EXHIBIT 10.61
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of July 5, 2000, among:
(i) XXXXXX INTERNATIONAL INDUSTRIES,
INCORPORATED, a Delaware corporation (the
"Company");
(ii) XXXXXX HOLDING GmbH, a German
corporation (the "Subsidiary Borrower");
(iii) the several banks and other financial
institutions identified on the signature pages
hereto from time to time parties to this
Agreement (each, a "Lender"; and collectively,
the "Lenders");
(iv) COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH, as Lead Arranger (the Arranger"); and
(v) COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH, a German banking corporation
("Commerzbank"), as administrative agent for
the Lenders hereunder (together with its
successors in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Borrower,
the Lenders, the Arranger and the
Administrative Agent have previously entered
into a Credit Agreement dated as of December
12, 1997 (as amended, supplemented and
otherwise modified through the date hereof,
the "Existing Credit Agreement");
WHEREAS, the Company, the Subsidiary Borrower,
the Lenders, the Arranger and the
Administrative Agent wish to amend and restate
the Existing Credit Agreement upon the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the
premises and the mutual agreements
herein contained, the Existing Credit Agreement
shall be amended and restated in its entirety
as of the Effective Date to read as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement,
the following terms shall have the following
meanings:
"Administrative Agent": as defined in the
introductory paragraph.
"Administrative Schedule": Schedule III to
this Agreement, which contains interest rate
definitions and administrative information.
"Affiliate": as to any Person, any other
Person (other than a Subsidiary) which,
directly or indirectly, is in control of, is
controlled by, or is under common control with,
such
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Person. For purposes of this definition,
"control" of a Person means the power, directly
or indirectly, either to (a) vote 10% or more
of the securities having ordinary voting power
for the election of directors of such Person or
(b) direct or cause the direction of the
management and policies of such Person, whether
by contract or otherwise.
"Agreement": this Amended and Restated Credit
Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Margin": with respect to each day
during a fiscal quarter of the Company, the
margin per annum set forth below opposite the
Debt to Capitalization Ratio for the applicable
Test Period as shown on the Debt to
Capitalization Ratio Certificate for the test
period delivered pursuant to subsection 6.2(c):
Debt to Capitalization Ratio Applicable Margin
Less than 60% .60%
Greater than or equalto 60% .75%;
provided, however, that, (i) until the date a
Debt to Capitalization Ratio Certificate for a
test period has been delivered pursuant to
subsection 6.2(c), the Debt to Capitalization
Ratio for an applicable period shall be deemed
to be the Debt to Capitalization Ratio set
forth in the last Debt to Capitalization Ratio
Certificate delivered pursuant to subsection
6.2(c), (ii) in the event that the actual Debt
to Capitalization Ratio for any Test Period is
subsequently determined to be greater than that
determined pursuant to clause (i) or greater
than that set forth in the Debt to
Capitalization Ratio Certificate for such Test
Period the Applicable Margin shall be
recalculated for the applicable fiscal quarter
based upon such actual Debt to Capitalization
Ratio and (iii) if the Company fails to deliver
a Debt to Capitalization Ratio Certificate for
a fiscal quarter by the date set forth in
subsection 6.2(c), the Applicable Margin for
such fiscal quarter shall be .75%.
Changes in the Applicable Margin, if any,
resulting from the operation of clauses (ii)
and (iii) above shall be given effect through
adjustments in subsequent payments of interest
so as to give effect to such Applicable Margin
retroactively to the applicable period.
"Arranger": as defined in the introductory
paragraph.
"Assignee": as defined in subsection 11.6(c).
"Assignment and Acceptance": an instrument of
assignment in form and substance satisfactory
to the Administrative Agent and the Company.
"Base Rate": for any day, the greater of (i)
the sum of the Federal Funds Rate and
1/2 of one percent for such day and (ii) the
rate of interest from time to time announced by
Commerzbank at its New York Branch as its
"prime commercial lending rate" and in effect
for such day (which rate is a reference rate
and does not necessarily represent the lowest
or best rate
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actually charged to any customer and
Commerzbank may make commercial loans or other
loans at rates of interest at, above or below
such reference rate).
"Base Rate Loan": any Loan bearing interest
based upon the Base Rate.
"Borrowers": the collective reference to the
Company (as a borrower and as a guarantor) and
the Subsidiary Borrower.
"Borrowing Date": the day on which the Loans
are made under this Agreement.
"Business": as defined in subsection 4.16.
"Business Day": (a) when such term is used in
respect of a day on which a Dollar Equivalent
spot rate or LIBO Rate is to be set, a Loan is
to be made, a payment is to be made in respect
of a Loan or any other dealing in Dollars, such
term shall mean a London Banking Day which is
also a day on which banks are open for general
banking business in New York, New York and (b)
when such term is used in any other context in
this Agreement, such term shall mean a day
other than a Saturday, Sunday or other day on
which commercial banks in New York City are
authorized or required by law to close.
"Capital Stock": any and all shares,
interests, participations or other equivalents
(however designated) of capital stock of a
corporation, any and all equivalent ownership
interests in a Person (other than a
corporation) and any and all warrants or
options to purchase any of the foregoing.
"Change of Control": an event or series of
events by which (i) any "person" or "group" (as
such terms are defined in Sections 13(d) and
14(d) of the Securities Exchange Act of
1934, as amended), other than the Permitted
Investor, is or becomes the "beneficial owner"
(as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all
shares that any such Person has the right to
acquire without condition, other than passage
of time, whether such right is exercisable
immediately or only after the passage of time),
directly or indirectly, of more than 50% of the
total voting power of the then outstanding
Voting Stock of the Company, (ii)(A) the
Company consolidates with or merges into
another corporation or conveys, transfers or
leases all or substantially all of its
properties and assets (determined on a
consolidated basis for the Company and its
Subsidiaries taken as a whole) to any Person,
or (B) any corporation consolidates with or
merges into the Company or a Subsidiary of the
Company in a transaction in which the
outstanding Voting Stock of the Company is
changed into or exchanged for cash, securities
or other property, other than a transaction
solely between the Company and a Subsidiary of
the Company or (iii) during any period of two
consecutive years, individuals who at the
beginning of such period constituted the
Board of Directors of the Company (together
with any new directors whose election by such
Board of Directors or whose nomination for
election by the shareholders of the Company was
approved by a vote of 66 2/3% of the directors
then still in office who were either directors
at the beginning of such period or whose
election or nomination for election was
previously so approved) cease for any reason to
constitute a majority of the Board of Directors
of the Company then in office; provided,
however, that notwithstanding anything to the
contrary in this definition,
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transfer of beneficial ownership of shares held
by the Permitted Investor upon the death of the
Permitted Investor to the heirs and devisees of
the Permitted Investor shall not constitute a
Change of Control.
"Code": the Internal Revenue Code of 1986, as
amended from time to time.
"Commerzbank": as defined in the introductory
paragraph.
"Commitment": as to any Lender, the obligation
of such Lender to make Loans hereunder in the
Dollar Equivalent of the amounts set forth
opposite such Lender's name on Schedule I.
"Commitment Percentage": as to any Lender at
any time, the percentage which such Lender's
Commitment then constitutes of the aggregate
Commitments (or, at any time after the
Commitments shall have expired or terminated,
the percentage which the amount of such
Lender's Loans then outstanding constitutes of
the aggregate amount of the Loans of all the
Lenders then outstanding).
"Commonly Controlled Entity": an entity,
whether or not incorporated, which is
under common control with the Company within
the meaning of Section 4001 of ERISA or is
part of a group which includes the Company and
which is treated as a single employer under
Section 414(b), (c), (m) or (o) of the Code.
"Company": as defined in the introductory
paragraph.
"Company Obligations": the unpaid principal of
and interest on the Loans made to the Company
and all other obligations and liabilities of
the Company to the Administrative Agent or any
Lender (including, without limitation, interest
accruing after the maturity or earlier
acceleration of the Loans and interest accruing
after the filing of any petition in bankruptcy,
or the commencement of any insolvency,
reorganization or like proceeding, relating to
the Company, whether or not a claim for post-
filing or post-petition interest is allowed in
such proceeding), whether direct or indirect,
absolute or contingent, due or to become due,
now existing or hereafter incurred, which may
arise under, out of, or in connection with,
this Agreement, the Loans or any other document
made, delivered or given in connection
therewith, in each case whether on account of
principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including,
without limitation, all fees and disbursements
of counsel to the Administrative Agent or any
Lender) or otherwise.
"Consolidated Capitalization": at any date,
the sum of (i) shareholders' equity of the
Company and (without duplication) its
consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, and
(ii) Consolidated Total Debt.
"Consolidated Total Debt": at any date,
without duplication, the aggregate of all
Indebtedness (including the current portion
thereof) of the Company and its consolidated
Subsidiaries, determined on a consolidated
basis in accordance with GAAP.
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"Contractual Obligation": as to any Person,
any provision of any security issued by such
Person or of any material agreement, instrument
or other undertaking to which such Person is a
party or by which it or any of its property is
bound.
"Debt to Capitalization Ratio": for any Test
Period, the arithmetic average of the ratio of
Consolidated Total Debt to Consolidated
Capitalization, expressed as a percentage, as
of the last day of each fiscal quarter included
in such Test Period.
"Debt to Capitalization Ratio Certificate": as
defined in subsection 6.2(c).
"Default": any event or condition that upon
notice, the lapse of time, or both, would
constitute an Event of Default.
"Designated Lender": a special purpose
corporation that is identified on the
signature pages hereto next to the caption
"Designated Lender" as well as each special
purpose corporation that (i) shall have become
a party to this Agreement pursuant to
subsection 11.6(h) and (ii) is not otherwise a
Lender.
"Designated Lender Note": a promissory note of
a Borrower, substantially in the form of
Exhibit C hereto, evidencing the obligation of
such Borrower to repay Loans made by a
Designated Lender, and "Designated Lender
Notes" means any and all such promissory notes
issued hereunder.
"Designating Lender": each Lender that is
identified as such on the signature pages
hereto next to the caption "Designating Lender"
and immediately below the signature of its
Designated Lender as well as each Lender that
shall designate a Designated Lender pursuant to
subsection 11.6(h).
"Designation Agreement": a designation
agreement in substantially the form of
Exhibit A attached hereto, entered into by a
Lender and a Designated Lender and accepted by
the Company and the Administrative Agent.
"Deutsche Marks" and "DEM": deutsche marks in
lawful currency of the Federal Republic of
Germany.
"Dollar Equivalent": of an amount denominated
in Deutsche Marks, for any day, the amount of
Dollars which could be purchased with the
amount of Deutsche Marks involved in such
computation at the spot rate of exchange
therefor quoted by the Administrative Agent as
of 11:00 a.m. (New York time) on the date three
Business Days prior to such day.
"Dollars" and "$": dollars in lawful currency
of the United Stated of America.
"Effective Date": as defined in Section 5.1.
"Environmental Laws": any and all applicable
material, foreign, Federal, state, local or
municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees,
enforceable requirements of any Governmental
Authority or other Requirements of Law
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(including common law) regulating, relating to
or imposing liability or standards of conduct
concerning protection of human health or the
environment, as now or may at any time
hereafter be in effect.
"ERISA": the Employee Retirement Income
Security Act of 1974, as amended from time to
time.
"Event of Default": any of the events
specified in Section 9, provided that any
requirement for the giving of notice, the lapse
of time, or both, or any other condition, has
been satisfied.
"Existing Credit Agreement": as defined in the
recitals.
"Existing Obligations": all amounts, direct or
indirect, contingent or absolute, of every type
or description (including, without limitation,
principal, interest, facility fees and amounts
owing under Section 3.7(c) of the Existing
Credit Agreement as a result of any prepayment
of the Existing Obligations), and at any time
existing, owing to the Administrative Agent or
any Lender pursuant to the terms of the
Existing Credit Agreement.
"Federal Funds Rate": for any day, the rate
per annum (rounded upwards, if necessary, to
the nearest 1/100 of one percent) equal to the
weighted average of the rates on overnight
Federal funds transactions with members of the
Federal Reserve System arranged by Federal
funds brokers on such day, as published by the
Federal Reserve Bank of New York on the
Business Day next succeeding such day, provided
that (a) if the day for which such rate is to
be determined is not a Business Day, the
Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding
Business Day as so published on the next
succeeding Business Day, and (b) if such rate
is not so published for any day which is a
Business Day, the Federal Funds Rate for such
day shall be the average of the quotations for
the day of such transactions received by the
Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter": the letter agreement dated
October 21, 1997, between the Company and
Commerzbank.
"Financing Lease": any lease of property, real
or personal, the obligations of the lessee in
respect of which are required in accordance
with GAAP to be capitalized on a balance sheet
of the lessee.
"Floating Rate Loan": any Loan bearing
interest based upon a LIBO Rate.
"Foreign Subsidiary": each Subsidiary of the
Company which is organized under the laws of a
jurisdiction other than the District of
Columbia or a State of the United States and
listed as a Foreign Subsidiary on Schedule II.
"Funding Office": for each Type of Loan, the
Funding Office set forth in respect thereof in
the Administrative Schedule.
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"Funding Time": for each Type of Loan, the
Funding Time set forth in respect thereof in
the Administrative Schedule.
"GAAP": generally accepted accounting
principles in the United States of America in
effect from time to time.
"German Collateral": the collateral described
in the German Mortgage and the German Security
Agreement.
"German Mortgage": one or more mortgages dated
on or about December 22, 1997 encumbering all
real property of Pledgor in favor of the
Administrative Agent, for the benefit of the
Administrative Agent and the Lenders, as
security for the Subsidiary Obligations.
"German Security Agreement": the Security
Transfer Agreement dated December 22, 1997, as
amended by that certain Security Release and
Amendment Agreement, dated as of September 30,
1999, encumbering certain tangible personal
property of Pledgor in favor of the
Administrative Agent, for the benefit of the
Administrative Agent and the Lenders, as
security for the Subsidiary Obligations.
"Governmental Authority": any nation or
government, any state or other political
subdivision thereof and any entity exercising
applicable executive, legislative, judicial,
regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the
"guaranteeing person"), any obligation of (a)
the guaranteeing person or (b) another Person
(including, without limitation, any bank under
any letter of credit) to induce the creation of
which the guaranteeing person has issued a
reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary
obligations") of any other third Person (the
"primary obligor") in any manner, whether
directly or indirectly, including, without
limitation, any obligation of the guaranteeing
person, whether or not contingent, (i) to
purchase any such primary obligation or any
property constituting direct or indirect
security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain
working capital or equity capital of the
primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor,
(iii) to purchase property, securities or
services primarily for the purpose of assuring
the owner of any such primary obligation of the
ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to
assure or hold harmless the owner of any such
primary obligation against loss in respect
thereof; provided, however, that the term
Guarantee Obligation shall not include (x)
endorsements of instruments for deposit or
collection in the ordinary course of business
or (y) obligations of the Company or any of its
Subsidiaries under arrangements entered into in
the ordinary course of business whereby the
Company or such Subsidiary sells inventory to
other Persons under agreements obligating the
Company or such Subsidiary to repurchase such
inventory, at a price not exceeding the
original sale price, upon the occurrence of
certain specified events. The amount of any
Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an
amount equal to the stated or determinable
amount of the primary obligation in respect of
which such Guarantee Obligation is made and (b)
the maximum
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amount for which such guaranteeing person may
be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum
amount for which such guaranteeing person may
be liable are not stated or determinable, in
which case the amount of such Guarantee
Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in
respect thereof as determined by the Company in
good faith.
"Guarantor": the Company in its capacity as a
guarantor pursuant to Section 8 of this
Agreement.
"Indebtedness": of any Person at any date, all
indebtedness or obligations of such Person
(other than current trade liabilities incurred
in the ordinary course of business and payable
in accordance with customary practices), as
reflected on the balance sheet of such Person
prepared in accordance with GAAP.
"Insolvency": with respect to any
Multiemployer Plan, the condition that such
Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of
Insolvency.
"Interest Payment Date": (a) as to any
Floating Rate Loan having an Interest Period of
three months or less, the last day of such
Interest Period, (b) as to any Floating Rate
Loan having an Interest Period longer than
three months, each day which is three months
after the first day of such Interest Period and
the last day of such Interest Period, (c) as to
any Loan, the Termination Date and any other
date on which the principal amount of any Loan
is repaid (whether by prepayment or
acceleration) and (d) as to any Base Rate Loan,
the last day of each March, June, September and
December.
"Interest Period": with respect to any
Floating Rate Loan:
(i) initially, the period commencing on the
Borrowing Date and ending one, two, three or
six months thereafter, as selected by the
Company in the Notice of Borrowing and
Indemnity Agreement;
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period
applicable to such Floating Rate Loan and
ending one, two, three or six months
thereafter, as selected by the Company in a
Notice of Interest Period with respect thereto;
or
(iii) if no Notice of Interest Period has been
timely delivered by the Company, the Interest
Period shall be the period commencing on the
last day of the preceding Interest Period and
ending one month thereafter; provided, that all
of the foregoing provisions relating to
Interest Periods are subject to the following:
(1) if any Interest Period would otherwise end
on a day that is not a Business Day, such
Interest Period shall be extended to the next
succeeding
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Business Day unless the result of such
extension would be to carry such Interest
Period into another calendar month in which
event such Interest Period shall end on the
immediately preceding Business Day;
(2) any Interest Period that would otherwise
extend beyond the Termination Date shall end on
the Termination Date; and
(3) any Interest Period that begins on the
last Business Day of a calendar month (or on a
day for which there is no numerically
corresponding day in the calendar month at the
end of such Interest Period) shall end on the
last Business Day of a calendar month.
