1
THIS LOAN AGREEMENT, dated as of November 18, 1997 (as amended or
modified from time to time, this "Agreement"), is by and among INVACARE
CORPORATION, an Ohio corporation (the "Company"), each of the Subsidiaries of
the Company designated in Section 1.1 as a Borrowing Subsidiary (individually, a
"Borrowing Subsidiary" and collectively, the "Borrowing Subsidiaries") (the
Company and the Borrowing Subsidiaries may each be referred to as a "Borrower"
and, collectively, as the "Borrowers"), Invacare Corporation, as treasury
manager for the Borrowers (the "Treasury Manager") and the Banks set forth on
the signature pages hereof (collectively, the "Banks" and individually, a
"Bank") and NBD BANK, a Michigan banking corporation, as agent for the Banks (in
such capacity, the "Agent") and KEYBANK NATIONAL ASSOCIATION, a national banking
association, as co-agent for the Banks (in such capacity, the "Co-Agent").
INTRODUCTION
A. The Borrowers, certain banks named therein and NBD Bank, as agent
for such banks, entered into a Loan Agreement dated as of December 20, 1994, as
amended and modified (the "1994 Loan Agreement"), in which such banks agreed to
make loans and other credit available to the Borrowers.
B. The Company, certain banks named therein, NBD Bank, as agent for
such banks, and KeyBank National Association, as co-agent for such banks,
entered into a Loan Agreement dated as of February 27, 1997, as amended and
modified (the "1997 Loan Agreement"), in which such banks agreed to make loans
and other credit available to the Company. The 1994 Loan Agreement and the 1997
Loan Agreement may be referred to collectively as the "Existing Loan
Agreements".
C. The parties hereto wish to continue the existing credit
relationships between them by consolidating, amending and restating the Existing
Loan Agreements rather than entering into a new and unrelated loan agreement.
D. Pursuant to the terms of this Agreement, the Borrowers desire to
obtain a revolving credit facility, including letters of credit, in the
aggregate principal amount of $360,000,000 (or the equivalent thereof in any
other Permitted Currency), in order to refinance certain existing indebtedness
under the Existing Loan Agreements and provide funds for their general corporate
purposes, and the Banks are willing to establish such a credit facility in favor
of the Borrowers on the terms and conditions herein set forth.
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree that the Existing Loan Agreements shall be
amended and restated as follows:
2
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. As used herein the following terms shall have the
following respective meanings:
"Acquisition" shall mean any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Advance" shall mean any Loan and any Letter of Credit Advance.
"Affiliate" when used with respect to any person shall mean any other
person which, directly or indirectly, controls or is controlled by or is under
common control with such person. For purposes of this definition "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), with respect to any person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such person, whether through the ownership of voting
securities or by contract or otherwise.
"Applicable Lending Office" shall mean, with respect to any Advance
made by any Bank or with respect to such Bank's Commitment, the office of such
Bank or of any Affiliate of such Bank located at the address specified as the
applicable lending office for such Bank set forth next to the name of such Bank
in the signature pages hereof or any other office or Affiliate of such Bank or
of any Affiliate of such Bank hereafter selected and notified to the Company and
the Agent by such Bank. Unless the Agent shall notify the Treasury Manager
otherwise, the Applicable Lending Office of the Agent shall be: (a) with respect
to all Advances denominated in Dollars, the principal office of the Agent in
Detroit, Michigan; (b) with respect to Advances denominated in CAD, the main
office of First Chicago NBD Bank, Canada, an Affiliate of the Agent, in Toronto,
Ontario; (c) with respect to all Advances denominated in AUD or NZD, the branch
of FNBC in Adelaide, Australia and (d) with respect to all other Advances, the
branch of FNBC in London, England.
"Applicable Margin" shall mean with respect to any Floating Rate Loan,
Interbank Offered Rate Loan, S/L/C fee and facility fee, as the case may be, the
applicable percentage per annum set forth in the table below as adjusted on the
date on which the financial statements and compliance certificate required
pursuant to Section 5.1(d) are delivered to the Banks and shall remain in effect
until the next change to be effected pursuant to this definition, provided,
that, if any financial statements referred to above are not delivered within the
time period specified in Section 5.1(d), then, until the financial statements
are delivered, the margins shall be as set forth in Tier IV of the Table.
3
Applicable Margin
Floating Interbank Offered S/L/C Fee Facility Fee
Funded Debt to Total Capitalization Rate Loan Rate Loan
------------------------------------------------- ------------ -------------------- -------------- --------------------
I. Less than 0.40:1.0 0.00% 0.185% 0.185% 0.09%
------------------------------------------------- ------------ -------------------- -------------- --------------------
------------------------------------------------- ------------ -------------------- -------------- --------------------
II. Greater than or equal to 40:1.0 but less 0.00% 0.23% 0.23% 0.12%
than 0.50:1.0
------------------------------------------------- ------------ -------------------- -------------- --------------------
------------------------------------------------- ------------ -------------------- -------------- --------------------
III. Greater than or equal to 0.50:1.0 0.00% 0.27% 0.27% 0.15%
but less than 0.575:1.0
------------------------------------------------- ------------ -------------------- -------------- --------------------
------------------------------------------------- ------------ -------------------- -------------- --------------------
IV. Greater than or equal to 0.575:1.0 0.00% 0.375% 0.375% 0.175%
------------------------------------------------- ------------ -------------------- -------------- --------------------
"Assignment and Acceptance" is defined in Section 8.6(d).
"AUD" shall mean the lawful currency of Australia.
"Australian Domestic Rate" shall mean, with respect to any Interbank
Interest Period, the per annum interest rate which is determined by the Agent by
taking the average bid rate quoted on the page numbered "BBSY" of the Reuters
Monitor System at or about 10:00 a.m. (Adelaide time) two (2) Business Days
prior to the first day of such Interbank Interest Period for not less than five
Australian trading banks (selected by the Agent in its sole discretion and
appearing on that page and so quoting) as being the mean buying rate for a Xxxx
having a tenor equal to such Interbank Interest Period, eliminating the highest
and the lowest mean rates and taking the average of the remaining mean rates,
provided that, if in respect of any Interbank Interest Period less than five
Australian trading banks have quoted rates on the page numbered "BBSY" of the
Reuters Monitor System, the rate shall be calculated as in the manner set forth
above by taking the rates otherwise quoted by five Australian trading banks upon
application by the Agent for a Xxxx of the same tenor.
"Bank Obligations" shall mean all indebtedness, obligations and
liabilities, whether now owing or hereafter arising, direct, indirect,
contingent or otherwise, of the Borrowers to the Agent or any Bank pursuant to
the Loan Documents.
"Bid-Option Auction" shall mean a solicitation of Bid-Option Quotes
setting forth Bid-Option Rates pursuant to Section 2.2(b).
"Bid-Option Interest Period" shall mean with respect to each Bid-Option
Borrowing, the period commencing on the date of such Borrowing and ending on the
date elected by the Treasury Manager in the applicable Bid-Option Quote Request,
which date shall be not more than 60 days after the date of such Bid-Option
Loan; provided that:
4
(i) any such Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business day; and
(ii) no such Interest Period that would end after the
Termination Date shall be permitted.
"Bid-Option Loan" shall mean a Loan which is made by a Bank pursuant to
a Bid-Option Auction.
"Bid-Option Note" shall mean a promissory note of the Borrowers in
substantially the form of Exhibit A hereto evidencing the obligation of the
Borrowers to repay Bid-Option Loans, as amended or modified from time to time
and together with any promissory note or notes issued in exchange or replacement
therefor.
"Bid-Option Percentage" shall mean, with respect to any Bank, the
percentage of the aggregate outstanding principal amount of the Bid-Option Loans
of all the Banks represented by the outstanding principal amount of the
Bid-Option Loans of such Bank.
"Bid-Option Quote" shall mean an offer by a Bank to make a Bid-Option
Loan in accordance with Section 2.2(d).
"Bid-Option Quote Request" shall have the meaning ascribed thereto in
Section 2.2(b).
"Bid-Option Rate" shall mean, with respect to any Bid-Option Loan, the
Bid-Option Rate, as defined in Section 2.2(d)(ii)(E), that is offered for such
Loan.
"Xxxx" shall mean a xxxx of exchange as defined in the Australian Bills
of Exchange Xxx 0000, as amended, or any successor act or code, but shall not
include a check.
"Borrowing" shall mean the aggregation of Advances made to any
Borrower, or continuations and conversions of such Advances, made pursuant to
Article II on a single date and for a single Interest Period. A Borrowing may be
referred to for purposes of this Agreement by reference to the type of Loan
comprising the relating Borrowing, e.g., a "Floating Rate Borrowing" if such
Loans are Floating Rate Loans, an "Interbank Offered Rate Borrowing" if such
Loans are Interbank Offered Rate Loans or a "Bid-Option Borrowing" if such Loans
are Bid-Option Loans.
"Borrowing Subsidiary" shall mean each of the Subsidiaries of the
Company set forth on Schedule 1.1(a) on the Effective Date together with any
other Subsidiary of the Company upon request by the Company to the Agent for
designation of such Subsidiary as a "Borrowing Subsidiary" hereunder so long as
(a) the Company guarantees the obligations of such new Borrowing Subsidiary
pursuant to the terms of the Guaranty, (b) such new Borrowing Subsidiary
delivers Notes executed in favor of each Bank and (c) the Company and such new
Borrowing Subsidiary execute an agreement in the form of Exhibit B hereto.
5
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which (a) the Agent is not open to the public for carrying on
substantially all of its banking functions or (b) if such reference relates to
the date for payment or purchase of any amount or deposit denominated in any
currency other than Dollars, banks are not generally open to the public for
carrying on substantially all of their banking functions in the principal
financial center of the country issuing such currency.
"CAD" shall mean the lawful currency of Canada.
"Canadian Domestic Rate" shall mean, with respect to any Interbank
Interest Period, the per annum interest rate which is equal to the Agent's cost
of funding an Advance in like amount and term as determined by the Agent at
10:00 a.m. on the date of such Advance (with calculation of such cost of funds
to be provided by the Agent in reasonable detail upon request by the Company to
the Agent).
"Capital Lease" of any person shall mean any lease which, in accordance
with generally accepted accounting principles, is capitalized on the books of
such person.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations thereunder.
"C/L/C" shall mean any commercial letter of credit issued by the Agent
hereunder.
"Commitment" shall mean, with respect to each Bank, the commitment of
each such Bank to make Revolving Credit Loans and to participate in Letter of
Credit Advances made through the Agent pursuant to Section 2.1, in amounts not
exceeding in aggregate principal amount outstanding at any time the commitment
amount for each such Bank set forth next to the name of each such Bank in the
signature pages hereof, or, as to any Bank becoming a party hereto after the
Effective Date, as set forth in the applicable Assignment and Acceptance in the
form of Exhibit L attached hereto or the applicable Assumption Agreement in the
form of Exhibit M attached hereto, as such amounts may be reduced or modified
from time to time pursuant to Section 2.4 or Section 8.6.
"Consolidated" or "consolidated" shall mean, when used with reference
to any financial term in this Agreement, the aggregate for the Company and its
consolidated Subsidiaries of the amounts signified by such term for all such
persons determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Consolidated Net Income" of any person shall mean, for any period, the
net income (after deduction for income and other taxes of such person determined
by reference to income or profits of such person) for such period (but without
reduction for any net loss incurred for any fiscal year during such period), all
as determined in accordance with generally accepted accounting principles.
6
"Contingent Liabilities" of any person shall mean, as of any date, all
obligations of such person or of others for which such person is contingently
liable, as obligor, guarantor, surety or in any other capacity, or in respect of
which obligations such person assures a creditor against loss or agrees to take
any action to prevent any such loss (other than endorsements of negotiable
instruments for collection in the ordinary course of business), including
without limitation all reimbursement obligations of such person in respect of
any letters of credit, surety bonds or similar obligations and all obligations
of such person to advance funds to, or to purchase assets, property or services
from, any other person in order to maintain the financial condition of such
other person.
"Default" shall mean any of the events or conditions described in
Section 6.1 which might become an Event of Default with notice or lapse of time
or both.
"Designated Borrower" shall mean, in relation to any Advance, the
Borrower nominated by the Treasury Manager as the Designated Borrower in the
request for such Advance.
"Dollar Equivalent" shall mean, with respect to each Loan, the sum in
Dollars resulting from the conversion of the amount of such Loan from the
Permitted Currency in which such Loan is denominated into Dollars at the most
favorable spot exchange rate determined by the Agent to be available to it for
the purchase of such Permitted Currency with Dollars at approximately 11:00 a.m.
local time of the Applicable Lending Office on the date any Loan is disbursed or
rolled over, or on such other date as a determination of the Dollar Equivalent
is made, which rate shall be substantially representative of the market rate.
"Dollars" and "$" shall mean the lawful money of the United States of
America.
"EBIT" shall mean, with respect to any person, for any period, the sum
of (a) operating net income or loss plus (b) all amounts deducted in determining
such operating net income or loss on account of (i) Interest Expense and (ii)
taxes based on or measured by income, all as determined in accordance with
generally accepted accounting principles, provided, that, for any calculation of
EBIT including the fiscal quarter ending September 30, 1997, there shall be
excluded from such calculation an amount equal to $61,100,000, representing: (a)
the effect of a one time charge taken by the Company as of September 30, 1997 in
connection with the exit by the Company and its Subsidiaries from certain lines
of business, as further detailed in information provided by the Company to the
Banks dated August 20, 1997 (the "August 20, 1997 Information") and detailed in
the Company's press release of October 21, 1997 and attached hereto as Exhibit M
(the "Press Release") and (b) the effect of the increase of reserves related to
the acceleration of certain strategic initiatives as further detailed in the
August 20, 1997 Information and the Press Release.
"Effective Date" shall mean the effective date specified in the final
paragraph of this Agreement.
"Environmental Laws" at any date shall mean all provisions of law,
statute, ordinances, rules, regulations, judgments, writs, injunctions, decrees,
orders, awards and standards which are applicable to any Borrower or any
Subsidiary and promulgated by the government of the United
7
States of America or any foreign government or by any state, province,
municipality or other political subdivision thereof or therein or by any court,
agency, instrumentality, regulatory authority or commission of any of the
foregoing concerning the protection of, or regulating the discharge of
substances into, the environment.
"Equivalent" of an amount of one currency (the "first currency")
denominated in another currency (the "second currency"), as of any date of
determination, shall mean the amount of the second currency which could be
purchased with the amount of the first currency at the most favorable spot
exchange rate quoted by the Agent at approximately 11:00 a.m. local time of the
Applicable Lending Office on such date, which rate shall be substantially
representative of the market rate.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations thereunder.
"ERISA Affiliate" shall mean, with respect to any person, any trade or
business (whether or not incorporated) which, together with such person or any
Subsidiary of such person, would be treated as a single employer under Section
414 of the Code.
"Event of Default" shall mean any of the events or conditions described
in Section 6.1.
"Federal Funds Rate" shall mean the per annum rate that is equal to the
per annum rate established and announced by the Agent from time to time as the
opening federal funds rate paid or payable by the Agent in its regional federal
funds market for overnight borrowings from other banks; as conclusively
determined by the Agent, absent manifest error, such rate to be rounded up, if
necessary, to the nearest whole multiple of one one-hundredth of one percent
(1/100 of 1%), which Federal Funds Rate shall change simultaneously with any
change in such announced rates.
"Fixed Rate Loan" shall mean any Fixed Rate Revolving Credit Loan or
Bid-Option Loan.
"Fixed Rate Revolving Credit Loan" means any Negotiated Rate Loan or
Interbank Offered Rate Loan.
"Floating Rate" shall mean the per annum rate equal to the greater of
(i) the Prime Rate in effect from time to time, or (ii) the sum of one-half of
one percent (1/2 of 1%) per annum plus the Federal Funds Rate in effect from
time to time; which Floating Rate shall change simultaneously with any change in
such Prime Rate or Federal Funds Rate, as the case may be.
"Floating Rate Loan" shall mean any Revolving Credit Loan which bears
interest at the Floating Rate.
"FNBC" shall mean The First National Bank of Chicago, an Affiliate of
the Agent.
8
"Funded Debt" of any person shall mean all Indebtedness that would, in
accordance with generally accepted accounting principles, constitute long term
debt, including (a) any Indebtedness with a maturity of longer than one year
after the creation of such Indebtedness, (b) any Indebtedness outstanding under
a revolving credit or similar agreement (and any renewal or extension thereof)
providing for borrowings which constitute long term debt; provided, however,
that all Indebtedness outstanding under this Agreement shall be deemed "Funded
Debt" at all times regardless of the proper classification under generally
accepted accounting principles, (c) any Capital Lease and (d) any guarantee with
respect to Funded Debt of another person to the extent the indebtedness or
obligations guaranteed are not included in the liabilities of the Company and
its Subsidiaries determined on a consolidated basis as of the date of the last
balance sheet required to be furnished to the Banks pursuant to Section
5.1(d)(ii) or 5.1(d)(iii) of this Agreement.
"generally accepted accounting principles" shall mean generally
accepted accounting principles in effect from time to time and applied on a
basis consistent with that reflected in the financial statements referred to in
Section 4.6, unless any change in generally accepted accounting principles from
those in effect on the Effective Date materially impacts the calculation of the
covenants set forth in Sections 5.2(a), (b) and (c).
"Guaranty" shall mean the guaranty entered into by the Company for the
benefit of the Agent and the Banks pursuant to this Agreement in the form of
Exhibit C hereto, as amended or modified from time to time.
"Indebtedness" shall mean (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures, notes or other similar instruments,
(iii) obligations to pay the deferred purchase price of property or services,
except for trade accounts payable arising in the ordinary course of business
that are not more than 90 days past due or as are reasonably being contested,
(iv) obligations as lessee under leases which have been in accordance with
generally accepted accounting principles, recorded as Capital Leases, (v)
obligations to purchase property or services if payment is required regardless
of whether such property is delivered or services are performed (generally
called "take or pay" contracts), but such obligations shall only be included in
an amount equal to the difference between the amount of the required payment and
the value to the Company or a Subsidiary of the Company of the goods or services
required to be delivered in connection with such required payment, (vi)
obligations in respect of currency or interest rate swaps or comparable
transactions valued at the maximum termination payment payable by the obligor,
other than any such contracts entered into as xxxxxx against Indebtedness of the
kinds referred to in clauses (i) and (ii) above; provided, that, for purposes of
Section 6.1(f) only, such contracts shall be included in "Indebtedness", (vii)
any obligation of any Person other than the Company or its Subsidiaries, if such
obligation is secured by any lien on the property of the Company or any of its
Subsidiaries, provided that, the amount of any such Indebtedness shall be
limited to the greater of the then book value or fair market value of the
property securing any such lien, (viii) guaranties in respect of indebtedness or
obligations of other Persons of the kinds referred to in clauses (i) through
(vii) above, to the extent the indebtedness or obligations guaranteed are not
included in the liabilities of the Company and its Subsidiaries determined on a
consolidated basis as of the date of the last balance sheet required to be
furnished to the Banks pursuant to Section 5.1(d)(ii) or 5.1(d)(iii) of this
Agreement, and (ix) liabilities in respect of unfunded vested benefits under
plans covered by Title IV of ERISA.
9
"Interbank Offered Rate" applicable to any Interbank Interest Period
means, the per annum rate that is equal to the sum of:
(a) the Applicable Margin, plus
(b) other than an Interbank Offered Rate Loan denominated in
CAD and described in clause (ii) below, an Interbank Offered Rate Loan
denominated in AUD and described in clause (iii) below or an Interbank Offered
Rate Loan denominated in NZD and described in clause (iv) below, (i) the rate
per annum obtained by dividing (A) the per annum rate of interest at which
deposits in the Permitted Currency in which such Interbank Offered Rate Loan is
to be denominated for such Interbank Interest Period and in an aggregate amount
comparable to the amount of the related Interbank Offered Rate Loan to be made
by the Agent in its capacity as a Bank hereunder are offered to the Agent by
other prime banks in the applicable interbank market selected by the Agent in
its reasonable discretion, at approximately 11:00 a.m. local time of the
Applicable Lending Office, two (2) Interbank Business Days prior to the first
day of such Interbank Interest Period by (B) an amount equal to one minus the
stated maximum rate (expressed as a decimal) of all reserve requirements
including, without limitation, any marginal, emergency, supplemental, special or
other reserves, that is specified on the first day of such Interbank Interest
Period by the Board of Governors of the Federal Reserve System (or any successor
agency thereto) or the relevant fiscal or monetary authority for determining the
maximum reserve requirement with respect to eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D of such Board)
maintained by a member bank of such System; all as conclusively determined by
the Agent, absent manifest error, such sum to be rounded up, if necessary, to
the nearest whole multiple of one one-hundredth of one percent (1/100 of 1%) or
(ii) in the case of any Interbank Offered Rate Loans denominated in CAD, the
Canadian Domestic Rate or (iii) in the case of any Interbank Offered Rate Loans
denominated in AUD, the Australian Domestic Rate or (iv) in the case of any
Interbank Offered Rate Loan denominated in NZD, the New Zealand Domestic Rate;
which Interbank Offered Rate shall change simultaneously with any change in the
Applicable Margin.
