EXHIBIT 10.61
14
[EXECUTION COPY]
CREDIT AGREEMENT
dated as of December 12, 1997
among
XXXXXX INTERNATIONAL INDUSTRIES, INCORPORATED,
XXXXXX HOLDING GMBH,
THE SEVERAL LENDERS FROM TIME TO TIME PARTY HERETO
and
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH,
as Administrative Agent
Arranged By
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS .............................. 1
1.1 Defined Terms ................................ 1
1.2 Other Definitional Provisions ................ 13
SECTION 2. THE LOANS ................................ 14
2.1 Loans ........................................ 14
2.2 Procedure for Borrowing ................... 14
2.3 Repayment of Loans; Evidence of Debt ......... 14
2.4 Syndication Matters........................... 15
2.5 Optional Prepayments ........................ 16
2.6 Interest Rates and Payment Dates for Loans ... 16
2.7 Inability to Determine Interest Rate ......... 17
SECTION 3. CERTAIN PROVISIONS APPLICABLE TO THE LOANS 17
3.1 Certain Fees. ................................ 17
3.2 Computation of Interest and Fees ............. 18
3.3 Pro Rata Treatment and Payments .............. 18
3.4 Illegality ................................... 19
3.5 Requirements of Law .......................... 19
3.6 Taxes ........................................ 21
3.7 Indemnity .................................... 23
3.8 Change of Funding Office ..................... 24
SECTION 4. REPRESENTATIONS AND WARRANTIES ........... 24
4.1 Financial Condition ......................... 24
4.2 No Change .................................... 25
4.3 Corporate Existence; Compliance with Law .... 25
4.4 Corporate Power; Authorization; Enforceable
Obligations ............................... 25
4.5 No Legal Bar ................................. 26
4.6 No Material Litigation ....................... 26
4.7 No Default ................................... 26
4.8 Ownership of Property; Liens ................. 26
4.9 Intellectual Property ........................ 26
4.10 Taxes ........................................ 27
4.11 Federal Regulations .......................... 27
4.12 ERISA ........................................ 27
4.13 Investment Company Act; Other Regulations .... 28
4.14 Purpose of Loans ............................. 28
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4.15 Accuracy and Completeness of Information...... 28
4.16 Environmental Matters ........................ 28
SECTION 5. CONDITIONS PRECEDENT ..................... 29
5.1 Conditions to Loans .......................... 29
SECTION 6. AFFIRMATIVE COVENENTS .................... 31
6.1 Financial Statements ......................... 31
6.2 Certificates; Other Information .............. 32
6.3 Payment of Obligations ....................... 32
6.4 Conduct of Business and Maintenance of Existence 32
6.5 Maintenance of Property; Insurance ........... 33
6.6 Inspection of Property; Books and Records; Discussions 33
6.7 Notices ...................................... 33
6.8 Environmental Laws ........................... 34
SECTION 7. NEGATIVE COVENANTS ...................... 34
SECTION 8. GUARANTEE ............................... 35
8.1 Guarantee .................................. 35
8.2 No Subrogation .............................. 35
8.3 Modification of Obligations .................. 36
8.4 Waiver ....................................... 36
8.5 Reinstatement .............................. 37
8.6 Payment of Subsidiary Obligations ........... 37
SECTION 9. EVENTS OF DEFAULT ........................ 37
SECTION 10. THE ADMINISTRATIVE AGENT; THE ARRANGER .. 40
10.1 Appointment .................................. 40
10.2 Delegation of Duties ......................... 40
10.3 Exculpatory Provisions ....................... 40
10.4 Reliance by Administrative Agent ............. 41
10.5 Notice of Default ............................ 41
10.6 Non-Reliance on Administrative Agent and Other Lenders 41
10.7 Indemnification .............................. 42
10.8 Administrative Agent in Its Individual Capacity 42
10.9 Successor Administrative Agent ............... 43
10.10 Arranger ..................................... 43
SECTION 11. MISCELLANEOUS ............................ 43
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11.1 Amendments and Waivers Generally; Amendments to
Schedules I, II and III .................. 43
11.2 Notices ..................................... 44
11.3 No Waiver; Cumulative Remedies ............. 45
11.4 Survival of Representations and Warranties .. 45
11.5 Payment of Expenses and Taxes ............... 45
11.6 Successors and Assigns; Participations and Assignments 46
11.7 Adjustments; Set-off ........................ 48
11.8 Power of Attorney ........................... 49
11.9 Judgment .................................... 49
11.10 Counterparts ................................ 50
11.11 Severability ................................ 50
11.12 Integration ................................. 50
11.13 Governing Law .............................. 50
11.14 Submission to Jurisdiction; Waivers ......... 50
11.15 Acknowledgements ........................... 51
11.16 Waivers of Jury Trial ....................... 51
11.17 Confidentiality ............................. 51
SCHEDULES
SCHEDULE I Commitments and Notice Information
SCHEDULE II Subsidiaries
SCHEDULE III Administrative Schedule
SCHEDULE IV Material Debt Instruments
SCHEDULE V Xxxxxx Transaction
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CREDIT AGREEMENT, dated as of December 12, 1997, among:
(i) XXXXXX INTERNATIONAL INDUSTRIES, INCORPORATED,
a Delaware corporation (the "Company");
(ii) XXXXXX HOLDING GmbH, a German corporation (the
"Subsidiary Borrower");
(iii) the several banks and other financial institutions from time to time
parties to this Agreement (each, a "Lender"; and collectively, the
"Lenders");
(iv) COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH, as Arranger (the "Arranger"); and
(v) COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH, a German banking corporation ("Commerzbank"), as
administrative agent for the Lenders hereunder (together with its
successors in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested the Lenders to make a term
loan to the Company and to make a term loan to the Subsidiary
Borrower;
WHEREAS, the Lenders are willing to make such term loans;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Additional Commitments": as defined in subsection 2.4(a).
"Additional Loan": as defined in subsection 2.4(a).
"Administrative Schedule": Schedule III to this Agreement, which
contains interest rate definitions and administrative information.
"Affiliate": as to any Person, any other Person (other than a Subsidiary)
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to
(a) vote 10% or more of the securities having ordinary voting power for
the election of directors of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by
contract or otherwise.
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"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Margin": with respect to each day during a fiscal quarter of
the Company, the margin per annum set forth below opposite the Debt
to Capitalization Ratio for the applicable Test Period as shown on the Debt to
Capitalization Ratio Certificate for the test period delivered pursuant to
subsection 6.2(c):
Debt to Capitalization Ratio Applicable Margin
---------------------------- ----------------------
Less than 60% .30%
Greater than or equal
to 60% .75%;
provided, however, that, (i) until the date a Debt to Capitalization Ratio
Certificate for a test period has been delivered pursuant to subsection
6.2(c), the Debt to Capitalization Ratio for an applicable period shall be
deemed to be the Debt to Capitalization Ratio set forth in the last Debt
to Capitalization Ratio Certificate delivered pursuant to subsection
6.2(c), (ii) in the event that the actual Debt to Capitalization Ratio for
any Test Period is subsequently determined to be greater than that
determined pursuant to clause (i) or greater than that set forth in the
Debt to Capitalization Ratio Certificate for such Test Period the
Applicable Margin shall be recalculated for the applicable fiscal quarter
based upon such actual Debt to Capitalization Ratio and (iii) if the
Company fails to deliver a Debt to Capitalization Ratio Certificate for a
fiscal quarter by the date set forth in subsection 6.2(c), the Applicable
Margin for such fiscal quarter shall be .75%. Changes in the Applicable
Margin, if any, resulting from the operation of clauses (ii) and (iii)
above shall be given effect through adjustments in subsequent payments
of interest so as to give effect to such Applicable Margin retroactively to
the applicable period.
"Assignee": as defined in subsection 11.6(c).
"Assignment and Acceptance": an instrument of assignment in form
and substance satisfactory to the Administrative Agent and the
Company.
"Base Rate": for any day, the greater of (i) the sum of the Federal
Funds Rate and 1/2 of one percent for such day and (ii) the rate of
interest from time to time announced by Commerzbank at its New York
Branch as its "prime commercial lending rate" and in effect for such day
(which rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer and Commerzbank
may make commercial loans or other loans at rates of interest at, above
or below such reference rate).
"Base Rate Loan": any Loan bearing interest based upon the Base Rate.
"Borrowers": the collective reference to the Company (as a borrower
and as a guarantor) and the Subsidiary Borrower.
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"Borrowing Date": the day on which the Loans are made under this
Agreement.
"Business": as defined in subsection 4.16.
"Business Day": (a) when such term is used in respect of a day on
which a Loan is to be made, a payment is to be made in respect of a
Loan or any other dealing in Deutsche Marks, such term shall mean a
London Banking Day which is also a day on which banks are open for
general banking business in Xxx Xxxx, Xxx Xxxx xxx Xxxxxxxxx,
Xxxxxxx and (b) when such term is used in any other context in this
Agreement, such term shall mean a day other than a Saturday, Sunday
or other day on which commercial banks in New York City are authorized
or required by law to close.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Change of Control": an event or series of events by which (i) any
"person" or "group" (as such terms are defined in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended), other than
the Permitted Investor, is or becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person
shall be deemed to have "beneficial ownership" of all shares that any
such Person has the right to acquire without condition, other than
passage of time, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 50% of the
total voting power of the then outstanding Voting Stock of the
Company, (ii)(A) the Company consolidates with or merges into
another corporation or conveys, transfers or leases all or substantially all
of its properties and assets (determined on a consolidated basis for the
Company and its Subsidiaries taken as a whole) to any Person, or (B)
any corporation consolidates with or merges into the Company or a
Subsidiary of the Company in a transaction in which the outstanding
Voting Stock of the Company is changed into or exchanged for cash,
securities or other property, other than a transaction solely between the
Company and a Subsidiary of the Company or (iii) during any period of
two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any
new directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Company was
approved by a vote of 66 2/3% of the directors then still in office who
were either directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the
Company then in office; provided, however, that notwithstanding
anything to the contrary in this definition, transfer of beneficial
ownership of shares held by the Permitted Investor upon the death of the
Permitted Investor to the heirs and devisees of the Permitted Investor
shall not constitute a Change of Control.
"Commerzbank": Commerzbank Aktiengesellschaft, New York
Branch.
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"Closing Date": the date on or before the Expiration Date on which the
conditions precedent set forth in subsection 5.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Lender, the obligation of such Lender to
make Loans hereunder in an aggregate amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule I, as such amount may be changed from time to time
in accordance with the provisions of this Agreement.
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any time after the Commitments shall
have expired or terminated, the percentage which the amount of such
Lender's Loans then outstanding constitutes of the aggregate amount of
the Loans of all the Lenders then outstanding).
"Commitment Period": the period from and including the Effective
Date to and including the Expiration Date.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Company within the meaning
of Section 4001 of ERISA or is part of a group which includes the
Company and which is treated as a single employer under Section
414(b), (c), (m) or (o) of the Code.
"Company Obligations": the unpaid principal of and interest on the
Loans made to the Company and all other obligations and liabilities of
the Company to the Administrative Agent or any Lender (including,
without limitation, interest accruing after the maturity or earlier
acceleration of the Loans and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement, the Loans or any other
document made, delivered or given in connection therewith, in each
case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent or any Lender) or otherwise.
"Consolidated Capitalization": at any date, the sum of (i) shareholders'
equity of the Company and (without duplication) its consolidated
Subsidiaries, determined on a consolidated basis in accordance with
GAAP, and (ii) Consolidated Total Debt; provided, that the Xxxxxx
Preferred Stock shall not be included in determining shareholders'
equity of the Company and its consolidated Subsidiaries.
"Consolidated Total Debt": at any date, without duplication, the
aggregate of all Indebtedness (including the current portion thereof) of
the Company and its consolidated
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Subsidiaries, determined on a consolidated basis in accordance with
GAAP; provided, that the obligations of the Company and Xxxxxx in
respect of the Xxxxxx Letter of Credit shall not be included in
determining Consolidated Total Debt.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any material agreement, instrument
or other undertaking to which such Person is a party or by which it or
any of its property is bound.
