments, the
Issuing Bank shall issue standby or commercial letters of credit (each a "Letter
of Credit") for the Borrower's account in U.S. Dollars in an aggregate undrawn
face amount up to the amount of the L/C Limit, provided that the aggregate L/C
Obligations at any time outstanding shall not exceed the difference between the
Revolving Credit Commitments in effect at such time and the aggregate Original
Dollar Amount of all Loans (whether Committed Revolving Loans or Swing Loans)
then outstanding. Each Letter of Credit shall be issued by the Issuing Bank, but
each Bank shall be obligated to reimburse the Issuing Bank for such Bank's
Percentage of the amount of each drawing thereunder and, accordingly, the
undrawn face amount of each Letter of Credit shall constitute usage of the
Revolving Credit Commitment of each Bank pro rata in accordance with each Bank's
Percentage.
(b) Applications. At any time before the Revolving Credit
Termination Date, the Issuing Bank shall, at the request of the Borrower, issue
one or more Letters of Credit, in a form satisfactory to the Issuing Bank, with
expiration dates no later than the earlier of (i) twelve (12) calendar months
from the date of issuance (or be cancelable not later than twelve (12) calendar
months from the date of issuance or renewal) or (ii) the Revolving Credit
Termination Date, in an aggregate face amount as set forth above, upon the
receipt of a duly executed application for the relevant Letter of Credit in the
form customarily prescribed by the Issuing Bank for the type of Letter of
Credit, whether standby or commercial, requested (each an "Application"). The
current forms of the Issuing Bank's Applications are attached as Schedule 1.2
(Standby) and Schedule 1.2 (Commercial) hereto. The Issuing Bank shall provide
the Borrower and each Bank with copies of any new form of Application that may,
from time to time, be adopted by the Issuing Bank. Notwithstanding anything
contained in any Application to the contrary: (i) the Borrower's obligation to
pay fees in connection with each Letter of Credit shall be as exclusively set
forth in Section 4.1(b) hereof, (ii) before the occurrence of a Default or an
Event of Default, the Issuing Bank will not call for the funding by the Borrower
of any amount under a Letter of Credit, or any other form of collateral security
for the Borrower's obligations in connection with such Letter of Credit, before
being presented with a drawing thereunder, (iii) if the Issuing Bank is not
timely reimbursed for the amount of any
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drawing under a Letter of Credit on the date such drawing is paid, the
Borrower's obligation to reimburse the Issuing Bank for the amount of such
drawing shall bear interest (which the Borrower hereby promises to pay) from and
after the date such drawing is paid at a rate per annum equal to the sum of 2%
plus the Applicable Margin for Domestic Rate Loans plus the Domestic Rate from
time to time in effect and (iv) if there is any inconsistency between the terms
of an Application and the terms of this Agreement, this Agreement shall govern.
The Issuing Bank will promptly notify the Banks of each issuance by it of a
Letter of Credit. If the Issuing Bank issues any Letters of Credit with
expiration dates that are automatically extended unless the Issuing Bank gives
notice that the expiration date will not so extend beyond its then scheduled
expiration date, the Issuing Bank will give such notice of nonrenewal before the
time necessary to prevent such automatic extension if before such required
notice date: (i) the expiration date of such Letter of Credit if so extended
would be after the Revolving Credit Termination Date, (ii) the Revolving Credit
Commitments have been terminated or (iii) an Event of Default exists and the
Required Banks have given the Issuing Bank instructions not to so permit the
extension of the expiration date of such Letter of Credit. The Issuing Bank
agrees to issue amendments to the Letter(s) of Credit increasing the amount, or
extending the expiration date, thereof at the request of the Borrower subject to
the conditions of Section 8 and the other terms of this Section 1.2.
(c) The Reimbursement Obligations. The Issuing Bank shall
notify the Borrower of each drawing under a Letter of Credit. Subject to Section
1.2(b) hereof, the obligation of the Borrower to reimburse the Issuing Bank for
all drawings under a Letter of Credit (a "Reimbursement Obligation") shall be
governed by the Application related to such Letter of Credit, except that (i)
reimbursement of each drawing shall be made in immediately available funds at
the Issuing Bank's principal office in Milwaukee, Wisconsin by no later than
Noon (Milwaukee time) on the date when such drawing is paid (the "Honor Date")
and (ii) if the Borrower fails to reimburse the Issuing Bank for the full amount
of a drawing under a Letter of Credit by Noon (Milwaukee time) on the Honor
Date, [x] the Borrower shall, unless the Revolving Credit Commitments have
terminated, be deemed to have requested Committed Revolving Loans consisting of
Domestic Rate Loans from the Banks in the aggregate amount equal to the
unreimbursed amount of such drawing and [y] the Issuing Bank shall, by 1:30 p.m.
(Milwaukee time) on the Honor Date, notify the Agent and each Bank of the
aggregate amount of the Committed Revolving Loans to be made on such date. In
the event of such a Borrowing, each Bank shall fund its Percentage of such
Committed Revolving Loans in the manner specified in Section 1.5(d) by 3:00 p.m.
(Milwaukee time) on the Honor Date and the Agent shall forward such Committed
Revolving Loans to the Issuing Bank for credit against the Borrower's
Reimbursement Obligation. If
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the Borrower does not pay in full such Reimbursement Obligation on the Honor
Date (whether by payment by the Borrower or with the proceeds of Committed
Revolving Loans) and the Participating Banks fund their participations therein
in the manner set forth in Section 1.2(d) below, then all payments thereafter
received by the Issuing Bank in discharge of any of the relevant Reimbursement
Obligations shall be distributed in accordance with Section 1.2(d) below.
(d) The Participating Interests. Each Bank (other than the
Bank then acting as Issuing Bank in issuing Letters of Credit), by its
acceptance hereof, severally agrees to purchase from the Issuing Bank, and the
Issuing Bank hereby agrees to sell to each such Bank (a "Participating Bank"),
an undivided percentage participating interest (a "Participating Interest"), to
the extent of its Percentage, in each Letter of Credit issued by, and each
Reimbursement Obligation owed to, the Issuing Bank. Upon any failure by the
Borrower to pay any Reimbursement Obligation by Noon (Milwaukee time) on the
Honor Date as set forth in Section 1.2(c) above, the Issuing Bank will promptly
notify each Bank, specifying the Letter of Credit drawn upon and the amount
which has not been reimbursed by the Borrower. In the event that such
Reimbursement Obligation is not paid with the proceeds of Committed Revolving
Loans as set forth in Section 1.2(c) above or if the Issuing Bank is required at
any time to return to the Borrower or to a trustee, receiver, liquidator,
custodian or other Person any portion of any payment of any Reimbursement
Obligation, each Participating Bank shall, not later than the Business Day it
receives a certificate in the form of Exhibit C hereto from the Issuing Bank to
such effect, if such certificate is received before 1 p.m. (Milwaukee time), or
not later than the following Business Day, if such certificate is received after
such time, pay to the Issuing Bank an amount equal to its Percentage of such
unpaid or recaptured Reimbursement Obligation together with interest on such
amount accrued from the date the related payment was made by the Issuing Bank to
the date of such payment by such Participating Bank at a rate per annum equal
to: (i) from the date the related payment was made by the Issuing Bank to the
date two Business Days after payment by such Participating Bank is due
hereunder, the Federal Funds Rate for each such day and (ii) from the date two
Business Days after the date such payment is due from such Participating Bank to
the date such payment is made by such Participating Bank, the Domestic Rate in
effect for each such day. Each such Participating Bank shall thereafter be
entitled to receive its Percentage of each payment received in respect of the
relevant Reimbursement Obligation and of interest paid thereon, with the Issuing
Bank retaining its Percentage as a Bank hereunder.
The several obligations of the Participating Banks to the
Issuing Bank under this Section 1.2(d) shall be absolute, irrevocable and
unconditional under any and all circumstances whatsoever and shall not be
subject
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to any set-off, counterclaim or defense to payment which any Participating Bank
may have or have had against the Borrower, the Issuing Bank, any other Bank or
any other Person whatsoever. Without limiting the generality of the foregoing,
such obligations shall not be affected by any Default or Event of Default or by
any reduction or termination of any Commitment of any Bank, and each payment by
a Participating Bank under this Section 1.2(d) shall be made without any offset,
abatement, withholding or reduction whatsoever. The Issuing Bank shall be
entitled to offset amounts received for the account of a Bank under this
Agreement against unpaid amounts due from such Bank to the Issuing Bank
hereunder (whether as fundings of participations, indemnities or otherwise), but
shall not be entitled to offset against amounts owed to the Issuing Bank by any
Bank arising outside this Agreement.
(e) Indemnification. The Participating Banks shall, to the
extent of their respective Percentages, indemnify the Issuing Bank (to the
extent not reimbursed by the Borrower) against any cost, expense (including
reasonable counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from the Issuing Bank's gross negligence or
willful misconduct) that the Issuing Bank may suffer or incur in connection with
any Letter of Credit. The obligations of the Participating Banks under this
Section 1.2(e) and all other parts of this Section 1.2 shall survive termination
of this Agreement and of all other L/C Documents.
1.3. Applicable Interest Rates.
(a) Domestic Rate Loans. The aggregate principal amount of
Domestic Rate Loans outstanding from time to time shall bear interest (computed
on the basis of a year of 365 or 366 days, as applicable, and actual days
elapsed) prior to maturity (whether by acceleration or otherwise) at a rate per
annum equal to the sum of the Applicable Margin for Domestic Rate Loans plus the
Domestic Rate from time to time in effect, payable on the last Business Day of
each calendar quarter and at maturity (whether by acceleration or otherwise).
"Domestic Rate" means for any day the greater of:
(i) the rate of interest announced by the Agent from
time to time as its prime rate, or equivalent, as in effect on such day, with
any change in the Domestic Rate resulting from a change in said prime rate to be
effective as of the date of the relevant change in said prime rate; and
(ii) the sum of (x) the rate determined by the Agent to
be the prevailing rate per annum (rounded upwards, if not a multiple of 1/16th
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of 1%, to the next higher 1/100 of 1%) at approximately 10:00 a.m. (Milwaukee
time) (or as soon thereafter as is practicable) on such day (or, if such day is
not a Business Day, on the immediately preceding Business Day) for the purchase
at face value of overnight Federal funds in an amount comparable to the
principal amount owed to the Agent for which such rate is being determined, plus
(y) 1/2 of 1% (0.50%).
(b) Eurocurrency Loans. Each Eurocurrency Loan made or
maintained by a Bank shall bear interest during each Interest Period it is
outstanding (computed on the basis of a year of 360 days and actual days
elapsed) on the unpaid principal amount thereof from the date such Loan is
advanced, continued, or created by conversion from a Domestic Rate Loan until
maturity (whether by acceleration or otherwise) at a rate per annum equal to the
sum of the Applicable Margin for Eurocurrency Loans plus the Adjusted LIBOR
applicable for such Interest Period, payable on the last day of the Interest
Period and at maturity (whether by acceleration or otherwise), and if the
applicable Interest Period is longer than three months, on each day occurring
every three months after the commencement of such Interest Period.
"Adjusted LIBOR" means a rate per annum determined in
accordance with the following formula:
Adjusted LIBOR = LIBOR
-----------------------------------
1 - Eurocurrency Reserve Percentage
"LIBOR" means, for any Interest Period: (a) the LIBOR Index
Rate for such Interest Period, if such rate is available, and (b) if the LIBOR
Index Rate cannot be determined, the arithmetic average of the rates of interest
per annum (rounded upwards, if not a multiple of 1/16th of 1%, to the nearest
1/100 of 1%) at which deposits in U.S. Dollars or the relevant Alternative
Currency, as appropriate, in immediately available funds are offered to the
Agent at ▇▇ ▇.▇. (▇▇▇▇▇▇, ▇▇▇▇▇▇▇ time) two Business Days before the beginning
of such Interest Period by three or more major banks in the interbank
eurocurrency market selected by the Agent for delivery on the first day of and
for a period equal to such Interest Period in an amount equal or comparable to
the principal amount of the Eurocurrency Loan scheduled to be made by the Agent
as part of such Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate
per annum (rounded upwards, if necessary, to the next higher one
hundred-thousandth of a percentage point) for deposits in U.S. Dollars or the
relevant Alternative Currency, as appropriate, for a period equal to such
Interest Period, which appears on the Telerate Page 3740 or 3750, as appropriate
for such
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currency, as of 11 a.m. (London, England time) on the day two Business Days
before the commencement of such Interest Period.
"Telerate Page 3740" or "3750" means the display designated as
"Page 3740" or "Page 3750," as appropriate, on the Telerate Service (or such
other page as may replace Page 3740 or 3750, as appropriate, on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for U.S. Dollar, Pounds Sterling or Euros
(in the case of Telerate Page 3750) deposits).
"Eurocurrency Reserve Percentage" means, for any Borrowing of
a Eurocurrency Loan, the daily average for the applicable Interest Period of the
maximum rate, expressed as a decimal, at which reserves (including, without
limitation, any supplemental, marginal and emergency reserves) are imposed
during such Interest Period by the Board of Governors of the Federal Reserve
System (or any successor) on "eurocurrency liabilities", as defined in such
Board's Regulation D (or in respect of any other category of liabilities that
includes deposits by reference to which the interest rate on Eurocurrency Loans
is determined or any category of extensions of credit or other assets that
include loans by non-United States offices of any Bank to United States
residents), subject to any amendments of such reserve requirement by such Board
or its successor, taking into account any transitional adjustments thereto. For
purposes of this definition, the Eurocurrency Loans shall be deemed to be
"eurocurrency liabilities" as defined in Regulation D.
(c) Applicable Margin. With respect to Committed Revolving
Loans, the fees with respect to Standby Letters of Credit payable under section
4.2 hereof and the commitment fee payable under Section 4.1 hereof, the
"Applicable Margin" shall mean the rate specified for such obligation below,
subject to quarterly adjustment as hereinafter provided:
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Applicable
Applicable Margin for
Margin for Eurocurrency
Domestic Rate Loans under the
When Following Loans under the Revolving Credit
Status Exists for Revolving Commitment and Applicable
any Margin Credit for Standby Margin for
Determination Commitments Letters of Credit Commitment
Date: is: is: Fee is:
---- -- -- ------
Level I Status 0% .55% .10%
Level II Status 0% .65% .10%
Level III Status 0% .80% .15%
Level IV Status 0% 1.00% .20%
Level V Status 0% 1.25% .25%
provided, however, that all of the foregoing is subject to the following:
(i) the initial Applicable Margin shall be the
Applicable Margin for Level IV Status and shall remain in effect through the
first Margin Determination Date occurring after November 30, 1999;
(ii) on or before the date that is ten Business Days
after the latest date by which the Borrower is required to deliver a Compliance
Certificate to the Banks for a given accounting period pursuant to Section 9.6
hereof, the Agent shall determine whether Level I Status, Level II Status, Level
III Status, Level IV Status or Level V Status exists as of the close of the
applicable accounting period (each date that is ten Business Days after the
latest date by which the Borrower is required to deliver a Compliance
Certificate to the Banks being herein referred to as the "Margin Determination
Date") and shall also determine the Net Leverage Ratio as of such close, in each
case based upon such Compliance Certificate and the financial statements
delivered to the Banks under Section 9.6 hereof for such accounting period, and
shall promptly notify the Borrower and the Banks of such determination and of
any change in the Applicable Margin resulting therefrom;
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(iii) subject to clause (i) above, any change in the
Applicable Margin shall be effective as of such Margin Determination Date, with
such new Applicable Margin to continue in effect until the next Margin
Determination Date. If the Borrower has not delivered a Compliance Certificate
by the date such Compliance Certificate is required to be delivered under
Section 9.6 hereof, until a Compliance Certificate is delivered before the next
Margin Determination Date, the Applicable Margin shall be the Applicable Margin
for Level V Status. If the Borrower subsequently delivers a Compliance
Certificate before the next Margin Determination Date, the Applicable Margin
established by such Compliance Certificate shall take effect from the date of
such delivery and remain effective until the next Margin Determination Date; and
(iv) if and so long as any Event of Default has occurred
and is continuing hereunder, notwithstanding anything herein to the contrary,
the Applicable Margin shall be the Applicable Margin for Level V Status.
(d) Alternative Currencies. On the date the Borrower requests
a Borrowing of Eurocurrency Loans in an Alternative Currency, as provided in
Section 1.5(a) below, the Agent shall promptly notify each Bank of the currency
in which such Borrowing is requested. If a Bank determines that such Alternative
Currency is not available to it in sufficient amount and for a sufficient term
to enable it to advance or continue the Loan requested of it as part of such
Eurocurrency Borrowing and so notifies the Agent no later than 2 p.m. (Milwaukee
time) on the same day it receives notice from the Agent of such requested Loan,
the Agent shall so notify the Borrower by 2:45 p.m. (Milwaukee time). If the
Borrower nevertheless desires such Borrowing, it must notify the Agent by no
later than 3 p.m. (Milwaukee time) on such day. If the Agent does not receive
such notice from the Borrower by 3 p.m. (Milwaukee time), the Borrower shall
automatically be deemed to have revoked its request for the Eurocurrency
Borrowing and the Agent will promptly notify the Banks of such revocation and
such Eurocurrency Borrowing shall not be made in whole or part. If the Borrower
does give such notice by 3 p.m. (Milwaukee time), each Bank that did not notify
the Agent by 2 p.m. (Milwaukee time) that the requested Alternative Currency is
unavailable to it to fund the requested Loan shall, subject to Section 8 hereof,
make its Loan in the requested Alternative Currency in accordance with Section
1.5(d) hereof. Each Bank that did so notify the Agent by 2 p.m. (Milwaukee time)
that it would not be able to make the Loan requested from it shall, subject to
Section 8 hereof, make a Eurocurrency Loan denominated in U.S. Dollars in the
Original Dollar Amount of, and with the same Interest Period as, the
Eurocurrency Loan such Bank was originally requested to make. Such Eurocurrency
Loan denominated in U.S. Dollars shall be made by the affected
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Bank on the same day as the other Banks make their Eurocurrency Loans
denominated in the applicable Alternative Currency as part of the relevant
Borrowing of Eurocurrency Loans, but shall bear interest with reference to the
Adjusted LIBOR applicable to U.S. Dollars rather than the relevant Alternative
Currency for the applicable Interest Period and shall be made available in
accordance with the procedures for disbursing U.S. Dollar Loans under Section
1.5(d) hereof. Any Loan made in an Alternative Currency shall be advanced in
such currency, and, except as otherwise provided in Section 1.5(a), all payments
of principal and interest thereon shall be made in such Alternative Currency.
(e) Rate Determinations. The Agent shall determine each
interest rate applicable to Committed Revolving Loans and the Original Dollar
Amount of Loans denominated in Alternative Currencies, and a reasonable
determination thereof by the Agent shall be conclusive and binding except in the
case of demonstrable error or willful misconduct. The Original Dollar Amount of
each Eurocurrency Loan denominated in an Alternative Currency shall be
determined or redetermined, as applicable, effective as of the first day of each
Interest Period applicable to such Loan.
1.4. Minimum Borrowing Amounts. Each Borrowing of Domestic
Rate Loans shall be in an amount not less than $500,000 and in integral
multiples of $100,000. Each Borrowing of Eurocurrency Loans in U.S. Dollars
shall be in an amount not less than $5,000,000 and in integral multiples of
$1,000,000. Each Borrowing of Eurocurrency Loans in an Alternative Currency
shall be in an amount not less than an Original Dollar Amount of $10,000,000 and
in such integral multiple of 100,000 units of the relevant currency as would
have the Original Dollar Amount most closely approximating $1,000,000 or an
integral multiple thereof.
1.5. Manner of Borrowing Committed Revolving Loans and
Designating Interest Rates Applicable to Committed Revolving Loans.
(a) Notice to the Agent. In order to borrow any Committed
Revolving Loans, the Borrower shall give notice to the Agent by no later than 11
a.m. (Milwaukee time): (i) at least four Business Days before the date on which
the Borrower requests the Banks to advance a Borrowing of Eurocurrency Loans
denominated in an Alternative Currency, (ii) at least three Business Days before
the date on which the Borrower requests the Banks to advance a Borrowing of
Eurocurrency Loans denominated in U.S. Dollars and (iii) on the date the
Borrower requests the Banks to advance a Borrowing of Domestic Rate Loans. The
Loans included in each Borrowing shall bear interest
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initially at the type of rate specified in such notice of a new Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Borrowing or, subject to Section 1.4's
minimum amount requirement for each outstanding Borrowing, a portion thereof, as
follows: (i) if such Borrowing is of Eurocurrency Loans, on the last day of the
Interest Period applicable thereto, the Borrower may continue part or all of
such Borrowing as Eurocurrency Loans for an Interest Period or Interest Periods
specified by the Borrower or, if such Eurocurrency Loan is denominated in U.S.