"Interbank Business Day" shall mean, with respect to any Interbank
Offered Rate Loan, a day which is both a Business Day and a day on which
dealings in Dollar deposits or the relevant Permitted Currency are carried out
in the relevant interbank market.
"Interbank Interest Period" shall mean, with respect to any Interbank
Offered Rate Loan, the period commencing on the day such Interbank Offered Rate
Loan is made or converted to an Interbank Offered Rate Loan and ending on the
date one, two, three or six months thereafter, as any Borrower may elect under
Section 2.6 or 2.9, and each subsequent period commencing on the last day of the
immediately preceding Interbank Interest Period and ending on the date one, two,
three or six months thereafter, as any Borrower may elect under Section 2.6 or
2.9, provided, however, that (a) any Interbank Interest Period which commences
on the last Interbank Business Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Interbank Business Day of the appropriate
subsequent calendar month, (b) each Interbank Interest Period which would
otherwise end on a day which is not an Interbank Business Day shall end on the
next succeeding Interbank Business Day or, if such next succeeding Interbank
Business Day falls in the next succeeding calendar month, on the next preceding
Interbank Business Day, and (c) no Interbank Interest Period which would end
after the Termination Date shall be permitted.
10
"Interbank Offered Rate Loan" shall mean any Loan which bears interest
at the Interbank Offered Rate.
"Interest Expense" of any person shall mean, for any period, all
interest paid or payable by such person during such period.
"Interest Coverage Ratio" shall mean, as of any date, the ratio of (a)
Consolidated EBIT as calculated for the four most recently ended consecutive
fiscal quarters of the Company to (b) Consolidated Interest Expense as
calculated for the same four fiscal quarters.
"Interest Payment Date" shall mean (a) with respect to any Negotiated
Rate Loan, Interbank Offered Rate Loan or Bid-Option Loan, the last day of each
Interest Period with respect to such Negotiated Rate Loan, Interbank Offered
Rate Loan or Bid-Option Loan and, in the case of any Interest Period exceeding
three months, those days that occur during such Interest Period at intervals of
three months after the first day of such Interest Period, and (b) in all other
cases, within five (5) days of receipt of an invoice containing a computation of
interest due, which invoice shall be prepared as of the last Business Day of
each March, June, September and December occurring after the date hereof,
commencing with the first such Business Day occurring after the date of this
Agreement.
"Interest Period" shall mean any Negotiated Interest Period,
Interbank Interest Period or Bid-Option Interest Period.
"Invitation for Bid-Option Quotes" shall mean an invitation for
Bid-Option Quotes in the form referred to in Section 2.2(c).
"Letter of Credit" shall mean an S/L/C or C/L/C issued by the Agent on
behalf of the Banks for the account of any Borrower under an application and
related documentation acceptable to the Agent requiring, among other things,
immediate reimbursement by such Borrower to the Agent in respect of all drafts
or other demand for payment honored thereunder and all expenses paid or incurred
by the Agent relative thereto.
"Letter of Credit Advance" shall mean any issuance of a Letter of
Credit under Section 2.6 made pursuant to Section 2.1 in which each Bank
acquires a pro rata risk participation (based on such Bank's Commitment)
pursuant to Section 2.6(e).
"Lien" shall mean any pledge, assignment, deed of trust, hypothecation,
mortgage, security interest, conditional sale or title retaining contract,
financing statement filing, or any other type of lien, charge, encumbrance or
other similar claim or right.
11
"Loan" shall mean any Revolving Credit Loan, any Swing Line Loan or any
Bid-Option Loan, as the context may require.
"Loan Documents" shall mean this Agreement, the Notes, the Letter of
Credit Documents, the Guaranty and any other agreement, instrument or document
executed at any time in connection with this Agreement.
"Margin Stock" shall mean Margin Stock within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System.
"Multiemployer Plan" shall mean any "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"NBD" shall mean NBD Bank, a Michigan banking corporation.
"Negotiated Interest Period" shall mean, with respect to any Negotiated
Rate Loan, the period commencing on the day such Negotiated Rate Loan is made or
converted to a Negotiated Rate Loan and ending on the date agreed upon among the
Borrowers and the Agent at the time such Negotiated Rate Loan is made, and each
subsequent period commencing on the last day of the immediately preceding
Negotiated Interest Period and ending on the date agreed upon among the
Borrowers and the Agent at the time such Negotiated Rate Loan is elected to be
continued as a Negotiated Rate Loan by the Borrowers under Section 2.9, provided
no Negotiated Interest Period which would end after the Termination Date shall
be permitted.
"Negotiated Rate" shall mean, with respect to any Negotiated Rate Loan,
the rate per annum agreed upon between the Borrowers and the Agent at the time
such Negotiated Rate Loan is made.
"Negotiated Rate Loan" shall mean any Loan which bears interest at the
Negotiated Rate.
"Net Worth" of any person shall mean, as of any date, the amount of any
preferred stock, paid in capital and similar equity accounts plus (or minus in
the case of a deficit) the capital surplus and retained earnings of such person
and the amount of any foreign currency translation adjustment account shown as a
capital account of such person minus treasury stock, provided, that, for any
calculation of Net Worth including the fiscal quarter ending September 30, 1997,
there shall be excluded from such calculation an amount equal to $38,900,000,
representing: (a) the effect of a one time charge, net of related tax effects,
if any, to be taken by the Company as of September 30, 1997 in connection with
the exit by the Company and its Subsidiaries from certain lines of business, as
further detailed in the August 20, 1997 Information and the Press Release and
(b) the effect of the increase of reserves related to the acceleration of
certain strategic initiatives as further detailed in the August 20, 1997
Information and the Press Release.
"NZD" shall mean the lawful currency of New Zealand.
12
"New Zealand Domestic Rate" shall mean, with respect to any Interbank
Interest Period, the per annum interest rate which is determined by the Agent by
taking the average bid rate quoted on the page numbered "BKBM" of the Reuters
Monitor System at or about 10:45 a.m. (Wellington time) two (2) Business Days
prior to the first day of such Interbank Interest Period for not less than five
New Zealand trading banks (selected by the Agent in its sole discretion and
appearing on that page and so quoting) as being the mean buying rate for a Xxxx
having a tenor equal to such Interbank Interest Period, eliminating the highest
and the lowest mean rates and taking the average of the remaining mean rates,
provided that, if in respect of any Interbank Interest Period less than five New
Zealand trading banks have quoted rates on the page numbered "BKBM" of the
Reuters Monitor System, the rate shall be calculated as in the manner set forth
above by taking the rates otherwise quoted by five New Zealand trading banks
upon application by the Agent for a Xxxx of the same tenor.
"Notes" shall mean the Revolving Credit Notes, the Bid-Option Notes and
the Swing Line Note; "Note" shall mean any Revolving Credit Note, any Bid-Option
Note or any Swing Line Note.
"Notice of Bid-Option Loan" shall have the meaning set forth in Section
2.2(f).
"Original Dollar Amount" shall mean, with respect to any Loan, the
Equivalent in Dollars of the original principal amount of such Loan specified in
the related request therefor given by any Borrower pursuant to Section 2.6 (a)
as such amount is reduced by payments of principal made in respect of such Loan
in Dollars (or the Dollar Equivalent thereof in the case of a payment made in a
Permitted Currency other than Dollars) and (b) as such amount is adjusted
pursuant to Section 3.1(d).
"Overdue Rate" shall mean (a) in respect of principal of Floating Rate
Loans, a rate per annum that is equal to the sum of two percent (2%) per annum
plus the Floating Rate, (b) in respect of principal of Fixed Rate Loans, a rate
per annum that is equal to the sum of two percent (2%) per annum plus the per
annum rate in effect thereon until the end of the then current Interest Period
for such Loan and, thereafter, a rate per annum that is equal to the sum of two
percent (2%) per annum plus, with respect to Loans denominated in Dollars, the
Floating Rate and, with respect to Loans denominated in any other Permitted
Currency, the relevant market rate for such Permitted Currency, and (c) in
respect of other amounts payable by any Borrower hereunder (other than
interest), a per annum rate that is equal to the sum of two percent (2%) per
annum plus the Floating Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Percentage of Total Commitments" shall mean, with respect to each
Bank, the amount set forth on the signature page next to the name of such Bank
or as subsequently set forth in any Assignment and Acceptance in the form of
Exhibit L attached hereto or Assumption Agreement in the form of Exhibit M
attached hereto.
13
"Permitted Currency" shall mean Dollars and any currency which is
freely transferable and convertible into Dollars and is issued by an OECD
country (as such designation shall change from time to time) or any other
currency approved by the Agent. A list of all OECD countries as of the Effective
Date is set forth in Schedule 1.1(b), which Schedule shall be updated, if
necessary, by the Agent on each anniversary of the Effective Date.
"Permitted Liens" shall mean Liens permitted by Section 5.2(d) hereof.
"Person" or "person" shall include an individual, a corporation, a
limited liability company, an association, a partnership, a trust or estate, a
joint stock company, an unincorporated organization, a joint venture, a trade or
business (whether or not incorporated), a government (foreign or domestic) and
any agency or political subdivision thereof, or any other entity.
"Plan" shall mean, with respect to any person, any pension plan (other
than a Multiemployer Plan) subject to Title IV of ERISA or to the minimum
funding standards of Section 412 of the Code which has been established or
maintained by such person, any Subsidiary of such person or any ERISA Affiliate,
or by any other person if such person, any Subsidiary of such person or any
ERISA Affiliate could have liability with respect to such pension plan.
"Prime Rate" shall mean the per annum rate announced by the Agent from
time to time as its "prime rate" (it being acknowledged that such announced rate
may not necessarily be the lowest rate charged by the Agent to any of its
customers), which Prime Rate shall change simultaneously with any change in such
announced rate.
"Prohibited Transaction" shall mean any non-exempt transaction
involving any Plan which is proscribed by Section 406 of ERISA or Section 4975
of the Code.
"Reportable Event" shall mean a reportable event as described in
Section 4043(b) of ERISA including those events as to which the thirty (30) day
notice period is waived under Part 2615 of the regulations promulgated by the
PBGC under ERISA.
"Required Banks" shall mean Banks in the aggregate having at least
sixty percent (60%) of the aggregate Commitments or, if the Commitments have
been terminated, Banks in the aggregate holding at least 60% of the aggregate
unpaid principal amount of the outstanding Advances.
"Restricted Margin Stock" means Margin Stock owned by the Company or
any of its Subsidiaries which represents not more than 25% of the aggregate
value (determined in accordance with Regulation U), on a consolidated basis, of
the property and assets of the Company and its Subsidiaries (other than any
Margin Stock) that is subject to the provisions of Section 5.2(d).
"Revolving Credit Advance" shall mean any Revolving Credit Loan,
any Letter of Credit Advance and any Swing Line Loan.
"Revolving Credit Loan" shall mean any Borrowing under Section 2.6 and
made pursuant to Section 2.1(a).
"Revolving Credit Note" shall mean any promissory note of the Borrowers
evidencing the Revolving Credit Loans in substantially the form annexed hereto
as Exhibit D, as amended or modified from time to time and together with any
promissory note or notes issued in exchange or replacement therefor.
14
"Short Term Borrowings" shall mean all Indebtedness for borrowed money
with an original maturity less than one year, other than the Advances.
"S/L/C" shall mean any standby letter of credit issued by the Agent
hereunder.
"Subsidiary" of any person shall mean any other person (whether now
existing or hereafter organized or acquired) in which (other than directors'
qualifying shares required by law) at least a majority of the securities or
other ownership interests of each class having ordinary voting power or
analogous right (other than securities or other ownership interests which have
such power or right only by reason of the happening of a contingency), at the
time as of which any determination is being made, are owned, beneficially and of
record, by such person or by one or more of the other Subsidiaries of such
person or by any combination thereof. Unless otherwise specified, reference to
"Subsidiary" shall mean a Subsidiary of the Company.
"Subordinated Debt" of any person shall mean, as of any date, that
Indebtedness of such person for borrowed money which is expressly subordinate
and junior in the right of payment to the Advances of such person to the Banks
in manner and by agreement satisfactory in form and substance to the Required
Banks, which consent and agreement may not be unreasonably withheld.
"Swing Line Facility" shall have the meaning specified in Section
2.1(b).
"Swing Line Loan" shall mean any borrowing under Section 2.6 and made
pursuant to Section 2.1(b).
"Swing Line Note" means the promissory note of the Company payable to
the order of the Agent, in substantially the form annexed hereto as Exhibit E,
as amended or modified from time to time and together with any promissory note
or notes issued in exchange or replacement therefor.
"Termination Date" shall mean the earlier to occur of (a) October 31,
2002, or such later date to which the Termination Date is extended pursuant to
Section 2.1(d), and (b) the date on which the Commitments shall be terminated
pursuant to Section 2.4 or 6.2.
"Total Capitalization" of any person shall mean the sum of Net Worth of
such person and Funded Debt of such person.
"Total Commitments" shall mean the aggregate amount of Commitments of
all Banks as set forth on the signature pages of this Agreement, as reduced or
modified from time to time pursuant to Section 2.4 or Section 8.6.
"Treasury Manager" includes any Affiliate of the Company appointed in
writing by the Company and the Borrowers as Treasury Manager under this
Agreement in the place of the person named above, and which is accepted by the
Agent for that purpose.
15
"Unfunded Benefit Liabilities" shall mean, with respect to any Plan as
of any date, the amount of the unfunded benefit liabilities determined in
accordance with Section 4001(a)(18) of ERISA.
"Unrestricted Margin Stock" means any Margin Stock owned by the Company
or any of its Subsidiaries which is not Restricted Margin Stock.
1.2 Other Definitions; Rules of Construction. As used herein, the terms
"Agent", "Banks", "Company", "Borrowing Subsidiary", "Borrowing Subsidiaries"
and "this Agreement" shall have the respective meanings ascribed thereto in the
introductory paragraph of this Agreement. Such terms, together with the other
terms defined in Section 1.1, shall include both the singular and the plural
forms thereof and shall be construed accordingly. All computations required
hereunder and all financial terms used herein shall be made or construed in
accordance with generally accepted accounting principles unless such principles
are inconsistent with the express requirements of this Agreement. Use of the
terms "herein", "hereof", and "hereunder" shall be deemed references to this
Agreement in its entirety and not to the Section or clause in which such term
appears. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided.
ARTICLE II
THE COMMITMENTS AND THE ADVANCES
2.1 Commitments of the Banks.
(a) Revolving Credit Advances. Each Bank agrees, for itself
only, subject to the terms and conditions of this Agreement, to make Revolving
Credit Loans to the Borrowers pursuant to Section 2.6 and to participate in
Letter of Credit Advances to the Borrowers pursuant to Section 2.6, from time to
time from and including the Effective Date to but excluding the Termination
Date, not to exceed in aggregate principal amount at any time outstanding the
amount determined pursuant to Section 2.1(c). On the date of each Advance, the
Dollar Equivalent on such date of all Advances outstanding, including the
Advances to be made or requested on such date, shall not exceed the aggregate
Commitments.
(b) Swing Line Loan.
(i) The Treasury Manager may request the Agent to make, and the Agent may,
in its sole discretion provided that the requirements of Section 2.8 are
complied with by the Borrowers at the time of such request, make, Swing Line
Loans to the Borrowers from time to time on any Business Day during the period
from the Effective Date until the Termination Date in an aggregate principal
amount not to exceed at any date the lesser of (A) $25,000,000 (the "Swing Line
Facility") and (B) the aggregate of the unused portions of the Commitments of
the Banks as of such date. Each Bank's Commitment shall be deemed utilized by an
amount equal to such Bank's pro rata share (based on such Bank's Commitment) of
each Swing Line Loan for purposes of determining the amount of Revolving Credit
Advances required to be made by such Bank. Swing Line Loans shall bear interest
at the Interbank Offered Rate or the Negotiated Rate, as the Borrowers may elect
hereunder. Within the limits of the Swing Line Facility, so long as the Agent,
in its sole discretion, elects to make Swing Line Loans, the Borrowers may
borrow and reborrow under this Section 2.1(b)(i).
16
(ii) The Agent may at any time in its sole and absolute discretion require
that any Swing Line Loan be refunded by a Revolving Credit Loan which is an
Interbank Offered Rate Loan in the same Permitted Currency in which such Swing
Line Loan is denominated, and upon notice thereof by the Agent to the Company
and the Banks, the Borrowers shall be deemed to have requested a Revolving
Credit Loan bearing interest at the Interbank Offered Rate with an Interbank
Interest Period of one month in an amount equal to the amount of any such Swing
Line Loan in the same Permitted Currency in which such Swing Line Loan is
denominated, and such Revolving Credit Loan shall be made to refund such Swing
Line Loan. Each Bank shall be absolutely and unconditionally obligated (except
as set forth in Section 2.1(b)(i)) to fund its pro rata share (based on such
Bank's Commitment) of such Revolving Credit Loan and such obligation shall not
be affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank or the Company
or any of its Subsidiaries may have against the Agent, any Borrower or any of
their respective Subsidiaries or anyone else for any reason whatsoever; (ii) the
occurrence or continuance of a Default or an Event of Default; (iii) any adverse
change in the condition (financial or otherwise) of any Borrower or any of its
Subsidiaries; (iv) any breach of this Agreement by any Borrower or any of their
respective Subsidiaries or any other Bank; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing
(including any Borrower's failure to satisfy any conditions contained in Article
II or any other provision of this Agreement).
(c) Limitation on Amount of Advances. Notwithstanding anything
in this Agreement to the contrary, the aggregate principal amount of the
Revolving Credit Advances made by any Bank at any time outstanding shall not
exceed the amount of its respective Commitment as of the date any such Advance
is made, provided, however, that the aggregate principal amount of Letter of
Credit Advances outstanding at any time shall not exceed $10,000,000.
(d) Extensions.
The Banks shall consider annual requests for the extension of the
Termination Date. The Company shall deliver a notice in writing to the Agent on
or before August 31 of each year in the event the Company chooses not to extend
such Termination Date. The Agent shall provide notice to each of the Banks
within five (5) Business Days after August 31 of each year as to whether the
Agent has or has not received such election by the Company not to extend such
Termination Date. Each of the Banks agrees to provide notice in writing to the
Agent of its agreement or refusal to extend such Termination Date on or before
October 31 of each year; provided, however, that the failure of any Bank to so
communicate its agreement or refusal shall be deemed to be such Bank's refusal
to so extend the Termination Date. The determination to extend or not to extend
the Termination Date shall be given or withheld by each Bank in its absolute and
sole discretion and any such agreement or refusal once given shall not be
revocable by any Bank prior to the then applicable Termination Date. No
extension of the Termination Date shall in any event be effective until the
Agent shall have received agreements to so extend from each of the Banks;
provided, however, that if any Bank refuses to extend the Termination Date, the
Agent shall provide notice to the Company and (i) the Commitment of each Bank
shall remain unchanged and the Total Commitment shall be modified accordingly or
(ii) additional lenders, as selected by the Company, shall be added to the
Agreement.
17
(e) Non-Pro Rata Loans.
(i) Each of the Banks shall deliver, on or before the Effective Date, a
list of all Permitted Currencies in which such Bank can fund Loans hereunder
free of withholding taxes, which list may be updated from time to time by any
Bank delivering an update of such list to the Agent. Notwithstanding anything
contained herein to the contrary, each of the Borrowers, the Banks and the Agent
agree that a Bank shall not fund its pro rata portion of any Revolving Credit
Loan if such Bank cannot make such Revolving Credit Loan free of withholding
taxes so long as one or more Banks is able to make such Revolving Credit Loan
free of withholding taxes. The non-pro rata funding of such Revolving Credit
Loans shall not affect the pro rata share of the aggregate amount of Advances
outstanding at any time.
(ii) Any funding Bank under Section 2.1(e)(i) above may at any time in its
sole discretion require that the non-funding Bank or Banks fund each of their
pro rata portion of the Revolving Credit Loans herein described. Each
non-funding Bank shall be absolutely and unconditionally obligated to fund its
pro rata share (based on such Bank's Commitment) of such Revolving Credit Loan
and such obligation shall not be affected by any circumstance, including,
without limitation (A) any set-off, counterclaim, recoupment, defense or other
right which such Bank or the Company or any of its Subsidiaries may have against
the Agent, any Borrower or any of their respective Subsidiaries or anyone else
for any reason whatsoever; (B) the occurrence or continuance of a Default or an
Event of Default; (C) any adverse change in the condition (financial or
otherwise) of any Borrower or any of its Subsidiaries; (D) any breach of this
Agreement by any Borrower or any of their respective Subsidiaries or any other
Bank; or (E) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing (including any Borrower's failure to satisfy
any conditions contained in Article II or any other provision of this
Agreement). Any Bank which requires payments from any Borrower pursuant to
Section 3.4 with respect to its making of any Loan described in this Section
2.1(e)(ii) may be replaced by the Company in its sole discretion.
