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Exhibit 4.8
CREDIT AGREEMENT
DATED AS OF DECEMBER 3, 1996
AMONG
THE DURIRON COMPANY, INC.
AS BORROWER,
AND
THE LENDERS IDENTIFIED ON THE SIGNATURE PAGES HERETO,
AS LENDERS,
AND
NATIONAL CITY BANK,
AS AGENT
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TABLE OF CONTENTS
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Page
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RECITALS ................................................................. 1
ARTICLE I DEFINITIONS .................................................... 1
ARTICLE II THE CREDIT .................................................... 17
2.1 Commitment ..................................................... 17
2.2 Final Principal Payment ........................................ 18
2.3 Ratable Loans .................................................. 18
2.4 Applicable Margins ............................................. 18
2.5 Facility Fee; Closing Fee ...................................... 19
2.6 Swingline Loans ................................................ 19
2.7 Offshore Currency Loans ........................................ 20
(a) The Bid-Option ........................................... 20
(b) Bid-Option Quote Request ................................. 20
(c) Invitation for Bid-Option Quotes ......................... 21
(d) Submission and Contents of Bid-Option Quotes ............. 21
(e) Notice to Borrower ....................................... 22
(f) Acceptance and Notice by Borrower ........................ 22
(g) Allocation by Agent ...................................... 23
2.8 Minimum Amount of Loans ........................................ 23
2.9 Interest Payable on the Loans .................................. 23
(a) .......................................................... 23
(b) Method of Selecting Rate Options and LIBOR Interest Periods 23
(c) Determination of Rate .................................... 24
(d) Monthly Installments ..................................... 24
(e) Interest on Overdue Payments; Default
Interest Rate ............................................ 25
2.10 Repayments and Prepayments of Principal ........................ 26
(a) Optional Prepayments ..................................... 26
(b) Mandatory Prepayments .................................... 26
(c) Application of Prepayments ............................... 26
(d) Maturity ................................................. 27
(e) Notice of Prepayments of Principal ....................... 27
(f) Reduction in Commitment .................................. 27
2.11 Payments and Computations ...................................... 28
(a) Time and Place of Payments ............................... 28
(b) Application of Funds ..................................... 28
(c) Payments on Business Days ................................ 29
(d) Computation of Interest .................................. 29
2.12 Payments to be Free of Deductions .............................. 30
2.13 Use of Proceeds ................................................ 30
2.14 LIBOR Break Funding Cost ....................................... 30
2.15 Additional Costs ............................................... 31
2.16 Indemnification of Losses ...................................... 33
2.17 Statements by Agent or any Lender .............................. 34
2.18 Borrowing Notices; Telephonic Notices .......................... 34
2.19 Notes; Telephonic Notices ...................................... 35
2.20 Lending Installations .......................................... 36
2.21 Non-Receipt of Funds by Agent .................................. 36
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2.22 Withholding Tax Exemption ...................................... 36
2.23 The Letters of Credit .......................................... 37
(a) Issuance of Letters of Credit; Conditions and
Limitations" ............................................. 37
(b) Issuance of Letters of Credit: Purchase of
Participations Therein ................................... 38
(c) Payment in Certain Circumstances ......................... 38
(d) Termination of Commitments ............................... 39
(e) Payment of Amounts Drawn Under Letters of
Credit ................................................... 39
(f) Payment by Lenders ....................................... 39
(g) Compensation .............................................. 40
(h) Amendments ................................................ 41
ARTICLE III CONDITIONS PRECEDENT ......................................... 42
3.1 Initial Advance ................................................ 42
3.2 Each Advance ................................................... 43
ARTICLE IV REPRESENTATIONS AND WARRANTIES ................................ 44
4.1 Existence ...................................................... 44
4.2 Authorization and Validity ..................................... 44
4.3 No Conflict, Government Consent ................................ 44
4.4 Financial Statements--Material Adverse Change .................. 45
4.5 Tax ............................................................ 45
4.6 Litigation and Contingent Obligations .......................... 45
4.7 Subsidiaries ................................................... 45
4.8 ERISA .......................................................... 45
4.9 Accuracy of Information ........................................ 46
4.10 Regulation U ................................................... 46
4.11 Material Agreements ............................................ 46
4.12 Compliance with Laws ........................................... 46
4.13 Ownership of Properties ........................................ 46
4.14 Investment Company Act ......................................... 47
4.15 Public Utility Holding Company Act ............................. 47
4.16 Solvency ....................................................... 47
4.17 Insurance ...................................................... 47
4.18 Environmental Matters .......................................... 48
ARTICLE V COVENANTS ....................................................... 49
5.1 Financial Reporting ............................................ 49
5.2 Prohibited Uses of Proceeds .................................... 51
5.3 Notice of Default .............................................. 51
5.4 Conduct of Business ............................................ 51
5.5 Taxes .......................................................... 52
5.6 Insurance ...................................................... 52
5.7 Compliance with Laws ........................................... 52
5.8 Maintenance of Properties ...................................... 52
5.9 Inspection ..................................................... 52
5.10 Maintenance of Status .......................................... 53
5.11 Merger; Sale of Assets ......................................... 53
5.12 Sale and Leaseback ............................................. 53
5.13 Acquisitions and Investments ................................... 53
5.14 Liens .......................................................... 53
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5.15 Affiliates ..................................................... 55
5.16 Reserved ....................................................... 55
5.17 Litigation ..................................................... 55
5.18 Further Assurances ............................................. 55
5.19 Consolidated Tangible Net Worth ................................ 56
5.20 Ratio of Debt to Cash Flow ..................................... 56
5.21 Ratio of EBIT to Interest ...................................... 56
5.22 Debt to Capitalization Ratio ................................... 56
5.23 Acquisition Limit .............................................. 56
5.24 Environmental Matters .......................................... 56
ARTICLE VI DEFAULTS ...................................................... 57
6.1 Nonpayment of Principal ........................................ 57
6.2 Nonpayment of Other Obligations ................................ 57
6.3 Certain Breaches ............................................... 57
6.4 Representations and Warranties ................................. 57
6.5 Other Breaches ................................................. 57
6.6 Defaults on Indebtedness ....................................... 58
6.7 Bankruptcy, etc ................................................ 58
6.8 Appointment of Receiver ........................................ 58
6.9 Condemnation ................................................... 58
6.10 Judgments ...................................................... 59
6.11 ERISA Withdrawal ............................................... 59
6.12 ERISA Reorganization ........................................... 59
6.13 Other Defaults ................................................. 59
ARTICLE VII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES................. 59
7.1 Acceleration ................................................... 59
7.2 Amendments & Waivers ........................................... 60
7.3 Preservation of Rights ......................................... 60
ARTICLE VIII GENERAL PROVISIONS ........................................... 61
8.1 Survival of Representations .................................... 61
8.2 Governmental Regulation ........................................ 61
8.3 Tax ............................................................ 61
8.4 Heading ........................................................ 61
8.5 Entire Agreement ............................................... 61
8.6 Several Obligations Benefits of This Agreement ................. 61
8.7 Expenses; Indemnification ...................................... 61
8.8 Numbers ........................................................ 62
8.9 Accounting ..................................................... 62
8.10 Severability of Provisions ..................................... 62
8.11 Nonliability of Lenders ........................................ 62
8.12 CHOICE OF LAW .................................................. 63
8.13 CONSENT TO JURISDICTION ........................................ 63
8.14 WAIVER OF JURY TRIAL ........................................... 63
ARTICLE IX AGENT ......................................................... 63
9.1 Appointment .................................................... 63
9.2 Powers ......................................................... 63
9.3 General Immunity ............................................... 63
9.4 No Responsibility for Loans, Recitals, etc ..................... 64
9.5 Action on Instructions of Lenders .............................. 64
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9.6 Employment of Agents and Counsel ............................... 64
9.7 Reliance on Documents; Counsel ................................. 64
9.8 Agent's Reimbursement and Indemnification ...................... 65
9.9 Rights as a Lender ............................................. 65
9.10 Lender Credit Decision ......................................... 65
9.11 Successor Agent ................................................ 65
ARTICLE X SETOFF; RATABLE PAYMENTS ........................................ 66
10.1 Setoff ......................................................... 66
10.2 Ratable Payments ............................................... 66
ARTICLE XI BENEFIT OF AGREEMENT; ASSIGNMENT; PARTICIPATION ................ 67
11.1 Successors and Assigns ......................................... 67
11.2 Participation .................................................. 67
11.2.1 Permitted Participants; Effect ......................... 67
11.2.2 Voting Rights .......................................... 67
11.2.3 Benefit of Setoff ...................................... 68
11.3 Assignments .................................................... 68
11.3.1 Permitted Assignments .................................. 68
11.3.2 Prior Consent .......................................... 68
11.3.3 Effective Date ......................................... 69
11.4 Dissemination of Information ................................... 69
11.5 Tax Treatment .................................................. 69
ARTICLE XII NOTICES; NATURE OF OBLIGATIONS ............................... 70
12.1 Giving Notice .................................................. 70
12.2 Change of Address .............................................. 70
12.3 Nature of Borrower's Obligations and Modification
Thereof ........................................................ 70
ARTICLE XIII COUNTERPARTS ................................................ 71
SCHEDULES
Schedule 1 Subsidiaries of Borrower
Schedule 2 Permitted Liens
EXHIBITS
EXHIBIT A Form of Foreign Currency Note
EXHIBIT B Form of Revolving Promissory Note
EXHIBIT C Request for Issuance of Letter of Credit
EXHIBIT D Form of Swingline Note
EXHIBIT E Form of Bid-Option Quote Request
EXHIBIT F Form of Invitation for Bid-Option Quotes
EXHIBIT G Form of Bid-Option Quote
EXHIBIT H Form of Borrowing Notice
EXHIBIT I Form of Borrower's Counsel Opinion
EXHIBIT J Form of Written Money Transfer Instructions
EXHIBIT K Form of Financial Compliance Certificate
EXHIBIT L Form of Notice of Assignment
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CREDIT AGREEMENT
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This Agreement, dated as of December 3, 1996, is among The Duriron
Company, Inc., a New York corporation, and its successors and assigns (the
"Borrower"), National City Bank, a national banking association, and the several
banks, financial institutions and other entities from time to time parties to
this Agreement (sometimes collectively, "Lenders" and sometimes individually, a
"Lender"), and National City Bank, not individually, but as "Agent".
RECITALS
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A. Borrower is primarily engaged in the business of manufacturing and
distributing fluid movement and control products to process industries.
B. Borrower is listed on the National Association of Securities Dealers
Automated Quotation ("NASDAQ") system.
C. Borrower has requested that Lenders make loans available to Borrower
pursuant to the terms of this Agreement, and that Agent act as administrative
agent for Lenders, and Agent and Lenders have so agreed.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which
Borrower or any of its Subsidiaries (i) acquires any business as a going concern
or all or substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets or stock, merger or otherwise or
(ii) directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage or voting
power) of the outstanding partnership interests of a partnership.
"Advance" means a borrowing hereunder consisting of the aggregate amount
of the several Loans made by Lenders to Borrower of the same Type.
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"Affected Lender" is defined in SECTION 2.15(d).
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person
whether through ownership of stock, by contract or otherwise.
"Agent" means National City Bank in its capacity as agent for Lenders
pursuant to ARTICLE IX, and not in its individual capacity as a Lender, and any
successor Agent appointed pursuant to ARTICLE IX.
"Aggregate Commitment" means the aggregate of the Commitments
of all Lenders.
"Aggregate Measured Credit Risk" means, as at any time during the
pendency of this Agreement that an interest rate exchange agreement or interest
rate option agreement is in effect, the amount determined by Agent in accordance
with the terms of such interest rate exchange agreement or interest rate option
agreement, including, without limitation, the Hedge Agreements, as being
Borrower's measured credit risk thereunder at such time.
"Agreement" means this Credit Agreement, as it may be amended or
modified and in effect from time to time.
"Alternate Currency" means French Francs or Deutsche Marks.
"Applicable Currency" means, as to any particular payment or Loan,
Dollars, or the Foreign Currency in which it is denominated or payable.
"Applicable Margin" means the applicable margin determined by reference
to the table in SECTION 2.4 used in calculating the interest rate applicable to
the various Types of Advances, which shall vary from time to time in accordance
with SECTION 2.4.
"Applicable Law" means collectively, all federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting Borrower or any of its
Subsidiaries, whether now or hereafter enacted and in force.
"Article" means an article of this Agreement unless another document is
specifically referenced.
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"Assets" means, with respect to any Person, as of any date of
determination, the total amount of assets of that Person as shown on the balance
sheet of such Person.
"Authorized Financial Officer" means the Senior Vice
President/CAO, Controller or Treasurer of Borrower, acting singly.
"Authorized Officer" means the Senior Vice President/CAO, Controller or
Treasurer of Borrower, acting singly.
"Base Rate Applicable Margin" means, as of any date, the Applicable
Margin in effect on such date with respect to Base Rate Loans.
"Base Rate" or "Prime Rate" means the fluctuating rate of interest which
is publicly announced from time to time by Agent at its Head Office as being its
"prime rate" or "base rate" thereafter in effect, with each change in the Base
Rate automatically, immediately and without notice being reflected in the
fluctuating interest rate thereafter applicable hereunder, it being specifically
acknowledged that the Base Rate is not necessarily the lowest rate of interest
then available from Agent on fluctuating-rate loans.
"Base Rate Loan" means a Loan which bears interest at the Base Rate.
"Bid-Option Auction" means a solicitation of Bid-Option Quotes setting
forth Bid-Option Rates pursuant to SECTION 2.7(b).
"Bid-Option Quote" means an offer by a Lender to make a Offshore
Currency Loan in an Offshore Currency in accordance with SECTION 2.7(d).
"Bid-Option Quote Request" is defined in SECTION 2.7(b).
"Bid-Option Rate" means, with respect to any Offshore Currency Loan, the
Bid-Option Rate, as defined in SECTION 2.7(d) (ii) (E), that is offered for such
Loan.
"Borrower" means The Duriron Company, Inc., a New York
corporation.
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Borrowing Notice" is defined in SECTION 2.9(b).
"Business Day" means with respect to any borrowing, payment or rate
selection of Advances a day (other than a Saturday or Sunday) on which banks
generally are open in Cleveland, Ohio; provided, with respect to LIBOR Rate
Loans (including Foreign Currency Loans), Banking Days shall not include a day
on which dealings in
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Dollars may not be carried on in the London interbank LIBOR market; and
provided, further that with respect to Foreign Currency Loans, Business Days
shall not include a day on which dealings in the Applicable Currency may not be
carried on in the applicable foreign exchange interbank market.
"Capital Expenditures" means any and all amounts invested, expended or
incurred (including by reason of Capitalized Lease Obligations) incurred by
Borrower or any of its Subsidiaries in respect of the purchase, acquisition,
improvement, renovation or expansion of any properties or assets of Borrower or
any of its Subsidiaries, including, without limitation, expenditures required to
be capitalized in accordance with GAAP.
"Capital Stock" means 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 which is not a corporation
and any and all warrants or options to purchase any of the foregoing.
"Capitalization" means, as of any date of determination, the sum of
Consolidated Funded Debt plus Stockholder's Equity.
"Capitalized Lease" of a Person means any lease of Property imposing
obligations on such Person, as lessee thereunder, which are required in
accordance with GAAP to be capitalized on a balance sheet of such Person.
"Cash Equivalents" means, as of any date, (i) securities issued or
directly and fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof having maturities of not more than one year
from such date, (ii) time deposits and certificates of deposit having maturities
of not more than one year from such date and issued by any domestic commercial
bank having (A) senior long-term unsecured debt rated at least A or the
equivalent thereof by S&P or A2 or the equivalent thereof by Xxxxx'x and (B)
capital and surplus in excess of $500,000,000, and (iii) commercial paper rated
at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof
by Xxxxx'x and in either case maturing within 90 days from such date.
"Change In Control" means, with respect to any Person, the transfer of
the ownership or control (in one transaction or as the most recent transaction
in a series of transactions) of (i) such number of voting securities (or other
ownership interests) of the controlled Person that possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person whether through ownership of stock, by
contract or otherwise a majority, or (ii) with respect to any company whose
stock is publicly traded on a securities exchange, the solicitation for proxies
in connection with the election of the board of directors at a meeting of
shareholders.
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"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or as
set forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to SECTION 11.3.2, as such amount may be modified from time
to time pursuant to the terms hereof.
"Condemnation" is defined in SECTION 6.9.
"Consolidated Funded Debt" means as of any date of determination, all
Indebtedness for Borrowed Money of Borrower and its Subsidiaries outstanding at
such date, determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the amount of
interest expense of Borrower and its Subsidiaries for such period on the
aggregate principal amount of their Indebtedness, determined on a consolidated
basis in accordance with GAAP plus any capitalized interest which accrued during
such period.
"Consolidated Net Income" means, for any period, consolidated net income
(or loss) of Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any other Person accrued prior to the
date it becomes a Subsidiary of Borrower or is merged into or consolidated with
Borrower or any of its Subsidiaries and (b) the undistributed earnings of any
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of
any contractual obligation or requirement of law applicable to such Subsidiary.
"Consolidated Outstanding Indebtedness" means, as of any date of
determination, all Indebtedness of Borrower and its Subsidiaries outstanding at
such date, determined on a consolidated basis in accordance with GAAP.
"Consolidated Stockholder's Equity" means, as of any date of
determination, an amount equal to the sum of the following amounts appearing on
the consolidated balance sheet of Borrower and its Subsidiaries: (i) all equity
as calculated in accordance with GAAP, and (ii) all indebtedness which is
subordinate (to the satisfaction of Agent) to Indebtedness arising under this
Agreement.
"Consolidated Tangible Net Worth" means, as of any date of
determination, an amount equal to Consolidated Stockholder's Equity minus the
sum of (i) any surplus resulting from any write-up of
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assets subsequent to September 30, 1996, (ii) goodwill, including any amounts,
however designated on a consolidated balance sheet of Borrower and its
Subsidiaries, representing the excess of the purchase price paid for assets or
stock over the value assigned to them on the books of Borrower and its
Subsidiaries, (iii) patents, trademarks, trade names and copyrights, (iv) any
amount at which shares of capital stock of Borrower and any of its Subsidiaries
appear as an asset on Borrower's consolidated balance sheet, and (v) any other
amount in respect of an intangible that should be classified as an asset on
Borrower's consolidated balance sheet in accordance with GAAP.
"Contingent Obligation" means any direct or indirect liability,
contingent or otherwise, with respect to any indebtedness, lease, dividend,
letter of credit, banker's acceptance or other obligation of another Person
incurred to provide assurance to the obligee of such obligation that such
obligation will be paid or discharged, that any agreements relating thereto will
be complied with, or that the holders of such obligation will be protected (in
whole or in part) against loss in respect thereof. Contingent Obligations shall
include, without limitation, (i) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by any Person of the
obligation of another Person; (ii) any liability for the obligations of another
Person through any agreement (contingent or otherwise) (A) to purchase,
repurchase, or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions, or otherwise),
(B) to maintain the solvency of any balance sheet item, level of income or
financial condition of another, or (C) to make take-or-pay, pay-or-play, or
similar payments if required regardless of nonperformance by any other party or
parties to an agreement, if in the case of any agreement described under
subclauses (A) , (B) or (C) of this sentence the purpose or intent thereof is to
provide the assurance described above. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise
supported.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Default" means an event of Default described in ARTICLE VI.
"Default Interest Rate" means an annual rate of interest equal to the
lesser of (i) two percent (2.0%) above the Base Rate; or (2) the maximum rate of
interest which may be lawfully charged in respect of the Obligations.
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"Dollar Equivalent" means, at any time, (a) as to any amount denominated
in Dollars, the amount thereof at such time, and (b) as to any amount
denominated in a Foreign Currency, the equivalent amount in Dollars as
determined by Agent at such time on the basis of the Spot Rate for the purchase
of Dollars with such Foreign Currency. For purposes of any calculation or
determination hereunder related to Loans and measured in Dollars (including,
without limitation, calculation of the Outstanding Amount), any Loans in a
Foreign Currency shall be valued at the Dollar Equivalent.
"EBIT" means, for any period, the sum of Borrower's and its
Subsidiaries' Consolidated Net Income, increased by the sum for such period of
interest expense, income and franchise tax expense, and non-recurring
extraordinary expenses (in each case as determined in accordance with GAAP)
which was deducted in determining Consolidated Net Income for such period.
"EBITDA" means, for any period, the sum of Borrower's and its
Subsidiaries' EBIT plus depreciation and amortization expense.
"Environmental Laws" means any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, 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, in each case to the extent the
foregoing are applicable to Borrower or any of its Subsidiaries or any of their
respective assets or Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Existing Facilities" means the $10,000,000 revolving loan facility
provided to Borrower by The Fifth Third Bank.
"Face Amount" means, as to any Letter of Credit, the maximum amount
which is available at such time to be drawn or disbursed under such Letter of
Credit.
"Facility Fee" is defined in SECTION 2.5(a).
"Facility Termination Date" means November 30, 2001; provided, however,
the Facility Termination Date may be extended annually for additional one (1)
year terms upon the prior written consent of Borrower and each Lender.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal, for each day during such period, to the weighted average of the
rates on overnight federal funds
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transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of Cleveland,
or, if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by Agent
from three federal funds brokers of recognized standing selected by it.
"Foreign Currency" shall mean an Alternate Currency or an Offshore
Currency.
"Foreign Currency Loan" means any Loan denominated in a
Foreign Currency.
"Foreign Currency Note" means a promissory note of Borrower
substantially in the form of EXHIBIT A hereto evidencing the obligation of
Borrower to repay Foreign Currency Loans, as amended or modified from time to
time and together with any promissory note or notes issued in exchange or
replacement thereof.
"FX Trading Office" means the Foreign Exchange Trading Center,
Cleveland, Ohio, of NCB, or such other office as Agent may designate from time
to time.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied in a manner consistent
with that used in preparing the financial statements referred to in SECTION 5.1;
provided, however, that if there shall be any change in accounting principles
from GAAP as in effect at the Closing Date, then the Required Lenders and
Borrower shall make such adjustments to the financial covenants affected thereby
by reference to the official interpretations of GAAP by The Financial Accounting
Standards Board, its predecessors and successors or as are mutually determined
in good faith to be appropriate to reflect such changes so that the criteria for
evaluating the financial condition and operations of Borrower shall be the same
after such changes as if such changes had not been made.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Head Office" means, in relation to Agent, the head office of National
City Bank, located at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx, 00000, or such
other office as may be designated as such by written notice to Borrowers and
Lenders by National City Bank or any successor Agent.
"Hedge Agreements" means the interest rate protection agreement or
agreements entered into by and between Borrower and certain Lenders.