Dollars, convert part or all of such Borrowing into Domestic Rate Loans, (ii) if
such Borrowing is of Domestic Rate Loans, on any Business Day, the Borrower may
convert all or part of such Borrowing into Eurocurrency Loans denominated in
U.S. Dollars for an Interest Period or Interest Periods specified by the
Borrower. The Borrower shall give all such notices requesting the advance,
continuation, or conversion of a Borrowing to the Agent by telephone or telecopy
(which notice shall be irrevocable once given and, if by telephone, shall be
promptly confirmed in writing). Notices of the continuation of a Borrowing of
Eurocurrency Loans denominated in U.S. Dollars for an additional Interest Period
or of the conversion of part or all of a Borrowing of Eurocurrency Loans
denominated in U.S. Dollars into Domestic Rate Loans or of Domestic Rate Loans
into Eurocurrency Loans must be given by no later than 11 a.m. (Milwaukee time)
at least three Business Days before the date of the requested continuation or
conversion. Notices of the continuation of a Borrowing of Eurocurrency Loans
denominated in an Alternative Currency must be given no later than 11 a.m.
(Milwaukee time) at least four Business Days before the requested continuation.
All such notices concerning the advance, continuation, or conversion of a
Borrowing shall specify the date of the requested advance, continuation or
conversion of a Borrowing (which shall be a Business Day), the amount of the
requested Borrowing to be advanced, continued, or converted, the type of
Committed Revolving Loans to comprise such new, continued or converted Borrowing
and, if such Borrowing is to be comprised of Eurocurrency Loans, the currency
and Interest Period applicable thereto. The Borrower agrees that the Agent may
rely on any such telephonic or telecopy notice given by any person it in good
faith believes is an Authorized Representative without the necessity of
independent investigation, and in the event any such notice by telephone
conflicts with any written confirmation, such telephonic notice shall govern if
the Agent has acted in reliance thereon. Notwithstanding the foregoing, no more
than 10 Borrowings comprised of Eurocurrency Loans may be outstanding at any
time and, unless the Required Banks otherwise agree, no Loans may be made or
continued as, or converted into, Eurocurrency Loans if a Default or Event of
Default exists. If a Default or Event of Default exists on the last day of an
Interest Period but the Notes have not been declared to be or become due and
payable under Sections 10.02 and 10.03, such Eurocurrency Loans shall
automatically be converted to Domestic Rate Loans in a principal amount equal to
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(x) if such Eurocurrency Loans are denominated in U.S. Dollars, such amount and
(y) if such Eurocurrency Loans are denominated in an Alternative Currency, an
amount equal to the U.S. Dollar Equivalent of the principal amount of such
Eurocurrency Loans.
(b) Notice to the Banks. The Agent shall give prompt
telephonic or telecopy notice to each Bank of any notice from the Borrower
received pursuant to Section 1.5.(a) above. The Agent shall give notice to the
Borrower and each Bank by like means of the interest rate applicable to each
Borrowing of Eurocurrency Loans and, if such Borrowing is denominated in an
Alternative Currency, shall give notice by such means to the Borrower and each
Bank of the Original Dollar Amount thereof.
(c) Borrower's Failure to Notify. If the Borrower fails to
give notice pursuant to Section 1.5(a) above of the continuation or conversion
of any outstanding principal amount of a Borrowing of Eurocurrency Loans
denominated in U.S. Dollars before the last day of its then current Interest
Period within the period required by Section 1.5(a) and has not notified the
Agent within the period required by Section 3.3 that it intends to prepay such
Borrowing, such Borrowing shall automatically be converted into a Borrowing of
Domestic Rate Loans. If the Borrower fails to give notice pursuant to Section
1.5(a) above of the continuation of any outstanding principal amount of a
Borrowing of Eurocurrency Loans denominated in an Alternative Currency before
the last day of its then current Interest Period within the period required by
Section 1.5(a) and has not notified the Agent within the period required by
Section 3.3 that it intends to prepay such Borrowing, such Borrowing shall
automatically be continued as a Borrowing of Eurocurrency Loans in the same
Alternative Currency with an Interest Period of one month, subject to the
application of Section 1.4, the restrictions contained in the definition of
Interest Period and the restrictions in the last sentence of Section 1.5(a)
hereof.
(d) Disbursement of Committed Revolving Loans. Not later than
Noon (Milwaukee time) on the date of any requested advance of new Borrowings,
subject to Section 8 hereof, each Bank shall make available its Committed
Revolving Loan comprising part of such Borrowing in funds immediately available
at the principal office of the Agent in Milwaukee, Wisconsin, except that if
such Borrowing is denominated in an Alternative Currency each Bank shall,
subject to Section 1.3(d) and Section 8, make available its Committed Revolving
Loan comprising part of such Borrowing at such office as the Agent has
previously specified in a notice to each Bank, in such funds as are then
customary for the settlement of international transactions in such currency and
no later than such local time as is necessary for such funds to be received and
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transferred to the Borrower for same day value on the date of the Borrowing. The
Agent shall make available to the Borrower Committed Revolving Loans denominated
in U.S. Dollars at the Agent's principal office in Milwaukee, Wisconsin and
Committed Revolving Loans denominated in Alternative Currencies at such office
as the Agent has previously agreed to with the Borrower, in each case in the
type of funds received by the Agent from the Banks.
(e) Agent Reliance on Bank Funding. Unless the Agent shall
have been notified by a Bank prior to (or, in the case of a Borrowing of
Domestic Rate Loans, by 1 p.m. (Milwaukee time) on) the date on which such Bank
is scheduled to make payment to the Agent of the proceeds of a Loan (which
notice shall be effective upon receipt) that such Bank does not intend to make
such payment, the Agent may assume that such Bank has made such payment when due
and the Agent may in reliance upon such assumption (but shall not be required
to) make available to the Borrower the proceeds of the Loan to be made by such
Bank and, if any Bank has not in fact made such payment to the Agent, such Bank
shall, on demand, pay to the Agent the amount made available to the Borrower
attributable to such Bank together with interest thereon in respect of each day
during the period commencing on the date such amount was made available to the
Borrower and ending on (but excluding) the date such Bank pays such amount to
the Agent at a rate per annum equal to the Federal Funds Rate or, in the case of
a Loan denominated in an Alternative Currency, the cost to the Agent of funding
the amount it advanced to fund such Bank's Loan, as determined by the Agent. If
such amount is not received from such Bank by the Agent immediately upon demand,
the Borrower will, on demand, repay to the Agent the proceeds of the Loan
attributable to such Bank with interest on any amount unpaid more than three
Business Days after such demand (but otherwise without interest) at a rate per
annum equal to the interest rate applicable to the relevant Loan, but without
such payment being considered a payment or prepayment of a Loan under Section
3.6 hereof, so that the Borrower will have no liability under such section with
respect to such payment.
2. The Swing Line.
2.1. Swing Loans. Subject to all of the terms and conditions
hereof, Firstar Bank Milwaukee, National Association ("Firstar") agrees to make
loans in U.S. Dollars to the Borrower under the Swing Line ("Swing Loans") which
shall not in the aggregate at any time outstanding exceed the lesser of: (i) the
Swing Line Commitment or (ii) the difference between the Revolving Credit
Commitments in effect at such time and the Original Dollar Amount of all Loans
and L/C Obligations outstanding at the time of computation. The Swing Line
Commitment shall be available to the Borrower and may be availed of by the
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Borrower from time to time and borrowings thereunder may be repaid and used
again during the period ending on the Revolving Credit Termination Date. Without
regard to the face principal amount of the Swing Line Note, the actual principal
amount at any time outstanding and owing by the Borrower on account of the Swing
Line Note during the period ending on the Revolving Credit Termination Date
shall be the sum of all Swing Loans then or theretofore made thereon less all
principal payments actually received thereon during such period.
2.2. Interest on Swing Loans. The aggregate outstanding
principal balance of Swing Loans outstanding shall bear interest at the Firstar
Quoted Rate in effect from time to time, provided that if the Swing Loans are
not paid when due (whether by lapse of time, acceleration or otherwise) the
Swing Loans shall bear interest, whether before or after judgment, until payment
in full thereof at a rate per annum equal to the sum of 2% plus the Domestic
Rate from time to time in effect plus the Applicable Margin for Domestic Rate
Loans. Interest on Swing Loans outstanding from time to time shall be due and
payable on the last Business Day of each month, and interest after maturity
(whether by lapse of time, acceleration or otherwise) shall be due and payable
upon demand. Firstar shall provide written notice to the Borrower of the Firstar
Quoted Rate in effect from time to time and any change in the Firstar Quoted
Rate shall be effective on the Business Day following the date Firstar provides
notice thereof.
2.3. Requests for Swing Loans. The Borrower shall give Firstar
prior notice (which may be written or oral) no later than Noon (Milwaukee time)
on the date upon which the Borrower requests that any Swing Loan be made, of the
amount and date of such Swing. Subject to all of the terms and conditions
hereof, the proceeds of such Swing Loan shall be made available to the Borrower
on the date so requested at the offices of the Agent in Milwaukee, Wisconsin.
Anything contained in the foregoing to the contrary notwithstanding: (i) the
obligation of Firstar to make Swing Loans shall be subject to all of the terms
and conditions of this Agreement and (ii) Firstar shall not be obligated to make
more than one Swing Loan during any one day.
2.4. Conversion of Swing Line Loans into Revolving Credit
Loans. Upon the occurrence of an Event of Default or at any time upon the
request of Firstar: (i) payments which pursuant to Section 5 hereof are to be
allocated to the principal of the Revolving Credit Notes and the Swing Line Note
shall first be applied to the Swing Line Note until the Swing Line Note is
repaid in full and (ii) either [a] each Bank shall make a Committed Revolving
Loan in an amount equal to its Percentage of the outstanding principal balance
of the Swing Line Note plus accrued interest thereon (and the Agent shall apply
such Revolving Credit Loans in repayment of the Swing Line Note) or [b] each
Bank shall
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purchase from Firstar a participation in the amount equal to such Bank's
Percentage applicable to Committed Revolving Loans of the outstanding principal
balance of and accrued interest on the Swing Line Note. All of the foregoing
principles shall be applied as though the Revolving Credit Commitments and the
Swing Line Commitment had not terminated pursuant to Section 10.2 or 10.3
hereof, whether or not such is in fact the case.
3. General Provisions Applicable to all Loans.
3.1. Interest Periods. As provided in Section 1.5(a) hereof in
the case of Committed Revolving Loans, at the time of each request to advance,
continue or create by conversion Eurocurrency Loans hereunder the Borrower shall
select an Interest Period applicable to such Eurocurrency Loans from among the
available options. The term "Interest Period" means the period commencing on the
date a Borrowing of Eurocurrency Loans is advanced, continued or created by
conversion and ending one, two, three or six months thereafter, provided,
however, that:
(i) the Borrower may not select an Interest Period that
extends beyond the Revolving Credit Termination Date;
(ii) whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day of such Interest
Period shall be extended to the next succeeding Business Day, provided that if
such extension would cause the last day of an Interest Period to occur in the
following calendar month, the last day of such Interest Period shall be the
immediately preceding Business Day; and
(iii) for purposes of determining an Interest Period, a month
means a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month; provided, however,
that if there is no numerically corresponding day in the month in which such an
Interest Period is to end or if such an Interest Period begins on the last
Business Day of a calendar month, then such Interest Period shall end on the
last Business Day of the calendar month in which such Interest Period is to end.
3.2. Maturity of Loans. Each Committed Revolving Loan shall
mature and become due and payable by the Borrower on the last day of the
Interest Period applicable thereto (unless converted or continued in accordance
with the terms of this Agreement) or, in any event, on the Revolving Credit
Termination Date. Swing Loans shall mature and become payable by the Borrower on
the Revolving Credit Termination Date.
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3.3. Prepayments.
(a) Committed Revolving Loans. The Borrower may prepay,
without premium or penalty but subject to Section 3.6, in whole or in part (but,
if in part, then: (i) if such Borrowing is of Domestic Rate Loans, in an amount
not less than $500,000, (ii) if such Borrowing is of Eurocurrency Loans
denominated in U.S. Dollars, in an amount not less than $1,000,000, (iii) if
such Borrowing is denominated in an Alternative Currency, an amount for which
the U.S. Dollar Equivalent is not less than $1,000,000 and (iv) in an amount
such that the minimum amount required for a Borrowing of Committed Revolving
Loans pursuant to Section 1.4 hereof remains outstanding, any Borrowing of
Eurocurrency Loans, upon three Business Days' prior notice to the Agent or, in
the case of a Borrowing of Domestic Rate Loans, notice delivered to the Agent no
later than 11 a.m. (Milwaukee time) on the date of prepayment. Such prepayment
of Domestic Rate or Eurocurrency Loans, as the case may be, shall be made by the
payment of the principal amount to be prepaid and accrued interest thereon to
the date fixed for prepayment plus, in the case of a prepayment of Eurocurrency
Loans on a date prior to the last day of the applicable Interest Period, any
amount payable under Section 3.6. The Agent will promptly advise each Bank of
any such prepayment notice with respect to Committed Revolving Loans it receives
from the Borrower. Any amount paid or prepaid on the Committed Revolving Loans
before the Revolving Credit Termination Date may, subject to the terms and
conditions of this Agreement, be borrowed, repaid and borrowed again.
(b) Swing Loans. The Borrower may prepay any Swing Loans in
whole or in part upon notice delivered to Firstar no later than 11 a.m.
(Milwaukee time) on the date of prepayment specifying the principal amount to be
prepaid. Any amount paid or prepaid on Swing Loans before the Revolving Credit
Termination Date may, subject to the terms and conditions of this Agreement, be
borrowed, repaid and borrowed again.
(c) Mandatory Prepayments. If, within thirty (30) days after
receiving notice under Section 9.6(c) of a Change of Control Event, the Required
Banks notify the Borrower that they require prepayment of the Notes, on the date
set forth in such notice (which date shall be no earlier than (x) five (5) days
after such notice is given or (y) the day on which the Borrower repays any other
Debt before its original scheduled due date, whichever day is earlier) the
Borrower shall pay in full all Obligations then outstanding, including the
prepayment of L/C Obligations in the manner contemplated by Section 10.4 hereof,
and the Commitments and Swing Line Commitment shall terminate in full.
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3.4. Default Rate. If any payment of principal on any Loan is not
made when due (whether by acceleration or otherwise), such Loan shall bear
interest from the date such payment was due until paid in full, payable on
demand, at a rate per annum equal to:
(a) for any Domestic Rate Loan, the sum of two percent (2%) plus
the Domestic Rate from time to time in effect plus the Applicable Margin for
Domestic Rate Loans;
(b) for any Eurocurrency Loan, the sum of two percent (2%) plus
the rate of interest in effect thereon at the time of such default until the end
of the Interest Period applicable thereto and, thereafter, at a rate per annum
equal to the sum of two percent (2%) plus the Domestic Rate from time to time in
effect plus the Applicable Margin for Domestic Rate Loans; and
(c) for Swing Loans, the rate set forth in Section 2.2 hereof.
3.5. The Notes.
(a) All Committed Revolving Loans made to the Borrower by a Bank
shall be evidenced by a single promissory note of the Borrower issued to such
Bank in the form of Exhibit A hereto (individually, a "Committed Revolving Loan
Note" and, collectively, the "Committed Revolving Loan Notes"), each such
Committed Revolving Loan Note to be payable to the order of the applicable Bank
in the principal amount of its Revolving Credit Commitment and otherwise in the
form of Exhibit A hereto.
(b) All Swing Loans made to the Borrower by Firstar shall be
evidenced by a single promissory note of the Borrower issued to Firstar in the
form of Exhibit B hereto (the "Swing Line Note"), such Swing Line Note to be
payable to the order of Firstar in the principal amount of its Swing Line
Commitment and otherwise in the form of Exhibit B hereto.
(c) Each Bank shall record on its books and records or on a
schedule to the appropriate Note the amount of each Loan advanced, continued, or
converted by it, all payments of principal and interest and the principal
balance from time to time outstanding thereon, the type of such Loan, and, for
any Eurocurrency Loan, the Interest Period and interest rate applicable thereto
and the currency in which such Loan is denominated. The record thereof, whether
shown on such books and records of a Bank or on a schedule to any Note, shall be
prima facie evidence as to all such matters; provided, however, that the failure
of
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any Bank to record any of the foregoing or any error in any such record shall
not limit or otherwise affect the obligation of the Borrower to repay all Loans
made to it hereunder together with accrued interest thereon. At the request of
any Bank and upon such Bank tendering to the Borrower the Note to be replaced,
the Borrower shall furnish a new Note to such Bank to replace any outstanding
Note, and at such time the first notation appearing on a schedule on the reverse
side of, or attached to, such Note shall set forth the aggregate unpaid
principal amount of all Loans, if any, then outstanding thereon.
3.6. Funding Indemnity. If any Bank shall incur any loss, cost or
expense (including, without limitation, any loss of profit, and any loss, cost
or expense incurred by reason of the liquidation or re-employment of deposits or
other funds acquired by such Bank to fund or maintain any Eurocurrency Loan or
the relending or reinvesting of such deposits or amounts paid or prepaid to such
Bank) as a result of:
(a) any payment, prepayment or conversion of a Eurocurrency Loan
on a date other than the last day of its Interest Period, except as provided in
Section 11.1 hereof,
(b) any failure (because of a failure to meet the conditions of
Section 5 or otherwise) by the Borrower to borrow or continue a Eurocurrency
Loan, or to convert a Domestic Rate Loan into a Eurocurrency Loan, on the date
specified in a notice given pursuant to any of Sections 1.5(a) or 2.3 hereof or
established pursuant to Sections 1.5(c) hereof,
(c) any failure by the Borrower to make any payment of principal
on any Eurocurrency Loan when due (whether by acceleration or otherwise), or
(d) any acceleration of the maturity of a Eurocurrency Loan as a
result of the occurrence of any Event of Default hereunder,
then, upon the demand of such Bank, the Borrower shall pay to such Bank such
amount as will reimburse such Bank for such loss, cost or expense. If any Bank
makes such a claim for compensation, it shall provide to the Borrower, with a
copy to the Agent, a certificate executed by an officer of such Bank setting
forth the amount of such loss, cost or expense in reasonable detail (including
an explanation of the basis for and the computation of such loss, cost or
expense) and the amounts shown on such certificate if reasonably calculated
shall be conclusive absent demonstrable error.
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3.7. Commitment Terminations. The Borrower shall have the right at
any time and from time to time, upon five (5) Business Days' prior written
notice to the Agent, to terminate the Revolving Credit Commitments or the Swing
Line Commitment without premium or penalty, in whole or in part; provided,
however, (a) any partial termination of the Swing Line Commitment shall be in an
amount not less than $1,000,000 and (b) any partial termination of the Revolving
Credit Commitments shall be (i) in an amount not less than $5,000,000, and (ii)
allocated ratably among the Banks in proportion to their respective Percentages;
provided further, that the Revolving Credit Commitments may not be reduced to an
amount less than the sum of the Original Dollar Amount of all Loans and all L/C
Obligations then outstanding. The Agent shall give prompt notice to each Bank of
any such termination of such Commitments. Any termination of Revolving Credit
Commitments or Swing Line Commitment pursuant to this Section 3.7 may not be
reinstated.
4. Fees.
4.1. Commitment Fee. The Borrower shall pay to the Agent for the
ratable account of the Banks in accordance with their Percentages a commitment
fee accruing at the rate equal to the Applicable Margin (as then determined and
computed) on the average daily unused amount of the Revolving Credit Commitments
hereunder, such commitment fee to be payable in arrears on September 30, 1999
and, on the last day of each fiscal quarter thereafter and on the Revolving
Credit Termination Date, provided, however, that (i) if the Revolving Credit
Commitments are terminated in whole on a date earlier than the Revolving Credit
Termination Date, the fee for the period to but not including the date of such
termination shall be paid in whole on the date of such termination, (ii) if the
Revolving Credit Commitments are partially terminated pursuant to Section 3.7
hereof, the fee for the period to but not including the date of such partial
termination shall be paid in whole on the date of such partial termination and
(iii) Swing Loans shall be deemed usage of the Revolving Credit Commitments for
purposes of this Section.
4.2 Letter of Credit Fees. The Borrower shall pay to the Issuing
Bank for its own account an issuance fee equal to 1/8 of 1% (0.125%) per annum
of the daily average undrawn amount of all Letters of Credit outstanding during
a calendar quarter or other applicable period, payable quarterly in arrears on
the last day of each calendar quarter, commencing on September 30, 1999, and on
the Revolving Credit Termination Date. In addition, quarterly in arrears, on the
last day of each calendar quarter, commencing on September 30, 1999, and on the
Revolving Credit Termination Date, the Borrower shall pay to the Agent, for the
ratable benefit of the Banks in accordance with their Percentages, a letter of
credit
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fee at a rate per annum equal to the Applicable Margin for Standby Letters of
Credit in effect during each day of such quarter or other applicable period
applied to the daily average undrawn amount of Standby Letters of Credit
outstanding during such quarter. In addition, the Borrower shall pay to the
Issuing Bank for its own account (i) the Issuing Bank's standard issuance fee
for each Commercial Letter of Credit and (ii) the Issuing Bank's standard
drawing, negotiation, amendment, and other administrative fees for each Letter
of Credit (whether a Commercial Letter of Credit or Standby Letter of Credit).