"Debt to Capitalization Ratio": for any Test Period, the arithmetic
average of the ratio of Consolidated Total Debt to Consolidated
Capitalization, expressed as a percentage, as of the last day of each
fiscal quarter included in such Test Period.
"Debt to Capitalization Ratio Certificate": as defined in subsection
6.2(c).
"Default": any event or condition that upon notice, the lapse of time, or
both, would constitute an Event of Default.
"Deutsche Marks" and "DEM": deutsche marks in lawful currency of
the Federal Republic of Germany. If Deutsche Marks cease to be lawful
currency of the Federal Republic of Germany, then all references to
Deutsche Marks in this Agreement shall be deemed to refer to such
lawful currency and all Deutsche Xxxx amounts contained in this
Agreement shall be converted to lawful currency amounts using the
Deutsche Xxxx/lawful currency conversion rate in effect at the time
Deutsche Marks cease to be lawful currency.
"Dollars" and "$": dollars in lawful currency of the United Stated of
America.
"Effective Date": the first date on which the Administrative Agent shall
have received an executed counterpart of this Agreement from each
Borrower and each Lender.
"Environmental Laws": any and all applicable material, foreign,
Federal, state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, enforceable requirements of any
Governmental Authority or other Requirements of Law (including
common law) regulating, relating to or imposing liability or standards of
conduct concerning protection of human health or the environment, as
now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default": any of the events specified in Section 9, provided
that any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Existing Lender": Commerzbank Aktiengesellschaft, Los Angeles
Branch.
"Expiration Date": February 15, 1998.
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"Federal Funds Rate": for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of one percent) equal to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day, provided that (a) if
the day for which such rate is to be determined is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if such rate is not so published
for any day which is a Business Day, the Federal Funds Rate for such
day shall be the average of the quotations for the day of such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fee Letter": the letter agreement dated October 21, 1997, between the
Company and Commerzbank.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Floating Rate Loan": any Loan bearing interest based upon a LIBO
Rate.
"Foreign Subsidiary": each Subsidiary of the Company which is
organized under the laws of a jurisdiction other than the District of
Columbia or a State of the United States and listed as a Foreign
Subsidiary on Schedule II.
"Funding Office": for each Type of Loan, the Funding Office set forth
in respect thereof in the Administrative Schedule.
"Funding Time": for each Type of Loan, the Funding Time set forth in
respect thereof in the Administrative Schedule.
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time.
"German Collateral": the collateral described in the German Mortgage
and the German Security Agreement.
"German Mortgage": a mortgage in form and substance reasonably
satisfactory to the Administrative Agent encumbering all real property
of Pledgor in favor of the Administrative Agent, for the benefit of the
Administrative Agent and the Lenders, as security for the Subsidiary
Obligations.
"German Security Agreement": a security agreement reasonably
satisfactory to the Administrative Agent encumbering all tangible
personal property of Pledgor in favor of the Administrative Agent, for
the benefit of the Administrative Agent and the Lenders, as security for
the Subsidiary Obligations.
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"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising applicable
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary obligations") of any other
third Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise to
assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include (x) endorsements of instruments
for deposit or collection in the ordinary course of business or (y)
obligations of the Company or any of its Subsidiaries under
arrangements entered into in the ordinary course of business whereby
the Company or such Subsidiary sells inventory to other Persons under
agreements obligating the Company or such Subsidiary to repurchase
such inventory, at a price not exceeding the original sale price, upon the
occurrence of certain specified events. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is
made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum
amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Company in good faith.
"Guarantor": the Company in its capacity as a guarantor pursuant to
Section 8 of this Agreement.
"Indebtedness": of any Person at any date, all indebtedness or
obligations of such Person (other than current trade liabilities incurred
in the ordinary course of business and payable in accordance with
customary practices), as reflected on the balance sheet of such Person
prepared in accordance with GAAP.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
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"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Floating Rate Loan having an
Interest Period of three months or less, the last day of such Interest
Period, (b) as to any Floating Rate Loan having an Interest Period
longer than three months, each day which is three months after the first
day of such Interest Period and the last day of such Interest Period, (c)
as to any Loan, the Termination Date and any other date on which the
principal amount of any Loan is repaid (whether by prepayment or
acceleration) and (d) as to any Base Rate Loan, the last day of each
March, June, September and December.
"Interest Period": with respect to any Floating Rate Loan:
(i) initially, the period commencing on the Borrowing Date and
ending one, two, three or six months thereafter, as selected by the
Company in the Notice of Borrowing;
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Floating Rate Loan and
ending one, two, three or six months thereafter, as selected by the
Company in a Notice of Interest Period with respect thereto; or
(iii) if no Notice of Interest Period has been timely delivered by the
Company, the Interest Period shall be the period commencing on the
last day of the preceding Interest Period and ending one month
thereafter;
provided, that all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which event
such Interest Period shall end on the immediately preceding Business
Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Joinder Agreement": as defined in subsection 2.4(a).
"LIBO Rate": for any Interest Period, the rate for deposits in Deutsche
Marks for a period beginning on the first day of such Interest Period and
ending on the last day of such
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interest Period which appears on the Telerate Page 3750 (or, if no
such quotation appears on such Telerate Page, on the Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London time, on the
Quotation Day for such Interest Period. "Telerate Page 3750" means
display page 3750 on the Dow Xxxxx Telerate Service (or such other
page as may replace that page on that service). "Reuters Screen"
means the applicable display page on the Reuter Monitor Money Rates
Service (or such other page as may replace that page on that service).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any Financing Lease having substantially the same
economic effect as any of the foregoing).
"Loan": any Floating Rate Loan or Base Rate Loan made by any
Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the German Mortgage, the
German Security Agreement, each Notice of Borrowing and each Notice
of Interest Period.
"London Banking Day": any day on which banks in London are open
for general banking business, including dealings in foreign currency and
exchange.
"Majority Lenders": at any time, Lenders the Commitment Percentages
of which aggregate more than 66-2/3%.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of
the Company and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this or any of the other Loan Documents or the rights
or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"Material Debt Instrument": those agreements and other instruments of
Indebtedness of the Borrowers listed on Schedule IV, which list shall
include any such instrument under which any Borrower is an obligor
and under which the outstanding amount and/or available commitment
to extend credit exceeds $10,000,000.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Law, including,
without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Multiemployer Plan": a Plan which is a multi-employer plan as
defined in Section 4001(a)(3) of ERISA.
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"Negative Covenants": each and every financial and negative covenant
contained in the Principal Credit Agreement as such covenants are in
effect from time to time, which, as of the date hereof, are contained in
Section 10 of the Existing Credit Agreement.
"New Lender": each Person that becomes a Lender under this
Agreement after the date of this Agreement.
"NOKIA Acquisition": the acquisition or proposed acquisition by the
Company or a Subsidiary thereof of certain assets of NOKIA Industrial
Electronics, a division of NOKIA AB.
"Non-Excluded Taxes": as defined in subsection 3.6.
"Notice of Borrowing": with respect to the Loans, the notice from the
Company containing the information in respect of the Loans and
delivered to the Administrative Agent, in the manner and by the time
specified in the Administrative Schedule.
"Notice of Interest Period": with respect to a Floating Rate Loan, a
notice from the Company in respect of such Loan, containing the
information in respect of such Loan and delivered to the Administrative
Agent, in the manner and by the time specified for a Notice of Interest
Period in the Administrative Schedule.
"Obligations": the collective reference to the Company Obligations and
to the Subsidiary Obligations.
"Participants": as defined in subsection 11.6(b).
"Payment Office": for each Type of Loan, the Payment Office set forth
in respect thereof in the Administrative Schedule.
"Payment Time": for each Type of Loan, the Payment Time set forth in
respect thereof in the Administrative Schedule.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Investor": Xxxxxx Xxxxxx, Chairman of the Board of
Directors and Chief Executive Officer of the Company on the date
hereof.
"Person": an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered
by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan
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were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledgor": Audio Electronic Systems GmbH, an indirect, wholly-
owned Subsidiary of the Subsidiary Borrower.
"Principal Credit Agreement": (i) the Multi-Currency, Multi-Option
Credit Agreement, dated as of September 30, 1994, among the
Company, certain of its Subsidiaries, Chemical Securities Inc., as
arranger, Nationsbank of North Carolina, N.A., as co-agent, and
Chemical Bank, as administrative agent, together with all amendments,
modifications, supplements and waivers thereof (collectively, the
"Existing Credit Agreement"), and (ii) if the Existing Credit Agreement
is no longer in effect, any other credit agreement or loan agreement
which provides the Company and all or some of its Subsidiaries with
their primary source of working capital borrowings.
"Properties": as defined in subsection 4.16.
"Quotation Day": in respect of the determination of the LIBO Rate for
any Interest Period, the day on which quotations would ordinarily be
given by prime banks in the London interbank market for deposits in
Deutsche Marks for delivery on the first day of such Interest Period and
for the term of the Interest Period; provided, that if quotations would
ordinarily be given on more than one date, the Quotation Day for such
Interest Period shall be the last of such dates. On the date hereof, the
Quotation Day in respect of any Interest Period is customarily the last
day prior to the beginning of such Interest Period which is (i) at least
two London Banking Days prior to the beginning of such Interest Period
and (ii) a day on which banks are open for general banking business in
New York, New York and Frankfurt, Germany.
"Register": as defined in subsection 11.6(d).
"Regulation G": Regulation G of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period
is waived under subsections. 13, .14, .16, .18, .19 or .20 of PBGC Reg.
2615.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any material law, treaty, rule or
regulation or determination of an arbitrator or a court or other
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Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer": the chief executive officer, the president, the
chief financial officer or the vice president for financial or legal affairs
of the Company.
"Restricted Subsidiary": any Subsidiary listed in Schedule II.
"Schedule Amendment": an instrument of amendment for purposes of
amending certain Schedules hereto, which instrument shall be in form
and substance satisfactory to the Administrative Agent and the
Company.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Xxxxxx": Xxxxxx Professional Audio AG, a Subsidiary corporation
organized under the laws of Switzerland.
"Xxxxxx Letter of Credit": the letter of credit to be issued for the account
of Xxxxxx to back obligations to pay dividends and redemption price in
respect of the Xxxxxx Preferred Stock as a part of the Xxxxxx Transaction.
"Xxxxxx Preferred Stock: the preferred stock to be issued by Xxxxxx as a
part of the Xxxxxx Transaction.
"Xxxxxx Transaction": the transaction or series of transactions described
in Schedule V.
"Subsidiary": as to any Person, a corporation, partnership or other
entity, of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Subsidiary Obligations": the unpaid principal of and interest on the
Loans made to the Subsidiary Borrower and all other obligations and
liabilities of the Subsidiary Borrower to the Administrative Agent or
any Lender (including, without limitation, interest accruing after the
maturity or earlier acceleration of the Loans and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Subsidiary
Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement,
the Loans or any other document made,
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delivered or given in connection therewith, in each case whether
on account of principal, interest, proportional reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees and disbursements of German counsel to the
Administrative Agent or any Lender) or otherwise.
"Syndication Closing Date": the date on which those Persons identified
by the Arranger in consultation with the Company in accordance with
syndication procedures described in the commitment letter dated
October 21, 1997 between the Company and Commerzbank become
New Lenders.
"Termination Date": August 30, 2002.
"Test Period": for any fiscal quarter of the Company, the four
consecutive fiscal quarters ended immediately prior thereto.
"Transferee": as defined in subsection 11.6(f).
"Type": in respect of any Loan, its character as a Floating Rate Loan or
a Base Rate Loan, as the case may be.
