EXHIBIT 10.1
CREDIT AGREEMENT
Dated as of October 31, 1996
among
OVERHEAD DOOR CORPORATION
and
THE BANKS PARTIES HERETO
and
THE SAKURA BANK, LIMITED
as Agent Bank
TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINED TERMS
Section 1.01. Definitions.......................................... 1
Section 1.02. Interpretation....................................... 6
ARTICLE II
REVOLVING CREDIT FACILITY
Section 2.01. The Loans............................................ 6
Section 2.02. Manner of Borrowing.................................. 6
Section 2.03. Repayment of Principal............................... 7
Section 2.04. Payment of Interest.................................. 7
Section 2.05. Voluntary Prepayment................................. 7
Section 2.06. Funding Losses....................................... 7
Section 2.07. Notes................................................ 7
Section 2.08. Pro Rata Borrowings.................................. 8
ARTICLE III
CHANGE IN CIRCUMSTANCES
Section 3.01. Increased Costs...................................... 8
Section 3.02. Illegality........................................... 9
Section 3.03. Taxes................................................ 10
ARTICLE IV
FEES; PAYMENTS
Section 4.01. Commitment Fee....................................... 11
Section 4.02. Manner of Payments................................... 11
Section 4.03. Extension of Payments................................ 11
Section 4.04. Computation of Interest and Fees..................... 11
ARTICLE V
CONDITIONS PRECEDENT
Section 5.01. Initial Conditions................................... 12
Section 5.02. Continuing Conditions................................ 12
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Status............................................... 13
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Section Page
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Section 6.02. Subsidiaries......................................... 13
Section 6.03. Financial Condition.................................. 13
Section 6.04. Litigation........................................... 13
Section 6.05. No Violation......................................... 14
Section 6.06. Binding Agreement.................................... 14
Section 6.07. Authorizations....................................... 14
Section 6.08. Investment Company Act............................... 14
Section 6.09. Compliance with Laws................................. 14
Section 6.10. Compliance with ERISA................................ 14
Section 6.11. Taxes................................................ 15
ARTICLE VII
AFFIRMATIVE COVENANTS
Section 7.01. Payment of Taxes..................................... 15
Section 7.02. Preservation of Existence............................ 15
Section 7.03. Compliance with Laws................................. 15
Section 7.04. Keeping of Books and Records; Inspection............. 16
Section 7.05. Notice of Certain Events............................. 16
Section 7.06. Financial Statements and Other Information........... 16
Section 7.07. Use of Proceeds...................................... 17
ARTICLE VIII
NEGATIVE COVENANTS
Section 8.01. Margin Regulations................................... 17
Section 8.02. Liens................................................ 17
Section 8.03. Consolidations, Mergers, etc......................... 18
Section 8.04. Minimum Consolidated Shareholders' Equity............ 18
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01. Events of Default.................................... 18
Section 9.02. Default Remedies..................................... 20
Section 9.03. Setoff............................................... 21
Section 9.04. Default Interest..................................... 21
Section 9.05. Sharing.............................................. 21
Section 9.06. Funding Indemnities.................................. 22
ARTICLE X
THE AGENT BANK AND THE BANKS
Section 10.01. Appointment and Authorization........................ 22
Section 10.02. Same Rights as a Bank................................ 22
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Section Page
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Section 10.03. Actions by the Agent Bank............................ 22
Section 10.04. Consultation with Experts............................ 22
Section 10.05. Liability............................................ 23
Section 10.06. Indemnification...................................... 23
Section 10.07. Credit Decision...................................... 23
Section 10.08. Successor Agent Banks................................ 23
Section 10.09. Several Obligations; Remedies Independent............ 24
ARTICLE XI
GENERAL PROVISIONS
Section 11.01. Assignment........................................... 24
Section 11.02. Amendments and Waivers............................... 26
Section 11.03. Notices.............................................. 26
Section 11.04. Expenses; Indemnification............................ 27
Section 11.05. Cumulative Rights; No Waiver......................... 27
Section 11.06. Counterparts......................................... 27
Section 11.07. Severability......................................... 27
Section 11.08. Headings............................................. 27
Section 11.09. GOVERNING LAW........................................ 28
Section 11.10. Consent to Jurisdiction.............................. 28
Section 11.11. Waiver of Jury Trial................................. 28
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EXHIBITS
A Form of Revolving Credit Note
B Form of Notice of Borrowing
C Guaranty
D Secretary's Certificate of the Company
iv
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of October 31, 1996 among OVERHEAD DOOR
CORPORATION, a corporation organized under the laws of the State of Indiana (the
"Company"), the lenders now or hereafter parties hereto and THE SAKURA BANK,
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LIMITED, as agent for such lenders under this Credit Agreement (in such
capacity, the "Agent Bank").
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W I T N E S S E T H:
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WHEREAS, the Company has requested the lenders parties hereto to make
revolving credit loans to the Company to be used by the Company for its general
corporate purposes; and
WHEREAS, the lenders parties hereto are willing to make such revolving
credit loans on the terms and subject to the conditions contained herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINED TERMS
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Section 1.01. Definitions. Each term defined in this Section 1.01,
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when used in this Agreement, has the meaning indicated below:
"Agent Bank" shall have the meaning given to that term in the preamble
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hereof.
"Agreement" shall mean this Credit Agreement, as amended, modified or
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supplemented from time to time.
"Assignee" shall have the meaning set forth in Section 11.01 hereof.
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"Bank" shall mean each bank or financial institution listed on the
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signature pages hereof under the caption "Banks" and each other bank or
financial institution that has become a "Bank" hereunder as provided in Section
11.01 hereof.
"Benefit Arrangement" shall mean at any time an employee benefit plan
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within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Business Day" shall mean a day on which banks are not required or
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authorized by law or executive order to close in New York City.
"Commitment" shall mean, as to each Bank, the obligation of such Bank
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to make Loans pursuant to Section 2.01 hereof, in an aggregate principal amount
at any one time outstanding up to the amount set forth opposite such Bank's name
on the signature pages hereof under the caption "Commitment" or in an assignment
agreement executed and delivered by such Bank pursuant to Section 11.01 hereof.
"Company" shall have the meaning given to that term in the preamble
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hereof.
"Computation Period" shall mean (i) the period commencing on the date
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hereof and ending on December 31, 1996 and (ii) each successive three month
period thereafter ending on the last day of each March, June, September and
December, respectively, provided that the last Computation Period shall end on
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the Final Maturity Date.
"Consolidated Shareholders' Equity" shall mean at any date the
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consolidated shareholders' equity of the Company and its Subsidiaries,
determined as of such date in accordance with United States generally accepted
accounting principles.
"Default" shall mean any Event of Default or any event which, with the
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giving of notice or lapse of time, or both, would become an Event of Default.
"Dollars" or "$" shall mean the lawful currency of the United States
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of America and, in relation to any amount to be advanced or paid hereunder,
funds having same day or immediate value.
"ERISA" shall mean the Employee Retirement Income Security Act of
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1974, as amended, or any successor statute.
"ERISA Group" shall mean the Company and all members of a controlled
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group of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Company, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"Event of Default" shall mean each of the events set forth in Section
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9.01 hereof.
"Final Maturity Date" shall mean September 28, 2001.
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"Governmental Authority" shall mean any national, federal, state or
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local government (whether foreign or domestic), any political subdivision
thereof or any governmental, quasi-governmental, judicial, public or statutory
instrumentality,
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authority, body or entity, or any other regulatory bureau, authority, body or
entity, including the Federal Deposit Insurance Corporation, the Comptroller of
the Currency or the Board of Governors of the Federal Reserve System, any
central bank or any comparable authority or entity.
"Guarantor" shall mean Sanwa Shutter Corporation, a corporation
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organized under the laws of Japan, and its successors.