Such standard fees referred to in the preceding clauses (i) and (ii) may be
established by the Issuing Bank from time to time and the Issuing Bank shall
notify the Borrower of any changes in such standard fees.
4.3 Closing Fee. The Borrower shall pay to the Agent for the
ratable account of the Banks in accordance with their Percentages a closing fee
of $462,500, payable on the date of the execution and delivery of this
Agreement.
4.4 Other Fees. The Borrower shall pay to Firstar the other fees
specified in the Fee Letter in the amounts and on the dates set forth therein.
4.5 Fee Calculations. All fees payable under this Section 4
shall be computed on the basis of a year of 365 or 366 days, as applicable, for
the actual number of days elapsed.
5. Place and Application of Payments. All payments of principal
of and interest on the Loans and the Reimbursement Obligations, and of all other
amounts payable by the Borrower under this Agreement, shall be made by the
Borrower to the Agent by no later than 12:00 Noon (Milwaukee time) on the due
date thereof at the principal office of the Agent in Milwaukee, Wisconsin (or
such other location in the State of Wisconsin as the Agent may designate to the
Borrower) or, if such payment is on a Reimbursement Obligation, no later than
provided by Section 1.2(c) hereof or, if such payment is to be made in an
Alternative Currency, no later than 12:00 Noon local time at the place of
payment to such office as the Agent has previously specified in a notice to the
Borrower for the benefit of the Person or Persons entitled thereto. Any payments
received after such time shall be deemed to have been received by the Agent on
the next Business Day. Except (i) during the continuance of any Default in the
payment of any Loan or L/C Obligations, (ii) if Section 2.4 hereof requires
otherwise or (iii) the Borrower requests otherwise in accordance with the
provisions of this Agreement, payments on the Obligations shall be applied first
to Domestic Rate Loans under the Revolving Credit until paid in full, before
application to any other Loans. All such payments shall be made (i) in U.S.
Dollars, in immediately available funds at the place of payment, or (ii) in the
case of amounts payable
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hereunder in an Alternative Currency, in such Alternative Currency in such funds
then customary for the settlement of international transactions in such
currency, in each case without setoff or counterclaim. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest on Committed Revolving Loans or commitment fees ratably to
the Banks, and like funds relating to the payment of any other amount payable to
any Person to such Person, in each case to be applied in accordance with the
terms of this Agreement. Notwithstanding the foregoing, payments made by the
Borrower upon repayment in full of the Obligations and the termination of this
Agreement shall be made by the Borrower to the Agent by no later than 2 p.m.
(Milwaukee time) on such date.
6. Definitions; Interpretation.
6.1. Definitions. The following terms when used herein have the
following meanings:
"Account" is defined in Section 10.4(b) hereof.
"Adjusted LIBOR" is defined in Section 1.3(b) hereof.
"Affiliate" means any Person directly or indirectly controlling
or controlled by, or under direct or indirect common control with, another
Person. A Person shall be deemed to control another Person for the purposes of
this definition if such Person possesses, directly or indirectly, the power to
direct, or cause the direction of, the management and policies of the other
Person, whether through the ownership of voting securities, common directors,
trustees or officers, by contract or otherwise; provided that, in any event for
purposes of this definition, any Person that owns, directly or indirectly, 20%
or more of the securities having the ordinary voting power for the election of
directors or governing body of a corporation or 20% or more of the partnership
or other ownership interests of any other Person (other than as a limited
partner of such other Person) will be deemed to control such corporation or
other Person.
"Agent" means Firstar Bank Milwaukee, National Association and
any successor pursuant to Section 12.7 hereof.
"Alternative Currency" means Pounds Sterling or Euros, in each
case only to the extent such currencies are freely transferable and convertible
into U.S. Dollars and are traded and readily available to each Bank in the
London interbank market.
"Applicable Margin" is defined in Section 1.3(c) hereof.
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"Application" is defined in Section 1.2(b) hereof.
"Assignment Agreement" means an Assignment and Assumption
Agreement in the form of Exhibit G hereto.
"Authorized Representative" means those persons shown on the
list of officers provided by the Borrower pursuant to Section 8.1(g) hereof, or
on any updated such list provided by the Borrower to the Agent, or any further
or different officer of the Borrower so named by any Authorized Representative
of the Borrower in a written notice to the Agent.
"Bank" is defined in the first paragraph of this Agreement and
includes each assignee Bank pursuant to Section 14.12 hereof.
"Borrower" is defined in the first paragraph of this Agreement.
"Borrowing" means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a different type
into such type by the Banks on a single date and for a single Interest Period.
Borrowings of Committed Revolving Loans are made and maintained ratably from
each of the Banks according to their Percentages. A Borrowing is "advanced" on
the day the Banks (or Firstar in the case of a Swing Loan) advance funds
comprising such Borrowing to the Borrower, is "continued" on the date a new
Interest Period for the same type of Loans commences for such Borrowing, and is
"converted" when such Borrowing is changed from one type of Loan to the other,
all as requested by the Borrower pursuant to Section 1.5(a) .
"Business Day" means any day other than a Saturday or Sunday on
which Banks are not authorized or required to close in Milwaukee, Wisconsin and,
if the applicable Business Day relates to the borrowing or payment of a
Eurocurrency Loan denominated in U.S. Dollars, on which banks are dealing in
U.S. Dollar deposits in the interbank market in London, England and, if the
applicable Business Day relates to the borrowing or payment of a Eurocurrency
Loan denominated in an Alternative Currency, on which banks and foreign exchange
markets are open for business in the city where disbursements of or payments on
such Loan are to be made.
"Capital Lease" means any lease of Property which, in accordance
with GAAP, would be required to be capitalized on the balance sheet of the
lessee.
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"Capitalized Lease Obligations" means, for any Person, the
amount of such Person's liabilities under Capital Leases determined in
accordance with GAAP.
"Cash Equivalents" means Investments of the type permitted by
Sections 9.14(a), (b), (c), (d), (e) and (f) hereof.
"Change of Control Event" means at any time:
(i) any Person is or becomes the Beneficial Owner of
securities of the Borrower representing 30% or more of the then outstanding
Voting Stock of the Borrower (unless the event causing the 30% threshold to be
crossed is an acquisition of securities directly from the Borrower),
(ii) during any period of twelve (12) consecutive months
beginning after the date of this Agreement, individuals who at the beginning of
such period constitute the Board of Directors of the Borrower (the "Board") and
any new director (other than a director designated by a person who has entered
into an agreement with the Borrower to effect a transaction described in clause
(i), (iii) or (iv) of this Change of Control Event definition) whose election or
nomination for election was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved
cease for any reason (other than death) to constitute a majority of the Board;
(iii) the stockholders of the Borrower approve a merger or
consolidation of the Borrower with any other corporation (other than a merger or
consolidation which would result in the Voting Stock of the Borrower outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the entity surviving
such merger or consolidation), at least 65% of the Voting Stock of the Borrower
or such surviving entity outstanding immediately after such merger or
consolidation), or
(iv) the stockholders of the Borrower approve a plan of
complete liquidation or dissolution of the Borrower or an agreement for the sale
or disposition by the Borrower of all or substantially all of the Borrower's
assets.
For purposes of the definition of Change of Control Event, "Person"
shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange
Act as supplemented by Section 13(d)(3) of the Exchange Act; provided, however,
that
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Person shall not include (i) the Borrower or any Wholly-Owned Subsidiary, or
(ii) any person who, as of the date of this Agreement, was the Beneficial Owner
of securities of the Borrower representing 20% or more of the combined voting
power.
For purposes of the definition of Change of Control Event, a Person
shall be deemed the "Beneficial Owner" of any securities which such Person,
directly or indirectly, has the right to vote or dispose of or has "beneficial
ownership" (with the meaning of Rule 13d-3 of the Exchange Act) of, including
pursuant to any agreement, arrangement or understanding (whether or not in
writing); provided, however, that: (i) a Person shall not be deemed the
Beneficial Owner of any security as a result of an agreement, arrangement or
understanding to vote such security (x) arising solely from a revocable proxy or
consent given in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the Exchange Act and the applicable rules
and regulations thereunder or (y) made in connection with, or to otherwise
participate in, a proxy or consent solicitation made, or to be made, pursuant
to, and in accordance with, the applicable provisions of the Exchange Act and
the applicable rules and regulations thereunder, in either case described in
clause (x) or clause (y) above, whether or not such agreement, arrangement or
understanding is also then reportable by such Person on Schedule 13 under the
Exchange Act (or any comparable or successor report); and (ii) a Person engaged
in business as an underwriter of securities shall not be deemed to be the
Beneficial Owner of any securities acquired through such Person's participation
in good faith in a firm commitment underwriting until the expiration of forty
days after the date of such acquisition.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commercial Letter Of Credit" means a Letter of Credit that
finances a commercial transaction by paying part or all of the purchase price
for goods against delivery of a document of title covering such goods and any
other required documentation.
"Committed Revolving Loan" is defined in Section 1.1(a) hereof.
"Committed Revolving Loan Note" is defined in Section 3.5(a)
hereof.
"Commitments" means the Revolving Credit Commitments.
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"Compliance Certificate" means a certificate in the form of
Exhibit D hereto.
"Confidential Information" means information that is furnished
to the Agent or any Bank by or on behalf of the Borrower or any of its
Subsidiaries in a writing designated as confidential, but does not include any
such information that is or becomes generally available to the public or that is
or becomes available to the Agent or such Bank from a source other than the
Borrower or any such Subsidiary that is not, to the Agent's or Banks' knowledge,
acting in violation of a confidentiality agreement with the Borrower or any such
Subsidiary.
"Consolidated Net Worth" means, as of the date of any
determination thereof, the sum of (i) the par value (or value stated on the
books of the Borrower) of the capital stock of all classes of the Borrower plus
(or minus in the case of a surplus deficit) (ii) the amount of the consolidated
surplus, whether capital or earned, of the Borrower and its Subsidiaries after
subtracting therefrom the aggregate of treasury stock and any other
contra-equity accounts and cumulative foreign currency translation adjustments.
"Contractual Obligation" means, as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Controlled Group" means all members of a controlled group of
corporations and all trades and businesses (whether or not incorporated) under
common control that, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Credit Documents" means this Agreement, the Notes, the
Applications, the Letters of Credit, each Subsidiary Guarantee Agreement
delivered to the Agent pursuant to Section 9.1 or Section 9.25 hereof and each
Swap Contract between the Borrower and a Bank or an Affiliate of a Bank.
"Credit Event" means the advancing of any Loan or the issuance
of, or extension of the expiration date or increase in the amount of, any Letter
of Credit.
"Current Debt" means, for any Person, all Indebtedness of such
Person for borrowed money which by its terms or by the terms of any instrument
or agreement relating thereto matures on demand or within one year
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from the date of the creation thereof and is not directly or indirectly
renewable or extendible at the option of the debtor to a date more than one year
from the date of the creation thereof, provided that Indebtedness for borrowed
money outstanding under a revolving credit or similar agreement which obligates
the lender or lenders to extend credit over a period of more than one year shall
constitute Funded Debt and not Current Debt, even though such Indebtedness by
its term matures on demand or within one year from the date of the creation
thereof.
"Debt" means, for any Person, the sum of such Person's Current
Debt and Funded Debt.
"Default" means any event or condition the occurrence of which
would, with the passage of time or the giving of notice, or both, constitute an
Event of Default.
"Domestic Rate" is defined in Section 1.3(a) hereof.
"Domestic Rate Loan" means a Committed Revolving Loan bearing
interest prior to maturity at a rate specified in Section 1.3(a) hereof.
"Domestic Subsidiary" means each Subsidiary other than a Foreign
Subsidiary.
"EBIT" means, as to any Person and for any period as to which
such amount is being determined, the sum of the amounts (on a consolidated
basis) for such period of (a) net income (excluding extraordinary gains and
extraordinary losses) and (b) to the extent deducted in determining net income,
(i) interest expense and (ii) provisions for taxes based on income.
"EBITDA" means, as to any Person and for any period as to which
such amount is being computed, the sum of the amounts (on a consolidated basis)
for such period of (a) EBIT, (b) depreciation expense and (c) amortization
expense.
"Environmental and Health Laws" means any and all federal,
state, local and foreign statutes, laws, regulations, ordinances, judgments,
permits and other governmental rules or restrictions relating to human health,
safety (including without limitation occupational safety and health standards),
or the environment or to emissions, discharges or releases of pollutants,
contaminants, hazardous or toxic substances, wastes or any other controlled or
regulated substance into the environment, including without limitation ambient
air, surface water, ground water or land, or otherwise relating to the
manufacture, processing,
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distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, hazardous or toxic substances, wastes or any other
controlled or regulated substance or the clean-up or other remediation thereof.
"ERISA" is defined in Section 7.8 hereof.
"Euro" means the Euro referred to in Council Regulations (EC)
No. 1103197 dated June 17, 1997 passed by the Council of the European Union.
"Eurocurrency Loan" means a Committed Revolving Loan bearing
interest prior to maturity at the rate specified in Section 1.3(b) hereof.
"Eurocurrency Reserve Percentage" is defined in Section 1.3(b)
hereof.
"Event of Default" means any of the events or circumstances
specified in Section 10.1 hereof.
"Excess Cash" shall mean as of any time the amount (if any) by
which (x) cash and Cash Equivalents of the Borrower and its Subsidiaries held in
the United States exceeds (y) $3,000,000.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Federal Funds Rate" means the fluctuating interest rate per
annum described in part (x) of clause (ii) of the definition of Domestic Rate in
Section 1.3(a) hereof.
"Fee Letter" means the letter agreement dated September 9, 1999
between Firstar and the Borrower.
"Firstar" is defined in Section 2.1 hereof.
"Firstar Quoted Rate" means the rate of interest applicable to
Swing Loans established from time to time by Firstar in accordance with Section
2.2.
"Foreign Subsidiary" shall mean (i) each Subsidiary of the
Borrower which is organized under the laws of a jurisdiction other than the
United States of America or any State thereof and (ii) each Subsidiary of the
Borrower of
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which a majority of the revenues, earnings or total assets (determined on a
consolidated basis with that Subsidiary's Subsidiaries) are located or derived
from operations outside of the United States of America.
"Funded Debt" means, for any Person, all Indebtedness of such
Person which by its terms or by the terms of any instrument or agreement
relating thereto matures, or which is otherwise payable or unpaid, more than one
year from, or is directly or indirectly renewable or extendible at the option of
the debtor to a date more than one year (including an option of the debtor under
a revolving credit or similar agreement obligating the lender or lenders to
extend credit over a period of more than one year) from, the date of the
creation thereof.
"GAAP" means generally accepted accounting principles as in
effect from time to time, applied by the Borrower and its Subsidiaries on a
basis consistent with the preparation of the Borrower's financial statements
furnished to the Banks as described in Section 7.4(a) hereof.
"Guarantor" means each Subsidiary of the Borrower that is a
signatory hereto or that executes and delivers to the Agent a Subsidiary
Guarantee Agreement in the form of Exhibit E hereto along with the accompanying
closing documents required by Sections 8.1(a) through (d) hereof.
"Guaranty" means, with respect to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
indebtedness, lease, dividend or other obligation of another, including, without
limitation, any such obligation directly or indirectly guaranteed, endorsed
(otherwise than for collection or deposit in the ordinary course of business) or
discounted or sold with recourse by such Person, or in respect of which such
Person is otherwise directly or indirectly liable, including, without
limitation, any such obligation in effect guaranteed by such Person through any
agreement (contingent or otherwise) to purchase, repurchase or otherwise acquire
such obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or to maintain the solvency or
any balance sheet or other financial condition of the obligor of such
obligation, or to make payment for any products, materials or supplies or for
any transportation or service, regardless of the non-delivery or non-furnishing
thereof, in any such case if the purpose or intent of such agreement is to
provide assurance that such obligation will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected against loss in respect thereof. The amount of any
Guaranty shall be equal to the maximum aggregate amount of the obligation
guaranteed or such lesser amount to
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which the maximum aggregate potential liability of the guarantor shall have been
specifically limited.
"Hazardous Material" means any substance or material which is
hazardous or toxic, and includes, without limitation. (a) asbestos,
polychlorinated biphenyls, dioxins and petroleum or its by-products or
derivatives (including crude oil or any fraction thereof) and (b) any other
material or substance classified or regulated as "hazardous" or "toxic" pursuant
to any Environmental and Health Law.
"Honor Date" is defined in Section 1.2(c) hereof.
"Indebtedness" means and includes, for any Person, all
obligations (excluding contingency reserves and reserves for deferred income
taxes) of such Person, without duplication, which are required by GAAP to be
shown as liabilities on its balance sheet, and in any event shall include all of
the following whether or not so shown as liabilities: (i) obligations of such
Person for borrowed money; (ii) obligations of such Person representing the
deferred purchase price of property or services other than accounts payable and
accrued expenses arising in the ordinary course of business on terms customary
in the trade; (iii) obligations of such Person evidenced by notes, acceptances,
or other instruments of such Person or arising out of letters of credit issued
for such Person's account; (iv) obligations, whether or not assumed, secured by
Liens on Property now or hereafter owned or acquired by such Person; (v)
Capitalized Lease Obligations of such Person; and (vi) obligations for which
such Person is obligated pursuant to a Guaranty.
"Interest Coverage Ratio" means, as of any time the same is to
be determined, the ratio of (a) EBIT of the Borrower and its Subsidiaries for
the four fiscal quarters ending on such date to (b) interest expense of the
Borrower and its Subsidiaries for the four fiscal quarters ending on such date.
"Interest Period" is defined in Section 3.1 hereof.
"Investments" is defined in Section 9.14 hereof.
"Issuing Bank" means Firstar and any successor to Firstar as
Issuing Bank hereunder in accordance with the terms hereof.
"L/C Documents" means the Letters of Credit, any draft or other
document presented in connection with a drawing thereunder, the
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Applications and this Agreement.
"L/C Limit" means $40,000,000.
"L/C Obligations" means the aggregate undrawn amount of all
outstanding Letters of Credit and the aggregate principal amount of all unpaid
Reimbursement Obligations.
"Lease Payments" means, for any period, the aggregate amount of
payments required to be made by the Borrower and its Subsidiaries during such
period in respect of operating leases or similar arrangements under which the
Borrower or any Subsidiary is liable as lessee.
"Lending Office" is defined in Section 11.4 hereof.
"Letter of Credit" is defined in Section 1.2(a) hereof.
"Leverage Ratio" means, as of any time the same is to be
determined, the ratio of Total Debt of the Borrower and its Subsidiaries as of
such date to EBITDA of the Borrower and its Subsidiaries for the four fiscal
quarters ending on such date, all as determined on a consolidated basis in
accordance with GAAP.
"Level I Status" means, for any Margin Determination Date, that
as of the close of the accounting period with reference to which such Margin
Determination Date was set, the Net Leverage Ratio is less than 1.0:1.0.
"Level II Status" means, for any Margin Determination Date, that
as of the close of the accounting period with reference to which such Margin
Determination Date was set, the Net Leverage Ratio is equal to or greater than
1.0 : 1.0 but less than 1.5:1.0.
"Level III Status" means, for any Margin Determination Date,
that as of the close of the accounting period with reference to which such
Margin Determination Date was set, the Net Leverage Ratio is equal to or greater
than 1.5:1.0 but less than 2.0:1.0.
"Level IV Status" means, for any Margin Determination Date, that
as of the close of the accounting period with reference to which such Margin
Determination Date was set, the Net Leverage Ratio is equal to or greater than
2.0:1.0 but less than 2.50:1.0.
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"Level V Status" means, for any Margin Determination Date, that
as of the close of the accounting period with reference to which such Margin
Determination Date was set, the Net Leverage Ratio is equal to or greater than
2.50:1.0.
"LIBOR" is defined in Section 1.3(b) hereof.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien (statutory or otherwise) or charge of any kind in respect of
any Property (including any agreement to give any of the foregoing, the
interests of a vendor or lessor under any conditional sale or other title
retention arrangement, any lease in the nature thereof[, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code of
any jurisdiction]) or any other type of preferential arrangement for the
purpose, or having the effect, of protecting a creditor against loss or securing
the payment or performance of any obligation.
"Loan" means and includes Committed Revolving Loans and Swing
Loans, and each of them singly, and the term "type" of Loan refers to its status
as a Committed Revolving Loan or Swing Loan or, if a Committed Revolving Loan,
to its status as a Domestic Rate Loan or a Eurocurrency Loan.
"Margin Determination Date" is defined in Section 1.3(c) hereof.
"▇▇▇▇ ▇▇ Acquisition" means the purchase by certain direct or
indirect Wholly-Owned Subsidiaries of the Borrower of certain assets owned by
▇▇▇▇ ▇▇ Industries, Inc. and its affiliates related to the design, manufacture,
marketing and distribution of specialty filters and filtration products.
"▇▇▇▇ ▇▇ Acquisition Documents" means the Purchase Agreement
dated as of September 10, 1999 (the "Purchase Agreement") between ▇▇▇▇ ▇▇
Industries, Inc., Facet Holding Co., Inc., Purolator Products Air Filtration
Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇ Company, Inc., Mantronics Limited and the Borrower
(including the schedules and exhibits thereto) and the other documents,
agreements and instruments delivered in connection with the ▇▇▇▇ ▇▇ Acquisition.