"Voting Stock": stock of the class or classes pursuant to which the
holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the Board of Directors of the
Company (irrespective of whether or not at the time stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
1.2 Other Definitional Provisions
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in any certificate
or other document made or delivered pursuant hereto.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Company
and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit references
are to this Agreement unless otherwise specified. References to
Schedules to this Agreement are references to such Schedules as the
same may from time to time be amended or otherwise modified in
accordance with the terms hereof.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
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SECTION 2. THE LOANS
2.1 Loans. Subject to the terms and conditions hereof, each Lender
severally agrees to make a term loan in Deutsche Marks to the Company
and a term loan in Deutsche Marks to the Subsidiary Borrower
(collectively, the "Loans") during the Commitment Period in the
amounts set forth for such Lender for such Borrower in Schedule I.
Each Lender's Commitment shall terminate (i) upon the making by such
Lender of its Loans hereunder or (ii) if the Notice of Borrowing has not
been received by the Administrative Agent by 10:00 a.m. New York
City time at least three (3) Business Days prior to the Expiration Date,
at 5:00 p.m. New York City time on the Expiration Date.
2.2 Procedure for Borrowing. The Company may request the Lenders
to make the Loans on any Business Day during the Commitment Period
by delivering a Notice of Borrowing. The Notice of Borrowing shall
specify the initial Interest Periods. Upon receipt of the Notice of
Borrowing from the Company, the Administrative Agent shall promptly
notify each Lender thereof. Subject to the terms and conditions hereof,
each Lender will make the amount of its pro rata share of the Loans
available to the Administrative Agent for the account of the Borrowers
at the Funding Office, and at or prior to the Funding Time, in Deutsche
Marks immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrowers at the Funding
Office, in like funds as received by the Administrative Agent.
2.3 Repayment of Loans; Evidence of Debt.
(a) Each Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender on the
Termination Date (or such earlier date on which the Loans become due
and payable pursuant to Section 9), the then unpaid principal amount of
each Loan made by such Lender. Each Borrower hereby further agrees
to pay interest on the unpaid principal amount of the Loans made to
such Borrower from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth
in subsection 2.6.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of each Borrower to
such Lender resulting from each Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 11.6(d), and a sub-account therein for each Lender, in which
shall be recorded (i) the amount of each Loan made hereunder, (ii) the
amount of any principal or interest due and payable or to become due
and payable from each Borrower to each Lender and (iii) the amount of
any sum received by the Administrative Agent from each Borrower in
respect of Loans, and the amount of each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.3(b) shall, to the extent permitted
by applicable law, be prima facie
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evidence of the existence and amounts of the obligations of each
Borrower therein recorded; provided, however, that the failure of
any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner
affect the obligation of each Borrower to repay (with applicable
interest) the Loan made to such Borrower by such Lender in
accordance with the terms of this Agreement.
2.4 Syndication Matters.
(a) If the Syndication Closing Date occurs before the date the Loans
are made in accordance with subsection 2.1, the New Lenders shall
become parties to this Agreement by executing and delivering to the
Administrative Agent and the Company a joinder agreement in form
and substance satisfactory to the Administrative Agent (a "Joinder
Agreement"). Upon the Administrative Agent's receipt of a Joinder
Agreement, the Administrative Agent shall prepare a new Schedule I,
which shall include, among other things, the Commitment of each New
Lender, and shall deliver a copy thereof to the Company and each
Lender. If the Syndication Closing Date occurs after the date the Loans
are made in accordance with subsection 2.1 but before the Expiration
Date and the aggregate commitments of the New Lenders are equal to or
less than DEM 70,000,000, the New Lenders shall become parties to
this Agreement in accordance with subsection 11.6(c) of this
Agreement. If the Syndication Closing Date occurs after the date the
Loans are made in accordance with subsection 2.1 but before the
Expiration Date and the aggregate commitments of the New Lenders
exceed DEM 70,000,000 by no more than DEM 50,000,000 (such
excess over DEM 70,000,000 but less than or equal to DEM
120,000,000, the "Additional Commitments"), (i) the New Lenders shall
become parties to this Agreement on the Syndication Closing Date by
executing and delivering to the Administrative Agent and the Company
a Joinder Agreement, (ii) each New Lender shall enter into an
Assignment and Acceptance with the Existing Lender, effective as of
the Syndication Closing Date, in accordance with subsection 11.6(c) of
this Agreement (but without regard to the minimum amount specified in
said subsection) so that after giving effect to each such Assignment and
Acceptance the aggregate unpaid principal balance of the Loans held by
each Lender shall be an amount equal to the product of (x) the aggregate
unpaid principal balance of the Loans outstanding on the Syndication
Closing Date and (y) a fraction, the numerator of which shall be such
Lender's commitment (which, in the case of the Existing Lender, shall
be DEM 30,000,000) and the denominator of which shall be the sum of
the commitments for all Lenders (e.g., if (A) the syndication closes with
total commitments from all Lenders of DEM 150,000,000, (B) Lender
X has a commitment of DEM 20,000,000 and (C) the aggregate unpaid
principal balance of the Loans is DEM 100,000,000 on the Syndication
Closing Date, then Lender X's proportionate share of the outstanding
Loans shall be DEM 13,333,333 (i.e., DEM 100,000,000 times
20,000,000/150,000,000)), and (iii) unless an Event of Default shall
have occurred and be continuing, each Lender shall make one additional
term loan (an "Additional Loan") to the Company on the Syndication
Closing Date in a principal amount equal to its Commitment Percentage
(after giving effect to the transactions described in clause (ii) of this
subsection 2.4(a)) of the Additional Commitments. Additional Loans
shall constitute "Loans" for all purposes of this Agreement and the other
Loan Documents, including, without limitation, the manner in which
such Additional Loans are requested and made.
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(b) The Company and the Subsidiary Borrower each acknowledge
and agree that the Syndication Closing Date shall be determined by the
Arranger in consultation with the Company. If the Syndication Closing
Date occurs after the date the Loans are made in accordance with
subsection 2.1 and the Company has selected an initial Interest Period of
one month, the Arranger shall use its reasonable best efforts to cause the
Syndication Closing Date to coincide with the Interest Payment Date for
such Interest Period. If the Syndication Closing Date occurs after the
date the Loans are made in accordance with subsection 2.1 and the
Company has selected an initial Interest Period of two, three or six
months, the Arranger shall establish a Syndication Closing Date as soon
as practicable following its receipt of written commitments from the
prospective New Lenders and the Company agrees to indemnify each
Lender (including New Lenders) and to hold each Lender (including
New Lenders) harmless
from any loss or reasonable expense which such Lender may sustain or
incur as a consequence of the Syndication Closing Date occurring on a
date other than an Interest Payment Date. Such loss or reasonable
expense shall be equal to the sum of (x) such Lender's actual costs and
expenses incurred (other than any lost profits) in connection with, or by
reason of, any of the foregoing event and (y) an amount equal to the
excess, if any, as reasonably determined by the Lender of (i) its cost of
obtaining the funds for the Loan being sold or purchased (assumed to be
the LIBO Rate applicable thereto) for the period from and including the
date of such sale or purchase to but excluding the last day of the Interest
Period for such Loan over (ii) the amount of interest (as reasonably
determined by such Lender) that would be realized by such Lender in
reemploying the funds so received or expended for such period or
Interest Period, as the case may be. A certificate of any Lender setting
forth any amount or amounts, including calculations in reasonable
detail, that such Lender is entitled to receive pursuant to this subsection
2.4(b) shall be delivered to the Company and shall be conclusive absent
manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.5 Optional Prepayments. Any Borrower may, at any time and from
time to time, prepay the Loans made to such Borrower, in whole or in
part, without premium or penalty, upon at least four Business Days'
irrevocable notice to the Administrative Agent, specifying the date and
amount of prepayment. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any
such notice is given, the amount specified in such notice shall be due
and payable on the date specified therein, together with any amounts
payable pursuant to subsection 3.7. Partial prepayments shall be in an
aggregate principal amount of DEM 5,000,000 or DEM 1,000,000
multiples in excess thereof. Loans prepaid may not be reborrowed.
2.6 Interest Rates and Payment Dates for Loans
(a) Each Floating Rate Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
LIBO Rate for such Interest Period plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin.
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(c) If all or a portion of (i) the principal amount of any Loan or (ii)
any interest payable thereon shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount
shall bear interest at a rate per annum which is (x) in the case of overdue
principal, the rate that would otherwise be applicable thereto pursuant to
the foregoing provisions of this subsection plus 2% or (y) in the case of
overdue interest, the rate which would be applicable to overdue
principal pursuant to clause (x) of this subsection, in each case from the
date of such non-payment until such amount is paid in full (as well after
as before judgment).
(d) Interest on each Loan shall be payable in arrears on each Interest
Payment Date; provided, that interest accruing pursuant to paragraph (c)
of this subsection shall be payable from time to time on demand.
2.7 Inability to Determine Interest Rate. If, on or prior to the Quotation
Day for any Interest Period in respect of any Floating Rate Loan:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that, by reason
of circumstances affecting the relevant market generally, adequate and
reasonable means do not exist for ascertaining the LIBO Rate for such
affected Interest Period, or
(b) the Administrative Agent shall have received notice from
Lenders having Loans comprising at least 33-1/3% of the aggregate
amount of the Loans that the LIBO Rate determined or to be determined
for such affected Interest Period will not adequately and fairly reflect
the cost to such Lenders (as conclusively certified by such Lenders) of
making or maintaining their affected Floating Rate Loans during such
affected Interest Period,
the Administrative Agent shall give telecopy or telephonic notice
thereof to the Company and the Lenders as soon as practicable
thereafter. If such notice is given, all Loans thereafter outstanding on
the first day of such Interest Period shall automatically be converted to
Base Rate Loans and shall remain as such until such notice has been
withdrawn by the Administrative Agent. Following the withdrawal of
any such notice, all Base Rate Loans then outstanding shall be
converted as soon as practicable thereafter to bear interest at the LIBO
Rate with such Interest Period as the Company shall designate in
writing to the Administrative Agent or, if the Company fails to specify
an Interest Period, a one month Interest Period.
SECTION 3. CERTAIN PROVISIONS APPLICABLE TO THE LOANS
3.1 Certain Fees
(a) The Company agrees to pay to the Arranger, for its own account,
an arranger's fee in the amount and on the date set forth in the Fee
Letter.
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(b) The Company agrees to pay to the Administrative Agent, for its
own account, an administrative agent's fee, in the amounts and on the
dates set forth in the Fee Letter.
3.2 Computation of Interest and Fees.
(a) All interest shall be calculated on the basis of a 360-day year
based on the actual days elapsed. If the Loans are made as Floating
Rate Loans, the Administrative Agent shall as soon as practicable notify
the Borrowers and the Lenders of each determination of the applicable
LIBO Rate.
Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrowers and the Lenders in the absence of
manifest error.
3.3 Pro Rata Treatment and Payments.
(a) The Loans shall be made pro rata according to the respective
Commitment Percentages of the Lenders. Each payment (including
each prepayment) by any Borrower on account of principal of and
interest on any Loans shall be made pro rata according to the respective
principal amounts of the Loans of such Borrower then due and owing to
the Lenders. All payments (including prepayments) to be made by any
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim. All payments
in respect of Loans shall be made in Deutsche Marks and in
immediately available funds at the Payment Office, and at or prior to the
Payment Time, for such Type of Loans, on the due date thereof;
provided, however, that if Deutsche Marks cease to be lawful currency
of the Federal Republic of Germany, then all payments in respect of the
Loans shall be made in such lawful currency using the Deutsche
Xxxx/lawful currency conversion rate in effect at the time Deutsche
Marks cease to be lawful currency. All other payments under this
Agreement or any other Loan Document shall be made in Dollars in
immediately available funds at the applicable Payment Office. The
Administrative Agent shall distribute to the Lenders any payments
received by the Administrative Agent promptly upon receipt in like
funds as received. If any payment hereunder becomes due and payable
on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate
during such extension.