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"Indebtedness" means, in relation to any Person, at any time, all of the
obligations of such Person which, in accordance with GAAP, would be classified
as indebtedness upon a balance sheet (including any footnote thereto) of such
Person prepared at such time, and in any event shall include, without
limitation:
(i) all indebtedness of such Person arising or incurred under or in
respect of (A) any guaranties (whether direct or indirect) by such
Person of the indebtedness, obligations or liabilities of any other
Person, or (B) any endorsement by such Person of any of the
indebtedness, obligations or liabilities of any other Person (otherwise
than as an endorser of negotiable instruments received in the ordinary
course of business and presented to commercial banks for collection of
deposit), or (C) the discount by such Person, with recourse to such
Person, of any of the indebtedness, obligations or liabilities of any
other Person;
(ii) all indebtedness of such Person arising or incurred under or in
respect of any agreement, contingent or otherwise made by such Person
(A) to purchase any indebtedness of any other Person or to advance or
supply funds for the payment or purchase of any indebtedness of any
other Person or (B) to purchase, sell or lease (as lessee or lessor)
any property, products, materials or supplies or to purchase or sell
transportation or services, in each such case if primarily for the
purpose of enabling any other Person to make payment of any
indebtedness of such other Person or to assure the owner or holder of
such other Person's indebtedness against loss, regardless of the
delivery or non-delivery of the property, products, materials or
supplies or the furnishing or nonfurnishing of the transportation or
services, or (C) to make any loan, advance, capital contribution or
other investment in any other Person for the purpose of assuring a
minimum equity, asset base, working capital or other balance sheet
condition for or as at any date, or to provide funds for the payment of
any liability, dividend or stock liquidation payment, or otherwise to
supply funds to or in any manner invest in any other Person;
(iii) all indebtedness, obligations and liabilities secured by or
arising under or in respect of any Lien, upon or in Property owned by
such Person, even though such Person has not assumed or become liable
for the payment of such indebtedness, obligations and liabilities;
(iv) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to Property acquired by
such Person, even though the rights and remedies of the seller or
lender (or lessor) under such agreement in the event of default are
limited to repossession or sale of such Property;
-9-
15
(v) all indebtedness arising or incurred under or in respect of any
Contingent Obligation; and
(vi) the Aggregate Measured Credit Risk of an interest rate exchange
agreement or interest rate option agreement, or any other interest rate
protection device such as, without limitation, caps, collars and swaps.
"Indebtedness for Borrowed Money" means at any time, all Indebtedness
required by GAAP to be reflected as such on Borrower's balance sheet and
including the current portion thereof, and including as appropriate, all
Indebtedness (i) in respect of any money borrowed (including pursuant to this
Agreement); (ii) under or in respect of any Contingent Obligation (whether
direct or indirect) of any money borrowed; (iii) evidenced by any loan or credit
agreement, promissory note, debenture, bond, guaranty or other similar written
obligation to pay money; or (iv) arising under Capitalized Leases.
"Initial Advance" means the first Advance made hereunder.
"Initial Borrowing Date" means the date on which the first Advance is
made hereunder.
"Interest Expense" means, for any period, the amount of interest expense
of Borrower for such period on the aggregate principal amount of its
Indebtedness, plus any capitalized interest which accrued during such period.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable arising
in the ordinary course of business on terms customary in the trade),
contribution of capital by such Person to any other Person or any investment in,
or purchase or other acquisition of, the stock, partnership interests, notes,
debentures, or other securities of any other Person made by such Person.
"Invitation for Bid-Option Quotes" shall mean an invitation for
Bid-Option Quotes in the form referred to in SECTION 2.7.
"Issuance Date" means, in relation to any Letter of Credit, the date on
which such Letter of Credit is issued or is to be issued pursuant to this
Agreement.
"Issuing Bank" means NCB or its successor as the Lender responsible for
the issuance of Letters of Credit in accordance with SECTION 2.23.
"Late Charge" means with respect to any delinquent payment of principal
or interest hereunder, a fee that is equal to the greater of Five Hundred and
00/100 Dollars ($500.00) or three percent (3%)
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16
of the delinquent payment, charged to Borrower or added to the unpaid balance of
the Notes whenever any payment of principal or interest is not paid when due.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement, their respective successors and assigns and any other lending
institutions that subsequently become parties to this Agreement.
"Lending Installations" means, with respect to a Lender, any office,
branch, subsidiary, or affiliate of such Lender.
"Letter of Credit" means any stand-by letter of credit issued by the
Issuing Bank pursuant to this Agreement.
"Letter of Credit Commission" means a commission, payable annually in
advance to Agent for the ratable benefit of Lenders, in an amount equal to the
greater of (i) the amount determined by multiplying the Face Amount of each
Letter of Credit issued hereunder by 50 basis points, and (ii) $5000. The Letter
of Credit Commission shall be paid annually in respect of each Letter of Credit,
with the first year's payment being due and payable, in advance, on the Issuance
Date therefor and subsequent years' payments being due and payable in advance on
each anniversary thereof so long as such Letter of Credit remains outstanding.
"Letter of Credit Usage" means, as at the date on which the same is
determined, the sum of (x) the aggregate of the Face Amounts of all Letters of
Credit then outstanding, plus (y) the aggregate amount of all drawings under
Letters of Credit honored by the Issuing Bank and not theretofore either
reimbursed by Borrower or converted into Loans as provided in SECTION 2.23(e).
"LIBOR Applicable Margin" means, as of any date with respect to any
LIBOR Interest Period for LIBOR Rate Loans made in Dollars, the Applicable
Margin in effect for such LIBOR Interest Period as determined in accordance with
SECTION 2.4 hereof.
"LIBOR Break Funding Costs" means an amount sufficient to reimburse each
Lender for any and all loss, cost or expense actually incurred by such Lender as
the result of the occurrence of any LIBOR Break Funding Event, determined by
multiplying the amount of the principal prepayment hereunder by the deficiency,
if any, between, (x) LIBOR for a term then available closest to the remaining
duration of the LIBOR Interest Period for the principal sum being prepaid, and
for an amount comparable to such principal sum, in the Applicable Currency, and
(y) the LIBOR Rate or Bid-Option Rate, as the case may be, in effect for the
principal sum being so prepaid, in the Applicable Currency, immediately prior to
the prepayment of such sum, all as determined as of the date of occurrence of
the LIBOR Break Funding Event.
-11-
17
"LIBOR Break Funding Event" means any of the events or occurrences set
for forth in SECTIONS 2.14(a) or 2.14(b).
"LIBOR Interest Period" means a period of one, two, three or six months
commencing on a Business Day selected by Borrower pursuant to this Agreement.
Such LIBOR Interest Period shall end on (but exclude) the day which corresponds
numerically to such date one, two, three or six months thereafter, PROVIDED,
HOWEVER, that if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such LIBOR Interest Period shall end on
the last Business Day of such next, second, third or sixth succeeding month. If
a LIBOR Interest Period would otherwise end on a day which is not a Business
Day, such LIBOR Interest Period shall end on the next succeeding Business Day;
PROVIDED, HOWEVER, that if said next succeeding Business Day falls in a new
calendar month, such LIBOR Interest Period shall end on the immediately
preceding Business Day.
"LIBOR Rate Loan" means a Loan which bears interest at a LIBOR Rate, and
may be an Alternate Currency Loan or a Loan denominated in Dollars.
"LIBOR Rate" means one, two, three or six-month London InterBank Offered
Rate for the Applicable Currency, adjusted for statutory reserves, if applicable
("LIBOR") PLUS for each fiscal quarter, the LIBOR Applicable Margin.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's portion
of any Advance.
"Loan Documents" means this Agreement, the Notes and any other document
from time to time evidencing or securing indebtedness incurred by Borrower under
this Agreement, as any of the foregoing may be amended or modified from time to
time.
"Material Adverse Change" means a material adverse change with respect
to (i) the business, Property, condition (financial or otherwise), results of
operations, or prospects of Borrower and its Subsidiaries taken as a whole, (ii)
the ability of Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of Agent or Lenders thereunder.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or
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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 ureaformaldehyde
insulation.
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which Borrowers or any member
of the Controlled Group is a party to which more than one employer is obligated
to make contributions.
"NCB" means National City Bank, a national banking
association .
"Net Income" means for any period, net income (or loss) of Borrower for
such period determined in accordance with GAAP.
"Notes" means the Revolving Promissory Notes, the Foreign
Currency Notes, and the Swingline Note.
"Notice of Assignment" is defined in SECTION 11.3.3.
"Notice of Offshore Currency Loan" is defined in SECTION 2.7.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of Borrower to Lenders or to
any Lender, Agent or any indemnified party hereunder (i) in respect of the Loans
made or Letters of Credit issued pursuant to this Agreement; or (ii) under or in
respect of any one or more of the Loan Documents. Obligations shall also
include, without limitation, all interest, charges and other fees payable
hereunder (or under any of the Loan Documents) by Borrower, or due hereunder (or
under any of the Loan Documents) from Borrower to Agent or any one or more of
Lenders from time to time, together with all costs and expenses payable
hereunder or under any of the Loan Documents.
"Offshore Currency" means any major non-United States currency other
than an Alternate Currency in which an Offshore Currency Loan is made hereunder.
"Offshore Currency Loan" means any Loan denominated in an Offshore
Currency, bearing interest at the Bid-Option Rate and made pursuant to a
Bid-Option Auction.
"Offshore Currency Loan Percentage" means, with respect to any Lender,
the percentage of the aggregate outstanding principal amount of the Offshore
Currency Loans of all of Lenders represented by the outstanding principal amount
of the Offshore Currency Loans of such Lender.
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"Outstanding Amount" means, at any time, the aggregate of (w) the
principal balance of all Advances in Dollars then outstanding hereunder, PLUS,
(x) the Dollar Equivalent of all Advances in a Foreign Currency then outstanding
hereunder, PLUS (y) the Face Amount of all Letters of Credit then outstanding
hereunder, PLUS (z) the amount of all draws or disbursements made under any
Letter of Credit which Borrower has not converted into a Loan or otherwise
reimbursed to the Issuing Bank in accordance with SECTION 2.23, below.
"Participant" means a participant under SECTION 11.2.1.
"Payment Date" means, with respect to the payment of interest accrued on
any Base Rate Loan, the last day of each calendar month, and, with respect to
the payment of interest accrued on any LIBOR Rate Loan, the last day of the
LIBOR Interest Period, except that for any LIBOR Interest Period in excess of
three months, interim payments shall be made every third month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Liens" are defined in SECTION 5.14.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under SECTION 412 of the
Code as to which Borrower or any member of the Controlled Group may have any
liability.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Pro Rata Share" means, in relation to any particular item, the share of
any Lender in such item, which shall be in the same proportion which the
Commitment of a Lender bears to the Aggregate Commitment, except that with
respect to application of payments of principal and interest, Pro Rata Shares
shall be adjusted as determined by Agent in its reasonable discretion to account
for the portion of the Outstanding Amount at such time attributable to each
Lender. Pro Rata Shares shall be net of any and all charges or fees due and
payable to Agent under the Loan Documents.
"Purchasers" is defined in SECTION 11.3.1.
"Purchase Money Security Interest" is defined in SECTION 5.14 (iv).
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20
"Rate Option" means the Base Rate, the LIBOR Rate or the
Federal Funds Rate.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Request for Issuance of a Letter of Credit" means the form,
substantially similar to that which is attached hereto as EXHIBIT C to be
executed by Borrower and delivered to Agent, requesting the issuance of a Letter
of Credit and providing the information required in connection therewith by
SECTION 2.23(a), below.
"Required Lenders" means those Lenders whose aggregate Pro Rata Shares
of the outstanding Advances equal or exceed sixty-six and two-thirds percent (66
2/3%) of the aggregate amount of the outstanding Advances, or, in the event that
there are no Advances outstanding, those Lenders having sixty-six and
two-thirds percent (66 2/3%) of the Aggregate Commitment.
"Reserve Requirement" means, with respect to a LIBOR Interest Period,
the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on new
non-personal time deposits of $100,000 or more with a maturity equal to that on
Eurocurrency liabilities.
"Revolving Promissory Note" means a promissory note, in substantially
the form of EXHIBIT B hereto, duly executed by Borrower and payable to the order
of a Lender in the amount of its Commitment, including any amendment,
modification, renewal or replacement of such promissory note. In the case of
delivery of Foreign Currency Notes after the Closing Date, Lenders will deliver,
upon the request of Borrower, substitute Revolving
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Promissory Notes in the amount of such Lender's Commitment less the Dollar
Equivalent at the date of delivery of the principal amount of the Foreign
Currency Notes in favor of such Lender.
"Same Day Funds" means (i) with respect to disbursements and payments in
Dollars, immediately available funds, and (ii) with respect to disbursements
and payments in a Foreign Currency, same day or other funds as may be determined
by Agent to be customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant Foreign
Currency.
"SECTION" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by Borrower or any member
of the Controlled Group for employees of Borrower or any member of the
Controlled Group.
"Spot Rate" for a currency means the rate quoted by Agent as the spot
rate for the purchase by Agent of such currency with another currency through
the FX Trading Office at approximately 10:30 am. local time on the date two (2)
Business Days prior to the date as of which the foreign exchange computation is
made.
"Stockholder's Equity" means, as of any date of determination, an amount
equal to all equity as calculated in accordance with GAAP appearing on the
balance sheet of Borrower or its Subsidiaries (excluding treasury shares).
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of Borrower.
"Substantial Portion" means, with respect to the Property of Borrower
and its Subsidiaries, Property which represents more than 10% of the
consolidated assets of Borrower and its Subsidiaries as would be shown in the
consolidated financial statements of Borrower and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made.
"Swingline Loan" means a Loan pursuant to SECTION 2.6.
"Swingline Note" means a promissory note, in substantially the form of
EXHIBIT D hereto, duly executed by Borrower and payable to the order of NCB in
the amount of $10,000,000, including any
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amendment, modification, renewal or replacement of such promissory note.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Transferee" is defined in SECTION 11.4.
"Type" means, with respect to any Loan, its nature as a LIBOR Rate Loan
in Dollars, a Base Rate Loan, a Swingline Loan, an Alternate Currency Loan or an
Offshore Currency Loan.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date, for such
Plans.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, association, joint venture
or similar business organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDIT
----------
2.1 COMMITMENT. From and including the date of this Agreement and prior
to the Facility Termination Date, each Lender severally agrees, on the terms and
conditions set forth in this Agreement, that Borrower may, subject to the terms
and conditions of this Agreement, borrow on a revolving basis from Lenders on
the Closing Date and from time to time thereafter sums, the outstanding amount
of which shall not when added to the Letter of Credit Usage, exceed the
Aggregate Commitment at any time. Each Loan shall be in an amount equal to or
greater than Five Million Dollars ($5,000,000); PROVIDED, HOWEVER, that (i) with
regard to each Lender individually, the sum of each such Lender's outstanding
Loans shall not exceed such Lender's Credit Commitment; (ii) with regard to
Lenders collectively, the Outstanding Amount shall not exceed the Aggregate
Commitment; (iii) the Dollar Equivalent of
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Foreign Currency Loans shall not exceed Ten Million Dollars ($10,000,000); (iv)
the amount of Swingline Loans shall not exceed Ten Million Dollars
($10,000,000); (v) the Dollar Equivalent of Foreign Currency Loans may be in
amounts less than Five Million Dollars ($5,000,000) but shall not be less than
$3,000,000; and (vi) Lenders shall not be required to make Offshore Currency
Loans except to the extent that they elect to bid therefor pursuant to SECTION
2.7. The Commitments to lend hereunder shall expire on the Facility Termination
Date. The credit facility established hereunder shall be evidenced by Revolving
Promissory Notes delivered by Borrower in favor of each Lender, respectively, a
Swingline Note in favor of NCB, and, concurrently with advances of Foreign
Currency Loans, Foreign Currency Notes in favor of each Lender making such
Foreign Currency Loan. Loans shall be made in the Applicable Currency.
2.2 Final Principal Payment. Any outstanding Loans and
all other unpaid Obligations shall be paid in full by Borrower on
the Facility Termination Date.
2.3 Ratable Loans. (a) Each Advance hereunder shall consist of Loans
made from the several Lenders ratably in accordance with their Pro Rata Share of
the Aggregate Commitment, except for Swingline Loans, which shall be made solely
by NCB, and Offshore Currency Loans, which shall be made by Lenders pursuant to
SECTION 2.7. Each Lender will make the amount of its Pro Rata Share of each
proposed Advance of LIBOR Rate Loans or Base Rate Loans available to Agent for
the account of Borrower in Same Day Funds by 12:00 noon (Cleveland time) on the
day requested except that in the case of a proposed Offshore Currency Loan,
Lenders making an Offshore Currency Loan will make the amount of its share
thereof available to Agent by such time on such day as Agent may specify.
(b) For all purposes of this Agreement (but not for purposes of the
preparation of any financial statements delivered pursuant hereto), the
equivalent in any Foreign Currency of an amount in Dollars, and the equivalent
in Dollars of an amount in any Foreign Currency, shall be determined at the Spot
Rate.
2.4 APPLICABLE MARGINS. On the Closing Date, the Applicable Margin shall
be determined using Tier III of the performance grid below. Thereafter, the Base
Rate Applicable Margin and LIBOR Applicable Margin shall be adjusted on the
first day of each calendar quarter, beginning January 1, 1996, based on the
ratio of Consolidated Funded Debt as of the end of the immediately preceding
quarter, to Capitalization as at the end of such quarter. To the extent that, as
of an adjustment date, information is not yet available to make such calculation
or Borrower has not provided to Agent information necessary to apply the
performance grid, interest shall be payable retroactively upon receipt of such
information and calculation by Agent. In such event, Borrower shall continue to
pay interest at the interest rate
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and on the Payment Dates in effect for the preceding quarter and the parties
shall adjust for the difference between interest payable and interest actually
paid, when information to apply the performance grid is available.
================================================================
Tier Consolidated LIBOR + Prime
Funded Debt/ +
Capitalization
----------------------------------------------------------------
Tier I greater than 50% 45.0 bps 0 bps
----------------------------------------------------------------
Tier II less than or equal 37.5 bps 0 bps
to 50% but greater
than 40%
----------------------------------------------------------------
Tier III less than or equal 30.0 bps 0 bps
to 40% but greater
than 30%
----------------------------------------------------------------
Tier IV less than or equal 22.5 bps 0 bps
to 30%
================================================================
* bps = basis points
2.5 FACILITY FEE; CLOSING FEE. (a) Borrower agrees to pay to Agent for
the account of each Lender a facility fee (the "FACILITY FEE") on each Lender's
Commitment from the Closing Date to and including the Facility Termination Date,
calculated as follows: (i) 15 bps per annum on such Lender's Commitment in the
event the Applicable Margin is Tier I, (ii) 12.5 bps per annum on such Lender's
Commitment in the event Borrower's Applicable Margin is Tier II, (iii) 10 bps
per annum on Lender's Commitment in the event Borrower's Applicable Margin is
Tier III, and (iv) 7.5 bps per annum on such Lender's Commitment in the event
Borrower's Applicable Margin is Tier IV. The Facility Fee shall be payable
quarterly in arrears on the first day of each calendar quarter hereafter
beginning January 1, 1997, and on the Facility Termination Date.
(b) Borrower further agrees to pay all fees payable to
Agent pursuant to a separate letter agreement.
2.6 SWINGLINE LOANS. Borrower may, subject to the terms and conditions
of this Agreement, borrow on a short-term basis, not to exceed five Business
Days, from NCB, on the Closing Date and from time to time thereafter sums which
shall bear interest at the Federal Funds Rate plus an applicable margin
determined by NCB such that the return to NCB from each such Swingline Loan
approximates the hypothetical return to NCB of a LIBOR Rate Loan of the same
amount made at the same time, for the same number of days (determined pro rata
based on a thirty day LIBOR Interest Period). Each Swingline Loan shall be in
an amount equal to or greater than One Million Dollars ($1,000,000); PROVIDED,
HOWEVER, that, (i)
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notwithstanding anything to the contrary in SECTION 2.1, the sum of NCB's
outstanding Loans of all Types may exceed NCB's Commitment to the extent
attributable to Swingline Loans; (ii) with regard to Lenders collectively
(including for such purpose NCB), the Outstanding Amount shall not exceed the
Aggregate Commitment; and (iii) Borrower may elect not to borrow a Swingline
Loan by Telephonic Notice to NCB within two (2) hours of notice from NCB of the
interest rate to be applicable to such Loan. Any Swingline Loan not repaid in
full, including the principal amount thereof and all accrued interest, within
five Business Days of the borrowing thereof shall automatically convert into a
Base Rate Loan and bear interest at the Base Rate.
2.7 OFFSHORE CURRENCY LOANS.
(a) THE BID-OPTION. From the Closing Date to but excluding the Facility
Termination Date, an Authorized Officer may, as set forth in this SECTION 2.7,
request Lenders to make offers to make Offshore Currency Loans to Borrower in an
Offshore Currency for a LIBOR Interest Period. Each Lender may, but shall have
no obligation to, make such offers and Borrower may, but shall have no
obligation to, accept any such offers, in the manners set forth in this SECTION
2.7; furthermore, each Lender may limit the aggregate amount of Offshore
Currency Loans when quoting rates for more than one LIBOR Interest Period in any
Bid-Option Quote, provided that such limitation shall not be less than the
minimum amounts required hereunder for Offshore Currency Loans and Borrower may
choose among the Offshore Currency Loans if such limitation is imposed.
(b) BID-OPTION QUOTE REQUEST. When an Authorized Officer wishes to
request offers to make Offshore Currency Loans under this SECTION 2.7, it shall
transmit to Agent by telex or telecopy a Bid-Option Quote Request substantially
in the form of EXHIBIT E hereto so as to be received no later than 11:00 a.m.
Cleveland, Ohio, time on the Business Day next preceding the date of the Loan
proposed therein specifying:
(i) the proposed date of the Offshore Currency Loan, which shall
be a Business Day;
(ii) the aggregate amount of such Offshore Currency Loan, which
shall be a minimum of the Dollar Equivalent of $3,000,000 or a larger
multiple Dollar Equivalent of $1,000,000; and
(iii) the duration of the LIBOR Interest Period applicable
thereto.
Borrower may request offers to make Offshore Currency Loans for more than one
LIBOR Interest Period in a single Bid-Option Quote Request.
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26
(c) INVITATION FOR BID-OPTION QUOTES. Promptly upon receipt of a
Bid-Option Quote Request, Agent shall send to Lenders by telecopy (or telephone
promptly confirmed by telecopy) an Invitation for Bid-Option Quotes
substantially in the form of EXHIBIT F hereto, which shall constitute an
invitation by Borrower to each Lender to submit Bid-Option Quotes offering to
make Offshore Currency Loans to which such Bid-Option Quote Request relates in
accordance with this SECTION 2.7.
(d) SUBMISSION AND CONTENTS OF BID-OPTION QUOTES. (i) Each Lender may
submit a Bid-Option Quote containing an offer or offers to make Offshore
Currency Loans in response to any Invitation for Bid-Option Quotes. Each
Bid-Option Quote must comply with the requirements of this subsection (d) and
must be submitted to Agent by telecopy (or by telephone promptly confirmed by
telecopy) at its Head Office not later than 10:00 a.m. Cleveland time on the
proposed date of the Advance. Any Bid-Option Quote so made shall be irrevocable
except with the written consent of Agent given on the instructions of the
Authorized Officer.
(ii) Each Bid-Option Quote shall be substantially in the form of
EXHIBIT G attached hereto, but may be submitted to Agent by telephone with
prompt confirmation by delivery to Agent of such Bid-Option Quote, and
shall in any case specify:
(A) the proposed date of the Offshore Currency Loan;
(B) the principal amount of the Offshore Currency Loan for which
such offer is being made, which principal amount (x) must be in a
minimum Dollar Equivalent of $3,000,000 or a larger multiple Dollar
Equivalent of $1,000,000, and (y) may not exceed the principal amount
of the Offshore Currency Loans for which offers were requested;
(C) the LIBOR Interest Period(s) for which each such Bid-Option
Rate is offered;
(D) the rate of interest per annum (rounded to the nearest
1/100% (the "Bid-Option Rate") offered for each such Offshore Currency
Loan;
(E) the identity of the quoting Lender.