"Lender": as defined in the statement of
parties and shall include Designated
Lenders; provided, however, that the term
"Lender" shall exclude each Designated Lender
when used in reference to (a) a Loan, except to
the extent a Designated Lender is the obligee
of a Loan actually funded by it pursuant to
subsection 2.8, (b) the Commitments or (c)
terms relating to the Loans (except to the
extent a Designated Lender is the obligee of a
Loan actually funded by it pursuant to
subsection 2.8) and the Commitments.
"LIBO Rate": for any Interest Period, the rate
for deposits in Dollars for a period
beginning on the first day of such Interest
Period and ending on the last day of such
Interest Period which appears on the Telerate
Page 3750 as of 11:00 a.m. London time on the
second London Banking Day before the first day
of such Interest Period; provided that if such
rate does not appear on the Telerate Screen
Page 3750, the LIBO Rate shall mean the rate
for deposits of an amount comparable to the
aggregate of the outstanding Loans on the
London interbank Dollar market for such
Interest Period determined by Administrative
Agent to be the LIBO Rate offered by the
Administrative Agent to leading banks in the
London Eurodollar interbank market at 11:00
a.m. London time on the Quotation Day for such
Interest Period adjusted for any reserve
requirements in effect on the first day of such
Interest Period.
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge or other
security interest or any preference, priority
or other security agreement or preferential
arrangement of any kind or nature whatsoever
(including, without limitation, any conditional
sale or other title retention agreement and any
Financing Lease having substantially the same
economic effect as any of the foregoing).
"Liquidity Bank": for any Designated Lender,
at any date of determination, the collective
reference to the financial institutions which
at such date are providing liquidity or credit
support facilities to or for the account of
such Designated Lender to fund such Designated
Lender's obligations hereunder or to support
the securities, if any, issued by such
Designated Lender to fund such obligations.
"Loan": any Floating Rate Loan or Base Rate
Loan made by any Lender pursuant to this
Agreement.
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"Loan Documents": this Agreement, each Note,
the German Mortgage, the German Security
Agreement, each Notice of Borrowing and
Indemnity Agreement and each Notice of Interest
Period.
"London Banking Day": any day on which banks
in London are open for general banking
business, including dealings in foreign
currency and exchange.
"Majority Lenders": at any time, Lenders the
Commitment Percentages of which aggregate more
than 66-2/3%.
"Material Adverse Effect": a material adverse
effect on (a) the business, operations,
property or condition (financial or otherwise)
of the Company and its Subsidiaries taken as a
whole or (b) the validity or enforceability of
this or any of the other Loan Documents or the
rights or remedies of the Administrative Agent
or the Lenders hereunder or thereunder.
"Material Debt Instrument": those agreements
and other instruments of Indebtedness of the
Borrowers listed on Schedule IV, which list
shall include any such instrument under which
any Borrower is an obligor and under which the
outstanding amount and/or available commitment
to extend credit exceeds $10,000,000.
"Materials of Environmental Concern": any
gasoline or petroleum (including crude oil or
any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or
wastes, defined or regulated as such in or
under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"Multiemployer Plan": a Plan which is a multi-
employer plan as defined in Section 4001(a)(3)
of ERISA.
"Negative Covenants": each and every financial
and negative covenant contained in the
Principal Credit Agreement as such covenants
are in effect from time to time, which, as of
the date hereof, are contained in Section 10 of
the Principal Credit Agreement.
"New Lender": each Person that becomes a
Lender under this Agreement after the date of
this Agreement.
"Non-Excluded Taxes": as defined in subsection
3.6.
"Note": a promissory note executed by a
Borrower, payable to the order of a Lender, in
a maximum principal amount equal to such
Lender's Commitment for such Borrower and
substantially in the form of Exhibit C.
"Notice of Borrowing and Indemnity Agreement":
with respect to the Loans, the notice and
indemnity agreement in the form of Exhibit B
from the Company and the Subsidiary Borrower
delivered to the Administrative Agent, in the
manner and by the time specified in the
Administrative Schedule.
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"Notice of Interest Period": with respect to a
Floating Rate Loan, a notice from the Company
in respect of such Loan, containing the
information in respect of such Loan and
delivered to the Administrative Agent, in the
manner and by the time specified for a Notice
of Interest Period in the Administrative
Schedule.
"Obligations": the collective reference to the
Company Obligations and to the Subsidiary
Obligations.
"Participants": as defined in subsection
11.6(b).
"Payment Office": for each Type of Loan, the
Payment Office set forth in respect thereof in
the Administrative Schedule.
"Payment Time": for each Type of Loan, the
Payment Time set forth in respect thereof in
the Administrative Schedule.
"PBGC": the Pension Benefit Guaranty
Corporation established pursuant to
Subtitle A of Title IV of ERISA.
"Permitted Investor": Xxxxxx Xxxxxx, Chairman
of the Board of Directors and Chief Executive
Officer of the Company on the date hereof.
"Person": an individual, partnership,
corporation, business trust, joint stock
company, trust, unincorporated association,
joint venture, Governmental Authority or other
entity of whatever nature.
"Plan": at a particular time, any employee
benefit plan which is covered by ERISA and in
respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were
terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledgor": Xxxxxx Audio Electronic Systems
GmbH, an indirect, wholly-owned Subsidiary of
the Subsidiary Borrower.
"Principal Credit Agreement": (i) the Multi-
Currency, Multi-Option Credit Agreement, dated
as of September 30, 1994, among the Company,
certain of its Subsidiaries, Chemical
Securities Inc., as arranger, Nationsbank of
North Carolina, N.A., as co-agent, and
Chemical Bank, as administrative agent,
together with all amendments, modifications,
supplements and waivers thereof (collectively,
the "Revolving Credit Agreement"), and (ii) if
the Revolving Credit Agreement is no longer in
effect, any other credit agreement or loan
agreement which provides the Company and all or
some of its Subsidiaries with their primary
source of working capital borrowings.
"Properties": as defined in subsection 4.16.
"Quotation Day": in respect of the
determination of the LIBO Rate for any
Interest Period, the day on which quotations
would ordinarily be given by prime banks in the
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London interbank market for deposits in Dollars
for delivery on the first day of such Interest
Period and for the term of the Interest Period;
provided, that if quotations would ordinarily
be given on more than one date, the Quotation
Day for such Interest Period shall be the last
of such dates. On the date hereof, the
Quotation Day in respect of any Interest Period
is customarily the last day prior to the
beginning of such Interest Period which is at
least two London Banking Days prior to the
beginning of such Interest Period.
"Register": as defined in subsection 11.6(d).
"Regulation G": Regulation G of the Board of
Governors of the Federal Reserve System as in
effect from time to time.
"Regulation U": Regulation U of the Board of
Governors of the Federal Reserve System as in
effect from time to time.
"Reorganization": with respect to any
Multiemployer Plan, the condition that such
plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set
forth in Section 4043(b) of ERISA, other than
those events as to which the thirty day notice
period is waived under subsections. 13, .14,
.16, .18, .19 or .20 of PBGC Reg. section 2615.
"Requirement of Law": as to any Person, the
Certificate of Incorporation and By-Laws or
other organizational or governing documents of
such Person, and any material law, treaty, rule
or regulation or determination of an arbitrator
or a court or other Governmental Authority, in
each case applicable to or binding upon such
Person or any of its property or to which such
Person or any of its property is subject.
"Responsible Officer": the chief executive
officer, the president, the chief financial
officer or the vice president for financial or
legal affairs of the Company.
"Schedule Amendment": an instrument of
amendment for purposes of amending certain
Schedules hereto, which instrument shall be in
form and substance satisfactory to the
Administrative Agent and the Company.
"Single Employer Plan": any Plan which is
covered by Title IV of ERISA, but which is not
a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation,
partnership or other entity, of which shares of
stock or other ownership interests having
ordinary voting power (other than stock or such
other ownership interests having such power
only by reason of the happening of a
contingency) to elect a majority of the board
of directors or other managers of such
corporation, partnership or other entity are at
the time owned, or the management of which is
otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to
a Subsidiary or Subsidiaries of the Company.
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"Subsidiary Borrower": as defined in the
statement of parties.
"Subsidiary Obligations": the unpaid principal
of and interest on the Loans made to the
Subsidiary Borrower and all other obligations
and liabilities of the Subsidiary Borrower to
the Administrative Agent or any Lender
(including, without limitation, interest
accruing after the maturity or earlier
acceleration of the Loans and interest accruing
after the filing of any petition in bankruptcy,
or the commencement of any insolvency,
reorganization or like proceeding, relating to
the Subsidiary Borrower, whether or not a claim
for post-filing or post-petition interest is
allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred,
which may arise under, out of, or in connection
with, this Agreement, the Loans, the Notes or
any other document made, delivered or given in
connection therewith, in each case whether on
account of principal, interest, proportional
reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation,
all fees and disbursements of German counsel to
the Administrative Agent or any Lender) or
otherwise.
"Termination Date": August 30, 2002.
"Test Period": for any fiscal quarter of the
Company, the four consecutive fiscal
quarters ended immediately prior thereto.
"Transferee": as defined in subsection
11.6(f).
"Type": in respect of any Loan, its character
as a Floating Rate Loan or a Base Rate Loan, as
the case may be.
"Voting Stock": stock of the class or classes
pursuant to which the holders thereof have the
general voting power under ordinary
circumstances to elect at least a majority of
the Board of Directors of the Company
(irrespective of whether or not at the time
stock of any other class or classes shall have
or might have voting power by reason of the
happening of any contingency).
1.2. Other Definitional Provisions.
(a) Unless otherwise specified therein, all
terms defined in this Agreement shall have the
defined meanings when used in any certificate
or other document made or delivered pursuant
hereto.
(b) As used herein and in any certificate or
other document made or delivered pursuant
hereto, accounting terms relating to the
Company and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not
defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and
"hereunder" and words of similar import when
used in this Agreement shall refer to this
Agreement as a whole and not to any particular
provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are
to this Agreement unless otherwise specified.
References to Schedules to this Agreement are
references
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to such Schedules as the same may from time to
time be amended or otherwise modified in
accordance with the terms hereof.
(d) The meanings given to terms defined herein
shall be equally applicable to both the
singular and plural forms of such terms.
SECTION 2. THE LOANS
2.1. Loans.
(a) Subject to the terms and conditions
hereof, each Lender severally agrees to make a
term loan in Dollars to the Company and a term
loan in Dollars to the Subsidiary Borrower
(collectively, the "Loans") on the Effective
Date in the Dollar Equivalents of the amounts
set forth for such Lender for such Borrower in
Schedule I. Each Lender's Commitment shall
terminate (i) upon the making by such Lender of
its Loans hereunder or (ii) at 3:00 p.m. New
York City time on the Effective Date.
2.2. Procedure for Borrowing. The Company may
request the Lenders to make the Loans on the
Effective Date by delivering a Notice of
Borrowing and Indemnity Agreement. The Notice
of Borrowing and Indemnity Agreement shall
request Loans to be made on the Effective Date
in Dollars for each of the Company and the
Subsidiary Borrower in an amount equal to the
aggregate of the Commitments for such Borrower
and shall specify the initial Interest Periods.
Upon receipt of the Notice of Borrowing and
Indemnity Agreement from the Company, the
Administrative Agent shall promptly notify each
Lender thereof. Subject to the terms and
conditions hereof, each Lender will make the
amount of its pro rata share of the Loans
available to the Administrative Agent for the
account of the Borrowers at the Funding Office,
and at or prior to the Funding Time, in Dollars
immediately available to the Administrative
Agent. Such borrowing will then be made
available to the Borrowers at the Funding
Office, in like funds as received by the
Administrative Agent.
2.3. Repayment of Loans; Evidence of Debt.
(a) Each Borrower hereby unconditionally
promises to pay to the Administrative Agent for
the account of each Lender on the Termination
Date (or such earlier date on which the Loans
become due and payable pursuant to Section 9),
the then unpaid principal amount of each Loan
made by such Lender. Each Borrower hereby
further agrees to pay interest on the unpaid
principal amount of the Loans made to such
Borrower from time to time outstanding from the
date hereof until payment in full thereof at
the rates per annum, and on the dates, set
forth in subsection 2.6.
(b) Each Lender shall maintain in accordance
with its usual practice an account or accounts
evidencing indebtedness of each Borrower to
such Lender resulting from each Loan of such
Lender from time to time, including the amounts
of principal and interest payable and paid to
such Lender from time to time under this
Agreement.
(c) The Administrative Agent shall maintain
the Register pursuant to subsection 11.6(d),
and a sub-account therein for each Lender, in
which shall be recorded (i) the
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amount of each Loan made hereunder, (ii) the
amount of any principal or interest due and
payable or to become due and payable from each
Borrower to each Lender, (iii) the amount of
any sum received by the Administrative Agent
from each Borrower in respect of Loans, and the
amount of each Lender's share thereof and (iv)
the amount and holder of each Note.
(d) The entries made in the Register and the
accounts of each Lender maintained pursuant to
subsection 2.3(b) shall, to the extent
permitted by applicable law, be prima facie
evidence of the existence and amounts of the
obligations of each Borrower therein recorded;
provided, however, that the failure of any
Lender or the Administrative Agent to maintain
the Register or any such account, or any error
therein, shall not in any manner affect the
obligation of each Borrower to repay (with
applicable interest) the Loan made to such
Borrower by such Lender in accordance with the
terms of this Agreement.
(e) The obligation of the Borrowers to repay
the Loans of each Lender shall be evidenced by
(in addition to this Agreement) the Notes.
2.4. [Reserved].
2.5. Optional Prepayments. Any Borrower may,
at any time and from time to time, prepay the
Loans made to such Borrower, in whole or in
part, without premium or penalty, upon at least
four Business Days' irrevocable notice to the
Administrative Agent, specifying the date and
amount of prepayment. Upon receipt of any such
notice the Administrative Agent shall promptly
notify each Lender thereof. If any such notice
is given, the amount specified in such notice
shall be due and payable on the date specified
therein, together with any amounts payable
pursuant to subsection 3.7. Partial
prepayments shall be in an aggregate principal
amount of $2,500,000 or $500,000 multiples in
excess thereof. Loans prepaid may not be
reborrowed.
2.6. Interest Rates and Payment Dates for
Loans.
(a) Each Floating Rate Loan shall bear
interest for each day during each Interest
Period with respect thereto at a rate per annum
equal to the LIBO Rate for such Interest Period
plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at
a rate per annum equal to the Base Rate plus
the Applicable Margin.
(c) If all or a portion of (i) the principal
amount of any Loan or (ii) any interest payable
thereon shall not be paid when due (whether at
the stated maturity, by acceleration or
otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in
the case of overdue principal, the rate that
would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection
plus 2% or (y) in the case of overdue interest,
the rate which would be applicable to overdue
principal pursuant to clause (x) of this
subsection, in each case from the date of such
non-payment until such amount is paid in full
(as well after as before judgment).
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(d) Interest on each Loan shall be payable in
arrears on each Interest Payment Date;
provided, that interest accruing pursuant to
paragraph (c) of this subsection shall be
payable from time to time on demand.
2.7. Inability to Determine Interest Rate.
If, on or prior to the Quotation Day for any
Interest Period in respect of any Floating Rate
Loan:
(a) the Administrative Agent shall have
determined (which determination shall be
conclusive absent manifest error) that, by
reason of circumstances affecting the relevant
market generally, adequate and reasonable means
do not exist for ascertaining the LIBO Rate for
such affected Interest Period, or
(b) the Administrative Agent shall have
received notice from Lenders having Loans
comprising at least 33-1/3% of the aggregate
amount of the Loans that the LIBO Rate
determined or to be determined for such
affected Interest Period will not adequately
and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of
making or maintaining their affected Floating
Rate Loans during such affected Interest
Period, the Administrative Agent shall give
telecopy or telephonic notice thereof to the
Company and the Lenders as soon as practicable
thereafter. If such notice is given, all Loans
thereafter outstanding on the first day of such
Interest Period shall automatically be
converted to Base Rate Loans and shall remain
as such until such notice has been withdrawn by
the Administrative Agent. Following the
withdrawal of any such notice, all Base Rate
Loans then outstanding shall be converted as
soon as practicable thereafter to bear interest
at the LIBO Rate with such Interest Period as
the Company shall designate in writing to the
Administrative Agent or, if the Company fails
to specify an Interest Period, a one month
Interest Period.
2.8. Loans by Designated Lenders. For any
Lender that is a Designating Lender, any Loan
to be made by such Lender may from time to time
be made by its Designated Lender in such
Designated Lender's sole discretion, but
nothing herein shall constitute a commitment to
make Loans by such Designated Lender; provided
that, if any Designated Lender elects not to,
or fails to, make any such Loan, its
designating Lender hereby agrees that it shall
make such Loan pursuant to the terms hereof.