2.2 Bid-Option Loans.
(a) The Bid-Option. From the Effective Date to but excluding the
Termination Date, the Treasury Manager may, as set forth in this Section 2.2,
request the Banks to make offers to make Bid-Option Loans to a Designated
Borrower. Each Bank may, but shall have no obligation to, make such offers and
such Designated Borrower may, but shall have no obligation to, accept any such
offers, in the manner set forth in this Section 2.2; furthermore, each Bank may
limit the aggregate amount of Bid-Option Loans when quoting rates for more than
one Bid-Option Interest Period in any Bid-Option Quote, provided that such
limitation shall not be less than the minimum amounts required hereunder for
Bid-Option Loans and the Designated Borrower may choose among the Bid-Option
Loans if such limitation is imposed; provided, that the aggregate outstanding
principal amount of Bid-Option Loans shall not at any time exceed the lower of
(i) the excess of (A) the aggregate amount of the Commitments over (B) the sum
of the aggregate outstanding principal amount of Revolving Credit Advances or
(ii) forty percent (40%) of the aggregate amount of the Commitments (as the same
may be reduced in accordance with the terms of this Agreement);
18
(b) Bid-Option Quote Request. When the Treasury Manager wishes to request
offers to make Bid-Option Loans under this Section 2.2, it shall transmit to the
Agent by telex or telecopy a Bid-Option Quote Request substantially in the form
of Exhibit F hereto so as to be received no later than 11:00 a.m. Detroit time
on the Business Day next preceding the date of the Loan proposed therein
specifying:
(i) the proposed date of the Bid-Option Loan, which shall be a Business
Day;
(ii) the Designated Borrower;
(iii) the aggregate amount of such Bid-Option Loan, which shall be a
minimum of $5,000,000 or a larger multiple of $1,000,000; and
(iv) the duration of the Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
A Borrower may request offers to make Bid-Option Loans for more than one
Bid-Option Interest Period in a single Bid-Option Quote Request.
(c) Invitation for Bid-Option Quotes. Promptly upon receipt of a Bid-Option
Quote Request, the Agent shall send to the Banks by telecopy (or telephone
promptly confirmed by telecopy) an Invitation for Bid-Option Quotes
substantially in the form of Exhibit G hereto, which shall constitute an
invitation by the Treasury Manager and the Designated Borrower to each Bank to
submit Bid-Option Quotes offering to make the Bid-Option Loans to which such
Bid-Option Quote Request relates in accordance with this Section 2.2.
(d) Submission and Contents of Bid-Option Quotes.
(i) Each Bank may submit a Bid-Option Quote containing an offer or offers
to make Bid-Option Loans in response to any Invitation for Bid-Option Quotes.
Each Bid-Option Quote must comply with the requirements of this subsection (d)
and must be submitted to the Agent by telecopy (or by telephone promptly
confirmed by telecopy) at its office referred to in Section 8.2 not later than
10:00 a.m. Detroit time on the proposed date of the Borrowing; provided that
Bid-Option Quotes submitted by the Agent (or any Affiliate of the Agent) in the
capacity of a Bank may be submitted, and may only be submitted, if the Agent or
such Affiliate notifies the Borrower of the terms of the offer or offers
contained therein not later than 9:45 a.m. Detroit time on the proposed date of
such Borrowing. Subject to Article VI, any Bid-Option Quote so made shall be
irrevocable except with the written consent of the Agent given on the
instructions of the Treasury Manager.
19
(ii) Each Bid-Option Quote shall be in substantially the form of Exhibit H
hereto, but may be submitted to the Agent by telephone with prompt confirmation
by delivery to the Agent of such written Bid-Option Quote, and shall in any case
specify:
(A) the proposed date of the Borrowing;
(B) the principal amount of the Bid-Option Loan for which each such offer
is being made, which principal amount (x) must be in a minimum of $5,000,000 or
a larger multiple of $1,000,000, and (y) may not exceed the principal amount of
the Bid-Option Loans for which offers were requested;
(C) the Interest Period(s) for which each such Bid-Option Rate is offered;
(D) the rate of interest per annum (rounded to the nearest 1/100 of 1%)
(the "Bid-Option Rate") offered for each such Bid-Option Loan;
(E) the identity of the quoting Bank.
(iii) Any Bid-Option Quote shall be disregarded if it:
(A) is not substantially in the form of Exhibit H hereto (or is not
submitted by telephone to the Agent with prompt written confirmation to follow)
or does not specify all of the information required by clause (ii) of this
subsection (d);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in the
applicable Invitation for Bid-Option Quotes; or
(D) arrives after the time set forth in Section 2.2(d)(i);
provided that a Bid-Option Quote shall not be disregarded pursuant to clause (B)
or (C) above solely because it contains an indication that an allocation that
might otherwise be made to it pursuant to Section 2.2(g) would be unacceptable.
The Agent shall notify the Treasury Manager of any disregarded Bid-Option Quote.
(e) Notice to Borrower. The Agent shall promptly notify the
Treasury Manager of the terms of any Bid-Option Quote submitted by a Bank that
is in accordance with Section 2.2(d). Any Bid-Option Quote not made in
accordance with Section 2.2(d) shall be disregarded by the Agent. The Agent's
notice to the Treasury Manager shall specify (i) the aggregate principal amount
of Bid-Option Loans for which offers have been received for each Bid-Option
Interest Period specified in the related Bid-Option Quote Request, and (ii) the
respective principal amounts and respective Bid-Option Rates so offered.
20
(f) Acceptance and Notice by Borrower. Not later than 11:00
a.m. Detroit time on the proposed date of a Borrowing, the Treasury Manager
shall notify the Agent of the Designated Borrower's acceptance or non-acceptance
of the offers so notified to it pursuant to subsection (e) of this Section and
the Agent shall, promptly upon receiving such notice from the Treasury Manager,
notify each Bank whose Bid-Option Quote has been accepted. In the case of
acceptance, such notice (a "Notice of Bid-Option Loan") shall specify the
aggregate principal amount of offers for the applicable Interest Period(s) that
have been accepted. The Borrower may accept any Bid-Option Quote in whole or in
part; provided that:
(i) the aggregate principal amount of each Bid-Option Loan may
not exceed the applicable amount set forth in the related Bid-Option
Quote Request for the applicable Bid-Option Interest Period;
(ii) the principal amount of each Bid-Option Loan must be
$5,000,000 or a larger multiple of $1,000,000;
(iii) acceptance of offers may only be made on the basis of
ascending Bid-Option Rates; and
(iv) the Borrower may not accept any offer that is described in
Section 2.2(d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or more Banks with the
same Bid-Option Rates for a greater aggregate principal amount than the amount
in respect of which offers are accepted for the related Interest Period, the
principal amount of Bid-Option Loans in respect of which such offers are
accepted shall be allocated by the Agent among such Banks as nearly as possible
(in such multiples, not greater than $100,000, as the Agent may deem
appropriate) in proportion to the aggregate principal amount of such offers.
Determinations by the Agent of the amounts of Bid-Option Loans shall be
conclusive in the absence of manifest error.
2.3 Effect on Commitments. Notwithstanding anything in this Agreement to
the contrary, the sum of the aggregate outstanding principal amount of all
Revolving Credit Loans plus, all Letter of Credit Advances (being the maximum
amount available to be drawn under the related Letters of Credit plus the amount
of any draws under Letters of Credit that have not been reimbursed) plus, all
Bid-Option Loans plus, all Swing Line Loans shall not at any time exceed the
aggregate amount of the Commitments of all Banks. Each Bank's obligation to make
its pro rata portion of any subsequently requested Revolving Credit Loan or
Letter of Credit Advance shall not be affected by the making by such Bank of a
Bid-Option Loan, and the Bank which has outstanding Bid-Option Loans may be
obligated to exceed its Commitment, and provided, that, as stated above, the
aggregate principal amount of all Revolving Credit Loans, all Letters of Credit
Advances, all Swing Line Loans and all Bid-Option Loans shall not at any time
exceed the aggregate amount of the Commitments of all Banks.
21
2.4 Termination and Reduction of Commitments.
(a) The Company shall have the right to terminate or reduce
the Commitments at any time and from time to time at its option, provided that
(i) the Treasury Manager shall give five days' prior written notice of such
termination or reduction to the Agent (with sufficient executed copies for each
Bank) specifying the amount and effective date thereof, (ii) each partial
reduction of the Commitments shall be in a minimum amount of $5,000,000 and in
integral multiples of $1,000,000 and shall reduce the Commitments of all of the
Banks proportionately in accordance with the respective commitment amounts for
each such Bank set forth in the signature pages hereof next to the name of each
such Bank, (iii) no such termination or reduction shall be permitted with
respect to any portion of the Commitments as to which a request for a Borrowing
pursuant to Section 2.6 is then pending and (iv) the Commitments may not be
terminated if any Advances are then outstanding and may not be reduced below the
principal amount of Advances then outstanding.
The Commitments or any portion thereof terminated or reduced pursuant to this
Section 2.4(a), whether optional or mandatory, may not be reinstated. The
Borrowers shall immediately prepay the Loans to the extent they exceed the
reduced aggregate Commitments pursuant hereto, and any reduction hereunder shall
reduce the Commitment amount of each Bank proportionately in accordance with the
respective Commitment amounts for each such Bank set forth on the signature
pages hereof next to the name of each such Bank.
(b) For purposes of this Agreement, a Letter of Credit Advance
(i) shall be deemed outstanding in an amount equal to the sum of the maximum
amount available to be drawn under the related Letter of Credit on or after the
date of determination and on or before the stated expiry date thereof plus the
amount of any draws under such Letter of Credit that have not been reimbursed
and (ii) shall be deemed outstanding at all times on and before such stated
expiry date or such earlier date on which all amounts available to be drawn
under such Letter of Credit have been fully drawn, and thereafter until all
related reimbursement obligations have been paid. Upon each payment made by the
Agent in respect of any draft or other demand for payment under any Letter of
Credit, the amount of any Letter of Credit Advance outstanding immediately prior
to such payment shall be automatically reduced by the amount of each Revolving
Credit Loan deemed advanced in respect of the related reimbursement obligation
of the Borrower.
2.5 Fees.
(a) The Company agrees to pay to the Banks a facility fee on
the daily average amount of the Commitments, whether used or unused, for the
period from the Effective Date to but excluding the Termination Date, at a rate
equal to the Applicable Margin for the facility fee. Accrued facility fees shall
be payable quarterly in arrears in Dollars within five (5) days of receipt of an
invoice prepared by the Agent containing a computation of facility fees due
computed on the basis of 360 days and assessed for the actual number of days
elapsed, which invoice shall be prepared as of the last Business Day of each
March, June, September and December, commencing on the first such Business Day
occurring after the date of this Agreement, and on the Termination Date.
22
(b) The Borrowers agree to pay (i) with respect to S/L/Cs, a
fee to the Banks computed at the Applicable Margin on the maximum amount
available to be drawn from time to time under such S/L/C for the period from and
including the date of issuance of such S/L/C to and including the stated expiry
date of such S/L/C, which fee shall be paid annually in advance at the time such
S/L/C is issued or amended, a portion of which the Agent shall retain for its
own account to be negotiated between the Agent and the Banks at the time of the
initial request of a Letter of Credit Advance, and (ii) with respect to C/L/Cs,
a fee to the Banks to be negotiated at the time of issuance between the Agent
and the Borrower requesting such C/L/C, which fees shall be paid at each time as
any C/L/C is presented or drawn upon, in whole or in part. Such fees are
nonrefundable and the Borrowers shall not be entitled to any rebate of any
portion thereof if such Letter of Credit does not remain outstanding through its
stated expiry date or for any other reason. The Borrowers further agree to pay
to the Agent, on demand, such other customary and reasonable administrative
fees, charges and expenses of the Agent in respect of the issuance, negotiation,
acceptance, amendment, transfer and payment of such Letter of Credit or
otherwise payable pursuant to the application and related documentation under
which such Letter of Credit is issued in accordance with a schedule of fees
provided by the Agent to the Borrowers.
(c) The Borrowers agrees to pay to the Agent an agency fee for
its services as Agent under this Agreement in such amounts as may from time to
time be agreed upon by the Borrowers and the Agent.
2.6 Disbursement of Revolving Credit Advances.
(a) Except with respect to Swing Line Loans, the Treasury
Manager shall give the Agent notice of its request for each Revolving Credit
Advance in substantially the form of Exhibit I hereto at the Applicable Lending
Office of the Agent with respect to such Advance not later than 10:00 a.m. local
time of the Applicable Lending Office (i) three (3) Interbank Business Days
prior to the date such Advance is requested to be made if such Borrowing is to
be made as an Interbank Offered Rate Revolving Credit Borrowing, and (ii) three
(3) Business Days prior to the date any Letter of Credit Advance is requested to
be made and (iii) on the date such Revolving Credit Loan is requested to be made
if such Revolving Credit Loan is to be made as a Negotiated Rate Revolving
Credit Borrowing or a Floating Rate Revolving Credit Borrowing, which notice
shall specify the Designated Borrower for which such Advance is requested,
whether an Interbank Offered Rate Loan, Negotiated Rate Loan, Floating Rate Loan
or a Letter of Credit Advance is requested and, in the case of each requested
Fixed Rate Revolving Credit Loan, the Interest Period to be initially applicable
to such Loan and the Permitted Currency in which such Loan is to be denominated.
With respect to Swing Line Loans, the Treasury Manager shall give the Agent
notice of its request for each Swing Line Loan in substantially the form of
Exhibit I hereto at the Applicable Lending Office of the Agent with respect to
such Advance not later than 1:00 p.m. local time of the Applicable Lending
Office on the same Business Day any Swing Line Loan is requested to be made
which notice shall specify the Designated Borrower for which such Swing Line
Loan is requested. The Agent, on the same day any such notice is given, shall
provide notice of such requested Revolving Credit Loan to each Bank (which
notice shall be provided by 2:00 p.m. local time of the Applicable Lending
Office with respect to Floating Rate Loans or Negotiated Rate Loans). Subject to
the terms and conditions of this Agreement, the proceeds of each such requested
Revolving Credit Loan shall be made available to the Designated Borrower
requesting such Loan by depositing the proceeds thereof, in immediately
available, freely transferable cleared funds, in the case of any Revolving
Credit Loan denominated in Dollars in an account maintained and designated by
such Borrower, and, in all other cases, in an account maintained and designated
by such Borrower at a bank acceptable to the Agent in the principal financial
center of the country issuing the Permitted Currency in which such Loan is
denominated or in such other place specified by the Agent. Subject to the terms
and conditions of this Agreement, the Agent shall, on the date any Letter of
Credit Advance is requested to be made, issue the related Letter of Credit on
behalf of the Banks for the account of the Designated Borrower requesting such
Letter of Credit. Notwithstanding anything herein to the contrary, the Agent may
decline to issue any requested Letter of Credit on the basis that the
beneficiary, the purpose of issuance or the terms or the conditions of drawing
are unacceptable to it in its discretion.
23
(b) Each Bank, on the date any Revolving Credit Loan is
requested to be made, shall make its pro rata share of such Revolving Credit
Loan available in immediately available, freely transferable cleared funds for
disbursement to the Designated Borrower requesting such Loan pursuant to the
terms and conditions of this Agreement, in the case of any Revolving Credit Loan
denominated in Dollars, at the principal office of the Agent and, in all other
cases, to the account of the Agent at its designated branch or correspondent
bank in the country issuing such Permitted Currency in which such Loan is
denominated or at such other place specified by the Agent. Unless the Agent
shall have received notice from any Bank prior to the date such Revolving Credit
Loan is requested to be made under this Section 2.6 that such Bank will not make
available to the Agent such Bank's pro rata portion of such Loan, the Agent may
assume that such Bank has made such portion available to the Agent on the date
such Loan is requested to be made in accordance with this Section 2.6. If and to
the extent such Bank shall not have so made such pro rata portion available to
the Agent, the Agent may (but shall not be obligated to) make such amount
available to such Designated Borrower, and such Bank agrees to pay to the Agent
forthwith on demand such amount together with interest thereon, for each day
from the date such amount is made available to such Designated Borrower by the
Agent until the date such amount is repaid to the Agent, at a rate per annum
equal to the Federal Funds Rate or the relevant market rate with respect to
Permitted Currencies other than Dollars then in effect. If such Bank shall pay
such amount to the Agent together with interest, such amount so paid shall
constitute a Revolving Credit Loan by such Bank as part of the related Borrowing
for purposes of this Agreement. The failure of any Bank to make its pro rata
portion of any such Borrowing available to the Agent shall not relieve any other
Bank of its obligation to make available its pro rata portion of such Loan on
the date such Loan is requested to be made, but no Bank shall be responsible for
failure of any other Bank to make such pro rata portion available to the Agent
on the date of any such Loan.
(c) (i) Each Bank shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of each Borrower to such
Bank resulting from each Loan of such Bank from time to time, including the
amounts of principal and interest payable thereon and paid to such Bank from
time to time under this Agreement.
(ii) The Agent shall maintain an account for each Borrower in its books and
records with a subaccount for each Bank, in which shall be recorded (a) the
amount of each Loan made hereunder, the type thereof and each Interest Period
applicable thereto, (b) the amount of any principal or interest due and payable
or to become due and payable from each Borrower to each Bank hereunder in
respect of the Loans and (c) both the amount of any sum received by the Agent
hereunder from each Borrower in respect of the Loans and each Bank's share
thereof.
(iii) The books and records of the Agent and of each Bank maintained
pursuant to this Section 2.6(c) shall, to the extent permitted by applicable
law, be prima facie evidence of the existence and amounts of the obligations of
each Borrower therein recorded; provided, however, that the failure of any Bank
or the Agent to maintain any such books and records or any error therein, shall
not in any manner affect the obligation of each Borrower to repay (with
applicable interest) the Loans made to such Borrower by such Bank in accordance
with the terms of this Agreement.
(iv) Each Borrower agrees that, upon the request to the Agent by any Bank,
such Borrower will execute and deliver to such Bank a Revolving Credit Note and
a Swing Line Note (if applicable) of such Borrower evidencing the Loans of such
Bank; provided, that the delivery of such Notes shall not be a condition
precedent to the Effective Date. Notwithstanding anything herein to the
contrary, any and all references in this Agreement or any other Loan Document to
any amounts due or outstanding under the Notes or evidenced by the Notes shall,
in the event Notes are not executed and delivered in accordance with this
Section 2.6(c), be deemed to refer to the Advances and all other amounts
outstanding under this Agreement.
(v) Subject to the terms and conditions of this Agreement, each Borrower
may borrow Revolving Credit Loans under this Section 2.6, prepay Revolving
Credit Loans pursuant to Section 3.1 and reborrow Revolving Credit Loans under
this Section 2.6.
(d) All Bid-Option Loans shall be disbursed directly by the Bank making
such Bid-Option Loan to the Designated Borrower by 1:30 p.m. Detroit time on the
date such Bid-Option Loan is requested to be made via wire transfer in
immediately available funds to NBD Bank, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, ABA Number 000000000, Attention: Agency Administration, Reference:
Invacare Bid-Option, confirm to Agency Administration, Facsimile No. (313)
225-2747 or as otherwise directed by the Borrowers.
24
(e) Nothing in this Agreement shall be construed to require or authorize
any Bank to issue any Letter of Credit, it being recognized that the Agent has
the sole obligation under this Agreement to issue Letters of Credit on behalf of
the Banks, and the Commitment of each Bank with respect to Letter of Credit
Advances is expressly conditioned upon the Agent's performance of such
obligations. Upon such issuance by the Agent, each Bank shall automatically
acquire a pro rata risk participation interest in such Letter of Credit Advance
based on the amount of its respective Commitment. If the Agent shall honor a
draft or other demand for payment presented or made under any Letter of Credit,
the Agent shall provide notice thereof to each Bank (which notice shall be
provided by 2:00 p.m. Detroit time) on the date such draft or demand is honored
unless a Borrower shall have satisfied its reimbursement obligation by payment
to the Agent on such date. Each Bank, on such date, shall make its pro rata
share of the amount paid by the Agent available in immediately available funds
at the principal office of the Agent for the account of the Agent. If and to the
extent such Bank shall not have made such pro rata portion available to the
Agent, such Bank and the Borrowers severally agree to pay to the Agent forthwith
on demand such amount together with interest thereon, for each day from the date
such amount was paid by the Agent until such amount is so made available to the
Agent at a per annum rate equal to the Federal Funds Rate or the relevant market
rate with respect to Permitted Currencies other than Dollars. If such Bank shall
pay such amount to the Agent together with such interest, such amount so paid
shall constitute a Revolving Credit Loan by such Bank as part of the Revolving
Credit Borrowing disbursed in respect of the reimbursement obligation of the
Company for purposes of this Agreement. The failure of any Bank to make its pro
rata portion of any such amount paid by the Agent available to the Agent shall
not relieve any other Bank of its obligation to make available its pro rata
portion of such amount, but no Bank shall be responsible for failure of any
other Bank to make such pro rata portion available to the Agent.