"Net Leverage Ratio" means, as of any time the same is to be
determined, the ratio of (x) Total Debt less Excess Cash as of such date to (y)
EBITDA for the four fiscal quarters ending on such date, all as determined on a
consolidated basis in accordance with GAAP.
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"Non-Material Subsidiary" means each Subsidiary (i) the annual
revenues of which (directly and together with its subsidiaries) during the
current or any subsequent fiscal year of the Borrower were less than $10,000,000
and (ii) the consolidated total assets of which as of the close of each such
fiscal year were less than $5,000,000. Revenues and assets of Foreign
Subsidiaries shall be converted into U.S. Dollars at the U.S. Dollar Equivalent
as of the date of the most recent financial statements required to be furnished
to the Banks pursuant to Section 9.6(a) hereof.
"Notes" means and includes the Committed Revolving Loan Notes
and the Swing Line Note, and each individually, unless the context in which
such term is used shall otherwise require.
"Obligations" means all fees payable hereunder, all obligations
of the Borrower to pay principal or interest on Loans and L/C Obligations, all
obligations of the Borrower to make payments to a Bank or an Affiliate of a Bank
under a Swap Contract between the Borrower and such Bank or Affiliate of a Bank
and all other payment obligations of the Borrower arising under or in relation
to any Credit Document.
"Original Dollar Amount" means the amount of any Obligation
denominated in U.S. Dollars and, in relation to any Loan denominated in an
Alternative Currency, the U.S. Dollar Equivalent of such Loan on the day it is
advanced or continued for an Interest Period.
"Participating Bank" is defined in Section 1.2(d) hereof.
"Percentage" means, for each Bank, the percentage of the total
Commitments represented by such Bank's Revolving Credit Commitments or, if the
Revolving Credit Commitments have been terminated, the percentage held by such
Bank (including through participation interests in L/C Obligations and/or Swing
Loans) of the aggregate principal amount of all outstanding Obligations.
"Permitted Industrial Revenue Bond Liabilities" means
liabilities (including, without limitation, reimbursement obligations on letters
of credit) of the Borrower and its Subsidiaries aggregating not more than
$40,000,000 at any one time outstanding in respect of industrial revenue bond
issues constituting long-term indebtedness which finance additions to or
improvements in plant, property or equipment of the Borrower or any Subsidiary
secured (if at all) by no Property of the Borrower or any Subsidiary other than
the fixed assets so acquired or improved, replacements thereto and intangible
Property related specifically thereto.
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"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization or any other
entity or organization, including a government or any agency or political
subdivision thereof.
"Plan" means any employee pension benefit plan covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code that is either (i) maintained by a member of the Controlled Group for
employees of a member of the Controlled Group or (ii) maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which a member of the Controlled Group
is then making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions.
"PBGC" is defined in Section 8.8 hereof.
"Pounds Sterling" means the lawful currency of the United
Kingdom.
"Priority Debt" means, as of any time of determination thereof,
(a) Debt of any Subsidiary including Debt of the Borrower (other than the
Obligations) with respect to which a Subsidiary has provided a Guaranty, (b)
Debt of the Borrower secured by any Lien, (c) preferred stock of any Subsidiary
to the extent not held by the Borrower or a Wholly-Owned Subsidiary and (d) the
aggregate amount of all future Lease Payments owing by the Borrower and its
Subsidiaries under operating leases entered into after November 30, 1994
pursuant to sale/leaseback transactions.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible, whether now owned or
hereafter acquired.
"Reimbursement Obligation" is defined in Section 1.2(c) hereof.
"Required Banks" means, as of the date of determination thereof,
Banks holding at least 51% of the Percentages.
"Revolving Credit" is defined in the introductory paragraph
hereof.
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"Revolving Credit Commitment" is defined in Section 1.1(a)
hereof.
"Revolving Credit Termination Date" means September 9, 2002, or
such earlier date on which the Revolving Credit Commitments are terminated
pursuant to Section 10.02 or Section 10.03.
"SEC" means the Securities and Exchange Commission.
"Security" has the same meaning as in Section 2(l) of the
Securities Act of 1933, as amended.
"Set-Off" is defined in Section 14.7 hereof.
"Significant Subsidiary" means each domestic Subsidiary (i) the
annual gross sales of which (directly and together with its subsidiaries) for
the current or any one or more subsequent fiscal years of the Borrower exceeded
$40,000,000 or (ii) the consolidated total assets of which as of the close of
the current or any subsequent fiscal year the Borrower exceeded $25,000,000.
"Standby Letter of Credit" means a Letter of Credit that is not
a Commercial Letter of Credit.
"Subsidiary" means, as to the Borrower, any corporation or other
entity of which more than fifty percent (50%) of the outstanding stock or
comparable equity interests having ordinary voting power for the election of the
Board of Directors of such corporation or similar governing body in the case of
a non-corporation (irrespective of whether or not, at the time, stock or other
equity interests of any other class or classes of such corporation or other
entity shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned by the Borrower or by
one or more of its Subsidiaries.
"Subsidiary Guarantee Agreement" means a letter to the Agent in
the form of Exhibit E hereto executed by a Subsidiary whereby it acknowledges it
is party hereto as a Guarantor.
"Swap Contract" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap or
option, bond, note or ▇▇▇▇ option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, currency option or any other, similar transaction
(including any option to enter into any of
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the foregoing) or any combination of the foregoing, and, unless the context
otherwise clearly requires, any master agreement relating to or governing any or
all of the foregoing.
"Swap Termination Value" means, in respect of any Swap Contract,
after taking into account the effect of any legally enforceable netting
agreement relating to such Swap Contract, (a) for any date on or after the date
such Swap Contract has been closed out and termination value determined in
accordance therewith, such termination value, and (b) for any date prior to the
date referenced in clause (a) the amount determined as the ▇▇▇▇-to-market value
for such Swap Contract, as determined by the Borrower based upon one or more
mid-market or other readily available quotations provided by any recognized
dealer in Swap Contracts (which may include any Bank).
"Swing Line Commitment" means the commitment of Firstar to make
Swing Loans in the amount set forth opposite its signature hereto under the
heading "Swing Line Commitment".
"Swing Line Note" is defined in Section 3.5(c) hereof.
"Swing Loans" is defined in Section 2.1 hereof.
"Total Capitalization" means, as of the date of any
determination thereof, the sum of Total Debt and Consolidated Net Worth.
"Total Debt" means, as of the date of any determination thereof,
all Debt of the Borrower and its Subsidiaries determined without duplication on
a consolidated basis.
"Unfunded Vested Liabilities" means, with respect to any Plan at
any time, the amount (if any) by which (i) the present value of all vested
nonforfeitable accrued benefits under such Plan exceeds (ii) the fair market
value of all Plan assets allocable to such benefits, all determined as of the
then most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the Controlled Group to
the PBGC or the Plan under Title IV of ERISA.
"U.S. Dollars" and "$" each mean the lawful currency of the
United States of America.
"U.S. Dollar Equivalent" means the amount of U.S. Dollars which
would be realized by converting an Alternative Currency into U.S. Dollars
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in the spot market at the exchange rate quoted by the Agent, at approximately
11:00 a.m. (London time) two Business Days prior to the date on which a
computation thereof is required to be made, to major banks in the interbank
foreign exchange market for the purchase of U.S. Dollars for such Alternative
Currency.
"Voting Stock" of any Person means capital stock of any class or
classes or other equity interests (however designated) having ordinary voting
power for the election of directors or similar governing body of such Person,
other than stock or other equity interests having such power only by reason of
the happening of a contingency.
"Welfare Plan" means a "welfare plan", as defined in Section
3(l) of ERISA.
"Wholly-Owned" when used in connection with any Subsidiary of
the Borrower means a Subsidiary of which all of the issued and outstanding
shares of stock or other equity interests (other than directors' qualifying
shares as required by law) shall be owned by the Borrower and/or one or more of
its Wholly-Owned Subsidiaries.
"Year 2000 Issues" means anticipated costs, problems and
uncertainties associated with the inability of certain computer applications to
effectively handle data including dates on and after January 1, 2000, as such
inability affects the business, operations and financial condition of the
Borrower and its Subsidiaries and of the Borrower's and its Subsidiaries'
material customers, suppliers and vendors.
"Year 2000 Program" is defined in section 7.15.
6.2. Interpretation. The foregoing definitions shall be equally
applicable to both the singular and plural forms of the terms defined. All
references to times of day in this Agreement shall be references to Milwaukee,
Wisconsin time unless otherwise specifically provided. Where the character or
amount of any asset or liability or item of income or expense is required to be
determined or any consolidation or other accounting computation is required to
be made for the purposes of this Agreement, the same shall be done in accordance
with GAAP, to the extent applicable, except where such principles are
inconsistent with the specific provisions of this Agreement. Notwithstanding the
foregoing, if any changes in accounting principles from those used in the
preparation of the consolidated financial statements of the Borrower and its
Subsidiaries referred to in Section 7.4(a) occur by reason of the promulgation
of rules, regulations,
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pronouncements, opinions or other requirements of the Financial Accounting
Standards Board, the American Institute of Certified Public Accountants or the
SEC (or successors thereto) and such changes would affect (or would result in a
change in the method of calculation of) any of the covenants set forth in
Sections 9.15, 9.16, 9.17 or 9.18, or any of the defined terms related thereto
contained in Section 6, then (i) the Borrower shall prepare the quarterly and
annual financial statements required to be delivered hereunder in accordance
with such changes and (ii) upon the request of any party hereto, the Borrower,
the Agent and the Banks will enter into negotiations in good faith to amend in
accordance with Section 14.13 all such covenants or terms as would be affected
by such changes in GAAP in such manner as would maintain the economic terms of
such covenants as in effect prior to giving effect to any such changes; provided
that until such an amendment becomes effective, all covenants and defined terms
shall be performed, observed and determined, and any determination of compliance
with such covenants shall be made as though no such changes in accounting
principles had been made, and the Borrower shall deliver to the Banks, in
addition to the consolidated financial statements otherwise required to be
delivered hereunder, a statement of reconciliation conforming such consolidated
financial statements to GAAP prior to such changes.
7. Representations and Warranties. The Borrower hereby represents
and warrants to the Agent and each Bank as follows:
7.1. Corporate Organization and Authority. The Borrower is duly
organized and existing in good standing under the laws of the State of Delaware;
has all necessary corporate power to carry on its present business; and is duly
licensed or qualified and in good standing in each jurisdiction in which the
nature of the business transacted by it or the nature of the Property owned or
leased by it makes such licensing, qualification or good standing necessary and
in which the failure to be so licensed, qualified or in good standing would
materially and adversely affect its business, operations, Property or financial
or other condition.
7.2. Subsidiaries. Schedule 7.2 (as updated from time to time
pursuant to Section 9.1) hereto identifies each Subsidiary (and whether such
Subsidiary is a Significant Subsidiary), the jurisdiction of its incorporation,
the percentage of issued and outstanding shares of each class of its capital
stock owned by the Borrower and its Subsidiaries and, if such percentage is not
100% (excluding directors' qualifying shares as required by law), a description
of each class of its authorized capital stock and the number of shares of each
class issued and outstanding. Each Subsidiary is duly incorporated and existing
in good standing as a corporation under the laws of the jurisdiction of its
incorporation, has all necessary corporate power to carry on its present
business, and is duly licensed
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or qualified and in good standing in each jurisdiction in which the nature of
the business transacted by it or the nature of the Property owned or leased by
it makes such licensing or qualification necessary and in which the failure to
be so licensed or qualified would have a material adverse effect on the
business, operations, Property or financial or other condition of such
Subsidiary. All of the issued and outstanding shares of capital stock of each
Subsidiary are validly issued and outstanding and fully paid and nonassessable.
All such shares owned by the Borrower are owned beneficially, and of record,
free of any Lien. Each Significant Subsidiary is a Guarantor.
7.3. Corporate Authority and Validity of Obligations. The
Borrower has full right and authority to enter into this Agreement and the other
Credit Documents to which it is a party, to make the borrowings herein provided
for, to issue its Notes in evidence thereof, to apply for the issuance of the
Letters of Credit, and to perform all of its obligations under the Credit
Documents to which it is a party. Each Guarantor has full right and authority to
enter into this Agreement as a signatory hereto or pursuant to a Subsidiary
Guarantee Agreement and to perform all of its obligations hereunder. Each Credit
Document to which it is a party has been duly authorized, executed and delivered
by the Borrower and each Guarantor and constitutes valid and binding obligations
of the Borrower and each Guarantor enforceable in accordance with its terms. No
Credit Document, nor the performance or observance by the Borrower or any
Guarantor of any of the matters or things therein provided for, contravenes any
provision of law or any charter or by-law provision of the Borrower or any
Guarantor or (individually or in the aggregate) any material Contractual
Obligation of or affecting the Borrower or any Guarantor or any of their
respective Properties or results in or requires the creation or imposition of
any Lien on any of the Properties or revenues of the Borrower or any Guarantor.
7.4. Financial Statements.
(a) The consolidated balance sheet of the Borrower and its
Subsidiaries as at November 28, 1998 and the related consolidated statements of
income, retained earnings and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, and accompanying notes thereto, which financial
statements are accompanied by the audit report of PricewaterhouseCoopers LLP,
independent public accountants, and the unaudited interim consolidated balance
sheet of the Borrower and its Subsidiaries as at May 29, 1999 and the related
consolidated statements of income, retained earnings and cash flows of the
Borrower and its Subsidiaries for the six (6) months then ended, heretofore
furnished to the Banks, fairly present the consolidated financial condition of
the Borrower and its Subsidiaries as at said dates and the consolidated results
of their
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operations and cash flows for the periods then ended in conformity with
generally accepted accounting principles applied on a consistent basis. Neither
the Borrower nor any Subsidiary has contingent liabilities which are material to
it other than as indicated on such financial statements or, with respect to
future periods, on the financial statements furnished pursuant to Section 9.6
hereof. Since May 29, 1999, there has been no material adverse change in the
business, operations, Property or financial or other condition, or business
prospects, of the Borrower and its Subsidiaries taken as a whole.
(b) The Borrower has furnished to the Banks a pro forma
balance sheet of the Borrower and its Subsidiaries, reflecting the ▇▇▇▇ ▇▇
Acquisition, dated August 31, 1999 (the "Pro Forma Balance Sheet") and projected
sales and operating profit of the Borrower and its Subsidiaries, reflecting the
▇▇▇▇ ▇▇ Acquisition, for the periods ending on November 30 of the next five
years (the "Projections"). To the knowledge of the Borrower (a) the Pro Forma
Balance Sheet fairly presents the financial condition of the Borrower and its
Subsidiaries after giving effect to the ▇▇▇▇ ▇▇ Acquisition and there are no
omissions from the Pro Forma Balance Sheet, or other facts and circumstances not
reflected in the Pro Forma Balance Sheet, which would be material under GAAP and
(b) the assumptions used in the preparation of the Projections are reasonable
and there are no presently existing facts or circumstances not reflected in the
Projections which are reasonably expected to cause a material adverse change in
the information set forth in the Projections.
7.5. No Litigation; No Labor Controversies.
(a) There is no litigation or governmental proceeding
pending, or to the knowledge of the Borrower or any Guarantor threatened,
against the Borrower or any Subsidiary which is reasonably expected to be
adversely determined and if adversely determined, would (individually or in the
aggregate, insofar as the Borrower may reasonably foresee) reasonably be
expected to materially adversely affect the business, operations, Property or
financial or other condition of the Borrower and its Subsidiaries taken as a
whole.
(b) There are no labor controversies pending or, to the
knowledge of the Borrower or any Guarantor, threatened against the Borrower or
any Subsidiary which would (individually or in the aggregate, insofar as the
Borrower may reasonably foresee) reasonably be expected to, or which actually
do, materially adversely affect the business, operations, Property or financial
or other condition of the Borrower and its Subsidiaries taken as a whole.
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7.6. Taxes. The Borrower and its Subsidiaries have filed all
United States federal tax returns, and all other tax returns, required to be
filed and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any Subsidiary, except such taxes, if
any, as are being contested in good faith and for which adequate reserves have
been provided. No notices of tax liens have been filed and no claims are being
asserted concerning any such taxes, which liens or claims are material to the
financial condition of the Borrower and its Subsidiaries on a consolidated basis
taken as a whole. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries for any taxes or other governmental charges are
adequate.
7.7. Approvals. No authorization, consent, license, exemption,
filing or registration with any court or governmental department, agency or
instrumentality, nor any approval or consent of the stockholders of the Borrower
or any Subsidiary or from any other Person, is necessary for the valid
execution, delivery or performance by the Borrower or any Subsidiary of any
Credit Document to which it is a party, except for such thereof as have been
obtained and are in full force and effect.
7.8. ERISA. With respect to each Plan, the Borrower and each
other member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of and are in compliance in all material respects with
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
with the Code to the extent applicable to each of them and have not incurred any
liability to the Pension Benefit Guaranty Corporation ("PBGC") or a Plan under
Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA. Neither the Borrower nor any Subsidiary has any contingent
liabilities for any post-retirement benefits under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Title I of ERISA.
7.9. Government Regulation. Neither the Borrower nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or a "holding company", or a "Subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "Subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7.10. Margin Stock. Neither the Borrower nor any Subsidiary is
engaged principally, or as one of its primary activities, in the business of
extending credit for the purpose of purchasing or carrying margin stock ("margin
stock" to have the same meaning herein as in Regulation U of the Board of
Governors of the
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Federal Reserve System). The Borrower will not use the proceeds of any Loan or
Letter of Credit in a manner that violates any provision of Regulation U or X of
the Board of Governors of the Federal Reserve System.
7.11. Licenses and Authorizations: Compliance with Environmental
and Health Laws. The Borrower and each of its Subsidiaries has all necessary
licenses, permits and governmental authorizations to own and operate its
Properties and to carry on its business as currently conducted and contemplated,
except where the failure to maintain such licenses, permits and authorizations
would (individually or in the aggregate, insofar as the Borrower may reasonably
foresee) not reasonably be expected to have, and does not actually have, a
material adverse effect on the business, operations, Property or financial or
other condition of the Borrower and its Subsidiaries taken as a whole. The
Borrower and its Subsidiaries are in compliance with all Environmental and
Health Laws, except where the failure to comply would not be reasonably expected
to have, and actually does not have, a material adverse effect on the business,
operations, Property or financial or other condition of the Borrower and its
Subsidiaries taken as a whole. Neither the Borrower nor any Subsidiary has
given, nor is it required to give, nor has the Borrower or any Subsidiary
received, any notice, letter, citation, order, warning, complaint, inquiry,
claim or demand to or from any governmental entity or in connection with any
court proceeding which would reasonably be expected to have a material adverse
effect on the Property, business or operations of the Borrower and its
Subsidiaries taken as a whole claiming that: (i) the Borrower or any Subsidiary
has violated, or is about to violate, any Environmental and Health Law; (ii)
there has been a release, or there is a threat of release, of Hazardous
Materials from the Borrower's or any Subsidiary's Property, facilities,
equipment or vehicles; (iii) the Borrower or any Subsidiary may be or is liable,
in whole or in part, for the costs of cleaning up, remediating or responding to
a release of Hazardous Materials; or (iv) any of the Borrower's or any
Subsidiary's property or assets are subject to a Lien in favor of any
governmental entity for any liability, costs or damages, under any Environmental
and Health Law arising from, or costs incurred by such governmental entity in
response to, a release of a Hazardous Materials.
7.12. Ownership of Property; Liens. The Borrower and its
Subsidiaries each have good and defensible title to their assets as reflected on
the most recent consolidated balance sheet of the Borrower and its Subsidiaries
furnished to the Banks (except for sales of assets by the Borrower and its
Subsidiaries in the ordinary course of business), subject to no Liens other than
such thereof as are permitted by Section 9.9 hereof.
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7.13. No Burdensome Restrictions: Compliance with Agreements.
Neither the Borrower nor any Subsidiary is (a) party or subject to any law,
regulation, rule or order, or any Contractual Obligation that (individually or
in the aggregate) materially adversely affects the business, operations,
Property or financial or other condition of the Borrower and its Subsidiaries
taken as a whole or (b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any agreement to
which it is a party, which default materially adversely affects the business,
operations, Property or financial or other condition of the Borrower and its
Subsidiaries taken as a whole.
7.14. Full Disclosure. All information heretofore furnished by
the Borrower or any Guarantor to the Agent or any Bank for purposes of or in
connection with the Credit Documents or any transaction contemplated thereby is,
and all such information hereafter furnished by the Borrower or any Guarantor to
the Agent or any Bank will be, true and accurate in all material respects and
not misleading on the date as of which such information is stated or certified
(it being understood that with respect to projections, such projections are good
faith estimates based on assumptions believed to be reasonable by the Borrower
at the time of delivery of such projections to the Agent and the Banks and that
no assurances can be given that the results set forth in the projections will
actually be obtained).