Any Loan actually funded by a Designated Lender
shall constitute a utilization of the
Commitment of the Designating Lender for all
purposes hereunder.
SECTION 3. CERTAIN PROVISIONS APPLICABLE TO
THE LOANS
3.1. Certain Fees. The Company agrees to pay
to the Administrative Agent, for its own
account, an administrative agent's fee, in the
amounts and on the dates set forth in the
Fee Letter.
3.2. Computation of Interest and Fees.
(a) All interest shall be calculated on the
basis of a 360-day year based on the actual
days elapsed. If the Loans are made as
Floating Rate Loans, the Administrative Agent
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shall as soon as practicable notify the
Borrowers and the Lenders of each determination
of the applicable LIBO Rate.
(b) Each determination of an interest rate by
the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive
and binding on the Borrowers and the Lenders in
the absence of manifest error.
3.3. Pro Rata Treatment and Payments.
(a) The Loans shall be made in Dollars by each
Lender for the full amount of such Lender's
Commitment. Each payment (including each
prepayment) by any Borrower on account of
principal of and interest on any Loans shall be
made pro rata according to the respective
principal amounts of the Loans of such Borrower
then due and owing to the Lenders. All
payments (including prepayments) to be made by
any Borrower hereunder or under any Note,
whether on account of principal, interest, fees
or otherwise, shall be made without set off or
counterclaim. All payments in respect of Loans
shall be made in Dollars and in immediately
available funds at the Payment Office, and at
or prior to the Payment Time, for such Type of
Loans, on the due date thereof. All other
payments under this Agreement or any other Loan
Document shall be made in Dollars in
immediately available funds at the applicable
Payment Office. The Administrative Agent shall
distribute to the Lenders any payments received
by the Administrative Agent promptly upon
receipt in like funds as received. If any
payment hereunder or under any Note becomes due
and payable on a day other than a Business Day,
such payment shall be extended to the next
succeeding Business Day (unless such Business
Day shall be in the next calendar month, in
which case such payment shall be due on the
next preceding Business Day), and, with respect
to payments of principal, interest thereon
shall be payable at the then applicable rate
during such extension.
(b) The Administrative Agent shall assume that
each Lender will make available to the
Administrative Agent an amount equal to the
aggregate of its Commitments, and the
Administrative Agent shall, in reliance upon
such assumption, make available to the relevant
Borrower an amount equal to the aggregate of
the Commitments for such Borrower. If such
amount is not made available to the
Administrative Agent by any Lender by the
required time on the Effective Date, such
Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at
a rate equal to the rate customary in Dollars
for settlement of similar interbank
obligations, as quoted by the Administrative
Agent, in each case for the period until
such Lender makes such amount immediately
available to the Administrative Agent. A
certificate of the Administrative Agent
submitted to any Lender with respect to any
amounts owing under this subsection shall be
conclusive in the absence of manifest error.
3.4. Illegality. Notwithstanding any other
provision herein, if the adoption of or any
change in any Requirement of Law or in the
interpretation thereof by any Governmental
Authority charged with the administration or
interpretation thereof shall make it unlawful
for any Lender to make or maintain Floating
Rate Loans to any Borrower as contemplated by
this Agreement, the commitment of such Lender
hereunder to make or maintain Floating Rate
Loans to such Borrower shall forthwith be
cancelled to the extent necessary to remedy or
prevent such illegality and all Floating Rate
Loans then outstanding shall automatically be
converted to Base
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Rate Loans and shall remain as such until such
time as Floating Rate Loans may once again be
lawfully made and maintained. As soon as
practicable following the date on which it once
again becomes lawful to make and maintain
Floating Rate Loans, all Base Rate Loans then
outstanding shall be converted to bear interest
at the LIBO Rate with such Interest Period as
the Company shall designate in writing to the
Administrative Agent or, if the Company fails
to specify an Interest Period, a one month
Interest Period.
3.5. Requirements of Law.
(a) If after the date hereof the adoption of
or any change in any Requirement of Law or in
the interpretation thereof by any Governmental
Authority charged with the administration or
interpretation thereof or compliance by any
Lender with any request or directive (whether
or not having the force of law) applicable
generally in the jurisdiction of such Lender to
banking institutions of the same type as such
Lender:
(i) shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement
or any Floating Rate Loan made by it to any
Borrower, or change the basis of taxation of
payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by
subsection 3.6 and changes in the rate of tax
on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable
any reserve, special deposit, compulsory loan
or similar requirement against assets held by,
deposits or other liabilities in or for the
account of, advances, loans or other extensions
of credit by, or any other acquisition of funds
by, any office of such Lender which is not
otherwise included in the determination of the
LIBO Rate; or
(iii) shall impose on such Lender any other
condition affecting Floating Rate Loans made by
such Lender to any Borrower;
and the result of any of the foregoing is to
increase the cost to such Lender by an amount
which such Lender deems to be material, of
making or maintaining Floating Rate Loans, or
to reduce any amount receivable hereunder or
under any Note in respect thereof, and such
Lender has no reasonable means (as it shall
determine in its sole discretion) to avoid such
costs or reductions, then, in any such case,
the Company shall promptly pay such Lender
following receipt of a certificate of such
Lender in accordance with subsection 3.5(d)
such additional amount or amounts as will
compensate such Lender for such increased cost
or reduction suffered.
(b) If any Lender shall have determined that
the adoption of or any change in any
Requirement of Law regarding capital adequacy
or in the interpretation thereof by any
Governmental Authority charged with the
administration or interpretation thereof or
compliance by such Lender or any corporation
controlling such Lender with any request or
directive regarding capital adequacy (whether
or not having the force of law) made subsequent
to the date hereof shall have the effect of
reducing the rate of return on such Lender's or
such corporation's capital as a consequence of
its obligations hereunder to a level below that
which such Lender or such corporation could
have achieved but for such adoption, change or
compliance (taking into
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consideration such Lender's or such
corporation's policies with respect to capital
adequacy) by an amount deemed by such Lender to
be material, then from time to time, the
Company shall promptly pay to such Lender
following receipt of a certificate of such
Lender in accordance with subsection 3.5(d)
such additional amount or amounts as will
compensate such Lender for any such reduction
suffered. Notwithstanding any other provision
in this paragraph (b), none of the
Lenders shall be entitled to demand
compensation pursuant to this paragraph (b) if
it shall not then be the general practice of
such Lender to demand such compensation in
similar circumstances under comparable
provisions of other comparable credit
agreements.
(c) In addition to, and without duplication
of, amounts which may become payable from time
to time pursuant to paragraphs (a) and (b) of
this subsection 3.5, each Borrower agrees to
pay to each Lender which requests compensation
under this paragraph (c) by notice to such
Borrower, on the last day of each Interest
Period with respect to any Floating Rate
Loans made by such Lender to such Borrower, at
any time when such Lender shall be required to
maintain reserves against "Eurocurrency
liabilities" under Regulation D of the Board
(or, at any time when such Lender may be
required by the Board or by any other
Governmental Authority, whether within the
United States or in another relevant
jurisdiction, to maintain reserves against
any other category of liabilities which
includes deposits by reference to which the
LIBO Rate is determined as provided in this
Agreement or against any category of extensions
of credit or other assets of such Lender which
includes any Floating Rate Loans), an
additional amount (determined by such Lender's
calculation or, if an accurate calculation is
impracticable, reasonable estimate using such
reasonable means of allocation as such Lender
shall determine) equal to the actual costs, if
any, incurred by such Lender during such
Interest Period as a result of the
applicability of the foregoing reserves to such
Floating Rate Loans.
(d) A certificate of each Lender setting forth
such amount or amounts as shall be necessary to
compensate such Lender as specified in
paragraph (a), (b) or (c) above, as the case
may be, and setting forth in reasonable detail
an explanation of the basis of requesting such
compensation in accordance with paragraph (a),
(b) or (c) above, including calculations in
detail comparable to the detail set forth in
certificates delivered by such Lender in
similar circumstances under comparable
provisions of other comparable credit
agreements, shall be delivered to the relevant
Borrower and shall be conclusive absent
manifest error. The relevant Borrower shall
pay each Lender the amount shown as due on any
such certificate delivered to it within 10 days
after its receipt of the same.
(e) Failure on the part of any Lender to
demand compensation for any increased costs or
reduction in amounts received or receivable or
reduction in return on capital with respect to
any period shall not constitute a waiver of
such Lender's right to demand compensation with
respect to such period or any other period,
except that no Lender shall be entitled to
compensation under this subsection 3.5 for any
costs incurred or reduction suffered with
respect to any date unless such Lender shall
have notified the relevant Borrower that it
will demand compensation for such costs or
reductions under paragraph (d) above, not more
than six months after the later of (i) such
date and (ii) the date on which such Lender
shall have become aware of such costs or
reductions. The protection of this subsection
3.5 shall be available to each Lender
regardless of any possible contention of the
invalidity or inapplicability of the law, rule,
regulation, guideline or other change or
condition that shall have occurred or been
imposed.
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(f) The agreements in this subsection shall
survive the termination of this Agreement and
the payment of the Loans and all other amounts
payable hereunder and under the Notes.
3.6. Taxes.
(a) All payments made to the Administrative
Agent or any Lender under this Agreement shall
be made free and clear of, and without
deduction or withholding for or on account of,
any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or
assessed by any Governmental Authority,
excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed
on the Administrative Agent or any Lender as a
result of a present or former connection
between the Administrative Agent or such Lender
and the jurisdiction of the Governmental
Authority imposing such tax or any political
subdivision or taxing authority thereof or
therein (other than any such connection arising
solely from the Administrative Agent or such
Lender having executed, delivered or performed
its obligations or received a payment under, or
enforced, this Agreement); provided, however,
that the Lender and the Administrative Agent,
as the case may be, shall have complied with
the relevant provisions of this subsection 3.6.
If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are
required to be withheld from any amounts
payable to the Administrative Agent or any
Lender hereunder or under any Note, the
amounts so payable to the Administrative Agent
or such Lender shall be increased to the extent
necessary to yield to the Administrative Agent
or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other
amounts payable hereunder or under such Note
at the rates or in the amounts specified in
this Agreement. Whenever any Non-Excluded
Taxes are payable by any Borrower, as promptly
as possible thereafter such Borrower shall
timely pay such Non-Excluded Taxes and shall
send to the Administrative Agent for its own
account or for the account of such Lender, as
the case may be, a certified copy of an
original official receipt received by such
Borrower showing payment thereof. If such
Borrower fails to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or
fails to remit to the Administrative Agent the
required receipts or other required documentary
evidence, such Borrower shall indemnify the
Administrative Agent and the Lenders for any
incremental taxes, interest or penalties that
may become payable by the Administrative Agent
or any Lender as a result of any such failure.
Notwithstanding the foregoing, no Borrower
shall be required to make any payments in
respect of Non-Excluded Taxes to any Lender
that has changed the Funding Office at which it
maintains the Loans to which such Non-Excluded
Taxes relate (other than any such change in
Funding Office made by such Lender pursuant to
subsection 3.8 to avoid or minimize the
application or effects of subsection 3.5 or
3.6) in an amount greater than such Borrower
would have been required to pay pursuant to
this subsection 3.6 if no such change in
Funding Office had occurred. The agreements in
this subsection shall survive the termination
of this Agreement, and the payment of the Loans
and all other amounts payable hereunder and
under the Notes.
(b) Each Lender shall:
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(i) on or before the Effective Date, deliver
to the Company and the Administrative Agent (A)
in the case of a lender that is not
incorporated or organized under the laws of the
United States or a state thereof (a "Non-U.S.
Lender") two duly completed copies of United
States Internal Revenue Service Form W-8BEN or
Form W-8ECI, and (B) in the case of a lender
that is incorporated or organized under the
laws of the United States or a state thereof (a
"U.S. Lender") an Internal Revenue Service Form
W-9, or successor applicable form, as the case
may be;
(ii) deliver to the Company and the
Administrative Agent two further copies of any
such form or certification on or before the
date that any such form or certification
expires or becomes obsolete and after the
occurrence of any event requiring a change in
the most recent form previously delivered by it
to the Company; and
(iii) obtain such extensions of time for
filing and complete such forms or
certifications as may reasonably be requested
by the Company or the Administrative Agent;
unless in any such case an event (including,
without limitation, any change in treaty, law
or regulation) (a "Tax Event") has occurred
after the date such Lender becomes a Lender
hereunder and prior to the date on which any
such delivery would otherwise be required which
renders all such forms inapplicable or which
would prevent such Lender from duly completing
and delivering any such form with respect to it
and such Lender so advises the Company and the
Administrative Agent. Each Lender delivering a
form pursuant to subsection 3.6(b) shall
certify (i) in the case of a Non-U.S. Lender,
that it is entitled to receive payments under
this Agreement in respect of Loans to the
Company without deduction or withholding of any
United States federal income taxes and (ii) in
the case of a U.S. Lender, that it is entitled
to an exemption from United States backup
withholding tax; provided that, if a Tax Event
occurs with respect to a Non-U.S. Lender and
such Lender can no longer certify that it is
entitled to receive payments under this
Agreement in respect of Loans to the Company
without deduction or withholding of any United
States federal income taxes, then (1) such
Lender shall certify the rate at which
United States Tax should be withheld from
payments made hereunder to such Lender, (2)
notwithstanding subsection 11.6, no Loans may
be assigned to such Lender without the consent
of the Company unless such assignment occurs at
any time when any of the events described in
subsection 9(f) shall have occurred and be
continuing and (3) the Company may prepay all
or part of the Loans made by such Lender to the
Company pursuant to subsections 2.5 and 3.3(a),
provided that such payment need not be made pro
rata. Each Person that shall become a Lender
or a Participant pursuant to subsection 11.6
shall, upon the effectiveness of the related
transfer, be required to provide all of the
forms and statements required pursuant to this
subsection, provided that in the case of a
Participant such Participant shall furnish all
such required forms and statements to the
Lender from which the related participation
shall have been purchased.
(c) Each Lender further agrees to use
reasonable efforts (consistent with legal
and regulatory restrictions) to deliver to the
Subsidiary Borrower, promptly upon any request
therefor from time to time, such forms,
documents and other information as may be
required by
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applicable law from time to time and to file
all appropriate forms to obtain a certificate
or other appropriate documents from the
appropriate governmental authorities to
establish that payments made in respect of
Loans to the Subsidiary Borrower can be made
without (or at a reduced rate of) withholding
of any Non-Excluded Taxes; provided, however,
that if such Lender is or becomes unable, by
virtue of any applicable law, rule or
regulation, to establish such exemption or
reduction the Borrowers shall nonetheless
remain obligated under subsection 3.6(a) above
to pay the amounts described therein and
provided, further, that no Lender shall be
required to take any action hereunder which in
the discretion of such Lender would cause such
Lender and its Funding Office(s) to suffer a
material, economic, legal or regulatory
disadvantage.
3.7. Indemnity. The Company agrees to
indemnify each Lender and to hold each Lender
harmless from any loss or reasonable expense
which such Lender may sustain or incur as a
consequence of (a) default by any Borrower in
making a borrowing of a Loan after the
Company has given the Notice of Borrowing and
Indemnity Agreement requesting the same in
accordance with the provisions of this
Agreement, (b) default by any Borrower in
making any prepayment after such Borrower has
given a notice thereof in accordance with the
provisions of this Agreement, (c) the making by
any Borrower of a prepayment of Floating Rate
Loans on a day which is not the last day of an
Interest Period or the maturity date, as the
case may be, with respect thereto or (d) the
conversion of Loans from one Type to another
Type pursuant to subsections 2.7 and 3.4. Such
other loss or reasonable expense shall be equal
to the sum of (x) such Lender's actual costs
and expenses incurred (other than any lost
profits) in connection with, or by reason of,
any of the foregoing events, including all
costs incurred in connection with the
termination, settlement or modification of any
interest rate swap agreement entered into with
respect to the Loans, and (y) an amount equal
to the excess, if any, as reasonably determined
by the Lender of (i) its cost of obtaining the
funds for the Loan being paid, prepaid or
converted (assumed to be the LIBO Rate
applicable thereto) for the period from and
including the date for such payment, prepayment
or conversion to but excluding the last day of
the Interest Period for such Loan over (ii) the
amount of interest (as reasonably determined by
such Lender) that would be realized by such
Lender in reemploying the funds so paid,
prepaid or converted for such period or
Interest Period, as the case may be. A
certificate of any Lender setting forth any
amount or amounts, including calculations in
reasonable detail, that such Lender is entitled
to receive pursuant to this subsection 3.7
shall be delivered to the Company and shall be
conclusive absent manifest error. This
covenant shall survive the termination of this
Agreement and the payment of the Loans and all
other amounts payable hereunder and under the
Notes.
3.8. Change of Funding Office.
(a) Each Lender agrees that upon the
occurrence of any event giving rise to the
operation of subsection 3.4, 3.5 or 3.6, it
will use reasonable efforts (consistent with
legal and regulatory restrictions) to file any
certificate or document requested by the
Company or designate a different Funding Office
for Loans affected by such event with the
object of avoiding or minimizing the
consequences of such event; provided, that such
filing or designation is made on terms that, in
the sole judgment of such Lender, cause such
Lender and its Funding Office(s) to suffer no
material economic, legal or regulatory
disadvantage; and, provided, further, that
nothing in this subsection 3.8 shall affect or
postpone any of the obligations of any Borrower
or the rights of any Lender pursuant to
subsection 3.4, 3.5 or 3.6.