(iii) Any Bid-Option Quote shall be disregarded if it:
(A) is not substantially in the form of EXHIBIT G hereto (or is
not submitted by telephone to Agent with prompt written confirmation to
follow) or does not specify all of the information required by clause
(ii) of this subsection (d);
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(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Bid-Quotes; or
(D) arrives after the time set forth in SECTION 2.7(d) (i);
provided, that a Bid-Option Quote shall not be disregarded pursuant to clause
(B) or (C) above solely because it contains an indication that an allocation
that might otherwise be made to it pursuant to SECTION 2.7(g) would be
unacceptable. Agent shall notify the Authorized Officer of any disregarded
Bid-Option Quote.
(e) NOTICE TO BORROWER. Agent shall promptly notify the Authorized
Officer of the terms of any Bid-Option Quote submitted by a Lender that is
accordance with SECTION 2.7(d). Agent's notice to the Authorized Officer shall
specify (i) the aggregate principal amount of Offshore Currency Loans for which
offers have been received for each LIBOR Interest Period specified in the
related Bid-Option Quote Request, and (ii) the respective principal amounts and
respective Bid-Option Rates so offered.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 11:00 a.m.
Cleveland, Ohio, time on the proposed date of an Offshore Currency Loan, the
Authorized Officer shall notify Agent of Borrower's acceptance or non-acceptance
of any offers so notified to it pursuant to subsection (e) of this SECTION 2.7
and Agent shall, promptly upon receiving notice from the Authorized Officer,
notify each Lender whose Bid-Option Quote has been accepted. In the case of
acceptance, such notice (a "Notice of Offshore Currency Loan") shall specify the
aggregate principal amount of offers for the applicable LIBOR Interest Period(s)
have been accepted. Borrower may accept any Bid-Option Quote in whole or in
part; provided that:
(i) the aggregate principal amount of each Offshore Currency
Loan may not exceed the applicable amount set forth in the related
Bid-Option Quote Request for the applicable LIBOR Interest Period;
(ii) the principal amount of each Offshore Currency Loan must
be the Dollar Equivalent of $3,000,000 or a larger multiple of the
Dollar Equivalent of $1,000,000;
(iii) acceptance of offers may only be made on the
basis of ascending Bid-Option Rates; and
(iv) Borrower may not accept any offer that is described in
SECTION 2.7(d) (iii) or that otherwise fails to comply with the
requirements of this Agreement.
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(g) ALLOCATION BY AGENT. If offers are made by two or more Lenders with
the same Bid-Option Rates for a greater aggregate principal amount that the
amount in respect of which offers are accepted for the related LIBOR Interest
Period, the principal amount of Offshore Currency Loans in respect of which such
offers are accepted shall be allocated by Agent among such Lenders as nearly as
possible (in such multiples, not greater than Dollar Equivalents of $100,000, as
Agent may deem appropriate) in proportion to the aggregate principal amount of
such offers. Determinations by Agent of the amounts of Offshore Currency Loans
shall be conclusive in the absence of manifest error.
2.8 MINIMUM AMOUNT OF LOANS. Base Rate Loans shall be in the minimum
amount of $5,000,000, and in multiples of $1,000,000 if in excess thereof. LIBOR
Rate Loans in Dollars shall be in the minimum amount of $5,000,000, and in
multiples of $1,000,000 if in excess thereof. Foreign Currency Loans shall be in
the minimum Dollar Equivalent amount of $3,000,000, and in multiples of
$1,000,000 in excess thereof.
2.9 INTEREST PAYABLE ON THE LOANS.
(a) INTENTIONALLY OMITTED.
(b) METHOD OF SELECTING RATE OPTIONS AND LIBOR INTEREST PERIODS. (i)
Borrower shall select the Rate Option for each Advance and shall select the
LIBOR Interest Period applicable to each LIBOR Rate Loan from time to time and
whether such Loan shall be in Dollars or an Alternate Currency, by delivery to
Agent of an irrevocable notice in the form of EXHIBIT H hereto (a "BORROWING
NOTICE"), or by telephonic notice to Agent ("TELEPHONIC NOTICE"), followed by a
same day (which shall mean prior to 5:00 p.m. Cleveland, Ohio, time) written
Borrowing Notice delivered to Agent via facsimile. Offshore Currency Loans shall
be made exclusively pursuant to SECTION 2.7.
(ii) Each LIBOR Rate Loan shall bear interest from and including the
first day of the LIBOR Interest Period applicable thereto until (but not
including) the last day of such LIBOR Interest Period at the interest rate
determined as applicable to such Loan. Borrower shall select LIBOR Interest
Periods so that it is not necessary to pay such Loan prior to the last day of
the applicable LIBOR Interest Period in order to repay the Loans on the Facility
Termination Date. Provided that no Default shall have occurred and be
continuing, Borrower may elect to continue a Loan as a LIBOR Rate Loan by giving
irrevocable written, telephonic or telegraphic notice thereof to Agent not more
than ten (10) nor less than three (3) Business Days prior to the last day of the
then-current LIBOR Interest Period for such Loan, specifying the duration of the
succeeding LIBOR Interest Period therefor. If Agent does not receive timely
notice of such election, Borrower shall be deemed to have elected to convert
such Loan to a Base Rate Loan in Dollars at the end of the then-current LIBOR
Interest
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Period. Provided that no Default shall have occurred and be continuing, Borrower
may, on any Business Day, convert any outstanding Base Rate Loan, or portion
thereof, into a LIBOR Rate Loan in the same aggregate principal amount (or
Dollar Equivalent). If Borrower desires to convert a Base Rate Loan, it shall
give Agent prior written or telephonic notice not more than ten (10) nor less
than three (3) Business Days prior to the requested conversion date, which
notice shall specify the duration of the LIBOR Interest Period applicable
thereto.
(c) DETERMINATION OF RATE. Agent shall determine the Base Rate or
Federal Funds Rate, as the case may be, in effect from time to time. Any change
in the Base Rate or Federal Funds Rate shall, for all purposes of this Agreement
and the other Loan Documents, become effective on the effective date announced
by Agent in accordance with Agent's customary practices.
(d) MONTHLY INSTALLMENTS.
(i) Borrower shall pay to Agent, for the account of Lenders in
accordance with their respective Pro Rata Share, monthly in
arrears on the last Business Day of each month beginning with
the month following the month in which the Closing Date occurs,
interest on the outstanding principal amount of the Base Rate
Loans at the annual rate equal to the Base Rate plus the Base
Rate Applicable Margin and on the outstanding principal amount
of Swingline Loans at the annual rate determined pursuant to
SECTION 2.6; provided, however, that if Borrower elects,
pursuant to the final paragraph of SECTION 2.4(a), to convert a
Base Rate Loan, or any portion thereof, to a LIBOR Rate Loan,
Borrower shall pay to Agent, for the account of Lenders in
proportion to their respective Commitments, all accrued but
unpaid interest on such Base Rate Loan, or that portion thereof
which is being so converted, for the period commencing on the
date of the last payment date under this SECTION 2.8(d) (i) and
concluding on the day immediately preceding the first day of
the LIBOR Interest Period for the LIBOR Rate Loan into which
such Base Rate Loan is converted.
(ii) Borrower shall pay to Agent, for the account of Lenders in
accordance with their Pro Rata Share, in arrears, interest on
the outstanding principal amount of the LIBOR Rate Loans in
Dollars at the annual rate equal to the LIBOR Rate. Such
interest shall be due and payable on the last Business Day of
the applicable
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LIBOR Interest Period of three months or less, and for all
other LIBOR Rate Loans in Dollars, interest shall be payable,
in arrears as aforesaid, on (x) that Business Day which is
three months after the beginning of the LIBOR Interest Period
for such Loans; and (y) on the final day of the LIBOR Interest
Period therefor.
(iii) Borrower shall pay to Agent, for the account of Lenders, in
arrears, interest on the outstanding principal amount of each
Offshore Currency Loan at the annual rate equal to the
applicable Bid-Option Rate. Such interest shall be due and
payable on the last Business Day of the applicable LIBOR
Interest Period.
(e) INTEREST ON OVERDUE PAYMENTS; DEFAULT INTEREST RATE. If any payment
of principal or interest is not paid when due, or prior to the expiration of the
applicable period of grace (if any) therefor, Agent may charge and collect from
Borrower, or may add to the unpaid balance of the Notes, a Late Charge. Any Late
Charge charged and collected by Agent shall be distributed to Lenders in
proportion to their respective Commitments or Offshore Currency Loan Percentage,
as the case may be. No failure by Agent to charge or collect any Late Charge in
respect of any delinquent payment shall be considered to be a waiver by Agent or
Lenders of any rights they may have hereunder, including without limitation the
right subsequently to impose a Late Charge for such delinquent payment or to
take such other actions as may then be available to them hereunder or at law or
in equity, including but not limited to the right to terminate the Commitments
and/or to accelerate the Obligations pursuant to the terms hereof. If any Note
has been accelerated pursuant to this Agreement or if a Default hereunder or
under any other Loan Document shall have occurred and be continuing, the
outstanding principal balance of the Indebtedness advanced under this Agreement,
together with all accrued interest thereon and any and all other Obligations,
shall bear interest from the date on which such amount shall have first become
due and payable to the date on which such amount shall be paid (whether before
or after judgment) at the Default Interest Rate. Interest at the Default
Interest Rate will continue to accrue and will (to the extent permitted by
applicable law) be compounded daily until the Obligations in respect of such
payment are discharged (whether before or after judgment).
(f) LIBOR Rate Loans in Dollars not repaid on the last day of the
Interest Rate Period applicable thereto shall be continued as LIBOR Rate Loans
to the extent Borrower provides written notice thereof to Agent and satisfies
the requirements hereof for LIBOR Rate Loans, or, if such requirements are not
satisfied, converted into Base Rate Loans and bear interest as
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provided herein, from and including the last day of such Interest Rate Period.
(g) Foreign Currency Loans not repaid on the last day of the Interest
Rate Period applicable thereto shall be continued as Foreign Currency Loans in
the same Applicable Currency to the extent Borrower provides written notice
thereof to Agent and satisfies the requirements hereof for Foreign Currency
Loans in such Applicable Currency, or, if such requirements are not satisfied,
converted into Base Rate Loans (and redenominated in Dollars at its Dollar
Equivalent) and bear interest as provided herein, from and including the last
day of such Interest Rate Period.
2.10 REPAYMENTS AND PREPAYMENTS OF PRINCIPAL.
(a) OPTIONAL PREPAYMENTS Without derogating from the mandatory
prepayment requirements contained in SECTION 2.10(b) hereof, Borrower may prepay
the principal of the Loans in full or in part at any time and from time to time
upon payment to Agent of all accrued interest to the date of payment; provided,
however, that (i) all partial payments of principal shall be in an amount equal
to or greater than One Hundred Thousand Dollars ($100,000.00); and (ii) all
Loans may be prepaid without penalty or premium. If Borrower shall prepay any
Loan which is a LIBOR Rate Loan on a day other than the final day of the
applicable LIBOR Interest Period therefor, such prepayment must include an
amount equal to all of Lenders' aggregate LIBOR Break Funding Costs, applicable
to or resulting from such prepayment in accordance with SECTION 2.14, below.
(b) MANDATORY PREPAYMENTS
(i) If at any time the Outstanding Amount exceeds the Aggregate
Commitment, Borrower shall immediately prepay an amount equal to such
excess.
(ii) If at any time the Outstanding Amount with respect to any Lender
exceeds such Lender's Commitment, Borrower shall immediately prepay an
amount equal to such excess.
(iii) If (and on each occasion that) a drawing or disbursement is made
under a Letter of Credit and is not reimbursed by Borrower (either by
causing the amount of such drawing or disbursement to be converted into
a Loan or by paying the Issuing Bank the amount of such showing or
disbursement in immediately available funds, in either case as and when
required by SECTION 2.23, below), Borrower shall immediately prepay an
amount equal to such drawing or disbursement, together with interest
thereon.
(c) Application of Prepayments Any prepayment of the Obligations shall
be applied by Agent as set forth in SECTION 2.11
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hereof. To the extent that such payment, repayment or prepayment shall be
applied to LIBOR Rate Loan, Agent shall retain such amount until the expiration
of the LIBOR Interest Period applicable to such Loan, and, shall apply such
payment at such time so as to minimize the LIBOR Break Funding Costs applicable
to such payment, repayment or prepayment, unless otherwise instructed by
Borrower to pay, repay or prepay such Loan and nonetheless incur the applicable
LIBOR Break Funding Cost.
(d) MATURITY. Subject to the terms and conditions of this Agreement,
Borrower will be entitled to reborrow all or any part of the principal of the
Notes repaid or prepaid prior to the termination of the Commitments, PROVIDED
THAT Borrower shall not be permitted to reborrow principal under a Foreign
Currency Note. The Commitments shall terminate, and all of the Indebtedness
evidenced by each Note shall, if not sooner paid, be in any event absolutely and
unconditionally due and payable in full by Borrower, on the Facility Termination
Date.
(e) NOTICE OF PREPAYMENTS OF PRINCIPAL. Unless otherwise specified
herein, Borrower will provide Agent at least (1) one Business Day's advance,
written notice of its intention to make any voluntary prepayment of principal.
Such notice shall be irrevocable and shall specify the date of prepayment and
the aggregate amount to be paid.
(f) REDUCTION IN COMMITMENT. Provided there is not then any Default or
Unmatured Default hereunder or any other Loan Document, Borrower may, upon and
subject to the terms and conditions set forth in this SECTION 2.10(f), elect
permanently to reduce the Aggregate Commitment by providing Agent and each
Lender with not less than thirty (30) days' prior written notice of its election
to do so. Such notice shall specify the date on which such reduction is intended
to become effective and the amount to which Borrower would propose to reduce the
Aggregate Commitment. Provided that Borrower shall, on or prior to the effective
date for such reduction specified in such notice, have made such payments or
prepayments as may be necessary to cause the outstanding balance of all Loans to
Borrower to be reduced to an amount equal to or less than the amount of the
Aggregate Commitment (giving effect to the proposed reduction thereof
contemplated in Borrower's notice), the Aggregate Commitment shall, on the date
specified in Borrower's notice, be reduced to the amount stipulated in
Borrower's notice. In the event that Borrower shall elect to reduce the
Aggregate Commitment as aforesaid, each Lender's Commitment shall be reduced,
pro rata, to reflect any such reduction in the Aggregate Commitment, and the
amount of the Facility Fee payable during the quarter in which such reduction
shall become effective shall be calculated so as to give effect to such
reduction, as of the effective date thereof, on a per diem basis. Each reduction
in the amount of the Aggregate Commitment effected pursuant to this SECTION
2.10(f) shall be in a multiple of Five Million Dollars ($5,000,000), and the
minimum reduction shall be Twenty Million
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Dollars ($20,000,000). Each reduction in the amount of the Aggregate Commitment
shall be permanent. Borrower may exercise their right permanently to reduce the
amount of the Aggregate Commitment not more frequently than twice during any
six-month period. Borrower shall pay all reasonable costs and expenses of Agent
(including, without limitation, reasonable attorney's fees) incurred in
connection with the exercise of Borrower's rights under this SECTION 2.10(f).
2.11 PAYMENTS AND COMPUTATIONS.
(a) TIME AND PLACE OF PAYMENTS. Each payment to be made by Borrower
under this Agreement or any other Loan Documents shall be made directly to Agent
at its Head Office, not later than 12:00 noon Cleveland time, on the due date of
each such payment. Such payments shall be made in Same Day Funds, and (i) in the
case of Foreign Currency payments, no later than such time on the dates
specified herein as may be determined by Agent to be necessary for such payment
to be credited on such date in accordance with normal banking procedures in the
place of payment, and (ii) in the case of any Dollar payments, no later than
12:30 p.m. (Cleveland time) on the date specified herein. Any payment which is
received by Agent later than 12:30 p.m. (Cleveland time), or later than the time
specified by Agent as provided in clause (i), above, (in the case of Foreign
Currency payments), shall be deemed to have been received on the following
Banking Day and any applicable interest or fee shall continue to accrue. Except
as otherwise expressly provided herein, all payments by Borrower shall be made
to Agent for the account of Lenders, and, with respect to principal of, interest
on, and any other amounts relating to, any Foreign Currency Loan, shall be made
in the Foreign Currency in which such Loan is denominated or payable, and, with
respect to all other amounts payable hereunder, shall be made in Dollars. Agent
will, on the same Business Day that it receives (or is deemed to receive, as
aforesaid) each such payment, cause to be distributed to each Lender, in
immediately available and freely transferrable funds, such Lender's Pro Rata
Share of each such payment received by Agent or, in the case of Offshore
Currency payments, distributed to the Lender(s) having Loans in accordance with
their Offshore Currency Loan Percentage.
(b) APPLICATION OF FUNDS. Notwithstanding anything herein to the
contrary, the funds received by Agent with respect to the Obligations shall be
applied as follows:
(i) NO DEFAULT. Provided that the Notes have not been accelerated
pursuant to SECTION 7.1, below, and provided further that no Default
or Unmatured Default hereunder or under any Loan Document shall have
occurred and be continuing at the time that Agent receives such
funds, in the following manner: (a) FIRST, to the payment of all
fees, charges, and other sums (other than principal and interest)
then
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due and payable to Agent or Lenders under the Notes, this Agreement
or the other Loan Documents (including, without limitation, any
LIBOR Break Funding Costs which may then be payable); (b) SECOND, to
the payment of all accrued but unpaid interest at the time of such
payment in accordance with each Lender's share pursuant to SECTION
2.11(a); and (c) THIRD, to the payment of principal of the Notes in
accordance with each Lender's share pursuant to SECTION 2.11(a).
(ii) DEFAULT. If the Notes have been accelerated pursuant to SECTION
7.1, or if a Default hereunder shall have occurred and be continuing
hereunder or under the Notes or any of the other Loan Documents at
the time Agent receives such funds, in the following manner: (a)
FIRST to the payment or reimbursement of Lenders and Agent for all
costs, expenses, disbursements and losses which shall have been
incurred or sustained by Lenders or Agent in or incidental to the
collection of the Obligations owed by Borrower hereunder or the
exercise, protection, or enforcement by Lenders or Agent of all or
any of the rights, remedies, powers and privileges of Lenders and
Agent under this Agreement, the Notes, or any of the other Loan
Documents and in and towards the provision of adequate indemnity to
Agent and any of Lenders against all taxes or Liens which by law
shall or may have priority over the rights of Agent or Lenders in
and to such funds; and (b) SECOND to the payment of all of the
Obligations in accordance with SECTION 2.11(b) (i) above.
(c) PAYMENTS ON BUSINESS DAYS. If any sum would (but for the provisions
of this SECTION 2.11(c)) become due and payable on any day which is not a
Business Day, then such sum shall become due and payable on the next succeeding
Business Day, and interest payable on such sum shall continue to accrue and
shall be adjusted by Agent accordingly.
(d) COMPUTATION OF INTEREST. All computations of interest payable under
this Agreement, the Notes, or any of the other Loan Documents shall be computed
by Agent on the basis of the actual principal amount outstanding on each day
during the payment period, and shall be calculated with reference to the actual
number of days elapsed during such period on the basis of a year consisting of
three hundred and sixty (360) days. The daily interest charge shall be one
three-hundred-sixtieth (1/360th) of the annual interest amount. Each
determination of any interest rate by Agent shall be conclusive and binding on
Borrower in the absence of manifest error. Absent manifest error, a certificate
or statement signed by an authorized officer of Agent shall be
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conclusive evidence of the amount of the Obligations due and unpaid as of the
date of such certificate or statement.
2.12 PAYMENTS TO BE FREE OF DEDUCTIONS. Each payment to be made by
Borrower under this Agreement, any Note, or any of the other Loan Documents
shall be made in accordance with SECTION 2.11 hereof, without set-off, deduction
or counterclaim whatsoever, and free and clear of taxes, levies, imposts,
duties, charges, fees, deduction, withholdings, compulsory loans, restrictions
or conditions of any nature now or hereafter imposed or levied by any
governmental or taxing authority, unless Borrower is compelled by law to make
any such deduction or withholding. In the event that any such obligation to
deduct or withhold is imposed upon Borrower with respect to any such payment:
(a) Borrower shall be permitted to make the deduction or withholding required by
law in respect of the said payment, and (b) there shall become and be absolutely
due and payable by Borrower to Agent or such Lender on the date on which the
said payment shall be due and payable, and Borrower hereby promises to pay to
Agent or such Lender on such date, such additional amount as shall be necessary
to enable Agent or such Lender to receive the same net amount which Agent or
such Lender would have received on such due date had no such obligation been
imposed by law. Notwithstanding any provision of this SECTION 2.12 to the
contrary, the foregoing provisions of this SECTION 2.12 shall not apply in the
case of any deductions or withholding made (y) in respect of taxes charged upon
or by reference to the overall net income, profits or gains of Agent or any
Lender, or (z) failure by a Lender to comply with SECTION 2.22.
2.13 USE OF PROCEEDS. Borrower represents, warrants and covenants to
Agent and to each Lender that all proceeds of the Advances shall be used by
Borrower only for the following purposes: (i) Acquisitions, to the extent
expressly permitted under this Agreement, (ii) Borrower's share repurchase
program, and (iii) except as expressly limited in this Agreement, general
corporate purposes.
2.14 LIBOR BREAK FUNDING COST. Borrower shall pay to Agent, for the
ratable benefit of each Lender, the LIBOR Break Funding Costs that Agent
reasonably determines are attributable to:
(a) any payment (including, without limitation, any payment resulting
from the acceleration of the Loans pursuant to this Agreement or any Loan
Document), repayment, mandatory or optional prepayment, or conversion of a LIBOR
Rate Loan for any reason on a date other than the last day of the LIBOR Interest
Period for such Loan; or
(b) any failure by Borrower for any reason to borrow a LIBOR Rate Loan
on the date for such borrowing specified in the relevant Borrowing Notice, or in
a Bid-Option Quote Request for which Borrower has delivered a Notice of Offshore
Currency Loan pursuant to SECTION 2.7(f) of this Agreement.
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2.15 ADDITIONAL COSTS.
(a) Notwithstanding any conflicting provisions of this Agreement to the
contrary, if any applicable law, rule or regulation not in effect as of the date
hereof shall (i) subject Agent or any Lender to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to any Loan, or
Letter of Credit, this Agreement, any Note, or any of the other Loan Documents
or the payment by Borrower of any amounts payable to Agent or any Lender
hereunder or thereunder (other than taxes charged upon or by reference to the
overall net income, profits or gains of Agent or any Lender or taxes charged
with respect to any Lender's failure to comply with SECTION 2.22 hereof); or
(ii) materially change, in the reasonable opinion of the party so affected, the
basis of taxation (other than changes in tax rates applicable to taxes charged
upon or by reference to the overall net income, profits or gains of Agent or any
Lender or taxes charged with respect to any Lender's failure to comply with
SECTION 2.22 hereof) of payments to Agent or any Lender of the principal of or
the interest on any Note or any other amounts payable to Agent or any Lender
under this Agreement, or any of the other Loan Documents; or (iii) impose or
increase or render applicable any special or supplementary special deposit or
reserve or similar requirements (whether or not having the force of law) against
assets held by, or deposits in or for the account of, or any eligible
liabilities of, or loans by any office or branch of, Agent or any Lender; or
(iv) impose on Agent or any Lender any other condition or requirement with
respect to this Agreement, any Note, or any of the other Loan Documents, and if
the result of any of the foregoing is (A) to increase the cost to Agent or any
Lender of making, funding or maintaining all or any part of the principal of the
Loans or of issuing, maintaining or making draws or disbursements under the
Letters of Credit, or (B) to reduce the amount of principal, interest or any
other sum payable by Borrower to Agent or any Lender under this Agreement, any
Note, or any of the other Loan Documents, or (C) to require Agent or any Lender
to make any payment or to forego any interest or other sum payable by Borrower
to Agent or any Lender under this Agreement, any Note, or any of the other Loan
Documents, the amount of which payment or foregone interest or other sum is
measured by or calculated by reference to the gross amount of any sum receivable
or deemed received by Agent or any Lender from Borrower under this Agreement,
any Note, or any of the other Loans Documents, then, and in each such case,
Borrower will pay to Agent for Agent or the account of a Lender, as the case may
be, within sixty (60) days of written notice by Agent or such Lender, such
additional amounts as will (in the reasonable opinion of Agent or such Lender,
as the case may be) be sufficient to compensate Agent or such Lender for such
sum.