2.7 Conditions for First Disbursement. The obligation of each Bank to
make its first Advance hereunder is subject to receipt by each Bank and the
Agent of the following documents and completion of the following matters, in
form and substance reasonably satisfactory to each Bank and the Agent:
(a) Charter Documents. Certificates of recent date of the
appropriate authority or official of the Company's state of incorporation
listing all charter documents of the Company, on file in that office and
certifying as to the good standing and corporate existence of the Company,
together with copies of such charter documents of the Company, certified as of a
recent date by such authority or official and certified as true and correct as
of the Effective Date by a duly authorized officer of the Company;
(b) By-Laws and Corporate Authorizations. Copies of the
by-laws of the Company together with all authorizing resolutions and evidence of
other corporate action taken by the Company to authorize the execution, delivery
and performance by the Company of this Agreement, the Guaranty and the Notes and
the consummation by the Company of the transactions contemplated hereby,
certified as true and correct as of the Effective Date by a duly authorized
officer of the Company;
25
(c) Incumbency Certificate. Certificates of incumbency of each
Borrower containing, and attesting to the genuineness of, the signatures of
those officers authorized to act on behalf of such Borrower in connection with
this Agreement and the Notes and the consummation by such Borrower of the
transactions contemplated hereby, certified as true and correct as of the
Effective Date by a duly authorized officer of each Borrower;
(d) Guaranty. The Guaranty duly executed by the Company
for the Banks;
(e) Legal Opinion. The favorable written opinion of
counsel for the Company in the form of Exhibit J attached hereto; and
(f) Consents, Approvals, Etc. Copies of all governmental and
nongovernmental consents, approvals, authorizations, declarations, registrations
or filings, if any, required on the part of the Company in connection with the
execution, delivery and performance of this Agreement, the Guaranty and the
Notes or the transactions contemplated hereby or as a condition to the legality,
validity or enforceability of this Agreement and the Notes, certified as true
and correct and in full force and effect as of the Effective Date by a duly
authorized officer of the Company, or, if none are required, a certificate of
such officer to that effect.
2.8 Further Conditions for Disbursement. The obligation of each Bank to
make any Advance (including its first Advance), or any continuation or
conversion under Section 2.9, is further subject to the satisfaction of the
following conditions precedent:
(a) The representations and warranties contained in Article IV
hereof and in any other Loan Document shall be true and correct in all material
respects on and as of the date such Advance is made, continued or converted
(both before and after such Advance is made, continued or converted) as if such
representations and warranties were made on and as of such date; and
(b) No Event of Default and no Default shall exist or shall
have occurred and be continuing on the date such Advance is made, continued or
converted (whether before or after such Advance is made, continued or
converted);
(c) Prior to the issuance of the initial Letter of Credit
Advance, the Borrowers, the Agent and the Banks shall have entered into an
agreement containing terms and conditions regarding Letters of Credit, which
agreement shall be mutually satisfactory to all parties thereto.
(d) In the case of any Letter of Credit Advance, the Borrower
requesting such Letter of Credit Advance shall have delivered to the Agent an
application for the related Letter of Credit and other related documentation
requested by and acceptable to the Agent and the Banks appropriately completed
and duly executed on behalf of such Borrower and the Agent and the Banks shall
have negotiated all fees described in Section 2.5(b).
26
Each Borrower shall be deemed to have made a representation and warranty to the
Banks at the time of the making of, and the continuation or conversion of, each
Advance to the effects set forth in clauses (a) and (b) of this Section 2.8. For
purposes of this Section 2.8, the representations and warranties contained in
Section 4.6 hereof shall be deemed made with respect to the most recent
financial statements delivered pursuant to Section 5.1(d)(ii) and (iii).
2.9 Subsequent Elections as to Borrowings. The Treasury Manager may
elect (a) to continue a Fixed Rate Revolving Credit Borrowing of one type, or a
portion thereof, as a Fixed Rate Revolving Credit Borrowing of the then existing
type, or (b) may elect to convert a Fixed Rate Revolving Credit Borrowing, or a
portion thereof, to a Borrowing of another type or (c) elect to convert a
Floating Rate Borrowing, or a portion thereof, to a Fixed Rate Revolving Credit
Borrowing, in each case by giving notice thereof to the Agent in substantially
the form of Exhibit K hereto at the principal office of the Agent and at the
Applicable Lending Office of the Agent with respect to such Loan not later than
10:00 a.m. local time of the Applicable Lending Office (i) three (3) Interbank
Business Days prior to the date any such continuation of or conversion to a
Interbank Offered Rate Revolving Credit Borrowing is to be effective and (ii)
the date such continuation or conversion is to be effective in all other cases,
provided that an outstanding Fixed Rate Revolving Credit Borrowing may only be
converted on the last day of the then current Interest Period with respect to
such Borrowing, and provided, further, if a continuation of a Borrowing as, or a
conversion of a Borrowing to, a Fixed Rate Revolving Credit Borrowing is
requested, such notice shall also specify the Interest Period to be applicable
thereto upon such continuation or conversion. The Agent, on the day any such
notice is given, shall provide notice of such election to the Banks. If the
Treasury Manager shall not timely deliver such a notice with respect to any
outstanding Fixed Rate Revolving Credit Borrowing, the Borrower shall be deemed
to have elected to convert such Fixed Rate Revolving Credit Borrowing to a
Floating Rate Borrowing on the last day of the then current Interest Period with
respect to such Borrowing.
2.10 Limitation of Requests and Elections. Notwithstanding any other
provision of this Agreement to the contrary, if, upon receiving a request for a
Fixed Rate Revolving Credit Borrowing pursuant to Section 2.6, or a request for
a continuation of a Fixed Rate Revolving Credit Borrowing as a Fixed Rate
Revolving Credit Borrowing of the then existing type, or a request for
conversion of a Fixed Rate Revolving Credit Borrowing of one type to a Fixed
Rate Revolving Credit Borrowing of another type, or a request for a conversion
of a Floating Rate Borrowing to a Fixed Rate Revolving Credit Borrowing pursuant
to Section 2.9, (a) in the case of any Interbank Offered Rate Borrowing,
deposits in the relevant Permitted Currency for periods comparable to the
Interest Period elected by the Borrower are not available to any Bank in the
relevant interbank or secondary market and such Bank has provided to the Agent
and the Borrowers a certificate prepared in good faith to that effect, or (b)
any Bank reasonably determines that the applicable interest rate (net of the
Applicable Margin for the Interbank Offered Rate) will not adequately and fairly
reflect the cost to such Bank of making, funding or maintaining the related
Fixed Rate Revolving Credit Loan and such Bank has provided to the Agent and the
Borrowers a certificate prepared in good faith to that effect, or (c) by reason
of national or international financial, political or economic conditions or by
reason of any applicable law, treaty, rule or regulation (whether domestic or
foreign) now or hereafter in effect, or the interpretation or administration
thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by any Bank with any directive of such
authority (whether or not having the force of law), including without limitation
exchange controls, it is impracticable, unlawful or impossible for any Bank (i)
to make or fund the relevant Fixed Rate Revolving Credit Borrowing or (ii) to
continue such Fixed Rate Revolving Credit Borrowing as a Fixed Rate Revolving
Credit Borrowing of the then existing type or (iii) to convert a Loan to such a
Fixed Rate Revolving Credit Loan, and such Bank has provided to the Agent and
the Borrowers a certificate prepared in good faith to that effect, then the
Borrowers shall not be entitled, so long as such circumstances continue, to
request a Fixed Rate Revolving Credit Borrowing of the affected type pursuant to
Section 2.6 or a continuation of or conversion to a Fixed Rate Revolving Credit
Borrowing of the affected type pursuant to Section 2.9. In the event that such
circumstances no longer exist, the Banks shall again honor requests, subject to
this Agreement, for Fixed Rate Revolving Credit Borrowings of the affected type
pursuant to Section 2.6, and requests for continuations of and conversions to
Fixed Rate Revolving Credit Borrowings of the affected type pursuant to Section
2.9.
27
2.11 Minimum Amounts; Limitation on Number of Borrowings. Except for
(a) Borrowings and conversions thereof which exhaust the entire remaining amount
of the Commitments, and (b) conversions or payments required pursuant to Section
3.1(b) or Section 3.7, each Revolving Credit Loan and each continuation or
conversion pursuant to Section 2.9 and each prepayment thereof shall be in a
minimum amount of $1,000,000 and in integral multiples of $500,000 and each
Letter of Credit shall be in a minimum amount of $250,000. Notwithstanding
anything herein to the contrary, the Borrowers shall not be permitted to request
(a) that any Revolving Credit Loan be denominated in any currency other than a
Permitted Currency or (b) that any Revolving Credit Loan other than a Interbank
Offered Rate Loan be denominated in a currency other than Dollars.
2.12 Treasury Manager. Each Borrower authorizes the Treasury Manager to
act as its manager in making requests and in carrying out as its manager and on
its behalf all other functions conferred on the Treasury Manager under this
Agreement and all other ancillary functions. Each Borrower further agrees that
the Treasury Manager may nominate any Borrower as the Designated Borrower, and
agrees that the Advances allocated to it, and all other acts carried out by the
Treasury Manager falling within its authority, shall be conclusive and binding
on it and all parties. Neither any Bank nor the Agent is or shall be deemed to
be concerted as to the Treasury Manager's compliance or otherwise with
instructions from any Borrower. The content of each request and every other
notice delivered by the Treasury Manager shall be irrevocable, and the Agent and
the Banks shall be entitled to rely fully on their content.
ARTICLE III
PAYMENTS AND PREPAYMENTS
3.1 Principal Payments.
(a) Unless earlier payment is required under this Agreement, the
Borrowers shall pay to the Banks on the Termination Date the entire outstanding
principal amount of the Revolving Credit Loans.
28
(b) Unless earlier payment is required under this Agreement, the
Borrowers shall, on the maturity date of any Bid-Option Loan, pay to the Bank of
such Bid-Option Loan the outstanding principal amount of such Loan.
(c) The Borrowers may at any time and from time to time prepay all or a
portion of the Loans without premium or penalty in the case of Revolving Credit
Loans, provided that (i) a Borrower may not prepay any portion of any Loan as to
which an election for continuation of or conversion to a Fixed Rate Revolving
Credit Loan is pending pursuant to Section 2.9, and (ii) unless earlier payment
is required under this Agreement or unless Borrower pays all amounts required
pursuant to Section 3.8, any Fixed Rate Revolving Credit Loan or Bid-Option Loan
may only be prepaid on the last day of the then current Interest Period with
respect to such Loan and (iii) such prepayment shall only be permitted if the
Treasury Manager shall have given notice thereof on the Business Day of such
prepayment with respect to prepayment of Floating Rate Loans and Negotiated Rate
Loans and not less than three (3) Interbank Business Days notice thereof with
respect to prepayment of Interbank Offered Rate Loans, such notice specifying
the Loan or portion thereof to be so prepaid and shall have paid to the Banks,
together with such prepayment of principal, all accrued interest to the date of
payment on such Loan or portion thereof so prepaid and all amounts owing to the
Banks under Section 3.8 in connection with such prepayment. Upon the giving of
such notice, the aggregate principal amount of such Loan or portion thereof so
specified in such notice, together with such accrued interest and other amounts,
shall become due and payable on the specified date.
(d) If, pursuant to Section 2.9, a Borrowing, or portion thereof, is
continued or converted, such Borrowing or portion thereof shall be repaid on the
last day of the related Interest Period in the Permitted Currency in which such
Borrowing is then denominated and (i) in the case of any conversion, the Agent
shall readvance to the Borrower making such request the Equivalent of the
Original Dollar Amount of the Borrowing or portion thereof as has been so repaid
by the Borrower in the Permitted Currency requested pursuant to Section 2.7, and
(ii) in the case of any continuation when the aggregate outstanding amount of
Revolving Credit Advances exceeds 90% of the aggregate Commitments, the Agent
shall readvance to the Borrower the same amount of such Permitted Currency as
has been so repaid. The Agent shall provide notice to the Company of the
activation of clause (ii) above. For purposes of effecting the repayment
required by this Section 3.1(d), the Agent shall apply the proceeds of such
readvance toward the repayment of such Borrowing or portion thereof on the last
day of the related Interest Period. In the case of any conversion, the Agent
shall be deemed to have applied the proceeds of such Advance toward the purchase
of the Permitted Currency to be repaid and to have applied the proceeds of such
purchase toward such repayment. If after any such application there shall remain
owing an amount of the Permitted Currency due to the Agent, for the benefit of
the Banks, or if an excess of such Permitted Currency shall result, such
Borrower shall pay to the Banks, or the Banks shall pay to such Borrower the
amount of such deficiency or such excess. In the case of any continuation
described in clause (ii) above, on the last day of such Interest Period, the
Original Dollar Amount of such Borrowing or portion thereof shall be adjusted to
the amount in Dollars resulting from the conversion of the amount of such
Permitted Currency so readvanced to Dollars determined two (2) Business Days
prior to such day. On the date of each such conversion or continuation, if the
Dollar Equivalent on such date of all Advances, including the Advances being
continued or converted, exceeds the aggregate Commitments of the Banks, the
Borrower shall take the following actions in the following order until such
excess of the Dollar Equivalent of all Advances over the aggregate Commitments
of the Banks is eliminated: (a) on such date, first, reduce or withdraw any
pending request for a new Advance in Dollars to be made on such date, second,
repay in Dollars any Floating Rate Loan denominated in Dollars then outstanding,
and third, reduce the amount of, or repay, in the Permitted Currency in which
such Borrowing is denominated, any Advance which the Borrower has requested to
be converted or continued on such date, and (b) on the last day of each
Interbank Interest Period ending thereafter, reduce the amount of, or repay in
the Permitted Currency in which such Borrowing is denominated, any Advance which
the Borrower has requested to be converted or continued on such last day.
29
3.2 Interest Payments. The Borrowers shall pay interest to the Banks on
the unpaid principal amount of each Loan (other than Bid-Option Loans, for which
the interest shall be payable directly to the Bank of such Bid-Option Loan as
described in clause (b) below), for the period commencing on the date such Loan
is made until such Loan is paid in full, on each Interest Payment Date and at
maturity (whether at stated maturity, by acceleration or otherwise), and
thereafter on demand, at the following rates per annum:
(a) With respect to Revolving Credit Loans:
(i) During such periods that such Loan is a Floating
Rate Loan, the Floating Rate.
(ii) During such periods that such Loan is a
Negotiated Rate Loan, the Negotiated
Rate.
(iii) During such periods that such Loan is an
Interbank Offered Rate Loan, the
Interbank Offered Rate applicable to such Loan for each related Interbank
Interest Period.
(b) With respect to Bid-Option Loans, the Bid-Option Rate
quoted for such Loan by the Bank making such Loan.
(c) With respect to Swing Line Loans:
(i) During such periods that such Loan is an
Interbank Offered Rate Loan, the Interbank Offered Rate.
(ii) During such periods that such Loan is a
Negotiated Rate Loan, the Negotiated
Rate Loan.
Notwithstanding the foregoing paragraphs (a) through (c), the Borrowers shall
pay interest on demand at the Overdue Rate on the outstanding principal amount
of any Loan and any other amount payable by the Borrowers hereunder (other than
interest) on and after an Event of Default.
30
3.3 Payment Method.
(a) All payments to be made by the Borrowers hereunder will be
made to the Agent for the account of the Banks (i) in the case of principal and
interest on any Loan, in the Permitted Currency in which such Loan is
denominated and (ii) in all other cases, in the otherwise specified or relevant
currency, and in all cases in immediately available, freely transferable,
cleared funds, in the case of any payment to be made in Dollars, not later than
2:00 p.m. at the place for payment on the date on which such payment shall be
come due and, in all other cases, on the date on which such payment shall become
due, (x) in the case of principal and interest on any Loan denominated in a
Permitted Currency other than Dollars, by credit to the account of the Agent at
its designated branch or correspondent bank in the country issuing the relevant
Permitted Currency or in such other place specified by the Agent with respect to
such Loan pursuant to Section 2.6(b), and (y) in all other cases to the Agent at
the address of its principal office specified in Section 8.2. Payments to be
made in Dollars received after 2:00 p.m. at the place for payment shall be
deemed to be payments made prior to 2:00 p.m. at the place for payment on the
next succeeding Business Day. Each Borrower hereby authorizes the Agent to
charge its account with the Agent in order to cause timely payment of amounts
due hereunder to be made (subject to sufficient funds being available in such
account for that purpose).
(b) At the time of making each such payment, a Borrower shall,
subject to the other terms and conditions of this Agreement, specify to the
Agent that Borrowing or other obligation of the Borrowers hereunder to which
such payment is to be applied. In the event that a Borrower fails to so specify
the relevant obligation or if an Event of Default shall have occurred and be
continuing, the Agent may apply such payments as it may determine in its sole
discretion to obligations of the Borrowers to the Banks arising under this
Agreement.
(c) On the day such payments are deemed received, the Agent
shall promptly remit to the Banks their pro rata shares of such payments in
immediately available funds, (i) in the case of payments of principal and
interest on any Borrowing denominated in a Permitted Currency other than
Dollars, at an account maintained and designated by each Bank at a bank in the
principal financial center of the country issuing the Permitted Currency in
which such Borrowing is denominated or in such other place specified by the
Agent and agreed to by the Banks and (ii) in all other cases, to the Banks at
their respective address in the United States specified for notices pursuant to
Section 8.2. Such pro rata shares shall be determined with respect to each such
Bank, (i) in the case of payments of principal and interest on any Borrowing, by
the ratio which the outstanding principal balance of its Loan included in such
Borrowing bears to the outstanding principal balance of the Loans of all of the
Banks included in such Borrowing and (ii) in the case of fees paid pursuant to
Section 2.5 and other amounts payable hereunder (other than the Agent's fees
payable pursuant to Section 2.5(c) and amounts payable to any Bank under Section
2.6 or 3.6) by the ratio which the Commitment of such Bank bears to the
Commitments of all the Banks.
31
(d) This Agreement arises in the context of an international
transaction, and the specification of payment in a specific currency at a
specific place pursuant to this Agreement is of the essence. Such specified
currency shall be the currency of account and payment under this Agreement. The
obligations of the Borrowers hereunder shall not be discharged by an amount paid
in any other currency or at another place, whether pursuant to a judgment or
otherwise, to the extent that the amount so paid, on prompt conversion into the
applicable currency and transfer to the Banks under normal banking procedure,
does not yield the amount of such currency due under this Agreement. In the
event that any payment, whether pursuant to a judgment or otherwise, upon
conversion and transfer, does not result in payment of the amount of such
currency due under this Agreement, the Banks shall have an independent cause of
action against the Borrowers for the currency deficit.
(e) If for purposes of obtaining judgment in any court it
becomes necessary to convert any currency due hereunder into any other currency,
the Borrowers will pay such additional amount, if any, as may be necessary to
ensure that the amount paid in respect of such judgment is the amount in such
other currency which, when converted at the Agent's spot rate of exchange
prevailing on the date of payment, would yield the same amount of the currency
due hereunder. Any amount due from the Borrowers under this Section 3.3(e) will
be due as a separate debt and shall not be affected by judgment being obtained
for any other sum due under or in respect of this Agreement.
3.4 No Setoff or Deduction.
(a) All such payments shall be made free and clear of any
present or future taxes or withholdings and without any set-off or counter claim
or any restriction or condition or deduction whatsoever. The Designated Borrower
shall indemnify the Agent and each Bank against any taxes or charges (other than
taxes imposed on net overall income of the Bank or the Agent, by the
jurisdiction, or by any political subdivision or taxing authority of any such
jurisdiction, in which any Bank or the Agent, as the case may be, has its
principal office) which may be claimed from it in respect of the Advances or any
of them or any sum payable by the Borrowers or any of them hereunder and against
any costs, charges and expenses or liabilities in respect of such claim and such
indemnity shall survive the termination of the Commitments.
(b) If at any time any Borrower is required by law or by any
directive or order of any court of competent jurisdiction to make any deduction
or withholding of whatsoever nature from any payment due under this Agreement or
any of the Loan Documents, such Borrower will ensure that the same does not
exceed the minimum liability therefor and will (a) pay to any Bank on request
such additional amount as such Bank certifies will result in the net amount
received by it after all deductions being equal to the full amount which would
have been receivable had there been no deduction or withholding and (b) pay
forthwith to the relevant authorities the full amount of the deduction or
withholding and deliver to the Agent such an official receipt, certificate or
other proof evidencing the amount paid in respect of such deduction or
withholding. Any additional amount paid under this sub-clause shall not be
treated as interest but as agreed compensation.
32
(c) If any payment by any Borrower is made to or for the
account of any Bank after deduction for or on account of tax, and additional
payments are made by the Designated Borrower then, if any Bank shall receive or
be granted a credit against or remission for such tax, such Bank shall, to the
extent that it can do so without prejudice to the retention of the amount of
such credit or remission, reimburse to the Designated Borrower such amount as
such Bank shall, in its absolute opinion, have concluded to be attributable to
the relevant tax or deduction or withholding. Nothing herein contained shall
interfere with the right of any Bank to arrange its affairs in whatever manner
it thinks fit and, in particular, the Banks shall not be under any obligation to
claim relief from its corporation profits or similar tax liability in respect of
such tax in priority to any other claims, reliefs, credits or deductions
available to it nor oblige any Bank to disclose any information relating to its
tax affairs. Such reimbursement shall be made as soon as reasonably practical
upon such Bank certifying that the amount of such credit or remission has been
received by it.
3.5 Payment on Non-Business Day; Payment Computations. Except as
otherwise provided in this Agreement to the contrary, whenever any installment
of principal of, or interest on, any Loan or any other amount due hereunder
becomes due and payable on a day which is not a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day and, in the case
of any installment of principal, interest shall be payable thereon at the rate
per annum determined in accordance with this Agreement during such extension.
Computations of interest and other amounts due under this Agreement shall be
made on the basis of a year of 360 days, 365 or 366 days, as determined by the
Agent to be the custom and practice in the relevant market, for the actual
number of days elapsed, including the first day but excluding the last day of
the relevant period.