"Guaranty" shall mean the Letter of Guaranty from the Guarantor to the
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Agent Bank for the benefit of the Banks, substantially in the form of Exhibit C
hereto.
"Indebtedness" shall mean for any Person, without duplication, (i) all
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indebtedness or other obligations of such Person for borrowed money and all
obligations of such Person under leases which would, in accordance with United
States generally accepted accounting principles, be capitalized on the balance
sheet of such Person, (ii) all obligations of such Person to pay the deferred
purchase price of property or services (including indebtedness created under or
arising out of any conditional sale or other title retention agreement), (iii)
all obligations of such Person (contingent or otherwise) under reimbursement or
similar agreements with respect to the issuance of letters of credit, (iv) all
indebtedness or other obligations of such Person under or with respect to any
swap, cap, collar or other financial or commodity hedging arrangement, (v) all
indebtedness or other obligations of any other Person of the type specified in
clause (i), (ii), (iii) or (iv) above, the payment or collection of which such
Person has guaranteed (except by reason of endorsement for collection in the
ordinary course of business) or in respect of which such Person is liable,
contingently or otherwise, including, without limitation, liable by way of
agreement to purchase products or securities, to provide funds for payment, to
maintain working capital or other balance sheet conditions or otherwise to
assure a creditor against loss, and (vi) all indebtedness or other obligations
of any other Person of the type specified in clause (i), (ii), (iii), (iv) or
(v) above secured by (or for which the holder of such indebtedness has an
existing right contingent or otherwise, to be secured by) any Lien, upon or in
property (including, without limitation, accounts and contract rights) owned by
such Person, whether or not such Person has assumed or becomes liable for the
payment of such indebtedness or obligations.
"Interest Period" shall mean with respect to any Loan, the period
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commencing on the date such Loan is made and ending from one to 364 days
thereafter, as the Company may select as provided in Section 2.03 hereof.
Notwithstanding the foregoing: (x) the Company may not select an Interest Period
which would end after the Final Maturity Date; and (y) if any Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day.
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"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
---------------------
as amended, or any successor statute.
"Laws" shall mean all laws, rules, regulations, orders and decrees of
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any Governmental Authority applicable to the Company or any of its Subsidiaries.
"Lending Office" shall mean (i) with respect to any Bank, the office
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specified below its name on the signature page hereof or in the assignment
agreement pursuant to which such Bank became a party hereto or (ii) such other
office or offices as any Bank shall designate to be its lending office for
purposes of this Agreement.
"Lien" shall mean any security interest, mortgage, pledge,
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hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable law
of any jurisdiction).
"Loan" shall mean each loan made by a Bank to the Company pursuant to
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Article II hereof.
"Majority Banks" shall mean one or more Banks having Commitment(s)
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comprising at least 51% of the total Commitments or, if the Commitments have
been cancelled in full or have expired, owed at least 51% of the outstanding
Loans.
"Material Adverse Effect" shall mean any effect which would be
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material and adverse to the financial condition, assets, business or operations
of the Company and its Subsidiaries, considered as a whole, or which would
materially and adversely impair the ability of the Company to perform its
obligations under this Agreement or the Related Documents to which it is a
party.
"Multiemployer Plan" shall mean at any time an employee pension
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benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the ERISA
Group during such five year period.
"Notice of Borrowing" shall mean an irrevocable notice, substantially
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in the form of Exhibit B annexed hereto, given to a Bank by the Company pursuant
to Section 2.02 hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
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entity succeeding to any or all of its functions under ERISA.
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"Person" shall mean any corporation, natural person, joint venture,
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partnership, trust, unincorporated organization, government or any department or
agency of any government.
"Plan" shall mean at any time an employee pension benefit plan (other
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than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any Person
which was at such time a member of the ERISA Group.
"Related Documents" shall mean the Revolving Credit Notes and the
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Guaranty.
"Revolving Credit Note" shall mean a promissory note of the Company
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payable to the order of a Bank evidencing the Loans made by such Bank as
provided for herein, substantially in the form of Exhibit A hereto, and any
promissory note or notes of the Company issued in substitution thereof.
"Sanwa USA" shall mean Sanwa USA Inc., a corporation organized under
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the laws of the State of Delaware, and its successors.
"Sanwa USA Term Loan" shall mean the Term Loan Agreement dated as of
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the date hereof among Sanwa USA, the Banks and the Agent Bank.
"Significant Subsidiary" shall mean any corporation or other entity
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which would constitute a "significant subsidiary" (as such term is defined in
Regulation S-X of the Securities and Exchange Commission) of the Company.
"Subsidiary" shall mean any corporation or other entity of which
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securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Company.
"Taxes" shall mean any and all taxes, levies, imposts, duties or other
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charges of a similar nature.
"Term Federal Funds Rate" shall mean, with respect to any Loan, the
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rate per annum determined by the Bank making such Loan to be the rate at which
U.S. dollar deposits in immediately available funds are offered to such Bank by
prime banks in the domestic interbank market at or about 10:00 a.m. (New York
City time) on the day of, and for delivery on, the first day of the Interest
Period applicable to such Loan, for the number of days comprised therein and in
an amount equal to the amount of such Loan. Each Bank's
5
determination of the Term Federal Funds Rate applicable to any of its Loans
shall be conclusive, absent manifest error.
"Total Commitment" shall mean, at any time, an amount equal to the
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aggregate amount of the Commitments of all of the Banks at such time. The Total
Commitment is subject to reduction pursuant to Section 9.02 hereof.
"Unused Commitment" shall mean, with respect to any Bank, the amount,
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determined as of the end of each day, by which such Bank's Commitment exceeds
the sum of the aggregate principal amount of such Bank's outstanding Loans.
Section 1.02. Interpretation. All references in this Agreement to any
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other agreement or instrument shall include such other agreement or instrument
as the same may be amended, modified or supplemented from time to time. In the
computation of interest and fees payable from a specified date to a later
specified date, unless otherwise indicated the word "from" means "from and
including" and the words "to" and "until" both mean "to but not including".
ARTICLE II
REVOLVING CREDIT FACILITY
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Section 2.01. The Loans. On the terms and subject to the conditions
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of this Agreement, each Bank, for itself alone and not jointly with any other
Bank, shall make Loans to the Company, from time to time prior to the Final
Maturity Date, in an aggregate principal amount at any one time outstanding up
to but not exceeding the amount of its Commitment, provided that the aggregate
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principal amount of all outstanding Loans immediately after the making of each
Loan and giving effect to the application of the proceeds thereof will not
exceed the Total Commitment. Within such limit, the Company may borrow, prepay,
repay and reborrow pursuant to this Article II.
Section 2.02. Manner of Borrowing. The Company shall give each Bank
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from which it shall borrow a duly completed Notice of Borrowing (with a copy to
the Agent Bank) not later than 10:00 a.m. (New York City time) on the date of
such Loan. Each such Notice of Borrowing shall specify: (i) the amount of such
Loan, which shall be an amount of $10,000 or more; (ii) the date of such Loan,
which shall be a Business Day prior to the Final Maturity Date; and (iii) the
duration of the Interest Period applicable to such Loan, which shall be a period
permitted by the definition of "Interest Period" in Section 1.01 hereof. The
relevant Bank shall give the Company telephonic notice, confirmed by facsimile
or other written notice, of the Term Federal Funds Rate applicable to the
relevant Loan before 12:00 noon (New York City time) on the relevant borrowing
date, which determination shall be conclusive, absent manifest error. Subject
to the conditions of this
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Agreement, the relevant Bank shall make such Loan by transferring the proceeds
thereof in Dollars to the account designated by the Company for such purpose not
later than 4:30 p.m. (New York time) on the relevant borrowing date.