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(b) In the event that any Lender shall have
delivered a notice or certificate pursuant to
subsections 3.4, 3.5 or 3.6, the Borrowers
shall have the right, but not the obligation,
at their own expense, upon notice to such
Lender and the Administrative Agent, to replace
such Lender with an assignee (in accordance
with and subject to the restrictions contained
in subsection 11.6) approved by the
Administrative Agent (which approval shall not
be unreasonably withheld), and such Lender
hereby agrees to transfer and assign without
recourse (in accordance with and subject to the
restrictions contained in subsection 11.6) all
its interests, rights and obligations under
this Agreement and the other Loan Documents to
such assignee; provided, however, that no
Lender shall be obligated to make any such
assignment unless (i) such assignment shall not
conflict with any Requirement of Law, (ii) such
assignee shall pay to the affected Lender in
immediately available funds on the date of such
assignment the principal of the Loans made by
such Lender hereunder and (iii) the Borrowers
shall pay to the affected Lender in immediately
available funds on the date of such assignment
the interest accrued to the date of payment on
the Loans made by such Lender hereunder and all
other amounts accrued for such Lender's account
or owed to it hereunder or under any Note
(including any amount that would be payable to
such Lender pursuant to subsection 3.7 if such
assignment were, instead, a prepayment).
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the
Lenders to enter into this Agreement and to
make the Loans, the Company hereby represents
and warrants to the Administrative Agent and
each Lender that:
4.1. Financial Condition. The consolidated
balance sheet of the Company and its
consolidated Subsidiaries as at June 30, 1999
and the related consolidated statements of
income and of cash flows for the fiscal year
ended on such date, reported on by KPMG LLP,
copies of which have heretofore been furnished
to each Lender, are complete and correct and
present fairly the consolidated financial
condition of the Company and its consolidated
Subsidiaries as at such date, and the
consolidated results of their operations and
their consolidated cash flows for the fiscal
year then ended. All such financial tatements,
including the related schedules and notes
thereto, have been prepared in accordance with
GAAP applied consistently throughout the
periods involved (except as approved by such
accountants or a Responsible Officer, as the
case may be, and as disclosed therein).
Neither the Company nor any of its consolidated
Subsidiaries had, at the date of the most
recent balance sheet referred to above, any
material Guarantee Obligation, contingent
liability or liability for taxes, or any
long-term lease or unusual forward or long-term
commitment, including, without limitation, any
interest rate or foreign currency swap or
exchange transaction, which is not reflected in
the foregoing statements or in the notes
thereto. During the period from June 30, 1999
to and including the date hereof there has been
no sale, transfer or other disposition by the
Company or any of its consolidated Subsidiaries
of any property and no purchase or other
acquisition of any business or property
(including any capital stock of any other
Person), which in either case would be,
material in relation to the consolidated
financial condition of the Company and its
consolidated Subsidiaries at June 30, 1999.
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4.2. No Change. (a) Since June 30, 1999 there
has been no development or event which has had
or is reasonably expected to have a Material
Adverse Effect, and (b) during the period from
June 30, 1999 to and including the date hereof
no dividends (other than dividends paid in the
ordinary course) or other distributions have
been declared, paid or made upon the Capital
Stock of the Company nor has any of the Capital
Stock of the Company been redeemed, retired,
purchased or otherwise acquired for value by
the Company or any of its Subsidiaries.
4.3. Corporate Existence; Compliance with Law.
Each Borrower (a) is duly organized, validly
existing and in good standing under the laws of
the jurisdiction of its organization, (b) has
the corporate power and authority to own and
operate its property, to lease the property it
operates as lessee and to conduct the business
in which it is currently engaged, (c) is duly
qualified as a foreign corporation under the
laws of each jurisdiction where its ownership,
lease or operation of property or the conduct
of its business requires such qualification
except to the extent that the failure to so
qualify is not reasonably expected to have a
Material Adverse Effect and (d) is in
compliance with all Requirements of Law except
to the extent that the failure to comply
therewith is not reasonably expected to have a
Material Adverse Effect.
4.4. Corporate Power; Authorization;
Enforceable Obligations. Each Borrower
has the corporate power and authority to make,
deliver and perform the Loan Documents to which
it is a party and to borrow hereunder and has
taken all necessary corporate action to
authorize the borrowings on the terms and
conditions of this Agreement and to authorize
the execution, delivery and performance of the
Loan Documents to which it is a party. No
consent or authorization of, filing with,
notice to or other act by or in respect of, any
Governmental Authority or any other Person is
required in connection with the borrowings
hereunder or with the execution, delivery,
performance, validity or enforceability of the
Loan Documents to which the Company or
Subsidiary Borrower is a party. This Agreement
has been, and each other Loan Document to which
it is a party will be, duly executed and
delivered on behalf of the Company and the
Subsidiary Borrower. This Agreement
constitutes, and each other Loan Document to
which it is a party when executed and delivered
will constitute, a valid and binding obligation
of the Company or the Subsidiary Borrower, as
the case may be, enforceable against it in
accordance with its terms, except as
enforceability may be limited by applicable
bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the
enforcement of creditors' rights generally and
by general equitable principles (whether
enforcement is sought by proceedings in equity
or at law).
4.5. No Legal Bar. The execution, delivery
and performance of the Loan Documents to which
the Company or the Subsidiary Borrower is a
party, the borrowings hereunder and the use of
the proceeds thereof will not (a) violate any
Requirement of Law or Contractual Obligation of
the Company or the Subsidiary Borrower except
where any such violation is not reasonably
expected to result in a Material Adverse Effect
or (b) result in the creation or imposition of
any Lien on any of its or their respective
properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation
except where any such creation or imposition of
any Lien is not reasonably expected to result
in a Material Adverse Effect.
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4.6. No Material Litigation. No litigation,
investigation or proceeding of or before any
arbitrator or Governmental Authority is pending
or, to the knowledge of the Company, threatened
by or against the Company or any of its
Subsidiaries or against any of its or their
respective properties or revenues (a) with
respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby
(b) which is reasonably expected to have a
Material Adverse Effect.
4.7. No Default. Neither the Company nor the
Subsidiary Borrower is in default under or with
respect to any of its Contractual Obligations
in any respect which could reasonably be
expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is
continuing.
4.8. Ownership of Property; Liens. Each of
the Company and the Subsidiary Borrower has
good and marketable title to, or valid
leasehold interests in, all its material real
property, except for minor defects in title
that do not interfere in any material respect
with its ability to conduct its business as
presently conducted. All such material
properties are free and clear of all Liens,
other than Liens permitted by the terms of the
Principal Credit Agreement.
4.9. Intellectual Property. The Company and
each of its Subsidiaries owns, or is licensed
to use, all trademarks, tradenames, copyrights,
technology, know-how and processes necessary
for the conduct of its business as currently
conducted except for those failures to own
or license which are not reasonably expected to
have a Material Adverse Effect (the
"Intellectual Property"). No claim has been
asserted against the Company or any Subsidiary
and is pending by any Person challenging or
questioning the use by the Company or any
Subsidiary of any such Intellectual Property or
the validity or effectiveness of any such
Intellectual Property, nor does the Company
know of any valid basis for any such claim,
except for such claims that, in the aggregate,
are not reasonably expected to have a Material
Adverse Effect. To the best knowledge of the
Company, the use of such Intellectual Property
by the Company and its Subsidiaries does not
infringe on the rights of any Person, except
for such claims and infringements that, in the
aggregate, are not reasonably expected to have
a Material Adverse Effect.
4.10. Taxes. Each of the Company and its
Subsidiaries has filed or caused to be filed
all tax returns which, to the knowledge of the
Company, are required to be filed and has paid
all taxes shown to be due and payable on said
returns or on any assessments made against it
or any of its property and all other taxes,
fees or other charges imposed on it or any of
its property by any Governmental Authority
(other than any amount the validity of which is
currently being contested in good faith by
appropriate proceedings and with respect to
which reserves in conformity with GAAP have
been provided on the books of the Company or
its Subsidiaries, as the case may be) except
where such failure to file or pay is not
reasonably expected to result in a Material
Adverse Effect; no tax Lien has been filed in
respect of any material amount of unpaid taxes,
and, to the knowledge of the Company, no claim
is being asserted, with respect to any such
tax, fee or other charge except where such
claim is not reasonably expected to result in a
Material Adverse Effect.
4.11 Federal Regulations. No part of the
proceeds of any Loans will be used for
"purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the
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quoted terms under Regulation G or Regulation
U. If requested by any Lender, the Company
will furnish to each Lender a statement to the
foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1
referred to in said Regulation G or Regulation
U, as the case may be.
4.12. ERISA. Neither a Reportable Event nor
an "accumulated funding deficiency" (within the
meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year
period prior to the date on which this
representation is made or deemed made on the
date of the Notice of Borrowing and Indemnity
Agreement or any Notice of Interest Period with
respect to any Single Employer Plan or
Multiemployer Plan, and each Plan (such
representation in respect of any Multiemployer
Plan being made to the best of the Company's
knowledge) has complied in all material
respects with the applicable provisions of
ERISA and the Code. No termination of a Single
Employer Plan has occurred, and no Lien on
assets of the Company or any Commonly
Controlled Entity in favor of the PBGC or a
Plan has arisen, during such five-year period.
The present value of all accrued benefits under
each Single Employer Plan (based on those
assumptions used to fund such Plans) did not,
as of the last annual valuation date prior to
the date on which this representation is made
or deemed made on the date of the Notice of
Borrowing and Indemnity Agreement or any Notice
of Interest Period, exceed the value of the
assets of such Plan allocable to such accrued
benefits. Neither the Company nor any Commonly
Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan, and
neither the Company nor any Commonly Controlled
Entity would become subject to any liability
under ERISA if the Company or any such Commonly
Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the
valuation date most closely preceding the date
on which this representation is made or deemed
made. To the best of the Company's knowledge,
no such Multiemployer Plan is in Reorganization
or Insolvent. The present value (determined
using actuarial and other assumptions which are
reasonable in respect of the benefits provided
and the employees participating) of the
liability of the Company and each Commonly
Controlled Entity for post retirement benefits
to be provided to their current and former
employees under Plans which are welfare benefit
plans (as defined in Section 3(1) of ERISA)
does not, in the aggregate, exceed the assets
under all such Plans allocable to such
benefits by an amount in excess of $5,000,000.
4.13. Investment Company Act; Other
Regulations. Neither the Company nor the
Subsidiary Borrower is an "investment company",
or a company "controlled" by an "investment
company", within the meaning of the Investment
Company Act of 1940, as amended. Neither the
Company nor the Subsidiary Borrower is subject
to regulation under any Federal or State
statute or regulation (other than Regulation X
of the Board of Governors of the Federal
Reserve System) which limits its ability to
incur Indebtedness.
4.14. Purpose of Loans. The proceeds of the
Loans shall be used by the Company and the
Subsidiary Borrower to refinance the Existing
Obligations and for general working capital
purposes.
4.15. Accuracy and Completeness of
Information. All information heretofore
furnished by the Company to the Lenders for
purposes of or in connection with this
Agreement, and all such information hereafter
furnished by the Company to any Lender for
purposes of this
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Agreement, will not, at the time delivered,
contain any untrue statement of a material fact
or omit to state a material fact necessary in
order to make the statements made or to be
made, in the light of the circumstances under
which they were or will be made, not
misleading. Prior to the date hereof, the
Company has disclosed to the Lenders in writing
any and all facts which materially and
adversely affect (to the extent the Company can
as of the date hereof reasonably foresee) the
business, operations or financial condition of
the Company and its Subsidiaries taken as a
whole, or the ability of the Borrowers and the
Guarantor to perform their obligations under
this Agreement.
4.16. Environmental Matters. Except to the
extent that all of the following are not
reasonably expected to have a Material Adverse
Effect:
(a) The facilities and properties owned,
leased or operated by the Company or any of its
Subsidiaries (the "Properties") do not contain,
and to the knowledge of the Company during its
period of ownership, lease or operation of the
Properties, have not previously contained, any
Materials of Environmental Concern in amounts
or concentrations which (i) constitute a
violation of, or (ii) are reasonably expected
to give rise to liability under, any
Environmental Law.
(b) The Properties and all operations at the
Properties are in compliance, and have in the
last five years been in compliance, in all
material respects with all applicable
Environmental Laws, and there is no
contamination at, under or about the Properties
or violation of any Environmental Law with
respect to the Properties or the business
operated by the Company or any of its
Subsidiaries (the "Business") which could
materially interfere with the continued
operation of the Properties or materially
impair the fair saleable value thereof.
(c) Neither the Company nor any of its
Subsidiaries has received any written notice of
violation, alleged violation, non-compliance,
liability or potential liability regarding
environmental matters or compliance with
Environmental Laws with regard to any of the
Properties or the Business, nor does the
Company have knowledge or reason to believe
that any such notice will be received or is
being threatened.
(d) Materials of Environmental Concern have
not been transported or disposed of from the
Properties in violation of any Environmental
Law, nor have any Materials of Environmental
Concern been generated, treated, stored or
disposed of at, on or under any of the
Properties in violation of, or in a manner that
could reasonably be expected to give rise to
liability under, any applicable Environmental
Law.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the
knowledge of the Company, threatened, under any
Environmental Law to which the Company or any
Subsidiary is or will be named as a party with
respect to the Properties or the Business, nor
are there any consent decrees or other decrees,
consent orders, administrative orders or other
orders, or other administrative or judicial
requirements outstanding under any
Environmental Law with respect to the
Properties or the Business.
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(f) There has been no release of Materials of
Environmental Concern at or from the
Properties, or arising from or related to the
operations of the Company or any Subsidiary in
connection with the Properties or otherwise in
connection with the Business, in violation of
or in amounts or in a manner that could
reasonably be expected to give rise to
liability under Environmental Laws.
SECTION 5. CONDITIONS PRECEDENT
5.1. Conditions to Amendment and Restatement
and Making of Loans. This Agreement shall
become effective, and the Existing Credit
Agreement shall be amended and restated in its
entirety as set forth herein and the agreement
of each Lender to make the Loans is subject to
the satisfaction, immediately prior to or
concurrently with the making of such Loans,
on the date (the "Effective Date") which date
shall be a Business Day on which each of the
following conditions shall have been satisfied
or waived:
(a) Execution and Delivery of this Agreement.
The Company, the Subsidiary Borrower and each
of the Lenders shall have executed a copy of
this Agreement (whether the same or different
copies) and shall have delivered the same to
the Administrative Agent.
(b) No Default; Representations and
Warranties. On the Effective Date (before and
after giving effect to the amendment and
restatement), (i) there shall exist no Default
or Event of Default and (ii) all of the
representations and warranties contained herein
or in the other Loan Documents shall be true
and correct in all material respects with the
same effect as though such representations and
warranties had been made on and as of such
date, unless stated to relate to a specific
earlier date, in which case such
representations and warranties shall have been
true and correct in all material respects as of
such earlier date.
(c) Repayment of Existing Obligations. All
Existing Obligations shall have been paid in
full through and including the Effective Date,
whether or not then due and payable.
(d) German Mortgage. No default shall have
occurred and be continuing under the German
Mortgage.
(e) German Security Agreement. The German
Security Agreement shall be in full force and
effect and no default shall have occurred and
be continuing thereunder.
(f) Borrowing Certificate. The Administrative
Agent shall have received, with a counterpart
for each Lender, a certificate of the Company,
dated the Effective Date, in form and substance
satisfactory to the Administrative Agent,
executed by the President or any Vice President
and the Secretary or any Assistant Secretary of
the Company. There shall be attached to such
certificate a copy of the resolutions, in form
and substance satisfactory to the
Administrative Agent, of the Board of Directors
of the Company authorizing the execution,
delivery and performance of this Agreement.
(g) Notes. The Administrative Agent shall
have received the Notes, executed by the
Company or the Subsidiary Borrower, as the case
may be, payable to each Lender.
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(h) Consents, Licenses and Approvals. The
Administrative Agent shall have received, with
a counterpart for each Lender, a certificate of
a Responsible Officer of the Company (i)
attaching copies of all consents,
authorizations and filings referred to in
subsection 4.4, and (ii) stating that such
consents, licenses and filings are in full
force and effect, and each such consent,
authorization and filing shall be in form and
substance satisfactory to the Administrative
Agent.
(i) Notice of Borrowing and Indemnity
Agreement. The Administrative Agent shall have
received three LIBOR Banking Days prior to the
Effective Date the Notice of Borrowing and
Indemnity Agreement, duly completed and
executed and delivered by the Borrowers.
(j) Additional Matters. All corporate and
other proceedings, and all documents,
instruments and other legal matters in
connection with the transactions contemplated
by this Agreement shall be satisfactory in form
and substance to the Administrative Agent.