7.15. Year 2000. The Borrower has made a full and complete
assessment of the Year 2000 Issues and has a realistic and achievable program
for remediating the Year 2000 Issues on a timely basis (the "Year 2000
Program"). Based on such assessment and the Year 2000 Program, the Borrower does
not reasonably anticipate that Year 2000 Issues will have a material adverse
effect on the business operations, Property or financial or other condition of
the Borrower and its Subsidiaries taken as a whole.
8. Conditions Precedent. The obligation of each Bank to advance
any Loan or of the Issuing Bank to issue, extend the expiration date (including
by not giving notice of non-renewal) of or increase the amount of any Letter of
Credit, shall be subject to the following conditions precedent:
8.1. Initial Credit Event. Before or concurrently with the
initial Credit Event:
(a) The Agent shall have received for each Bank the
favorable written opinion of Sidley & Austin, counsel to the Borrower and
Guarantors, in substantially the form attached hereto as Exhibit F,
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(b) The Agent shall have received for each Bank copies of
(i) the most recent restatement in full of the certificate of incorporation,
together with all subsequent amendments, and a certificate of good standing, for
the Borrower, both certified as of a date not earlier than twenty days prior to
the date hereof by the appropriate governmental officer of the Borrower's
jurisdiction of incorporation and (ii) the Borrower's bylaws (or comparable
constituent documents) and any amendments thereto, certified in each instance by
its Secretary or an Assistant Secretary;
(c) The Agent shall receive for each Bank copies of each
Guarantor's Certificate of Incorporation and bylaws (or comparable constituent
documents) and any amendments thereto, certified in each instance by its
Secretary or Assistant Secretary;
(d) The Agent shall have received for each Bank copies of
resolutions of the Borrower's and each Guarantor's Board of Directors
authorizing the execution and delivery of the Credit Documents to which it is a
party and the consummation of the transactions contemplated thereby together
with specimen signatures of the persons authorized to execute such documents on
the Borrower's or such Guarantor's behalf, all certified in each instance by its
Secretary or Assistant Secretary;
(e) The Agent shall have received (i) for each Bank such
Bank's duly executed Committed Revolving Loan Note of the Borrower dated the
date hereof and otherwise in compliance with the provisions of Section 3.5
hereof and (ii) for Firstar the duly executed Swing Line Note of the Borrower
dated the date hereof and otherwise in compliance with the provisions of Section
3.5 hereof;
(f) The Agent shall have received (i) an Application
relating to the issuance by the Issuing Bank of a Standby Letter of Credit in
favor of ▇▇▇▇▇▇ Trust and Savings Bank ("▇▇▇▇▇▇") and (ii) evidence of the
termination of the Multicurrency Credit Agreement dated December 6, 1995 among
the Borrower, certain other parties and ▇▇▇▇▇▇;
(g) The Agent shall have received for each Bank a list of
the Borrower's Authorized Representatives;
(h) The Agent shall have received for each Bank (i) a copy
of recent drafts of the principal ▇▇▇▇ ▇▇ Acquisition Documents and (ii) a
certificate by the Chief Financial Officer of the Borrower stating that all of
the conditions set forth in Sections 3.02 and 3.04 and Article 10 of the
Purchase
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Agreement have been satisfied or waived by the Borrower and identifying the
material closing conditions, if any, which the Borrower waived, and the Agent
shall have received satisfactory evidence that the ▇▇▇▇ ▇▇ Acquisition will
close on the date of the initial Credit Event on terms not materially different
than those set forth in the draft documents referred to in clause (i) above;
(i) The Agent and the Banks shall have received information
satisfactory to the Agent and the Required Banks regarding the Borrower's Year
2000 Program;
(j) The Agent shall have received the fees referred to in
Sections 4.3 and 4.4.
(k) All legal matters incident to the execution and
delivery of the Credit Documents shall be satisfactory to the Banks; and
(l) The Agent shall have received a certificate by the
chief financial officer or corporate controller of the Borrower, stating that on
the date of such initial Credit Event no Default or Event of Default has
occurred and is continuing.
8.2. All Credit Events. As of the time of each Credit Event
hereunder:
(a) In the case of a Borrowing of a Committed Revolving Loan,
the Agent shall have received the notice required by Section 1.5(a) hereof
(including any deemed notice under Section 1.2(c)); in the case of a Swing Loan,
the Agent shall have received the Swing Line Note dated the date of the initial
Swing Loan and otherwise in compliance with the provisions of Section 3.5 hereof
and the notice required by Section 2.3 hereof; in the case of the issuance of
any Letter of Credit, the Agent shall have received a duly completed Application
for a Letter of Credit; and, in the case of an extension or increase in the
amount of a Letter of Credit, a written request therefor, in a form acceptable
to the Agent;
(b) Each of the representations and warranties set forth in
Section 7 hereof (except in the case of all Credit Events after the initial
Credit Event, for the last sentence of Section 7.4(a)) shall be and remain true
and correct as of said time, taking into account any amendments to such Section
(including without limitation any amendments to the Schedules referenced
therein) made after the date of this Agreement in accordance with its
provisions, except that if any such representation or warranty relates solely to
an earlier date it need only remain true as of such date; and on and after the
Borrowing Date on which the Borrower
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receives Loans to pay the purchase price for the ▇▇▇▇ ▇▇ Acquisition, the
representations and warranties set forth in Section 7 hereof shall apply to the
Property and Subsidiaries acquired pursuant to the ▇▇▇▇ ▇▇ Acquisition;
(c) After giving effect to such Credit Event, the sum of
the aggregate Original Dollar Amount of Loans and L/C Obligations outstanding
hereunder shall not exceed the Revolving Credit Commitments in effect at such
time;
(d) The Borrower and each Guarantor shall be in full
compliance with all of the terms and conditions hereof, and no Default or Event
of Default shall have occurred and be continuing or would occur as a result of
such Credit Event; and
(e) Such Credit Event shall not violate any order, judgment
or decree of any court or other authority or any provision of law or regulation
applicable to any Bank (including, without limitation, Regulation U of the Board
of Governors of the Federal Reserve System).
Each request for a Borrowing hereunder and each request for the
issuance of, increase in the amount of, or extension of the expiration date of,
a Letter of Credit shall be deemed to be a representation and warranty by the
Borrower on the date of such Credit Event as to the facts specified in
paragraphs (b), (d) and (e) of this Section 8.2.
9. Covenants. The Borrower covenants and agrees that, so long as
any Note or any L/C Obligation is outstanding hereunder, or any Commitment is
available to or in use by the Borrower hereunder, except to the extent
compliance in any case is waived in writing by the Required Banks:
9.1. Corporate Existence; Subsidiaries. The Borrower shall, and
shall cause each of its Subsidiaries to, preserve and maintain its corporate
existence; provided, however, that nothing in this Section shall prevent mergers
and consolidations permitted by Section 9.12 hereof or the discontinuation of
the corporate existence of any Non-Material Subsidiary if discontinuance of such
Non-Material Subsidiary is desirable in the conduct of the Borrower's business;
provided the aggregate total revenues of all Non-Material Subsidiaries whose
corporate existence is discontinued during any fiscal year may not exceed
$25,000,000. As a condition to establishing or acquiring any Significant
Subsidiary and within 15 days after a Subsidiary otherwise becomes a Significant
Subsidiary, unless the Required Banks otherwise agree, the Borrower shall (i)
cause such Significant Subsidiary to execute a Subsidiary Guarantee
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Agreement, (ii) cause such Subsidiary to deliver documentation similar to that
described in Section 8.1(a) through (d) relating to the authorization for,
execution and delivery of, and validity of such Subsidiary's obligations as a
Guarantor hereunder and under the Subsidiary Guarantee Agreement in form and
substance satisfactory to the Required Banks and (iii) if necessary, deliver an
updated Schedule 7.2 to reflect the new Subsidiary.
9.2. Maintenance. The Borrower will maintain, preserve and keep
its plants, Properties and equipment deemed by it necessary to the proper
conduct of its business in good repair, working order and condition and will
from time to time make all necessary repairs, renewals, replacements, additions
and betterments thereto so that at all times such plants, Properties and
equipment shall be preserved and maintained, and the Borrower will cause each of
its Subsidiaries to do so in respect of Property owned or used by it; provided,
however, that nothing in this Section 9.2 shall prevent the Borrower or a
Subsidiary from discontinuing the operation or maintenance of any such
Properties if such discontinuance is, in the judgment of the Borrower, desirable
in the conduct of its business or the business of its Subsidiary.
9.3. Taxes. The Borrower will duly pay and discharge, and will
cause each of its Subsidiaries duly to pay and discharge, all taxes, rates,
assessments, fees and governmental charges upon or against it or against its
Properties, in each case before the same become delinquent and before penalties
accrue thereon, unless and to the extent that the same are being contested in
good faith by appropriate proceedings and reserves in conformity with GAAP have
been provided therefor on the books of the Borrower.
9.4. ERISA. The Borrower will, and will cause each of its
Subsidiaries to, promptly pay and discharge all obligations and liabilities
arising under ERISA of a character which if unpaid or unperformed could
reasonably be expected to result in the imposition of a Lien against any of its
Properties or assets and will promptly notify the Agent of (i) the occurrence of
any reportable event (as defined in ERISA) affecting a Plan, other than any such
event of which the PBGC has waived notice by regulation, (ii) receipt of any
notice from the PBGC of its intention to seek termination of any Plan or
appointment of a trustee therefor, (iii) its or any of its Subsidiaries'
intention to terminate or withdraw from any Plan, and (iv) the occurrence of any
event affecting any Plan which could result in the incurrence by the Borrower or
any of its Subsidiaries of any material liability, fine or penalty, or any
material increase in the contingent liability of the Borrower or any of its
Subsidiaries under any post-retirement Welfare Plan benefit. The Agent will
promptly distribute to each Bank any notice it receives from the Borrower
pursuant to this Section 9.4.
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9.5. Insurance. The Borrower will insure and keep insured, and
will cause each of its Subsidiaries to insure and keep insured, with good and
responsible insurance companies, all insurable Property owned by it of a
character and to the extent usually insured (subject to self-insured retentions
and deductibles) in accordance with reasonable business practices as determined
in good faith by management of the Borrower. To the extent usually insured
(subject to self-insured retentions and deductibles) in accordance with
reasonable business practices as determined in good faith by management of the
Borrower, the Borrower will also insure, and cause each of its Subsidiaries to
insure such other hazards and risks (including employers' and public and product
liability risks) with good and responsible insurance companies. The Borrower
will upon request of the Agent furnish to the Agent (which shall promptly
furnish the same to each Bank) a summary setting forth the nature and extent of
the insurance maintained pursuant to this Section 9.5.
9.6. Financial Reports and Other Information.
(a) The Borrower will maintain, and will cause each
Subsidiary to maintain, a system of accounting in accordance with GAAP and will
furnish to the Agent and each Bank (and their respective duly authorized
representatives) such information respecting the business and financial
condition of the Borrower and its Subsidiaries as the Agent or any Bank may
reasonably request; and without any request, the Borrower will furnish each of
the following to the Agent (which shall promptly furnish the same to each Bank):
(i) within 60 days after the end of each of the first
three quarterly fiscal periods of the Borrower, a copy of the Borrower's Form
10-Q Report filed with the SEC;
(ii) within 90 days after the end of each fiscal year
of the Borrower, a copy of the Borrower's Form 10-K Report filed with the SEC,
including a copy of the annual audit report of the Borrower and its Subsidiaries
for such year with accompanying financial statements, prepared by the Borrower
and certified by PricewaterhouseCoopers LLP or any other independent public
accountants of recognized national standing selected by the Borrower and
reasonably satisfactory to the Required Banks, in accordance with GAAP;
(iii) within 60 days after the end of each of the first
three quarterly fiscal periods of the Borrower and within 90 days after the end
of each of the fourth quarterly fiscal periods of the Borrower, copies of the
consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries
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as of the close of such period and the consolidated and consolidating statements
of income of the Borrower and its Subsidiaries for such period;
(iv) as soon as available, and in any event within 90
days after the commencement of each fiscal year of the Borrower, a copy of the
Borrower's consolidated operating budget for such fiscal year, such budget to
show the projected consolidated balance sheet, income statement and statement of
cash flows of the Borrower and its Subsidiaries on a quarterly basis, such
budget to be prepared by the Borrower in reasonable detail and in form
reasonably satisfactory to the Required Banks;
(v) within 60 days after the end of each fiscal quarter
of the Borrower, copies of all proxy statements, other financial statements and
reports the Borrower sends to its shareholders, and copies of all other regular,
periodic and special reports and all registration statements the Borrower files
with the SEC or any successor thereto, or with any national securities
exchanges, in each case, during such fiscal quarter; and
(vi) upon the request from time to time of the Agent,
the Swap Termination Values, together with a description of the method by which
such values were determined, relating to any then-outstanding Swap Contracts to
which the Borrower or any of its Subsidiaries is a party.
(b) Each financial statement furnished to the Banks pursuant to
subsection (i) or (ii) of this Section 9.6 shall be accompanied by (A) a written
certificate signed by the Borrower's chief financial officer or corporate
controller to the effect that no Default or Event of Default has occurred during
the period covered by such statements or, if any such Default or Event of
Default has occurred during such period, setting forth a description of such
Default or Event of Default and specifying the action, if any, taken by the
Borrower to remedy the same and (B) a Compliance Certificate heretoshowing the
calculation of the Net Leverage Ratio and Borrower's compliance with the
covenants set forth in Sections 9.15, 9.16, 9.17, 9.18, 9.20 and 9.26 hereof.
(c) The Borrower will promptly (and in any event within three
(3) Business Days after the chief executive officer, chief operating officer,
president, treasurer or chief financial officer of the Borrower has knowledge
thereof) give notice to the Agent and each Bank:
(i) of the occurrence of any Change of Control Event,
Default or Event of Default;
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(ii) of any default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries, except for a
default or event of default which is not reasonably expected to have a material
adverse effect on the business, operations, Property or financial or other
condition of the Borrower and its Subsidiaries taken as a whole;
(iii) of a material adverse change in the business,
operations, Property or financial or other condition of the Borrower and its
Subsidiaries taken as a whole (including, without limitation, materially adverse
developments with respect to Year 2000 Issues); and
(iv) of any litigation or governmental proceeding of the
type described in Section 7.5 hereof which could reasonably be expected to cause
a material adverse effect upon the business, operations, Property or financial
or other condition of the Borrower and its Subsidiaries taken as a whole.
9.7. Bank Inspection Rights. Upon reasonable notice from any
Bank, the Borrower will permit such Bank (and such officers, agents, accountants
or other representatives of such Bank as any Bank may designate) during normal
business hours to visit and inspect, under the Borrower's guidance, any of the
properties of the Borrower or any of its Subsidiaries, to examine all of their
books of account, records, reports and other papers, to make copies and extracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective officers, employees and, independent public accountants (and by
this provision the Borrower authorizes such accountants to discuss with the
Banks (and such officers, agents, accountants or other representatives of such
Bank as any Bank may designate) the finances and affairs of the Borrower and its
Subsidiaries) all at such reasonable times and as often as may be reasonably
requested. The Borrower shall not be liable under Section 14.15 hereof for the
cost of any action taken solely under the authority of this Section unless such
action has been taken upon the occurrence and during the continuation of any
Default or Event of Default.
9.8. Conduct of Business. Neither the Borrower nor any
Subsidiary will engage in any line of business if, as a result, the general
nature of the business of the Borrower and its Subsidiaries taken as a whole
would be substantially changed from that conducted on the date hereof.
9.9. Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, permit to exist or to be incurred any Lien
of any kind on any Property owned by the Borrower or any Subsidiary; provided,
however, that this Section 9.9 shall not apply to nor operate to prevent:
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(a) Liens arising by operation of law in connection with
worker's compensation, unemployment insurance, social security obligations,
taxes, assessments, statutory obligations or other similar charges, good faith
deposits, pledges or Liens in connection with bids, tenders, contracts or leases
to which the Borrower or any Subsidiary is a party (other than contracts for
borrowed money), or other deposits required to be made in the ordinary course of
business; provided that in each case the obligation secured is not overdue or,
if overdue, is being contested in good faith by appropriate proceedings and for
which reserves in conformity with GAAP have been provided on the books of the
Borrower;
(b) mechanics', workmen's, materialmen's, landlords',
carriers' or other similar Liens arising in the ordinary course of business (or
deposits to obtain the release of such Liens) securing obligations not due or,
if due, being contested in good faith by appropriate proceedings and for which
reserves in conformity with GAAP have been provided on the books of the
Borrower;
(c) Liens for taxes or assessments or other government
charges or levies on the Borrower or any Subsidiary or their respective
Properties, not yet due or delinquent, or which can thereafter be paid without
penalty, or which are being contested in good faith by appropriate proceedings
and for which reserves in conformity with GAAP have been provided on the books
of the Borrower;
(d) Liens arising out of judgments or awards against the
Borrower or any Subsidiary, or in connection with surety or appeal bonds in
connection with bonding such judgments or awards, the time for appeal from which
or petition for rehearing of which shall not have expired or with respect to
which the Borrower or such Subsidiary shall be prosecuting an appeal or
proceeding for review, and with respect to which it shall have obtained a stay
of execution pending such appeal or proceeding for review; provided that the
aggregate amount of liabilities (including interest and penalties, if any) of
the Borrower and its Subsidiaries secured by such Liens shall not exceed
$5,000,000 at any one time outstanding;
(e) Liens upon any Property acquired by the Borrower or any
Subsidiary to secure any Indebtedness of the Borrower or any Subsidiary incurred
at the time of or within 90 days after the acquisition of such Property to
finance the purchase price of such Property, provided that any such Lien shall
apply only to the Property that was so acquired and the aggregate principal
amount of Indebtedness secured by such Liens shall not exceed $25,000,000 at any
time outstanding;
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(f) Survey exceptions or encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and other similar
purposes, or zoning or other restrictions as to the use of real properties which
are necessary for the conduct of the activities of the Borrower and any
Subsidiary or which customarily exist on properties of corporations engaged in
similar activities and similarly situated and which do not in any event
materially impair their use in the operation of the business of the Borrower or
any Subsidiary;
(g) Liens on Property of a Subsidiary to secure obligations
of such Subsidiary to the Borrower or to another Subsidiary so long as the
obligation so secured is not related to any obligation (other than obligations
hereunder) of the Borrower or such other Subsidiary to any Person;
(h) Liens described on Schedule 9.9 hereto;
(i) Any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien referred
to in the foregoing paragraphs (a) through (h), inclusive, provided, however,
that the principal amount of Indebtedness secured thereby shall not exceed the
principal amount of Indebtedness so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or replacement shall be
limited to the Property which was subject to the Lien so extended, renewed or
replaced;
(j) Liens securing Permitted Industrial Revenue Bond
Liabilities, provided, however, that any such Lien shall apply only to the real
property and the machinery and equipment comprising the manufacturing facility
financed, in whole or in part, with the proceeds of the applicable industrial
revenue bond issue;
(k) Liens securing Indebtedness consisting of Capitalized
Lease Obligations provided that such Indebtedness, when combined with
Indebtedness secured by Liens permitted by Section 9.9(m) hereof, does not
exceed $25,000,000 at any time outstanding;
(l) Lines on the assets of Persons which become
Subsidiaries after the date of this Agreement, provided that such Liens existed
at the time the respective Persons became Subsidiaries and were not created in
anticipation thereof;
(m) Liens not otherwise permitted under this Section 9.9 on
Property (other than (i) shares of stock in any Subsidiary and (ii) receivables,
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inventory and similar working capital assets) securing Indebtedness that, when
combined with Capitalized Lease Obligations permitted under Section 9.9(k)
hereof, is in an aggregate principal amount not exceeding $25,000,000 at any
time outstanding.
9.10. Use of Proceeds; Regulation U. The proceeds of each
Borrowing, and the credit provided by Letters of Credit, will be used by the
Borrower for general working capital needs and other general corporate purposes
including acquisitions of businesses and other Investments permitted by Section
9.14. The Borrower will not use any part of the proceeds of any of the
Borrowings or of the Letters of Credit directly or indirectly to purchase or
carry any margin stock (as defined in Section 7.10 hereof) or to extend credit
to others for the purpose of purchasing or carrying any such margin stock.
9.11. Sales and Leasebacks. The Borrower will not, nor will it
permit any Subsidiary to, enter into any arrangement with any bank, insurance
company or other lender or investor providing for the leasing by the Borrower or
any Subsidiary of any Property theretofore owned by it and which has been or is
to be sold or transferred by such owner to such lender or investor, except to
the extent the aggregate principal amount of Capitalized Lease Obligations under
such leases plus the outstanding principal amount of Indebtedness secured by
Liens permitted by Sections 9.9(k) and 9.9(m) hereof (and not separately
permitted by other provisions of Section 9.9) does not exceed $25,000,000 at any
time outstanding.