Section 2.03. Repayment of Principal. The Company shall repay the
----------------------
principal amount of each Loan on the last day of the Interest Period applicable
thereto.
Section 2.04. Payment of Interest. The Company shall pay interest on
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the unpaid principal amount of each Loan from the date of such Loan to the date
on which such Loan is paid in full at a rate equal to the sum of Term Federal
Funds Rate for such Loan plus 0.35% per annum. Accrued interest on each Loan
shall be payable on the last day of the Interest Period applicable thereto.
Section 2.05. Voluntary Prepayment. The Company may prepay any Loan
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in whole or in part at any time, provided that (a) any partial prepayment of a
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Loan must be in a minimum amount of $100,000, (b) the Company shall give the
Bank which made such Loan not less than 7 Business Days' prior notice of each
prepayment (with a copy to the Agent Bank) and (c) each prepayment shall be
accompanied by the payment of accrued interest on the amount prepaid to the date
of prepayment and any additional amount owing under Section 2.06 hereof.
Section 2.06. Funding Losses. The Company will indemnify each Bank
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against, and on demand reimburse each Bank for, any loss, premium, penalty or
expense which such Bank may pay or incur (including, without limitation, any
loss or expense incurred by reason of the relending, depositing or other
employment of funds acquired by such Bank to fund any Loan) as a result of (a)
any prepayment or repayment of a Loan on a date prior to the last day of the
Interest Period applicable thereto, (b) any failure by the Company to borrow any
Loan on a date specified therefor in a Notice of Borrowing pursuant to Section
2.02 hereof, except to the extent such failure results from a default by such
Bank in making the requisite funds available to the Company hereunder or (c) any
failure by the Company to prepay any Loan on the date specified therefor in a
notice of prepayment delivered by the Company pursuant to Section 2.05 hereof.
Each Bank shall furnish the Company with a certificate setting forth the basis
for determining any additional amount to be paid to it hereunder, and such
certificate shall be conclusive, absent manifest error, as to the contents
thereof.
Section 2.07. Notes. The Loans by each Bank shall be evidenced by a
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single Revolving Credit Note payable to the order of such Bank. The amount of
each Loan, the Interest Period applicable thereto and each repayment or
prepayment of principal shall be endorsed by each Bank on the schedule annexed
to and constituting a part of such Bank's Revolving Credit Note, provided that
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the failure to make or any error in making any such endorsement on such schedule
shall not limit, extinguish or in any way modify the
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obligation of the Company to repay such Loan. Such endorsements shall be prima
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facie evidence of the aggregate unpaid principal amount of all Loans made by
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each Bank.
Section 2.08. Pro Rata Borrowings. The Company will allocate its
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requests for Loans (and any prepayments of outstanding Loans) among the Banks so
that the principal amount of Loans outstanding from each Bank from time to time
is, as nearly as practicable, equal to such Bank's pro rata share (based on its
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Commitment) of the aggregate principal amount of Loans outstanding from all of
the Banks. Not more than five Business Days after the end of each Computation
Period the Company will send to the Agent Bank and each Bank a report showing
the Loans outstanding from each Bank as of the last day of such Computation
Period, which report shall demonstrate the Company's compliance with this
Section 2.08.
ARTICLE III
CHANGE IN CIRCUMSTANCES
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Section 3.01. Increased Costs.
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(a) If, after the date of this Agreement, (i) the introduction of, or
any change in, any applicable law, rule or regulation or in the interpretation
or administration thereof by any Governmental Authority or (ii) compliance by
any Bank with any request, guideline, policy or directive of any Governmental
Authority issued after the date of this Agreement (whether or not having the
force of law) shall:
(A) subject any Bank to any tax, duty or other charge or shall
change the basis of taxation of payments to any Bank of any amount due
under this Agreement or any Revolving Credit Note (except for changes in
the tax on the overall net income of any Bank imposed by the jurisdiction
of its incorporation or the jurisdiction in which its Lending Office is
located);
(B) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets or liabilities of, deposits
with or for the account of, or commitments issued by, any Bank (including,
without limitation, any such requirement imposed by the Board of Governors
of the Federal Reserve System); or
(C) impose on any Bank or the money markets any other condition
affecting its Commitment, any Loan or its Revolving Credit Note;
and the result of any of the foregoing is to increase the cost to any Bank of
making or maintaining its Commitment or any Loan, or to reduce the amount of any
sum received or receivable by any Bank
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under this Agreement or under its Revolving Credit Note, then the Company shall
from time to time pay to such Bank within ten Business Days of its demand
therefor such additional amount or amounts as will compensate it for such
increased cost or reduction.
(b) If any Bank shall have determined that, after the date of this
Agreement, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, or compliance by any Bank
(or, without duplication, the bank holding company of which such Bank is a
subsidiary) with any request, guideline, policy or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, has or
would have the effect of reducing the rate of return on such Bank's or bank
holding company's capital as a consequence of any Loans or its obligations
hereunder to a level below that which such Bank or its bank holding company
could have achieved but for such adoption, change or compliance (taking into
consideration such Bank's or such bank holding company's policies with respect
to capital adequacy), then the Company shall from time to time pay to such Bank
within ten Business Days of its demand therefor such additional amount or
amounts as will compensate such Bank or its bank holding company for such
reduction.
(c) Each Bank will promptly give the Company notice (a copy of which
shall be sent to the Agent Bank) of the occurrence of any event of which it has
knowledge which will entitle it to compensation pursuant to this Section 3.01,
and will use reasonable efforts to mitigate the effect of any such event if, in
the sole opinion of such Bank, such efforts will avoid the need for, or reduce
the amount of, such compensation and will not be otherwise disadvantageous to it
or contrary to its internal policies, provided that the failure of such Bank so
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to notify the Company will not discharge the Company of its obligations under
this Section 3.01. Each Bank shall furnish the Company with a certificate
setting forth the basis for determining any additional amount or amounts to be
paid to it hereunder, and such certificate shall be conclusive, absent manifest
error, as to the contents thereof.
Section 3.02. Illegality. If, after the date of this Agreement, the
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introduction of, or any change in, any applicable law, rule or regulation or in
the interpretation or administration thereof by any Governmental Authority shall
make it unlawful for any Bank to make or maintain any Loan, then, provided no
Default shall have occurred and be continuing, such Bank shall give notice
thereof to the Company and the Agent Bank and commence good faith negotiations
with the Company to determine a substitute basis for determining a rate of
interest payable to such Bank which would cure such illegality hereunder. If
within 30 days of such notice to the Company, the Company and such Bank shall
not have agreed in writing to such a substitute basis, the Bank may declare such
Loan to be due and payable and the Company shall prepay such Loan in full on the
last day of the Interest Period applicable thereto
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unless such Loan is required by law to be sooner repaid, in which case the
Company shall repay such Loan on such earlier date, together with accrued
interest thereon and any additional amount owing under Section 2.06 hereof.
Each Bank will promptly notify the Company of any event of which such Bank has
knowledge which will entitle it to the provisions of this Section 3.02 and will
designate a different Lending Office if, in the sole opinion of such Bank, such
designation will avoid the need for such prepayment and will not be otherwise
disadvantageous to it or contrary to its internal policies.
Section 3.03. Taxes.