SECTION 6. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the
Commitments remain in effect or any amount is
owing to any Lender or the Administrative Agent
hereunder or under any other Loan Document, the
Company shall and (except in the case of
delivery of financial information, reports and
notices) shall cause each of its Subsidiaries
to:
6.1. Financial Statements. Furnish to each
Lender:
(a) as soon as available, but in any event
within 90 days after the end of each
fiscal year of the Company, a copy of the
consolidated balance sheet of the Company and
its consolidated Subsidiaries as at the end of
such year and the related consolidated
statements of income and retained earnings and
of cash flows for such year, setting forth in
each case in comparative form the figures for
the previous year, reported on without a "going
concern" or like qualification or exception, or
qualification arising out of the scope of the
audit, by KPMG LLP or other independent
certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not
later than 45 days after the end of each of the
first three quarterly periods of each fiscal
year of the Company, the unaudited consolidated
balance sheet of the Company and its
consolidated Subsidiaries as at the end of
such quarter and the related unaudited
consolidated statements of income and retained
earnings and of cash flows of the Company and
its consolidated Subsidiaries for such quarter
and the portion of the fiscal year through the
end of such quarter, setting forth in each case
in comparative form the figures for the
previous year, certified by a Responsible
Officer as being fairly stated in all material
respects (subject to normal year-end audit
adjustments); all such financial statements
shall be complete and correct in all material
respects and shall be prepared in reasonable
detail and in accordance with GAAP applied
consistently throughout the periods reflected
therein and with prior periods (except as
approved by such accountants or officer, as the
case may be, and disclosed therein).
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6.2. Certificates; Other Information. Furnish
to each Lender:
(a) concurrently with the delivery of the
financial statements referred to in subsection
6.1(a), a certificate of the independent
certified public accountants reporting on such
financial statements stating that in making the
examination necessary therefor no knowledge was
obtained of any Default or Event of Default,
except as specified in such certificate;
(b) concurrently with the delivery of the
financial statements referred to in subsections
6.1(a) and (b), a certificate of a Responsible
Officer stating that, to the best of such
officer's knowledge, the Company during such
period has observed or performed all of its
covenants and other agreements, and satisfied
every condition, contained in this Agreement
and the other Loan Documents to be observed,
performed or satisfied by it, and that such
Officer has obtained no knowledge of any
Default or Event of Default except as specified
in such certificate;
(c) within 45 days after the end of each
fiscal quarter of the Company, a certificate of
a senior financial officer of the Company
showing in detail the computations necessary to
calculate the Applicable Margin (the "Debt to
Capitalization Ratio Certificate");
(d) not later than ten Business Days following
approval by the Board of Directors of the
Company (and in any event at least once in each
fiscal year), a copy of the Company's final
business plan as approved by the Directors;
(e) within five days after the same are sent,
copies of all financial statements and reports
which the Company sends to its stockholders,
and within five days after the same are filed,
copies of all financial statements and periodic
reports which the Company may make to, or file
with, the Securities and Exchange Commission or
any successor or analogous Governmental
Authority; and
(f) promptly, such additional financial and
other information as any Lender may from time
to time reasonably request.
6.3. Payment of Obligations. Pay, discharge
or otherwise satisfy at or before maturity or
before they become delinquent, as the case may
be, all its obligations of whatever nature,
except where the amount or validity thereof is
currently being contested in good faith by
appropriate proceedings and reserves in
conformity with GAAP with respect thereto have
been provided on the books of the Company or
its Subsidiaries, as the case may be, or to the
extent that the failure to so pay, discharge or
satisfy would not be reasonably expected to
have a Material Adverse Effect.
6.4. Conduct of Business and Maintenance of
Existence. Continue to engage in business of
the same general type as now conducted by it
and preserve, renew and keep in full force and
effect its corporate existence and take all
reasonable action to maintain all rights,
privileges and franchises necessary or
desirable in the normal conduct of its business
except as otherwise permitted pursuant to the
terms of the Principal Credit Agreement; comply
with all Contractual Obligations and
Requirements of Law except to the extent that
failure to comply therewith could not be
reasonably expected to have a Material Adverse
Effect.
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6.5. Maintenance of Property; Insurance. Keep
all property useful and necessary in its
business in good working order and condition;
maintain with financially sound and reputable
insurance companies insurance on all its
property on an "all risk" basis; and furnish to
each Lender, upon written request, full
information as to the insurance carried.
6.6. Inspection of Property; Books and Records;
Discussions. Keep proper books of records and
account in which full, true and correct entries
in conformity with GAAP and all Requirements of
Law shall be made of all dealings and
transactions in relation to its business and
activities; and permit representatives of the
Lenders to visit and inspect any of its
properties and examine and make abstracts from
any of its books and records at any reasonable
time and as often as may reasonably be desired
and to discuss the business, operations,
properties and financial and other condition of
the Company and its Subsidiaries with officers
and employees of the Company and its
Subsidiaries and with its independent certified
public accountants; provided that all such
visits shall be coordinated by the Lenders with
the Administrative Agent, and by the
Administrative Agent with the Company, in order
to minimize disruption of the Company's
business.
6.7. Notices. Promptly give notice to the
Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of
Default;
(b) any (i) default or event of default under
any Contractual Obligation of the Company or
any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist
at any time between the Company or any of its
Subsidiaries and any Governmental Authority,
which in either case could reasonably be
expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the
Company or any of its Subsidiaries in which the
amount involved is $5,000,000 or more and not
covered by insurance or in which injunctive or
similar relief is sought unless the Company has
determined in good faith, after consultation
with and based upon advice of counsel acting
for the Company or such Subsidiary in such
litigation or proceeding, that it could not be
reasonably expected that such litigation or
proceeding would result in a final judgment
against the Company or such Subsidiary in an
amount greater than $5,000,000;
(d) the following events, as soon as possible
and in any event within 30 days after the
Company knows or has reason to know thereof:
(i) the occurrence or expected occurrence of
any Reportable Event with respect to any Single
Employer Plan or Multiemployer Plan; a failure
of the Company or a Commonly Controlled Entity
to make any required contribution to a Plan;
the creation of any Lien on the assets of the
Company or any Commonly Controlled Entity in
favor of the PBGC or a Plan; or any withdrawal
of the Company or a Commonly Controlled Entity
from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii)
the institution of proceedings or the taking of
any other action by the PBGC or the Company or
any Commonly Controlled Entity or any
Multiemployer Plan with respect to the
withdrawal from, or the terminating,
Reorganization or Insolvency of, any Single
Employer Plan or Multiemployer Plan; and
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(e) any development or event which could
reasonably be expected to have a Material
Adverse Effect. Each notice pursuant to this
subsection shall be accompanied by a statement
of a Responsible Officer setting forth details
of the occurrence referred to therein and
stating what action the Company proposes to
take with respect thereto.
6.8. Environmental Laws.
(a) Comply with, and ensure compliance by all
tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and
comply in all material respects with and
maintain, and ensure that all tenants and
subtenants obtain and comply in all material
respects with and maintain, any and all
licenses, approvals, notifications,
registrations or permits required by applicable
Environmental Laws except to the extent that
failure to do so could not be reasonably
expected to have a Material Adverse Effect.
(b) Conduct and complete all investigations,
studies, sampling and testing,
and all remedial, removal and other actions
required under Environmental Laws and promptly
comply in all material respects with all lawful
orders and directives of all Governmental
Authorities regarding Environmental Laws except
to the extent that the same (i) are being
contested in good faith by appropriate
proceedings and could not be reasonably
expected to have a Material Adverse Effect or
(ii) could not be reasonably expected to have a
Material Adverse Effect.
SECTION 7. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the
Commitments remain in effect or any amount is
owing to any Lender or the Administrative Agent
hereunder or under any other Loan Document, the
Company shall comply with the Negative
Covenants, and such Negative Covenants
(together with all of the terms utilized
therein) are hereby incorporated by reference
as if set forth herein in their entirety.
SECTION 8. GUARANTEE
8.1. Guarantee.
(a) In order to induce the Administrative
Agent and the Lenders to execute and deliver
this Agreement and to make the Loans hereunder,
and in consideration thereof, the Company
hereby unconditionally and irrevocably
guarantees to the Administrative Agent and
each Lender and their respective successors and
assigns, the prompt and complete payment when
due (whether at the stated maturity, by
acceleration or otherwise) of the Subsidiary
Obligations, and the Company further agrees to
pay any and all reasonable expenses which may
be paid or incurred by the Administrative Agent
or any Lender in collecting any or all of the
Subsidiary Obligation and/or enforcing any
rights under this Section 8 or under Subsidiary
Obligations or with respect to any German
Collateral.
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(b) No payment or payments made by the
Subsidiary Borrower, the Guarantor, any other
guarantor or any other Person or received or
collected by the Administrative Agent or any
Lender from the Subsidiary Borrower, the
Guarantor, any other guarantor or any other
Person by virtue of any action or proceeding or
any set-off or appropriation or application
at any time or from time to time in reduction
of or in payment of the Subsidiary Obligations
shall be deemed to modify, reduce, release or
otherwise affect the liability of the Guarantor
hereunder which shall, notwithstanding any such
payment or payments other than payments made by
the Guarantor in respect of the Subsidiary
Obligations or payments received or collected
from the Guarantor in respect of the Subsidiary
Obligations, remain liable for the Subsidiary
Obligations guaranteed by it hereunder until
the Subsidiary Obligations are paid in full and
the Commitments are terminated.
8.2. No Subrogation. Notwithstanding any
payment or payments made by the Company
hereunder or under any Note, or any set-off or
application of funds of the Company by the
Administrative Agent or any Lender, the Company
shall not be entitled to be subrogated to any
of the rights of the Administrative Agent or
any Lender against the Subsidiary Borrower or
against any collateral security or guarantee or
right of offset held by the Administrative
Agent or any Lender for the payment of the
Subsidiary Obligations, nor shall the Company
seek or be entitled to seek any contribution or
reimbursement from the Subsidiary Borrower in
respect of payments made by the Company
hereunder or under any Note, until all amounts
owing to the Administrative Agent and the
Lenders by the Subsidiary Borrower on account
of the Subsidiary Obligations are paid in full
and the Commitments are terminated. If any
amount shall be paid to the Company on account
of such subrogation rights at any time when all
of the Subsidiary Obligations shall not have
been paid in full, such amount shall be held by
the Company in trust for the Administrative
Agent and the Lenders, segregated from other
funds of the Company, and shall, forthwith upon
receipt by the Company, be turned over to the
Administrative Agent in the exact form received
by the Company (duly indorsed by the Company to
the Administrative Agent, if required), to be
applied against the Subsidiary Obligations,
whether matured or unmatured, in such order as
the Administrative Agent may determine. The
provisions of this paragraph shall continue to
be effective after the termination of this
Agreement, the payment in full of the
Subsidiary Obligations and the termination of
the Commitments.
8.3. Modification of Obligations. The
Guarantor hereby consents that, without the
necessity of any reservation of rights against
it and without notice to or further assent by
it, any demand made by the Administrative Agent
or any Lender for payment of any of the
Subsidiary Obligations may be rescinded by the
Administrative Agent or such Lender and any of
such Subsidiary Obligations continued, and the
Subsidiary Obligations, or the liability of any
other party upon or for any part thereof, or
any collateral security or guarantee therefor
or right of offset with respect thereto, may,
from time to time, in whole or in part, be
renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered
or released by the Administrative Agent or such
Lender and this Agreement (other than the
obligations specifically incurred by the
Guarantor as a Borrower or as the Guarantor
under this Section 8), any collateral security
document or other guarantee or document in
connection therewith may be amended, modified,
supplemented or terminated, in whole or in
part, as the Administrative Agent or such
Lender may deem advisable from time to time,
and any collateral security or guarantee or
right of offset at any time held by the
Administrative Agent or any Lender for the
payment of such
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Subsidiary Obligations may be sold, exchanged,
waived, surrendered or released, all without
the necessity of any reservations of rights
against the Guarantor and without notice to or
further assent by the Guarantor (in respect of
its guarantee hereunder) which will remain
bound hereunder notwithstanding any such
renewal, extension, supplement, termination,
sale, exchange, waiver, surrender or release.
Neither the Administrative Agent nor any Lender
shall have any obligation to protect, secure,
perfect or insure any collateral security
document or property subject thereto at any
time held as security for the Subsidiary
Obligations and the Guarantor specifically
acknowledges that the Administrative Agent has
not recorded or registered and has no
obligation to record or register the German
Mortgage or the German Security Agreement.
When making any demand hereunder against the
Guarantor or the Subsidiary Borrower, the
Administrative Agent or any Lender may, but
shall be under no obligation to, make a similar
demand on the other, and any failure by the
Administrative Agent or such Lender to make any
such demand or to collect any payments from the
Subsidiary Borrower or the Guarantor or any
other guarantor or any release of the
Guarantor, the Subsidiary Borrower or any other
guarantor shall not relieve the Guarantor or
the Subsidiary Borrower of its obligations and
liabilities hereunder, and shall not impair or
affect the rights and remedies, express or
implied, or as a matter of law, of the
Administrative Agent or any Lender against the
Guarantor or the Subsidiary Borrower. For
purposes of this subsection 8.3, the term
"demand" shall include the commencement and
continuance of any legal proceedings.
8.4. Waiver. The Guarantor hereby waives any
and all notice of the creation, renewal,
extension or accrual of any of the Subsidiary
Obligations and notice of or proof of reliance
by the Administrative Agent or any Lender upon
the guarantee contained in this Section 8 or
acceptance of the guarantee contained in this
Section 8, and such Subsidiary Obligations, and
any of them, shall conclusively be deemed to
have been created, contracted or incurred in
reliance upon the guarantee contained in this
Section 8, and all dealings between the
Borrowers and the Guarantor and the Lenders
shall likewise be conclusively presumed to have
been had or consummated in reliance upon the
guarantee contained in this Section 8. The
Guarantor hereby waives diligence, presentment,
protest, demand for payment and notice of
default or nonpayment and all other notices to
or upon the Guarantor with respect to the
Subsidiary Obligations. This Section 8 shall
be construed as a continuing, absolute and
unconditional guarantee of payment without
regard to the validity, regularity or
enforceability of this Agreement, any of the
Subsidiary Obligations, or any collateral
security or guarantee therefor or right of
offset with respect thereto at any time or from
time to time held by the Administrative Agent
or any Lender and without regard to any
defense, set-off or counterclaim which may at
any time be available to or be asserted by the
Guarantor or the Subsidiary Borrower against
the Administrative Agent or any Lender, or by
any other circumstance whatsoever (with or
without notice to or knowledge of the Guarantor
or the Subsidiary Borrower) (other than payment
in full of the Subsidiary Obligations) which
constitutes, or might be construed to
constitute, an equitable or legal discharge of
the Subsidiary Borrower for the Subsidiary
Obligations, or of the Guarantor under the
guarantee contained in this Section 8 in
bankruptcy or in any other instance, and the
obligations and liabilities of the Guarantor
and the Borrowers hereunder shall not be
conditioned or contingent upon the pursuit by
the Administrative Agent or any Lender at any
time of any right or remedy against any
Borrower, the Guarantor or any other Person
which may be or become liable in respect of all
or any part of the Subsidiary Obligations or
against any collateral security
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or guarantee therefor or right of offset with
respect thereto. The guarantee contained in
this Section 8 shall remain in full force and
effect and be binding in accordance with and to
the extent of its terms upon the Guarantor (and
any successor and assign thereof) and shall
inure to the benefit of the Administrative
Agent and the Lenders and their respective
successors and assigns, until (subject to
subsection 8.5) all the Subsidiary Obligations
and the obligations of the Guarantor under this
Section 8 shall have been satisfied by payment
in full.
8.5. Reinstatement. The guarantee contained
in this Section 8 shall continue to be
effective, or be reinstated, as the case may
be, if at any time payment, or any part
thereof, of any of the Subsidiary Obligations
is rescinded or must otherwise be restored or
returned by the Administrative Agent or any
Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of
the Subsidiary Borrower, or upon or as a result
of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer
for, any Borrower or any substantial part of
its property, all as though such payments had
not been made.