(b) If any present or future applicable law, rule or regulation shall
make it unlawful for Borrower to perform any one or more of its agreements or
Obligations under this Agreement, any Note, or any of the other Loan Documents,
then the obligations of
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Lenders under their respective Commitment shall terminate immediately. If any
present or future applicable law, rule or regulation shall make it unlawful for
Borrower to perform any one or more of its agreements or obligations under this
Agreement, any Note, or any of the other Loan Documents, and Agent, or any
Lender shall at any time determine (which reasonable determination shall be
conclusive and binding on Borrower) (i) that, as a consequence of the effect or
operation (whether direct or indirect) of any such applicable law, rule or
regulation, any one or more of the rights, remedies, powers or privileges of
Agent or any Lender under or in respect of this Agreement, any Note, or any of
the other Loan Documents shall be or become invalid, unenforceable, or
materially restricted; and (ii) that all or any one or more of the rights,
remedies, powers and privileges so affected are of material importance to Agent
or any Lender (as determined by the party so affected), then Agent shall, at the
direction of the Required Lenders, by giving notice to Borrower, declare all of
the Obligations, including, without limitation, the entire unpaid principal of
the Notes, all of the unpaid interest accrued thereon and any and all other sums
due and payable by Borrower to Agent or Lenders under this Agreement, any Note,
and any of the other Loan Documents, to be immediately due and payable, and,
thereupon, such Obligations shall (if not already due and payable) forthwith
become and be due and payable without further notice or other formalities of any
kind, all of which are hereby expressly waived.
(c) If Agent or any Lender shall reasonably determine that any law, rule
or regulation not in effect as of the date hereof regarding capital adequacy, or
in the event of any change in any existing such law, rule or regulation or in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof or compliance by any Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
such authority, central bank or comparable agency, has or would have the effect
of reducing the rate of return on such Lender's capital, as a consequence of its
obligations hereunder, to a level below that which such Lender could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy) by any amount deemed by
such Lender to be material, then Borrower shall pay to such Lender within sixty
(60) days of written notice by such Lender such amount or amounts, in addition
to the amounts payable under the provisions of this Agreement or any other Loan
Document, as will compensate such Lender for such reduction. Determinations by
any Lender of the additional amount or amounts required to compensate such
Lender in respect of the foregoing shall be presumptively correct absent
manifest error. In determining such amount or amounts, each Lender may use in
good faith any reasonable averaging and attribution methods of general
application.
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(d) Each Lender agrees, that upon the occurrence of any event giving
rise to the operation of SECTION 2.12, or (a)-(c) of this SECTION 2.15 with
respect to such Lender, it will, to the extent permitted by Applicable Law or by
the relevant governmental authority, in consultation with Agent, for a period of
thirty (30) days endeavor in good faith to avoid or minimize the increase in
costs or reduction in payments resulting from such event (including, but not
limited to, endeavoring to change its Lending Installation); provided, however,
that such avoidance or minimization can be made in such a manner that such
Lender, in its sole determination, suffers no economic, legal or regulatory
disadvantage. If any Lender (an "Affected Lender") shall make a demand for
payment under any of such Sections, and Borrower shall find a Lender or an
assignee which offers in writing to purchase the Commitments and Advances of
such Affected Lender without recourse at par on a specified date, together with
accrued and unpaid interest and commitment fees thereon to the date of purchase,
and tenders the purchase price of such Commitments and Advances on such
specified date, and if, in the reasonable opinion of such Affected Lender, its
acceptance of such offer would be permitted under Applicable Law and all
relevant governmental authorities and would not result in its suffering any
economic, legal, or other regulatory disadvantage, then Borrower shall be
excused from the payment of the increased costs claimed by such Affected Lender
under any of such sections accruing after the first interest payment date
pursuant to SECTION 2.19 for each Advance of such Affected Lender following such
specified date, if the Affected Lender demanding payment under either such
SECTION declines such purchase offer. If such Affected Lender accepts such
purchase offer, upon consummation of such purchase offer such Affected Lender
shall cease to be a party hereto. Except as provided in the immediately
preceding sentence, nothing in this SECTION 2.15(d) shall affect or postpone the
obligations of Borrower to make payments as provided hereunder: Any reasonable
expenses incurred by such Affected Lender under this SECTION 2.15 (d) shall be
paid by Borrower upon delivery by such Affected Lender to Borrower of a
certificate as to the amount of such expenses, which certificate shall be
conclusive and binding, in absence of manifest error.
(e) For purposes of this SECTION 2.15, "laws, rules and regulations not
in effect on the date hereof" or similar words shall be deemed to include future
interpretations of existing laws, rules and regulations.
2.16 INDEMNIFICATION OF LOSSES. Without derogating from any of the other
provisions of this Agreement or any of the other Loan Documents Borrower hereby
absolutely and unconditionally agrees to indemnify Agent and each Lender, upon
demand at any time and as often as the occasion therefor may require, against
any and all claim, demands, suits, actions, damages, losses, costs, expenses and
all other liabilities whatsoever which Agent or any Lender or any of their
respective directors or officers may sustain or incur as a consequence of, on
account of, in relation to or in
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any way in connection with (a) any failure by Borrower to pay, punctually on the
due date thereof, any amount payable under this agreement, any Note, or any of
the other Loan Documents beyond the expiration of the period of grace (if any)
applicable thereto, or (b) the acceleration of the maturity of any of the
Obligations, or (c) any failure by any Borrower to perform or comply with any of
the terms and provisions of this Agreement, any Note or any of the other Loan
Documents. Such claims, demands, suits, actions, damages, losses, costs,
expenses shall include, without limitation (i) any costs incurred by Agent or
any lender in carrying funds to cover any overdue principal, overdue interest or
any other overdue sums payable by Borrower under this Agreement, any Note or any
of the other Loan Documents; (ii) any interest payable by Agent or any Lender in
order to carry the fund referred to in clause (i) of this SECTION 2.16; and
(iii) any losses (but excluding losses of anticipated profit) incurred or
sustained by Agent or any Lender in liquidating or re-employing funds acquired
from third parties to make, fund or maintain all or any part of the Loans.
Lenders' right to receive payment under this SECTION 2.16 (but not the
underlying right to indemnification) is subject to substantial compliance by
Lenders with the obligation to make Advances hereunder.
2.17 STATEMENTS BY AGENT OR ANY LENDER. A certified statement signed by
an officer of Agent or any Lender setting forth any additional amount required
to be paid by Borrower to Agent or such Lender (together with supporting
documentation setting forth in reasonable detail an explanation of the basis for
requesting payment of such amount), respectively, under SECTION 2.15 and 2.16
hereof shall be submitted by Agent or such Lender to Borrower in connection with
each demand made at any time by Agent (with copies thereof delivered to each
other Lender) or such Lender under either of such sections. A claim by Agent or
any Lender for all or any part of any additional amounts required to be paid by
Borrower under SECTION 2.15 and 2.16 hereof may be made before or after any
payment to which such claim relates. Each such statement shall, in the absence
of manifest error, constitute presumptive evidence of the additional amount
required to be paid to Agent or such Lender.
2.18 BORROWING NOTICES: TELEPHONIC NOTICES. (a) All requests for draws,
advances, or disbursements of Loan proceeds shall be made by and on behalf of
Borrower in writing on a Borrowing Notice, by Telephonic Notice, or pursuant to
SECTION 2.7. All Telephonic Notices, must be followed by same day (which shall
mean prior to 5:00 p.m., Cleveland, Ohio, time) written Borrowing Notice
delivered to Agent via facsimile. Borrowing Notices may be transmitted to Agent
at its Head Office via fax or telecopy, PROVIDED that Borrower immediately
notifies Agent by telephone of such transmission. Each Borrowing Notice for Base
Rate Loans or Swingline Loans shall be transmitted to and received by Agent, or
each Telephonic Notice shall be received by telephone by Agent, not later than
12:00 p.m. Cleveland, Ohio, time not more than ten (10) Business Days nor less
than one (1) Business Day before the
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Borrowing Date of each such loan, and not more than ten (10) Business Days nor
less than three (3) Business Days before the Borrowing Date for each LIBOR Rate
Loan, provided that notices for Offshore Currency Loans shall be governed by
SECTION 2.7. All Borrowing Notices shall be accompanied by such documents,
reports and other materials as may be reasonably necessary to enable Agent (and
each Lender) to confirm that the conditions precedent to the disbursement of
such requested Loan have been satisfied.
(b) Agent shall notify Lenders promptly by telephone of its receipt of
Borrower's Borrowing Notice, but in no event shall Agent notify Lenders later
than 5:00 p.m. Cleveland time, on the day on which Agent actually receives the
applicable Borrowing Notice. In addition, Agent shall provide each Lender with a
copy of each such Borrowing Notice, together with all accompanying materials,
promptly upon Agent's receipt thereof, and shall in addition provide each Lender
with a statement showing Agent's calculation of its respective Pro Rata Share of
the Advance so requested. Each Lender will, upon receiving notice from Agent of
Borrower's Borrowing Notice, become and be obligated to place at the disposal of
Agent, not later than 10:00 a.m., Cleveland time, on the Borrowing Date set
forth on such Borrowing Notice, an aggregate amount in dollars equal to such
Lender's Pro Rata Share multiplied by the amount of the Advance requested. The
payment by each Lender of such aggregate amount shall be made to Agent at
Agent's Head Office in immediately available and freely transferrable funds.
(c) Agent shall disburse the proceeds of each Loan to Borrower, in
immediately available funds not later than noon, Cleveland time, on the
Borrowing Date described therefor, provided that: (x) Borrower shall have
provided Agent with a Borrowing Notice for such Advance as and when provided
above; (y) all of the conditions precedent applicable to such Advance shall be
satisfied as at the Closing Date or such later Borrowing Date as may be
applicable to such Loan; and (z) each Lender shall fund the amount equal to its
Loan as provided in SECTION 2.18(b), above.
2.19 NOTES; TELEPHONIC NOTICES. Each Lender is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to its respective Note or Notes, provided, however, that the
failure to so record shall not affect Borrower's obligations under such Note.
Borrower hereby authorizes Lenders and Agent to extend, convert or continue
Loans, effect selections of Types of Advances and to transfer funds based on
telephonic notices made by any person or persons Agent or any Lender in good
faith believes to be acting on behalf of Borrower. Borrower agrees to deliver
promptly to Agent a written confirmation, if such confirmation is requested
by Agent or any Lender, of each telephonic notice signed by an Authorized
Officer. If the written confirmation differs in any material respect from the
action taken by Agent and Lenders, the records of Agent and Lenders shall govern
absent manifest error.
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2.20 LENDING INSTALLATIONS. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to Agent and Borrower, designate a Lending Installation through which
Loans will be made by it and for whose account Loan payments are to be made.
2.21 NON-RECEIPT OF FUNDS BY AGENT. Unless Borrower or a Lender, as the
case may be, notifies Agent prior to the date on which it is scheduled to make
payment to Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii)
in the case of Borrower, a payment of principal, interest or fees to Agent for
the account of Lenders, that it does not intend to make such payment, Agent may
assume that such payment has been made. Agent may, but shall not be obligated
to, make the amount of such payment available to the intended recipient in
reliance upon such assumption. If such Lender or Borrower, as the case may be,
has not in fact made such payment to Agent, the recipient of such payment shall,
on demand by Agent, repay to Agent the amount so made available together with
interest thereon in respect of each day during the period commencing on the date
such amount was so made available by Agent until the date Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Rate for such day or (ii) in the case of payment by Borrower, the
interest rate applicable to the relevant Loan.
2.22 WITHHOLDING TAX EXEMPTION. At least five Business Days prior to the
first date on which interest or fees are payable hereunder for the account of
any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to each
Borrower and Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, certifying in either case that such Lender is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Lender
which so delivers a Form 1001 or 4224 further undertakes to deliver to each
Borrower and Agent two additional copies of such form (or a successor form) on
or before the date that such form expires (currently, three successive calendar
years for Form 1001 and one calendar year for Form 4224) or becomes obsolete or
after the occurrence of any event requiring a change in the most recent forms so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by Borrower or Agent, in each case certifying
that such Lender is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
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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 advises Borrower and Agent that it is not capable
of receiving payments without any deduction or withholding of United States
federal income tax.
2.23 THE LETTERS OF CREDIT.
(a) ISSUANCE OF LETTERS OF CREDIT; CONDITIONS AND LIMITATIONS". Upon the
terms and conditions set forth in this Agreement, Borrower may request, in
accordance with the provisions of this SECTION 2.23, that the Issuing Bank issue
one or more Letters of Credit for its account from time to time prior to the
Termination Date. If Borrower desires the issuance of a Letter of Credit, it
shall deliver to Agent a Request for Issuance of Letter of Credit in form
substantially similar to that which is attached hereto as EXHIBIT C and made a
part hereof by this reference, no later than 11:00 A.M. (Cleveland time) at
least five Business Days before the proposed Issuance Date therefor. The Request
for Issuance of Letter of Credit shall be accompanied by a Letter of Credit
application, on the Issuing Bank's then-customary form, and shall contain, among
other things, the following information with respect to each requested Letter of
Credit: (i) its proposed Issuance Date (which shall be a Business Day), (ii) its
proposed Face Amount, (iii) its proposed expiration date, (iv) the name and
address of its proposed beneficiary, and (v) a summary of its purpose and
contemplated terms. Borrower shall, in addition, furnish a precise description
of any documents to be presented under, and any other terms of, the requested
Letter of Credit, together with the text of any certificate to be presented by
the beneficiary which, if presented by the beneficiary prior to the expiration
date of the Letter of Credit, would require the Issuing Bank to make payment
under the Letter of Credit. No Letter of Credit shall require payment against a
conforming draft to be made thereunder on the same Business Day that such draft
is presented if such presentation is made after 10:00 A.M. (Cleveland time) on
such Business Day. The minimum Face Amount of any Letter of Credit shall be One
Million Dollars ($1,000,000) or the Dollar Equivalent thereof. The issuance of
each Letter of Credit shall be subject to the satisfaction, on the Issuance Date
for each Letter of Credit, of all of the conditions precedent set forth in
SECTION 3.2, below, and to the following additional limitations:
(i) Borrower shall not request the issuance of a Letter of Credit if,
after giving effect to the issuance of such Letter of Credit, the Letter
of Credit Usage would equal or exceed Ten Million Dollars ($10,000,000);
(ii) Borrower shall not request the issuance of a Letter of Credit if,
after giving effect to the issuance of such Letter of Credit, the
Outstanding Amount would exceed the Aggregate Commitment; and
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(iii) In no event shall the Issuing Bank issue any Letter of Credit
having an expiration date later than the first to occur of (x) Facility
Termination Date or (y) one (1) year after the Issuance Date of the
proposed Letter of Credit; provided that, subject to the foregoing
clause (x), this clause (y) shall not prevent the Issuing Bank from
agreeing that a Letter of Credit will automatically be renewed for a
period not to exceed one (1) year after the initial expiry date thereof
if the Issuing Bank does not cancel such renewal, provided that all of
the conditions to the issuance of a Letter of Credit and set forth or
referred to in this SECTION 2.23(a) must be satisfied as at each such
renewal date in respect of such renewal.
(b) ISSUANCE OF LETTERS OF CREDIT: PURCHASE OF PARTICIPATIONS THEREIN.
Upon Agent's receipt of a Request for Issuance of Letter of Credit, Agent shall
promptly so notify each Lender, and shall provide each Lender with a copy of
such Request for Issuance of Letter of Credit. Provided that all of the
conditions precedent to the issuance of the requested Letter of Credit have been
satisfied, the Issuing Bank shall cause each Letter of Credit properly requested
hereunder to be issued in accordance wIth the terms of the respective Request
for Issuance for Letter of Credit therefor. Immediately upon the issuance of
each Letter of Credit, each Lender (other than the Issuing Bank) shall be deemed
to have irrevocably purchased from the Issuing Bank a participation in such
Letter of Credit and any and all drawings and disbursements thereunder, in an
amount equal to such Lender's Pro Rata Share of the initial Face Amount of such
Letter of Credit, and each Lender hereby covenants and agrees to purchase and
pay for such participation on the terms and subject to the conditions set forth
in this SECTION 2.23.
(c) PAYMENT IN CERTAIN CIRCUMSTANCES. Each Letter of Credit shall
provide that the Issuing Bank may (but shall not be required to) pay the
beneficiary thereof upon the occurrence of an Event of Default and the
acceleration of the maturity of the Loans or, if payment is not then due to the
beneficiary under such Letter of Credit, may provide for the deposit of funds in
an account to secure payment to the beneficiary, and that any funds so deposited
shall be paid to such beneficiary (subject to the satisfaction of all conditions
to such payment), or returned to the Issuing Bank for distribution to Lenders
(or, if all obligations then shall have been indefeasibly paid in full, to
Borrower) if no payment to such beneficiary has been made and if the final date
available for drawings under the Letter of Credit has passed. Each payment or
deposit of funds by the Issuing Bank as provided in this paragraph shall be
treated for all purposes of this Agreement as a drawing duly honored by the
Issuing Bank under the related Letter of Credit.
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(d) TERMINATION OF COMMITMENTS. If for any reason the Commitments shall
terminate when any Letter of Credit is outstanding, Borrower shall, on or prior
to the date of such termination: (i) cause each outstanding Letter of Credit to
be cancelled, and an amount equal to all amounts previously drawn under Letters
of Credit and not theretofore reimbursed by Borrower or converted into Loans
pursuant to SECTION 2.23(e) to be paid immediately to or as directed by the
Issuing Bank; or (ii) deposit, with Agent, immediately available funds in an
amount equal to the Letter of Credit Usage to secure all outstanding Letters of
Credit which are not cancelled as described in the preceding clause.
(e) PAYMENT OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT. Upon receipt by
the Issuing Bank of any request for drawing under its Letter of Credit by the
beneficiary thereof, the Issuing Bank shall notify Borrower and Agent promptly
after its receipt of notice of any such request, and in any event at least two
(2) Business Days prior to the date on which the Issuing Bank intends to honor
such drawing (unless under the terms of the Letter of Credit the Issuing Bank is
required to honor a drawing prior to the second Business Day after presentation
of a request for drawing, in which case the Issuing Bank shall provide Borrower
and Agent with such notice of such request as may be practicable under the
circumstances). Agent shall provide each Lender with a true and complete copy
of such notice within one (1) Business Day of Agent's receipt of the same.
Borrower shall, and hereby covenants and agrees to, reimburse the Issuing Bank
on the day on which such drawing is honored in an amount, in immediately
available funds, equal to the amount of such drawing; PROVIDED that (i) unless
Borrower shall have notified Agent prior to 11:00 A.M. (Cleveland time) on the
Business Day immediately prior to the date of such drawing that Borrower intends
to reimburse the Issuing Bank for the amount of such drawing with funds other
than the proceeds of Loans, Borrower shall be deemed to have given a Request for
Advance to Agent requesting a Base Rate Loan on the date on which such drawing
is honored, in the amount of such drawing; and (ii) Lenders shall, on the date
of such drawing, make Loans in the amount of such drawing, the proceeds of which
shall be applied directly by Agent to reimburse the Issuing Bank for the amount
of such drawing; and PROVIDED FURTHER, that if for any reason proceeds of such
Loans are not received by the Issuing Bank on such date in an amount equal to
the amount of such drawing, Borrower shall reimburse the Issuing Bank, on the
next Business Day, in an amount equal to the excess of the amount of such
drawing over the amount of such Loans which are actually received, plus accrued
interest on such amount at the Default Interest Rate.
(f) PAYMENT BY LENDERS. If Borrower shall fail to reimburse the Issuing
Bank as and when required above for the amount of any drawing honored by the
Issuing Bank under a Letter of Credit issued by it, the Issuing Bank shall
promptly notify each Lender of the unreimbursed amount of such drawing and of
such Lender's respective Pro Rata Share thereof. Each Lender shall make
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available to the Issuing Bank an amount equal to its respective Pro Rata Share
of such unreimbursed drawing, in immediately available funds, at the office of
the Issuing Bank specified in such notice, not later than 12:00 P.M. (Cleveland
time) on the first Business Day after such Lender's receipt of such notice from
the Issuing Bank. If any Lender fails so to make available to the Issuing Bank
the amount of such Lender's Pro Rata Share of such Letter of Credit, the Issuing
Bank shall be entitled to recover such amount on demand from such Lender,
together with interest at the customary rate set by the Issuing Bank for the
correction of errors among banks. Nothing in this provision shall prejudice the
right of any Lender to recover from the Issuing Bank any amounts made available
by such Lender to the Issuing Bank pursuant to this provision in the event that
it is determined by a court of competent jurisdiction that the payment with
respect to a Letter of Credit by the Issuing Bank in respect of which payment
was made by the Issuing Bank constituted gross negligence or willful misconduct
on the part of the Issuing Bank. The Issuing Bank shall, or shall cause Agent
to, distribute to each other Lender which has paid all amounts payable by it
under this SECTION 2.23(f) with respect to any Letter of Credit issued by the
Issuing Bank such other Lender's Pro Rata Share of all payments received by the
Issuing Bank from Borrower in reimbursement of drawings honored by the Issuing
Bank under such Letter of Credit when such payments are received.
(g) COMPENSATION. Borrower agrees to pay the following amounts with
respect to each Letter of Credit issued pursuant to this Agreement:
(i) a Letter of Credit Commission payable, in advance, to Agent for
the ratable benefit of Lenders, on the Issuance Date of such Letter of
Credit (and, solely in the case of Letters of Credit which are renewed
after the expiration of the initial period thereof, on each renewal date
for so long as such Letters of Credit remain outstanding); and
(ii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each drawing made thereunder, documentary and
processing charges in accordance with the Issuing Bank's standard
schedule for such charges in effect at the time of such provided for in
this Agreement, Borrower agrees to protect, indemnify, pay and save the
Issuing Bank harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees) which the Issuing Bank may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of
any Letter of Credit, other than as a result of the gross negligence or
willful misconduct of the Issuing Bank as determined by a court of
competent jurisdiction, or (ii) the failure of the Issuing Bank to honor
a drawing under any Letter of Credit as a result of
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any act or omission, whether rightful or wrongful, of any present or
future governmental authority. As between Borrower and the Issuing Bank,
Borrower assumes all risks of the acts and omissions of, or misuse of
the Letters of Credit issued by the Issuing Bank by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Bank shall not be responsible
for: (i) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any document submitted by any party in connection
with the application for and issuance of Letters of Credit, even if any
of the foregoing should in fact prove to be invalid, insufficient,
inaccurate, fraudulent or forged in any respect; (ii) the validity or
insufficiency of any instrument transferring or assigning or purporting
to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) the failure of the
beneficiary of any Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) the errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telecopy, telex or otherwise,
whether or not they be in cipher; (v) the errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under any Letter of
Credit or any proceeds thereof; (vii) the misapplication by the
beneficiary of any Letter of Credit of the proceeds of any drawing under
such Letter of Credit; and (viii) for any consequences arising from
causes beyond the control of the Issuing Bank. None of the above shall
affect, impair, or prevent the vesting of any of the Issuing Bank's
rights or powers hereunder. In determining whether to pay under any
Letter of Credit, the Issuing Bank shall be responsible only to
determine that the documents and certificates required to be delivered
under that Letter of Credit have been delivered and that the same comply
on their face with the requirements of that Letter of Credit. Borrower
shall have no obligation to indemnify the Issuing Bank in respect of any
liability incurred by the Issuing Bank to the extent arising out of
the gross negligence or willful misconduct of the Issuing Bank, as
determined by a court of competent jurisdiction, or out of the wrongful
dishonor by the Issuing Bank of a proper demand for payment made under
the Letters of Credit issued by it.