9.12. Mergers, Consolidations and Sales of Assets. The Borrower
will not, and will not permit any Subsidiary to, (i) consolidate with or be a
party to a merger with any other Person or (ii) sell, lease or otherwise dispose
of all or a "substantial part" of the assets of the Borrower and its
Subsidiaries taken as a whole; provided, however, that:
(a) any Subsidiary of the Borrower may merge or
consolidate with or into or sell, lease or otherwise convey all or a substantial
part of its assets to the Borrower or any Subsidiary of which the Borrower holds
at least the same percentage equity ownership; provided that in any such merger
or consolidation involving the Borrower, the Borrower shall be the surviving or
continuing corporation;
(b) the Borrower or any Subsidiary may consolidate or
merge with any other Person if such Subsidiary, or in the case of such a
transaction involving the Borrower, the Borrower, is the surviving or continuing
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corporation and at the time of such consolidation or merger and after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing; and
(c) the Borrower or any Subsidiary may exchange the
capital stock of or other ownership interests in any Subsidiary, or the assets
of any operating business, owned by it for the capital stock or other ownership
interests in any Person, or the assets of any other operating business, if the
Borrower or its Subsidiary receives fair value in such exchange, and at the time
of such exchange after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing.
As used in this Section 9.12, a sale, lease, transfer or disposition of assets
during any fiscal year shall be deemed to be of a "substantial part" of the
consolidated assets of the Borrower and its Subsidiaries if the net book value
of such assets, when added to the net book value of all other assets (including
without limitation stock in Subsidiaries) sold, leased, transferred or disposed
of by the Borrower and its Subsidiaries during such fiscal year (other than
inventory in the ordinary course of business) and the aggregate consideration
received by Subsidiaries from their issuance or sale of their stock during such
fiscal year (other than to the Borrower or to another Subsidiary) exceeds 10% of
the total assets of the Borrower and its Subsidiaries, determined on a
consolidated basis as of the last day of the immediately preceding fiscal year.
9.13. Use of Property and Facilities; Environmental and Health
and Safety Laws. The Borrower will, and will cause each Subsidiary to, comply in
all material respects with the requirements of all Environmental and Health Laws
applicable to or pertaining to the Properties or business operations of the
Borrower or such Subsidiary. Without limiting the foregoing, the Borrower will
not, and will not permit any Person to, except in accordance with applicable
law, dispose of any Hazardous Material into, onto or upon any real property
owned or operated by the Borrower or any Subsidiary. The Borrower will promptly
provide the Banks with copies of any notice or other instrument of the type
described in the third sentence of Section 7.11 hereof, and in no event later
than five (5) Business Days after an officer of the Borrower receives or gives
such notice or instrument.
9.14. Investments, Acquisitions, Loans, Advances and Guaranties.
The Borrower will not, nor will it permit any Subsidiary to, directly or
indirectly, make, retain or have outstanding any investments (whether through
purchase of stock or obligations or otherwise) in, or loans or advances to, any
other Person, or acquire all or any substantial part of the assets or business
of any other Person or division thereof, or be or become liable as endorser,
guarantor, surety or otherwise (such as liability as a general partner) for any
debt, obligation or undertaking of
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any other Person, or otherwise agree to provide funds for payment of the
obligations of another, or supply funds thereto or invest therein or otherwise
assure a creditor of another against loss, or apply for or become liable to the
issuer of a letter of credit which supports an obligation of another
(cumulatively, all of the foregoing, being "Investments"); provided, however,
that the foregoing provisions shall not apply to nor operate to prevent:
(a) investments in direct obligations of the United States
of America or of any agency or instrumentality thereof whose obligations
constitute full faith and credit obligations of the United States of America;
provided that any such obligation matures within one year from the date it is
acquired by the Borrower or Subsidiary;
(b) investments in commercial paper rated P-1 by ▇▇▇▇▇'▇
Investors Services, Inc. or A-1 by Standard & Poor's Ratings Services maturing
within one year of its date of issuance;
(c) investments in certificates of deposit issued by any
Bank or any United States commercial bank having capital and surplus of not less
than $200,000,000 maturing within one year from the date of issuance thereof or
in banker's acceptances endorsed by any Bank or other such commercial bank and
maturing within six months of the date of acceptance;
(d) investments in repurchase obligations with a term of
not more than seven (7) days for underlying securities of the types described in
subsection (a) above entered into with any bank meeting the qualifications
specified in subsection (c) above, provided all such agreements require physical
delivery of the securities securing such repurchase agreement, except those
delivered through the Federal Reserve Book Entry System:
(e) investments in tax-exempt bonds rated Aa by ▇▇▇▇▇'▇
Investors Service, Inc. or AA by Standard & Poor's Rating Services (or having
comparable short-term ratings) maturing (or subject to tender at the option of
the holder) within 31 days;
(f) investments in money market funds that invest solely,
and which are restricted by their respective charters to invest solely, in
investments of the type described in the immediately preceding subsections (a),
(b), (c), (d) and (e) above;
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(g) ownership of stock, obligations or securities received
in settlement of debts (created in the ordinary course of business) owing to the
Borrower or any Subsidiary;
(h) endorsements of negotiable instruments for collection
in the ordinary course of business;
(i) loans and advances to employees in the ordinary course
of business for travel, relocation, and similar purposes;
(j) the Subsidiary Guarantee Agreements;
(k) acquisitions of all or any substantial part of the
assets or business of any other Person or division thereof engaged in a line of
business reasonably related or complimentary to that of the Borrower and its
Subsidiaries, or of a majority of the Voting Stock of such a Person, or of
equity interests in any partnership, joint venture or corporation which does not
become a Subsidiary as a result of such acquisition but is engaged (or promptly
after such acquisition will be engaged) in a line of business reasonably related
or complimentary to that of the Borrower and its Subsidiaries, provided that (i)
no Default or Event of Default exists or would exist after giving effect to such
acquisition and (ii) the Board of Directors or other governing body of such
Person whose Property, or Voting Stock or other interests in which, are being so
acquired has approved the terms of such acquisition;
(l) investments by the Borrower in Subsidiaries not
otherwise permitted by this Section 9.14, provided that (i) such Investments
(other than Investments in Wholly-Owned Subsidiaries), when taken together with
investments in partnerships, joint ventures and corporations permitted by
subsection (m) below, aggregate at any one time outstanding not more than the
greater of (x) 5% of the total assets of the Borrower and its Subsidiaries
determined on a consolidated basis as of the last day of the most recently
completed fiscal year or (y) $30,000,000, (ii) the amount of indebtedness or
other obligations of Subsidiaries guaranteed or otherwise similarly supported by
the Borrower by virtue of such Investments at no time exceeds (in the aggregate
at any one time outstanding) the lesser of (x) 15% of the total assets of the
Borrower and its Subsidiaries determined on a consolidated basis as of the last
day of the most recently completed fiscal year or (y) $50,000,000 and (iii)
Investments in Subsidiaries that only become Subsidiaries through such
Investment must comply with the provisions of subsection (k) above;
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(m) investments in partnerships, joint ventures and
corporations (other than Subsidiaries) not otherwise permitted by this Section
9.14, provided that (i) such Investments, when taken together with Investments
in Subsidiaries other than Wholly-Owned Subsidiaries permitted by sub-section
(l) above, aggregate at any one time outstanding not more than the greater of
(x) 5% of the total assets of the Borrower and its Subsidiaries determined on a
consolidated basis as of the last day of the most recently completed fiscal year
or (y) $30,000,000 and (ii) acquisitions of interests in such partnerships,
joint ventures and corporations after the date hereof must comply with the
provisions of subsection (k) above;
(n) liabilities in respect of letters of credit securing
Permitted Industrial Revenue Bond Liabilities and Letters of Credit hereunder;
and
(o) investments not otherwise permitted under this Section
9.14 in an aggregate amount not exceeding $10,000,000 at any time.
In determining the amount of investments, acquisitions, loans,
advances and guarantees permitted under this Section 9.14, investments and
acquisitions shall always be valued at the original cost thereof (regardless of
any subsequent appreciation or depreciation therein), loans and advances shall
be valued at the principal amount thereof then remaining unpaid, and guarantees
shall be valued at the amount of obligations guaranteed thereby.
9.15. Consolidated Net Worth. The Borrower will at all times
maintain a Consolidated Net Worth of not less than $160,000,000.
9.16. Leverage Ratio. The Borrower will at all times maintain
its Leverage Ratio at not more than 3.25 to 1.00.
9.17.Debt to Capitalization Ratio. The Borrower will at all
times maintain a ratio of Total Debt of the Borrower and its Subsidiaries to
Total Capitalization of the Borrower and its Subsidiaries of not more than .50
to 1.00.
9.18.Interest Coverage Ratio. The Borrower will at all times
maintain its Interest Coverage Ratio at not less than 3.0:1.00.
9.19. Dividends and Other Shareholder Distributions. The
Borrower shall only declare or pay any dividends or make a distribution of any
kind (including by redemption or purchase) on its outstanding capital stock, if
no Default or Event of Default exists prior to or would result after giving
effect to such action.
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9.20. Subsidiary Debt. No Subsidiary shall have outstanding at
any time any Debt other than:
(a) Debt of Wholly-Owned Subsidiaries to the Borrower; and
(b) Debt of Subsidiaries not otherwise permitted by this
Section aggregating not more than the lesser of (i) $40,000,000 and (ii) ten
percent (10%) of the total assets of the Borrower and its Subsidiaries
determined on a consolidated basis as of the last day of the Borrower's most
recently completed fiscal year.
9.21. Transactions with Affiliates. The Borrower will not, and
will not permit any Subsidiary to, enter into or be a party to any contract,
agreement, transaction or arrangement with any of its Affiliates (other than the
Borrower or any of its Subsidiaries), on terms and conditions which are less
favorable to the Borrower or such Subsidiary than would be usual and customary
in similar contracts, agreements, transactions or arrangements between Persons
not affiliated with each other.
9.22. Compliance with Laws. Without limiting any of the other
covenants of the Borrower in this Section 9, the Borrower will, and will cause
each Subsidiary to, conduct its business, and otherwise be, in compliance with
all applicable laws, regulations, ordinances and orders of any governmental or
judicial authorities; provided, however, that neither the Borrower nor any
Subsidiary shall be required to comply with any such law, regulation, ordinance
or order if (x) it shall be contesting such law, regulation, ordinance or order
in good faith by appropriate proceedings and reserves in conformity with GAAP
have been provided therefor on the books of the Borrower or such Subsidiary, as
the case may be, or (y) the failure to comply therewith is not reasonably
expected to have, in the aggregate, a material adverse effect on the business,
operations, property or financial or other condition of the Borrower and its
Subsidiaries taken as a whole.
9.23. Change in Fiscal Year. The Borrower will not change its
fiscal year from its present basis without the prior written consent of the
Banks.
9.24. Year 2000. The Borrower will take, and will cause each of
its Subsidiaries to take, all such actions as are reasonably necessary to
successfully implement the Year 2000 Program and to assure that Year 2000 Issues
will not have a material adverse effect on the business, operations, Property or
financial or other conditions of the Borrower and its Subsidiaries taken as a
whole, including
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without limitation making reasonable inquiries of its material suppliers,
vendors and customers. At the request of the Agent, the Borrower will provide a
description of the Year 2000 Program, together with any update or progress
reports with respect thereto.
9.25. ▇▇▇▇ ▇▇ Acquisition. The Borrower will within 10 days
after the closing of the ▇▇▇▇ ▇▇ Acquisition (a) furnish to the Agent a copy for
each Bank of the executed principal ▇▇▇▇ ▇▇ Acquisition Documents, certified to
be true and correct by the Secretary or an Assistant Secretary of the Borrower,
and (b) cause each Significant Subsidiary created or acquired in connection with
the ▇▇▇▇ ▇▇ Acquisition to execute and deliver a Subsidiary Guaranty Agreement
and furnish such Subsidiary Guaranty Agreements, and the related documentation
fulfilling the requirement of Sections 8.1(a) through (d), to the Agent, and
will promptly thereafter furnish to the Agent a copy for each Bank of the other
▇▇▇▇ ▇▇ Acquisition Documents.
9.26. Post-Closing Legal Opinions. The Borrower will, within 30
days after the initial Credit Event furnish to the Agent a copy for each Bank of
(a) the opinion of Ohio counsel to United Air Specialists, Inc. as to the
matters addressed in paragraphs 1 and 3 of the form of opinion of counsel
attached hereto as Exhibit F, (b) the opinion of Kentucky counsel to Airguard
Industries, Inc. as to such matters and (c) the opinion of Sidley & Austin,
supplementing the opinion delivered pursuant to Section 8.1(a) and which,
assuming the accuracy of the opinions described in clauses (a) and (b) above,
opines with respect to United Air Specialists, Inc. and Airguard Industries,
Inc. on the matters addressed for the other Guarantors in their initial opinion.
9.26. Priority Debt. Notwithstanding any provision in this
Agreement to the contrary, the Borrower shall not permit Priority Debt to exceed
15% of Consolidated Net Worth at any time.
10. Events of Default and Remedies.
10.1. Events of Default. Any one or more of the following shall
constitute an Event of Default:
(a) (i) default in the payment when due of any principal
on any Note or any Loan evidenced thereby or any Reimbursement Obligation
(whether at the stated maturity thereof or at any time provided in any Credit
Document); or (ii) default for five (5) days in the payment when due of interest
on any Note or any Loan evidenced thereby or any other Obligation;
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(b) default by the Borrower or any Subsidiary in the
observance or performance of any covenant set forth in Sections 9.9, 9.12, 9.14,
9.15, 9.16, 9.17, 9.18, 9.19, 9.20 or 9.26 hereof;
(c) default by the Borrower or any Subsidiary in the
observance or performance of any provision hereof or of any other Credit
Document not mentioned in (a) or (b) above, which is not remedied within thirty
(30) days after notice thereof to the Borrower by the Agent or any Bank;
(d) (i) failure to pay when due Debt in an aggregate
principal amount of $2,000,000 or more of the Borrower or any Subsidiary or (ii)
default shall occur under one or more indentures, agreements or other
instruments under which any Debt of the Borrower or any Subsidiary in an
aggregate principal amount of $2,000,000 or more may be issued or created and
such default shall continue for a period of time sufficient to permit the holder
or beneficiary of such Debt or a trustee therefor to cause the acceleration of
the maturity of any such Debt or any mandatory unscheduled prepayment, purchase
or funding thereof or (iii) there shall occur under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from [a] any event
of default under such Swap Contract as to which the Borrower or any Subsidiary
is the Defaulting Party (as so defined) or [b] any Termination Event (as so
defined) as to which the Borrower or any Subsidiary is an Affected Party (as so
defined), and, in either event, the Swap Termination Value owed by the Borrower
or such Subsidiary as a result thereof is $2,000,000 or more;
(e) any representation or warranty made herein or in any
other Credit Document by the Borrower or any Subsidiary, or in any statement or
certificate furnished pursuant hereto or pursuant to any other Credit Document
by the Borrower or any Subsidiary, or in connection with any Credit Document,
proves untrue in any material respect as of the date of the issuance or making,
or deemed making or issuance, thereof;
(f) the Borrower or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the United States Bankruptcy
Code, as amended, or any analogous action is taken under any other applicable
law relating to bankruptcy or insolvency, (ii) fail to pay, or admit in writing
its inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its Property,
(v) institute any proceeding seeking to have entered against it an order for
relief under the United States Bankruptcy Code, as amended, to adjudicate it
insolvent, or seeking dissolution,
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winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (vi)
take any corporate action (such as the passage by the Borrower's board of
directors of a resolution) in furtherance of any matter described in parts
(i)-(v) above, or (vii) fail to contest in good faith any appointment or
proceeding described in Section 10.1(g) hereof;
(g) a custodian, receiver, trustee, examiner, liquidator
or similar official shall be appointed for the Borrower or any Subsidiary or any
substantial part of any of their Property, or a proceeding described in Section
10.1(f)(i) shall be instituted against the Borrower or any Subsidiary, and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of sixty (60) days;
(h) the Borrower or any Subsidiary shall fail within
thirty (30) days to pay, bond or otherwise discharge any judgment or order for
the payment of money in excess of $2,000,000, which is not stayed on appeal or
otherwise being appropriately contested in good faith in a manner that stays
execution thereon; or
(i) The Borrower or any other member of the Controlled
Group shall fail to pay when due an amount or amounts aggregating in excess of
$500,000 which it shall have become liable to pay to the PBGC or to a Plan under
Title IV of ERISA; or notice of intent to terminate a Plan or Plans having
aggregate Unfunded Vested Liabilities in excess of $500,000 (collectively, a
"Material Plan") shall be filed under Title IV of ERISA by the Borrower or any
Subsidiary or any other member of the Controlled Group, any plan administrator
or any combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any Material Plan or a proceeding shall be instituted by a fiduciary
of any Material Plan against the Borrower or any other member of the Controlled
Group to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within thirty (30) days thereafter; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated.
10.2. Non-Bankruptcy Defaults. When any Event of Default other
than those described in subsections (f) or (g) of Section 10.1 hereof has
occurred and is continuing, the Agent shall, by written notice to the Borrower:
(a) if so directed by the Required Banks, terminate the remaining Commitments
and Swing Line Commitment and all other obligations of the Banks hereunder on
the date
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stated in such notice (which may be the date thereof); (b) if so directed by the
Required Banks, declare the principal of and the accrued interest on all
outstanding Notes to be forthwith due and payable and thereupon all outstanding
Notes, including both principal and interest thereon, shall be and become
immediately due and payable together with all other amounts payable under the
Credit Documents without further demand, presentment, protest or notice of any
kind; and (c) if so directed by the Required Banks, demand that the Borrower
immediately pay to the Agent subject to Section 10.4, the full amount then
available for drawing under each or any Letter of Credit, and the Borrower
agrees to immediately make such payment and acknowledges and agrees that the
Banks shall have the right to require the Borrower to specifically perform such
undertaking whether or not any drawings or other demands for payment have been
made under any Letter of Credit. The Agent, after giving notice to the Borrower
pursuant to Section 10.1(c) or this Section 10.2, shall also promptly send a
copy of such notice to the other Banks, but the failure to do so shall not
impair or annul the effect of such notice.
10.3. Bankruptcy Defaults. When any Event of Default described
in subsections (f) or (g) of Section 10.1 hereof has occurred and is continuing,
then all outstanding Notes shall immediately become due and payable together
with all other amounts payable under the Credit Documents without presentment,
demand, protest or notice of any kind, the obligation of the Banks to extend
further credit pursuant to any of the terms hereof shall immediately terminate
and the Borrower shall immediately pay to the Agent, subject to Section 10.4,
the full amount then available for drawing under all outstanding Letters of
Credit, the Borrower acknowledging that the Banks, and the Agent on their
behalf, shall have the right to require the Borrower to specifically perform
such under-taking whether or not any draws or other demands for payment have
been made under any of the Letters of Credit.
10.4. Collateral for Undrawn Letters of Credit.
(a) If the payment or prepayment of the amount available
for drawing under any or all outstanding Letters of Credit is required under
Section 10.2 or 10.3 above, the Borrower shall forthwith pay the amount required
to be so paid or prepaid, to be held by the Agent as provided in subsection (b)
below.
(b) All amounts prepaid pursuant to subsection (a) above
shall be held by the Agent in a separate collateral account (such account, and
the credit balances, properties and any investments from time to time held
therein, and any substitutions for such account, any certificate of deposit or
other instrument
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evidencing any of the foregoing and all proceeds of and earnings on any of the
foregoing being collectively called the "Account") as security for, and for
application by the Agent (to the extent available) to, the reimbursement of any
payment under any Letter of Credit then or thereafter made by the Issuing Bank,
and to the payment of the unpaid balance of any Loans and all other Obligations,
any such applications to be made in such order. The Account shall be held in the
name of and subject to the exclusive dominion and control of the Agent for the
benefit of the Agent, the Issuing Bank and the Banks. If and when requested by
the Borrower, the Agent shall invest funds held in the Account from time to time
in direct obligations of, or obligations the principal of and interest on which
are unconditionally guaranteed by, the United States of America with a remaining
maturity of one year or less, provided that the Agent is irrevocably authorized
to sell investments held in the Account when and as required to make payments
out of the Account for application to amounts due and owing from the Borrower to
the Agent, the Issuing Bank or Banks; provided, however, that if (i) the
Borrower shall have made payment of all such obligations referred to in
subsection (a) above and (ii) no Letters of Credit, Commitments, Loans or other
Obligations remain outstanding hereunder, then the Agent shall repay to the
Borrower any remaining amounts held in the Account.
10.5. Notice of Default. The Agent shall give notice to the
Borrower under Section 10.1(c) hereof promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
10.6. Expenses. The Borrower agrees to pay to the Agent and each
Bank, and any other holder of any Note outstanding hereunder, all reasonable
expenses incurred or paid by the Agent and such Bank or any such holder,
including reasonable attorneys' fees and court costs, in connection with any
Default or Event of Default by the Borrower hereunder or in connection with the
enforcement of any of the Credit Documents.