(b) The Administrative Agent shall assume that each Lender will
make available to the Administrative Agent its pro rata percentage
(based upon its Commitment Percentage) of the Loans requested in the
Notice of Borrowing, and the Administrative Agent shall, in reliance
upon such assumption, make available to the relevant Borrower the full
amount of the Loan requested by or on behalf of such Borrower;
provided, however, that, under no circumstance shall (i) the
Administrative Agent be required to make more than DEM 100,000,000
available to the Borrowers pursuant to the initial Loans requested
pursuant to subsection 2.1 and (ii) the Administrative Agent be required
to make any amount available to the Company pursuant to the
Additional Loans requested pursuant to subsection 2.4(a) unless first
received by the Administrative Agent from the Lenders. If such amount
is not made
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available to the Administrative Agent by any Lender by the
required time on the Borrowing Date therefor, such Lender shall pay to
the Administrative Agent, on demand, such amount with interest
thereon at a rate equal to the rate customary in Deutsche Marks for
settlement of similar interbank obligations, as quoted by the
Administrative Agent, in each case for the period until such Lender
makes such amount immediately available to the Administrative Agent.
A certificate of the Administrative Agent submitted to any Lender with
Respect to any amounts owing under this subsection shall be conclusive
in the absence of manifest error.
3.4 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any
Lender to make or maintain Floating Rate Loans to any Borrower as
contemplated by this Agreement, the commitment of such Lender
hereunder to make or maintain Floating Rate Loans to such Borrower
shall forthwith be cancelled to the extent necessary to remedy or prevent
such illegality and all Floating Rate Loans then outstanding shall
automatically be converted to Base Rate Loans and shall remain as such
until such time as Floating Rate Loans may once again be lawfully
made and maintained. As soon as practicable following the date on
which it once again becomes lawful to make and maintain Floating Rate
Loans, all Base Rate Loans then outstanding shall be converted to bear
interest at the LIBO Rate with such Interest Period as the Company
shall designate in writing to the Administrative Agent or, if the
Company fails to specify an Interest Period, a one month Interest
Period.
3.5 Requirements of Law.
(a) If after the date hereof the adoption of or any change in any
Requirement of Law or in the interpretation thereof by any
Governmental Authority charged with the administration or
interpretation thereof or compliance by any Lender with any request or
directive (whether or not having the force of law) applicable generally
in the jurisdiction of such Lender to banking institutions of the same
type as such Lender:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement or any Floating Rate Loan made by it to any
Borrower, or change the basis of taxation of payments to such Lender in
respect thereof (except for Non-Excluded Taxes covered by subsection
3.6 and changes in the rate of tax on the overall net income of such
Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the
determination of the LIBO Rate; or
(iii) shall impose on such Lender any other condition affecting
Floating Rate Loans made by such Lender to any Borrower;
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and the result of any of the foregoing is to increase the cost to such
Lender by an amount which such Lender deems to be material, of
making or maintaining Floating Rate Loans, or to reduce any amount
receivable hereunder in respect thereof, and such Lender has no
reasonable means (as it shall determine in its sole discretion) to avoid
such costs or reductions, then, in any such case, the Company shall
promptly pay such Lender following receipt of a certificate of such
Lender in accordance with subsection 3.5(d) such additional amount or
amounts as will compensate such Lender for such increased cost or
reduction suffered.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law)
made subsequent to the date hereof shall have the effect of reducing the
rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which
such Lender or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time,
the Company shall promptly pay to such Lender following receipt of a
certificate of such Lender in accordance with subsection 3.5(d) such
additional amount or amounts as will compensate such Lender for any
such reduction suffered. Notwithstanding any other provision in this
paragraph (b), none of the Lenders shall be entitled to demand
compensation pursuant to this paragraph (b) if it shall not then be the
general practice of such Lender to demand such compensation in similar
circumstances under comparable provisions of other comparable credit
agreements.
(c) In addition to, and without duplication of, amounts which may
become payable from time to time pursuant to paragraphs (a) and (b) of
this subsection 3.5, each Borrower agrees to pay to each Lender which
requests compensation under this paragraph (c) by notice to such
Borrower, on the last day of each Interest Period with respect to any
Floating Rate Loans made by such Lender to such Borrower, at any
time when such Lender shall be required to maintain reserves against
"Eurocurrency liabilities" under Regulation D of the Board (or, at any
time when such Lender may be required by the Board or by any other
Governmental Authority, whether within the United States or in another
relevant jurisdiction, to maintain reserves against any other category of
liabilities which includes deposits by reference to which the LIBO Rate
is determined as provided in this Agreement or against any category of
extensions of credit or other assets of such Lender which includes any
Floating Rate Loans), an additional amount (determined by such
Lender's calculation or, if an accurate calculation is impracticable,
reasonable estimate using such reasonable means of allocation as such
Lender shall determine) equal to the actual costs, if any, incurred by
such Lender during such Interest Period as a result of the applicability
of the foregoing reserves to such Floating Rate Loans.
(d) A certificate of each Lender setting forth such amount or amounts
as shall be necessary to compensate such Lender as specified in
paragraph (a), (b) or (c) above, as the
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case may be, and setting forth in reasonable detail an explanation
of the basis of requesting such compensation in accordance with
paragraph (a), (b) or (c) above, including calculations in detail
comparable to the detail set forth in certificates delivered by
such Lender in similar circumstances under comparable provisions
of other comparable credit agreements, shall be delivered to the
relevant Borrower and shall be conclusive absent manifest error.
The relevant Borrower shall pay each Lender the amount shown as
due on any such certificate delivered to it within 10 days after
its receipt of the same.
(e) Failure on the part of any Lender to demand compensation for
any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not
constitute a waiver of such Lender's right to demand compensation with
respect to such period or any other period, except that no Lender shall
be entitled to compensation under this subsection 3.5 for any costs
incurred or reduction suffered with respect to any date unless such
Lender shall have notified the relevant Borrower that it will demand
compensation for such costs or reductions under paragraph (d) above,
not more than six months after the later of (i) such date and (ii) the date
on which such Lender shall have become aware of such costs or
reductions. The protection of this subsection 3.5 shall be available to
each Lender regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or
condition that shall have occurred or been imposed.
(f) The agreements in this subsection shall survive the termination of
this Agreement and the payment of the Loans and all other amounts
payable hereunder.
3.6 Taxes.
(a) All payments made to the Administrative Agent or any Lender
under this Agreement shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any
Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement); provided,
however, that the Lender and the Administrative Agent, as the case
may be, shall have complied with the relevant provisions of this
subsection 3.6. If any such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings ("Non-Excluded
Taxes") are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder, the amounts so
payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes) interest or
any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement. Whenever any Non-Excluded
Taxes are payable by any Borrower, as promptly as possible
thereafter such
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Borrower shall timely pay such Non-Excluded Taxes and shall send
to the Administrative Agent for its own account or for the account
of such Lender, as the case may be, a certified copy of an original
official receipt received by such Borrower showing payment thereof.
If such Borrower fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required
documentary evidence, such Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative
Agent or any Lender as a result of any such failure. Notwithstanding
the foregoing, no Borrower shall be required to make any payments
in respect of Non-Excluded Taxes to any Lender that has changed the
Funding Office at which it maintains the Loans to which such
Non-Excluded Taxes relate (other than any such change in Funding
Office made by such Lender pursuant to subsection 3.8 to avoid or
minimize the application or effects of subsection 3.5 or 3.6) in an
amount greater than such Borrower would have been required to pay
pursuant to this subsection 3.6 if no such change in Funding Office
had occurred. The agreements in this subsection shall survive the
termination of this Agreement, and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) concurrently with the Effective Date, deliver to the Company
and the Administrative Agent (A) two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as the case
may be;
(ii) deliver to the Company and the Administrative Agent two
further copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Company; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Company
or the Administrative Agent;
unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and such
Lender so advises the Company and the Administrative Agent. Such
Lender shall certify (i) in the case of a Form 1001 or 4224, that it is
entitled to receive payments under this Agreement in respect of Loans to
the Company without deduction or withholding of any United States
federal income taxes and (ii) in the case of a Form W-8 or W-9, that it is
entitled to an exemption from United States backup withholding tax.
Each Person that shall become a Lender or a Participant pursuant to
subsection 11.6 shall, upon the effectiveness of the related transfer, be
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required to provide all of the forms and statements required pursuant to
this subsection, provided that in the case of a Participant such
Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
(c) Each Lender further agrees to use reasonable efforts (consistent
with legal and regulatory restrictions) to deliver to the Subsidiary
Borrower, promptly upon any request therefor from time to time, such
forms, documents and other information as may be required by
applicable law from time to time and to file all appropriate forms to
obtain a certificate or other appropriate documents from the appropriate
governmental authorities to establish that payments made in respect of
Loans to the Subsidiary Borrower can be made without (or at a reduced
rate of) withholding of any Non-Excluded Taxes; provided, however,
that if such Lender is or becomes unable, by virtue of any applicable
law, rule or regulation, to establish such exemption or reduction the
Borrowers shall nonetheless remain obligated under subsection 3.6(a)
above to pay the amounts described therein and provided, further, that
no Lender shall be required to take any action hereunder which in the
discretion of such Lender would cause such Lender and its Funding
Office(s) to suffer a material, economic, legal or regulatory
disadvantage.
3.7 Indemnity. The Company agrees to indemnify each Lender and to
hold each Lender harmless from any loss or reasonable expense which
such Lender may sustain or incur as a consequence of (a) default by any
Borrower in making a borrowing of a Loan after the Company has given
the Notice of Borrowing requesting the same in accordance with the
provisions of this Agreement, (b) default by any Borrower in making
any prepayment after such Borrower has given a notice thereof in
accordance with the provisions of this Agreement, (c) the making by
any Borrower of a prepayment of Floating Rate Loans on a day which is
not the last day of an Interest Period or the maturity date, as the case
may be, with respect thereto or (d) the conversion of Loans from one
Type to another Type pursuant to subsections 2.7 and 3.4. Such other
loss or reasonable expense shall be equal to the sum of (x) such Lender's
actual costs and expenses incurred (other than any lost profits) in
connection with, or by reason of, any of the foregoing events, including
all costs incurred in connection with the termination, settlement or
modification of any interest rate swap agreement entered into with
respect to the Loans, and (y) an amount equal to the excess, if any, as
reasonably determined by the Lender of (i) its cost of obtaining the
funds for the Loan being paid, prepaid or converted (assumed to be the
LIBO Rate applicable thereto) for the period from and including the
date for such payment, prepayment or conversion to but excluding the
last day of the Interest Period for such Loan over (ii) the amount
of interest (as reasonably determined by such Lender) that would
be realized by such Lender in reemploying the funds so paid, prepaid
or converted for such period or Interest Period, as the case may be.
A certificate of any Lender setting forth any amount or amounts,
including calculations in reasonable detail, that such Lender is
entitled to receive pursuant to this subsection 3.7 shall be delivered
to the Company and shall be conclusive absent manifest error. This
covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
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3.8 Change of Funding Office.
(a) Each Lender agrees that upon the occurrence of any event giving
rise to the operation of subsection 3.4, 3.5 or 3.6, it will use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document requested by the Company or designate a
different Funding Office for Loans affected by such event with the
object of avoiding or minimizing the consequences of such event;
provided, that such filing or designation is made on terms that, in the
sole judgment of such Lender, cause such Lender and its Funding
Office(s) to suffer no material economic, legal or regulatory
disadvantage; and, provided, further, that nothing in this subsection 3.8
shall affect or postpone any of the obligations of any Borrower or the
rights of any Lender pursuant to subsection 3.4, 3.5 or 3.6.
(b) In the event that any Lender shall have delivered a notice or
certificate pursuant to subsections 3.4, 3.5 or 3.6, the Borrowers shall
have the right, but not the obligation, at their own expense, upon notice
to such Lender and the Administrative Agent, to replace such Lender
with an assignee (in accordance with and subject to the restrictions
contained in subsection 11.6) approved by the Administrative Agent
(which approval shall not be unreasonably withheld), and such Lender
hereby agrees to transfer and assign without recourse (in accordance
with and subject to the restrictions contained in subsection 11.6) all its
interests, rights and obligations under this Agreement and the other
Loan Documents to such assignee; provided, however, that no Lender
shall be obligated to make any such assignment unless (i) such
assignment shall not conflict with any Requirement of Law, (ii) such
assignee shall pay to the affected Lender in immediately available funds
on the date of such assignment the principal of the Loans made by such
Lender hereunder and (iii) the Borrowers shall pay to the affected
Lender in immediately available funds on the date of such assignment
the interest accrued to the date of payment on the Loans made by such
Lender hereunder and all other amounts accrued for such Lender's
account or owed to it hereunder (including any amount that would be
payable to such Lender pursuant to subsection 3.7 if such assignment
were, instead, a prepayment).