(h) AMENDMENTS. Borrower may request that the Issuing Bank enter into
one or more amendments of its Letter of Credit by delivering to Agent and the
Issuing Bank a Notice of Issuance of Letter of Credit specifying (i) the Issuing
Bank, (ii) the proposed
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date of the proposed amendment and (iii) the nature of the requested amendment.
The Issuing Bank shall be entitled to enter into amendments with respect to its
Letters of Credit, provided, that any amendment extending the expiry date or
increasing the stated amount of any Letter of Credit shall be permitted only if
the Issuing Bank would, at the time of the proposed be permitted to issue a new
Letter of Credit having such an expiry date or stated amount under this SECTION
2.23 on the date of the amendment.
ARTICLE III
CONDITIONS PRECEDENT
--------------------
3.1 INITIAL ADVANCE. Lenders shall not be required to make the Initial
Advance hereunder unless (a) Borrower has paid all fees due and payable to
Lenders and Agent hereunder, (b) the initial Borrowing Notice is delivered to
Agent on or before December 3, 1996, and (c) Borrower shall have furnished to
Agent, with sufficient copies for Lenders, the following:
(i) The duly executed originals of the Loan Documents, including the
Revolving Promissory Notes, payable to the order of each of Lenders,
and the Swingline Note, payable to the order of NCB;
(ii) A certificate of good standing for Borrower, certified by the
appropriate governmental officer, for the jurisdiction of Borrower's
formation;
(iii) Copies, certified by an officer of Borrower of each of Borrower's
formation documents (including by-laws or code of regulations),
together with all amendments thereto;
(iv) An incumbency certificate, executed by an officer of Borrower,
which shall identify by name and title and bear the signature of the
Persons authorized to sign the Loan Documents, and to make
borrowings hereunder on behalf of Borrower, upon which certificate
Agent and Lenders shall be entitled to rely until informed of any
change in writing by Borrower;
(v) Copies, certified by the Secretary or Assistant Secretary, of
Borrower's Board of Directors' resolutions, which shall provide
either a shareholder or Board of Directors resolution (and
resolutions of other bodies, if any are deemed necessary by counsel
for any Lender) authorizing, as the case may be, the Advances
provided for herein and the execution, delivery and performance of
the Loan Documents;
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(vi) A written opinion of Borrower's counsel, addressed to Lenders in
substantially the form of EXHIBIT I hereto;
(vii) A certificate, signed by an officer of Borrower, stating that on
the initial Borrowing Date no Default or Unmatured Default has
occurred and is continuing and that all representations and
warranties of Borrower are true and correct as of the initial
Borrowing Date;
(viii) The most recent financial statements of Borrower and a
certificate from an officer of Borrower stating that no material
adverse change in Borrower's financial condition has occurred since
September 30, 1996;
(ix) Written money transfer instructions, in substantially the form of
EXHIBIT J hereto, addressed to Agent and signed by an Authorized
Officer, together with such other related money transfer
authorizations as Agent may have reasonably requested;
(x) Such other documents as any Lender or its counsel may have
reasonably requested, the form and substance of which documents
shall be acceptable to the parties and their respective counsel.
3.2 EACH ADVANCE. Lenders shall not be required to make any Advance or
honor any Request for Issuance of such Letter of Credit, as the case may be,
unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default;
(ii) The representations and warranties contained in Article IV are true
and correct in all material respects as of such Borrowing Date,
except to the extent any such representation or warranty is stated
to relate solely to an earlier date, in which case such
representation or warranty shall be true and correct in all material
respects on and as of such earlier date;
(iii) All legal matters incident to the making of such Advance shall be
satisfactory to Lenders and their counsel; and
(iv) Borrower has provided to Lenders, Borrower's latest audited annual
financial statement and unaudited partial year financial statement
(all such
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financial statements to be prepared with the specified detail
required in SECTION 5.1 hereof).
Each Borrowing Notice with respect to each such Advance shall constitute
a representation and warranty by Borrower that the conditions contained in
SECTIONs 3.2(i) and (ii) have been satisfied.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents and warrants to Lenders that:
4.1 EXISTENCE. Borrower is a corporation duly organized and validly
existing under the laws of the State of New York, having its principal place of
business in Dayton, Ohio; and Borrower has requisite authority in all material
respects to conduct its business in each jurisdiction in which its business is
conducted.
4.2 AUTHORIZATION AND VALIDITY. Borrower has the power and authority and
legal right to execute and deliver the Loan Documents and to perform its
obligations thereunder. The execution and delivery by Borrower of the Loan
Documents and the performance of its obligations thereunder has been duly
authorized by proper proceedings, and the Loan Documents constitute legal, valid
and binding obligations of Borrower enforceable against Borrower in accordance
with their terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally.
4.3 NO CONFLICT, GOVERNMENT CONSENT. Neither the execution and delivery
by Borrower of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on Borrower or Borrower's articles of incorporation, by-laws, or the
provisions of any material indenture, material instrument or material agreement
to which Borrower is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien in, of or on the Property of Borrower
pursuant to the terms of any such indenture, instrument or agreement. No order,
consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize, or is
required in connection with the execution, delivery and performance of, or the
legality, validity, binding effect or enforceability of, any of the Loan
Documents.
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4.4 FINANCIAL STATEMENTS--MATERIAL ADVERSE CHANGE. The September 30,
1996 financial statements of Borrower and its Subsidiaries heretofore delivered
to Lenders were prepared in accordance with GAAP in effect on the date such
statements were prepared and fairly present the financial condition and
operations of Borrower and its Subsidiaries at such date and the consolidated
results of their operations for the period then ended. Since September 30, 1996
there has been no change in the business, Property, prospects, condition
(financial or otherwise) or results of operations of Borrower and its
Subsidiaries which could reasonably be expected to result in a Material Adverse
Change.
4.5 TAX. Borrower and its Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by Borrower or any of its Subsidiaries except (a) such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided, and (b) such returns and taxes, for which the failure to file or pay,
as the case may be, could reasonably be expected to result in a Material Adverse
Change. No tax liens have been filed and no claims are being asserted with
respect to any such taxes. The charges, accruals and reserves on the books of
Borrower and its Subsidiaries in respect of any taxes or other governmental
charges are adequate.
4.6 LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry: pending or, to
the knowledge of any of its officers, threatened against or affecting Borrower
or any of its Subsidiaries which could reasonably be expected to result in a
Material Adverse Change. Borrower and its Subsidiaries have no material
Contingent Obligations not provided for or disclosed in the financial statements
referred to in SECTION 5.1 (including reports of the type referred to in SECTION
5.1(ix)).
4.7 SUBSIDIARIES. SCHEDULE l hereto contains an accurate list of all of
the presently existing Subsidiaries of Borrower setting forth their respective
jurisdictions of incorporation or formation, as the case may be, and the
percentage of their respective capital stock or partnership interests, as the
case may be, owned by Borrower or other Subsidiaries. All of the issued and
outstanding shares of capital stock or partnership interests, as the case may
be, of such Subsidiaries have been duly authorized and issued and are fully paid
and nonassessable.
4.8 ERISA The Unfunded Liabilities of all Single Employer Plans do not
in the aggregate exceed $1,000,000. Neither Borrower nor any other member of the
Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans in excess of $250,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has
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occurred with respect to any Plan, neither Borrower nor any other member of the
Controlled Group has withdrawn from any Plan or initiated steps to do so, and no
steps have been taken to reorganize or terminate any Plan.
4.9 ACCURACY OF INFORMATION. All factual information heretofore or
contemporaneously furnished by or on behalf of Borrower to Agent or any Lender
for purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all other such factual information hereafter
furnished by or on behalf of Borrower to Agent or any Lender will be, true and
accurate in all material respects (taken as a whole) on the date as of which
such information is dated or certified and not incomplete by omitting to state
any material fact necessary to make such information (taken as a whole) not
misleading at such time.
4.10 REGULATION U. Borrower does not hold any margin stock (as defined
in Regulation U).
4.11 MATERIAL AGREEMENTS. Neither Borrower nor any of its Subsidiaries
is a party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to result in a Material
Adverse Change. Neither Borrower nor any of its Subsidiaries is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in (i) any agreement to which it is a party, which
default could reasonably be expected to result in a Material Adverse Change or
(ii) any agreement or instrument evidencing or governing Indebtedness.
4.12 COMPLIANCE WITH LAWS. Borrower and its Subsidiaries have complied
with all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof, having
jurisdiction over the conduct of their respective businesses, and ownership of
their respective Property, the non-compliance with which could reasonably be
expected to result in a Material Adverse Change. Neither Borrower nor any
Subsidiary has received any notice to the effect that its operations are not in
material compliance with any of the material requirements of applicable federal,
state and local environmental, health and safety statutes and regulations or the
subject of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release of any toxic or hazardous waste or
substance into the environment, which non-compliance or remedial action could
reasonably be expected to result in a Material Adverse Change.
4.13 OWNERSHIP OF PROPERTIES. Except as set forth on Schedule 2 hereto,
on the date of this Agreement, Borrower and its Subsidiaries will have good
title, free of all Liens other than those permitted by SECTION 5.14, to all of
the Property and assets reflected in the financial statements as owned by it.
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4.14 INVESTMENT COMPANY ACT. Neither Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
4.15 PUBLIC UTILITY HOLDING COMPANY ACT. Neither Borrower nor any of its
Subsidiaries is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
4.16 SOLVENCY. (i) Immediately after the Closing Date and immediately
following the making of each Loan and after giving effect to the application of
the proceeds of such Loans, (a) the fair value of the assets of Borrower
individually, and Borrower and its Subsidiaries on a consolidated basis, at a
fair valuation, will exceed the debts and liabilities, subordinated, contingent
or otherwise, of Borrower individually, or Borrower and its Subsidiaries on a
consolidated basis, as the case may be; (b) the present fair saleable value of
the Property of Borrower individually, and Borrower and its Subsidiaries on a
consolidated basis, will be greater than the amount that will be required to pay
the probable liability of Borrower individually, or Borrower and its
Subsidiaries on a consolidated basis on their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) Borrower individually, and Borrower and its
Subsidiaries on a consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) Borrower individually, and
Borrower and its Subsidiaries on a consolidated basis will not have unreasonably
small capital with which to conduct the businesses in which they are engaged as
such businesses are now conducted and are proposed to be conducted after the
date hereof.
(ii) Borrower does not intend to, or to permit any of its Subsidiaries
to, and does not believe that it or any of its Subsidiaries will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing of and amounts of cash to be received by Borrower or any such Subsidiary
and the timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
4.17 INSURANCE. Borrower and its Subsidiaries carry insurance on their
businesses with financially sound and reputable insurance companies, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses in localities where Borrower
and its Subsidiaries operate, including, without limitation:
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(i) Property and casualty insurance (including coverage for flood and
other water damage for any Property located within a 100-year flood
plain) in the amount of the replacement cost of the improvements at
the Property;
(ii) Comprehensive general liability insurance in the amount of
$20,000,000 per occurrence,
4.18 ENVIRONMENTAL MATTERS. Each of the following representations and
warranties is true and correct on and as of the Closing Date except to the
extent that the facts and circumstances giving rise to any such failure to be so
true and correct, in the aggregate, could not reasonably be expected to result
in a Material Adverse Change:
(a) To the best knowledge of Borrower, the Property of Borrower and its
Subsidiaries does not contain any Materials of Environmental
Concern in amounts or concentrations which constitute a violation
of Environmental Laws.
(b) To the best knowledge of Borrower, the Property of Borrower and its
Subsidiaries and all operations of such Property are in substantial
compliance, and have in the last two years been in substantial
compliance, with all applicable Environmental Laws, and there is no
material contamination at, under or about the Property of Borrower
and its Subsidiaries, or violation in any material respect of any
Environmental Law with respect to the Property of Borrower and its
Subsidiaries.
(c) Neither Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of their
Property, nor does Borrower or its Subsidiaries have knowledge or
reason to believe that any such notice will be received or is being
threatened.
(d) To the best knowledge of Borrower, Materials of Environmental
Concern have not been transported or disposed of from any Property
of Borrower and its Subsidiaries in violation of, or in a manner or
to a location which could reasonably give rise to liability under,
Environmental Laws, nor have any Materials of Environmental Concern
been generated, treated, stored or disposed of at, on or under any
of the Property of Borrower and its Subsidiaries in violation of,
or in a manner that could give rise to liability under, any
applicable Environmental Laws except to the extent that Borrower
adequately reserves against the cost of its potential liability in
its financial statements.
(e) No judicial proceedings or governmental or administrative action is
pending, or, to the knowledge of
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Borrower or its Subsidiaries, threatened, under any Environmental Law to which
Borrower or any of its Subsidiaries is or will be named as a party with respect
to any Property of Borrower and its Subsidiaries nor are there any consent
decrees or other decrees, consent orders, administrative order or other orders,
or other administrative of judicial requirements outstanding under any
Environmental Law with respect to any Property of Borrower and its Subsidiaries,
which, if resolved or interpreted, as the case may be, in an adverse way against
Borrower or a Subsidiary could reasonably be expected to result in a Material
Adverse Change.
(f) To the best knowledge of Borrower, there has been no release
or threat of release of Materials of Environmental Concern at or from any
Property of Borrower or its Subsidiaries, or arising from or related to the
operations of Borrower and its Subsidiaries in connection with any Property in
violation of or in amounts or in a manner that could give rise to liability
under Environmental Laws.
ARTICLE V
COVENANTS
---------
During the term of this Agreement, unless Lenders shall otherwise
consent in writing:
5.1 FINANCIAL REPORTING. Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with GAAP, and furnish to Lenders:
(i) As soon as available, but in any event not later than 60 days after
the close of each fiscal quarter, for Borrower and its Subsidiaries,
an unaudited consolidated balance sheet as of the close of each such
period and the related unaudited consolidated statements of income
and retained earnings for such period and the portion of the fiscal
year through the end of such period and of year to date cash flows
of Borrower and its Subsidiaries, all certified by an Authorized
Financial Officer; provided, however, that lieu thereof Borrower may
elect to furnish its quarterly report filed on Form 10-Q with the
Securities and Exchange Commission;
(ii) As soon as available, but in any event not later than 60 days after
the close of each fiscal quarter, for Borrower and its Subsidiaries,
related reports in form and substance reasonably satisfactory to
Lenders, all certified by Borrower's Authorized Financial Officer, a
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statement detailing Consolidated Outstanding Indebtedness;
(iii) As soon as available, but in any event not later than 90 days
after the close of each fiscal year, for Borrower and its
Subsidiaries, audited financial statements, including a consolidated
balance sheet 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 comparative form the figures
for the previous year, reported on without a "going concern" or like
qualification or exception, by Ernst & Young (or other independent
certified public accountants of nationally recognized standing);
provided, however, that lieu thereof Borrower may elect to furnish
its annual report filed on Form 10-K with the Securities and
Exchange Commission;
(iv) As soon as available, but in any event not later than 90 days after
the close of each fiscal year, for Borrower and its Subsidiaries,
the following related reports in form and substance satisfactory to
Lenders, all certified by the entity's Authorized Financial Officer:
a statement of Consolidated Outstanding Indebtedness;
(v) Together with the quarterly and annual financial statements required
hereunder, a compliance certificate in substantially the form of
EXHIBIT K hereto signed by an Authorized Officer showing the
calculations and computations necessary to determine compliance with
the financial covenants set forth in this Agreement and stating that
no Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status thereof;
(vi) As soon as possible and in any event within 10 days after Borrower
knows that any Reportable Event has occurred with respect to any
Plan, a statement, signed by an Authorized Financial Officer of
Borrower, describing said Reportable Event and the action which
Borrower proposes to take with respect thereto;
(vii) As soon as possible and in any event within 10 days after receipt
by Borrower, a copy of (a) any notice or claim to the effect that
Borrower or any of its Subsidiaries is or may be liable to any
Person as a result of the release by any Borrower, any of its
Subsidiaries, or any other Person of any toxic or
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hazardous waste or substance into the environment, which could reasonably be
expected to result in a Material Adverse Change and (b) any notice alleging any
violation of any federal, state or local environmental, health or safety law or
regulation by Borrower or any of its Subsidiaries, which, in either case, could
reasonably be expected to result in a Material Adverse Change;
(viii) Promptly upon the furnishing thereof to the shareholders of
Borrower, copies of all financial statements, reports and proxy
statements so furnished;
(ix) Within fifteen (15) business days after due to the SEC, copies of
all registration statements and annual, quarterly, monthly or other
reports and any other public information which Borrower or any of
its Subsidiaries files with the Securities Exchange Commission; and
(x) Such other information (including, without limitation, financial
statements for Borrower and nonfinancial information) as Agent may
from time to time reasonably request.
5.2 PROHIBITED USES OF PROCEEDS. Borrower will not nor will it permit
any Subsidiary to, use any of the proceeds of the Advances (i) to purchase or
carry any "margin stock" (as defined in Regulation U), or (ii) for any purpose
that shall be a violation of Regulation U, or regulations G, T and X of the
Board of Governors of the Federal Reserve System or for any other purpose
violative of any rule or regulation of such Board.
5.3 NOTICE OF DEFAULT. Borrower will give, and will cause each of its
Subsidiaries to give, notice in writing to Lenders of the occurrence of any
Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to result in a Material Adverse
Change, promptly upon (but in no event later then ten (10) Business Days after)
such occurrence or development becomes known to Borrower.
5.4 CONDUCT OF BUSINESS. Borrower will do, and will cause its
Subsidiaries to do, all things necessary to remain duly incorporated or duly
qualified, validly existing and in good standing as a corporation, general
partnership, limited partnership or limited liability company, as the case may
be, in its jurisdiction of incorporation/formation and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted and to carry on and conduct its business in substantially the same
manner as it is presently conducted and, specifically, neither Borrower nor its
Subsidiaries may undertake any significant business other than the manufacture
or distribution
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of industrial fluid control equipment, related accessories and other products
sold by Borrower as at September 30, 1996, and related services.
5.5 TAXES. Borrower will pay, and will cause its Subsidiaries to pay,
when due all taxes, assessments and governmental charges and levies upon it of
its income, profits or Property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside or those for which the failure to pay could reasonably be
expected to result in a Material Adverse Change.
5.6 INSURANCE. Borrower will, and will cause its Subsidiaries to,
maintain with financially sound and reputable insurance companies, insurance in
such amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses in localities where Borrower
and its Subsidiaries operate, including, without limitation:
(i) Property and casualty insurance (including coverage for flood and
other water damage for any Property located within a 100-year flood
plain) in the amount of the replacement cost of the improvements at
the Property; and
(ii) Comprehensive general liability insurance in the amount of
$20,000,000 per occurrence.
5.7 COMPLIANCE WITH LAWS. Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, the
non-compliance with which could reasonably be expected to result in a Material
Adverse Change.
5.8 MAINTENANCE OF PROPERTIES. Except as permitted pursuant to SECTION
5.11 and SECTION 5.12 of this Agreement, Borrower will, and will cause its
Subsidiaries to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, ordinary wear and tear
excepted, and make all necessary and proper repairs, renewals and replacements
so that its business carried on in connection therewith may be properly
conducted at all times in all material respects.
5.9 INSPECTION. Borrower will, and will cause its Subsidiaries to,
permit Agent and each Lender, by its respective representatives and agents, to
inspect any Property, corporate books and financial records of Borrower and each
of its Subsidiaries, to examine and make copies of the books of accounts and
other financial records of Borrower and each of its Subsidiaries, and to discuss
the affairs, finances and accounts of
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Borrower and each of its Subsidiaries, and to be advised as to the same by their
respective officers at such reasonable times and intervals as Agent may
designate (provided, however, that any inspection by a Lender shall be arranged
by Agent).
5.10 MAINTENANCE OF STATUS. Borrower shall remain a corporation validly
existing and in good standing in the state of its incorporation and Borrower
shall at all times remain a corporation listed and in good standing on NASDAQ or
other national securities exchange. Borrower shall not permit a Change in
Control of Borrower which could reasonably be expected to result in a Material
Adverse Change.
5.11 MERGER: SALE OF ASSETS. Borrower will not, nor will it permit any
of its Subsidiaries to, enter into any merger, consolidation, reorganization or
liquidation, or into any agreement to transfer or otherwise dispose of any of
its Property or business which, in any transaction or series of related
transactions, would result in a transfer of a Substantial Portion of its
Property or business, unless approved in advance by Lenders.
5.12 SALE AND LEASEBACK. Borrower will not, nor will it permit its
Subsidiaries to, sell or transfer all or a Substantial Portion of its Property
in order to concurrently or subsequently lease as lessee such or similar
Properties.
5.13 ACQUISITIONS AND INVESTMENTS. Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Investments, or commitments
therefor, or create any Subsidiary or become or remain a partner in any
partnership or joint venture, or make any Acquisition of any Person, except:
(i) Cash Equivalents;
(ii) existing Investments in Subsidiaries and joint ventures, and other
Investments in existence on the date hereof and described in
SCHEDULE 1 hereto;
(iii) acquisitions permitted pursuant to SECTION 5.23; and
(iv) investments and loans permitted under SECTION 5.15.
5.14 LIENS. Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, or suffer to exist any Lien in, of or on any
Property of it or any of its Subsidiaries, except:
(i) with respect to Property consisting of real property under the laws
of the state where such Property is located, any tax lien, or any
lien securing workers' compensation or unemployment insurance
obligations, or any mechanic's, carrier's or landlord's lien, or any
lien arising under
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ERISA, or any security interest arising under article four (bank
deposits and collections) or five (letters or credit) of the Uniform
Commercial Code, or any security interest or other lien similar to
the foregoing, EXCEPT that this clause (i) shall apply only to (A)
the extent that the aggregate of such liens on a consolidated basis
does not exceed $1,000,000, and (B) security interests and other
liens arising by operation of law (whether statutory or common law)
and in the ordinary course of business and shall not apply to any
security interest or other lien that secures any Indebtedness for
Borrowed Money or any Contingent Obligation or any obligation that
is in material default in any manner (other than any default
contested in good faith by timely and appropriate proceedings
effective to stay enforcement of the security interest or other lien
in question);
(ii) zoning or deed restrictions, public utility easements, minor title
irregularities and similar matters having no adverse effect as a
practical matter on the ownership or use of any of the properties or
interfere with use thereof in the business of Borrower or its
Subsidiaries;
(iii) with respect to Property consisting of real property under the
laws of the state where such Property is located, any lien securing
or given in lieu of surety, stay, appeal or performance bonds, or
securing performance of contracts or bids (other than contracts for
the payment of money borrowed), or deposits required by law or
governmental regulations or by any court order, decree, judgment or
rule or as a condition to the transaction of business or the
exercise of any right, privilege or license, EXCEPT that this clause
(iii) shall not apply to (A) the extent that the aggregate of such
liens on a consolidated basis exceeds $1,000,000, and (B) any lien
or deposit securing any obligation that is in material default in
any manner (other than any default contested in good faith by timely
and appropriate proceedings effective to stay enforcement of the
security interest or than lien in question);
(iv) any mortgage, security, interest or other lien (each a "PURCHASE
MONEY SECURITY INTEREST") which is created or assumed in purchasing,
constructing or improving any real property or equipment to which
any property is subject when purchased, PROVIDED, that (A) the
Purchase Money Security
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Interest shall be confined to the aforesaid property, (B) the
indebtedness secured thereby does not exceed the total cost of the
purchase, construction or improvement and (C) any such indebtedness, if
repaid in whole or in part, cannot be reborrowed; (v) any financing
statement perfecting a security interest that would be permissible under
this subsection; and
(vi) liens existing on the date hereof and described on SCHEDULE 2
hereof.