3.6 Additional Costs.
(a) In the event that any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect and whether
or not presently applicable to any Bank or the Agent, or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Bank or the Agent
with any directive of any such authority (whether or not having the force of
law), shall (i) affect the basis of taxation of payments to any Bank or the
Agent of any amounts payable by any Borrower under this Agreement (other than
taxes imposed on the overall net income of the Bank or the Agent, by the
jurisdiction, or by any political subdivision or taxing authority of any such
jurisdiction, in which any Bank or the Agent, as the case may be, has its
principal office), or (ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by any Bank or the Agent, as the case may be,
or (iii) shall impose any other condition with respect to this Agreement, the
Commitments, the Notes or the Advances, and the result of any of the foregoing
is to increase the cost to any Bank or the Agent, as the case may be, of making,
funding or maintaining any Fixed Rate Loan or to reduce the amount of any sum
receivable by any Bank or the Agent, thereon, then the Borrowers shall pay to
such Bank or the Agent, as the case may be, from time to time, upon request by
such Bank (with a copy of such request to be provided to the Agent) or the
Agent, additional amounts sufficient to compensate such Bank or the Agent, as
the case may be, for such increased cost or reduced sum receivable to the
extent, in the case of any Fixed Rate Loan, such Bank or the Agent, as the case
may be, is not compensated therefor in the computation of the interest rate
applicable to such Fixed Rate Loan. Each Bank or the Agent, as the case may be,
seeking compensation hereunder shall deliver to the Borrowers a statement
setting forth (i) such increased cost or reduced sum receivable as such Bank or
the Agent, as the case may be, has calculated in good faith, (ii) a description
of the event giving rise thereto, (iii) a calculation in reasonable detail of
the amounts requested and (iv) a statement that such Bank or the Agent, as the
case may be, has not allocated to its Commitment, Borrowings or outstanding
Loans a proportionately greater amount than is attributable to each of its other
credit extensions that are affected similarly by compliance by such Bank or the
Agent, as the case may be, whether or not such Bank or the Agent, as the case
may be, allocates any portion of such amount to such other commitments or credit
extensions. Such statement as to the amount of such increased cost or reduced
sum receivable, prepared in good faith and in reasonable detail by such Bank or
the Agent, as the case may be, and submitted by such Bank or the Agent, as the
case may be, to the Borrowers, shall be conclusive and binding for all purposes
absent manifest error in computation.
33
(b) In the event that any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect and whether
or not presently applicable to any Bank or the Agent, but applicable to banks or
financial institutions generally, or any interpretation or administration
thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by any Bank or the Agent with any
directive of any such authority (whether or not having the force of law),
including any risk-based capital guidelines, affects the amount of capital
required or expected to be maintained by such Bank or the Agent (or any
corporation controlling such Bank or the Agent) and such Bank or the Agent, as
the case may be, determines that the amount of such capital is increased by or
based upon the existence of such Bank's or the Agent's obligations hereunder and
such increase has the effect of reducing the rate of return on such Bank's or
the Agent's (or such controlling corporation's) capital as a consequence of such
obligations hereunder to a level below that which such Bank or the Agent (or
such controlling corporation) could have achieved but for such circumstances
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank or the Agent to be material, then the Borrowers shall
pay to such Bank or the Agent, as the case may be, from time to time, upon
request by such Bank (with a copy of such request to be provided to the Agent)
or the Agent, additional amounts sufficient to compensate such Bank or the Agent
(or such controlling corporation) for any reduced rate of return which such Bank
or the Agent reasonably determines to be allocable to the existence of such
Bank's or the Agent's obligations hereunder. Each Bank or the Agent, as the case
may be, seeking compensation hereunder shall deliver to the Borrowers a
statement setting forth (i) such increased cost or reduced sum receivable as
such Bank or the Agent, as the case may be, has calculated in good faith, (ii) a
description of the event giving rise thereto, (iii) a calculation in reasonable
detail of the amounts requested and (iv) a statement that such Bank or the
Agent, as the case may be, has not allocated to its Commitment, Borrowings or
outstanding Loans a proportionately greater amount than is attributable to each
of its other credit extensions that are affected similarly by compliance by such
Bank or the Agent, as the case may be, whether or not such Bank or the Agent, as
the case may be, allocates any portion of such amount to such other commitments
or credit extensions. Such statement as to the amount of such compensation,
prepared in good faith and in reasonable detail by such Bank or the Agent, as
the case may be, and submitted by such Bank or the Agent to the Borrowers, shall
be conclusive and binding for all purposes absent manifest error in computation.
3.7 Illegality and Impossibility. In the event that any applicable law,
treaty, rule or regulation (whether domestic or foreign) now or hereafter in
effect and whether or not presently applicable to any Bank, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Bank
with any directive of such authority (whether or not having the force of law),
including without limitation exchange controls, shall make it unlawful or
impossible for any Bank to maintain any Fixed Rate Loan under this Agreement or
shall make it impracticable, unlawful or impossible for, or shall in any way
limit or impair the ability of, any Borrower to make or any Bank to receive any
payment under this Agreement at the place specified for payment hereunder, or to
freely convert any amount paid into Dollars at market rates of exchange or to
transfer any amount paid or so converted to the address of its principal office
specified in Section 8.2, the Borrowers shall upon receipt of notice thereof
from such Bank, repay in full the then outstanding principal amount of each
Fixed Rate Loan so affected, together with all accrued interest thereon to the
date of payment and all amounts owing to such Bank under Section 3.8, (a) on the
last day of the then current Interest Period applicable to such Loan if such
Bank may lawfully continue to maintain such Loan to such day, or (b) immediately
if such Bank may not continue to maintain such Loan to such day.
34
3.8 Indemnification. If any Borrower makes any payment of principal
with respect to any Loan on any other date than the last day of an Interest
Period applicable thereto, (whether pursuant to Section 3.7 or Section 6.2 or
otherwise), or if any Borrower fails to borrow, continue or convert any Loan
after notice has been given to the Banks in accordance with Section 2.6 or
Section 2.9, the Borrowers shall reimburse each Bank on demand for any resulting
net loss or expense incurred by each such Bank after giving credit for any
earnings or other quantifiable financial benefit to such Bank from such Bank's
investment or other amounts prepaid or not reborrowed, including without
limitation any loss incurred in obtaining, liquidating or employing deposits
from third parties, whether or not such Bank shall have funded or committed to
fund such Loan. A statement as to the amount of such loss or expense, prepared
in good faith and in reasonable detail by such Bank and submitted by such Bank
to the Borrowers, shall be conclusive and binding for all purposes absent
manifest error in computation, provided that before delivery of such statement,
each Bank shall use reasonable efforts in accordance with its normal practices
and procedures to reduce amounts payable under this Section. Calculation of all
amounts payable to such Bank under this Section 3.8 shall be made as though such
Bank shall have actually funded or committed to fund the relevant Loan through
the purchase of an underlying deposit in an amount equal to the amount of such
Loan and having a maturity comparable to the related Interest Period; provided,
however, that such Bank may fund any Loan in any manner it sees fit and the
foregoing assumption shall be utilized only for the purpose of calculation of
amounts payable under this Section 3.8.
3.9 Right of Banks to Fund Through Other Offices. Each Bank may perform
its Commitment to fund its pro rata share of any Loan or, with respect to the
Agent, any Swing Line Loan to the Borrowers by causing an affiliate of such Bank
to provide such funds in accordance with the terms of this Agreement. For all
purposes of this Agreement, any amounts so advanced shall be deemed to have been
advanced by such Bank, and the obligation of the Borrowers to repay such amounts
shall be as provided in this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Agent and the Banks that:
4.1 Corporate Existence and Power. Each Borrower is a Person duly
organized, validly existing and in good standing under the laws of the state or
other political subdivision of its jurisdiction of incorporation or
organization, as the case may be, and is duly qualified to do business, and is
in good standing, in all additional jurisdictions where such qualification is
necessary under applicable law, except where the failure to be so qualified
would not have a material adverse effect on the business and financial condition
of the Company and its Subsidiaries taken as a whole. Each Borrower has all
requisite corporate power to own or lease the properties used in its business
and to carry on its business as now being conducted and as proposed to be
conducted, and to execute and deliver the Loan Documents to which it is a party
and to engage in the transactions contemplated by the Loan Documents.
35
4.2 Corporate Authority. The execution, delivery and performance by
each Borrower of the Loan Documents to which it is a party have been duly
authorized by all necessary corporate action and are not in contravention of any
material law, rule or regulation, or any judgment, decree, writ, injunction,
order or award of any arbitrator, court or governmental authority, or of the
terms of such Borrower's charter or by-laws, or of any material contract or
undertaking to which the Borrower is a party or by which the Borrower or its
property is bound or affected and do not result in the imposition of any Lien
except for Permitted Liens.
4.3 Binding Effect. The Loan Documents when delivered hereunder will
be, legal, valid and binding obligations of each Borrower party thereto
enforceable against each Borrower in accordance with their respective terms;
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors' rights
and except that the remedy of specific performance and injunctive and other
forms of equitable relief are subject to equitable defenses and to the
discretion of the court before which any proceedings may be brought.
4.4 Subsidiaries. Schedule 4.4 hereto correctly sets forth the
corporate name, jurisdiction of incorporation and ownership of each Subsidiary
of the Company. Each Subsidiary and each corporation becoming a Subsidiary of
the Company after the date hereof is and will be a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and is and will be duly qualified to do business in each
additional jurisdiction where such qualification is or may be necessary under
applicable law, except where the failure to be so qualified would not have a
material adverse effect on the business or financial condition of the Company
and its Subsidiaries taken as a whole.
4.5 Litigation. Except as set forth in Schedule 4.5 hereto, there is no
action, suit or proceeding pending or, to the best of each Borrower's knowledge,
threatened against or affecting any Borrower or any of their respective
Subsidiaries before or by any court, governmental authority or arbitrator, which
if adversely decided would result, either individually or collectively, in any
material adverse change in the business, properties, operations or financial
condition of the Company and its Subsidiaries taken as a whole or in any
material adverse effect on the legality, validity or enforceability of any Loan
Document and, to the best of the Company's knowledge, there is no basis for any
such action, suit or proceeding.
36
4.6 Financial Condition. The consolidated balance sheet of the Company
and its Subsidiaries and the consolidated statements of income and cash flow of
the Company and its Subsidiaries for the fiscal year ended December 31, 1996 and
reported on by Ernst & Young, independent certified public accountants, and the
interim consolidated statements of income, retained earnings and cash flow of
the Company and its Subsidiaries as of or for the six-month period ended June
30, 1997 and the earnings release of the Company and its Subsidiaries as of and
for the nine-month period ended September 30, 1997, copies of which have been
furnished to the Banks, fairly present, and the subsequent financial statements
of the Company and its Subsidiaries delivered pursuant to Section 5.1(d) will
fairly present the consolidated financial position of the Company and its
Subsidiaries as at the respective dates thereof, and the consolidated results of
operations of the Company and its Subsidiaries for the respective periods
indicated, all in accordance with generally accepted accounting principles
consistently applied (subject, in the case of said interim statements, to normal
year-end adjustments). There has been no material adverse change in the
financial condition of the Company and its Subsidiaries taken as a whole since
September 30, 1997. There is no material Contingent Liability of the Company
that is not reflected in such financial statements or in the notes thereto.
4.7 Use of Loans. Each Borrower will use the proceeds of the Loans for
its general corporate purposes, including repayment of certain Indebtedness
under the Existing Loan Agreements and Acquisitions negotiated between the
Company and prospective sellers.
4.8 Consents, Etc. Except for such consents, approvals, authorizations,
declarations, registrations or filings delivered by the Company pursuant to
Section 2.7(g), if any, each of which is in full force and effect, no consent,
approval or authorization of or declaration, registration or filing with any
governmental authority or any nongovernmental person, including without
limitation any creditor, lessor or stockholder of any Borrower, is required on
the part of any Borrower in connection with the execution, delivery and
performance of the Loan Documents or the transactions contemplated hereby or as
a condition to the legality, validity or enforceability of the Loan Documents,
except where the failure to obtain such consents, approvals, authorizations,
declarations, registrations or filings would not have a material adverse effect
on the Company and its Subsidiaries, taken as a whole.
4.9 Taxes. The Company has filed all material tax returns (federal,
state and local) required to be filed and have paid all taxes shown thereon to
be due, including interest and penalties, or have established adequate financial
reserves on their respective books and records for payment thereof, except where
the failure to file such returns, pay such taxes or establish such reserves
would not have a material adverse effect on the Company and its Subsidiaries,
taken as a whole.
37
4.10 Title to Properties. Except as otherwise disclosed in the latest
balance sheet delivered pursuant to this Agreement, the Company or one or more
of its Subsidiaries have good and marketable fee simple title to all of the real
property to the best of the Company's knowledge absent manifest error, and a
valid and indefeasible ownership interest in all of the other properties and
assets reflected in said balance sheet or subsequently acquired by the Company
or any such Subsidiary material to the business or financial condition of the
Company and its Subsidiaries taken as a whole, except for title defects that do
not have a material adverse effect. All of such properties and assets are free
and clear of any Lien, except for Permitted Liens.
4.11 ERISA. The Borrowers, their respective Subsidiaries, their ERISA
Affiliates and their respective Plans are in substantial compliance in all
material respects with those provisions of ERISA and of the Code which are
applicable with respect to any Plan. No Prohibited Transaction and no Reportable
Event has occurred with respect to any such Plan which would cause an Event of
Default. No Borrower, any of their respective Subsidiaries nor any of their
ERISA Affiliates is an employer with respect to any Multiemployer Plan. The
Borrowers, their respective Subsidiaries and their ERISA Affiliates have met the
minimum funding requirements under ERISA and the Code with respect to each of
their respective Plans, if any, and have not incurred any liability to the PBGC,
other than premiums which are not yet due and payable. The execution, delivery
and performance of the Loan Documents does not constitute a Prohibited
Transaction. There is no material unfunded benefit liability, determined in
accordance with Section 4001(a)(18) of ERISA, with respect to any Plan of any
Borrower, their respective Subsidiaries or their ERISA Affiliates.
4.12 Environmental and Safety Matters. Except as disclosed on Schedule
4.12, to the best of each Borrower's knowledge, each Borrower and each
Subsidiary of each Borrower is in substantial compliance with all material
federal, state and local laws, ordinances and regulations relating to safety and
industrial hygiene or to the environmental condition, including without
limitation all material Environmental Laws in jurisdictions in which any
Borrower or any such Subsidiary owns or operates, or has owned or operated, a
facility or site, or arranges or has arranged for disposal or treatment of
hazardous substances, solid waste, or other wastes, accepts or has accepted for
transport any hazardous substances, solid wastes or other wastes or holds or has
held any interest in real property or otherwise. Except as disclosed on Schedule
4.12, no written demand, claim, notice, suit, suit in equity, action,
administrative action, investigation or inquiry whether brought by any
governmental authority, private person or otherwise, arising under, relating to
or in connection with any Environmental Laws is pending or, to the best of each
Borrower's knowledge, threatened against any Borrower or any such Subsidiary,
any real property in which any Borrower or any such Subsidiary holds or has held
an interest or any past or present operation of any Borrower or any such
Subsidiary which would have a material adverse effect on the Company and its
Subsidiaries, taken as a whole. Neither any Borrower nor any Subsidiary of any
Borrower (a) is the subject of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release of any toxic
substances, radioactive materials, hazardous wastes or related materials into
the environment, or (b) has received any notice of any toxic substances,
radioactive materials, hazardous waste or related materials in, or upon any of
its properties in violation of any Environmental Laws. As to such matters
disclosed on Schedule 4.12, to the best of each Borrower's knowledge, none will
have a material adverse effect on the financial condition or business of the
Company and its Subsidiaries taken as a whole. Except as set forth on Schedule
4.12, to the best of each Borrower's knowledge, no release, threatened release
or disposal of hazardous waste, solid waste or other wastes is occurring or has
occurred on, under or to any real property in which any Borrower or any of their
respective Subsidiaries holds any interest or performs any of its operations, in
material violation of any Environmental Law.
38
4.13 No Material Adverse Change. Neither the Company nor any of its
Subsidiaries has received any notice, citation or communication of the nature
referred to in Section 5.1(d)(i), except in respect of such matters as have been
or are being remediated in all material respects or are being contested or
remediated in good faith, and, in the case of any such matter being so contested
or remediated, and as of the date of this Agreement, adequate provision for all
material costs of any remediation is reflected in the financial statements
referred to in Section 4.6 of this Agreement, and in respect of any such notice,
citation or communication received after the date of this Agreement, will be
reflected in the subsequent financial statements furnished to the Agent and the
Banks pursuant to Sections 5.1(d)(ii) and 5.1(d)(iii).
ARTICLE V
COVENANTS
5.1 Affirmative Covenants. Each Borrower covenants and agrees that,
until the Termination Date and thereafter until irrevocable payment in full of
the principal of and accrued interest on the Notes and the performance of all
other obligations of the Borrowers under this Agreement, unless the Required
Banks shall otherwise consent in writing, it shall, and shall cause each of its
Subsidiaries to:
(a) Preservation of Corporate Existence, Etc. Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except to the extent permitted by Section 5.2(h),
and its qualification as a foreign corporation in good standing in each
jurisdiction in which such qualification is necessary under applicable law,
other than where failure to so qualify will not have a material adverse effect
on the Company and its Subsidiaries taken as a whole.
(b) Compliance with Laws, Etc. Comply in all material respects
with all applicable laws, rules, regulations and orders of any governmental
authority, whether federal, state, local or foreign (including without
limitation ERISA, the Code and Environmental Laws), in effect from time to time;
and pay and discharge promptly when due all taxes, assessments and governmental
charges or levies imposed upon it or upon its income, revenues or property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise, which, if unpaid, might
give rise to Liens upon such properties or any portion thereof, except to the
extent that payment of any of the foregoing is then being contested in good
faith by appropriate legal proceedings, and except where failure to comply would
not have a material adverse effect on the Company and its Subsidiaries taken as
a whole.
39
(c) Maintenance of Properties; Insurance. Maintain, preserve
and protect all property that is material to the conduct of the business of any
Borrower or any of their respective Subsidiaries and keep such property in good
repair, working order and condition and from time to time make, or cause to be
made all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times in accordance with
customary and prudent business practices for similar businesses; and, maintain
in full force and effect insurance with responsible and reputable insurance
companies or associations in such amounts, on such terms and covering such
risks, as is usually carried by companies engaged in similar businesses and
owning similar properties similarly situated and maintain in full force and
effect public liability insurance, insurance against claims for personal injury
or death or property damage occurring in connection with any of its activities
or any properties owned, occupied or controlled by it, in such amount as it
shall reasonably deem necessary.
(d) Reporting Requirements. Furnish to the Banks and the Agent the
following:
(i) Promptly and in any event within five calendar days after becoming
aware of the occurrence of (A) any Event of Default or Default, or (B) the
commencement of any material litigation against, by or affecting any Borrower or
any of their respective Subsidiaries which the Company would be required to
report to the Securities and Exchange Commission, a statement of the chief
financial officer of the Company setting forth details of such Event of Default
or Default or such litigation and the action which such Borrower or such
Subsidiary, as the case may be, has taken and proposes to take with respect
thereto;
(ii) As soon as available and in any event within 50 days after the end of
each of the first three fiscal quarters of each fiscal year of the Company, the
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such quarter, and the related consolidated statements of income and cash flow
for the period commencing at the end of the previous fiscal year and ending with
the end of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the preceding
fiscal year, all in reasonable detail and duly certified (subject to normal
year-end adjustments) by the chief financial officer of the Company as having
been prepared in accordance with generally accepted accounting principles,
together with a certificate of the chief financial officer of the Company
stating (A) that no Event of Default or Default has occurred and is continuing
or, if an Event of Default or Default has occurred and is continuing, a
statement setting forth the details thereof and the action which the Company has
taken and proposes to take with respect thereto, and (B) that a computation
(which computation shall accompany such certificate and shall be in reasonable
detail) showing compliance with Section 5.2(a), (b) and (c) hereof is in
conformity with the terms of this Agreement;
40
(iii) As soon as available and in any event within 90 days after the end of
each fiscal year of the Company, a copy of the consolidated balance sheet of the
Company and its Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income and cash flow of the Company and its
Subsidiaries for such fiscal year, with a customary audit report of Ernst &
Young, or other independent certified public accountants selected by the Company
and acceptable to the Required Banks, without qualifications unacceptable to the
Required Banks, together with (A) either (I) a written statement of the
accountants that is making the examination necessary for their report or opinion
they obtained no knowledge of the occurrence of any Default or Event of Default
under this Agreement or (II) if they know of any Default or Event of Default,
their written disclosure of its nature and status, provided that, the
accountants shall not be liable directly or indirectly to anyone for any failure
to obtain knowledge of any Default or Event of Default under this Agreement, and
(B) a certificate of the chief financial officer of the Company stating (I) that
no Event of Default or Default has occurred and is continuing or, if an Event of
Default or Default has occurred and is continuing, a statement setting forth the
details thereof and the action which the Company has taken and proposes to take
with respect thereto, and (II) that a computation (which computation shall
accompany such certificate and shall be in reasonable detail) showing compliance
with Section 5.2(a), (b) and (c) hereof is in conformity with the terms of this
Agreement;
(iv) Promptly after the sending or filing thereof, copies of all reports,
proxy statements and financial statements which the Company sends to or files
with any of their respective security holders or any securities exchange or the
Securities and Exchange Commission or any successor agency thereof;
(v) Promptly and in any event within 10 calendar days after receiving or
becoming aware thereof (A) a copy of any notice of intent to terminate any Plan
of any Borrower, their respective Subsidiaries or any ERISA Affiliate filed with
the PBGC, (B) a statement of the chief financial officer of such Borrower
setting forth the details of the occurrence of any Reportable Event with respect
to any such Plan, (C) a copy of any notice that any Borrower, any of their
respective Subsidiaries or any ERISA Affiliate may receive from the PBGC
relating to the intention of the PBGC to terminate any such Plan or to appoint a
trustee to administer any such Plan, or (D) a copy of any notice of failure to
make a required installment or other payment within the meaning of Section
412(n) of the Code or Section 302(f) of ERISA with respect to any such Plan; and
(vi) Promptly, such other information respecting the business, properties,
operations or condition, financial or otherwise, of any Borrower or any of their
respective Subsidiaries as any Bank or the Agent may from time to time
reasonably request.