11. Change in Circumstances.
11.1. Change of Law. Notwithstanding any other provisions of
this Agreement or any Note, if at any time after the date hereof any change in
applicable law or regulation or in the interpretation thereof makes it unlawful
for any Bank to make or continue to maintain Eurocurrency Loans or to perform
its obligations as contemplated hereby, such Bank shall promptly give notice
thereof to the Borrower and such Bank's obligations to make or maintain
Eurocurrency Loans under this Agreement shall terminate until it is no longer
unlawful for such Bank to make or maintain Eurocurrency Loans. The Borrower
shall prepay on demand the outstanding principal amount of any such affected
Eurocurrency
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Loans, together with all interest accrued thereon at a rate per annum equal to
the interest rate applicable to such Loan; provided, however, that (i) the
Borrower may delay such prepayment until the last day of the then-current
Interest Period for such affected Eurodollar Loans if permitted by law and (ii)
subject to all of the terms and conditions of this Agreement, the Borrower may
then elect to borrow the principal amount of the affected Eurocurrency Loans
from such Bank, by means of Domestic Rate Loans from such Bank, which Domestic
Rate Loans shall not be made ratably by the Banks but only from such affected
Bank. The Borrower shall not be required to pay any amount under Section 3.6 in
connection with any prepayment required by this Section 11.1.
11.2. Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR. If on or prior to the first day of any Interest Period for
any Borrowing of Eurocurrency Loans:
(a) the Agent determines that deposits in U.S. Dollars or
the applicable Alternative Currency (in the applicable amounts) are not being
offered to it in the eurocurrency interbank market for such Interest Period, or
that by reason of circumstances affecting the interbank eurocurrency market
adequate and reasonable means do not exist for ascertaining the applicable
LIBOR, or
(b) any Bank shall advise the Agent that LIBOR as
determined by the Agent will not adequately and fairly reflect the cost to such
Bank of funding its Eurocurrency Loan for such Interest Period for a reason
other than an increase in funding costs resulting from a decrease in the
creditworthiness of such Bank,
then the Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks to
make Eurocurrency Loans in the currency so affected shall be suspended.
11.3. Increased Cost and Reduced Return.
(a) If, on or after the date hereof, 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 Bank (or its Lending Office) with any request or
directive (whether or not having the force of law but, if not having the force
of law, compliance with which is customary in the relevant jurisdiction) of any
such authority, central bank or comparable agency:
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(i) shall subject any Bank (or its Lending Office) to
any tax, duty or other charge with respect to its Eurocurrency Loans, its Notes,
its Letter(s) of Credit, or its participation in any thereof, any Reimbursement
Obligations owed to it or its obligation to make Eurocurrency Loans, issue a
Letter of Credit, or to participate therein, or shall change the basis of
taxation of payments to any Bank (or its Lending Office) of the principal of or
interest on its Eurocurrency Loans, Letter(s) of Credit, or participations
therein or any other amounts due under this Agreement in respect of its
Eurocurrency Loans, Letter(s) of Credit, or participations therein, any
Reimbursement Obligations owed to it, or its obligation to make Eurocurrency
Loans, issue a Letter of Credit, or acquire participations therein (except for
changes in any tax on the overall net income or profits of such Bank or its
Lending Office imposed by the jurisdiction in which such Bank or its lending
office is incorporated in which such Bank's principal executive office or
Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Eurocurrency Loans any such
requirement included in an applicable Eurocurrency Reserve Percentage) against
assets of, deposits with or for the account of, or credit extended by, any Bank
(or its Lending Office) or shall impose on any Bank (or its Lending Office) or
on the interbank market any other condition affecting its Eurocurrency Loans,
its Notes, its Letter(s) of Credit, or its participation in any thereof, any
Reimbursement Obligation owed to it, or its obligation to make Eurocurrency
Loans, to issue a Letter of Credit, or to participate therein;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Eurocurrency Loan, issuing or
maintaining a Letter of Credit, or participating therein, or to reduce the
amount of any sum received or receivable by such Bank (or its Lending Office)
under this Agreement or under its Notes with respect thereto, by an amount
deemed by such Bank to be material, then, within ten (10) days after demand by
such Bank (with a copy to the Agent) at any time within 120 days after the date
on which such Bank knows or has reason to know of its right to additional
compensation under this Section 11.3(a), the Borrower shall promptly pay to such
Bank such additional amount or amounts as will compensate such Bank for such
increased cost or reduction; provided, however, that if any such Bank fails to
make demand within such 120-day period, such Bank shall only be entitled to
additional compensation for any such costs incurred from and after the date that
is 120 days prior to the date such Bank makes such demand; and provided further
that before making any
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such demand, each Bank agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Lending Office if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost and would not, in the reasonable
judgment of such Bank, be otherwise disadvantageous to such Bank.
(b) If, after the date hereof, any Bank or the Agent shall have
determined that the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein (including, without limitation, any
revision in the Final Risk-Based Capital Guidelines of the Board of Governors of
the Federal Reserve System (12 CFR Part 208, Appendix A; ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ ▇) or of the Office of the Comptroller of the Currency (12 CFR Part 3,
Appendix A), or in any other applicable capital rules heretofore adopted and
issued by any governmental authority), 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 Bank (or its Lending Office) with any request or directive regarding
capital adequacy (whether or not having the force of law but, if not having the
force of law, compliance with which is customary in the applicable jurisdiction)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital, or on the capital
of any corporation controlling such Bank, as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's policies
with respect to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, within ten (10) days after demand by such Bank
(with a copy to the Agent) at any time within 120 days after the date on which
such Bank knows or has reason to know of its right to additional compensation
under this Section 11.3(b), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such reduction; provided,
however, that if any such Bank fails to make demand within such 120-day period,
such Bank shall only be entitled to additional compensation for any such costs
incurred from and after the date that is 120 days prior to the date such Bank
makes such demand.
(c) No Bank may request additional amounts under this Section
11.3 unless it is generally making similar requests of other borrowers similarly
situated. A certificate of any Bank claiming compensation under this Section
11.3 and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of demonstrable error. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods.
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11.4. Lending Offices. Each Bank may, at its option, elect to
make its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof (each a "Lending Office") for each type of
Loan available hereunder or at such other of its branches, offices or affiliates
as it may from time to time elect and designate in a written notice to the
Borrower and the Agent.
11.5. Discretion of Bank as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Bank shall be
entitled to fund and maintain its funding of all or any part of its Loans in any
manner it sees fit, it being understood, however, that for the purposes of this
Agreement all determinations hereunder shall be made as if each Bank had
actually funded and maintained each Eurocurrency Loan that is a Committed
Revolving Loan through the purchase of deposits of U.S. Dollars or the
applicable Alternative Currency in the Eurocurrency interbank market having a
maturity corresponding to such Loan's Interest Period and bearing an interest
rate equal to LIBOR for such Interest Period.
12. The Agent and the Co-Agents.
12.1. Appointment and Authorization of Agent. Each Bank hereby
appoints Firstar Bank Milwaukee, National Association as the Agent under the
Credit Documents and hereby authorizes the Agent to take such action as Agent on
its behalf and to exercise such powers under the Credit Documents as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto. The Banks expressly agree that the Agent is not
acting as a fiduciary of the Banks in respect to the Credit Documents, the
Borrowers or otherwise, and nothing herein or in any of the other Credit
Documents shall result in any duties or obligations on the Agent or any of the
Banks except as expressly set forth herein.
12.2. Agent and its Affiliates. The Agent shall have the same
rights and powers under this Agreement and the other Credit Documents as any
other Bank and may exercise or refrain from exercising the same as though it
were not the Agent, and the Agent and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower or
any Affiliate of the Borrower as if it were not the Agent under the Credit
Documents. The term "Bank" as used herein and in all other Credit Documents,
unless the context otherwise clearly requires, includes the Agent in its
individual capacity as a Bank.
12.3. Action by Agent. If the Agent receives from the Borrower
a written notice of an Event of Default pursuant to Section 9.6(c)(i) hereof,
the Agent shall promptly give each of the Banks written notice thereof. The
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obligations of the Agent under the Credit Documents are only those expressly set
forth therein. Without limiting the generality of the foregoing, the Agent shall
not be required to take any action hereunder with respect to any Default or
Event of Default, except as expressly provided in Sections 10.2 and 10.5. In no
event, however, shall the Agent be required to take any action in violation of
applicable law or of any provision of any Credit Document, and the Agent shall
in all cases be fully justified in failing or refusing to act hereunder or under
any other Credit Document unless it shall be first indemnified to its reasonable
satisfaction by the Banks against any and all costs, expense, and liability
which may be incurred by it by reason of taking or continuing to take any such
action. The Agent shall be entitled to assume that no Default or Event of
Default exists unless notified to the contrary by a Bank or the Borrower. In all
cases in which this Agreement and the other Credit Documents do not require the
Agent to take certain actions, the Agent shall be fully justified in using its
discretion in failing to take or in taking any action hereunder and thereunder.
12.4. Consultation with Experts. The Agent may consult with
legal counsel, independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
12.5. Liability of Agent; Credit Decision. Neither the Agent nor
any of its directors, officers, agents, or employees shall be liable for any
action taken or not taken by it in connection with the Credit Documents (i) with
the consent or at the request of the Required Banks or (ii) in the absence of
its own gross negligence or willful misconduct. Neither the Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement, any other Credit Document
or any Credit Event, (ii) the performance or observance of any of the covenants
or agreements of the Borrower or any Guarantor contained herein or in any other
Credit Document; (iii) the satisfaction of any condition specified in Section 8
hereof, except receipt of items required to be delivered to the Agent; or (iv)
the validity, effectiveness, genuineness, enforceability, perfection, value,
worth or collectibility hereof or of any other Credit Document or of any other
documents or writing furnished in connection with any Credit Document; and, the
Agent makes no representation of any kind or character with respect to any such
matter mentioned in this sentence. The Agent may execute any of its duties under
any of the Credit Documents by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Banks, the Borrower, or any
Guarantor or any other Person for the default or misconduct of any such agents
or attorneys-in-fact selected with reasonable care. The Agent shall not incur
any liability by acting in reliance upon any notice,
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consent, certificate, other document or statement (whether written or oral)
believed by it to be genuine or to be sent by the proper party or parties. In
particular and without limiting any of the foregoing, the Agent shall have no
responsibility for confirming the accuracy of any Compliance Certificate or
other document or instrument received by it under the Credit Documents. The
Agent may treat the payee of any Note as the holder thereof until written notice
of transfer shall have been filed with the Agent signed by such payee in form
satisfactory to the Agent. Each Bank acknowledges that it has independently and
without reliance on the Agent or any other Bank, and based upon such
information, investigations and inquiries as it deems appropriate, made its own
credit analysis and decision to extend credit to the Borrower in the manner set
forth in the Credit Documents. It shall be the responsibility of each Bank to
keep itself informed as to the creditworthiness of the Borrower and the
Guarantors, and the Agent shall have no liability to any Bank with respect
thereto.
12.6. Indemnity. The Banks shall ratably, in accordance with
their respective Percentages, indemnify and hold the Agent, and its directors,
officers, employees, agents and representatives harmless from and against any
liabilities, losses, costs or expenses suffered or incurred by it under any
Credit Document or in connection with the transactions contemplated thereby,
regardless of when asserted or arising, except to the extent they are promptly
reimbursed for the same by the Borrower and except to the extent that any event
giving rise to a claim was caused by the gross negligence or willful misconduct
of the party seeking to be indemnified. The obligations of the Banks under this
Section 12.6 shall survive termination of this Agreement.
12.7. Resignation of Agent and Successor Agent. The Agent may,
and shall at the request of the Required Banks, resign at any time by giving
written notice thereof to the Banks and the Borrower. Upon any such resignation
of the Agent, the Required Banks shall have the right to appoint a successor
Agent with the consent of the Borrower. If no successor Agent shall have been so
appointed by the Required Banks, and shall have accepted such appointment,
within thirty (30) days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be any Bank hereunder or any commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $200,000,000. Upon the
acceptance of its appointment as the Agent hereunder, such successor Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring or removed Agent under the Credit Documents, and the retiring Agent
shall be discharged from its duties and obligations thereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Section
13 and all protective provisions of the other Credit
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Documents shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent.
12.8. Co-Agents. Neither of the Persons identified on the facing
page or signature pages of this Agreement as a co-agent shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Banks as such. Without limiting the foregoing, none
of the Banks so identified shall have or be deemed to have any fiduciary
relationship with any Bank. Each Bank acknowledges that it has not relied, and
will not rely, on any of the Banks so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
13. The Guarantees.
13.1. The Guarantees. To induce the Banks to provide the credits
described herein and in consideration of benefits expected to accrue to each
Guarantor by reason of the Commitments and for other good and valuable
consideration, receipt of which is hereby acknowledged, each Guarantor hereby
unconditionally and irrevocably guarantees jointly and severally to the Agent,
the Banks, and each other holder of an Obligation, the due and punctual payment
of all present and future indebtedness of the Borrower evidenced by or arising
out of the Credit Documents, including, but not limited to, the due and punctual
payment of principal of and interest on the Notes and the due and punctual
payment of all other Obligations now or hereafter owed by the Borrower under the
Credit Documents as and when the same shall become due and payable, whether at
stated maturity, by acceleration or otherwise, according to the terms hereof and
thereof. In case of failure by the Borrower punctually to pay any indebtedness
or other Obligations guaranteed hereby, each Guarantor hereby unconditionally
agrees jointly and severally to make such payment or to cause such payment to be
made punctually as and when the same shall become due and payable, whether at
stated maturity, by acceleration or otherwise, and as if such payment were made
by the Borrower.
13.2. Guarantee Unconditional. The obligations of each Guarantor
as a guarantor under this Section 13 shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver
or release in respect of any obligation of the Borrower or of any other
Guarantor under this Agreement or any other Credit Document or by operation of
law or otherwise;
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(b) any modification or amendment of or supplement to this
Agreement or any other Credit Document;
(c) any change in the corporate existence, structure or
ownership of, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting, the Borrower, any other Guarantor, or any of their
respective assets, or any resulting release or discharge of any obligation of
the Borrower or of any other Guarantor contained in any Credit Document;
(d) the existence of any claim, set-off or other rights
which the Guarantor may have at any time against the Agent, any Bank or any
other Person, whether or not arising in connection herewith;
(e) any failure to assert, or any assertion of, any claim
or demand or any exercise of, or failure to exercise, any rights or remedies
against the Borrower, any other Guarantor or any other Person or Property;
(f) any application of any sums by whomsoever paid or
howsoever realized to any obligation (other than the Obligations) of the
Borrower, regardless of what obligations of the Borrower remain unpaid;
(g) any invalidity or unenforceability relating to or
against the Borrower or any other Guarantor for any reason of this Agreement or
of any other Credit Document or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower or any other Guarantor of the
principal of or interest on any Note or any other amount payable by it under the
Credit Documents; or
(h) any other act or omission to act or delay of any kind
by the Agent, any Bank or any other Person or any other circumstance whatsoever
that might, but for the provisions of this paragraph, constitute a legal or
equitable discharge of the obligations of the Guarantor under this Section 13.
13.3. Discharge Only Upon Payment in Full: Reinstatement in
Certain Circumstances. Each Guarantor's obligations under this Section 13 shall
remain in full force and effect until the Commitments are terminated and the
principal of and interest on the Notes and all other amounts payable by the
Borrower under this Agreement and all other Credit Documents shall have been
paid in full. If at any time any payment of the principal of or interest on any
Note or any other amount payable by the Borrower under the Credit Documents is
rescinded or must be otherwise restored or returned upon the insolvency,
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bankruptcy or reorganization of the Borrower or of a Guarantor, or otherwise,
each Guarantor's obligations under this Section 13 with respect to such payment
shall be reinstated at such time as though such payment had become due but had
not been made at such time.
13.4 Waivers.
(a) General. Each Guarantor 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 the Agent, any
Bank or any other Person against the Borrower, another Guarantor or any other
Person.
(b) Subrogation and Contribution. Each Guarantor hereby
irrevocably agrees that, until the Obligations have been paid in full, the
Commitments have been terminated and all Letters of Credit have terminated or
expired, it shall not exercise any claim or other right it may now or hereafter
acquire against the Borrower or any other Guarantor that arises from the
existence, payment, performance or enforcement of such Guarantor's obligations
under this Section 13 or any other Credit Document, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution,
indemnification, or any right to participate in any claim or remedy of the
Agent, any Bank or any other holder of an Obligation against the Borrower or any
other Guarantor whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including without limitation, the right
to take or receive from the Borrower or any other Guarantor directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other right.
13.5 Limit on Recovery. Notwithstanding any other provision hereof, the
right to recovery of the holders of the Obligations against each Guarantor under
this Section 13 shall not exceed $1.00 less than the amount which would render
such Guarantor's obligations under this Section 13 void or voidable under
applicable law, including without limitation fraudulent conveyance law.
13.6 Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Borrower under this Agreement or any other Credit
Document is stayed upon the insolvency, bankruptcy or reorganization of the
Borrower, all such amounts otherwise subject to acceleration under the terms of
this Agreement or the other Credit Documents shall nonetheless be payable
jointly and severally by the Guarantors hereunder forthwith on demand by the
Agent made at the request of the Required Banks.
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14. Miscellaneous.
14.1. Withholding Taxes.
(a) Payments Free of Withholding. Except as otherwise
required by law and subject to Section 14.1(b) hereof, each payment by the
Borrower and each Guarantor under this Agreement or the other Credit Documents
shall be made without withholding for or on account of any present or future
taxes (other than overall net income taxes on the recipient) imposed by or
within the jurisdiction in which the Borrower or such Guarantor is domiciled,
any jurisdiction from which the Borrower or such Guarantor makes any payment, or
(in each case) any political subdivision or taxing authority thereof or therein.
If any such withholding is so required, the Borrower or relevant Guarantor shall
make the withholding, pay the amount withheld to the appropriate governmental
authority before penalties attach thereto or interest accrues thereon and
forthwith pay such additional amount as may be necessary to ensure that the net
amount actually received by each Bank and the Agent free and clear of such taxes
(including such taxes on such additional amount) is equal to the amount which
that Bank or the Agent (as the case may be) would have received had such
withholding not been made. If the Agent or any Bank pays any amount in respect
of any such taxes, penalties or interest the Borrower shall reimburse the Agent
or that Bank for that payment on demand in the currency in which such payment
was made. If the Borrower or any Guarantor pays any such taxes, penalties or
interest, it shall deliver official tax receipts evidencing that payment or
certified copies thereof to the Bank or Agent on whose account such withholding
was made (with a copy to the Agent if not the recipient of the original) on or
before the thirtieth day after payment. If any Bank or the Agent determines it
has received or been granted a credit against or relief or remission for, or
repayment of, any taxes paid or payable by it because of any taxes, penalties or
interest paid by the Borrower or any Guarantor and evidenced by such a tax
receipt, such Bank or Agent shall, to the extent it can do so without prejudice
to the retention of the amount of such credit, relief, remission or repayment,
pay to the Borrower or such Guarantor as applicable, such amount as such Bank or
Agent determines is attributable to such deduction or withholding and which will
leave such Bank or Agent (after such payment) in no better or worse position
than it would have been in if the Borrower had not been required to make such
deduction or withholding. Nothing in this Agreement shall interfere with the
right of each Bank and the Agent to arrange its tax affairs in whatever manner
it thinks fit nor oblige any Bank or the Agent to disclose any information
relating to its tax affairs or any computations in connection with such taxes.
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(b) U.S. Withholding Tax Exemptions. Each Bank that is not
a United States person (as such term is defined in Section 7701(a)(30) of the
Code) shall submit to the Borrower and the Agent on or before the earlier of the
date the initial Borrowing is made hereunder and thirty (30) days after the date
hereof, two duly completed and signed copies of either Form 1001 (relating to
such Bank and entitling it to a complete exemption from withholding under the
Code on all amounts to be received by such Bank, including fees, pursuant to the
Credit Documents and the Loans) or Form 4224 (relating to all amounts to be
received by such Bank, including fees, pursuant to the Credit Documents and the
Loans) of the United States Internal Revenue Service. Thereafter and from time
to time, each Bank shall submit to the Borrower and the Agent such additional
duly completed and signed copies of one or the other of such Forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may be (i) requested by the Borrower in a written
notice, directly or through the Agent, to such Bank and (ii) required under
then-current United States law or regulations to avoid or reduce United States
withholding taxes on payments in respect of all amounts to be received by such
Bank, including fees, pursuant to the Credit Documents or the Loans.
Notwithstanding any provision of this Agreement to the contrary, the Borrower
shall not be required to make any payment under Section 14.1(a) to any Bank that
fails to comply with this Section 14.1(b) unless such failure is due to one of
the reasons specified in Section 14.1(c).
(c) Inability of Bank to Submit Forms. If any Bank
determines, as a result of any change in applicable law, regulation or treaty,
or in any official application or interpretation thereof, in each case after the
date hereof, that it is unable to submit to the Borrower or Agent any form or
certificate that such Bank is obligated to submit pursuant to subsection (b) of
this Section 14.1 or that such Bank is required to withdraw or cancel any such
form or certificate previously submitted or any such form or certificate
otherwise becomes ineffective or inaccurate, such Bank shall promptly notify the
Borrower and Agent of such fact (and the Bank shall to that extent not be
obligated to provide any such form or certificate and will be entitled to
withdraw or cancel any affected form or certificate, as applicable).