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(a) Each payment by the Company to any Bank under this Agreement or
any of the Related Documents shall be made free and clear of and without
deduction for any Taxes, other than any Taxes imposed on the overall net income
of any Bank by the jurisdiction of its incorporation or by the jurisdiction in
which its Lending Office is located (all such non-excluded Taxes being
hereinafter referred to as "Covered Taxes"). If the Company shall be required
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by law to deduct any Covered Taxes from or in respect of any such payment, then
(i) the sum payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) such Bank receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Company shall
make such deductions and (iii) the Company shall pay on a timely basis the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) The Company will indemnify each Bank for the full amount of
Covered Taxes required to be paid by, or imposed, levied or assessed against
such Bank. In addition, the Company shall pay to each Bank such amounts as may
be necessary to hold such Bank harmless on an after-tax basis from any Taxes
(including without limitation, income or franchise taxes) imposed by any
jurisdiction as a result of the receipt or accrual by such Bank of any payment
under this Section 3.03 (including any payment under this sentence). Any
indemnification pursuant to this Section 3.03(b) shall be made within 30 days
from the date such Bank makes written demand therefor. A certificate setting
forth any amount payable to such Bank under this Section 3.03 and the basis
therefor submitted by such Bank to the Company shall, absent manifest error, be
conclusive and binding.
(c) Within 60 days after the date of any payment of Covered Taxes made
under this Section 3.03 or the withholding of any Taxes excluded from
indemnification under subsection (a) the Company will furnish to the relevant
Bank the original or a certified copy of a receipt, accompanied by a certified
English translation if the receipt is not in English, evidencing payment
thereof, a statement signed by an officer responsible for the Company's
financial or accounting records setting forth the amount and identity of such
Taxes (specifying the particular provisions of
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law requiring such withholding), and all additional information and documents
that such Bank shall reasonably and in writing request to establish that full
and timely payment of such Covered Taxes or other Taxes has been made. The
Company will promptly notify each Bank of any reports or returns that such Bank
is required to file with respect to Covered Taxes.
(d) Without prejudice to the survival of any other agreement of the
Company hereunder, the agreements and obligations of the Company contained in
this Section 3.03 shall survive the prepayment or payment in full or in part of
the Loans and the interest thereon and the termination of this Agreement or any
Related Document.
ARTICLE IV
FEES; PAYMENTS
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Section 4.01. Commitment Fee. The Company shall pay to each Bank a
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commitment fee in respect of each Computation Period from the date hereof to the
Final Maturity Date on the daily average amount of such Bank's Unused Commitment
at a per annum rate equal to 0.125%. On or before the first Business Day after
each Computation Period, each Bank shall notify the Company of the amount of the
commitment fee to be paid to it hereunder in respect of such Computation Period,
and the Company shall pay such amount to such Bank on or before the fifth
Business Day after the last day of such Computation Period.
Section 4.02. Manner of Payments. Each payment required to be made by
------------------
the Company under this Agreement or the Related Documents shall be made by
transferring the amount thereof in Dollars to the relevant Bank not later than
4:30 p.m. (New York City time) on the date on which such payment shall become
due. Each such payment shall be made without set-off or counterclaim; provided
--------
that no payment by the Company to any Bank pursuant to this Section 4.02 shall
be deemed a waiver of any rights the Company may have against any Bank. Any
payment received after 4:30 p.m. (New York City time) on any Business Day shall
be deemed to have been received on the next following Business Day.
Section 4.03. Extension of Payments. If any payment under this
---------------------
Agreement or the Related Documents shall become due on a day which is not a
Business Day, then the due date thereof shall be extended to the next following
day which is a Business Day, and such extension shall be taken into account in
computing the amount of any interest or fees then due and payable hereunder.
Section 4.04. Computation of Interest and Fees. All interest on Loans
--------------------------------
and all fees payable under this Agreement and the Related Documents shall be
computed on the basis of a year of 360 days and the actual number of days
elapsed.
11
ARTICLE V
CONDITIONS PRECEDENT
--------------------
Section 5.01. Initial Conditions. As a condition precedent to each
------------------
Bank's obligation to make the initial Loan hereunder, the Agent Bank and each
Bank shall have received the following items in form and substance satisfactory
to it:
(a) Related Documents. A counterpart hereof and of each of the
-----------------
Related Documents, each duly executed by the Company and each of the other
respective parties thereto;
(b) Company Documents. (i) A Certificate from the Secretary of State
-----------------
of the State of Indiana certifying that the Company is in good standing under
the laws of such state; (ii) a certificate from the Secretary of the Company,
substantially in the form of Exhibit D hereto, certifying (A) as to the
incumbency and signatures of the officers of the Company authorized to execute
and deliver this Agreement and the Related Documents to which the Company is a
party and any certificate to be furnished pursuant thereto, (B) that attached
thereto are true and complete copies of the Articles of Incorporation and By-
laws of the Company and (C) that attached thereto is a true and complete copy of
the resolutions of the Board of Directors of the Company authorizing the
execution, delivery and performance of this Agreement and the Related Documents
to which the Company is a party and the transactions contemplated thereby,
together with a certification by another officer of the Company as to the
incumbency and signature of such Secretary; and (iii) a certificate from an
appropriate officer of the Company certifying that, to the best knowledge of
such officer, the representations and warranties contained in Article VI hereof
are true and complete and no Default has occurred and is continuing; and
(c) Additional Documents. Such other documents, certificates,
--------------------
financial or other information, or opinions as the Agent Bank or any Bank may
reasonably request.
Section 5.02. Continuing Conditions. As a condition precedent to each
---------------------
Bank's obligation to make any Loan hereunder, including the initial Loan, the
following conditions shall be satisfied on the date of such Loan:
(a) Representations True. The representations and warranties
--------------------
contained in Article VI hereof shall be true and correct with the same force and
effect as though made on and as of such date; and
(b) No Default. No Default shall have occurred and be continuing.
----------
12
On the date of each Loan, the Company shall be deemed to have
represented that all of the conditions to the making of such Loan have been
satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
The Company represents and warrants to the Agent Bank and each Bank
that:
Section 6.01. Status. The Company (a) is a duly organized and validly
------
existing corporation in good standing under the laws of the State of Indiana,
(b) is duly licensed or qualified to do business and in good standing in each
jurisdiction where the failure to be so licensed or qualified could have a
Material Adverse Effect, and (c) has all requisite power and authority to own
its properties and conduct its business as presently conducted and to execute
and deliver, and to perform its obligations under, this Agreement and the
Related Documents to which it is a party. All of the issued and outstanding
capital stock of the Company is owned beneficially and of record by Sanwa USA.
Section 6.02. Subsidiaries. Each Significant Subsidiary (a) is a duly
------------
organized and validly existing corporation in good standing under the laws of
the jurisdiction of its incorporation and (b) has all requisite power and
authority to own its properties and conduct its business as presently conducted.
Section 6.03. Financial Condition. The consolidated statement of
-------------------
financial condition of the Company as of December 31, 1995 and the related
consolidated statements of operations, cash flows and shareholders' equity for
the fiscal year then ended, reported on by Ernst & Young LLP and set forth in
the Company's 1995 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present in all material respects in conformity with United States
generally accepted accounting principles, the consolidated financial position of
the Company and its subsidiaries as of such date and its consolidated results of
operations and cash flows for such fiscal year. Since September 30, 1996 there
has been no development or event which has had a Material Adverse Effect.
Section 6.04. Litigation. There is no action, suit, proceeding or
----------
investigation at law or in equity by or before any court, governmental body,
agency, commission or other tribunal now pending or, to the best knowledge of
the Company after due inquiry, threatened against or affecting the Company of
any of its Subsidiaries or any property or rights of the Company of any of its
Subsidiaries (a) which questions or would question the validity of this
Agreement or any of the Related Documents to which the Company is a party or (b)
as to which there is a likelihood of an adverse
13
determination and which if adversely determined will have a Material Adverse
Effect.