Liens permitted pursuant to this SECTION 5.14 shall be deemed to be "PERMITTED
LIENS".
5.15 AFFILIATES. Except as permitted pursuant to SECTION 5.2, SECTION
5.11 or SECTION 5.12 Borrower will not, nor will it permit any of its
Subsidiaries to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant tc the reasonable requirements of Borrower or such Subsidiary's
business and upon fair and reasonable terms no less favorable to that Borrower
or such Subsidiary than that Borrower or such Subsidiary would obtain in a
comparable arm's-length transaction.
5.16 RESERVED.
5.17 LITIGATION. Borrower shall furnish or cause to be furnished to
Agent, promptly (and, in any event, within five Business Days) after any
Borrower or its Subsidiaries shall have first become aware of the same, a
written notice setting forth full particulars of and what action Borrower or its
Subsidiaries is taking or proposes to take with respect to (a) any final
judgment in an amount exceeding One Million Dollars ($1,000,000) rendered
against Borrower or any Affiliate of Borrower; (b) the commencement or
institution of any legal or administrative action, suit, proceeding or
investigation by or against Borrower in or before any court, governmental or
regulatory body, agency, commission, or official, board of arbitration or
arbitrator, the outcome of which could reasonably be expected to result in a
Material Adverse Change; or (c) the occurrence of any material adverse
development not previously disclosed by Borrower to Agent in writing, in any
such action, suit, proceeding or investigation.
5.18 FURTHER ASSURANCES. Borrower will execute, acknowledge and deliver,
or cause to be executed, acknowledged and delivered, any and all such further
assurances and other agreements or instruments, and take or cause to be taken
all such other
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action, as shall be reasonably requested by Agent from time to time in order to
give full force and effect to the Loan Documents.
5.19 CONSOLIDATED TANGIBLE NET WORTH. Borrower and its Subsidiaries
shall have a Consolidated Tangible Net Worth of not less than $100,000,000 at
Closing. Thereafter, Borrower and its Subsidiaries shall maintain, at all times,
a Consolidated Tangible Net Worth equal to $100,000,000 plus a cumulative
amount, adjusted at March 31 of each year prior to the Facility Termination
Date, beginning March 31, 1997, equal to 50% of positive Consolidated Net
Income, if any, for the annual period ended the previous December 31; provided,
however, that no adjustments shall be made as a consequence of any loss.
5.20 RATIO OF DEBT TO CASH FLOW. Borrower and its Subsidiaries shall
maintain a ratio of Consolidated Outstanding Indebtedness to EBITDA of no
greater than 3.0 to 1.0 on the Closing Date, and on the last calendar day of
each fiscal quarter thereafter calculated for the previous four quarters, until
the Facility Termination Date.
5.21 RATIO OF EBIT TO INTEREST. Borrower and its Subsidiaries shall
maintain a ratio of EBIT to Consolidated Interest Expense of not less than 3.0
to 1.0 on the Closing Date, and on the last calendar day of each fiscal quarter
thereafter calculated for the previous four quarters, until the Facility
Termination Date.
5.22 DEBT TO CAPITALIZATION RATIO. Borrower and its Subsidiaries shall
maintain a ratio of Indebtedness for Borrowed Money to Capitalization of no
greater than .6 to 1.0 on the Closing Date, and on the last calendar day of each
fiscal quarter thereafter, until the Facility Termination Date.
5.23 ACQUISITION LIMIT. Neither Borrower nor any of its Subsidiaries
shall fund the Acquisitions of Persons, or offer for, any Capital Stock of
Persons, to the extent that, after giving effect to such Acquisition, the ratio
of Indebtedness for Borrowed Money to Capitalization would be greater than .5 to
1.0.
5.24 ENVIRONMENTAL MATTERS. Borrower and its Subsidiaries shall:
(a) 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 (i) the same are being
contested in good faith by appropriate proceedings and the pendency of such
proceedings could not be reasonably expected to result in a Material
Adverse Change, or (ii) that Borrower has determined in good faith that
contesting the same is not in the best
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interests of Borrower and its Subsidiaries and the failure to contest the
same could not be reasonably expected to result in a Material Adverse
Change.
(b) Defend, indemnify and hold harmless Agent and each Lender, and their
respective employees, agents, officers and directors from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs
and expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under any Environmental Laws applicable to
the operations of Borrower, its Subsidiaries or its Property, or any
orders, requirements or demands of Governmental Authorities related
thereto, including, without limitation, attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise
out of the gross negligence or willful misconduct of the party seeking
indemnification therefor. This indemnity shall continue in full force and
effect regardless of the termination of this Agreement.
ARTICLE VI
DEFAULTS
--------
The occurrence of any one or more of the following events shall
constitute a Default:
6.1 NONPAYMENT OF PRINCIPAL. Nonpayment of any principal payment on any
Note when due.
6.2 NONPAYMENT OF OTHER OBLIGATIONS. Nonpayment of interest upon any
Note or of any Facility Fee or other payment Obligations under any of the Loan
Documents within three (3) Business Days after the same becomes due.
6.3 CERTAIN BREACHES. The breach of any of the terms or provisions of
SECTIONS 5.2, 5.6, 5.7 and 5.9 through 5.28.
6.4 REPRESENTATIONS AND WARRANTIES. Any representation or warranty made
or deemed made by or on behalf of Borrower or any of its Subsidiaries to Lenders
or Agent under or in connection with this Agreement, any Loan, or any
certificate or information delivered in connection with this Agreement or any
other Loan Document shall be materially false on the date as of which made.
6.5 OTHER BREACHES. The breach by any Borrower (other than a breach
which constitutes a Default under any other section of this ARTICLE VI) which
constitutes a Default under any of the terms or provisions of this Agreement
which is not remedied within fifteen (15) days after written notice from Agent
or any Lender.
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6.6 DEFAULTS ON INDEBTEDNESS. Failure of Borrower or any of its
Subsidiaries to pay any of its respective Indebtedness when due; or the default
by Borrower or any of its Subsidiaries in the performance of any term, provision
or condition contained in any agreement, or any other event shall occur or
condition exist which causes or permits any Indebtedness of Borrower or any of
its Subsidiaries to be due and payable or required to be prepaid (other than by
a regularly scheduled payment) prior to the stated maturity thereof; provided,
however, that it shall not be a default under this SECTION 6.6 if Borrower shall
be in default with respect to Indebtedness in an aggregate amount not exceeding
One Million Dollars ($1,000,000).
6.7 BANKRUPTCY. ETC. Borrower, or any Subsidiaries owning or
controlling, individually or in the aggregate, a Substantial Portion of the
consolidated assets of Borrower and its Subsidiaries, shall (i) have an order
for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (ii) make an assignment for the benefit of creditors,
(iii) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for it or
any of its Property, (iv) institute any proceeding for an order for relief under
the Federal bankruptcy laws as now or hereafter in effect or to adjudicate it as
a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
SECTION 6.7, (vi) fail to contest in good faith any appointment or proceeding
described in SECTION 6.8 or (vii) not pay, or admit in writing its inability to
pay, its debts generally as they become due.
6.8 APPOINTMENT OF RECEIVER. A receiver, trustee, examiner, liquidator
or similar official shall be appointed for Borrower or any of its Subsidiaries
or any of their respective Property, or a proceeding described in SECTION
6.7(iv) shall be instituted against Borrower or any Subsidiary and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of thirty (30) consecutive days.
6.9 CONDEMNATION. Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of (each a
"CONDEMNATION"), all or any portion of the Property of Borrower and its
Subsidiaries which, when taken together with all other Property of such Person
so condemned, seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such Condemnation occurs,
could reasonably be expected to result in a Material Adverse Change on Borrower
or Subsidiary.
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6.10 JUDGMENTS. Borrower or any of its Subsidiaries shall fail within
sixty (60) days to pay, bond or otherwise discharge any judgments or orders for
the payment of money in an amount which, when added to all other judgments or
orders outstanding against Borrower and any of its Subsidiaries would exceed
$1,000,000 in the aggregate, which have not been stayed on appeal or otherwise
appropriately contested in good faith.
6.11 ERISA WITHDRAWAL. Borrower or any other member of the Controlled
Group shall have been notified by the sponsor of a Multiemployer Plan that it
has incurred withdrawal liability to such Multiemployer Plan in an amount which,
when aggregated with all other amounts required to be paid to Multiemployer
Plans by Borrower or any other member of the Controlled Group as withdrawal
liability (determined as of the date of such notification), exceeds $250,000 or
requires payments exceeding $100,000 per annum.
6.12 ERISA REORGANIZATION, Borrower or any other member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer Plan
that such Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of Borrower and the other members
of the Controlled Group (taken as a whole) to all Multiemployer Plans which are
then in reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the respective plan
years of each such Multiemployer Plan immediately preceding the plan year in
which the reorganization or termination occurs by an amount exceeding $250,000.
6.13 OTHER DEFAULTS. The occurrence of any default under any Loan
Document or the breach of any of the terms or provisions of any Loan Document,
which default or breach continues beyond any period of grace therein provided.
ARTICLE VII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
7.1 ACCELERATION. If any Default described in SECTION 6.7 or 6.8 occurs
with respect to Borrower, the obligations of Lenders to make Loans hereunder
shall automatically terminate and the Obligations shall immediately become due
and payable without any election or action on the part of Agent or any Lender.
If any other Default occurs, Agent may, with the concurrence of the Required
Lenders, terminate or suspend the obligations of Lenders to make Loans hereunder
and to issue (or to participate as hereinabove provided in the issuance of) any
Letters of Credit hereunder, or declare the Obligations to be due and payable or
both, whereupon the Obligations shall become immediately
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due and payable, without presentment, demand, protest or notice of any kind, all
of which Borrower hereby expressly waives.
If, within ten (10) days after acceleration of the maturity of the
Obligations or termination of the obligations of Lenders to make Loans hereunder
as a result of any Default (other than any Default as described in SECTION 6.7
or 6.8 with respect to any Borrower) and before any judgment or decree for the
payment of the Obligations due shall have been obtained or entered, each Lender
(in their sole discretion) shall so direct, Agent shall, by notice to Borrower,
rescind and annul such acceleration and/or termination.
7.2 AMENDMENTS & WAIVERS. Subject to the provisions of this Article VII,
the Required Lenders (or Agent with the consent in writing of Lenders) and
Borrower may enter into agreements and waivers supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of Lenders or Borrower hereunder or waiving any Default
hereunder; provided, however, that no such supplemental agreement or waiver
shall, without the consent of each Lender affected thereby:
(i) Extend the Facility Termination Date or forgive all or any portion
of the principal amount of any Loan or accrued interest thereon or
the Facility Fee, reduce the Applicable Margins or the underlying
interest rate options or extend the time of payment of such interest
or Facility Fee.
(ii) Increase the amount of the Commitment of any Lender hereunder.
(iii) Permit Borrower to assign its rights under this Agreement.
(iv) Amend this SECTION 7.2.
No amendment of any provision of this Agreement relating to Agent shall be
effective without the written consent of Agent.
7.3 PRESERVATION OF RIGHTS. No delay or omission of Lenders or Agent to
exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
Borrower to satisfy the conditions precedent to such Loan shall not constitute
any waiver or acquiescence. Any single or partial exercise of any such right
shall not preclude other or further exercise thereof or the exercise of any
other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by Lenders required pursuant to SECTION 7.2, and then only
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to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to Agent and Lenders jointly until the Obligations have been paid in
full.
ARTICLE VIII
GENERAL PROVISIONS
------------------
8.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties of
Borrower contained in this Agreement shall survive delivery of the Notes and the
making of the Loans herein contemplated.
8.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
8.3 TAX. Any taxes (excluding federal income taxes on the overall net
income of any Lender and taxes resulting from a Lenders failure to comply with
SECTION 2.22) or other similar assessments or charges made by any governmental
or revenue authority in respect of the Loan Documents shall be paid by Borrower,
together with interest and penalties, if any.
8.4 HEADING. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
8.5 ENTIRE AGREEMENT. The Loan Documents embody the entire agreement and
understanding among Borrower, Agent and Lenders and supersede all prior
commitments, agreements and understandings among Borrower, Agent and Lenders
relating to the subject matter thereof.
8.6 SEVERAL OBLIGATIONS BENEFITS OF THIS AGREEMENT. The respective
obligations of Lenders hereunder are several and not joint and no Lender shall
be the partner or agent of any other (except to the extent to which Agent is
authorized to act as such). The failure of any Lender to perform any of its
obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns.
8.7 EXPENSES; INDEMNIFICATION. (a) Borrower shall reimburse Agent for
any costs, internal charges and out-of-pocket expenses (including, without
limitation, all reasonable expenses of Agent's attorneys) paid or incurred by
Agent in connection with the
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amendment, modification, and administration of the Loan Documents. Borrower also
agrees to reimburse Agent and Lenders for any reasonable costs, internal charges
and out-of-pocket expenses (including, without limitation, all fees and
reasonable expenses for attorneys for Agent and Lenders) paid or incurred by
Agent or any Lender in connection with the collection and enforcement of the
Loan Documents (including, without limitation, any workout).
(b) Borrower further agrees to indemnify Agent and each Lender, its
directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and expenses, including, without limitation,
all expenses of litigation or preparation therefor whether or not Agent or any
Lender is a party thereto (collectively, the "Liabilities"), which any of them
may pay or incur arising out of or relating to this Agreement, the other Loan
Documents, any Property, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of any Loan
hereunder except to the extent that such Liabilities arise out of the gross
negligence or wilful misconduct of the party seeking indemnification. The
obligations of Borrower under this SECTION 8.7 shall survive the termination of
this Agreement.
8.8 NUMBERS. All statements, notices, closing documents, and requests
hereunder shall be furnished to Agent with sufficient counterparts so that Agent
may furnish one to each of Lenders.
8.9 ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP, except that any
calculation or determination which is to be made on a consolidated basis shall
be made for Borrower and all its Subsidiaries, including those Subsidiaries, if
any, which are unconsolidated on Borrower's official financial statements.
8.10 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
8.11 NONLIABILITY OF LENDERS. The relationship between Borrower, on the
one hand, and Lenders and Agent, on the other, shall be solely that of borrower
and lender. Neither Agent nor any Lender shall have any fiduciary
responsibilities to Borrower. Neither Agent nor any Lender undertakes any
responsibility to Borrower to review or inform Borrower of any matter in
connection with any phase of any Borrower's business or operations.
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8.12 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF OHIO, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
8.13 CONSENT TO JURISDICTION. BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR OHIO STATE COURT
SITTING IN CUYAHOGA COUNTY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND BORROWER HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE
AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT
OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL IMPAIR THE
RIGHT OF AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN THE COURTS
OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY BORROWER AGAINST AGENT OR
ANY LENDER OR ANY AFFILIATE OF AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CUYAHOGA COUNTY, OHIO.
8.14 WAIVER OF JURY TRIAL. BORROWER, AGENT AND EACH LENDER HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.
ARTICLE IX
AGENT
-----
9.1 APPOINTMENT. National City Bank is hereby appointed Agent hereunder
and under each other Loan Document, and each of Lenders irrevocably authorizes
Agent to act as the agent of such Lender. Agent agrees to act as such upon the
express conditions contained in this Article IX. Agent shall not have a
fiduciary relationship in respect of Borrower or any Lender by reason of this
Agreement.
9.2 POWERS. Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to Agent by the terms of each thereof,
together with such powers as are reasonably incidental thereto. Agent shall have
no implied duties to Lenders, or any obligation to Lenders to take any action
thereunder except any action specifically provided by the Loan Documents to be
taken by Agent.
9.3 GENERAL IMMUNITY. Neither Agent nor any of its directors, officers,
agents or employees shall be liable to
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Borrower, Lenders or any Lender for any action taken or omitted to be taken by
it or them hereunder or under any other Loan Document or in connection herewith
or therewith except for its or their own gross negligence or willful misconduct.
9.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither Agent nor any of
its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in ARTICLE IV, except
receipt of items required to be delivered to Agent; (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith; or (v) the value, sufficiency,
creation, perfection or priority of any interest in any collateral security.
Agent shall have no duty to disclose to Lenders information that is not required
to be furnished by Borrower to Agent at such time, but is voluntarily furnished
by Borrower to Agent (either in its capacity as Agent or in its individual
capacity).
9.5 ACTION ON INSTRUCTIONS OF LENDERS. Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder and under any other
Loan Document in accordance with written instructions signed by the Required
Lenders, and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of Lenders and on all holders of Notes. Agent
shall be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction by Lenders pro rata against any and all liability, cost and expense
that it may incur by reason of taking or continuing to take any such action.
9.6 EMPLOYMENT OF AGENTS AND COUNSEL. Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to Lenders,
except as to money or securities received by it or its authorized agents, for
the default or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. Agent shall be entitled to advice of counsel concerning
all matters pertaining to the agency hereby created and its duties hereunder and
under any other Loan Document.
9.7 RELIANCE ON DOCUMENTS; COUNSEL. Agent shall be entitled to rely upon
any Note, notice, consent, certificate, affidavit, letter, telegram, statement,
paper or document believed by it to be genuine and correct and to have been
signed or sent by the proper person or persons, and, in respect to legal
matters, upon the opinion of counsel selected by Agent, which counsel may be
employees of Agent.
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9.8 AGENT'S REIMBURSEMENT AND INDEMNIFICATION. Lenders agree to
reimburse and indemnify Agent ratably in proportion to their respective
Commitments (i) for any amounts not reimbursed by Borrower for which Agent is
entitled to reimbursement by Borrower under the Loan Documents, (ii) for any
other expenses incurred by Agent on behalf of Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against Agent in any way relating to or arising out of the Loan Documents or any
other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any
such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of Agent. The obligations of Lenders under this SECTION 9.8 shall
survive payment of the Obligations and termination of this Agreement.
9.9 RIGHTS AS A LENDER. In the event Agent is a Lender, Agent shall have
the same rights and powers hereunder and under any other Loan Document as any
Lender and may exercise the same as though it were not Agent, and the term
"Lender" or "Lenders" shall, at any time when Agent is a Lender, unless the
context otherwise indicates, include Agent in its individual capacity. Agent may
accept deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with Borrower or any of its Subsidiaries
in which Borrower or such Subsidiary is not restricted hereby from engaging with
any other Person. Agent, in its individual capacity, is not obligated to remain
a Lender.
9.10 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon Agent or any other Lender and based on
the financial statements prepared by Borrower and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon 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 decisions in taking or
not taking action under this Agreement and the other Loan Documents.
9.11 SUCCESSOR AGENT. Agent may resign at any time by giving written
notice thereof to Lenders and Borrower, such resignation to be effective upon
the appointment of a successor Agent or, if no successor Agent has been
appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. Upon any such resignation, Lenders shall have the right to
appoint, on behalf of Borrower and Lenders, a successor Agent. If no
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successor Agent shall have been so appointed by Lenders within thirty days after
the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of Borrower and Lenders, a successor
Agent. If Agent has resigned and no successor Agent has been appointed, Lenders
may perform all the duties of Agent hereunder and Borrower shall make all
payments in respect of the Obligations to the applicable Lender and for all
other purposes shall deal directly with Lenders. No successor Agent shall be
deemed to be appointed hereunder until such successor Agent has accepted the
appointment. Any such successor Agent shall be a commercial bank having capital
and retained earnings of at least $50,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the resigning Agent. Upon the effectiveness of the resignation of
Agent, the resigning Agent shall be discharged from its duties and obligations
hereunder and under the Loan Documents. After the effectiveness of the
resignation of an Agent, the provisions of this ARTICLE X shall continue in
effect for the benefit of such Agent in respect of any actions taken or omitted
to be taken by it while it was acting as Agent hereunder and under the other
Loan Documents.
ARTICLE X
SETOFF; RATABLE PAYMENTS
------------------------
10.1 SETOFF. In addition to, and without limitation of, any rights
of Lenders under applicable law, if Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all
account balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender to
or for the credit or account of Borrower may be offset and applied toward the
payment of the Obligations owing to such Lender, whether or not the Obligations,
or any part hereof, shall then be due.
10.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans in a greater proportion than that received
by any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of Loans. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their Loans. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
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ARTICLE XI
BENEFIT OF AGREEMENT; ASSIGNMENT; PARTICIPATION
-----------------------------------------------
11.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of Borrower and Lenders
and their respective successors and assigns, except that (i) Borrower shall not
have the right to assign their rights or obligations under the Loan Documents
and (ii) any assignment by any Lender must be made in compliance with SECTION
11.3. Notwithstanding clause (ii) of this SECTION 11.1, any Lender may at any
time, without the consent of Borrower or Agent, assign all or any portion of its
rights under this Agreement and its Notes to a Federal Reserve Bank; provided,
however, that no such assignment shall release the transferor Lender from its
obligations hereunder. Agent may treat the payee of any Note as the owner
thereof for all purposes hereof unless and until such payee complies with
SECTION 11.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with Agent. Any assignee or
transferee of a Note agrees by acceptance thereof to be bound by all the terms
and provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
11.2 PARTICIPATION.
11.2.1 PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks, financial institutions, pension funds, or any other funds
or entities participating interests in any Loan owing to such Lender, any Note
held by such Lender, any Commitment of such Lender or any other interest of such
Lender under the Loan Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under the
Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the holder of any such Note for all purposes under the
Loan Documents, all amounts payable by Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests, and
Borrower and Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents.
11.2.2 VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant,
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any amendment, modification or waiver of any provision of the Loan Documents
other than any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives principal,
interest or fees or reduces the interest rate or fees payable with respect to
any such Loan or Commitment or postpones any date fixed for any regularly
scheduled payment of principal of, or interest or fees on, any such Loan or
Commitment.
11.2.3 BENEFIT OF SETOFF. Borrower agrees that each Participant shall be
deemed to have the right of Setoff provided in SECTION 10.1 in respect of its
participating interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, provided that each Lender shall retain the
right of setoff provided in SECTION 10.1 with respect to the amount of
participating interests sold to each Participant. Lenders agree to share with
each Participant, and each Participant, by exercising the right of setoff
provided in SECTION 10.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with SECTION 10.2 as if each Participant were a Lender.