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, the Company hereby represents and
warrants to the Administrative Agent and each Lender that:
4.1 Financial Condition. The consolidated balance sheet of the
Company and its consolidated Subsidiaries as at June 30, 1997 and the
related consolidated statements of income and of cash flows for the
fiscal year ended on such date, reported on by KPMG Peat Marwick
LLP, copies of which have heretofore been furnished to each Lender,
are complete and correct and present fairly the consolidated financial
condition of the Company and its consolidated Subsidiaries as at such
date, and the consolidated results of their operations and their
consolidated cash flows for the fiscal year then ended. All such
financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such
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accountants or a Responsible Officer, as the case may be, and as
disclosed therein). Neither the Company nor any of its consolidated
Subsidiaries had, at the date of the most recent balance sheet referred to
above, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or
long-term commitment, including, without limitation, any interest rate
or foreign currency swap or exchange transaction, which is not reflected
in the foregoing statements or in the notes thereto. During the period
from June 30, 1997 to and including the date hereof there has been no
sale, transfer or other disposition by the Company or any of its
consolidated Subsidiaries of any property and no purchase or other
acquisition of any business or property (including any capital stock of
any other Person), which in either case would be, material in relation to
the consolidated financial condition of the Company and its
consolidated Subsidiaries at June 30, 1997.
4.2 No Change. (a) Since June 30, 1997 there has been no development
or event which has had or is reasonably expected to have a Material
Adverse Effect, and (b) during the period from June 30, 1997 to and
including the date hereof no dividends (other than dividends paid in the
ordinary course) or other distributions have been declared, paid or made
upon the Capital Stock of the Company nor has any of the Capital Stock
of the Company been redeemed, retired, purchased or otherwise
acquired for value by the Company or any of its Subsidiaries.
4.3 Corporate Existence; Compliance with Law. Each Borrower (a) is
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, (b) has the corporate power and
authority to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently
engaged, (c) is duly qualified as a foreign corporation under the laws of
each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification except to the
extent that the failure to so qualify is not reasonably expected to have a
Material Adverse Effect and (d) is in compliance with all Requirements
of Law except to the extent that the failure to comply therewith is not
reasonably expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each
Borrower has the corporate power and authority to make, deliver and
perform the Loan Documents to which it is a party and to borrow
hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and to
authorize the execution, delivery and performance of the Loan
Documents to which it is a party. No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of the Loan Documents to which the Company
or Subsidiary Borrower is a party. This Agreement has been, and each
other Loan Document to which it is a party will be, duly executed and
delivered on behalf of the Company and the Subsidiary Borrower. This
Agreement constitutes, and each other Loan Document to which it is a
party when executed and delivered will constitute, a valid and binding
obligation of the Company or the Subsidiary Borrower, as the case may
be, enforceable against it in accordance with its terms, except as
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enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of the
Loan Documents to which the Company or the Subsidiary Borrower is a
party, the borrowings hereunder and the use of the proceeds thereof will
not (a) violate any Requirement of Law or Contractual Obligation of the
Company or the Subsidiary Borrower except where any such violation
is not reasonably expected to result in a Material Adverse Effect or (b)
result in the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any such Requirement of
Law or Contractual Obligation except where any such creation or
imposition of any Lien is not reasonably expected to result in a Material
Adverse Effect.
4.6 No Material Litigation. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to
the knowledge of the Company, threatened by or against the Company
or any of its Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to any of the Loan Documents or
any of the transactions contemplated hereby or thereby, (b) the NOKIA
Acquisition or (c) which is reasonably expected to have a Material
Adverse Effect.
4.7 No Default. Neither the Company nor the Subsidiary Borrower is
in default under or with respect to any of its Contractual Obligations in
any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is
continuing. After giving effect to the NOKIA Acquisition, no Default
or Event of Default would exist.
4.8 Ownership of Property; Liens. Each of the Company and the
Subsidiary Borrower has good and marketable title to, or valid leasehold
interests in, all its material real property, except for minor defects in title
that do not interfere in any material respect with its ability to conduct its
business as presently conducted. All such material properties are free
and clear of all Liens, other than Liens permitted by the terms of the
Principal Credit Agreement.
4.9 Intellectual Property. The Company and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights,
technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those failures to own or
license which are not reasonably expected to have a Material Adverse
Effect (the "Intellectual Property"). No claim has been asserted against
the Company or any Subsidiary and is pending by any Person
challenging or questioning the use by the Company or any Subsidiary of
any such Intellectual Property or the validity or effectiveness of any
such Intellectual Property, nor does the Company know of any valid
basis for any such claim, except for such claims that, in the aggregate,
are not reasonably expected to have a Material Adverse Effect. To the
best knowledge of the Company, the use of such Intellectual Property
by the Company and its Subsidiaries does not infringe on the rights of
any Person,
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except for such claims and infringements that, in the aggregate,
are not reasonably expected to have a Material Adverse Effect.
4.10 Taxes. Each of the Company and its Subsidiaries has filed or
caused to be filed all tax returns which, to the knowledge of the
Company, are required to be filed and has paid all taxes shown to be due
and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority (other than any
amount the validity of which is currently being contested in good faith
by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Company
or its Subsidiaries, as the case may be) except where such failure to
file or pay is not reasonably expected to result in a Material Adverse
Effect; no tax Lien has been filed in respect of any material amount
of unpaid taxes, and, to the knowledge of the Company, no claim is
being asserted, with respect to any such tax, fee or other charge
except where such claim is not reasonably expected to result in a
Material Adverse Effect.
4.11 Federal Regulations. No part of the proceeds of any Loans will be
used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation G or
Regulation U. If requested by any Lender, the Company will furnish to
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1 referred to in said
Regulation G or Regulation U, as the case may be.
4.12 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date
on which this representation is made or deemed made on the date of the
Notice of Borrowing or any Notice of Interest Period with respect to any
Single Employer Plan or Multiemployer Plan, and each Plan (such
representation in respect of any Multiemployer Plan being made to the
best of the Company's knowledge) has complied in all material respects
with the applicable provisions of ERISA and the Code. No termination
of a Single Employer Plan has occurred, and no Lien on assets of the
Company or any Commonly Controlled Entity in favor of the PBGC or
a Plan has arisen, during such five-year period. The present value of all
accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or
deemed made on the date of the Notice of Borrowing or any Notice of
Interest Period, exceed the value of the assets of such Plan allocable to
such accrued benefits. Neither the Company nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Company nor any Commonly
Controlled Entity would become subject to any liability under ERISA if
the Company or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is
made or deemed made. To the best of the Company's knowledge, no
such Multiemployer Plan is in Reorganization or Insolvent. The present
value (determined using actuarial and other assumptions which are
reasonable in respect of the benefits provided and the employees
participating) of the liability of the Company and each Commonly
Controlled Entity for post retirement benefits to be provided to their
current and
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former employees under Plans which are welfare benefit plans
(as defined in Section 3(1) of ERISA) does not, in the aggregate,
exceed the assets under all such Plans allocable to such benefits by
an amount in excess of $5,000,000.
4.13 Investment Company Act; Other Regulations. Neither the
Company nor the Subsidiary Borrower is an "investment company", or
a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended. Neither
the Company nor the Subsidiary Borrower is subject to regulation under
any Federal or State statute or regulation (other than Regulation X of the
Board of Governors of the Federal Reserve System) which limits its
ability to incur Indebtedness.
4.14 Purpose of Loans. The proceeds of the Loans shall be used by the
Company and the Subsidiary Borrower to finance the NOKIA
Acquisition and for general working capital purposes.
4.15 Accuracy and Completeness of Information. All information
heretofore furnished by the Company to the Lenders for purposes of or
in connection with this Agreement, and all such information hereafter
furnished by the Company to any Lender for purposes of this
Agreement, will not, at the time delivered, contain any untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements made or to be made, in the light of the
circumstances under which they were or will be made, not misleading.
Prior to the date hereof, the Company has disclosed to the Lenders in
writing any and all facts which materially and adversely affect (to the
extent the Company can as of the date hereof reasonably foresee) the
business, operations or financial condition of the Company and its
Subsidiaries taken as a whole, or the ability of the Borrowers and the
Guarantor to perform their obligations under this Agreement.
4.16 Environmental Matters. Except to the extent that all of the
following are not reasonably expected to have a Material Adverse
Effect:
(a) The facilities and properties owned, leased or operated by the
Company or any of its Subsidiaries (the "Properties") do not contain,
and to the knowledge of the Company during its period of ownership,
lease or operation of the Properties, have not previously contained, any
Materials of Environmental Concern in amounts or concentrations
which (i) constitute a violation of, or (ii) are reasonably expected to give
rise to liability under, any Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all
material respects with all applicable Environmental Laws, and there is
no contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business
operated by the Company or any of its Subsidiaries (the "Business")
which could materially interfere with the continued operation of the
Properties or materially impair the fair saleable value thereof.
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(c) Neither the Company nor any of its Subsidiaries has received any
written notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Properties or the
Business, nor does the Company have knowledge or reason to believe
that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of any Environmental Law,
nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could reasonably be expected to give
rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Company, threatened, under any
Environmental Law to which the Company or any Subsidiary is or will
be named as a party with respect to the Properties or the Business, nor
are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to
the Properties or the Business.
(f) There has been no release of Materials of Environmental Concern
at or from the Properties, or arising from or related to the operations of
the Company or any Subsidiary in connection with the Properties or
otherwise in connection with the Business, in violation of or in amounts
or in a manner that could reasonably be expected to give rise to liability
under Environmental Laws.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Loans. The agreement of each Lender to make the
Loans requested to be made by it is subject to the satisfaction,
immediately prior to or concurrently with the making of such Loans, of
the following conditions precedent:
(a) Credit Agreement. The Effective Date shall have occurred.
(b) German Mortgage. The Administrative Agent shall have
received the German Mortgage, executed and delivered by the Pledgor.
(c) German Security Agreement. The Administrative Agent shall
have received the German Security Agreement, executed and delivered
by the Pledgor.
(d) Related Agreements. The Administrative Agent shall have
received, with a copy for each Lender, true and correct copies, certified
as to authenticity by the Company, of any Material Debt Instrument.
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(e) Borrowing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the
Company, dated the Closing Date, in form and substance satisfactory to
the Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the Company.
There shall be attached to such certificate (i) a copy of the resolutions,
in form and substance satisfactory to the Administrative Agent, of the
Board of Directors of the Company authorizing the execution, delivery
and performance of this Agreement and (ii) specimen signatures of
officers of the Company authorized to execute this Agreement and
related documents as of the date hereof.
(f) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies
of the certificate of incorporation and by-laws of the Company, certified
as of the Closing Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of the Company.
(g) Consents, Licenses and Approvals. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate of a
Responsible Officer of the Company (i) attaching copies of all consents,
authorizations and filings referred to in subsection 4.4, and (ii) stating
that such consents, licenses and filings are in full force and effect, and
each such consent, authorization and filing shall be in form and
substance satisfactory to the Administrative Agent.
(h) Fees. The Administrative Agent and the Arranger shall have
received the fees to be received on the Closing Date referred to in
subsection 3.1(b).
(i) Legal Opinions. The Administrative Agent shall have received,
with counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Xxxxx, Day, Xxxxxx & Xxxxx,
counsel to the Company, in form and substance satisfactory to the
Administrative Agent;
(ii) the executed legal opinion of the general counsel of the
Company, in form and substance satisfactory to the Administrative
Agent; and
(iii) the executed legal opinion of counsel to the Subsidiary
Borrower, in form and substance satisfactory to the Administrative
Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement and the other Loan
Documents as the Administrative Agent may reasonably require.