(e) Accounting; Access to Records, Books, Etc. Maintain a system of
accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in accordance with
generally accepted accounting principles and to comply with the requirements of
this Agreement and, on and after an Event of Default, at any reasonable time and
from time to time with prior notice to the Company, permit any Bank or the Agent
or any agents or representatives thereof to examine and make copies of and
abstracts from the records and books of account of, and visit the properties of,
the Borrowers and their respective Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrowers and their respective Subsidiaries with
their respective directors, officers, employees and independent auditors,
provided that representatives of the Company selected by the Company are present
during any such visit or discussion, and by this provision the Company does
hereby authorize such persons to discuss such affairs, finances and accounts
with any Bank or the Agent subject to the above terms and conditions.
41
(f) Stamp Taxes. The Company will pay all stamp taxes and similar taxes, if
any, including interest and penalties, if any, payable in respect of the Notes.
The efficacy of this subsection shall survive the payment in full of the Notes.
(g) Further Assurances. Will execute and deliver within 30 days after
request therefor by the Required Banks or the Agent, all further instruments and
documents and take all further action that may be necessary, in order to give
effect to, and to aid in the exercise and enforcement of the rights and remedies
of the Banks and the Agent under, this Agreement and the Notes. In addition, the
Company agrees to deliver to the Agent and the Banks on each anniversary of the
Effective Date supplements to Schedule 4.4 listing any Subsidiary not listed in
Schedule 4.4 hereto.
5.2 Negative Covenants. Until the Termination Date and thereafter until
irrevocable payment in full of the principal of and accrued interest on the
Notes and the performance of all other obligations of each Borrower under this
Agreement, the Company agrees that, unless the Required Banks shall otherwise
consent in writing it shall not:
(a) Interest Coverage Ratio. Permit or suffer the Interest
Coverage Ratio to be less than (i) during any quarter in which the ratio of
Consolidated Funded Debt of the Company and its Subsidiaries to Consolidated
Total Capitalization of the Company and its Subsidiaries is greater than 0.575
to 1.00 but less than 0.65 to 1.00, 2.25 to 1.0 and (ii) at all other times, 3.0
to 1.0; in each case calculated as of the end of each fiscal quarter for the
four immediately preceding fiscal quarters.
(b) Net Worth. Permit or suffer Consolidated Net Worth of the
Company and its Subsidiaries at any time to be less than $200,000,000 plus 50%
of Cumulative Consolidated Net Income of the Company and its Subsidiaries for
each fiscal year of the Company commencing with the fiscal year ending December
31, 1998. For the purpose of calculating "Net Worth" under this Section 5.2 (b)
only (but not for calculating Net Worth for any other purpose under this
Agreement, including without limitation calculation of the Applicable Margin),
an amount shall be added back to Net Worth equal to the aggregate amount of
capital stock repurchases by the Company, not to exceed $100,000,000.
(c) Funded Debt to Total Capitalization. Permit or suffer the
ratio of Consolidated Funded Debt of the Company and its Subsidiaries to
Consolidated Total Capitalization of the Company and its Subsidiaries to exceed
.65 to 1.0.
42
(d) Liens. Create, incur or suffer to exist any Lien on any of
the assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of the Company or any of
its Subsidiaries (except Unrestricted Margin Stock), other than:
(i) Liens for taxes not delinquent or for taxes being contested in good
faith by appropriate proceedings and as to which adequate financial reserves
have been established on its books and records;
(ii) Liens (other than any Lien imposed by ERISA) created and maintained in
the ordinary course of business which are not material in the aggregate, and
which would not have a material adverse effect on the business or operations of
the Company and its Subsidiaries taken as a whole and which constitute (A)
pledges or deposits under worker's compensation laws, unemployment insurance
laws or similar legislation, (B) good faith deposits in connection with bids,
tenders, contracts or leases to which the Company or any of its Subsidiaries is
a party for a purpose other than borrowing money or obtaining credit, including
rent security deposits, (C) liens imposed by law, such as those of carriers,
warehousemen and mechanics, if payment of the obligation secured thereby is not
yet due, (D) Liens securing taxes, assessments or other governmental charges or
levies not yet subject to penalties for nonpayment, and (E) pledges or deposits
to secure public or statutory obligations of the Company or any of its
Subsidiaries, or surety, customs or appeal bonds to which the Company or any of
its Subsidiaries is a party;
(iii) Liens affecting real property which constitute minor survey
exceptions or defects or irregularities in title, minor encumbrances, easements
or reservations of, or rights of others for, rights of way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or zoning or
other restrictions as to the use of such real property, provided that all of the
foregoing, in the aggregate, do not at any time materially detract from the
value of said properties or materially impair their use in the operation of the
businesses of the Company and its Subsidiaries taken as a whole;
(iv) Liens existing on the date hereof upon the same terms as the date
hereof, but no extensions, renewals and replacements thereof shall be permitted,
with each existing Lien securing Indebtedness in excess of $5,000,000 described
in Schedule 5.2 hereto;
(v) Liens granted by any Subsidiary in favor of the Company or any other
Subsidiary;
(vi) The interest or title of a lessor under any lease otherwise permitted
under this Agreement with respect to the property subject to such lease to the
extent performance of the obligations of the Company or its Subsidiary
thereunder is not delinquent;
(vii) Liens existing on property at the time of its acquisition (other than
any such Lien created in contemplation of such acquisition), provided that the
Company promptly forwards a schedule of such Liens to the Agent after any such
acquisition; and
(viii) Liens, other than Liens described in clauses (i) through (vii)
above, securing Indebtedness in an aggregate amount not to exceed 10% of
Consolidated Net Worth.
43
(e) Merger; Etc. Merge or consolidate or amalgamate with any
other person or take any other action having a similar effect, provided,
however, (i) a Subsidiary of the Company may merge with the Company, provided
that the Company shall be the surviving corporation, (ii) a Subsidiary of the
Company may merge or consolidate with another Subsidiary of the Company and
(iii) this Section 5.2(e) shall not prohibit any merger if the Company shall be
the surviving or continuing corporation and, immediately after such merger, no
Default or Event of Default shall exist or shall have occurred and be
continuing.
(f) Disposition of Assets; Etc. Sell, lease, license,
transfer, assign or otherwise dispose of all or a substantial portion of its
business, assets, rights, revenues or property, real, personal or mixed,
tangible or intangible, whether in one or a series of transactions, other than
inventory sold in the ordinary course of business upon customary credit terms
and sales of scrap or obsolete material or equipment and Unrestricted Margin
Stock, provided, however, that this Section 5.2(f) shall not prohibit (i) any
sale of the receivable portfolio of Invacare Credit Corporation, a wholly-owned
Subsidiary of the Company; or (ii) any such sale, lease, license, transfer,
assignment or other disposition if the aggregate book value (disregarding any
write-downs of such book value other than ordinary depreciation and
amortization) of all of the business, assets, rights, revenues and property
disposed of after the date of this Agreement shall be less than 33% of the
Consolidated Net Worth of the Company and its Subsidiaries, and if immediately
after such transaction, no Default or Event of Default shall exist or shall have
occurred and be continuing.
(g) Nature of Business. Engage in any business if, as a
result, the general nature of the business, taken on a consolidated basis, which
would then be engaged in by the Company and its Subsidiaries would be
substantially changed from the general nature of the business engaged in by the
Company and its Subsidiaries on the date of this Agreement which is the
manufacture, sale or lease of home medical and extended care equipment and
related products.
(h) Negative Pledge Limitation. Enter into any agreement, with
any person, other than the Banks pursuant hereto, which prohibits or limits the
ability of any Borrower or any Guarantor to create, incur, assume or suffer to
exist any Lien upon any of its assets, rights, revenues or property, real,
personal or mixed, tangible or intangible, whether now owned or hereafter
acquired, other than agreements evidencing Indebtedness in an aggregate amount
less than $5,000,000 or any Indebtedness assumed in connection with any
acquisition (provided that the Company shall provide notice to the Agent upon
the assumption of any Indebtedness in an aggregate amount exceeding $5,000,000
containing any such prohibition or limitation), but no renewal of such assumed
Indebtedness containing such restriction shall be permitted.
44
ARTICLE VI
DEFAULT
6.1 Events of Default. The occurrence of any one of the following
events or conditions shall be deemed an "Event of Default" hereunder unless
waived by the Required Banks or the Banks, as required pursuant to Section 8.1:
(a) Nonpayment of Principal. Any Borrower shall fail
to pay when due any principal of the Notes and such failure shall remain
unremedied for five days; or
(b) Nonpayment of Interest. Any Borrower shall fail to pay
when due any interest or any fees or any other amount payable hereunder and such
failure shall remain unremedied for five days; or
(c) Misrepresentation. Any representation or warranty made by
any Borrower in Article IV hereof, any other Loan Document or any other
certificate, report, financial statement or other document furnished by or on
behalf of any Borrower in connection with this Agreement shall prove to have
been incorrect in any material respect when made or deemed made; or
(d) Certain Covenants. Any Borrower shall fail to
perform or observe any term, covenant or agreement contained in Section 5.2(a),
(e) or (f) hereof; or
(e) Other Defaults. Any Borrower shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement or any
other Loan Document, and any such failure shall remain unremedied for 30
calendar days; or
(f) Cross Default. Any Borrower or any of their respective
Subsidiaries shall fail to pay any part of the principal of, the premium, if
any, or the interest on, or any other payment of money due under any of its
Indebtedness (other than Indebtedness hereunder), beyond any period of grace
provided with respect thereto, which individually or together with other such
Indebtedness as to which any such failure exists has an aggregate outstanding
principal amount in excess of $5,000,000; or any Borrower or any of their
respective Subsidiaries shall fail to perform or observe any other term,
covenant or agreement contained in any agreement, document or instrument
evidencing or securing any such Indebtedness having such aggregate outstanding
principal amount, or under which any such Indebtedness was issued or created,
beyond any period of grace, if any, provided with respect thereto and such
Borrower or such Subsidiary has been notified by the creditor of such default;
and the effect of any such failure is either (i) to cause, or permit the holders
of such Indebtedness (or a trustee on behalf of such holders) to cause, any
payment of such Indebtedness to become due prior to its due date or (ii) to
permit the holders of such Indebtedness (or a trustee on behalf of such holders)
to elect a majority of the board of directors of the Company; or
45
(g) Judgments. One or more judgments or orders shall be
rendered against or shall affect any Borrower or any of their respective
Subsidiaries which causes or could cause a material adverse change in the
financial condition of the Company and its Subsidiaries taken as a whole or
which does or could have a material adverse effect on the legality, validity or
enforceability of any Loan Document, and either (i) such judgment or order shall
have remained unsatisfied or uninsured for a period of 21 days and such Borrower
or such Subsidiary shall not have taken action necessary to stay enforcement
thereof by reason of pending appeal or otherwise, prior to the expiration of the
applicable period of limitations for taking such action or, if such action shall
have been taken, a final order denying such stay shall have been rendered, or
(ii) enforcement proceedings shall have been commenced by any creditor upon any
such judgment or order; or
(h) ERISA. The occurrence of a Reportable Event that results
in or could result in material liability of any Borrower, any Subsidiary of any
Borrower or their ERISA Affiliates to the PBGC or to any Plan and such
Reportable Event is not corrected within thirty (30) days after the occurrence
thereof; or the occurrence of any Reportable Event which could constitute
grounds for termination of any Plan of any Borrower, their respective
Subsidiaries or their ERISA Affiliates by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer any such
Plan and such Reportable Event is not corrected within thirty (30) days after
the occurrence thereof; or the filing by any Borrower, any Subsidiary of any
Borrower or any of their ERISA Affiliates of a notice of intent to terminate a
Plan or the institution of other proceedings to terminate a Plan; or any
Borrower, any Subsidiary of any Borrower or any of their ERISA Affiliates shall
fail to pay when due any material liability to the PBGC or to a Plan; or the
PBGC shall have instituted proceedings to terminate, or to cause a trustee to be
appointed to administer, any Plan of any Borrower, their respective Subsidiaries
or their ERISA Affiliates; or any person engages in a Prohibited Transaction
with respect to any Plan which results in or could result in material liability
of the any Borrower, any Subsidiary of any Borrower, any of their ERISA
Affiliates, any Plan of any Borrower, their respective Subsidiaries or their
ERISA Affiliates or fiduciary of any such Plan; or failure by any Borrower, any
Subsidiary of any Borrower or any of their ERISA Affiliates to make a required
installment or other payment to any Plan within the meaning of Section 302(f) of
ERISA or Section 412(n) of the Code that results in or could result in liability
of any Borrower, any Subsidiary of any Borrower or any of their ERISA Affiliates
to the PBGC or any Plan; or the withdrawal of any Borrower, any of their
respective Subsidiaries or any of their ERISA Affiliates from a Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(9a)(2) of ERISA; or any Borrower, any of their respective Subsidiaries or
any of their ERISA Affiliates becomes an employer with respect to any
Multiemployer Plan without the prior written consent of the Required Banks; or
46
(i) Insolvency, Etc. Any Borrower shall be dissolved or
liquidated (or any judgment, order or decree therefor shall be entered), except
as otherwise provided pursuant to Section 5.2(e), or shall generally not pay its
debts as they become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of
creditors, or shall institute, or there shall be instituted against any
Borrower, any proceeding or case seeking to adjudicate it a bankrupt or
insolvent or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief or protection of
debtors or seeking the entry of an order for relief, or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its assets, rights, revenues or property, and, if such
proceeding is instituted against any Borrower and is being contested by such
Borrower in good faith by appropriate proceedings, such proceeding shall remain
undismissed or unstayed for a period of 60 days; or any Borrower shall take any
action (corporate or other) to authorize or further any of the actions described
above in this subsection; provided, however, that none of the foregoing acts or
occurrences in this Section 6.1(i) with respect to any Borrowing Subsidiary
shall constitute an Event of Default so long as there are no Advances
outstanding to such Borrowing Subsidiary at the time of such act or occurrence,
provided, that, the Commitment of the Banks to such Borrowing Subsidiary shall
automatically terminate without notice; or
(j) Change of Control. The Company shall experience a Change
of Control. For purposes of this Section 6.1(j), a "Change of Control" shall
occur if during any twelve-month period (i) any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership (within the meaning of Rule
13D-3 promulgated by the Securities and Exchange Commission under said Act) of
50% or more in voting power of the voting shares of the Company that were
outstanding as of the date of this Agreement and (ii) a majority of the board of
directors of the Company shall cease for any reason to consist of individuals
who as of a date twelve months prior to any date compliance herewith is
determined were directors of the Company.
6.2 Remedies.
(a) Upon the occurrence and during the continuance of any
Event of Default, the Agent may and, upon being directed to do so by the
Required Banks, shall by notice to the Company (i) terminate the Commitments or
(ii) declare the outstanding principal of, and accrued interest on, the Notes
and all other amounts owing under this Agreement to be immediately due and
payable, or (iii) demand immediate delivery of cash collateral, and the
Borrowers agree to deliver such cash collateral upon demand, in an amount equal
to the maximum amount that may be available to be drawn at any time prior to the
stated expiry of all outstanding Letters of Credit, or any one or more of the
foregoing, whereupon the Commitments shall terminate forthwith and all such
amounts, including cash collateral, shall become immediately due and payable,
provided that in the case of any event or condition described in Section 6.1(i)
with respect to any Borrower, the Commitments shall automatically terminate
forthwith and all such amounts, including cash collateral, shall automatically
become immediately due and payable without notice; in all cases without demand,
presentment, protest, diligence, notice of dishonor or other formality, all of
which are hereby expressly waived. Such cash collateral delivered in respect of
outstanding Letters of Credit shall be deposited in a special cash collateral
account to be held by the Agent as collateral security for the payment and
performance of the Borrowers' obligations under this Agreement to the Banks and
the Agent.
(b) The Agent may and, upon being directed to do so by the
Required Banks, shall, in addition to the remedies provided in Section 6.2(a),
exercise and enforce any and all other rights and remedies available to it or
the Banks, whether arising under this Agreement, the Notes or under applicable
law, in any manner deemed appropriate by the Agent, including suit in equity,
action at law, or other appropriate proceedings, whether for the specific
performance (to the extent permitted by law) of any covenant or agreement
contained in this Agreement or in the Notes or in aid of the exercise of any
power granted in this Agreement or the Notes.
47
(c) Upon the occurrence and during the continuance of any
Event of Default, each Bank may at any time and from time to time exercise any
of its rights of set off or bankers lien that it may possess by common law or
statute without prior notice to the Borrowers, provided that each Bank may also
set off against any deposit whether or not it is then matured. Each Bank agrees
to promptly notify the Company after any such setoff and application, provided
that the failure to give such notice shall not effect the validity of such
setoff and application. The rights of such Bank under this Section 6.2(c) are in
addition to other rights and remedies which such Bank may have.
ARTICLE VII
THE AGENT AND THE BANKS
7.1 Appointment and Authorization. Each Bank hereby irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto. The provisions of this Article VII are solely for
the benefit of the Agent and the Banks, and the Borrowers shall not have any
rights as a third party beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Banks and does not assume and shall not be deemed to have
assumed any obligation towards or relationship of agency or trust with or for
the Borrowers.
7.2 Agent and Affiliates. NBD Bank in its capacity as a Bank hereunder
shall have the same rights and powers hereunder as any other Bank and may
exercise or refrain from exercising the same as though it were not the Agent.
NBD Bank and its affiliates may (without having to account therefor to any Bank)
accept deposits from, lend money to, and generally engage in any kind of
banking, trust, financial advisory or other business with any Borrower or any
Subsidiary of any Borrower as if it were not acting as Agent hereunder, and may
accept fees and other consideration therefor without having to account for the
same to the Banks.
7.3 Scope of Agent's Duties. The Agent shall have no duties or
responsibilities except those expressly set forth herein, and shall not, by
reason of this Agreement, have a fiduciary relationship with any Bank, and no
implied covenants, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or shall otherwise exist against the Agent. As to any
matters not expressly provided for by this Agreement (including, without
limitation, collection and enforcement actions under the Notes), the Agent shall
not be required to exercise any discretion or take any action, but the Agent
shall take such action or omit to take any action pursuant to the written
instructions of the Required Banks and may request instructions from the
Required Banks. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, pursuant to the written instructions of the Required
Banks, which instructions and any action or omission pursuant thereto shall be
binding upon all of the Banks; provided, however, that the Agent shall not be
required to act or omit to act if, in the judgment of the Agent, such action or
omission may expose the Agent to personal liability or is contrary to this
Agreement, the Notes or applicable law.
48
7.4 Reliance by Agent. The Agent shall be entitled to rely upon any
certificate, notice, document or other communication (including any cable,
telegram, telex, facsimile transmission or oral communication) believed by it to
be genuine and correct and to have been sent or given by or on behalf of a
proper person. The Agent may treat the payee of any Note as the holder thereof
unless and until the Agent receives written notice of the assignment thereof
pursuant to the terms of this Agreement signed by such payee and the Agent
receives the written agreement of the assignee that such assignee is bound
hereby to the same extent as if it had been an original party hereto. The Agent
may employ agents (including without limitation collateral agents) and may
consult with legal counsel (who may be counsel for the Borrowers), independent
public accountants and other experts selected by it and shall not be liable to
the Banks, except as to money or property received by it or its authorized
agents, for the negligence or misconduct of any such agent selected by it with
reasonable care or 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.
7.5 Default. The Agent shall not be deemed to have knowledge of the
occurrence of any Default or Event of Default, unless the Agent has received
written notice from a Bank or a Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice, the Agent shall give written notice thereof to
the Banks.
7.6 Liability of Agent. Neither the Agent nor any of its directors,
officers, agents, or employees shall be liable to the Banks for any action taken
or not taken by it or them in connection herewith with the consent or at the
request of the Required Banks or in the absence of its or their own gross
negligence or willful misconduct. Except for duties expressly accepted by the
Agent hereunder, 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 recital, statement, warranty or representation contained in
this Agreement or any Note or any Guaranty, or in any certificate, report,
financial statement or other document furnished in connection with this
Agreement, (ii) the performance or observance of any of the covenants or
agreements of any Borrower or any Guarantor, (iii) the satisfaction of any
condition specified in Article II hereof, or (iv) the validity, effectiveness,
legal enforceability, value or genuineness of this Agreement or the Notes or any
collateral subject thereto or any other instrument or document furnished in
connection herewith.