11.3 ASSIGNMENTS.
11.3.1 PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one or
more banks, financial institutions, pension funds, or any other funds or
entities ("PURCHASERS") all or any portion of its rights and obligations under
the Loan Documents. Such assignment shall be substantially in the form of
EXHIBIT L hereto or in such other form as may be agreed to by the parties
thereto. The consent of Agent shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or an Affiliate
thereof. Such consent shall not be unreasonably withheld.
11.3.2 PRIOR CONSENT. Notwithstanding SECTION 11.3.1, Lenders may not
assign rights and obligations under the Loan Documents to a Purchaser without
the prior written consent of Borrower if any of the following would occur: (i)
an assignment of less than five percent (5%) of the Aggregate Commitment as of
the date of such assignment, (ii) the proposed purchaser is a financial
institution not organized under the laws of a state or of the United States
(unless such institution is an affiliate of the transferring Lender), or (iii)
such transfer would result in Borrower incurring increased payments pursuant to
SECTION 2.12; provided, however, that, if at the time of the proposed assignment
Borrower is the subject of a proceeding referenced in SECTION
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74
6.7 or 6.8, or any Default shall have occurred, Borrower consent shall not be
required and any Lender may consummate an assignment notwithstanding the
requirements of clauses (i), (ii) or (iii) of this SECTION 11.3.2.
11.3.3 EFFECTIVE DATE. Upon (i) delivery to Agent of a notice of
assignment, substantially in the form attached as EXHIBIT l to EXHIBIT L hereto
(a "NOTICE OF ASSIGNMENT"), together with any consents required by SECTION
11.3.2, and (ii) payment of a $2,500 fee to Agent for processing such assignment
(PROVIDED, HOWEVER, that if such assignment shall be made to an Affiliate of
Lender, then Lender shall not be required to pay such fee to Agent), such
assignment shall become effective on the effective date specified in such Notice
of Assignment. The Notice of Assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase
of the Commitment and Loans under the applicable assignment agreement are "plan
assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets" under ERISA.
On and after the effective date of such assignment, such Purchaser shall for
all purposes be a Lender party to this Agreement and any other Loan Document
executed by Lenders and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original party
hereto, and no further consent or action by Borrower, Lenders or Agent shall be
required to release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Loans assigned to such Purchaser. Upon the consummation
of any assignment to a Purchaser pursuant to this SECTION 11.3.2, the transferor
Lender, Agent and Borrower shall make appropriate arrangements so that
replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their Commitment, as adjusted pursuant to such
assignment.
11.4 DISSEMINATION OF INFORMATION. Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of Borrower and its Subsidiaries.
11.5 TAX TREATMENT. If any interest in any Loan Document is transferred
to any Transferee which is organized under the laws ; of any jurisdiction
other-than the United States or any State thereof, the transferor Lender shall
cause such Transferee, concurrently with the effectiveness of such transfer, to
comply with the provisions of SECTION 2.22.
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ARTICLE XII
NOTICES; NATURE OF OBLIGATIONS
------------------------------
12.1 GIVING NOTICE. Except as otherwise permitted by SECTION 2.18 with
respect to borrowing notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the log of telexes).
12.2 CHANGE OF ADDRESS. Borrower, Agent and any Lender may change the
address for service of notice upon it by a notice in writing to the other
parties hereto.
12.3 NATURE OF BORROWER'S OBLIGATIONS AND MODIFICATION THEREOF. The
obligations of Borrower under this Agreement are absolute and unconditional and
shall be irrevocable. Borrower agrees that its obligations hereunder shall not
be impaired, modified, changed, released or limited in any manner whatsoever by
any impairment, modification, change, release or limitation of the liability of
Borrower by any bankruptcy case or by any stay or other legal impediment in or
arising from the operation of any present or future provision of the Bankruptcy
Code or other similar state or federal statute, or from the decision of any
court. Borrower agrees that Lenders may, in their discretion, (i) release,
discharge, compromise or settle with, or grant indulgences to, refuse to proceed
or take action against, Borrower with respect to its respective obligations
under this Agreement, (ii) release, surrender, modify, impair, exchange,
substitute or extend the period or duration of time for the performance,
discharge or payment of, refuse to enforce, compromise or settle its respective
lien, security interest, pledge or assignment against, any and all deposits or
other property or assets on which Lenders may have a lien, security interest,
pledge or assignment or which secures any of the obligations of Borrower under
this Agreement, and (iii) amend, modify, alter or restate, in accordance with
their respective terms, this Agreement or any of the Loan Documents or
otherwise, accept deposits or other property from, or enter into transactions of
any kind or nature with, Borrower. Borrower confirms that it will be directly or
indirectly benefitted by the Loan and any and all other Advances under this
Agreement or any of the Loan Documents.
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ARTICLE XIII
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by Borrower, each
Subsidiary of Borrower, Agent and Lenders and each party has notified Agent by
telex or telephone, that it has taken such action.
IN WITNESS WHEREOF, Borrower, Subsidiaries, Lenders and Agent have
executed this Agreement as of the date first above written.
BORROWER:
THE DURIRON COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Print Name: Xxxxxxx X. Xxxxx
----------------
Title: Treasurer
---------
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000 0000
Attention: Xxxxxxx X. Xxxxx
LENDERS:
Commitments
$35,000,000 NATIONAL CITY BANK,
Individually and as
Agent
By:
----------------------------
Print Name: Xxxxxxx X. XxXxxx
--------------------
Title: Vice President
Via Hand Delivery
National City Bank
-71-
77
ARTICLE XIII
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by Borrower, each
Subsidiary of Borrower, Agent and Lenders and each party has notified Agent by
telex or telephone, that it has taken such action.
IN WITNESS WHEREOF, Borrower, Subsidiaries, Lenders and Agent have
executed this Agreement as of the date first above written.
BORROWER:
THE DURIRON COMPANY, INC.
By:
------------------------
Print Name: Xxxxxxx X. Xxxxx
------------------------
Title: Treasurer
---------------
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000 0000
Attention: Xxxxxxx X. Xxxxx
LENDERS:
Commitments
$35,000,000 NATIONAL CITY BANK,
Individually and as
Agent
By: Xxxxxxx X. XxXxxx
-----------------------------
Print Name Xxxxxxx X. XxXxxx
---------------------
Title: Vice President
Via Hand Delivery
National City Bank
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National City Center, 10th
Floor
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Via U.S. Mail
National City Bank
X.X. Xxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. XxXxxx
Vice President
-72-
79
$20,000,000 THE FIFTH THIRD BANK
By: /s/ D. Xxxx Xxxxx
----------------------------
Print Name: D. Xxxx Xxxxx
--------------------
Title: Vice President
The Fifth Third Bank, N.A.
One Dayton Centre
Xxx Xxxxx Xxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: D. Xxxx Xxxxx
$15,000,000 KEYBANK NATIONAL ASSOCIATION
By:
----------------------------
Print Name: Xxxxx X. Xxxxxxxx
--------------------
Title:
------------------------
KeyBank National Association
00 Xxxxx Xxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
$15,000,000 BANK ONE, DAYTON, N.A.
By:
----------------------------
Print Name: R. Xxxxxxx Xxxxxxxx
-------------------
Title:
Bank One, Dayton, N.A.
Kettering Tower
X.X. Xxx 0000
Xxxxxx, Xxxx 00000-0000
Attention: R. Xxxxxxx Xxxxxxxx
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$20,000,000 THE FIFTH THIRD BANK
By:
-----------------------------
Print Name: D. Xxxx Xxxxx
---------------------
Title: Vice President
The Fifth Third Bank, N.A.
One Dayton Centre
Xxx Xxxxx Xxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: D. Xxxx Xxxxx
$15,000,000 KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Print Name: Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx
Title: VICE PRESIDENT
------------------------
KeyBank National Association
00 Xxxxx Xxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
$15,000,000 BANK ONE, DAYTON, N.A.
By:
-----------------------------
Print Name: R. Xxxxxxx Xxxxxxxx
Title:
Bank One, Dayton, N.A.
Kettering Tower
X.X. Xxx 0000
Xxxxxx, Xxxx 00000-0000
Attention: R. Xxxxxxx Xxxxxxxx
-73-
81
$20,000,000 THE FIFTH THIRD BANK
By:
-----------------------------
Print Name: D. Xxxx Xxxxx
---------------------
Title: Vice President
The Fifth Third Bank, N.A.
One Dayton Centre
Xxx Xxxxx Xxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: D. Xxxx Xxxxx
$15,000,000 KEYBANK NATIONAL ASSOCIATION
By:
------------------------------
Print Name: Xxxxx X. Xxxxxxxx
---------------------
Title:
-------------------------
KeyBank National Association
00 Xxxxx Xxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
$15,000,000 BANK ONE, DAYTON, N.A.
By: /s/ R. Xxxxxxx Xxxxxxxx
-----------------------------
Print Name R. Xxxxxxx Xxxxxxxx
Title: Vice President
Bank One, Dayton, N.A.
Kettering Tower
X.X. Xxx 0000
Xxxxxx, Xxxx 00000-0000
Attention: R. Xxxxxxx Xxxxxxxx
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82
$15,000,000 CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ Xxxxxx Xxxxx
------------------------------
Print Name: Xxxxx X. Xxxxx
Title: Vice President
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
83
SCHEDULE 1 SUBSIDIARIES OF BORROWER
The Duriron Company, Inc. has direct or indirect subsidiaries all of
which (i) are beneficially owned or controlled; (ii) do business under the name
under which they are organized and (iii) are included in the consolidated
financial statements of the Company. The name and jurisdiction of incorporation
of each such subsidiary is set forth below.
Jurisdiction
Name of Subsidiary (a) In Which Incorporated
---------------------- ---------------------
Automax Inc. Ohio
Duriron Canada Inc. Canada
X.X. Xxxxx Europe N.V. Belgium
Durco Process Equipment Ltd. United Kingdom
Durco GmbH Germany
Durco France S.A.R.L. France
Duriron Foreign Sales Corporation Virgin Islands
Durco Ireland Limited Ireland
Valtek Incorporated Utah
Valtek Controls Ltd. Canada
Valtek Australia Pty. Ltd. Australia
Durco Valtek (Asia Pacific) Pte. Ltd. Singapore
Durco Europe S.A. - Coordination Centre Belgium
Durco B.V. Holland Holland
Davco Equipment Inc. Ohio
Durco Valtek, S.A. Spain
Durco Italia S.r.l. Italy
Xxxxxx Ventile GmbH Germany
Xxxxxx Vannes S.A. Switzerland
Automax Mecair S.r.l. Italy
Mecair U.K. Ltd. United Kingdom
Mecair S.a.r.l. France
Automax Mecair S.r.l. Italy
Sereg Vannes S.A. France
Durametallic Corporation Michigan
Pac-Seal Inc. International Michigan
Metal Fab Machine Corporation Florida
Durametallic Mexicana S.A. de C.V. Mexico
Durametallic do Brasil Brazil
Durametallic Canada inc. Canada
Durametallic Uruguay Uruguay
Durametallic Pty. Ltd. New Zealand
Durametallic Corporation Australia Pty. Ltd. Australia
Durametallic G.m.b.H. Germany
Durametallic Europe N.V. Belgium
Durametallic Argentina S.A. Argentina
Durametallic Australia Holding Company Michigan
Durametallic Europe Holding Company Michigan
Arabian Seals Company, Ltd. (b) Saudi Arabia
Korea Seal Master Company, Ltd. (b) Korea
84
SCHEDULE 1 SUBSIDIARIES OF BORROWER PAGE 2
Durametallic (India) Ltd. (b) India
Durametallic Asia Pte. Ltd. (b) Singapore
Durametallic Malaysia Sdn. Bhd. (c) Malaysia
(a) All subsidiaries are wholly owned or controlled except as otherwise
indicated by one of the following footnotes
(b) 40% ownership
(c) 51% ownership
85
SCHEDULE 2 - PERMITTED LIENS
Lease agreement, indenture of mortgage and deed of trust, and guarantee
agreement, all executed on June 1, 1978 in connection with 9-1/8% Industrial
Development Revenue Bonds, Series A, City of Cookeville, Tennessee
Lease agreement, indenture of trust, and guaranty agreement, all executed on
June 1, 1978 in connection with 7-3/8% Industrial Development Revenue Bonds,
Series B, City of Cookeville, Tennessee
Lease agreement, indenture of mortgage and agreement, lessee guaranty
agreement, and letter of representation and indemnity agreement, all dated as
of December 1, 1983 and executed in connection with the Industrial Development
Revenue Bonds (1983 The Duriron Company, Inc. Project), Erie Company, New York
Industrial Development Agency were filed with the Commission as Exhibit 4.4 to
the Company's Report on Form 10-K for the Year ended December 31, 1983
86
EXHIBIT A
---------
FORM OF FOREIGN CURRENCY NOTE
_________,1996
Cleveland, Ohio
For value received, The Duriron Company, Inc., a New York corporation
("Borrower"), promises to pay to the order __________________, (the "Lender"),
the unpaid principal amount of each Foreign Currency Loan made by Lender to the
Company pursuant to the Credit Agreement referred to below, on the last day of
the LIBOR Interest Period relating to such Foreign Currency Loan. Borrower
further promises to pay interest on the aggregate unpaid principal amount of
such Foreign Currency Loans on the dates and at the rates negotiated to provided
in the Credit Agreement. All such payments of principal and interest with
respect to Foreign Currency Loans shall be made in the Applicable Currency at
Agent's principal office in Cleveland, Ohio. Borrower shall pay remaining unpaid
principal of and accrued and unpaid interest on the Foreign Currency Loans in
full on the Facility Termination Date (as defined in the Agreement).
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Foreign
Currency Note, and any and all lack of diligence or delays in collection or
enforcement of this Foreign Currency Note, and expressly agree that this Foreign
Currency Note, or any payment hereunder, may be extended from time to time, and
expressly consent to the release of any party liable for the obligation secured
by this Foreign Currency Note, the release of any of the security for this
Foreign Currency Note, the acceptance of any other security therefor, or any
other indulgence or forbearance whatsoever, all without notice to any party and
without affecting the liability of Borrower and any endorsers hereof.
This Foreign Currency Note is one of the Foreign Currency Notes issued
pursuant to, and is entitled to the benefits of, the Credit Agreement, dated as
of December 3, 1996 among Borrower, National City Bank, individually and as
Agent, and the other Lenders named therein, to which Agreement, as it may be
amended from time to time, reference is hereby made for a statement of the terms
and conditions governing this Foreign Currency Note, including the terms and
conditions under which this Foreign Currency Note may be prepaid or its maturity
date accelerated. Capitalized terms used herein and not otherwise defined herein
are used with the meanings attributed to them in the Agreement.
This Note shall be governed and construed under the internal laws of
the State of Ohio.
________________________________________
By:_____________________________________
Its_____________________________________
87
EXHIBIT B
---------
FORM OF REVOLVING PROMISSORY NOTE
$____________ __________, 1996
The Duriron Company, Inc. ("Duriron"), a corporation organized under
the laws of the State of New York, and its successors and assigns ("Borrower"),
promises to pay to the order of _________________ (the "Lender") the lesser of
the principal sum of ___________________________________ or the aggregate unpaid
principal amount of all Loans other than Foreign Currency Loans made by Lender
to Borrower pursuant to Article II of the Credit Agreement (as the same may be
amended or modified, the "Agreement") hereinafter referred to, in immediately
available funds at the main office of National City Bank, as Agent, together
with interest on the unpaid principal amount hereof at the rates and on the
dates set forth in the Agreement. Borrower shall pay remaining unpaid principal
of and accrued and unpaid interest on the Loans in full on the Facility
Termination Date (as defined in the Agreement).
Lender shall, and is hereby authorized to record in accordance with its
usual practice, the date and amount of each Loan and the date and amount of each
principal payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Credit Agreement, dated as of December 3, 1996 among
Borrower, National City Bank, individually and as Agent, and the other Lenders
named therein, to which Agreement, as it may be amended from time to time,
reference is hereby made for a statement of the terms and conditions governing
this Note, including the terms and conditions under which this Note may be
prepaid or its maturity date accelerated. Capitalized terms used herein and not
otherwise defined herein are used with the meanings attributed to them in the
Agreement.
If there is a Default under the Agreement or any other Loan Document
and Agent exercises the remedies provided under the Agreement and/or any of the
Loan Documents for Lenders, then in addition to all amounts recoverable by Agent
and Lenders under such documents, Agent and Lenders shall be entitled to receive
reasonable attorneys fees and expenses incurred by Agent and Lenders in
connection with the exercise of such remedies.
Borrower and all endorses severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note,
and any and all lack of diligence or delays in collection or enforcement of this
Note, and expressly agree that this Note, or any payment hereunder, may be
extended from time to time, and expressly consent to the release of any party
liable for the obligation secured by this Note, the release of any of the
security
88
for this Note, the acceptance of any other security therefor, or any
other indulgence or forbearance whatsoever, all without notice to any party and
without affecting the liability of Borrower and any endorses hereof.
This Note shall be governed and construed under the internal laws of
the State of Ohio.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS PROMISSORY
NOTE AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE
AND NOT BEFORE A JURY.
THE DURIRON COMPANY, INC.
By:________________________________
Print Name:
Title:
89
EXHIBIT C
---------
REQUEST FOR ISSUANCE OF LETTER OF CREDIT
The Duriron Company, Inc. ("Borrower") hereby requests the issuance of
a Letter of Credit in the amount of $_________ pursuant to and in accordance
with the terms and conditions of the Credit Agreement dated as of December 3,
1996 ("Credit Agreement"), by and among Borrower, National City Bank,
individually, and as Agent, and the other Lenders named therein. Capitalized
terms used herein but not defined in this Request for Issuance of Letter of
Credit shall have the respective meanings assigned to them in the Credit
Agreement.
1. This Request for Issuance of Letter of Credit is accompanied by a
Letter of Credit Application, that contains, among other things, the following:
(i) the proposed Issuance Date of the Letter of Credit (which shall be a
Business Day), (ii) the proposed Face Amount of the Letter of Credit, (iii) the
proposed expiration date of the Letter of Credit,* (iv) the name and address of
the proposed beneficiary of the Letter of Credit and (v) a summary of the
purpose and contemplated terms of the Letter of Credit.
2. This Request for Issuance of Letter of Credit is also accompanied by
a precise description of any documents to be presented under, and any other
terms of, the requested Letter of Credit, together with the text of any
certificate to be presented by the beneficiary, which, if presented by the
beneficiary prior to the expiration date of the Letter of Credit, would require
the Issuing Bank to make payment under the Letter of Credit.
3. To induce the Issuing Bank to issue such Letter of Credit, Borrower
hereby represents to Agent and each Lender as follows:
1. The Outstanding Amount shall not, giving effect to the issuance
of the Letter of Credit hereby requested, exceed the Aggregate Commitment.
Giving effect to the issuance of the requested Letter of Credit, the Letter of
Credit Usage does not exceed Ten Million Dollars ($10,000,000).
2. All of the representations and warranties made by Borrower in the
Credit Agreement are true and correct on the date hereof, except for any
representation or warranty limited by its terms to a specific date.
3. No Default or Event of Default exists under the Credit Agreement.
4. The approval of this Request for Issuance of Letter of Credit shall
not be deemed to be a waiver by Agent or any Lender of any Default or Event of
Default by Borrower under the Credit Agreement.
90
BORROWER:
Date: ___________________ THE DURIRON COMPANY, INC.
By:______________________
Its: ____________________
* Subject to Section 2.22 (a) (iii) of the Credit Agreement
-2-
91
EXHIBIT D
---------
FORM OF SWINGLINE NOTE
__________, 1996
FOR VALUE RECEIVED, The Duriron Company, Inc., a New York corporation
("Borrower"), promises to pay to the order of National City Bank (the "Lender"),
in lawful money of the United States of America, the principal sum of
___________________________ ($___________)*, together with interest thereon at
the Federal Funds Rate plus an applicable margin determined by Lender such that
the return to Lender from such Swingline Loan approximates the hypothetical
return to Lender of a LIBOR Rate Loan of the same amount made at the same time,
for the same number of days (determined pro rata based on a thirty day LIBOR
Interest Period), due and payable on demand, but in no event later than five (5)
Business Days from the date hereof.
Lender is hereby authorized by Borrower to record on its books and
records, the date, currency, amount and type of each Swingline Loan, the amount
of each payment thereon and other information provided for on such schedule,
which schedule or such books and records, as the case may be, shall constitute
prima facia evidence of the information so recorded, provided, however, that any
failure by Lender to record any such information shall not relieve Borrower of
its obligation to repay the outstanding amount of such Swingline Loans, all
accrued interest thereon and any amount payable with respect thereto in
accordance with terms of this Swingline Note and the Credit Agreement.
Borrower and each endorser or guarantor hereof waives presentment,
protest, diligence, notice of dishonor and any other formality, other than
demand, in connection with this Swingline Note. In the event that Borrower
should fail to pay any portion of the indebtedness evidenced by this Swingline
Note on demand, the unpaid balance thereof shall automatically be converted by
Lender into a Base Rate Loan that shall bear interest at the Base Rate, all in
accordance with the terms and conditions of the Credit Agreement.
This Swingline Note evidences one or more Swingline Loans made under
the Credit Agreement, dated December 3, 1996, (as amended or modified from time
to time, the "Credit Agreement"), by and among Borrower, National City Bank,
individually, and as Agent, and the other Lenders named therein. Capitalized
terms used herein but not defined in this Swingline Note shall have the
respective meanings assigned to them in the Credit Agreement.
-3-
92
This Swingline Note is made under, and shall be governed by and
construed in accordance with, the laws of the State of Ohio in the same manner
applicable to contracts made and to be performed entirely within such State and
without giving effect to choice of law principles of such State.
THE DURIRON COMPANY, INC.
By:______________________
Its: ____________________
*Each Swingline Loan shall be in an amount equal to or greater than $1,000,000;
provided, however, that (i) with regard to each Lender individually, the sum of
each such Lender's outstanding Loans of all Types shall not exceed such Lender's
Commitment; and (ii) with regard to Lender's collectively, the Outstanding
Amount shall not exceed the Aggregate Commitment.
-4-
93
EXHIBIT E
---------
November 27, 1996
FORM OF BID-OPTION QUOTE REQUEST
National City Bank, as Agent for Lenders
X.X. Xxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. XxXxxx, Vice President, Metro Ohio Division
The Duriron Company, Inc., a New York corporation ("Borrower"), hereby
requests offers to make Offshore Currency Loans described below, pursuant to
Section 2.7(b) of the Credit Agreement, dated as of December 3, 1996, as
amended, supplemented or otherwise modified (the "Credit Agreement"), by and
among Borrower, National City Bank, individually, and as Agent, and the other
Lenders named therein. Capitalized terms used but not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement.
Date of Offshore Currency Loan(s): ________________, _______
Type of Offshore Currency Loan:
Aggregate Amount of each Offshore Currency Loan:
(a) _____________________________*
(b) _____________________________
(c) _____________________________
LIBOR Interest Period:
(a) ____________________________
(b) ____________________________
(c) ____________________________
Delivery Instructions (where Offshore Currency is delivered):
THE DURIRON COMPANY, INC.
By:______________________
Its: ____________________
* Must be (a) $3,000,000 or a larger multiple of $1,000,000
-5-
94
EXHIBIT F
---------
FORM OF INVITATION FOR BID-OPTION QUOTES
To: [Name of Lender]
Attention: __________________
Reference is made to the Credit Agreement dated as of December 3, 1996,
as amended, supplemented or otherwise modified (the "Credit Agreement"), by and
among The Duriron Company, Inc., a New York corporation ("Borrower"), National
City Bank, individually, and as Agent, and the other Lenders named therein.