(j) Notice of Borrowing. The Administrative Agent shall have
received the Notice of Borrowing, duly completed and executed and
delivered by the Company.
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(k) Representations and Warranties. Each of the representations and
warranties made by the Company in or pursuant to this Agreement shall
be true and correct in all material respects on and as of the Borrowing
Date as if made on and as of such date.
(l) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
(m) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement shall be satisfactory in
form and substance to the Administrative Agent.
SECTION 6. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain
in effect or any amount is owing to any Lender or the Administrative
Agent hereunder or under any other Loan Document, the Company shall
and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but 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 consolidated Subsidiaries as at the end of
such year and the related consolidated statements of income and
retained earnings and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by KPMG Peat
Marwick LLP or other independent certified public accountants of
nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days after
the end of each of the first three quarterly periods of each fiscal year of
the Company, the unaudited consolidated balance sheet of the Company
and its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated statements of income and retained
earnings and of cash flows of the Company and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end
audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance
with GAAP applied consistently throughout the periods reflected therein
and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
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6.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements referred
to in subsection 6.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements referred
to in subsections 6.1(a) and (b), a certificate of a Responsible Officer
stating that, to the best of such officer's knowledge, the Company during
such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement
and the other Loan Documents to be observed, performed or satisfied by
it, and that such Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate;
(c) within 45 days after the end of each fiscal quarter of the
Company, a certificate of a senior financial officer of the Company
showing in detail the computations necessary to calculate the
Applicable Margin (the "Debt to Capitalization Ratio Certificate");
(d) not later than ten Business Days following approval by the Board
of Directors of the Company (and in any event at least once in each
fiscal year), a copy of the Company's final business plan as approved by
the Directors;
(e) within five days after the same are sent, copies of all financial
statements and reports which the Company sends to its stockholders,
and within five days after the same are filed, copies of all financial
statements and periodic reports which the Company may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be,
all its obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Company or
its Subsidiaries, as the case may be, or to the extent that the
failure to so pay, discharge or satisfy would not be reasonably
expected to have a Material Adverse Effect.
6.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business
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except as otherwise permitted pursuant to the terms of the Principal
Credit Agreement; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply
therewith could not be reasonably expected to have a Material Adverse
Effect.
6.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition; maintain
with financially sound and reputable insurance companies insurance on
all its property on an "all risk" basis; and furnish to each Lender, upon
written request, full information as to the insurance carried.
6.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of the Lenders to visit and inspect
any of its properties and examine and make abstracts from any of its
books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties
and financial and other condition of the Company and its Subsidiaries
with officers and employees of the Company and its Subsidiaries and
with its independent certified public accountants; provided that all such
visits shall be coordinated by the Lenders with the Administrative
Agent, and by the Administrative Agent with the Company, in order to
minimize disruption of the Company's business.
6.7 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Company or any of its Subsidiaries and any Governmental Authority,
which in either case could reasonably be expected to have a Material
Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries in which the amount involved is $5,000,000 or more and
not covered by insurance or in which injunctive or similar relief is
sought unless the Company has determined in good faith, after
consultation with and based upon advice of counsel acting for the
Company or such Subsidiary in such litigation or proceeding, that it
could not be reasonably expected that such litigation or proceeding
would result in a final judgment against the Company or such
Subsidiary in an amount greater than $5,000,000;
(d) the following events, as soon as possible and in any event within
30 days after the Company knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect
to any Single Employer Plan or Multiemployer Plan; a failure of the
Company or a Commonly Controlled
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Entity to make any required contribution to a Plan; the creation of
any Lien on the assets of the Company or any Commonly Controlled
Entity in favor of the PBGC or a Plan; or any withdrawal of the
Company or a Commonly Controlled Entity from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the
PBGC or the Company or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Single Employer
Plan or Multiemployer Plan; and
(e) any development or event which could reasonably be expected to
have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Company proposes to take
with respect thereto.
6.8 Environmental Laws.
(a) Comply with, and ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain
and comply in all material respects with and maintain, and ensure that
all tenants and subtenants obtain and comply in all material respects
with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws
except to the extent that failure to do so could not be reasonably
expected to have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with
all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws except to the extent that the same (i) are
being contested in good faith by appropriate proceedings and could not
be reasonably expected to have a Material Adverse Effect or (ii) could
not be reasonably expected to have a Material Adverse Effect.
SECTION 7. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain
in effect or any amount is owing to any Lender or the Administrative
Agent hereunder or under any other Loan Document, the Company shall
comply with the Negative Covenants, and such Negative Covenants
(together with all of the terms utilized therein) are hereby incorporated
by reference as if set forth herein in their entirety.
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SECTION 8. GUARANTEE
8.1 Guarantee.
(a) In order to induce the Administrative Agent and the Lenders to
execute and deliver this Agreement and to make the Loans hereunder,
and in consideration thereof, the Company hereby unconditionally and
irrevocably guarantees to the Administrative Agent and each Lender and
their respective successors and assigns, the prompt and complete
payment when due (whether at the stated maturity, by acceleration or
otherwise) of the Subsidiary Obligations, and the Company further
agrees to pay any and all reasonable expenses which may be paid or
incurred by the Administrative Agent or any Lender in collecting any or
all of the Subsidiary Obligation and/or enforcing any rights under this
Section 8 or under Subsidiary Obligations or with respect to any
German Collateral.
(b) No payment or payments made by the Subsidiary Borrower, the
Guarantor, any other guarantor or any other Person or received or
collected by the Administrative Agent or any Lender from the
Subsidiary Borrower, the Guarantor, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in
reduction of or in payment of the Subsidiary Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of the
Guarantor hereunder which shall, notwithstanding any such payment or
payments other than payments made by the Guarantor in respect of the
Subsidiary Obligations or payments received or collected from the
Guarantor in respect of the Subsidiary Obligations, remain liable for the
Subsidiary Obligations guaranteed by it hereunder until the Subsidiary
Obligations are paid in full and the Commitments are terminated.
8.2 No Subrogation. Notwithstanding any payment or payments made
by the Company hereunder, or any set-off or application of funds of the
Company by the Administrative Agent or any Lender, the Company
shall not be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against the Subsidiary Borrower or
against any collateral security or guarantee or right of offset held by the
Administrative Agent or any Lender for the payment of the Subsidiary
Obligations, nor shall the Company seek or be entitled to seek any
contribution or reimbursement from the Subsidiary Borrower in respect
of payments made by the Company hereunder, until all amounts owing
to the Administrative Agent and the Lenders by the Subsidiary
Borrower on account of the Subsidiary Obligations are paid in full and
the Commitments are terminated. If any amount shall be paid to the
Company on account of such subrogation rights at any time when all of
the Subsidiary Obligations shall not have been paid in full, such amount
shall be held by the Company in trust for the Administrative Agent and
the Lenders, segregated from other funds of the Company, and shall,
forthwith upon receipt by the Company, be turned over to the
Administrative Agent in the exact form received by the Company (duly
indorsed by the Company to the Administrative Agent, if required), to
be applied against the Subsidiary Obligations, whether matured or
unmatured, in such order as the Administrative Agent may determine.
The provisions of this paragraph shall continue to be effective after the
termination of this Agreement, the payment in full of the Subsidiary
Obligations and the termination of the Commitments.
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8.3 Modification of Obligations. The Guarantor hereby consents that,
without the necessity of any reservation of rights against it and without
notice to or further assent by it, any demand made by the Administrative
Agent or any Lender for payment of any of the Subsidiary Obligations
may be rescinded by the Administrative Agent or such Lender and any
of such Subsidiary Obligations continued, and the Subsidiary
Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by the Administrative Agent or such
Lender and this Agreement (other than the obligations specifically
incurred by the Guarantor as a Borrower or as the Guarantor under this
Section 8), any collateral security document or other guarantee or
document in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Administrative
Agent or such Lender may deem advisable from time to time, and any
collateral security or guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of such Subsidiary
Obligations may be sold, exchanged, waived, surrendered or released,
all without the necessity of any reservations of rights against the
Guarantor and without notice to or further assent by the Guarantor (in
respect of its guarantee hereunder) which will remain bound hereunder
notwithstanding any such renewal, extension, supplement, termination,
sale, exchange, waiver, surrender or release. Neither the Administrative
Agent nor any Lender shall have any obligation to protect, secure,
perfect or insure any collateral security document or property subject
thereto at any time held as security for the Subsidiary Obligations and
the Guarantor specifically acknowledges that the Administrative Agent
has not recorded or registered and has no obligation to record or register
the German Mortgage or the German Security Agreement. When
making any demand hereunder against the Guarantor or the Subsidiary
Borrower, the Administrative Agent or any Lender may, but shall be
under no obligation to, make a similar demand on the other, and any
failure by the Administrative Agent or such Lender to make any such
demand or to collect any payments from the Subsidiary Borrower or the
Guarantor or any other guarantor or any release of the Guarantor, the
Subsidiary Borrower or any other guarantor shall not relieve the
Guarantor or the Subsidiary Borrower of its obligations and liabilities
hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Administrative Agent or
any Lender against the Guarantor or the Subsidiary Borrower. For
purposes of this subsection 8.3, the term "demand" shall include the
commencement and continuance of any legal proceedings.
8.4 Waiver. The Guarantor hereby waives any and all notice of the
creation, renewal, extension or accrual of any of the Subsidiary
Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon the guarantee contained in this Section 8 or
acceptance of the guarantee contained in this Section 8, and such
Subsidiary Obligations, and any of them, shall conclusively be deemed
to have been created, contracted or incurred in reliance upon the
guarantee contained in this Section 8, and all dealings between the
Borrowers and the Guarantor and the Lenders shall likewise be
conclusively presumed to have been had or consummated in reliance
upon the guarantee contained in this Section 8. The Guarantor hereby
waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment and all other notices to or upon the Guarantor
with respect to the Subsidiary Obligations. This Section 8 shall be
construed as a continuing,
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absolute and unconditional guarantee of payment without regard to the
validity, regularity or enforceability of this Agreement, any of the
Subsidiary Obligations, or any collateral security or guarantee
therefor or right of offset with respect thereto at any time or from
time to time held by the Administrative Agent or any Lender and without
without regard to any defense, set-off or counterclaim which may at any
time be available to or be asserted by the Guarantor or the Subsidiary
Borrower against the Administrative Agent or any Lender, or by any other
circumstance whatsoever (with or without notice to or knowledge of the
Guarantor or the Subsidiary Borrower) (other than payment in full of the
Subsidiary Obligations) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Subsidiary Borrower
for the Subsidiary Obligations, or of the Guarantor under the
guarantee contained in this Section 8 in bankruptcy or in any other
instance, and the obligations and liabilities of the Guarantor and
the Borrowers hereunder shall not be conditioned or contingent upon
the pursuit by the Administrative Agent or any Lender at any time of
any right or remedy against any Borrower, the Guarantor or any other
Person which may be or become liable in respect of all or any part of
the Subsidiary Obligations or against any collateral security or
guarantee therefor or right of offset with respect thereto. The
guarantee contained in this Section 8 shall remain in full force and
effect and be binding in accordance with and to the extent of its terms
upon the Guarantor (and any successor and assign thereof) and shall
inure to the benefit of the Administrative Agent and the Lenders and
their respective successors and assigns, until (subject to subsection 8.5)
all the Subsidiary Obligations and the obligations of the Guarantor
under this Section 8 shall have been satisfied by payment in full.
8.5 Reinstatement. The guarantee contained in this Section 8 shall
continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the Subsidiary Obligations
is rescinded or must otherwise be restored or returned by the
Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Subsidiary Borrower, or
upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, any Borrower or any
substantial part of its property, all as though such payments had not
been made.