49
7.7 Nonreliance on Agent and Other Banks. Each Bank acknowledges and
agrees that it has, independently and without reliance on the Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Borrowers and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decision in
taking or not taking action under this Agreement. The Agent shall not be
required to keep itself informed as to the performance or observance by any
Borrower or any Guarantor of this Agreement, the Notes or any other documents
referred to or provided for herein or to inspect the properties or books of any
Borrower or any Guarantor and, except for notices, reports and other documents
and information expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank with any information concerning the affairs, financial condition or
business of the Borrowers or any of their respective Subsidiaries which may come
into the possession of the Agent or any of its affiliates.
7.8 Indemnification. The Banks agree to indemnify the Agent (to the
extent not reimbursed by the Borrowers, but without limiting any obligation of
the Borrowers to make such reimbursement), ratably according to the respective
principal amounts of the Advances then outstanding made by each of them (or if
no Advances are at the time outstanding, ratably according to the respective
amounts of their Commitments), from and against any and all claims, damages,
losses, liabilities, costs or expenses of any kind or nature whatsoever
(including, without limitation, fees and disbursements of counsel) which may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or the transactions contemplated hereby or any
action taken or omitted by the Agent under this Agreement, provided, however,
that no Bank shall be liable for any portion of such claims, damages, losses,
liabilities, costs or expenses resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including without limitation fees and expenses of
counsel) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that
the Agent is not reimbursed for such expenses by the Borrowers, but without
limiting the obligation of the Borrowers to make such reimbursement. Each Bank
agrees to reimburse the Agent promptly upon demand for its ratable share of any
amounts owing to the Agent by the Banks pursuant to this Section. If the
indemnity furnished to the Agent under this Section shall, in the judgment of
the Agent, be insufficient or become impaired, the Agent may call for additional
indemnity from the Banks and cease, or not commence, to take any action until
such additional indemnity is furnished.
7.9 Resignation of Agent. The Agent may resign as such at any time upon
thirty days' prior written notice to the Borrowers and the Banks. In the event
of any such resignation, the Company shall, by an instrument in writing
delivered to the Banks and the Agent, appoint a successor, which shall be a Bank
or any other commercial bank organized under the laws of the United States or
any State thereof and having a combined capital and surplus of at least
$500,000,000. If a successor is not so appointed or does not accept such
appointment before the Agent's resignation becomes effective, the resigning
Agent may appoint a temporary successor to act until such appointment by the
Company is made and accepted any successor to the Agent shall execute and
deliver to the Borrowers and the Banks an instrument accepting such appointment
and thereupon such successor Agent, without further act, deed, conveyance or
transfer shall become vested with all of the properties, rights, interests,
powers, authorities and obligations of its predecessor hereunder with like
effect as if originally named as Agent hereunder. Upon request of such successor
Agent, the Borrowers and the resigning Agent shall execute and deliver such
instruments of conveyance, assignment and further assurance and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in such successor Agent all such properties, rights, interests,
powers, authorities and obligations. The provisions of this Article VII shall
thereafter remain effective for such resigning Agent with respect to any actions
taken or omitted to be taken by such Agent while acting as the Agent hereunder.
50
7.10 Sharing of Payments. The Banks agree among themselves that, in the
event that any Bank shall obtain payment in respect of any Advance or any other
obligation owing to the Banks under this Agreement through the exercise of a
right of set-off, banker's lien, counterclaim or otherwise in excess of its
ratable share of payments received by all of the Banks on account of the
Advances and other obligations (or if no Advances are outstanding, ratably
according to the respective amounts of the Commitments), such Bank shall
promptly purchase from the other Banks participations in such Advances and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all of the Banks share such payment in
accordance with such ratable shares. The Banks further agree among themselves
that if payment to a Bank obtained by such Bank through the exercise of a right
of set-off, banker's lien, counterclaim or otherwise as aforesaid shall be
rescinded or must otherwise be restored, each Bank which shall have shared the
benefit of such payment shall, by repurchase of participations theretofore sold,
return its share of that benefit to each Bank whose payment shall have been
rescinded or otherwise restored. The Borrowers agree that any Bank so purchasing
such a participation may, to the fullest extent permitted by law, exercise all
rights of payment, including set-off, banker's lien or counterclaim, with
respect to such participation as fully as if such Bank were a holder of such
Advance or other obligation in the amount of such participation. The Banks
further agree among themselves that, in the event that amounts received by the
Banks and the Agent hereunder are insufficient to pay all such obligations or
insufficient to pay all such obligations when due, the fees and other amounts
owing to the Agent in such capacity shall be paid therefrom before payment of
obligations owing to the Banks under this Agreement, other than agency fees
payable pursuant to Section 2.5(d) of this Agreement which shall be paid on a
pro rata basis with amounts owing to the Banks. Except as otherwise expressly
provided in this Agreement, if any Bank or the Agent shall fail to remit to the
Agent or any other Bank an amount payable by such Bank or the Agent to the Agent
or such other Bank pursuant to this Agreement on the date when such amount is
due, such payments shall be made together with interest thereon for each date
from the date such amount is due until the date such amount is paid to the Agent
or such other Bank at a rate per annum equal to the rate at which borrowings are
available to the payee in its overnight federal funds market. It is further
understood and agreed among the Banks and the Agent that if the Agent or any
Bank shall engage in any other transactions with any Borrower and shall have the
benefit of any collateral or security therefor which does not expressly secure
the obligations arising under this Agreement except by virtue of a so-called
dragnet clause or comparable provision, the Agent or such Bank shall be entitled
to apply any proceeds of such collateral or security first in respect of the
obligations arising in connection with such other transaction before application
to the obligations arising under this Agreement.
7.11 Local Custom. Notwithstanding anything herein to the contrary, if
requested by the Required Banks, all Loans made hereunder shall be made in
compliance with local market custom and legal practice as determined solely by
the Agent, whether or not such custom and legal practices have the force of law.
51
7.12 Withholding Tax Exemption. Each Bank that is not organized and
incorporated under the laws of the United States or any State thereof agrees to
file with the Agent and the Company, in duplicate, (a) on or before the later of
(i) the Effective Date and (ii) the date such Bank becomes a Bank under this
Agreement and (b) thereafter, for each taxable year of such Bank (in the case of
a Form 4224) or for each third taxable year of such Bank (in the case of any
other form) during which interest or fees arising under this Agreement and the
Notes are received, unless not legally able to do so as a result of a change in
United States income tax enacted, or treaty promulgated, after the date
specified in the preceding clause (a), on or prior to the immediately following
due date of any payment by the Company hereunder, a properly completed and
executed copy of either Internal Revenue Service Form 4224 or Internal Revenue
Service Form 1001 and Internal Revenue Service Form W-8 or Internal Revenue
Service Form W-9 and any additional form necessary for claiming complete
exemption from United States withholding taxes (or such other form as is
required to claim complete exemption from United States withholding taxes), if
and as provided by the Code or other pronouncements of the United States
Internal Revenue Service, and such Bank warrants to the Company that the form so
filed will be true and complete; provided that such Bank's failure to complete
and execute such Form 4224 or Form 1001, or Form W-8 or Form W-9, as the case
may be, and any such additional form (or any successor form or forms) shall not
relieve the Company of any of its obligations under this Agreement, except as
otherwise provided in Section 3.4.
7.13 Co-Agent. The Co-Agent shall have all of the duties which may be
agreed upon or assigned to it from time to time by the Agent. In the event any
such duties are assigned to the Co-Agent, the Co-Agent shall be entitled to the
same indemnifications and other protections and held to the same standard of
care as provided in this Article VII for the Agent.
ARTICLE VIII
MISCELLANEOUS
8.1 Amendments, Etc.
(a) No amendment, modification, termination or waiver of any
provision of this Agreement nor any consent to any departure therefrom shall be
effective unless the same shall be in writing and signed by the Borrowers and
the Required Banks and, to the extent any rights or duties of the Agent may be
affected thereby, the Agent, provided, however, that no such amendment,
modification, termination, waiver or consent shall, without the consent of the
Agent and all of the Banks, (i) authorize or permit the extension of time for,
or any reduction of the amount of, any payment of the principal of, or interest
on, the Advances or any Letter of Credit reimbursement obligation, or any fees
or other amount payable hereunder, (ii) amend or terminate the respective
Commitment of any Bank set forth on the signature pages hereof or modify the
provisions of this Section regarding the taking of any action under this Section
or the provisions of Section 7.10, Section 8.6(a) or the definition of Required
Banks or (iii) amend or modify the Guaranty (other than any amendment solely for
the purpose of adding or deleting a Borrowing Subsidiary) or provide for the
release or discharge of the Company's obligations under the Guaranty.
52
(b) Any such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
(c) Notwithstanding anything herein to the contrary, no Bank
that is in default of any of its obligations, covenants or agreements under this
Agreement shall be entitled to vote (whether to consent or to withhold its
consent) with respect to any amendment, modification, termination or waiver of
any provision of this Agreement or any departure therefrom or any direction from
the Banks to the Agent, and, for purposes of determining the Required Banks at
any time when any Bank is in default under this Agreement, the Commitments and
Advances of such defaulting Banks shall be disregarded.
8.2 Notices.
(a) Except as otherwise provided in Section 8.2(c) hereof, all
notices and other communications hereunder shall be in writing and shall be
delivered or sent to the Borrowers in case of the Treasury Manager at Xxx
Xxxxxxxx Xxx, Xxxxxx, Xxxx 00000, Attention: Chief Financial Officer, Facsimile
No. (000) 000-0000, and to the Agent and the Banks at the respective addresses
and numbers for notices set forth on the signatures pages hereof, or to such
other address as may be designated by any Borrower, the Agent or any Bank by
notice to the other parties hereto. All notices and other communications shall
be deemed to have been given at the time of actual delivery thereof to such
address, or if sent by certified or registered mail, postage prepaid, to such
address, on the third day after the date of mailing, or if deposited prepaid
with Federal Express or other nationally recognized overnight delivery service
prior to the deadline for next day delivery, on the Business Day next following
such deposit, provided, however, that notices to the Agent shall not be
effective until received.
(b) Notices by the Treasury Manager or a Borrower to the Agent
with respect to terminations or reductions of the Commitments pursuant to
Section 2.4, requests for Advances pursuant to Section 2.6, requests for
continuations or conversions of Loans pursuant to Section 2.9 and notices of
prepayment pursuant to Section 3.1 shall be irrevocable and binding on the
Borrowers.
53
(c) Any notice to be given by the Treasury Manager or a
Borrower to the Agent pursuant to Sections 2.6 or 2.9 and any notice to be given
by the Agent or any Bank hereunder, may be given by telephone, and all such
notices given by the Treasury Manager or a Borrower must be immediately
confirmed in writing in the manner provided in Section 8.2(a). Any such notice
given by telephone shall be deemed effective upon receipt thereof by the party
to whom such notice is to be given.
8.3 No Waiver By Conduct; Remedies Cumulative. No course of dealing on
the part of the Agent or any Bank, nor any delay or failure on the part of the
Agent or any Bank in exercising any right, power or privilege hereunder shall
operate as a waiver of such right, power or privilege or otherwise prejudice the
Agent's or such Bank's rights and remedies hereunder; nor shall any single or
partial exercise thereof preclude any further exercise thereof or the exercise
of any other right, power or privilege. No right or remedy conferred upon or
reserved to the Agent or any Bank under this Agreement or the Notes or any
Guaranty is intended to be exclusive of any other right or remedy, and every
right and remedy shall be cumulative, except as limited by this Agreement, and
in addition to every other right or remedy granted thereunder or now or
hereafter existing under any applicable law. Every right and remedy granted by
this Agreement or the Notes or any Guaranty or by applicable law to the Agent or
any Bank may be exercised from time to time and as often as may be deemed
expedient by the Agent or any Bank and, unless contrary to the express
provisions of this Agreement or the Notes or such Guaranty, irrespective of the
occurrence or continuance of any Default or Event of Default.
8.4 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of any Borrower or any
Guarantor made herein, in any Guaranty or in any certificate, report, financial
statement or other document furnished by or on behalf of any Borrower or any
Guarantor in connection with this Agreement shall be deemed to be material and
to have been relied upon by the Banks, notwithstanding any investigation
heretofore or hereafter made by any Bank or on such Bank's behalf, and those
covenants and agreements of the Borrowers set forth in Sections 3.6, 3.8, 5.1(f)
and 8.5 hereof shall survive the repayment in full of the Advances and the
termination of the Commitments for a period of one year from such repayment or
termination.
8.5 Expenses; Indemnification. (a) The Company agrees to pay, or
reimburse the Agent for the payment of, on demand, (i) the reasonable fees,
without premium, and expenses of counsel to the Agent, including without
limitation the reasonable fees and expenses of Dickinson, Wright, Moon, Van
Dusen & Xxxxxxx as agreed upon with the Company in connection with the
preparation, execution, delivery and administration of the Loan Documents and
the consummation of the transactions contemplated hereby, and in connection with
advising the Agent as to its rights and responsibilities with respect thereto,
and in connection with any amendments, waivers or consents in connection
therewith, and (ii) all stamp and other taxes and fees payable or determined to
be payable in connection with the execution, delivery, filing or recording of
this Agreement, the Notes and the consummation of the transactions contemplated
hereby, and any and all liabilities with respect to or resulting from any delay
in paying or omitting to pay such taxes or fees, and (iii) all reasonable costs
and expenses of the Agent (including without limitation reasonable fees and
expenses of counsel, which counsel shall be acceptable to the Required Banks,
including without limitation counsel who are employees of the Agent, and whether
incurred through negotiations, legal proceedings or otherwise) in connection
with any Default or Event of Default or the enforcement of, or the exercise or
preservation of any rights under the Loan Documents or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement and (iv) all reasonable costs and expenses of the Agent and the Banks
(including reasonable fees and expenses of counsel) in connection with any
action or proceeding relating to a court order, injunction or other process or
decree restraining or seeking to restrain the Agent from paying any amount
under, or otherwise relating in any way to, any Letter of Credit and any and all
costs and expenses which any of them may incur relative to any payment under any
Letter of Credit.
54
(b) Each Borrower hereby indemnifies and agrees to hold harmless the
Banks and the Agent, and their respective officers, directors, employees and
agents, from and against any and all claims, damages, losses, liabilities, costs
or expenses of any kind or nature whatsoever which the Banks or the Agent or any
such person may incur or which may be claimed against any of them by reason of
or in connection with entering into this Agreement or the transactions
contemplated hereby; provided, however, that no Borrower shall be required to
indemnify any such Bank and the Agent or such other person, to the extent, but
only to the extent, that such claim, damage, loss, liability, cost or expense is
attributable to the gross negligence or willful misconduct of such Bank or the
Agent, as the case may be.
8.6 Successors and Assigns; Additional Banks. (a) This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no Borrower may, without the
prior consent of the Banks, assign its rights or obligations hereunder or under
the Notes and the Banks shall not be obligated to make any Loan hereunder to any
entity other than the Borrowers.
(b) Any Bank may, without the prior consent of the Company
sell to any financial institution or institutions, and such financial
institution or institutions may further sell, a participation interest
(undivided or divided) in, the Loans and such Bank's rights and benefits under
this Agreement and the Notes, and to the extent of that participation interest
such participant or participants shall have the same rights and benefits against
the Borrowers under Section 3.6, 3.8 and 6.2(c) as it or they would have had if
such participant or participants were the Bank making the Loans to the Borrowers
hereunder, provided, however, that (i) such Bank's obligations under this
Agreement shall remain unmodified and fully effective and enforceable against
such Bank, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Bank shall remain the
holder of its Notes for all purposes of this Agreement, (iv) the Borrowers, the
Agent and the other Banks shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement,
and (v) such Bank shall not grant to its participant any rights to consent or
withhold consent to any action taken by such Bank or the Agent under this
Agreement other than action requiring the consent of all of the Banks hereunder.
55
(c) The Agent from time to time in its sole discretion may
appoint agents for the purpose of servicing and administering this Agreement and
the transactions contemplated hereby and enforcing or exercising any rights or
remedies of the Agent provided under this Agreement, the Notes or otherwise. In
furtherance of such agency, the Agent may from time to time direct that the
Borrowers provide notices, reports and other documents contemplated by this
Agreement (or duplicates thereof) to such agent. Each Borrower hereby consents
to the appointment of such agent and agrees to provide all such notices, reports
and other documents and to otherwise deal with such agent acting on behalf of
the Agent in the same manner as would be required if dealing with the Agent
itself.
(d) Each Bank may, with the prior consent of the Company and
the Agent (which consent, in each case, will not be unreasonably withheld),
assign to one or more banks or other entities all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Loans owing to it and the Note or Notes held by
it); provided, however, that (i) each such assignment shall be of a uniform, and
not a varying, percentage of all rights and obligations, (ii) except in the case
of an assignment of all of a Bank's rights and obligations under this Agreement,
(A) the amount of the Commitment of the assigning Bank being assigned pursuant
to each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than
$5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser
amount as the Company and the Agent may consent to and (B) after giving effect
to each such assignment, the amount of the Commitment of the assigning Bank
shall in no event be less than $3,000,000, (iii) the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance in the form of Exhibit L
hereto (an "Assignment and Acceptance"), together with any Note or Notes subject
to such assignment and a processing and recordation fee of $4,000, and (iv) any
Bank may without the consent of the Company or the Agent, and without paying any
fee, assign or sell a participation interest to any Affiliate of such Bank that
is a bank or financial institution all or a portion of its rights and
obligations under this Agreement. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Bank
hereunder and (y) the Bank assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all of
the remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto).
(e) By executing and delivering an Assignment and Acceptance,
the Bank assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.6 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning 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 action under this
Agreement; (v) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Bank.
56
(f) The Agent shall maintain at its address designated on the
signature pages hereof a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Banks and the Commitment of, and principal amount of the Loans owing to,
each Bank from time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and the
Company, the Borrowing Subsidiaries, the Agent and the Banks may treat each
person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Company or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(g) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an assignee, together with any Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Company. Within five (5) Business Days after its receipt of such
notice, the Borrowers, at their own expense, shall execute and deliver to the
Agent in exchange for the surrendered Note or Notes a new Note to the order of
such assignee in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Bank has retained a
Commitment hereunder, a new Note to the order of the assigning Bank in an amount
equal to the Commitment retained by it hereunder. Such new Note or Notes shall
be in an aggregate principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit L hereto.
(h) No Borrower shall be liable for any costs or expenses of
any Bank in effectuating any participation or assignment under this Section 8.6.
(i) In addition, the Company and the Agent may from time to
time designate additional financial institutions (the "Additional Banks") to be
parties to this Agreement and to become a Bank hereunder upon the execution and
delivery to the Agent of an Assumption Agreement in the form of Exhibit M hereto
(an "Assumption Agreement"). Any Additional Bank shall become a party to this
Agreement and be considered a Bank hereunder for all purposes if (a) it shall
execute and deliver to the Agent an Assumption Agreement, (b) it shall make
Revolving Credit Advances to the Borrowers in the principal amount which bears
the same ratio to the amounts of the Revolving Credit Advances of the other
Banks then outstanding as the Commitment of such Additional Bank bears to the
then Commitments of such other Banks, and (c) a copy of such Assumption
Agreement and evidence satisfactory to the Agent of the making of such Revolving
Credit Advances hall be furnished to the Banks, together with a schedule showing
the Commitment amount of each Bank and the new Percentage of Total Commitment of
each Bank. In connection with adding Additional Banks, the aggregate Total
Commitments may be increased to an amount not to exceed $425,000,000 with the
consent of the Company and the Agent and without the consent of any Bank.
57
(j) The Banks may, in connection with any assignment,
participation or addition of a bank or proposed assignment, participation or
addition pursuant to this Section 8.6, disclose to the assignee, participant or
Additional Bank or proposed assignee, participant or Additional Bank any
information relating to the Borrowers.
(k) Notwithstanding any other provision set forth in this
Agreement, any Bank may at any time create a security interest in, or assign,
all or any portion of its rights under this Agreement (including, without
limitation, the Loans owing to it and the Note or Notes held by it) in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System; provided that such creation of a
security interest or assignment shall not release such Bank from its obligations
under this Agreement.
8.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.8 Governing Law; Consent to Jurisdiction. This Agreement is a
contract made under, and shall be governed by and construed in accordance with,
the law of the State of Michigan applicable to contracts made and to be
performed entirely within such State and without giving effect to choice of law
principles of such State. Each Borrower further agrees that any legal action or
proceeding with respect to this Agreement or the Notes or the transactions
contemplated hereby shall be brought in any court of the State of Michigan, or
in any court of the United States of America sitting in Michigan, and each
Borrower hereby irrevocably submits to and accepts generally and unconditionally
the jurisdiction of those courts with respect to its person and property, and
irrevocably appoints Xxxxxx X. Xxxxxxx, whose address is set forth in Section
8.2, as its agent for service of process and irrevocably consents to the service
of process in connection with any such action or proceeding by personal delivery
to such agent or to the Borrowers or by the mailing thereof by registered or
certified mail, postage prepaid to the Borrowers at the address set forth in
Section 8.2. Nothing in this paragraph shall affect the right of the Banks and
the Agent to serve process in any other manner permitted by law or limit the
right of the Banks or the Agent to bring any such action or proceeding against
the Borrowers or property in the courts of any other jurisdiction. Each Borrower
hereby irrevocably waives any objection to the laying of venue of any such suit
or proceeding in the above described courts.