Section 6.05. No Violation. The execution, delivery and performance
------------
of this Agreement and the Related Documents to which the Company is a party will
not (a) violate any existing law, rule or regulation applicable to the Company
or any provision of its Articles of Incorporation or By-laws, (b) conflict with,
result in a breach of, or constitute a default under, any terms or provisions of
any indenture, mortgage or other agreement or instrument to which the Company is
a party or by which it or any of its assets is bound, or any license, judgment,
order or decree of any government, governmental body or court having
jurisdiction over the Company or any of its activities or properties, or (c)
result in, or require the creation or imposition of, any Lien upon or with
respect to any properties now or hereafter owned by the Company.
Section 6.06. Binding Agreement. The execution, delivery and
-----------------
performance of this Agreement and the Related Documents to which the Company is
a party have been duly authorized by all necessary action of the Company. This
Agreement and the Related Documents to which the Company is a party have been
duly executed and delivered by the Company and constitute legal, valid and
binding obligations of the Company, enforceable according to their respective
terms, subject, as to enforceability, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law).
Section 6.07. Authorizations. No authorizations, consents, approvals,
--------------
registrations, filings, exemptions and licenses with or from any Governmental
Authority are necessary for the borrowings hereunder, for the execution and
delivery of this Agreement or any Related Document to which the Company is a
party, or for the performance by the Company of its obligations hereunder or
thereunder.
Section 6.08. Investment Company Act. The Company is not an
----------------------
"investment company," as defined in the Investment Company Act of 1940, as
amended.
Section 6.09. Compliance with Laws. The Company and each of its
--------------------
Subsidiaries are in compliance with the requirements of all applicable Laws,
except those the non-compliance with which would not, singly or in the
aggregate, have a Material Adverse Effect.
Section 6.10. Compliance with ERISA. Each member of the ERISA Group
---------------------
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue
14
Code with respect to each Plan. No member of the ERISA Group has (i) sought a
waiver of the minimum funding standard under Section 412 of the Internal Revenue
Code in respect of any Plan, (ii) failed to make any contribution or payment to
any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made
any amendment to any Plan or Benefit Arrangement, which has resulted or could
reasonably be expected to result in the imposition of a Lien or the posting of a
bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any material liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
Section 6.11. Taxes. The Company and its Subsidiaries have filed all
-----
United States Federal income tax returns and all other material tax returns
which are required to be filed by them (with the exception of eight state tax
returns for which the paid in taxes exceed the estimated tax liability) and have
paid all taxes thereby shown to be owing or owing pursuant to any assessment
received by the Company or any Subsidiary, except any such taxes or charges
which are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with United States generally
accepted accounting principles shall have been set aside on the books of the
Company.
ARTICLE VII
AFFIRMATIVE COVENANTS
---------------------
The Company hereby covenants and agrees that until the Loans and all
other amounts owing hereunder have been paid in full and the Commitments shall
have expired:
Section 7.01. Payment of Taxes. The Company will pay and discharge
----------------
all material taxes, assessments and governmental charges or levies imposed upon
it or upon its income or properties, prior to the date on which penalties attach
thereto, except to the extent that any such tax, assessment, charge or levy is
being contested in good faith by appropriate proceedings and for which adequate
reserves have been established by the Company or such Subsidiary.
Section 7.02. Preservation of Existence. The Company will, and will
-------------------------
cause each Subsidiary to, preserve and maintain its existence, rights,
franchises and privileges, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
Section 7.03. Compliance with Laws. The Company will, and will cause
--------------------
each Subsidiary to, comply with the requirements of all applicable Laws, non-
compliance with which could, singly or in the aggregate, have a Material Adverse
Effect.
15
Section 7.04. Keeping of Books and Records; Inspection. The Company
----------------------------------------
will, and will cause each Significant Subsidiary to, maintain a system of
accounting in accordance with United States generally accepted accounting
principles on a basis consistently applied. Upon reasonable notice from the
Agent Bank, the Company will, and will cause each Subsidiary to, permit the
Banks or their representatives to have access to and examine and inspect the
books and records and properties of the Company and its Subsidiaries and confer
with the Company's and its Subsidiaries' officers, agents, employees and
accountants at any reasonable time and from time to time.
Section 7.05. Notice of Certain Events. The Company will promptly and
------------------------
in any event not more than three Business Days after obtaining knowledge thereof
notify the Agent Bank of (a) the occurrence of any Default or (b) the
commencement of any litigation or governmental proceeding affecting the Company
or any of its Subsidiaries which, if adversely determined, would have a Material
Adverse Effect.
Section 7.06. Financial Statements and Other Information. The Company
------------------------------------------
will deliver to the Agent Bank (with sufficient copies for each Bank):
(a) as soon as available and in any event within 90 days after the end
of each of its fiscal years, an audited consolidated balance sheet of the
Company and its Subsidiaries at the end of such year and audited consolidated
statements of income, stockholders' equity and cash flows of the Company and its
Subsidiaries for such year, setting forth in each fiscal year in comparative
form the figures for the previous year, reported on without a "going concern" or
like qualification or exception, or qualification arising out of the scope of
the audit by internationally recognized independent certified public
accountants; and
(b) simultaneously with the delivery of each set of financial
statements referred to in clause (a) of this Section 7.06, a certificate of the
chief financial officer of the Company stating, to the best knowledge of such
officer after reasonable inquiry, whether there exists on the date of such
certificate any Default, and if any Default exists, specifying the nature and
period of existence thereof and the action the Company is taking and proposes to
take with respect thereto;
(c) as soon as available and in any event not later than 45 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Company, a copy of the unaudited consolidated balance sheet of the Company and
its Subsidiaries as at the end of each such fiscal quarter and the related
unaudited consolidated statements of income, stockholders' equity and cash flows
of the Company and its Subsidiaries for such quarter and the portion of the
fiscal year through such date, all in reasonable
16
detail and setting forth in comparative form the figures for the corresponding
period of the previous year; and
(d) from time to time, such additional information regarding the
financial condition, business or prospects of the Company or its Subsidiaries as
the Agent Bank or any Bank may reasonably request.
Section 7.07. Use of Proceeds. The Company will use the proceeds of
---------------
the Loans for its general corporate purposes.
ARTICLE VIII
NEGATIVE COVENANTS
------------------
The Company hereby covenants and agrees that, until the Loans and all
other amounts owing hereunder have been paid in full and the Commitment shall
have expired:
Section 8.01. Margin Regulations. The Company will not use the
------------------
proceeds of any Loans, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any "margin stock"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve Board.
Section 8.02. Liens. The Company will not, and will not permit any
-----
Subsidiary to, create, incur, assume or permit to exist any Lien upon any asset
now owned or hereafter acquired by it, other than:
(a) Liens existing on the date of this Agreement securing Indebtedness
outstanding on the date of this Agreement;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such
event;
(c) any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset concurrently with or
--------
within 90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Company or a
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Company or a Subsidiary and not created in contemplation of such
acquisition;
17
(f) and Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Indebtedness is not
--------
increased and is not secured by any additional assets;
(g) Liens arising in the ordinary course of its business which (i) do
not secure Indebtedness and (ii) do not in the aggregate materially detract
from the value of its assets or materially impair the use thereof in the
operation of its business; and
(h) Liens not otherwise permitted by the foregoing clauses of this
Section securing Indebtedness in an aggregate principal amount at any time
outstanding not to exceed 5% of Consolidated Shareholders' Equity.
Section 8.03. Consolidations, Mergers, etc. The Company will not (a)
-----------------------------
merge with or into, or consolidate with, any other Person or (b) sell all or
substantially all of its assets, whether in one transaction or a series of
transactions, provided that the Company may merge with or into, or consolidate
--------
with, another Person if (i) the Company has given the Agent Bank prior notice
thereof, (ii) either (A) the Company is the entity surviving such merger or (B)
the entity surviving such merger or consolidation shall enter into an agreement
satisfactory to the Agent Bank assuming the Company's obligations under this
Agreement and the Related Documents to which it is a party and (iii) immediately
after giving effect to such merger or consolidation, no Default shall have
occurred and be continuing.