8.6. Payment of Subsidiary Obligations. The
Guarantor hereby guarantees that the Subsidiary
Obligations guaranteed by it hereunder will be
paid to the Person entitled thereto pursuant to
the terms of this Agreement at the applicable
Payment Office without set-off or counterclaim.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and
be continuing:
(a) Any Borrower shall fail to pay any
principal of any Loan when due in accordance
with the terms thereof or hereof; or any
Borrower shall fail to pay any interest on any
Loan, or any other amount payable hereunder or
under any Note, within five days after any such
interest or other amount becomes due in
accordance with the terms hereof; or
(b) Any representation or warranty made or
deemed made by the Company or the Subsidiary
Borrower herein or in any other Loan Document
or which is contained in any certificate,
document or financial or other statement
furnished by it at any time under or in
connection with this Agreement shall prove to
have been incorrect in any material respect on
or as of the date made or deemed made; or
(c) The Company shall default in the
observance or performance of any Negative
Covenant, except those Negative Covenants for
which the Principal Credit Agreement provides a
cure period; or
(d) Any Borrower shall default in the
observance or performance of other agreement
contained (or incorporated by reference) in
this Agreement or any other Loan Document
(other than as provided in paragraphs (a)
through (c) of this Section), and such default
shall continue unremedied for a period of 30
days (in the case of any such default by the
Company) or 30 days after written notice
thereof to the Subsidiary Borrower (in the case
of any such default by the Subsidiary
Borrower); or
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(e) The Company or any of its Restricted
Subsidiaries shall (i) default in the payment
of principal of or interest on any Indebtedness
(other than the Loans) or in the payment of any
Guarantee Obligation, beyond the period of
grace (not to exceed 30 days), if any, provided
in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was
created, if the aggregate amount of the
Indebtedness and/or Guarantee Obligations in
respect of which such default or defaults shall
have occurred is at least $25,000,000; or (ii)
default in the observance or performance of any
other agreement or condition relating to any
such Indebtedness or Guarantee Obligation or
contained in any instrument or agreement
evidencing, securing or relating thereto, or
any other event shall occur or condition exist,
the effect of which default or other event or
condition is to cause, or to permit the holder
or holders of such Indebtedness or beneficiary
or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required,
such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to
become payable; or
(f) (i) The Company or any of its Restricted
Subsidiaries shall commence any case,
proceeding or other action (A) under any
existing or future law of any jurisdiction,
domestic or foreign, relating, to bankruptcy,
insolvency, reorganization or relief of
debtors, seeking to have an order for relief
entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement,
adjustment, winding-up, liquidation,
dissolution, composition or other relief with
respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian,
conservator or other similar official for it or
for all or any substantial part of its assets,
or the Company or any of its Restricted
Subsidiaries shall make a general assignment
for the benefit of its creditors; or (ii) there
shall be commenced against the Company or any
of its Restricted Subsidiaries any case,
proceeding or other action of a nature referred
to in clause (i) above which (A) results in the
entry of an order for relief or any such
adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be
commenced against the Company or any of its
Restricted Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of
attachment, execution, distraint or similar
process against all or any substantial part of
its assets which results in the entry of an
order for any such relief which shall not have
been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry
thereof, or (iv) the Company shall take any
action in furtherance of, or indicating its
consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii),
or (iii) above; or (v) the Company shall
generally not, or shall be unable to, or shall
admit in writing its inability to, pay its
debts as they become due; or
(g) (i) Any Person shall engage in any
"prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated
funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets
of the Company or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence
to have a trustee appointed, or a trustee shall
be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable
Event or commencement of proceedings or
appointment of a trustee is, in the reasonable
opinion of the Majority Lenders, likely to
result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the
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Company or any Commonly Controlled Entity
shall, or in the reasonable opinion of the
Majority Lenders is likely to, incur any
liability in connection with a withdrawal from,
or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to
a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together
with all other such events or conditions, if
any, could reasonably be expected to have a
Material Adverse Effect; or
(h) One or more final judgments or decrees of
a court shall be entered against the Company or
any of its Restricted Subsidiaries for the
payment of money in an aggregate amount (to the
extent not adequately covered by insurance) of
$25,000,000 or more, and all such judgments or
decrees shall not have been vacated,
discharged, stayed or bonded pending appeal
within 60 days from the entry thereof; or
(i) Any Change of Control shall occur;
then, and in any such event, (A) if such event
is an Event of Default specified in clause (i)
or (ii) of paragraph (f) of this Section with
respect to the Company, automatically the
Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon)
and all other amounts owing under this
Agreement or any Note shall immediately become
due and payable; (B) if such event is any other
Event of Default, either or both of the
following actions may be taken: (i) with the
consent of the Majority Lenders, the
Administrative Agent may, or upon the request
of the Majority Lenders, the Administrative
Agent shall, by notice to the Company declare
the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the
Majority Lenders, the Administrative Agent may,
or upon the request of the Majority Lenders,
the Administrative Agent shall, by notice to
the Company, declare the Loans hereunder (with
accrued interest thereon) and all other amounts
owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same
shall immediately become due and payable and
(C) with the consent of the Majority Lenders,
the Administrative Agent may, or upon the
request of the Majority Lenders, the
Administrative Agent shall, exercise its
remedies under the German Mortgage and/or the
German Security Agreement.
Except as expressly provided above in this
Section, presentment, demand, protest and all
other notices of any kind are hereby expressly
waived.
SECTION 10. THE ADMINISTRATIVE AGENT; THE
ARRANGER
10.1. Appointment. Each Lender hereby
irrevocably designates and appoints the
Administrative Agent as the agent of such
Lender under this Agreement and the other Loan
Documents, and each Lender irrevocably
authorizes, and each holder of a Note by the
acceptance of such Note shall be deemed
irrevocably to authorize, the Administrative
Agent, in such capacity, to take such action on
its behalf under the provisions of this
Agreement and the other Loan Documents and to
exercise such powers and perform such duties as
are expressly delegated to the Administrative
Agent by the terms of this Agreement and the
other Loan Documents, together with such other
powers as are reasonably incidental thereto.
The Administrative Agent is hereby expressly
authorized by the Lenders to accept on their
behalf any security interests or
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guarantees granted by any Borrower or the
Pledgor. Notwithstanding any provision to the
contrary elsewhere contained in this Agreement,
the Administrative Agent shall not have any
duties or responsibilities, except those
expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied
covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into
this Agreement or any other Loan Document or
otherwise exist against the Administrative
Agent.
10.2. Delegation of Duties. The
Administrative Agent may execute any of its
duties under this Agreement and the other Loan
Documents by or through agents or
attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters
pertaining to such duties. The Administrative
Agent shall not be responsible for the
negligence or misconduct of any agents or
attorneys in-fact selected by it with
reasonable care.
10.3. Exculpatory Provisions. Neither the
Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact
or Affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by
it or such Person under or in connection with
this Agreement or any other Loan Document
(except for its or such Person's own gross
negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders
or any holder of a Note for any recitals,
statements, representations or warranties made
by any Borrower or any officer thereof
contained in this Agreement or any other Loan
Document or in any certificate, report,
statement or other document referred to or
provided for in, or received by the
Administrative Agent under or in connection
with, this Agreement or any other Loan Document
or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or
for any failure of any Borrower to perform its
obligations hereunder or thereunder. The
Administrative Agent shall not be under any
obligation to any Lender or any holder of a
Note to ascertain or to inquire as to the
observance or performance of any of the
agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to
inspect the properties, books or records of any
Borrower.
10.4. Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon
any note, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex
or teletype message, statement, order or other
document or conversation believed by it to be
genuine and correct and to have been signed,
sent or made by the proper Person or Persons
and upon advice and statements of legal counsel
(including, without limitation, counsel to the
Company), independent accountants and other
experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the
payee of any note as the owner thereof for all
purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been
filed with the Administrative Agent. The
Administrative Agent shall be fully justified
in failing or refusing to take any action under
this Agreement or any other Loan Document
unless it shall first receive such advice or
concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and
all liability and expense which may be incurred
by it by reason of taking or continuing to take
any such action. The Administrative Agent
shall in all cases be fully protected in
acting, or in refraining from acting, under
this Agreement and the other Loan Documents in
accordance with a request of the Majority
Lenders, and such request and any
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action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and
holders of the Notes and all future holders of
the Loans and the Notes.
10.5. Notice of Default. The Administrative
Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or
Event of Default hereunder unless the
Administrative Agent has received notice from a
Lender or the Company referring to this
Agreement, describing such Default or Event of
Default and stating that such notice is a
"notice of default". In the event that the
Administrative Agent receives such a notice,
the Administrative Agent shall give notice
thereof to the Lenders. The Administrative
Agent shall take such action with respect to
such Default or Event of Default as shall be
reasonably directed by the Majority Lenders;
provided that unless and until the
Administrative Agent shall have received such
directions, the Administrative Agent may (but
shall not be obligated to) take such action, or
refrain from taking such action, with respect
to such Default or Event of Default as it shall
deem advisable in the best interests of the
Lenders and the holders of the Notes.
10.6. Non-Reliance on Administrative Agent and
Other Lenders. Each Lender expressly
acknowledges, and each holder of a Note by the
acceptance of such Note shall be deemed to
acknowledge, that neither the Administrative
Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or
Affiliates has made any representations or
warranties to it and that no act by the
Administrative Agent hereinafter taken,
including any review of the affairs of any
Borrower, shall be deemed to constitute any
representation or warranty by the
Administrative Agent to any Lender or holder of
a Note. Each Lender represents, and each
holder of a Note by the acceptance of such Note
shall be deemed to represent, to the
Administrative Agent that it has, independently
and without reliance upon the Administrative
Agent or any other Lender or holder of a Note,
and based on such documents and information as
it has deemed appropriate, made its own
appraisal of and investigation into the
business, operations, property, financial and
other condition and creditworthiness of the
Borrowers and made its own decision to make its
Loans hereunder, enter into this Agreement
and/or accept such Note, as the case may be.
Each Lender also represents, and each holder of
a Note by the acceptance of such Note shall be
deemed to represent, that it will,
independently and without reliance upon the
Administrative Agent or any other Lender or
holder of a Note, and based on such documents
and information as it shall deem appropriate at
the time, continue to make its own credit
analysis, appraisals and decisions in taking or
not taking action under this Agreement and the
other Loan Documents, and to make such
investigation as it deems necessary to inform
itself as to the business, operations,
property, financial and other condition and
creditworthiness of the Borrowers. Except for
notices, reports and other documents expressly
required to be furnished to the Lenders by the
Administrative Agent hereunder, the
Administrative Agent shall not have any duty or
responsibility to provide any Lender or holder
of a Note with any credit or other information
concerning the business, operations, property,
condition (financial or otherwise), prospects
or creditworthiness of any Borrower which may
come into the possession of the Administrative
Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or
Affiliates.
10.7. Indemnification. The Lenders agree to
indemnify the Administrative Agent in its
capacity as such (to the extent not reimbursed
by the Borrowers and without limiting
the obligation of the Borrowers to do so),
ratably according to their respective
Commitment
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Percentages in effect on the date on which
indemnification is sought (or, if
indemnification is sought after the date upon
which the Commitments shall have terminated and
the Loans shall have been paid in full, ratably
in accordance with their Commitment Percentages
immediately prior to such date), from and
against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any
kind whatsoever which may at any time
(including, without limitation, at any time
following the payment of the Loans) be imposed
on, incurred by or asserted against the
Administrative Agent in any way relating to or
arising out of, the Commitments, this
Agreement, any of the other Loan Documents
or any documents contemplated by or referred to
herein or therein or the transactions
contemplated hereby or thereby or any action
taken or omitted by the Administrative Agent
under or in connection with any of the
foregoing; provided that no Lender shall be
liable for the payment of any portion of such
liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from
the Administrative Agent's gross negligence or
willful misconduct; provided further that no
Designated Lender shall be liable for any
payment under this subsection 10.7 so long as,
and to the extent that, its Designating Lender
makes such payments. The agreements in this
subsection shall survive the payment of the
Loans and all other amounts payable hereunder
and under the Notes.
10.8. Administrative Agent in Its Individual
Capacity. The Administrative Agent and its
Affiliates may make loans to, accept deposits
from and generally engage in any kind of
business with the Borrowers as though the
Administrative Agent were not the
Administrative Agent hereunder and under the
other Loan Documents. With respect to the
Loans made by it or one of its branches, the
Administrative Agent shall have the same rights
and powers under this Agreement and the other
Loan Documents as any Lender and may exercise
the same as though it were not the
Administrative Agent, and the terms "Lender",
"Lenders" or "holders of Notes" shall include
the Administrative Agent in its individual
capacity.
10.9. Successor Administrative Agent. The
Administrative Agent may resign as
Administrative Agent upon 10 days' notice to
the Lenders. If the Administrative Agent shall
resign as Administrative Agent under this
Agreement and the other Loan Documents, then
the Majority Lenders shall appoint from among
the Lenders a successor agent for the Lenders,
which successor agent shall, unless an Event of
Default shall be outstanding, be approved by
the Company (such approval not to be
unreasonably withheld), whereupon such
successor agent shall succeed to the rights,
powers and duties of the Administrative Agent,
and the term "Administrative Agent" shall mean
such successor agent effective upon such
appointment and approval, and the former
Administrative Agent's rights, powers and
duties as Administrative Agent shall be
terminated, without any other or further act or
deed on the part of such former
Administrative Agent or any of the parties to
this Agreement or any holders of the Loans.
After any retiring Administrative Agent's
resignation as Administrative Agent, the
provisions of this Section 10 shall inure to
its benefit as to any actions taken or omitted
to be taken by it while it was Administrative
Agent under this Agreement and the other Loan
Documents.
10.10. Arranger. The Arranger, in such
capacity, shall have no duties or
responsibilities, and shall incur no
obligations or liabilities, under this
Agreement or the other Loan Documents but shall
nevertheless be entitled to all of the
indemnities and other protections afforded to
the Administrative Agent under this Section 10.
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SECTION 11. MISCELLANEOUS
11.1. Amendments and Waivers Generally;
Amendments to Schedules I, II and III.
(a) Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may
be amended, supplemented or modified except in
accordance with the provisions of this
subsection. The Majority Lenders may, or, with
the written consent of the Majority Lenders,
the Administrative Agent may, from time to
time, (i) enter into with the Company written
amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose
of adding any provisions to this Agreement or
the other Loan Documents or changing in any
manner the rights of the Lenders or of the
Borrowers hereunder or thereunder or (ii)
waive, on such terms and conditions as the
Majority Lenders or the Administrative Agent,
as the case may be, may specify in such
instrument, any of the requirements of this
Agreement or the other Loan Documents or any
Default or Event of Default and its
consequences; provided, however, that no such
waiver and no such amendment, supplement or
modification shall (A) reduce the amount or
extend the scheduled date of maturity of any
Loan or of any installment thereof, or reduce
the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any
payment thereof or increase the amount or
extend the expiration date of any Lender's
Commitments, in each case without the consent
of each Lender affected thereby, or (B) amend,
modify or waive any provision of this
subsection or reduce the percentage specified
in the definition of Majority Lenders, or
consent to the assignment or transfer by any
Borrower of any of its rights and obligations
under this Agreement and the other Loan
Documents, or release the Guarantor from its
obligations under Section 8, in each case
without the written consent of all the Lenders,
or (C) release all or substantially all of
the German Collateral from the Lien of the
German Mortgage and the German Security
Agreement, or (D) amend, modify or waive any
provision of Section 10 without the written
consent of the then Administrative Agent. Any
such waiver and any such amendment, supplement
or modification shall apply equally to each of
the Lenders and shall be binding upon the
Borrowers, the Lenders, the Administrative
Agent and all future holders of the Loans. In
the case of any waiver, the Borrowers, the
Lenders and the Administrative Agent shall be
restored to their former positions and rights
hereunder and under the other Loan Documents,
and any Default or Event of Default waived
shall be deemed to be cured and not continuing;
no such waiver shall extend to any subsequent
or other Default or Event of Default or impair
any right consequent thereon.
(b) Schedules I, II, and III may be amended as
follows:
(i) Schedule I may be amended to change the
notice information contained therein upon
delivery of written notice of such change to
the Administrative Agent by the Lender making
such change.
(ii) Schedule II will be amended to remove
Subsidiaries of the Company as Restricted
Subsidiaries, upon execution and delivery by
the Company and the Administrative Agent of a
Schedule Amendment providing for such
amendment. Schedule II shall be deemed amended
to add Subsidiaries of the
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Company as Restricted Subsidiaries, upon
delivery of written notice thereof by the
Company to the Administrative Agent.
(iii) Schedule III will be amended to change
administrative information contained therein
(other than any Funding Time, Payment Time or
notice time contained therein), upon execution
and delivery by the Company and the
Administrative Agent of a Schedule Amendment
providing for such amendment.
(iv) Schedule III will be amended to conform
any Funding Time, Payment Time or notice time
contained therein to then-prevailing market
practices, upon execution and delivery by the
Company, the Majority Lenders and the
Administrative Agent of a Schedule Amendment
providing for such amendment.
(c) Each Designating Lender may act on behalf
of its Designated Lender with respect to any
rights of its Designated Lender to grant or
withhold any consent hereunder to the fullest
extent it has been so delegated to act by its
Designated Lender pursuant to its Designation
Agreement.
11.2. Notices. All notices, requests and
demands to or upon the respective parties
hereto to be effective shall be in writing
(including by facsimile transmission), and,
unless otherwise expressly provided herein,
shall be deemed to have been duly given or made
when delivered, or 5 days after being deposited
in the mail, postage prepaid, or, in the case
of telecopy notice, when received, addressed as
follows in the case of the Borrowers and the
Administrative Agent, and as set forth in
Schedule I in the case of the other parties
hereto, or to such other address as may be
hereafter notified by the respective parties
hereto:
Any Borrower: Xxxxxx International Industries,
Incorporated
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Mr. Xxxx Xxxxx,
Assistant Treasurer
Fax: (000) 000-0000
The Administrative Agent: Commerzbank AG
New York Branch
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Credit Administration
Xxxxxx Xxxxxxx
Fax: 000-000-0000
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with a copy to: Commerzbank AG
Los Angeles Branch
000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Corporate Banking
Xxxxxx Xxxxxxxxxxx
Fax: 000-000-0000
Any Lender: To the address for such Lender on
Schedule I
provided that the Notice of Borrowing and
Indemnity Agreement, any Notice of Interest
Period, or any notice pursuant to subsection
2.5 shall not be effective until received.