8.6 Payment of Subsidiary Obligations. The Guarantor hereby
guarantees that the Subsidiary Obligations guaranteed by it hereunder
will be paid to the Person entitled thereto pursuant to the terms of this
Agreement at the applicable Payment Office without set-off or
counterclaim.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Loan when
due in accordance with the terms thereof or hereof; or any Borrower
shall fail to pay any interest on any Loan, or any other amount payable
hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms hereof; or
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(b) Any representation or warranty made or deemed made by the
Company or the Subsidiary Borrower herein or in any other Loan
Document or which is contained in any certificate, document or
financial or other statement furnished by it at any time under or in
connection with this Agreement shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(c) The Company shall default in the observance or performance of
any Negative Covenant, except those Negative Covenants for which the
Principal Credit Agreement provides a cure period; or
(d) Any Borrower shall default in the observance or performance of
other agreement contained (or incorporated by reference) in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days (in the case of any such
default by the Company) or 30 days after written notice thereof to the
Subsidiary Borrower (in the case of any such default by the Subsidiary
Borrower); or
(e) The Company or any of its Restricted Subsidiaries shall (i)
default in the payment of principal of or interest on any Indebtedness
(other than the Loans) or in the payment of any Guarantee Obligation,
beyond the period of grace (not to exceed 30 days), if any, provided in
the instrument or agreement under which such Indebtedness or
Guarantee Obligation was created, if the aggregate amount of the
Indebtedness and/or Guarantee Obligations in respect of which such
default or defaults shall have occurred is at least $5,000,000; or (ii)
default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or Guarantee Obligation or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or such Guarantee Obligation to become
payable; or
(f) (i) The Company or any of its Restricted Subsidiaries shall
commence any case, proceeding or other action (A) under any existing
or future law of any jurisdiction, domestic or foreign, relating, to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or
the Company or any of its Restricted Subsidiaries shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Company or any of its Restricted Subsidiaries
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for
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relief or any such ajudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or
(iii) there shall be commenced against the Company or any of its
Restricted Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results
in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof, or (iv) the Company shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Company shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Company or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Majority
Lenders, likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Company or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Majority
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have
a Material Adverse Effect; or
(h) One or more final judgments or decrees of a court shall be
entered against the Company or any of its Restricted Subsidiaries for the
payment of money in an aggregate amount (to the extent not adequately
covered by insurance) of $5,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 60 days from the entry thereof; or
(i) Any Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) of this Section with respect
to the Company, automatically the Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement shall immediately
become due and payable; (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with
the consent of the Majority Lenders, the Administrative Agent
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may, or upon the request of the Majority Lenders, the Administrative
Agent shall, by notice to the Company declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the request of the Majority Lenders,
the Administrative Agent shall, by notice to the Company, declare the
Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement to be due and payable forthwith,
whereupon the same shall immediately become due and payable and (C)
with the consent of the Majority Lenders, the Administrative Agent
may, or upon the request of the Majority Lenders, the Administrative
Agent shall, exercise its remedies under the German Mortgage and/or
the German Security Agreement.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly
waived.
SECTION 10. THE ADMINISTRATIVE AGENT; THE ARRANGER
10.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under
this Agreement and the other Loan Documents, and each Lender
irrevocably authorizes the Administrative Agent, in such capacity, to
take such action on its behalf under the provisions of this Agreement
and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by
the terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Lenders to
accept on their behalf any security interests or guarantees granted by
any Borrower or the Pledgor. Notwithstanding any provision to the
contrary elsewhere contained in this Agreement, the Administrative
Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent.
10.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
10.3 Exculpatory Provisions. Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except for its or such Person's
own gross negligence or willful misconduct) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Borrower or any officer
thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan
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Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan
Loan Document or for any failure of any Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any
Borrower.
10.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation,
counsel to the Company), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may
deem and treat the payee of any note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Majority
Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the
Majority Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.
10.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event
of Default hereunder unless the Administrative Agent has received
notice from a Lender or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice
is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice
thereof to the Lenders. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably
directed by the Majority Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of
the Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no
act by the Administrative Agent hereinafter taken, including any review
of the affairs of any Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender.
Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or
any other Lender, and based on such documents and information as it
has deemed
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appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrowers and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrowers. Except for notices,
reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Borrower which may come into the possession
of the Administrative Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not
reimbursed by the Borrowers and without limiting the obligation of the
Borrowers to do so), ratably according to their respective Commitment
Percentages in effect on the date on which indemnification is sought (or,
if indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full, ratably
in accordance with their Commitment Percentages immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or
omitted by the Administrative Agent under or in connection with any of
the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting
solely from the Administrative Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the
payment of the Loans and all other amounts payable hereunder.
10.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the
Borrowers as though the Administrative Agent were not the
Administrative Agent hereunder and under the other Loan Documents.
With respect to the Loans made by it or one of its branches, the
Administrative Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent,
and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
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10.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders. If
the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Majority
Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent shall, unless an Event of Default shall
be outstanding, be approved by the Company (such approval not to be
unreasonably withheld), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall mean such successor agent effective
upon such appointment and approval, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be
terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or
any holders of the Loans. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section 10
shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Agreement and the other
Loan Documents.
10.10 Arranger. The Arranger, in such capacity, shall have no duties or
responsibilities, and shall incur no obligations or liabilities, under this
Agreement or the other Loan Documents but shall nevertheless be
entitled to all of the indemnities and other protections afforded to the
Administrative Agent under this Section 10.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers Generally; Amendments to Schedules
I, II and III. (a) Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of
this subsection. The Majority Lenders may, or, with the written consent
of the Majority Lenders, the Administrative Agent may, from time to
time, (i) enter into with the Company written amendments, supplements
or modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of
the Borrowers hereunder or thereunder or (ii) waive, on such terms and
conditions as the Majority Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of
this Agreement or the other Loan Documents or any Default or Event of
Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall (A) reduce
the amount or extend the scheduled date of maturity of any Loan or of
any installment thereof, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof
or increase the amount or extend the expiration date of any Lender's
Commitments, in each case without the consent of each Lender affected
thereby, or (B) amend, modify or waive any provision of this subsection
or reduce the percentage specified in the definition of Majority Lenders,
or consent to the assignment or transfer by any Borrower of any of its
rights and obligations under this Agreement and the other Loan
Documents, or release the Guarantor from its obligations under Section
8, in each case without the written consent of all the Lenders, or (C)
release all or substantially all of the German Collateral from the
Lien of the
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German Mortgage and the German Security Agreement, or (D) amend,
modify or waive any provision of Section 10 without the written
consent of the then Administrative Agent. Any such waiver and any
such amendment, supplement or modification shall apply equally to
each of the Lenders and shall be binding upon the Borrowers, the
Lenders, the Administrative Agent and all future holders of the Loans.
In the case of any waiver, the Borrowers, the Lenders and the
Administrative Agent shall be restored to their former positions and
rights hereunder and under the other Loan Documents, and any Default
or Event of Default waived shall be deemed to be cured and not
continuing; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
(b) Schedules I, II, and III may be amended as follows:
(i) Schedule I shall be amended in accordance with subsection
2.4(a).
(ii) Schedule II will be amended to remove Subsidiaries of the
Company as Restricted Subsidiaries, upon execution and delivery by the
Company and the Administrative Agent of a Schedule Amendment
providing for such amendment. Schedule II shall be deemed amended
to add Subsidiaries of the Company as Restricted Subsidiaries, upon
delivery of written notice thereof by the Company to the Administrative
Agent.
(iii) Schedule III will be amended to change administrative
information contained therein (other than any Funding Time, Payment
Time or notice time contained therein), upon execution and delivery by
the Company and the Administrative Agent of a Schedule Amendment
providing for such amendment.
(iv) Schedule III will be amended to conform any Funding Time,
Payment Time or notice time contained therein to then-prevailing
market practices, upon execution and delivery by the Company, the
Majority Lenders and the Administrative Agent of a Schedule
Amendment providing for such amendment.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when
delivered, or 5 days after being deposited in the mail, postage prepaid,
or, in the case of telecopy notice, when received, addressed as follows in
the case of the Borrowers and the Administrative Agent, and as set forth
in Schedule I in the case of the other parties hereto, or to such other
address as may be hereafter notified by the respective parties hereto:
Any Borrower: Xxxxxx International Industries, Incorporated
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xx. Xxxxxxx X. Xxxxx, President
Fax: 000-000-0000
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The Administrative Agent: Commerzbank AG
New York Branch
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Credit Administration
Xxxxxx Xxxxxxx
Fax: 000-000-0000
with a copy to: Commerzbank AG
Los Angeles Branch
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Corporate Banking
Xxxxxx Xxxxxxxxxxx
Fax: 000-000-0000
provided that the Notice of Borrowing, any Notice of Interest Period, or
any notice pursuant to subsections 2.4 or 2.5 shall not be effective until
received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the
other Loan Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in
any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans hereunder.
11.5 Payment of Expenses and Taxes. The Company agrees (a) to pay
or reimburse the Administrative Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative
Agent, (b) to pay or reimburse each Lender and the Administrative
Agent for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the
other Loan Documents and any such other documents, including,
without limitation, the fees and disbursements of counsel to each Lender
and of counsel to the Administrative Agent, (c) to pay, indemnify, and
hold each Lender and the Administrative Agent harmless from, any and
all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any,
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which may be payable or determined to be payable in connection with
the execution and delivery of, or consummation or administration of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents,
and (d) to pay, indemnify, and hold the Administrative Agent and each
Lender (each, an "indemnified person") harmless from and against any
and all liabilities, obligations, losses, damages, judgments, penalties,
costs, expenses or disbursements of any kind or nature whatsoever
arising out of claims, actions, suits or proceedings brought by third
parties with respect to the execution, delivery, enforcement,
performance and administration of this Agreement or the use of the
proceeds of the Loans (all the foregoing, collectively, the "indemnified
liabilities"), provided, that the Company shall have no obligation
hereunder to any indemnified person with respect to indemnified
liabilities arising from (i) the gross negligence or willful misconduct of
such indemnified person or (ii) legal proceedings commenced against
such indemnified person by any security holder or creditor thereof
arising out of and based upon rights afforded any such security holder or
creditor solely in its capacity as such. The agreements in this subsection
shall survive repayment of the Loans and all other amounts payable
hereunder.
11.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of
the Borrowers, the Guarantor, the Lenders, the Administrative Agent
and their respective successors and assigns, except that no Borrower
may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the
other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under
this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any Loan
for all purposes under this Agreement and the other Loan Documents,
and the Borrowers and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the other Loan
Documents. The Borrowers agree that if amounts outstanding under this
Agreement are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law,
be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as if
the amount of its participating interest were owing directly to it as
a Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed
to, share with the Lenders the proceeds thereof as provided in
subsection 11.7(a) as fully as if it were a Lender hereunder.
The Borrowers also agree that each Participant shall be entitled to
the benefits of subsections 3.5, 3.6 and 3.7 with respect to its
participation in the Commitments and the
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Loans outstanding as if it were a Lender; and provided, further, that
no Participant shall be entitled to receive any greater amount pursuant
to any such subsection than the transferor Lender would have been
entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such
transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and
from time to time assign to any Lender or any affiliate thereof or, with
the consent of the Company and the Administrative Agent (which in
each case shall not be unreasonably withheld), to an additional bank or
financial institution (an "Assignee") all or any part of its rights and
obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance executed by such Assignee,
such assigning Lender (and, in the case of an Assignee that is not then a
Lender or an affiliate thereof, by the Company and the Administrative
Agent) and delivered to the Administrative Agent for its acceptance and
recording in the Register, provided that, in the case of any such
assignment to an additional bank or financial institution, the aggregate
amount of the Commitment being assigned and, if such assignment is of
less than all of the rights and obligations of the assigning Lender, the
aggregate amount of the Commitment remaining with the assigning
Lender are each not less than DEM 10,000,000 (or such lesser amount
as may be agreed to by the Company and the Administrative Agent).
Upon such execution, delivery, acceptance and recording, from and after
the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to
the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Commitment and Loans
outstanding as set forth therein, and (y) the assigning Lender thereunder
shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of
an assigning Lender's rights and obligations under this Agreement, such
assigning Lender shall cease to be a party hereto). Notwithstanding any
provision of this paragraph (c) and paragraph (e) of this subsection, the
consent of the Company shall not be required for any assignment which
occurs at any time when any of the events described in Section 9(f) shall
have occurred and be continuing.