(d) If any Bank requests any payment under this Section
13, such Bank shall use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Lending Office
if such designation would result in such Bank not requesting such payments.
14.2. No Waiver of Rights. No delay or failure on the part of
the Agent or any Bank or on the part of the holder or holders of any Note in the
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exercise of any power or right under any Credit Document shall operate as a
waiver thereof, nor as an acquiescence in any default, nor shall any single or
partial exercise thereof preclude any other or further exercise of any other
power or right, and the rights and remedies hereunder of the Agent, the Banks
and the holder or holders of any Notes are cumulative to, and not exclusive of,
any rights or remedies which any of them would otherwise have.
14.3. Non-Business Day. If any payment of principal or interest
on any Loan or of any other Obligation shall fall due on a day which is not a
Business Day, interest or fees (as applicable) at the rate, if any, such Loan or
other Obligation bears for the period prior to maturity shall continue to accrue
on such Obligation from the stated due date thereof to and including the next
succeeding Business Day, on which the same shall be payable.
14.4. Documentary Taxes. The Borrower agrees that it will pay
any documentary, stamp or similar taxes payable in respect to any Credit
Document, including interest and penalties, in the event any such taxes are
assessed, irrespective of when such assessment is made and whether or not any
credit is then in use or available hereunder.
14.5. Survival of Representations. All representations and
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and the other Credit Documents, and
shall continue in full force and effect with respect to the date as of which
they were made as long as any credit is in use or available hereunder.
14.6. Survival of Indemnities. All indemnities and all other
provisions relative to reimbursement to the Banks of amounts sufficient to
protect the yield of the Banks with respect to the Loans, including, but not
limited to, Section 3.6, Section 11.3 and Section 14.15 hereof, shall survive
the termination of this Agreement and the other Credit Documents and the payment
of the Loans and all other Obligations.
14.7. Sharing of Set-Off. Each Bank agrees with each other Bank
a party hereto that if such Bank shall receive and retain any payment, whether
by set-off or application of deposit balances or otherwise ("Set-off'), on any
of the Loans or Reimbursement Obligations in excess of its ratable share of
payments on all such obligations then outstanding to the Banks, then such Bank
shall purchase for cash, at face value but without recourse, ratably from each
of the other Banks such amount of the Loans or Reimbursement Obligations, or
participations therein, held by each such other Banks (or interest therein) as
shall be necessary to cause such Bank to share such excess payment ratably with
all the other Banks;
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provided, however, that if any such purchase is made by any Bank, and if such
excess payment or part thereof is thereafter recovered from such purchasing
Bank, the related purchases from the other Banks shall be rescinded ratably and
the purchase price restored as to the portion of such excess payment so
recovered, but without interest. For purposes of this Section 14.7, amounts owed
to or recovered by, the Agent in connection with Reimbursement Obligations in
which Banks have been required to fund their participation shall be treated as
amounts owed to or recovered by the Agent as a Bank hereunder.
14.8. Notices. Except as otherwise specified herein, all notices
under the Credit Documents shall be in writing (including telecopy or other
electronic communication) and shall be given to a party hereunder at its address
or telecopier number set forth below or such other address or telecopier number
as such party may hereafter specify by notice to the Agent and the Borrower,
given by courier, by United States certified or registered mail, or by other
telecommunication device capable of creating a written record of such notice and
its receipt. Notices under the Credit Documents to the Banks and the Agent shall
be addressed to their respective addresses, telecopier or telephone numbers set
forth on the signature pages hereof, and to the Borrower and the Guarantors to:
CLARCOR Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Each such notice, request or other communication shall be
effective (i) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified in this Section 14.8 or on the signature pages
hereof and a confirmation of receipt of such telecopy has been received by the
sender, (ii) if given by courier, when delivered, (iii) if given by mail, three
Business Days after such communication is deposited in the mail, registered with
return receipt requested, addressed as aforesaid or (iv) if given by any other
means, when delivered at the addresses specified in this Section 14.8 or on the
signature pages hereof; provided that any notice given pursuant to Section 1 or
2 hereof shall be effective only upon receipt.
14.9. Counterparts. This Agreement may be executed in any number
of counterpart signature pages, and by the different parties on different
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counterparts, each of which when executed shall be deemed an original but all
such counterparts taken together shall constitute one and the same instrument.
14.10. Successors and Assigns. This Agreement shall be binding
upon the Borrower and its successors and assigns, and shall inure to the benefit
of each of the Banks and the benefit of their respective successors and assigns,
including any subsequent holder of any Note. The Borrower may not assign any of
its rights or obligations under any Credit Document without the written consent
of all of the Banks.
14.11. Participants. Each Bank shall have the right at its own
cost to grant participations (to be evidenced by one or more agreements or
certificates of participation) in the Loans made and Reimbursement Obligations
and/or Revolving Credit Commitments (and, if relevant, Swing Line Commitment)
held by such Bank at any time and from time to time to one or more other Persons
which constitute financial institutions, insurance companies or other commercial
lenders; provided that no such participation shall relieve any Bank of any of
its obligations under this Agreement, and, provided, further that no such
participant shall have any rights under this Agreement except as provided in
this Section 14.11, and the Agent shall have no obligation or responsibility to
such participant. Any agreement pursuant to which such participation is granted
shall provide that the granting Bank shall retain the sole right and
responsibility to enforce the obligations of the Borrower and Guarantors under
this Agreement and the other Credit Documents including, without limitation, the
right to approve any amendment, modification or waiver of any provision of the
Credit Documents, except that such agreement may provide that such Bank will not
agree to any modification, amendment or waiver of the Credit Documents that
would reduce the amount of or postpone any fixed date for payment of any
Obligation in which such participant has an interest. Any party to which such a
participation has been granted shall have the benefits of Section 3.6 and
Section 11.3 hereof; provided no participant shall be entitled to receive more
under such Sections than the Bank granting such participation would have
received had the participation not been granted. The Borrower and each Guarantor
authorizes each Bank to disclose to any participant or prospective participant
under this Section 14.11 or to any assignee or prospective assignee under
Section 14.12 hereof any financial or other information pertaining to the
Borrower or any Guarantor if such Bank has obtained the written agreement of
such participant, prospective participant, assignee or prospective assignee to
be bound by the provisions of Section 14.18 hereof.
14.12. Assignment Agreements. Each Bank may, from time to time
upon at least five (5) Business Days' notice to the Agent, assign to financial
institutions, insurance companies or other commercial lenders or a Federal
Reserve
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Bank part of its rights and obligations under this Agreement (including without
limitation the indebtedness evidenced by the Notes then owned by such assigning
Bank, together with an equivalent proportion of its obligation to make loans and
advances and participate in Letters of Credit hereunder) pursuant to an
Assignment Agreement executed by the parties thereto, which shall specify in
each instance the portion of the indebtedness evidenced by the Notes which is to
be assigned to each such assignee lender and the portion of the Revolving Credit
Commitment (and, if relevant, Swing Line Commitment) of the assigning Bank to be
assumed by it; provided, however, that (i) except with respect to the Swing
Loans (which must be assigned in whole), each such assignment shall be of a
constant, and not a varying, percentage of the assigning Bank's rights and
obligations under this Agreement and the assignment shall cover the same
percentage of such Bank's Revolving Credit Commitment, Loans, Notes and
interests in Letters of Credit; (ii) unless the Agent and the Borrower otherwise
consent, the aggregate amount of the Revolving Credit Commitment, Loans, Notes
and interests in the Letters of Credit of the assigning Bank being assigned to
such assignee lender pursuant to each such assignment (determined as of the
effective date of the relevant Assignment Agreement) shall in no event be less
than $5,000,000 and shall be an integral multiple of $1,000,000; (iii) the Agent
and (except for an assignment made during the continuance of any Event of
Default) the Borrower must each consent, which consent shall not be unreasonably
withheld, to each such assignment to a party which was not an original signatory
of this Agreement or an Affiliate of such a signatory, and (iv) the assignee
lender must pay to the Agent a processing and recordation fee of $3,500 and any
out-of-pocket attorney's fees incurred by the Agent in connection with such
Assignment Agreement. Upon the execution of each Assignment Agreement by the
assigning Bank thereunder, the assignee lender thereunder, the Borrower and the
Agent and payment to such assigning Bank by such assignee lender of the purchase
price for the portion of the indebtedness of the Borrower being acquired by it,
(i) such assignee lender shall thereupon become a "Bank" for all purposes of
this Agreement with Revolving Credit Commitment (and, if relevant, shall be
deemed to be Firstar for purposes of the Swing Loans) in the amounts set forth
in such Assignment Agreement and with all the rights, powers and obligations
afforded a Bank hereunder, (ii) such assigning Bank shall have no further
liability for funding the portion of its Revolving Credit Commitment (and, if
relevant, Swing Line Commitment) assumed by such other Bank and (iii) the
address for notices to such assignee Bank shall be as specified in the
Assignment Agreement executed by it. Concurrently with the execution and
delivery of such Assignment Agreement, the Borrower shall execute and deliver
new Notes to the assignee Bank in the amount of its Revolving Credit Commitment
(and, if relevant, Swing Line Commitment) and new Notes to the assigning Bank in
the amounts of its Revolving Credit Commitment after giving effect to the
reduction occasioned
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by such assignment, such Notes to constitute "Notes" for all purposes of this
Agreement.
14.13. Amendments. Any provision of the Credit Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by (a) the Borrower, (b) the Required Banks, (c) if the rights or duties
of the Agent are affected thereby, the Agent; and (d) if the rights and duties
of the Issuing Bank are affected thereby, the Issuing Bank; provided that:
(i) no amendment or waiver pursuant to this Section
14.13 shall (A) increase any Revolving Credit Commitment or Swing Line
Commitment of any Bank without the consent of such Bank or (B) reduce the amount
of or postpone any fixed date for payment of any principal of or interest on any
Loan or Reimbursement Obligation or of any fee payable hereunder without the
consent of each Bank; and
(ii) no amendment or waiver pursuant to this Section
14.13 shall, unless signed by each Bank, change any provision of Section 8.1,
this Section 14.13, or the definition of Required Banks, or affect the number of
Banks required to take any action under the Credit Documents.
14.14. Headings. Section headings used in this Agreement are for
reference only and shall not affect the construction of this Agreement.
14.15. Legal Fees, Other Costs and Indemnification. The Borrower
agrees to pay all reasonable costs and expenses of the Agent in connection with
the preparation, negotiation, associated due diligence review, administration
and syndication of the Credit Documents, including without limitation, the
reasonable fees and disbursements of Reinhart, Boerner, Van Deuren, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇, s.c., counsel to the Agent, in connection with the preparation and
execution of the Credit Documents, and any amendment waiver or consent related
hereto, whether or not the transactions contemplated herein are consummated.
Notwithstanding anything in the foregoing to the contrary, the Borrower shall
not be liable, without its consent, for more than $35,000 of the legal fees
(exclusive of disbursements and separately charged items) of Reinhart, Boerner,
Van Deuren, ▇▇▇▇▇▇ & Rieselbach, s.c., counsel to the Agent, in connection with
the preparation, negotiation and execution of this Agreement and the other
Credit Documents delivered prior to the initial Credit Event. The Borrower
further agrees to indemnify each Bank, the Agent, and their respective
directors, officers and employees, against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all expenses of litigation or preparation therefor, whether or not the
indemnified Person is a party thereto) which any of
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them may incur or reasonably pay arising out of or relating to any Credit
Document or any of the transactions contemplated thereby or the direct or
indirect application or proposed application of the proceeds of any Loan or
Letter of Credit, other than those which arise from the gross negligence or
willful misconduct of the party claiming indemnification; provided, however,
that notwithstanding the foregoing, the Borrower shall not be obligated to
indemnify any such Person for any loss, claim, damage, penalty, judgment,
liability or expense arising solely from (i) a dispute between two or more Banks
or (ii) a claim by any Bank against the Borrower, or by the Borrower against any
Bank, that is found in a final, nonappealable judgment by a court of competent
jurisdiction in favor of the Borrower (it being understood that this clause (ii)
shall affect or limit any amount the Borrower may owe to any Bank as a result of
any such claim under the first sentence of this Section 14.15). The Borrower,
upon demand by the Agent or a Bank at any time, shall reimburse the Agent or
Bank for any reasonable legal or other expenses incurred in connection with
investigating or defending against any of the foregoing except if the same is
directly due to the gross negligence or willful misconduct of the party to be
indemnified as determined by a final, nonappealable judgment of a court of
competant jurisdiction.
14.16. Set Off. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default, each Bank and each subsequent
holder of any Note is hereby authorized by the Borrower and each Guarantor at
any time or from time to time, without notice to the Borrower, to the Guarantors
or to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, Indebtedness evidenced by certificates of
deposit, whether matured or unmatured, but not including trust accounts, and in
whatever currency denominated) and any other Indebtedness at any time held or
owing by that Bank or that subsequent holder to or for the credit or the account
of the Borrower or any Guarantor, whether or not matured, against and on account
of the obligations and liabilities of the Borrower or any Guarantor to that Bank
or that subsequent holder under the Credit Documents, including, but not limited
to, all claims of any nature or description arising out of or connected with the
Credit Documents, irrespective of whether or not (a) that Bank or that
subsequent holder shall have made any demand hereunder or (b) the principal of
or the interest on the Loans or Notes and other amounts due hereunder shall have
become due and payable pursuant to Section 10 and although said obligations and
liabilities, or any of them, may be contingent or unmatured.
14.17. Currency. Each reference in this Agreement to U.S.
Dollars or to an Alternative Currency (the "relevant currency") is of the
essence. To the
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fullest extent permitted by law, the obligation of the Borrower and each
Guarantor in respect of any amount due in the relevant currency under this
Agreement shall, notwithstanding any payment in any other currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the relevant currency that the Person entitled to receive such payment
may, in accordance with normal banking procedures, purchase with the sum paid in
such other currency (after any premium and costs of exchange) on the Business
Day immediately following the day on which such Person receives such payment. If
the amount of the relevant currency so purchased is less than the sum originally
due to such Person in the relevant currency, the Borrower or relevant Guarantor
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such Person against such loss, and if the amount of the specified
currency so purchased exceeds the sum of (a) the amount originally due to the
relevant Person in the specified currency plus (b) any amounts shared with other
Banks as a result of allocations of such excess as a disproportionate payment to
such Person under Section 14.7 hereof, such Person agrees to remit such excess
to the Borrower.
14.18. Confidentiality. Neither the Agent nor any Bank shall
disclose any Confidential Information to any Person without the prior written
consent of the Borrower other than (a) to the Agent's or such Bank's Affiliates
and their officers, directors, employees, agent and advisors, (b) to actual or
prospective assignees and participants and then only on a confidential basis,
(c) as required by any law, rule or regulation or judicial or legal process,
provided that solely with respect to this clause (c) the Agent or such Bank
shall notify the Borrower of the requirement or request that it disclose any
such Confidential Information prior to doing so unless such notification is
prohibited by any applicable law or judicial or legal process, (d) to the Agent
and/or other Banks and (e) as requested or required by any state, federal or
foreign authority or examiner regulating banks or banking.
14.19. Entire Agreement. The Credit Documents constitute the
entire understanding of the parties thereto with respect to the subject matter
thereof and any prior or contemporaneous agreements, whether written or oral,
with respect thereto are superseded thereby.
14.20. Governing Law. This Agreement and the other Credit
Documents, and the rights and duties of the parties hereto, shall be construed
and determined in accordance with the internal laws of the State of Wisconsin.
14.21. Submission to Jurisdiction: Waiver of Jury Trial. The
Borrower, each Guarantor, the Agent and each Bank hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Eastern
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District of Wisconsin and of any Wisconsin State court sitting in the City of
Milwaukee for purposes of all legal proceedings arising out of or relating to
this Agreement, the other Credit Documents or the transactions contemplated
hereby or thereby. The Borrower, each Guarantor, the Agent and each Bank
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum. THE BORROWER, EACH GUARANTOR,
THE AGENT AND EACH BANK HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED THEREBY.
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Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall be a contract between us for the purposes hereinabove set forth.
Dated as of September 9, 1999.
CLARCOR INC.
BY
---------------------------------------
Its
------------------------------------
Accepted and Agreed to by each of the undersigned as a Guarantor.
CLARCOR CONSUMER PRODUCTS, INC.
BY
---------------------------------------
Its
------------------------------------
▇.▇. ▇▇▇▇▇, INC.
BY
---------------------------------------
Its
------------------------------------
CLARCOR FILTRATION PRODUCTS, INC.
BY
---------------------------------------
Its
------------------------------------
AIRGUARD INDUSTRIES, INC.
BY
---------------------------------------
Its
------------------------------------
▇▇▇▇▇▇▇ FILTERS, INC.
BY
---------------------------------------
Its
------------------------------------
HASTINGS FILTERS, INC.
BY
---------------------------------------
Its
------------------------------------
Signature Page to Multicurrency Credit Agreement dated as of September 9, 1999
among CLARCOR Inc., the Banks party thereto, Firstar Bank Milwaukee, National
Association, as Agent, and Bank One, Illinois, N.A. and Amcore Bank, N.A., as
Co-Agents.
90
▇▇▇▇▇ FILTER, INC.
BY
---------------------------------------
Its
------------------------------------
UNITED AIR SPECIALISTS, INC.
BY
---------------------------------------
Its
------------------------------------
Signature Page to Multicurrency Credit Agreement dated as of September 9, 1999
among CLARCOR Inc., the Banks party thereto, Firstar Bank Milwaukee, National
Association, as Agent, and Bank One, Illinois, N.A. and Amcore Bank, N.A., as
Co-Agents.
91
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitments:
Address: FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION, in its
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ individual capacity as a Bank
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and as Agent
Attn: ▇▇▇▇ ▇. ▇▇▇▇
BY
------------------------------
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇ It
Telephone: (▇▇▇)▇▇▇-▇▇▇▇ ---------------------------
Revolving Credit Commitment
And Percentage: $40,000,000 21.6216217%
Swing Line Commitment: $5,000,000
Lending Offices:
Domestic Rate Loans:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇
Eurocurrency Loans:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇
Signature Page to Multicurrency Credit Agreement dated as of September 9, 1999
among CLARCOR Inc., the Banks party thereto, Firstar Bank Milwaukee, National
Association, as Agent, and Bank One, Illinois, N.A. and Amcore Bank, N.A., as
Co-Agents.
92
Address: BANK ONE, ILLINOIS, NA, in its
individual capacity as a Bank and as a
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ BY
--------------------------------
Its
----------------------------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment
And Percentage: $40,000,000 21.6216217%
Lending Offices:
Domestic Rate Loans:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Eurocurrency Loans:
Address: AMCORE BANK N.A., in its
individual capacity as a Bank and as a
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇
BY
------------------------------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ It
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------
Revolving Credit Commitment
And Percentage: $15,000,000 8.1081081%
Lending Offices:
Domestic Rate Loans:
Signature Page to Multicurrency Credit Agreement dated as of September 9, 1999
among CLARCOR Inc., the Banks party thereto, Firstar Bank Milwaukee, National
Association, as Agent, and Bank One, Illinois, N.A. and Amcore Bank, N.A., as
Co-Agents.
93
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
-------------
Eurocurrency Loans:
Address: THE NORTHERN TRUST COMPANY
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ BY
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ -------------------------------
Its
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ --------------------------
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment
And Percentage: $25,000,000 13.5135135%
Lending Offices:
Domestic Rate Loans:
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Eurocurrency Loans:
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Attn:
Address: U.S. BANK NATIONAL
ASSOCIATION
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ BY
Attn: ▇▇▇▇ ▇▇▇▇▇▇ -----------------------------
Its
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ --------------------------
Signature Page to Multicurrency Credit Agreement dated as of September 9, 1999
among CLARCOR Inc., the Banks party thereto, Firstar Bank Milwaukee, National
Association, as Agent, and Bank One, Illinois, N.A. and Amcore Bank, N.A., as
Co-Agents.
94
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment
And Percentage: $25,000,000 13.5135135%
Lending Offices:
Domestic Rate Loans:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Eurocurrency Loans:
Attn:
Address: SUNTRUST BANK
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Third Floor BY
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Attn: ▇▇▇▇▇▇▇ ▇. Pick Its
--------------------------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment
And Percentage: $20,000,000 10.8108108%
Lending Offices:
Domestic Rate Loans:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
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Signature Page to Multicurrency Credit Agreement dated as of September 9, 1999
among CLARCOR Inc., the Banks party thereto, Firstar Bank Milwaukee, National
Association, as Agent, and Bank One, Illinois, N.A. and Amcore Bank, N.A., as
Co-Agents.
95
Attn:
Eurocurrency Loans:
Attn:
Address: ASSOCIATED BANK, ILLINOIS, N.A.
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ BY
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ------------------------------
Its
--------------------------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment
And Percentage: $20,000,000 10.8108108%
Lending Offices:
Domestic Rate Loans:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Eurocurrency Loans:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Signature Page to Multicurrency Credit Agreement dated as of September 9, 1999
among CLARCOR Inc., the Banks party thereto, Firstar Bank Milwaukee, National
Association, as Agent, and Bank One, Illinois, N.A. and Amcore Bank, N.A., as
Co-Agents.