11.3. No Waiver; Cumulative Remedies. No
failure to exercise and no delay in exercising,
on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege
hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall
any single or partial exercise of any right,
remedy, power or privilege hereunder preclude
any other or further exercise thereof or the
exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and
privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers
and privileges provided by law.
11.4. Survival of Representations and
Warranties. All representations and
warranties made hereunder, in the other Loan
Documents and in any document, certificate or
statement delivered pursuant hereto or in
connection herewith shall survive the execution
and delivery of this Agreement and the making
of the Loans hereunder.
11.5 Payment of Expenses and Taxes. The
Company agrees (a) to pay or reimburse the
Administrative Agent for all its reasonable
out-of-pocket costs and expenses incurred in
connection with the development, preparation
and execution of, and any amendment, supplement
or modification to, this Agreement and the
other Loan Documents and any other documents
prepared in connection herewith or therewith,
and the consummation and administration of the
transactions contemplated hereby and thereby,
including, without limitation, the reasonable
fees and disbursements of counsel to the
Administrative Agent, (b) to pay or reimburse
each Lender and the Administrative Agent for
all its costs and expenses incurred in
connection with the enforcement or preservation
of any rights under this Agreement, the other
Loan Documents and any such other documents,
including, without limitation, the fees
and disbursements of counsel to each Lender and
of counsel to the Administrative Agent, (c) to
pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all
recording and filing fees and any and all
liabilities with respect to, or resulting from
any delay in paying, stamp, excise and other
taxes, if any, which may be payable or
determined to be payable in connection with the
execution and delivery of, or consummation or
administration of any of the transactions
contemplated by, or any amendment, supplement
or modification of, or any waiver or consent
under or in respect of, this Agreement, the
other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold
the Administrative Agent and each Lender (each,
an "indemnified person") harmless from and
against any and all liabilities, obligations,
losses, damages, judgments, penalties, costs,
expenses or disbursements of any kind
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or nature whatsoever arising out of claims,
actions, suits or proceedings brought by third
parties with respect to the execution,
delivery, enforcement, performance and
administration of this Agreement or the use of
the proceeds of the Loans (all the foregoing,
collectively, the "indemnified liabilities"),
provided, that the Company shall have no
obligation hereunder to any indemnified person
with respect to indemnified liabilities arising
from (i) the gross negligence or willful
misconduct of such indemnified person or (ii)
legal proceedings commenced against such
indemnified person by any security holder or
creditor thereof arising out of and based upon
rights afforded any such security holder or
creditor solely in its capacity as such. The
agreements in this subsection shall survive
repayment of the Loans and all other amounts
payable hereunder and under the Notes.
11.6. Successors and Assigns; Participations
and Assignments.
(a) This Agreement shall be binding upon and
inure to the benefit of the Borrowers, the
Guarantor, the Lenders, the Administrative
Agent and their respective successors and
assigns, except that no Borrower may assign or
transfer any of its rights or obligations under
this Agreement without the prior written
consent of each Lender.
(b) Any Lender may, in the ordinary course of
its commercial banking business and in
accordance with applicable law, at any time
sell to one or more banks or other entities
("Participants") participating interests in any
Loan owing to such Lender, any Commitment of
such Lender or any other interest of such
Lender hereunder and under the other Loan
Documents. In the event of any such sale by a
Lender of a participating interest to a
Participant, such Lender's obligations under
this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender
shall remain solely responsible for the
performance thereof, such Lender shall remain
the holder of any Loan for all purposes under
this Agreement and the other Loan Documents,
and the Borrowers and the Administrative Agent
shall continue to deal solely and directly with
such Lender in connection with such Lender's
rights and obligations under this Agreement and
the other Loan Documents. The Borrowers agree
that if amounts outstanding under this
Agreement or any Note are due or unpaid, or
shall have been declared or shall have become
due and payable upon the occurrence of an Event
of Default, each Participant shall, to the
maximum extent permitted by applicable law, be
deemed to have the right of setoff in respect
of its participating interest in amounts owing
under this Agreement or any Note to the same
extent as if the amount of its participating
interest were owing directly to it as a Lender
under this Agreement, provided that, in
purchasing such participating interest, such
Participant shall be deemed to have agreed to,
share with the Lenders the proceeds thereof as
provided in subsection 11.7(a) as fully as if
it were a Lender hereunder. The Borrowers also
agree that each Participant shall be entitled
to the benefits of subsections 3.5, 3.6 and 3.7
with respect to its participation in the
Commitments and the Loans outstanding as if
it were a Lender; and provided, further, that
no Participant shall be entitled to receive any
greater amount pursuant to any such subsection
than the transferor Lender would have been
entitled to receive in respect of the amount of
the participation transferred by such
transferor Lender to such Participant had no
such transfer occurred.
(c) Any Lender may, in the ordinary course of
its commercial banking business and in
accordance with applicable law, at any time and
from time to time assign to any
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Lender or any affiliate thereof or, with the
consent of the Company and the Administrative
Agent (which in each case shall not be
unreasonably withheld), to an additional bank
or financial institution (an "Assignee") all or
any part of its rights and obligations under
this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance
executed by such Assignee, such assigning
Lender (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by
the Company and the Administrative Agent) and
delivered to the Administrative Agent for its
acceptance and recording in the Register,
provided that, in the case of any such
assignment to an additional bank or financial
institution, the aggregate amount of the
Commitment being assigned and, if such
assignment is of less than all of the rights
and obligations of the assigning Lender, the
aggregate amount of the Commitment remaining
with the assigning Lender are each not less
than $5,000,000 (or such lesser amount as may
be agreed to by the Company and the
Administrative Agent). Upon such execution,
delivery, acceptance and recording, from and
after the effective date determined pursuant to
such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment
and Acceptance, have the rights and obligations
of a Lender hereunder with a Commitment and
Loans outstanding as set forth therein, and (y)
the assigning Lender thereunder shall, to the
extent provided in such Assignment and
Acceptance, be released from its obligations
under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's
rights and obligations under this Agreement,
such assigning Lender shall cease to be a party
hereto). Notwithstanding any provision of this
paragraph (c) and paragraph (e) of this
subsection, the consent of the Company shall
not be required for any assignment which occurs
at any time when any of the events described in
Section 9(f) shall have occurred and be
continuing.
(d) The Administrative Agent shall maintain at
the address of the Administrative Agent
referred to in subsection 11.2 a copy of each
Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation
of the names and addresses and Commitments of
the Lenders and the principal amounts of the
Loans, and the principal amounts and holders of
the Notes, owing by each Borrower to each
Lender from time to time. The entries
in the Register shall be conclusive, in the
absence of manifest error, and the Borrowers,
the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the
Register as the owner of a Loan or holder of a
Note or other obligation hereunder as the owner
or holder thereof for all purposes of this
Agreement and the other Loan Documents,
notwithstanding any notice to the contrary.
Any assignment of any Loan or other obligation
hereunder shall be effective only upon
appropriate entries with respect thereto being
made in the Register. The Register shall be
available for inspection by the Borrower or any
Lender and any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt from an assigning Lender
and an Assignee of an Assignment and Acceptance
executed by an assigning Lender and an Assignee
(and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the
Company and the Administrative Agent) together
with payment to the Administrative Agent of a
registration and processing fee of $2,500, (i)
the Administrative Agent shall (A) promptly
accept such Assignment and Acceptance and (B)
on the effective date determined pursuant
thereto record the information contained
therein in the Register and give notice of such
acceptance and recordation to the Lenders and
the Company and (ii) the assigning Lender, the
Administrative Agent and the
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Borrowers shall make appropriate arrangements
(at such assigning Lender's cost and expense)
so that the Notes evidencing such assigned Loan
are surrendered and new Notes are issued to the
Assignee and the assigning Lender, as
appropriate.
(f) Each Borrower authorizes each Lender to
disclose to any Participant, Assignee or
Designated Lender (each, a "Transferee") and
any prospective Transferee, subject to the
provisions of subsection 11.17, any and all
financial information in such Lender's
possession concerning the Borrower and its
Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant
to this Agreement or, which has been delivered
to such Lender by or on behalf of the Borrower
in connection with such Lender's credit
evaluation of the Borrower and its Affiliates
prior to becoming a party to this Agreement,
provided, that the Lenders shall take such
steps as reasonably necessary to ensure that
confidential information will be treated in a
confidential manner as required by subsection
11.17.
(g) For avoidance of doubt, the parties to
this Agreement acknowledge that the provisions
of this subsection concerning assignments of
Loans relate only to absolute assignments and
that such provisions do not prohibit
assignments creating security interests,
including, without limitation, any pledge or
assignment by a Lender of any Loan to any
Federal Reserve Bank in accordance with
applicable law.
(h) Any Lender may at any time designate not
more than one Designated Lender to fund Loans
on behalf of such Designating Lender subject to
the terms of this subsection 11.6(h), and the
provisions of subsections 11.6(b), (c), (d) and
(e) shall not apply to such designation. No
Lender may have more than one Designated Lender
at any time. Such designation may occur either
by the execution of the signature pages hereof
by such Lender and Designated Lender next to
the appropriate "Designating Lender" and
"Designated Lender" captions, or by execution
by such parties of a Designation Agreement
subsequent to the date hereof; provided, that
any Lender and its Designated Lender executing
the signatures pages hereof as "Designating
Lender" and "Designated Lender", respectively,
on the date hereof shall be deemed to have
executed a Designation Agreement, and shall be
bound by the respective representations,
warranties and covenants contained therein, and
such designation shall be conclusively deemed
to be accepted by the Company, the Subsidiary
Borrower and the Administrative Agent. The
parties to each such designation occurring
subsequent to the execution date hereof shall
execute and deliver to the Company and the
Administrative Agent for their acceptance a
Designation Agreement. Upon such receipt of an
appropriately completed Designation Agreement
executed by a Designating Lender and a designee
representing that it is a Designated Lender and
consented to by the Company, the Administrative
Agent will accept such Designation Agreement
and will give prompt notice thereof to the
Company and the other Lenders, whereupon, (i)
the Company and/or the Subsidiary Borrower, as
the case may be, shall execute and deliver to
the Designating Lender (at such Designated
Lender's cost and expense) a Designated Lender
Note payable to the order of the Designated
Lender, (ii) from and after the effective date
specified in the Designation Agreement, the
Designated Lender shall become a party to this
Agreement with a right to make Loans on behalf
of its Designating Lender pursuant to
subsection 2.8 and (iii) the Designated Lender
shall not be required to make payments with
respect to any obligations in this Agreement
except to the extent of excess cash flow of
such Designated Lender which is not otherwise
required to repay obligations of such
Designated
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Lender which are then due and payable;
provided, however, that regardless of such
designation and assumption by the Designated
Lender, the Designating Lender shall be and
remain obligated to the Company, the Subsidiary
Borrower, the Administrative Agent and the
Lenders for each and every of the obligations
of the Designating Lender and its related
Designated Lender with respect to this
Agreement, including, without limitation, any
indemnification obligations under subsection
10.7 and any sums otherwise payable to the
Company or the Subsidiary Borrower by the
Designated Lender. Each Designating Lender, or
a specified branch or affiliate thereof, shall
serve as the administrative agent of its
Designated Lender and shall on behalf of its
Designated Lender: (a) receive any and all
payments made for the benefit of such
Designated Lender and (b) give and receive all
communications and notices and take all actions
hereunder, including, without limitation,
votes, approvals, waivers, consents and
amendments under or relating to this
Agreement and the other Loan Documents. Any
such notice, communication, vote, approval,
waiver, consent or amendment shall be signed by
a Designating Lender, or specified branch or
affiliate thereof, as administrative agent for
its Designated Lender and need not be signed by
such Designated Lender on its own behalf. The
Company, the Subsidiary Borrower, the
Administrative Agent and the Lenders may rely
thereon without any requirement that the
Designated Lender sign or acknowledge the same.
No Designated Lender may assign or transfer
all or any portion of its interest hereunder or
under any other Loan Document, other than via
an assignment to its Designating Lender or
Liquidity Bank, if any, or otherwise in
accordance with the provisions of this
subsection 11.6.
11.7. Adjustments; Set-off.
(a) If any Lender (a "benefitted Lender")
shall at any time receive any payment of all or
part of its Loans or other Obligations or
Subsidiary Obligations then due and owing, or
interest thereon, or receive any collateral in
respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events
or proceedings of the nature referred to in
Section 9(f), or otherwise), in a greater
proportion than any such payment to or
collateral received by any other Lender, if
any, in respect of such other Lender's Loans or
other Obligations or Subsidiary Obligations
then due and owing, or interest thereon, such
benefitted Lender shall purchase for cash from
the other Lenders a participating interest in
such portion of each such other Lender's
Loans or other Obligations or Subsidiary
Obligations, or shall provide such other
Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall
be necessary to cause such benefitted Lender to
share the excess payment or benefits of such
collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any
portion of such excess payment or benefits is
thereafter recovered from such benefitted
Lender, such purchase shall be rescinded,
and the purchase price and benefits returned,
to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of
the Lenders provided by law, each Lender shall
have the right, without prior notice to any
Borrower, any such notice being expressly
waived by the Borrowers to the extent permitted
by applicable law, upon any amount becoming due
and payable by any Borrower hereunder or under
any Note (whether at the stated maturity, by
acceleration or otherwise) to set-off and
appropriate and apply against such amount any
and all deposits (general or special, time or
demand, provisional or final), in any currency,
and any other credits, indebtedness or claims,
in any currency, in each case whether direct or
indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such
Lender
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or any branch or agency thereof to or for the
credit or the account of such Borrower. Each
Lender agrees promptly to notify such Borrower
and the Administrative Agent after any such
set-off and application made by such Lender,
provided that the failure to give such notice
shall not affect the validity of such set-off
and application.
11.8. Power of Attorney. The Subsidiary
Borrower hereby grants to the Company an
irrevocable power of attorney to act as its
attorney-in-fact with regard to matters
relating to this Agreement and each other Loan
Document, including, without limitation,
execution and delivery of any amendments,
supplements, waivers or other modifications
hereto or thereto, receipt of any notices
hereunder or thereunder and receipt of service
of process in connection herewith or therewith.
The Subsidiary Borrower hereby explicitly
acknowledges that the Administrative Agent and
each Lender has executed and delivered this
Agreement and each other Loan Document to which
it is a party, and has performed its
obligations under this Agreement and each other
Loan Document to which it is a party, in
reliance upon the irrevocable grant of such
power of attorney pursuant to this subsection
11.8.
11.9. Judgment.
(a) If for the purpose of obtaining judgment
in any court it is necessary to convert a sum
due hereunder or under any Note in one currency
into another currency, the parties hereto
agree, to the fullest extent that they may
effectively do so, that the rate of exchange
used shall be that rate, inclusive of any costs
of exchange, at which in accordance with normal
banking procedures the Administrative Agent
could purchase the first currency with such
other currency on the Business Day preceding
the day on which final judgment is given.
(b) The obligation of any Borrower or the
Guarantor in respect of any sum due to any
Lender or the Administrative Agent hereunder or
under any Note shall, notwithstanding any
judgment in a currency (the "Judgment
Currency") other than that in which such sum is
denominated in accordance with the applicable
provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent
that on the Business Day following receipt by
such Lender or the Administrative Agent (as the
case may be) of any sum adjudged to be so due
in the Judgment Currency such Lender or the
Administrative Agent (as the case may be) may
in accordance with normal banking procedures
purchase the Agreement Currency with the
Judgment Currency; if the amount of the
Agreement Currency so purchased is less than
the sum originally due to such Lender or the
Administrative Agent (as the case may be) in
the Agreement Currency, such Borrower or the
Guarantor (as the case may be) agrees, as a
separate obligation and notwithstanding any
such judgment, to indemnify such Lender or the
Administrative Agent (as the case may be)
against such loss, and if the amount of the
Agreement Currency so purchased exceeds the sum
originally due to any Lender or the
Administrative Agent (as the case may be), such
Lender or the Administrative Agent (as the case
may be) agrees to remit to such Borrower or the
Guarantor (as the case may be) such excess.
11.10 Counterparts. This Agreement may be
executed by one or more of the parties to this
Agreement on any number of separate
counterparts (including by facsimile
transmission), and all of said counterparts
taken together shall be deemed to constitute
one and
48
190
the same instrument. A set of the copies of
this Agreement signed by all the parties shall
be lodged with the Company and the
Administrative Agent.
11.11. Severability. Any provision of this
Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without
invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render
unenforceable such provision in any other
jurisdiction.
11.12. Integration. This Agreement and the
other Loan Documents represent the agreement of
the Borrowers, the Administrative Agent and the
Lenders with respect to the subject matter
hereof, and there are no promises,
undertakings, representations or warranties by
the Administrative Agent or any Lender relative
to the subject matter hereof not expressly set
forth or referred to herein or in the other
Loan Documents.
11.13. GOVERNING LAW. THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS
PRINCIPLES OF CONFLICT OF LAWS.