Section 8.04. Minimum Consolidated Shareholders' Equity. The Company
-----------------------------------------
will not permit Consolidated Shareholders' Equity, determined as of the end of
each fiscal year of the Company, to be less than $100,000,000.
ARTICLE IX
EVENTS OF DEFAULT
-----------------
Section 9.01. Events of Default. If any one or more of the following
-----------------
events (an "Event of Default") shall occur and be continuing, the Banks shall be
----------------
entitled to exercise the remedies set forth in Section 9.02 hereof.
(a) The Company shall default in the payment of (i) any principal when
due or (ii) any interest or other amount owing under this Agreement or any
Related Document to which it is a party within three Business Days of the date
when due; or
(b) The Company shall fail to perform or observe any covenant or
obligation contained in Article VIII hereof; or
18
(c) The Company shall fail to perform or observe any other covenant or
obligation of the Company pursuant to this Agreement or any Related Document to
which it is a party, and such failure shall continue for 30 days after notice
from the Agent Bank; or
(d) Any representation or warranty made or deemed made by the Company
in this Agreement, any Related Document to which it is a party, or any
certificate, financial statement or other document delivered pursuant hereto or
thereto shall be false in any material respect on any date as of which made or
deemed made or shall be breached; or
(e) An "event of default" under and as defined in the Sanwa USA Term
Loan shall occur; or the Company, any Subsidiary or the Guarantor shall default
in the payment when due of any principal or premium (if any) or interest on any
Indebtedness having an aggregate principal amount in excess of $1,000,000 (or
the equivalent thereof in any other currency) and such default shall continue
beyond any applicable grace period, or, any Subsidiary or the Guarantor shall
fail to observe or perform any term or provision of any instrument pursuant to
which any such Indebtedness was created or of any mortgage, indenture or other
agreement relating thereto if the effect of such failure is to cause or permit
the acceleration or mandatory prepayment or repurchase of such Indebtedness; or
(f) The entry of a decree or order for relief in respect of the
Company, any Significant Subsidiary or the Guarantor by a court having
jurisdiction in the premises, or the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of the
Company, any Significant Subsidiary or the Guarantor or of any substantial part
of its property, or ordering the winding up or liquidation of its affairs, in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal, state or foreign bankruptcy,
insolvency or other similar law; or the commencement against the Company, any
Significant Subsidiary or the Guarantor of an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal, state or foreign bankruptcy, insolvency or other similar law, and the
continuance of any such case unstayed and in effect for a period of 60
consecutive days; or
(g) The commencement by the Company, any Significant Subsidiary or the
Guarantor of a voluntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal, state or foreign
bankruptcy, insolvency or other similar law, or the consent by it to the entry
of an order for relief in an involuntary case under any such law or the consent
by it to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of the
Company, any Significant Subsidiary or the Guarantor or of any substantial part
of its property, or the making
19
by it of a general assignment for the benefit of creditors, or the failure of
the Company, any Significant Subsidiary or the Guarantor generally to pay its
debts as such debts become due or the taking of any corporate action in
furtherance of any of the foregoing; or
(h) any member of the ERISA Group shall fail to pay when due an amount
or amounts which it shall have become liable to pay under Title IV of ERISA; or
notice of intent to terminate a Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed to administer any
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation; provided that, in any such case, the Majority Banks shall
--------
have determined that such occurrence has a Material Adverse Effect; or
(i) A final judgment or order for the payment of money not covered by
insurance shall be rendered against the Company, any Subsidiary or the Guarantor
in an aggregate amount in excess of $1,000,000 (or the equivalent thereof in any
other currency) and the same shall remain undischarged for a period of 60 days
during which execution of such judgment or order shall not be effectively
stayed; or
(j) The Guaranty shall cease to be in full force and effect or the
Guarantor shall so assert; or
(k) The Guarantor shall fail to perform or observe any covenant or
obligation contained in the Guaranty; or
(l) Any representation or warranty made or deemed made by the
Guarantor in the Guaranty or any certificate, financial statement or other
document delivered pursuant hereto or thereto shall not be true and complete in
any material respect on any date as of which made or deemed made or shall be
breached; or
(m) The Guarantor shall cease to own, directly or indirectly, 100% of
the issued and outstanding capital stock of the Company.
Section 9.02. Default Remedies. If any Event of Default shall occur
----------------
and be continuing, then and in every such event, and at any time thereafter
during the continuance of such Event of Default, any Bank may, by notice to the
Company, the Agent Bank and every other Bank, take one or more of the following
actions: (a) reduce its Commitment to zero and (b) declare its Loans to be
forthwith due and payable, whereupon its Loans shall become
20
forthwith due and payable both as to principal and interest together with all
other amounts payable by the Company to such Bank under this Agreement or any
other Related Document to which it is a party, without presentment, demand,
protest or any other notice of any kind, all of which are expressly waived;
provided, however, that if the Event of Default set forth in paragraph (f) or
-------- -------
(g) of Section 9.01 hereof shall occur with respect to the Company, then without
any notice to the Company or any other act by the Agent Bank or any other
Person, the Loans, interest thereon and all such other amounts shall become
forthwith due and payable, all without presentment, demand, protest or notice of
any kind, all of which are expressly waived.
Section 9.03. Setoff. Each Bank is hereby authorized at any time and
------
from time to time, upon the occurrence and during the continuance of any Event
of Default, without prior notice to the Company, to the fullest extent permitted
by law, to set off and apply any and all balances, credits, deposits (general or
special, time or demand, provisional or final), accounts or monies at any time
held and other indebtedness at any time owing by any Bank at any of its branches
or affiliates to or for the account of the Company against any and all of the
amounts owing by the Company under this Agreement or the Related Documents to
which it is a party, whether or not any Bank shall have made any demand
hereunder or thereunder. The rights of each Bank under this Section 9.03 are in
addition to, and do not derogate from or impair, other rights and remedies
(including, without limitation, other rights of setoff) which any of them may
have.
Section 9.04. Default Interest. Notwithstanding any other provision
----------------
of this Agreement to the contrary, if the Company shall fail to pay any amount
owing to any Bank under this Agreement or any Related Document to which the
Company is a party when due (whether at stated due date, on acceleration or
otherwise), then the Company will pay interest to such Bank payable on demand,
on the amount in default from the date such payment became due until payment in
full at a rate equal to the rate which is 2% per annum over the higher of (a)
the rate then payable pursuant to Section 2.03 hereof and (b) the U.S. Dollar
prime rate of the Agent Bank from time to time in effect.
Section 9.05. Sharing. Each Bank agrees that if it shall, by
-------
exercising any right of setoff or counterclaim or otherwise (except as expressly
contemplated by this Agreement), receive payment from any Person of a proportion
of principal and interest then due and payable with respect to its Loan which is
greater than the proportion received by any other Bank in respect of the
aggregate amount of principal and interest then due and payable with respect to
the Loan of such other Bank, the Bank receiving such proportionately greater
payment shall purchase participations in the Loans held by such other Banks and
such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Loans then due and
payable shall be shared by the Banks holding such Loans
21
then due and payable pro rata. The Company agrees, to the fullest extent it may
--- ----
effectively do so under applicable law, that any holder of a participation in a
Loan, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of setoff or counterclaim and other collection rights with
respect to such participation as fully as if such holder of a participation were
a direct creditor of the Company in the amount of such participation.