(d) The Administrative Agent shall maintain at the address of the
Administrative Agent referred to in subsection 11.2 a copy of each
Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses and
Commitments of the Lenders and the principal amounts of the Loans
owing by each Borrower to each Lender from time to time. The entries
in the Register shall be conclusive, in the absence of manifest error, and
the Borrowers, the Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register as the owner of a
Loan or other obligation hereunder as the owner thereof for all purposes
of this Agreement and the other Loan Documents, notwithstanding any
notice to the contrary. Any assignment of any Loan or other obligation
hereunder shall be effective only upon appropriate entries with respect
thereto being made in the Register. The Register shall be available for
inspection by the Borrower or any Lender and any reasonable time and
from time to time upon reasonable prior notice.
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(e) Upon its receipt from an assigning Lender and an Assignee of an
Assignment and Acceptance executed by an assigning Lender and an
Assignee (and, in the case of an Assignee that is not then a Lender or an
affiliate thereof, by the Company and the Administrative Agent)
together with payment to the Administrative Agent of a registration and
processing fee of $2,500, the Administrative Agent shall (i) promptly
accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in
the Register and give notice of such acceptance and recordation to the
Lenders and the Company.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective
Transferee, subject to the provisions of subsection 11.17, any and all
financial information in such Lender's possession concerning the
Borrower and its Affiliates which has been delivered to such Lender by
or on behalf of the Borrower pursuant to this Agreement or, which has
been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement, provided, that
the Lenders shall take such steps as reasonably necessary to ensure that
confidential information will be treated in a confidential manner as
required by subsection 11.17.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning
assignments of Loans relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests,
including, without limitation, any pledge or assignment by a Lender of
any Loan to any Federal Reserve Bank in accordance with applicable
law.
11.7 Adjustments; Set-off.
(a) If any Lender (a "benefitted Lender") shall at any time receive
any payment of all or part of its Loans or other Obligations or
Subsidiary Obligations then due and owing, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 9(f), or otherwise), in a greater proportion than
any such payment to or collateral received by any other Lender, if any,
in respect of such other Lender's Loans or other Obligations or
Subsidiary Obligations then due and owing, or interest thereon, such
benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Loans
or other Obligations or Subsidiary Obligations, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefitted Lender to share
the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, however, that if all or any portion of
such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to any
Borrower, any such notice being expressly waived by the Borrowers to
the extent permitted by applicable law, upon any
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amount becoming due and payable by any Borrower hereunder (whether at
the stated maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured,
at any time held or owing by such Lender or any branch or agency thereof
to or for the credit or the account of such Borrower. Each Lender agrees
promptly to notify such Borrower and the Administrative Agent after any
such set-off and application made by such Lender, provided that the failure
to give such notice shall not affect the validity of such set-off and
application.
11.8 Power of Attorney. The Subsidiary Borrower hereby grants to the
Company an irrevocable power of attorney to act as its attorney-in-fact
with regard to matters relating to this Agreement and each other Loan
Document, including, without limitation, execution and delivery of any
amendments, supplements, waivers or other modifications hereto or
thereto, receipt of any notices hereunder or thereunder and receipt of
service of process in connection herewith or therewith. The Subsidiary
Borrower hereby explicitly acknowledges that the Administrative Agent
and each Lender has executed and delivered this Agreement and each
other Loan Document to which it is a party, and has performed its
obligations under this Agreement and each other Loan Document to
which it is a party, in reliance upon the irrevocable grant of such power
of attorney pursuant to this subsection 11.8.
11.9 Judgment.
(a) If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in one currency into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that rate,
inclusive of any costs of exchange, at which in accordance with normal
banking procedures the Administrative Agent could purchase the first
currency with such other currency on the Business Day preceding the
day on which final judgment is given.
(b) The obligation of any Borrower or the Guarantor in respect of
any sum due to any Lender or the Administrative Agent hereunder shall,
notwithstanding any judgment in a currency (the "Judgment Currency")
other than that in which such sum is denominated in accordance with
the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day
following receipt by such Lender or the Administrative Agent (as the
case may be) of any sum adjudged to be so due in the Judgment
Currency such Lender or the Administrative Agent (as the case may be)
may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to
such Lender or the Administrative Agent (as the case may be) in the
Agreement Currency, such Borrower or the Guarantor (as the case may
be) agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent (as the
case may be) against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender or
the Administrative Agent (as the case may be), such Lender or the
Administrative Agent (as the
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case may be) agrees to remit to such Borrower or the Guarantor (as the
case may be) such excess.
11.10 Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A
set of the copies of this Agreement signed by all the parties shall be
lodged with the Company and the Administrative Agent.
11.11 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
11.12 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to the subject matter hereof
not expressly set forth or referred to herein or in the other Loan
Documents.
11.13 GOVERNING LAW. THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS
PRINCIPLES OF CONFLICT OF LAWS.
11.14 Submission To Jurisdiction; Waivers. Each Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the Courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any
thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Company at its address set forth in
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subsection 11.2 or at such other address of which the Administrative Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to
xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential
damages.
11.15 Acknowledgements. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrowers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrowers and
the Lenders.
11.16 WAIVERS OF JURY TRIAL. THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
11.17 Confidentiality. Each Lender and the Administrative Agent
agrees to keep confidential all non-public information provided to it by
the Company pursuant to this Agreement that is designated by the
Company in writing as confidential; provided that nothing herein shall
prevent any Lender or the Administrative Agent, as the case may be,
from disclosing any such information (i) to the Administrative Agent or
any other Lender, (ii) to any Transferee which receives such information
having been made aware of the confidential nature thereof, (iii) to its
employees, directors, agents, attorneys, accountants and other
professional advisors, as necessary, (iv) upon the request or demand of
any Governmental Authority having jurisdiction over such Lender, (v)
in response to any order of any court or other Governmental Authority
or as may otherwise be required pursuant to any Requirement of Law,
(vi) which has been publicly disclosed other than in breach of this
Agreement, or (vii) in connection with the exercise of any remedy
hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
XXXXXX INTERNATIONAL INDUSTRIES,
INCORPORATED
By: /S/ Xxxxx Xxxxxxxx Vice President
-------------------
[Name and Title]
XXXXXX HOLDING GMBH
By: /s/ Xxxxxxx X. Palin Geschaeftsfuehrer
-----------------------
[Name and Title]
COMMERZBANK AG, NEW YORK BRANCH,
as Administrative Agent and Arranger
By: /s/ Xxxxxxxx Xxxxxx /s/ Xxxxxxx Xxxx
Vice President Asst. Vice President
----------------------------
[Name and Title]
COMMERZBANK AG, LOS ANGELES
BRANCH, as Lender
By: /s/ Xxxxxxxx Xxxxxx /s/ Xxxxxxx Xxxx
Vice President Asst. Vice President
-----------------------------
[Name and Title]
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SCHEDULE I
Commitments and Notice Information
Maximum Amount Maximum Amount
Total of Loans to of Loans to
Lender Commitment Company Subsidiary Borrower
Commerzbank
AG, Los
Angeles
Branch DEM 100,000,000 DEM 70,000,000 DEM 30,000,000
Notice Information: Commerzbank AG, New York Branch
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Credit Administration
Xxxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
With a copy to: Commerzbank AG, Los Angeles Branch
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Corporate Banking
Xxxxxx Xxxxxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Schedule I Page 1
71
SCHEDULE III
Administrative Schedule
FUNDING OFFICE, FUNDING TIME, PAYMENT OFFICE AND
PAYMENT TIME
Floating Rate Loans (DEM)
1. Funding Office: Commerzbank AG, New York -
Grand Cayman Islands
2. Funding Time: 11:00 a.m., New York time
3. Payment Office: Commerzbank AG, Frankfurt
Account No.: 400 940150600
SWIFT Code: XXXXXXXX
Further Credit to: Xxxxxxxxxxx XX, Xxx Xxxx -
Xxxxx Xxxxxx Xxxxxxx
Account No.: 000-0000000-00
4. Payment Time: 11:00 a.m., New York time
Base Rate Loans (USD)
1. Funding Office: Commerzbank AG, New York Branch
2. Funding Time: N/A
3. Payment Office: Commerzbank AG, New York Branch
ABA No.: 000-000-000
Account No.: 000-0000000-00
4. Payment Time: 11:00 a.m., New York time
Notice of Borrowings/Notice of Interest Periods
1. Deliver to: Commerzbank AG, New York Branch
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Credit Administration
Xxxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Schedule III Page 1
00
Xxxxxxxxxxx XX, Xxx Xxxxxxx Branch
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Corporate Banking
Xxxxxx Xxxxxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
2. Time: Floating Rate Loans (DEM) - Not later than 10:00 a.m., New
York time, on the last Business Day preceding the Quotation Day in
respect of such borrowing.
Schedule III Page 2
73
SCHEDULE IV
XXXXXX INTERNATIONAL INDUSTRIES, INCORPORATED
MATERIAL DEBT INSTRUMENTS
Composite conformed copy of the Note Purchase Agreement dated
December 1, 1988 relating to the sale of $45.0 million principal
amount of 11.2% Senior Subordinated Notes due December 1, 1998,
including as an exhibit thereto the form of 11.2% Senior Subordinated
Notes due December 1, 1998.
First Amendment Agreement to Note Agreements dated December 1, 1988,
dated as of November 1, 1993, relating to the sale of $45 million
principal amount of 11.20% Senior Subordinated Notes due December 1,
1998.
Multi-Currency, Multi-Option Credit Agreement, dated September 30,
1994, by and among Xxxxxx International Industries, Incorporated, the
Subsidiary Borrowers and Subsidiary Guarantors, and the several Lenders
named therein with Chase Securities Inc. (as successor to Chemical
Securities, Inc.), as Arranger, NationsBank, N.A. (formerly known as
NationsBank of North Carolina, N.A.), as Co-Agent and the Chase
Manhattan Bank (as successor to Chemical Bank), as Administrative
Agent.
First Amendment, dated February 15, 1995, to the Multi-Currency,
Multi-Option Credit Agreement dated September 30, 1994.
Second Amendment, dated as of November 10, 1995, to the Multi-Currency,
Multi-Option Credit Agreement dated September 30, 1994.
Third Amendment, dated April 11, 1997, to the Multi-Currency, Multi-
Option Credit Agreement dated September 30, 1994.
Fourth Amendment, dated as of June 6, 1997, the the Multi-Currency,
Multi-Option Credit Agreement dated September 30, 1994.
Schedule Amendment, dated as of June 24, 1997, to the Multi-Currency,
Multi-Option Credit Agreement dated September 30, 1994.
Amended and Restated Indenture, dated as of December 15, 1997, by and
between Xxxxxx International Industries, Incorporated and PNC Bank,
National Association as Trustee, relating to $150,000,000 principal
amount of 7.32% Senior Notes due 2007, including as an exhibit thereto
the form of 7.32% Senior Notes due 2007.
74
SCHEDULE V
Xxxxxx Transaction
An investment transaction whereby a Swiss corporate investor
purchases from Xxxxxx preferred stock or participation certificates (the
"Preferred Stock") with a face amount of approximately 200 million
Swiss Francs. The Preferred Stock pays a fixed dividend which is tax
free to the Swiss corporate investor. The proceeds from the sale of the
Preferred Stock are invested by Xxxxxx in Swiss or U.S. Government
Risk or Triple A Rated Bonds which generate a fixed rate of return to
Xxxxxx which exceeds the fixed dividend by approximately one hundred
basis points. The Preferred Stock is outstanding for a period of five to
seven years. At the end of five to seven years, Harman and/or Xxxxxx
agree(s) to purchase the Preferred Stock for 200 million Swiss Francs.
The obligation to purchase the Preferred Stock is secured by a stand-by
letter of credit issued by a bank. The stand-by letter of credit is secured
by the Bonds.
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