Capitalized terms used but not defined herein shall have the respective meanings
ascribed thereto in the Credit Agreement.
Pursuant to Section 2.7(c) of the Credit Agreement, National City Bank,
as Agent for Lenders, is pleased on behalf of Borrower to invite you to submit
Bid-Option Quotes to Borrower for the Offshore Currency Loan(s) described below:
Date of Offshore Currency Loan(s): ___________________, ______
Aggregate Amount of each
OFFSHORE CURRENCY LOAN: LIBOR INTEREST PERIOD:
----------------------- ----------------------
(a) ____________________ (a) ___________________
(b) ___________________ (b) __________________
(c) ____________________ (c) ___________________
Type of Offshore Currency Loan:
Please respond to this invitation by no later than 10:00 a.m.
(Cleveland time) on ____________,______*
NATIONAL CITY BANK, as Agent
By:____________________________
Its: __________________________
*Insert date of Offshore Currency Loan.
-6-
95
EXHIBIT G
---------
FORM OF BID-OPTION QUOTE
[Date]
National City Bank, as Agent for Lenders
X.X. Xxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. XxXxxx, Vice President, Metro Ohio Division
Reference is made to the Credit Agreement, dated as of December 3,
1996, as amended, supplemented or otherwise modified (the "Credit Agreement"),
by and among The Duriron Company, Inc., a New York corporation ("Borrower"),
National City Bank, individually, and as Agent, and the other Lenders named
therein. Capitalized terms used herein shall have the meanings ascribed thereto
in the Credit Agreement.
In response to your Invitation for Bid-Option Quote dated __________,
________, __________________________ ("Lender"), hereby makes the following
offer(s) to make [a] Offshore Currency Loan[s].
1. Lender: ___________________________
Contact Person: ___________________
2. Date of Offshore Currency Loan: ____________________*
3. Type of Offshore Currency:
4. Delivery Instructions: (where Offshore Currency is delivered):
5. Quotes:
Principal Amount of Bid-Option Libor Interest
OFFSHORE CURRENCY LOAN RATE* PERIOD****
(a) _____________________ ___________ _______________
(b) _____________________ ___________ _______________
(c) _____________________ ___________ _______________
6. The aggregate amount of Offshore Currency Loans which may be
accepted by Borrower pursuant to this Bid-Option Quote shall not
exceed $_________________
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Lender acknowledges and agrees that this Bid-Option Quote (a) is
irrevocable and (b), subject to the terms and conditions of the Credit
Agreement, obligates it to make a Offshore Currency Loan for which any quote is
accepted, in whole or in part.
[Name of Lender]
By:________________________
Its: ______________________
* As specified in the related Invitation for Bid-Option Quotes.
** The principal amount (a) must be $3,000,000 or a larger multiple of
$1,000,000 and (b) may not exceed the aggregate amount of the related Offshore
Currency Loan specified in the related Invitation for Bid-Option Quotes.
*** Specify rate of interest per annum (rounded up to the nearest 1/100 of 1%)
or applicable margin, which may be positive or negative, expressed as a
percentage (rounded up to the nearest 1/100th of 1%), as the case may be.
**** As specified in the related Invitation for Bid-Option Quotes.
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EXHIBIT H
---------
FORM OF BORROWING NOTICE
The Duriron Company, Inc. ("Duriron"), and its successors and assigns
("Borrower"), hereby requests an Advance in the amount of $__________ pursuant
to and in accordance with the terms and conditions of the Credit Agreement dated
as of _____________ 1996 ("Credit Agreement"), among National City Bank,
individually, and as Agent, and the Banks identified therein (the "Lenders").
Capitalized terms used by not defined herein are used as defined in the Credit
Agreement.
Such advance in the amount of $____________ shall be deposited to the account of
Borrower.
[For LIBOR Rate Loans and Base Rate Loans, paragraph 1 below shall be included,
and for a Swingline Loan, paragraph 2 below shall be included]
1. Borrower elects that such advance shall be a [LIBOR Rate Loan] [Base Rate
Loan] bearing interest in accordance with the table set forth in SECTION 2.4 of
the Credit Agreement [, and the LIBOR Interest Period shall be _______________.
The Applicable Currency for such advance shall be _______________.]
2. Borrower elects that such advance shall be a Swingline Loan, bearing interest
at the Money Market Rate in accordance with SECTION 2.6 of the Credit Agreement.
Please notify ___________________ at Borrower to confirm the transmittal of
funds.
To induce Lenders to make such advance, Borrower hereby represents to Agent and
each Lender as follows:
1. The outstanding balance of all Loans made to Borrower shall not,
giving effect to the advance hereby requested, exceed the Aggregate Commitment.
2. All of the representations and warranties made by Borrower in the
Credit Agreement are true and correct on the date hereof, except for any
representation or warranty limited by its terms to a specific date.
3. No Default, whether Matured or Unmatured, exists under the Credit
Agreement.
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4. The approval of this Borrowing Notice shall not be deemed to be a
waiver by Agent or any Lender of any Default by Borrower under the Credit
Agreement.
BORROWER:
THE DURIRON COMPANY, INC.
By:____________________________
Title: ________________________
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EXHIBIT I
---------
FORM OF LEGAL OPINION OF BORROWER
_____________________, 1996
Agent and Lenders who are parties to the
Credit Agreement described below:
Gentlemen/Ladies:
We are counsel for The Duriron Company, Inc., and its respective
successors and assigns ("Borrower"), and have represented Borrower in connection
with its execution and delivery of a Credit Agreement among Borrower, National
City Bank, individually, and as Agent, and the other Lenders named therein,
providing for Loans in an aggregate principal amount not exceeding $100,000,000
at any one time outstanding and dated as of ___________ 1996 (the "Agreement").
All capitalized terms used in this opinion and not otherwise defined shall have
the meanings attributed to them in the Agreement.
We have examined Borrower's articles of incorporation, by-laws,
resolutions, the Loan Documents and such other matters of fact and law which we
deem necessary in order to render this opinion. Based upon the foregoing, it is
our opinion that:
1. Borrower is a corporation duly organized and validly existing under
the laws of the State of New York, having its principal place of business in
_________, Ohio; and Borrower is qualified to conduct its business in each
jurisdiction in which its business is conducted except where such qualification
would not result in a Material Adverse Change.
2. Borrower has the power and authority and legal right to execute and
deliver the Loan Documents and to perform its obligations thereunder. The
execution and delivery by Borrower of the Loan Documents and the performance of
its obligations thereunder have been duly authorized by proper proceedings, and
the Loan Documents constitute legal, valid and binding obligations of Borrower
enforceable against Borrower in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
3. Neither the execution and delivery by Borrower of the Loan
Documents, nor the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on Borrower or any of
its Subsidiaries or Borrower's articles of incorporation, partnership agreement
or bylaws, or the provisions of any material indenture, material instrument or
material agreement to which Borrower or any of its Subsidiaries is a party or
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is subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in the creation or imposition of any
Lien in, of or on the Property of Borrower or a Subsidiary pursuant to the terms
of any such indenture, instrument or agreement. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with
the execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, any of the Loan Documents.
4. There is no litigation or proceeding against Borrower or any of its
Subsidiaries which, if adversely determined, could reasonably be expected to
have a Material Adverse Effect.
This opinion may be relied upon by Agent, Lenders and their
participants, assignees and other transferees.
Very truly yours,
_______________________
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EXHIBIT J
---------
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To NATIONAL CITY BANK,
as Agent (the "Agent") under the Credit Agreement
Described Below.
Re: Credit Agreement, dated ______________, 1996 (as the same may be amended or
modified, the "Credit Agreement"), among The Duriron Company, Inc., a
corporation organized under the laws of the State of New York, and its
successors and assigns ("Borrower"), Agent, and Lenders named therein.
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in the Credit Agreement.
Agent is specifically authorized and directed to act upon the following standing
money transfer instructions with respect to the proceeds of Loans or other
extensions of credit from time to time until receipt by Agent of a specific
written revocation of such instructions by Borrower, provided, however, that
Agent may otherwise transfer funds as hereafter directed in writing by Borrower
in accordance with SECTION 12.1 of the Credit Agreement or based on any
telephonic notice made in accordance with SECTION 2.18 of the Credit Agreement.
Facility Identification Number(s) ______________________________________________
Customer/Account Name___________________________________________________________
Transfer Funds To_______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
For Account No. ________________________________________________________________
Reference/Attention To__________________________________________________________
Authorized Officer (Customer Representative) Date_______________________________
________________________________________________________________________________
(Please Print) Signature
Bank Officer Name and Date______________________________________________________
________________________________________________________________________________
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate
Processing)
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EXHIBIT K
---------
FORM OF COMPLIANCE CERTIFICATE
To: The Administrative Agent and
Lenders party to the
Agreement described below
[For the Fiscal Quarter Ending
[For the Fiscal Year Ending
This Compliance Certificate is furnished pursuant to SECTION 5.1 (v) of
the Credit Agreement dated as of ______________, 1996 (the "Agreement"), among
THE DURIRON COMPANY, INC., a New York corporation, and its successors and
assigns ("Borrower"), the several banks, financial institutions and other
entities from time to time parties thereto (collectively, the "Lenders"), and
NATIONAL CITY BANK, not individually, but as Agent (the "Agent"). Unless
otherwise defined herein, the terms used in this Compliance Certificate have the
meanings ascribed thereto in the Agreement.
The undersigned Authorized Officer, on behalf of Borrower and each its
Subsidiaries, and in his capacity as an Authorized Officer of Borrower and each
of its Subsidiaries, hereby certifies as follows:
(1) The financial statements referred to in SECTIONS 5.1(i), 5.1(ii),
5.1(iii) or 5.1(iv), as the case may be, of the Agreement which are delivered
concurrently with the delivery of this Compliance Certificate are complete and
correct in all material respects and have been prepared in reasonable detail and
in accordance with GAAP applied consistently throughout the periods reflected
therein and with prior periods (except as approved by the accountants performing
the audit in connection therewith or the undersigned, as the case may be, and
disclosed therein).
(2) The covenants listed below are calculated with for the respective
periods as set forth in the Credit Agreement (dollar amounts in thousands).
--------------------------
1. Consolidated Tangible Net Worth (SECTION 5.21)
(a) Consolidated Stockholder's Equity ___________
(b) any surplus resulting from any write-up
of assets subsequent to September 30, 1996 ___________
(c) any amount in respect of an
intangible that should be classified as
an asset on Borrowers' consolidated
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balance sheet in accordance with GAAP ____________
(d) Consolidated Tangible Net Worth equals
(a) minus the sum of (b) and
(c); must be $100,000,000 at Closing Date,
$100,000,000 plus 50% of Consolidated
Net Income at all times thereafter. ____________
2. Ratio of Debt to Cash Flow (SECTION 5.20)
(a) Consolidated Outstanding Indebtedness
(1) (a) means all Indebtedness of Borrower and its
Subsidiaries outstanding at such date, determined on a
consolidated basis in accordance with GAAP ____________
(b) EBITDA
(1) (b) means, for any period, the sum of Borrower's
and its Subsidiaries' EBIT plus depreciation and
amortization expense ____________
(c) ratio of (a) to (b); no greater than
3.0 to 1.0 on the Closing Date, and
on the last day of each calendar
quarter thereafter calculated for the
previous four quarters, until the
Facility Termination Date
3. Ratio of EBIT to Interest (SECTION 5.21)
(a) EBIT
(1) Borrower's and its Subsidiaries'
Consolidated Net Income ____________
(2) interest expense, income and
franchise tax expense, and
non-recurring extraordinary expenses
(in each case determined in
accordance with GAAP) which was
deducted in determining Consolidated
Net Income for such period ____________
(3) (a) means (1) plus (2) ____________
(b) Interest Expense
(1) interest expense of Borrower ____________
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for such period on the aggregate
principal amount of its Indebtedness ____________
(2) capitalized interest which
accrued during such period ____________
(3) (b) means (1) plus (2) ____________
(c) ratio of (a) to (b); not less than 3.0
to 1.0 on the Closing Date, and on the
last calendar day of each fiscal quarter
thereafter calculated for the previous
four fiscal quarters, until the Facility
Termination Date ____________
4. Debt to Capitalization Ratio (SECTION 5.22)
(a) Indebtedness for Borrowed Money ____________
(b) Capitalization ____________
(1) Consolidated Funded Debt ____________
(2) Stockholder's Equity ____________
(3) (b) means (1) plus (2) ____________
(c) ratio of (a) to (b); no greater than .6
to 1.0 on the Closing Date, and on the
last calendar day of each fiscal quarter
thereafter, until the Facility
Termination Date ____________
5. Acquisition Limit (SECTION 5.23)
(a) Total sum of Borrower's Acquisitions of
a Person ____________
(b) after such Acquisitions in (a) the
Debt to Capitalization Ratio would be
greater than .5 to 1.00 ____________
(3) To the best of the undersigned's knowledge, Borrower and its
Subsidiaries have, during the period referred to above, observed or performed
all of the covenants and conditions contained in the Agreement and the other
Loan Documents, and during the period referred to above and as of the end of
such period and as of the date hereof the undersigned have no knowledge of any
Default, whether
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Matured or Unmatured, under the Agreement or the Loan Documents except
as follows: __________________________
IN WITNESS WHEREOF, I have hereto set my name.
_____________________________________________
Title: ______________________________________
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EXHIBIT L
---------
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
___________________ (the "Assignor") and _________________________ (the
"Assignee") is dated as of ______________, 19 . The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement") described in Item 1 of Schedule I attached
hereto ("Schedule I"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement and the other Loan Documents. The aggregate
Commitment (or Loans, if the applicable Commitment has been terminated)
purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two (2) Business Days (or such shorter period agreed to by Agent) after a
Notice of Assignment substantially in the form of Exhibit "I" attached hereto
has been delivered to Agent. Such Notice of Assignment must include the consent
of Agent required by SECTION 11.3.1. of the Credit Agreement. In no event will
the Effective Date occur if the payments required to be made by the Assignee to
the Assignor on the Effective Date under SECTIONS 4 and 5 hereof are not made on
the proposed Effective Date. The Assignor will notify the Assignee of the
proposed Effective Date no later than the Business Day prior to the proposed
Effective Date. As of the Effective Date, (i) the Assignee shall have the rights
and obligations of a Lender under the Loan Documents with respect to the rights
and obligations assigned to the Assignee hereunder and (ii) the Assignor shall
relinquish its rights and be released from its corresponding obligations under
the Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from Agent all payments of principal, interest and
fees with respect to the interest assigned hereby. The Assignee shall advance
funds directly to Agent with respect to all Loans and reimbursement payments
made on or after the
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Effective Date with respect to the interest assigned hereby. [In consideration
for the sale and assignment of Loans hereunder, (i) the Assignee shall pay the
Assignor, on the Effective Date, an amount equal to the principal amount of the
portion of all _________ Rate Loans assigned to the Assignee hereunder and (ii)
with respect to each _______ Rate Loan made by the Assignor and assigned to the
Assignee hereunder which is outstanding on the Effective Date, (a) on the last
day of the Interest Period therefor or (b) on such earlier date agreed to by
the Assignor and the Assignee or (c) on the date on which any such _________
Rate Loan either becomes due (by acceleration or otherwise) or is prepaid (the
date as described in the foregoing clauses (a), (b) or (c) being hereinafter
referred to as the "__________ Rate Due Date"), the Assignee shall pay the
Assignor an amount equal to the principal amount of the portion of such
________ Rate Loan assigned to the Assignee which is outstanding on the _______
Rate Due Date. If the Assignor and the Assignee agree that the applicable
_______ Rate Due Date for such _______ Rate Loan shall be the Effective Date,
they shall agree, solely for purposes of dividing interest paid by Borrower on
such ______ Rate Loan, to an alternate interest rate applicable to the portion
of such Loan assigned hereunder for the period from the Effective Date to the
end of the related Interest Period (the "Agreed Interest Rate") and any
interest received by the Assignee in excess of the Agreed Interest Rate, with
respect to such _________ Rate Loan for such period, shall be remitted to the
Assignor. [In the event interest for any period from the Effective Date to but
not including the ________ Rate Due Date is not paid when due by Borrower with
respect to any ______ Rate Loan sold by the Assignor to the Assignee hereunder,
the Assignee shall pay to the Assignor interest for such period on the portion
of such ______ Rate Loan sold by the Assignor to the Assignee hereunder at the
applicable rate provided by the Credit Agreement.] In the event a prepayment of
any ______ Rate Loan which is existing on the Effective Date and assigned by
the Assignor to the Assignee hereunder occurs after the Effective Date but
before the applicable _______ Rate Due Date, the Assignee shall remit to the
Assignor any excess of the funding indemnification amount paid by Borrower
under Section _______ of the Credit Agreement an account of such prepayment
with respect to the portion of such _________ Rate Loan assigned to the
Assignee hereunder over the amount which would have been paid if such
prepayment amount were calculated based on the Agreed Interest Rate and only
covered the portion of the Interest Period after the Effective Date. The
Assignee will promptly remit to the Assignor (i) the portion of any principal
payments assigned hereunder and received from Agent with respect to any
___________ Rate Loan prior to its _________ Rate Due Date and (ii) any amounts
of interest on Loans and fees received from Agent which relate to the portion
of the Loans assigned to the Assignee hereunder for periods prior to the
Effective Date, in the case of __________ Rate Loans or fees, or the ________
Rate Due Date, in the case of _________ Rate Loan, and not previously paid by
the Assignee to the Assignor.] In the event that either party hereto receives
any payment to which the other party hereto is entitled under this Assignment
Agreement, then the party receiving such amount shall promptly remit it to the
other party hereto.
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*Each Assignor may insert its standard payment provisions in lieu of
the payment terms included in this Exhibit.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor
a fee on each day on which a payment of interest or Commitment Fees is made
under the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or Commitment Fees attributable to
the period prior to the Effective Date or, in the case of ________ Rate Loans,
the Payment Date, which the Assignee is obligated to deliver to the Assignor
pursuant to Section 4 hereof). The amount of such fee shall be the difference
between (i) the interest or fee, as applicable, paid with respect to the amounts
assigned to the Assignee hereunder and (ii) the interest or fee, as applicable,
which would have been paid with respect to the amounts assigned to the Assignee
hereunder if each interest rate was calculated at the rate of -% rather than the
actual percentage used to calculate the interest rate paid by Borrower or if the
Commitment Fee was calculated at the rate of _% rather than the actual
percentage used to calculate the Commitment Fee paid by Borrower, as applicable.
In addition, the Assignee agrees to pay -% of the fee required to be paid to
Agent in connection with this Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR: LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectibility of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of Borrower or
any guarantor, (iv) the performance of or compliance with any of the terms or
provisions of any of the Loan Documents, (v) inspecting any of Property, books
or records of Borrower, (vi) the validity, enforceability, perfection, priority,
condition, value or sufficiency f of any collateral securing or purporting to
secure the Loans or (vii) any mistake, error of judgment, or action taken or
omitted to be taken in connection with the Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this
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Assignment Agreement, (ii) agrees that it will, independently and without
reliance upon Agent, the Assignor or any other Lender and based on such
documents and information at it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, (iii) appoints and authorizes Agent to take such action as agent on
its behalf and to exercise such powers under the Loan Documents as are delegated
to Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, (iv) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender, (v) agrees that its payment
instructions and notice instructions are as set forth in the attachment to
Schedule 1, (vi) confirm that none of tile funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are "plan
assets" as defined under ERISA and that its rights, benefits and interests in
and under the Loan Documents will not be "plan assets" under ERISA, [and (vii)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying that the Assignee is entitled to receive payments under the
Loan Documents without deduction or withholding of any United States federal
income taxes] to be inserted if the Assignee is not incorporated under the laws
of the United States, or a state thereof.
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys, fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 12.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior
written consent of the Assignor is obtained, the Assignee is not thereby
released from its obligations to the Assignor hereunder, if any remain
unsatisfied, including, without limitation, its obligations under SECTIONS 4.5
and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule I
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and
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understanding between the parties hereto and supersede all prior agreements and
understandings between the parties hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Ohio.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By: _____________________________________
Title: __________________________________
[NAME OF ASSIGNEE]
By: _____________________________________
Title: __________________________________
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SCHEDULE I
TO ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: ____________, 19__
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
(Loans) under
Credit Agreement $_________
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement** _________
4. Amount of Assignee's (Loan Amount)**
Commitment Purchased under this
Assignment Agreement: $_________
5. Proposed Effective Date: _________
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: ______________________ By:_________________________
Title: ___________________ Title: _____________________
* If a Commitment has been terminated, insert outstanding Loans in place of
Commitment
** Percentage taken to 10 decimal places
Attachment to SCHEDULE I to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
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EXHIBIT "1"
-----------
to Assignment Agreement
NOTICE
OF ASSIGNMENT
-------------
____________, 19__
To: [NAME OF AGENT]
__________________________
__________________________
From: [NAME OF ASSIGNOR) (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit Agreement") described
in Item I of Schedule 1 attached hereto ('Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
Agent pursuant to SECTION 11.3.2 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of _____________, 19__ (the "Assignment"), pursuant to
which, among other things, the Assignor has sold, assigned, delegated and
transferred to the Assignee, and the Assignee has purchased, accepted and
assumed from the Assignor the percentage interest specified in Item 3 of
Schedule I of all outstandings, rights and obligations under the Credit
Agreement. The Effective Date of the Assignment shall be the later of the date
specified in Item 5 of Schedule I or two (2) Business Days (or such shorter
period as agreed to by Agent) after this Notice of Assignment and any fee
required by SECTION 11.3.2 of the Credit Agreement have been delivered to Agent,
provided that the Effective Date shall not occur if any condition precedent
agreed to by the Assignor and the Assignee has not been satisfied.
4. The Assignor and the Assignee hereby give to Agent notice of the
assignment and delegation referred to herein. The Assignor will confer with
Agent before the date specified in Item 5 of Schedule I to determine if the
Assignment Agreement will become effective on such date pursuant to Section 3
hereof, and will confer with Agent to determine the Effective Date pursuant to
SECTION 3 hereof if it occurs thereafter. The Assignor shall notify Agent if the
Assignment Agreement does not become effective on any proposed Effective Date as
a result of the failure to satisfy the conditions precedent agreed to by the
Assignor and the Assignee. At the request of Agent, the Assignor will give Agent
written confirmation of the satisfaction of the conditions precedent.
114
5. The Assignor or the Assignee shall pay to Agent on or before the
Effective Date the processing fee of $____________ required by SECTION 11.3.2 of
the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor and the
Assignee request and direct that Agent prepare and cause Borrower to execute and
deliver new Notes or, as appropriate, replacements notes, to the Assignor and
the Assignee. The Assignor and, if applicable, the Assignee each agree to
deliver to Agent the original Note received by it from Borrower upon its receipt
of a new Note in the appropriate amount.
7. The Assignee advises Agent that notice and payment instructions are
set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
9. The Assignee authorizes Agent to act as its agent under the Loan
Documents in accordance with the terms thereof. The Assignee acknowledges that
Agent has no duty to supply information with respect to Borrower or the Loan
Documents to the Assignee until the Assignee becomes a party to the Credit
Agreement.
*May be eliminated if Assignee is a party to the Credit Agreement
prior to the Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: _____________________________ By: _______________________________
Title: __________________________ Title: ____________________________
ACKNOWLEDGED AND CONSENTED TO
NATIONAL CITY BANK, as Agent
By: ________________________________
Title: ______________________________
[Attach photocopy of Schedule I to Assignment)
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