Section 9.06. Funding Indemnities. The Company will indemnify each
-------------------
Bank against, and on demand reimburse each Bank for, any loss, premium, penalty
or expense which such Bank may pay or incur (including, without limitation, any
loss or expense incurred by reason of the relending, depositing or other
employment of funds acquired by such Bank to fund any Loan) as a result of any
acceleration of any Loan pursuant to Section 9.02 hereof. Each Bank shall
furnish the Company with a certificate setting forth the basis for determining
any additional amount to be paid to it hereunder, and such certificate shall be
conclusive, absent manifest error, as to the contents thereof.
ARTICLE X
THE AGENT BANK AND THE BANKS
----------------------------
Section 10.01. Appointment and Authorization. Each Bank appoints the
-----------------------------
Agent Bank to act as its agent in connection herewith and authorizes the Agent
Bank to take such action as agent on its behalf and to exercise such powers
under this Agreement and the Related Documents as are delegated to the Agent
Bank by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
Section 10.02. Same Rights as a Bank. The Agent Bank in its capacity
---------------------
as a Bank shall have the same rights and powers under this Agreement as any
other Bank and may exercise or refrain from exercising the same as though it
were not the Agent Bank, and the Agent Bank and its affiliates may accept
deposits from, lend money to, and generally engage in any kind of business with
the Company or the Guarantor or any of their affiliates as if it were not the
Agent Bank hereunder.
Section 10.03. Actions by the Agent Bank. The obligations of the
-------------------------
Agent Bank hereunder are only those expressly set forth herein. Without
limiting the generality of the foregoing, the Agent Bank shall not be required
to take any action with respect to any Default except as expressly provided
herein.
Section 10.04. Consultation with Experts. The Agent Bank may consult
-------------------------
with legal counsel (who may be counsel for the Company or the Guarantor),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or
22
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
Section 10.05. Liability. Neither the Agent Bank nor any of its
---------
directors, officers, agents, or employees shall be liable to any Bank for any
action taken or not taken by it in connection herewith or with any Related
Document (i) with the consent or at the request of the Majority Banks or (ii) in
the absence of its own gross negligence or willful misconduct. Neither the
Agent Bank 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 by the Company, the Guarantor or any
other Person in connection with this Agreement, any Related Document or the
Loans hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Company, the Guarantor or any other Person herein or in any
Related Document; (iii) the satisfaction of any condition specified in Article
V; or (iv) the validity, effectiveness or genuineness of this Agreement, any
Related Document or any other instrument or writing furnished in connection
herewith. The Agent Bank shall not incur any liability by acting in reliance
upon any notice, consent, certificate, statement or other writing (which may be
a telecopier or similar writing) believed by it to be genuine or to be sent by
the proper party or parties. The Agent Bank shall not have a fiduciary duty to
any Bank.
Section 10.06. Indemnification. Each Bank shall, ratably in
---------------
accordance with its Commitment (or, if the Commitments have been cancelled in
full or have expired, ratably in accordance with its share of the outstanding
Loans), indemnify the Agent Bank (to the extent not reimbursed by or on behalf
of the Company) on demand against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from the Agent Bank's own gross negligence or willful misconduct) that the Agent
Bank may suffer or incur in connection with this Agreement or any Related
Document or any action taken or omitted by the Agent Bank hereunder or
thereunder. The obligations of each Bank set forth in this Section 10.06 shall
survive any termination of this Agreement.
Section 10.07. Credit Decision. Each Bank acknowledges that it has,
---------------
independently and without reliance upon the Agent Bank or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent
Bank or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action permitted to be taken or omitted under this
Agreement or the Related Documents.
Section 10.08. Successor Agent Banks. The Agent Bank may resign at
---------------------
any time by giving 30 days' prior written notice thereof to the Banks and the
Company, provided that no such resignation
--------
23
shall take effect until a successor agent has been appointed and agreed to act
as such under this Agreement. Upon any such resignation, the Majority Banks
shall appoint a successor to the Agent Bank. The decision of the Majority Banks
shall be binding upon all of the Banks. After any retiring Agent Bank's
resignation hereunder as Agent Bank, the provisions of this Article X shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent Bank.
Section 10.09. Several Obligations; Remedies Independent. The Banks'
-----------------------------------------
obligations under this Agreement are several and not joint. The failure of any
Bank to make any Loan to be made by it on the date specified therefor shall not
relieve any other Bank of its obligation to make any Loan on such date, but no
Bank shall be responsible for the failure of any other Bank to make any Loan.
The amounts payable by the Company at any time hereunder and under a Revolving
Credit Note to each Bank shall be a separate and independent debt and each Bank
shall be entitled to protect and enforce its rights arising out of this
Agreement and its Revolving Credit Note, and it shall not be necessary for any
other Bank or the Agent Bank to consent to, or be joined as an additional party
in, any proceedings for such purposes.
ARTICLE XI
GENERAL PROVISIONS
------------------
Section 11.01. Assignment. (a) The Company may not assign its rights
----------
or obligations under this Agreement without the prior written consent of the
other parties hereto, which consent may be given or withheld in the sole and
absolute discretion of each such party. Any Bank may at any time assign its
rights and obligations under this Agreement to any Bank or to one or more
additional banks or financial institutions (each an "Assignee"), in the ordinary
--------
course of its commercial banking business and in accordance with applicable law,
and with the prior consent of the Agent Bank and the Company, which consent
shall not be unreasonably withheld or delayed. Any such assignment shall be
made pursuant to an assignment agreement between such Assignee and such
transferor Bank. Such assignment agreement shall be executed by such Assignee
and such transferor Bank and shall be delivered to the Agent Bank and the
Company for acceptance before the proposed effective date of such assignment.
Upon such execution and delivery and acceptance, from and after the effective
date specified in such assignment agreement, (x) the Assignee thereunder shall
be a party hereto and, to the extent of the portion of the Commitment of the
transferor Bank purchased by it, have the rights and obligations of a Bank
hereunder and (y) the transferor Bank thereunder shall, to the extent of the
portion of its Commitment so sold, be released from its obligations under this
Agreement (and in the case of an assignment agreement covering all or the
remaining portion of a transferor Bank's rights and obligations under this
Agreement, such transferor Bank shall cease to be a party hereto). On or prior
to
24
the effective date specified in such assignment agreement, the Company, at its
own expense, shall execute and deliver to such transferor Bank in exchange for
the Revolving Credit Note previously delivered to such transferor Bank a new
Revolving Credit Note to the order of such Assignee in an amount based upon the
amount of the Commitment acquired by it pursuant to such assignment agreement
and a new Revolving Credit Note to the order of the transferor Bank in an amount
based upon the amount of the Commitment retained by it hereunder. Each such new
Revolving Credit Note shall be dated the effective date of such assignment and
shall otherwise be in the form of the Revolving Credit Note replaced thereby.
Subject to the foregoing, all provisions contained in this Agreement or any
document or agreement referred to herein or relating hereto shall inure to the
benefit of, and shall be binding upon, the Company, the Agent Bank, the Banks
and their respective successors and permitted assigns.
(b) Any Bank may from time to time upon prior written notice to the
Agent Bank change the Lending Office of such Bank at which any Loan is made or
carried; provided that if at the time of any change from one Lending Office to
--------
another the effect thereof would be to increase any amount payable by the
Company under this Agreement then such change shall not be made without the
prior written consent of the Company.
(c) Any Bank may grant one or more financial institutions (each, a
"Participant"), on a participating basis but not as a party to this Agreement, a
------------
participation or participations in all or any part of such Bank's rights and
benefits under this Agreement and the Related Documents (a "Participation"). In
-------------
the event of any such grant by a Bank, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Company or the Agent Bank
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement. Any agreement pursuant
to which any Bank may grant such a participating interest shall provide that
such Bank shall retain the sole right and responsibility to enforce the
obligations of the Company hereunder including, without limitation, the right to
approve any amendment, modification or waiver of any provision of this Agreement
or the Related Documents; provided that such participation agreement may provide
--------
that such Bank will not agree to any modification, amendment or waiver of this
Agreement or the Related Documents described in clauses (i) through (vi),
inclusive, of the proviso contained in Section 11.02 without the consent of the
Participant. The Company agrees that each Participant shall, to the extent of
its Participation, be entitled to the benefits of Sections 3.01 and 3.03 hereof
as if such Participant were a Bank; provided, however, that the amount of such
-------- -------
benefit shall be limited to the amount in respect of the interest sold to which
the seller of such Participation would have been entitled had it not sold such
interest.