58
8.9 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
8.10 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any person, or which such person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such person, whether or not expressly
specified in such provision.
8.11 Integration and Severability. This Agreement and the Notes embody
the entire agreement and understanding between the Borrowers and the Agent and
the Banks, and supersede all prior agreements and understandings, relating to
the subject matter hereof. In case any one or more of the obligations of any
Borrower under this Agreement or the Notes shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining obligations of such Borrower and the other Borrowers shall not in
any way be affected or impaired thereby, and such invalidity, illegality or
unenforceability in one jurisdiction shall not affect the validity, legality or
enforceability of the obligations of the Borrowers under this Agreement or the
Notes in any other jurisdiction.
8.12 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default or an Event of Default if such action is taken or
such condition exists.
8.13 Interest Rate Limitation. Notwithstanding any provisions of this
Agreement or the Notes, in no event shall the amount of interest paid or agreed
to be paid by any Borrower exceed an amount computed at the highest rate of
interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or the Notes at the
time performance of such provision shall be due, shall involve exceeding the
interest rate limitation validly prescribed by law which a court of competent
jurisdiction may deem applicable hereto, then, ipso facto, the obligations to be
fulfilled shall be reduced to an amount computed at the highest rate of interest
permissible under applicable law, and if for any reason whatsoever any Bank
shall ever receive as interest an amount which would be deemed unlawful under
such applicable law such interest shall be automatically applied to the payment
of principal of such Bank's Advances outstanding hereunder (whether or not then
due and payable) and not to the payment of interest, or shall be refunded to the
Borrowers if such principal and all other obligations of the Borrowers to such
Bank have been paid in full.
8.14 Confidentiality. The Banks and the Agent shall hold all
confidential information obtained pursuant to the requirements of this Agreement
which has been identified as such by the Company in accordance with their
customary procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event may make
disclosure to its examiners, affiliates, outside auditors, counsel and other
professional advisors in connection with this Agreement or as reasonably
required by any bona fide transferee or participant in connection with the
contemplated transfer of any Note or participation therein or as required or
requested by any governmental agency or representative thereof or pursuant to
legal process. Without limiting the foregoing, it is expressly understood that
such confidential information shall not include information which, at the time
of disclosure is in the public domain or, which after disclosure, becomes part
of the public domain or information which is obtained by any Bank or the Agent
prior to the time of disclosure and identification by the Company under this
Section, or information received by any Bank or the Agent from a third party.
Nothing in this Section or otherwise shall prohibit any Bank or the Agent from
disclosing any confidential information to the other Banks or the Agent or
render any of them liable in connection with any such disclosure.
59
8.15 Relationship of this Agreement to the Existing Loan Agreements. This
Agreement shall become effective on the Effective Date. On the Effective Date,
all amounts outstanding under the Existing Loan Agreements shall be considered a
part of the Advances under this Agreement for all purposes, as if made in
accordance with and pursuant to the terms of this Agreement. On and after the
Effective Date, (i) no further fees shall accrue to the Agent or Banks under the
Existing Loan Agreements and all fees accrued under the Existing Loan Agreements
to (but excluding) the Effective Date shall constitute accrued fees hereunder
and be payable in accordance with the terms hereof and (ii) the rights and
obligations of the parties hereto shall be governed solely by this Agreement,
except in respect of any rights or obligations arising prior to the Effective
Date and which shall survive the Effective Date. This Agreement amends and
restates in full the terms and provisions of the 1994 Loan Agreement and the
1997 Loan Agreement and is not intended to constitute a novation or satisfaction
of or a renunciation or cancellation or other discharge or the indebtedness and
other liabilities and obligations created under and evidenced by the Existing
Loan Agreements.
8.16 Waiver of Jury Trial. The Borrowers, the Banks and the Agent,
after consulting or having had the opportunity to consult with counsel,
knowingly, voluntarily and intentionally waive any right either of them may have
to a trial by jury in any litigation based upon or arising out of this Agreement
or any other Loan Document or any of the transactions contemplated by this
Agreement or any course of conduct, dealing, statements (whether oral or
written) or actions of any of them. Neither any Borrower, any Bank nor the Agent
shall seek to consolidate, by counterclaim or otherwise, any such action in
which a jury trial has been waived with any other action in which a jury trial
cannot be or has not been waived. These provisions shall not be deemed to have
been modified in any respect or relinquished by any party hereto except by a
written instrument executed by such party.
8.17 Unification of Certain Currencies. If the "Euro" (or some other
similar unit of account) becomes a currency in its own right in connection with
the European Monetary Union contemplated by the Maastricht Treaty, then each of
the Borrowers, the Banks, the Agent and the Co-Agent agrees to negotiate in good
faith any required amendment or modification to this Agreement satisfactory in
form and substance to the Borrowers, the Banks, the Agent and the Co-Agent to
account therefor.
60
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered on the _____ day of November, 1997, which shall be
the Effective Date of this Agreement, notwithstanding the day and year first
above written.
INVACARE CORPORATION
By: Xxxxxx X. Xxxxxxx
----------------------------
Its: Chief Financial Officer
INVACARE INTERNATIONAL CORPORATION
By: By: Xxxxxx X. Xxxxxxx
-----------------------------
Its: Treasurer and Secretary
INVACARE (UK) LIMITED
By: Xxxxxx X. Xxxxxxx
---------------------------
Its: Director
INVACARE (DEUTSCHLAND) GmbH
By: Xxxxx Xxxxxxxxxxxx
--------------------------
Its: Director
BENCRAFT LIMITED
By: Xxxxxx X. Xxxxxxx
--------------------------
Its: Director
61
KUSCHALL DESIGN AG
By: Xxxxxx X. Xxxxxx
--------------------------
Its: President
INVACARE AUSTRALIA PTY. LTD.
By: Xxxxxx X. Xxxxxxx
----------------------------
Its: Director
INVACARE CANADA INC.
By: Xxxxxx X. Xxxxxxx
---------------------------
Its: Treasurer and Secretary
QUANTRIX CONSULTANTS LIMITED
By: Xxxxxx X. Xxxxxxx
------------------------------
Its: Director
62
DYNAMIC CONTROLS LIMITED
By: Xxxxxx X. Xxxxxxx
------------------------------
Its: Director
XXXXXXX GROUPE INVACARE
By: Xxxxxxxx X. Dyevre
-----------------------------
Its: Director
REHADAP S.A.
By: Xxxxxxxx X. Dyevre
-----------------------------
Its: Director
CONTROLS DYNAMIC LIMITED
By: Xxxxx Xxxxxxxxxxxx
----------------------------
Its: Director
INVACARE AB
By: Xxxxxx X. Xxxxxx
---------------------------
Its: Director
63
Address for Notices: NBD BANK, as a Bank and as Agent
000 Xxxxxxxx Xxxxxx By: Xxxxxxxx X. Xxxxx
Xxxxxxx, Xxxxxxxx 00000 ----------------------------
Attention: Commercial and Institutional Its: First Vice President
Banking
Facsimile No.: /313/ 000-0000
Telephone No.: /313/ 225-1313
Commitment Amount: $85,000,000
Initial Percentage of
Total Commitments: 23.62%
Address for Notices: KEYBANK NATIONAL ASSOCIATION, as
Co-Agent and as a Bank
000 Xxxxxx Xxxxxx, 0xx Xxxxx By: Xxxxxxx X. Xxxxx
Xxxxxxxxx, Xxxx 00000-0000 -----------------------------
Attention: Xxxxxxx Xxxxxx Its: Vice President
Facsimile No.: /216/ 000-0000
Telephone No.: /216/ 000-0000
Commitment Amount: $75,000,000
Initial Percentage of
Total Commitments: 20.84%
64
Address for Notices: NATIONAL CITY BANK
0000 X. 0xx, 00xx Xxxxx By: Xxxxxxx X. XxXxxx
Xxxxxxxxx, Xxxx 00000 -----------------------
Attention: Xxxxxxx XxXxxx Its: Vice President
Facsimile No.: /216/ 000-0000
Telephone No.: /216/ 000-0000
Commitment Amount: $50,000,000
Initial Percentage of
Total Commitments: 13.9%
Address for Notices: SOCIETE GENERALE
000 X. Xxxxxxx, Xxxxx 0000 By: Xxxxxx X. Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000 ------------------------
Attention: Xxxxxx Xxxxxxx Its: Vice President
Facsimile No.: /312/ 000-0000
Telephone No.: /312/ 000-0000
Commitment Amount: $25,000,000
Initial Percentage of
Total Commitments: 6.94%
65
Address for Notices: SUN TRUST BANK, CENTRAL FLORIDA, N.A.
000 X. Xxxxxx Xxxxxx By: Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000 ----------------------------
Attention: Xxxxx Xxxxxxx Its: Vice President
Facsimile No.: /407/ 000-0000
Telephone No.: /407/ 000-0000
Commitment Amount: $25,000,000
Initial Percentage of
Total Commitments: 6.94%
Address for Notices: WACHOVIA BANK OF GEORGIA, NA
000 Xxxxxxxxx Xxxxxx, XX By: Xxxxxx X. Xxxxx
Xxxxxxx, XX 00000 -------------------------------
Attention: Xxxx Xxxx Its: Senior Vice President
Facsimile No.: /404/ 000-0000
Telephone No.: /404/ 000-0000
Commitment Amount: $25,000,000
Initial Percentage of
Total Commitments: 6.94%
66
Address for Notices: PNC BANK, NATIONAL ASSOCIATION
0000 X. Xxxxx Xxxxxx, #0000 By: Xxxxx X. Xxxx
Xxxxxxxxx, XX 00000 ----------------------------
Attention: Xxxxx Xxxx Its: Vice President
Facsimile No.: /216/ 000-0000
Telephone No.: /216/ 000-0000
Commitment Amount: $25,000,000
Initial Percentage of
Total Commitments: 6.94%
Address for Notices: COMMERZBANK, AKTIENGESELLSCHAFT,
CHICAGO BRANCH
000 X. Xxxxxx Xxxxx By: Xxxx Xxxx Xxxxxxx X. Xxxxxx
Xxxxxxx, XX 00000 -------------------------------------
Attention: Xxxxxxx Xxxxxx Its: Assistant Treasurer and Vice
Facsimile No.: /312/ 435-1486 President
Telephone No.: /312/ 000-0000
Commitment Amount: $25,000,000
Initial Percentage of
Total Commitments: 6.94%
67
Address for Notices: THE BANK OF NEW YORK
One Wall Street, 22ND Floor By: Xxxxxx X. Xxxxxxxxx III
Xxx Xxxx, Xxx Xxxx 00000 -----------------------------
Attention: Xx Xxxxxxxxx Its: Vice President
Facsimile No.: /212/ 000-0000
Telephone No.: /212/ 000-0000
Commitment Amount: $25,000,000
Initial Percentage of
Total Commitments: 6.94%
Total Commitment of all of the Banks:
$360,000,000
68
EXHIBIT M
ASSUMPTION AGREEMENT
Reference is made to the Loan Agreement dated as of November 18, 1997
(as now or hereafter amended or modified from time to time, the "Loan
Agreement") among INVACARE CORPORATION, an Ohio Corporation (the "Company"),
each of the Borrowing Subsidiaries designated therein from time to time
(collectively with the Company, the "Borrowers" and each individually a
"Borrower"), the Banks named therein (the "Banks"), NBD BANK, as agent for the
Banks (the "Agent") and KEYBANK NATIONAL ASSOCIATION, as co-agent for the Banks.
Terms defined in the Loan Agreement are used herein with the same meaning.
1. Bank of Montreal, ("New Bank") has decided to become a Bank under
the Loan Agreement, with its Commitment, Percentage of Total Commitments and
address for notice as described next to its signature below. The New Bank (i)
confirms that it has received a copy of the Loan Agreement, together with copies
of the financial statements referred to in Section 4.6 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assumption Agreement; (ii) agrees that
it will, independently and without reliance upon the Agent, the Co-Agent or any
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Loan Agreement; (iii) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Loan Agreement as are delegated to the Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(iv) agrees that it will perform in accordance with their terms of all of the
obligations that by the terms of the Loan Agreement are required to be performed
by it as a Bank; and (v) if the New Bank is organized under the laws of a
jurisdiction outside the United States, attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the New Bank's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the New Bank under the Loan
Agreement and the Notes or such other documents as are necessary to indicate
that all such payments are subject to such taxes at a rate reduced by an
applicable tax treaty.
2. Following the execution of this Assumption Agreement, it will be
delivered to the Agent and the Company for acceptance by the Agent and the
Company and recording by the Agent. The effective date for this Assumption
Agreement (the "Effective Date") shall be the date of acceptance hereof by the
Agent and the Company.
69
3. Upon such acceptance by the Agent and the Company and recording by
the Agent, as of the Effective Date, the New Bank shall be a party to the Loan
Agreement and, to the extent provided in this Assumption Agreement, have the
rights and obligations of a Bank thereunder. On the Effective Date, the New Bank
shall, in fulfillment of its obligations as a Bank under the Loan Agreement,
fund its share of outstanding Revolving Credit Advances in accordance with its
Percentage of Total Commitment by making available such amount to the Agent in
immediately available funds at the principal office of the Agent. The Agent
shall promptly adjust the balance of outstanding Revolving Credit Advances owing
to each Bank in accordance with each Bank's new Percentage of Total Commitment
and promptly remit to each Bank any repayment due such Bank as a result of such
adjustment. In the event any Eurodollar Rate Loans are outstanding on the
Effective Date and the repayment of such Eurodollar Rate Loans prior to the last
day of the applicable Eurodollar Interest Period would result in costs and
expenses to any Bank as described in Section 3.8 of the Loan Agreement, the New
Bank shall purchase a participation interest in any outstanding Eurodollar Rate
Loans from each Bank which would suffer such costs and expenses. The amount of
the participation interest purchased by the New Bank from any Bank under this
paragraph shall be equal to the amount of the repayment such Bank would have
received with respect to such Eurodollar Rate Loan as a result of the adjustment
described in this paragraph.
4. This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of Michigan.
5. This Assumption Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
6. Upon acceptance and recording by the Agent, the Agent shall notify
each Bank and the Company of the Percentage of Total Commitments of each Bank,
which shall be binding on all parties.
70
IN WITNESS WHEREOF, the New Bank has caused this Assumption Agreement
to be executed by its officer thereunto duly authorized as of the date specified
thereon.
Bank of Montreal
------------------------------
------------------------------
Attention: By: /S/ Xxxxx Xxxxxx
------------------------------ --------------------------------------
Facsimile No. /___/ ___-____ Xxxxx Xxxxxx
Its:
--------------------------------------
Commitment Amount $25,000,000
Percentage of Total Commitments: 5.88%
Accepted and Agreed:
NBD BANK, as Agent
By: /S/ Xxxxxxxx X. Xxxxx
------------------------------------
Its: First Vice President
------------------------------------
INVACARE CORPORATION, as Treasury
Manager on behalf of the Borrowers
By: /S/ Xxxxxx X. Xxxxxxx
------------------------------------
Its: Chief Financial Officers
------------------------------------
71
EXHIBIT M
ASSUMPTION AGREEMENT
Reference is made to the Loan Agreement dated as of November 18, 1997
(as now or hereafter amended or modified from time to time, the "Loan
Agreement") among INVACARE CORPORATION, an Ohio Corporation (the "Company"),
each of the Borrowing Subsidiaries designated therein from time to time
(collectively with the Company, the "Borrowers" and each individually a
"Borrower"), the Banks named therein (the "Banks"), NBD BANK, as agent for the
Banks (the "Agent") and KEYBANK NATIONAL ASSOCIATION, as co-agent for the Banks.
Terms defined in the Loan Agreement are used herein with the same meaning.
1. Michigan National Bank, ("New Bank") has decided to become a Bank
under the Loan Agreement, with its Commitment, Percentage of Total Commitments
and address for notice as described next to its signature below. The New Bank
(i) confirms that it has received a copy of the Loan Agreement, together with
copies of the financial statements referred to in Section 4.6 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assumption Agreement; (ii)
agrees that it will, independently and without reliance upon the Agent, the
Co-Agent or any Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Agreement; (iii) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (iv) agrees that it will perform in accordance
with their terms of all of the obligations that by the terms of the Loan
Agreement are required to be performed by it as a Bank; and (v) if the New Bank
is organized under the laws of a jurisdiction outside the United States,
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying as to the New Bank's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the New Bank under the Loan Agreement and the Notes or such other
documents as are necessary to indicate that all such payments are subject to
such taxes at a rate reduced by an applicable tax treaty.
2. Following the execution of this Assumption Agreement, it will be
delivered to the Agent and the Company for acceptance by the Agent and the
Company and recording by the Agent. The effective date for this Assumption
Agreement (the "Effective Date") shall be the date of acceptance hereof by the
Agent and the Company.
72
3. Upon such acceptance by the Agent and the Company and recording by
the Agent, as of the Effective Date, the New Bank shall be a party to the Loan
Agreement and, to the extent provided in this Assumption Agreement, have the
rights and obligations of a Bank thereunder. On the Effective Date, the New Bank
shall, in fulfillment of its obligations as a Bank under the Loan Agreement,
fund its share of outstanding Revolving Credit Advances in accordance with its
Percentage of Total Commitment by making available such amount to the Agent in
immediately available funds at the principal office of the Agent. The Agent
shall promptly adjust the balance of outstanding Revolving Credit Advances owing
to each Bank in accordance with each Bank's new Percentage of Total Commitment
and promptly remit to each Bank any repayment due such Bank as a result of such
adjustment. In the event any Eurodollar Rate Loans are outstanding on the
Effective Date and the repayment of such Eurodollar Rate Loans prior to the last
day of the applicable Eurodollar Interest Period would result in costs and
expenses to any Bank as described in Section 3.8 of the Loan Agreement, the New
Bank shall purchase a participation interest in any outstanding Eurodollar Rate
Loans from each Bank which would suffer such costs and expenses. The amount of
the participation interest purchased by the New Bank from any Bank under this
paragraph shall be equal to the amount of the repayment such Bank would have
received with respect to such Eurodollar Rate Loan as a result of the adjustment
described in this paragraph.
4. This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of Michigan.
5. This Assumption Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
6. Upon acceptance and recording by the Agent, the Agent shall notify
each Bank and the Company of the Percentage of Total Commitments of each Bank,
which shall be binding on all parties.
73
IN WITNESS WHEREOF, the New Bank has caused this Assumption Agreement
to be executed by its officer thereunto duly authorized as of the date specified
thereon.
Michigan National Bank
------------------------------
------------------------------
Attention: By: /S/ Xxxxxxxxxxx X. Xxxxxx
------------------------------ ---------------------------------------
Facsimile No. /___/ ___-____ Xxxxxxxxxxx X. Xxxxxx
Its:
---------------------------------------
Commitment Amount $25,000,000
Percentage of Total Commitments: 5.88%
Accepted and Agreed:
NBD BANK, as Agent
By: /S/ Xxxxxxxx X. Xxxxx
--------------------------------------
Its: First Vice President
--------------------------------------
INVACARE CORPORATION, as Treasury
Manager on behalf of the Borrowers
By: /S/ Xxxxxx X. Xxxxxxx
--------------------------------------
Its: Chief Financial Officer
--------------------------------------
74
NBD Bank, as Agent
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
December 23, 1997
Invacare Corporation
000 Xxxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Chief Financial Officer
Re: Loan Agreement dated as of November 18, 1997 (the "Loan
Agreement") among Invacare Corporation (the "Company") and
certain other Borrowers named therein, the Banks named
therein, NBD Bank, as Agent, and KeyBank National Association,
as Co-Agent.
Ladies and Gentlemen:
The Borrowers have requested that NBD Bank increase its Commitment
under the Loan Agreement from $85,000,000 to $92,500,000 and that KeyBank
National Association increase its Commitment under the Loan Agreement from
$75,000,000 to $82,500,000. NBD Bank and KeyBank National Association each
hereby agree to increase their respective Commitments to such respective amounts
as set forth next to their respective name on the Schedule of Commitments
attached hereto. By its acceptance below, Invacare Corporation hereby consents
and agrees to the Schedule of Commitments attached hereto.
The agreements set forth herein shall not become binding on any party
hereto until a duly authorized officer of each party hereto shall have executed
a counterpart of this letter and delivered such counterpart to the Agent. The
terms used but not defined herein shall have their respective meanings ascribed
thereto in the Loan Agreement.
NBD BANK, As Agent and as a Bank
By: /S/ Xxxxxxxx X. Xxxxx
---------------------------
Its: First Vice President
---------------------------
KEYBANK NATIONAL ASSOCIATION,
as Co-Agent and as a Bank
By: /S/ Xxxxxxx X. Xxxxx
---------------------------
Its: Vice President
---------------------------