25
(d) Notwithstanding anything to the contrary contained in this
Agreement, any Bank may pledge, hypothecate or otherwise grant a security
interest in all or any part of its rights hereunder or under its Revolving
Credit Note to any Federal Reserve Bank; provided that such pledge,
--------
hypothecation or grant shall not relieve such Bank of any of its obligations
under this Agreement.
Section 11.02. Amendments and Waivers. Any provision of this
----------------------
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Company and the Majority Banks (and, if the
rights, obligations or duties of the Agent Bank are affected thereby, by the
Agent Bank); provided that no such amendment or waiver (a) shall, unless signed
--------
by all the Banks affected thereby, (i) increase the amount of any Commitment of
any Bank or subject any Bank to any additional obligation, (ii) reduce the
principal of or rate of interest on any Loan or the rate at which any fees are
payable hereunder or (iii) postpone the date fixed for any payment of principal
or interest on any Loan or any fees hereunder or for any termination of any
Commitment or (b) shall, unless signed by all of the Banks, (i) change the
percentage of the aggregate Loans or Commitments which shall be required for the
Banks or any of them to take any action under this Section 11.02 or any other
provision of this Agreement, (ii) amend this Section 11.02 or (iii) release or
terminate the Guaranty.
Section 11.03. Notices. All notices, requests, demands and other
-------
communications to any party hereunder shall be in writing (including telecopier
or similar writing) and shall be given to such party 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 other parties listed below.
If to the Agent Bank: The Sakura Bank, Limited, as Agent Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
If to a Bank: At the address set forth on the signature pages
hereof or in the assignment agreement pursuant
to which such Bank became a party hereto
If to the Company: Overhead Door Corporation
0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Each such notice, request or other communication shall be effective when
actually received.
26
Section 11.04. Expenses; Indemnification. The Company agrees to pay
-------------------------
all out-of-pocket costs and expenses, including the reasonable fees and
disbursements of counsel, incurred by the Agent Bank in connection with (i) the
preparation, execution and delivery of this Agreement and the Related Documents
and (ii) any amendments and waivers hereof or thereof. The Company also agrees
to pay all out-of-pocket costs and expenses, including the fees and
disbursements of counsel, incurred by the Agent Bank and each Bank in connection
with the enforcement of this Agreement or any of the Related Documents and the
collection of any amounts owing hereunder or thereunder. In addition, the
Company will indemnify the Agent Bank and each Bank against, and on demand
reimburse the Agent Bank and each Bank for, any and all liabilities,
obligations, losses, damages, penalties, stamp and other similar taxes, actions,
judgments, costs, expenses or disbursements of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against the Agent
Bank or any Bank in any way relating to or arising out of this Agreement or the
Related Documents; provided that the Company shall not be liable for any of the
--------
foregoing to the extent they arise from the gross negligence or willful
misconduct of the Agent Bank or any Bank. Notwithstanding anything in this
Agreement to the contrary, the provisions of this Section 11.04 shall survive
the termination of this Agreement.
Section 11.05. Cumulative Rights; No Waiver. The rights, powers and
----------------------------
remedies of the Agent Bank and each Bank hereunder are cumulative and in
addition to all rights, powers and remedies provided under any and all
agreements between the Company and the Agent Bank and each Bank relating hereto,
at law, in equity or otherwise. Neither any delay nor any omission by the Agent
Bank or any Bank to exercise any right, power or remedy shall operate as a
waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise thereof or any exercise of any other right, power or
remedy.
Section 11.06. Counterparts. This Agreement may be executed in any
------------
number of counterparts and by different parties hereto on separate counterparts,
each of which counterparts, when executed and delivered, shall be deemed an
original and all of which counterparts, taken together, shall constitute one and
the same Agreement.
Section 11.07. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.08. Headings. The Article and Section headings in this
--------
Agreement are for convenience of reference only and shall not affect the
interpretation hereof.
27
SECTION 11.09. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
-------------
AND INTERPRETED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, UNITED STATES OF AMERICA.
Section 11.10. Consent to Jurisdiction. The Company irrevocably
-----------------------
submits to the non-exclusive jurisdiction of the Federal courts of the United
States for the Southern District of New York and any court of the State of New
York located in New York City in any action, suit or proceeding against the
Company relating in any way to this Agreement or any of the Related Documents
and agrees that service of process in any such action, suit or proceeding may be
effected by mailing a copy thereof by registered or certified mail, or a form of
mail substantially equivalent thereto, addressed to it at its address as
provided for notices hereunder. Nothing herein shall affect the right of the
Agent Bank or any Bank to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against the Company in any
other jurisdiction. Each party agrees that a final judgment in any such suit,
action, or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
The Company hereby irrevocably waives, to the fullest extent permitted by
applicable law, any objection which it may now or hereafter have to the laying
of venue of any action or proceeding in the Federal Courts of the United States
for the Southern District of New York, or the Supreme Court of the State of New
York, County of New York and any claim that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
Section 11.11. Waiver of Jury Trial. The Company, the Agent Bank and
--------------------
the Banks each irrevocably waives any right it may now or hereafter have to a
trial by jury in respect of this Agreement.
28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
OVERHEAD DOOR CORPORATION
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xx. Xxxxx X. Xxxxxx
Title: Chairman and Chief
Executive Officer
THE SAKURA BANK, LIMITED
as Agent Bank
By: /s/ XXXXXXXXX XXXXX
-----------------------------------------
Name: Xx. Xxxxxxxxx Xxxxx
Title: Joint General Manager
COMMITMENT BANKS
---------- -----
$22,500,000 THE SAKURA BANK, LIMITED
By: /S/ XXXXXXXXX XXXXX
---------------------------------------------
Name: Xx. Xxxxxxxxx Xxxxx
Title: Joint General Manager
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
$8,000,000 THE TOKAI BANK, LIMITED
NEW YORK BRANCH
By: /S/ XXXXXXXXX XXXXXXXX
---------------------------------------------
Name: Xx. Xxxxxxxxx Xxxxxxxx
Title: Deputy General Manager
Address: 00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
$6,400,000 THE FUJI BANK, LIMITED
NEW YORK BRANCH
By: /S/ XXXXXXXX XXXXXXXX
---------------------------------------------
Name: Xx. Xxxxxxxx Xxxxxxxx
Title: Senior Vice President
Address: Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
$3,400,000 THE BANK OF TOKYO-MITSUBISHI, LIMITED
By: /S/ XXXXXX XXXXXXXXX
---------------------------------------------
Name: Xx. Xxxxxx Xxxxxxxxx
Title: Deputy General Manager
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
$1,700,000 THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By: /S/ XXXXX XXXXXXXX
---------------------------------------------
Name: Xx. Xxxxx Xxxxxxxx
Title: Senior Vice President
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
$1,700,000 THE SANWA BANK, LIMITED
NEW YORK BRANCH
By: /S/ TARO ANDO
---------------------------------------------
Name: Xx. Xxxx Xxxx
Title: Vice President
Address: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
$1,300,000 THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By: /S/ XXXXXXXXX XXXXXXXXX
---------------------------------------------
Name: Xx. Xxxxxxxxx Xxxxxxxxx
Title: Joint General Manager
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-------------
$45,000,000