11.14. Submission To Jurisdiction; Waivers.
Each Borrower hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any
legal action or proceeding relating to this
Agreement and the other Loan Documents to which
it is a party, or for recognition and
enforcement of any judgement in respect
thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New
York, the courts of the United States of
America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or
proceeding may be brought in such courts
and waives any objection that it may now or
hereafter have to the venue of any such action
or proceeding in any such court or that such
action or proceeding was brought in an
inconvenient court and agrees not to plead or
claim the same;
(c) agrees that service of process in any such
action or proceeding may be effected by mailing
a copy thereof by registered or certified mail
(or any substantially similar form of mail),
postage prepaid, to the Company at its address
set forth in subsection 11.2 or at such other
address of which the Administrative Agent shall
have been notified pursuant thereto;
(d) agrees that nothing herein shall affect
the right to effect service of process in any
other manner permitted by law or shall limit
the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not
prohibited by law, any right it may have to
claim or recover in any legal action or
proceeding referred to in this subsection any
special, exemplary, punitive or consequential
damages.
49
191
11.15. Acknowledgments. Each Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the
negotiation, execution and delivery of this
Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any
Lender has any fiduciary relationship with or
duty to such Borrower arising out of or in
connection with this Agreement or any of the
other Loan Documents, and the relationship
between Administrative Agent and Lenders, on
one hand, and the Borrowers, on the other hand,
in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by
the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby
among the Lenders or among the Borrowers and
the Lenders.
11.16. WAIVERS OF JURY TRIAL. THE BORROWERS,
THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
11.17. Confidentiality. Each Lender and the
Administrative Agent agrees to keep
confidential all non-public information
provided to it by the Company pursuant to this
Agreement that is designated by the Company in
writing as confidential; provided that nothing
herein shall prevent any Lender or the
Administrative Agent, as the case may be, from
disclosing any such information (i) to the
Administrative Agent or any other Lender, (ii)
to any Designated Lender or Transferee which
receives such information having been made
aware of the confidential nature thereof, (iii)
to its employees, directors, agents, attorneys,
accountants and other professional advisors, as
necessary, (iv) upon the request or demand of
any Governmental Authority having jurisdiction
over such Lender, (v) in response to any order
of any court or other Governmental Authority or
as may otherwise be required pursuant to any
Requirement of Law, (vi) which has been
publicly disclosed other than in breach of this
Agreement, (vii) in connection with the
exercise of any remedy hereunder or (viii) to
any rating agency, commercial paper dealer or
provider of a surety, guaranty or credit or
liquidity enhancement to any Designated
Lender.
11.18. No Bankruptcy Proceedings. Each of the
Company, the Subsidiary Borrower, the Lenders
and the Administrative Agent agrees that it
will not institute against any Designated
Lender or join any other Person in instituting
against any Designated Lender any bankruptcy,
reorganization, arrangement, insolvency or
liquidation proceeding under any federal
or state bankruptcy or similar law, for one
year and one day after the payment in full of
the latest maturing commercial paper note
issued by such Designated Lender.
11.19. No Double Counting. For the avoidance
of doubt and for purposes of construction,
there shall be no double counting of amounts
owing or payments made under this Agreement and
under the Notes.
50
192
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed
and delivered by their proper and duly
authorized officers as of the day and year
first above written.
XXXXXX INTERNATIONAL INDUSTRIES,
INCORPORATED
By:
Name:
Title:
XXXXXX HOLDING GMBH
By:
Name:
Title:
COMMERZBANK AG, NEW YORK
BRANCH,
as Administrative Agent
By:
Name:
Title:
By:
Name:
Title:
Effective Date: , 2000
193
Designating Lender:
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES,
as a Lender
By:
Name:
Title:
By:
Name:
Title:
Designated Lender:
FOUR WINDS FUNDING CORPORATION
by Commerzbank AG, New York Branch,
attorney-in-fact
By:
Name:
Title:
By:
Name:
Title:
Designating Lender: Commerzbank AG,
New York - Grand
Cayman Branches
194
COMMERZBANK AG,
LOS ANGELES BRANCH
By:
Name:
Title:
By:
Name:
Title:
CITIBANK, N.A.
By:
Name:
Title:
HSBC Bank USA
By:
Name:
Title:
BANK OF AMERICA N.A.
(formerly known as NationsBank N.A.)
By:
Name:
Title:
SOCIETE GENERALE
By:
Name:
Title:
DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By:
Name:
Title:
195
SCHEDULE I
Commitments and Notice Information
Total Amount of Loan to Amount of Loan to
Lender Commitment Company Subsidiary Borrower
-------- ---------- ----------------- -------------------
Commerzbank AG,
Los Angeles
Branch DEM 0.00 DEM 0.00 DEM 0.00
Commerzbank AG, DEM 30,000,000 DEM 24,000,000 DEM 6,000,000
New York - Grand
Cayman Branches
Citibank, N.A. DEM 25,000,000 DEM 20,000,000 DEM 5,000,000
HSBC Bank USA DEM 25,000,000 DEM 20,000,000 DEM 5,000,000
Bank of
America N.A. DEM 25,000,000 DEM 20,000,000 DEM 5,000,000
Societe Generale DEM 25,000,000 DEM 20,000,000 DEM 5,000,000
Den Danske Bank DEM 20,000,000 DEM 16,000,000 DEM 4,000,000
Aktieselskab,
Cayman Islands
Branch
----------- ----------- ----------
Total 150,000,000 120,000,000 30,000,000
Notice Information:
Commerzbank AG, New York - Grand Cayman
Branches
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Credit Administration
Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Schedule I Page 1
196
With a copy to: Commerzbank AG, Los Angeles
Branch
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Corporate Banking
Xxxxxx Xxxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Citibank N.A.
0 Xxxx'x Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Assistant Manger
Tel: (000) 000-0000
Fax: (000) 000-0000
HSBC Bank USA
0 XXXX Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Bank of America N.A.
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx
Vice President
Tel: (000) 000-0000
Fax: (000) 000-0000
Societe Generale
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Corporate Banking Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
Schedule I Page 2
197
Den Danske Bank Aktieselskab
Cayman Islands Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Loan Administration
Tel: (000) 000-0000
Fax: (000) 000-0000
Schedule I Page 3
198
SCHEDULE III
Administrative Schedule
FUNDING OFFICE, FUNDING TIME, PAYMENT OFFICE
AND PAYMENT TIME
Floating Rate Loans
1. Funding Office: Commerzbank AG, New York -
Grand Cayman Islands
2. Funding Time: 11:00 a.m., New York time on
the Effective Date
3. Payment Office: Commerzbank AG, New York
Branch
ABA No.: 026 008 044
Account No.: 150/0000000/05USD
Ref.: Xxxxxx Industries Inc.
4. Payment Time: 11:00 a.m., New York time
Base Rate Loans
1. Funding Office: Commerzbank AG, New York
Branch
2. Funding Time: N/A
3. Payment Office: Commerzbank AG, New York
Branch
ABA No.: 026 008 044
Account No.: 150/0000000/05USD
Ref.: Xxxxxx Industries Inc.
4. Payment Time: 11:00 a.m., New York time
Notice of Borrowings/Notice of Interest Periods
1. Deliver to: Commerzbank AG, New York
Branch
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Credit Administration
Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Schedule III Page 1
000
Xxxxxxxxxxx XX, Xxx Xxxxxxx Branch
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Corporate Banking
Xxxxxx Xxxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
2. Time: Floating Rate Loans - Not later than
10:00 a.m., New York time, on the last Business
Day preceding the Quotation Day in respect of
such borrowing.
Schedule III Page 2
200
EXHIBIT A
Form of Designation Agreement
Dated _________________, 20__
Reference is made to that certain Amended and
Restated Credit Agreement dated as of July 5,
2000 (as amended, supplemented or otherwise
modified from time to time, the "Credit
Agreement") by and among Xxxxxx International
Industries, Incorporated (the "Company"),
Xxxxxx Holding GmbH (the "Subsidiary
Borrower"), the Lenders parties thereto,
and Commerzbank AG, New York Branch, as
Administrative Agent (the "Administrative
Agent"). Terms defined in the Credit Agreement
are used herein with the same meaning.
[NAME OF DESIGNATING LENDER] (the "Designating
Lender"), [NAME OF DESIGNEE] (the "Designee"),
the Administrative Agent, the Company and the
Subsidiary Borrower agree as follows:
1. Pursuant to subsection 11.6(h) of the
Credit Agreement, the Designating Lender hereby
designates the Designee, and the Designee
hereby accepts such designation, to have a
right to make Loans pursuant to Section 2 of
the Credit Agreement. Any delegation by
Designating Lender to Designee of its rights to
make a Loan pursuant to such Section 2 shall be
effective at the time of the funding of such
Loan and not before such time.
2. Except as set forth in Section 7 below, the
Designating Lender makes no representation or
warranty and assumes no responsibility pursuant
to this Designation Agreement with respect to
(a) any statements, warranties or
representations made in or in connection with
any Loan Document or the execution, legality,
validity, enforceability, genuineness,
sufficiency or value of any Loan Document or
any other instrument and document furnished
pursuant thereto and (b) the financial
condition of the Company or the Subsidiary
Borrower or the performance or observance by
either of any of its obligations under any Loan
Document or any other instrument or document
furnished pursuant thereto.
3. The Designee (a) confirms that it has
received a copy of each Loan Document, together
with copies of the financial statements
referred to in subsection 6.1 of the Credit
Agreement and such other documents and
information as it has deemed appropriate to
make its own credit analysis and decision to
enter into this Designation Agreement; (b)
agrees that it will independently and without
reliance upon the Administrative Agent, the
Designating Lender 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 any Loan Document; (c)
confirms that it is a Designated Lender; (d)
appoints and authorizes the Administrative
Agent to take such action as the Administrative
Agent on its behalf and to exercise such powers
and discretion under any Loan Document as are
delegated to the Administrative Agent by the
terms thereof, together with such powers and
discretion as are reasonably incidental
thereto; and (e) agrees that it will perform in
accordance with their terms all of the
obligations which by the terms of any Loan
Document are required to be performed by
it as a Lender.
Exhibit A Page 1
201
4. The Designee hereby appoints [Designating
Lender or a specified branch or affiliate of
Designating Lender] as Designee's agent and
attorney in fact and grants to [Designating
Lender or a specified branch or affiliate of
Designating Lender] an irrevocable power of
attorney to receive payments made for the
benefit of Designee under the Credit
Agreement, to deliver and receive all
communications and notices under the Credit
Agreement and other Loan Documents and to
exercise on Designee's behalf all rights to
vote and to grant and make approvals, waivers,
consents of amendments to or under the Credit
Agreement or other Loan Documents. Any
document executed by such agent on the
Designee's behalf in connection with the Credit
Agreement or other Loan Documents shall be
binding on the Designee. The Company, the
Subsidiary Borrower, the Administrative Agent
and each of the Lenders may rely on and are
beneficiaries of the preceding provisions.
5. Following the execution of this Designation
Agreement by the Designating Lender, its
Designee, the Company and the Subsidiary
Borrower, it will be delivered to the
Administrative Agent for acceptance and
recording by the Administrative Agent. The
effective date for this Designation Agreement
(the "Effective Date") shall be the date of
acceptance hereof by the Administrative Agent,
unless otherwise specified on the signature
page thereto.
6. Each of the Company, the Subsidiary
Borrower, the Designating Lender and the
Administrative Agent hereby (i) acknowledges
that the Designee is relying on the non-
petition provisions of subsection 11.18 of the
Credit Agreement as agreed to by all
signatories thereto and (ii) reaffirms that it
will not institute against the Designee or join
any other Person in instituting against the
Designee any bankruptcy, reorganization,
arrangement, insolvency or liquidation
proceedings under any federal or state
bankruptcy or similar law for one year and one
day after the payment in full of the latest
maturing commercial paper note issued by the
Designee.
7. The Designating Lender unconditionally
agrees to pay or reimburse the Designee and
save the Designee harmless against all
liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature
whatsoever which may be imposed or asserted by
any of the parties to the Loan Documents
against the Designee, in its capacity as such,
in any way relating to or arising out of this
Agreement or any other Loan Documents or any
action taken or omitted by the Designee
hereunder or thereunder, provided that the
Designating Lender shall not be liable for any
portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements if the
same results from the Designee's gross
negligence or willful misconduct.
8. Upon such acceptance and recording by the
Administrative Agent, as of the Effective Date,
the Designee shall be a party to the Credit
Agreement with a right to make Loans as a
Designated Lender pursuant to subsection 2.8 of
the Credit Agreement and the rights and
obligations of a Designated Lender related
thereto; provided, however, that the Designee
shall not be required to make payments with
respect to such obligations except to the
extent of excess cash flow of the Designee
which is not otherwise required to repay
obligations of the Designee Lender which are
then due and payable. Notwithstanding the
foregoing, the [Designating Lender or a
specified branch or affiliate of Designating
Lender], as administrative
Exhibit A Page 2
202
agent for the Designee, shall be and remain
obligated to the Company, the Subsidiary
Borrower, the Administrative Agent and the
Lenders for each and every of the obligations
of the Designee and the Designating Lender with
respect to the Credit Agreement, including,
without limitation, any indemnification
obligations under subsection 10.7 of the Credit
Agreement and any sums otherwise payable to the
Company or the Subsidiary Borrower by the
Designee.
9. This Designation Agreement shall be
governed by and construed in accordance with
the laws of the State of New York.
10. This Designation Agreement may be executed
in any number of counterparts and by different
parties hereto in separate counterparts, each
of which when so executed shall be deemed to be
an original and all of which taken together
shall constitute one and the same agreement.
Delivery of an executed counterpart of a
signature page to this Designation Agreement by
facsimile transmission shall be effective as
delivery of a manually executed counterpart of
this Designation Agreement.
IN WITNESS WHEREOF, the Designating Lender and
the Designee intending to be legally bound,
have caused this Designation Agreement to be
executed by their officers thereunto duly
authorized as of the date first above written.
[NAME OF DESIGNATING LENDER],
as Designating Lender
By:
Name:
Title:
[NAME OF DESIGNEE],
as Designee
By:
Name:
Title:
Exhibit A Page 3
203
XXXXXX INTERNATIONAL INDUSTRIES,
INCORPORATED,
as the Company
By:
Name:
Title:
XXXXXX HOLDING GMBH,
as the Subsidiary Borrower
By:
Name:
Title:
Accepted this ___ day of _________, 20__:
COMMERZBANK AG, NEW YORK BRANCH,
as Administrative Agent
By:
Name:
Title:
Exhibit A Page 4
204
EXHIBIT B
NOTICE OF BORROWING AND INDEMNITY AGREEMENT
This NOTICE OF BORROWING AND INDEMNITY
AGREEMENT dated as of _______ __, 2000 (this
"Notice and Agreement") is made among XXXXXX
INTERNATIONAL INDUSTRIES, INCORPORATED (the
"Company"), XXXXXX HOLDING GMBH (the
"Subsidiary Borrower") and COMMERZBANK AG, NEW
YORK BRANCH ("Administrative Agent")
W I T N E S S E T H:
WHEREAS, the Company, Subsidiary Borrower,
Administrative Agent and lenders party thereto
("Lenders") have entered into that certain
Amended and Restated Credit Agreement dated as
of July 5, 2000 (the "Credit Agreement")
(capitalized terms not otherwise defined herein
shall have the meanings assigned to them in the
Credit Agreement);
WHEREAS, pursuant to the Credit Agreement,
the execution and delivery of this Notice and
Agreement is a condition precedent to the
effectiveness of the Credit Agreement and the
making of the Loans under the Credit Agreement;
and
NOW, THEREFORE, in order to induce the
Lenders to make the Loans under the Credit
Agreement, the Company and the Subsidiary
Borrower provide the following notices and
agree with the Administrative Agent for the
benefit of each Lender as follows:
1. The Company hereby irrevocably notifies the
Lenders and the Administrative Agent that it
will borrow on the Effective Date (________ __,
2000), $[______] (the "Company Loan Amount").
The initial Interest Period for such Loan will
be [__] months.
2. The Subsidiary Borrower hereby irrevocably
notifies the Lenders and the Administrative
Agent that it will borrow on the Effective Date
(________ __, 2000), $[______] (the "Subsidiary
Borrower Loan Amount"). The initial Interest
Period for such Loan will be [__] months.
3. The Company hereby instructs the
Administrative Agent upon satisfaction or
waiver of the conditions precedent in Section
5.1 of the Credit Agreement to wire transfer on
the Effective Date the Company Loan Amount in
immediately available funds in United States
Dollars to the account of [_____________] as
follows (or such other account which the
Company shall designate):
Bank: [_____________]
Account No.: [_________]
Exhibit B Page 1
205
ABA No.: [_________]
Reference: [_________]
4. The Subsidiary Borrower hereby instructs
the Administrative Agent upon satisfaction or
waiver of the conditions precedent in Section
5.1 of the Credit Agreement to wire transfer on
the Effective Date the Subsidiary Borrower Loan
Amount in immediately available funds in United
States Dollars to the account of _____________]
as follows (or such other account which the
Subsidiary Borrower shall designate):
Bank: [________________]
Account No.: [_________]
ABA No.: [_________]
Reference: [_________]
5. In the event that for any reason the making
of the Loans under the Credit Agreement (the
"Closing") does not occur by 3:00 p.m. (New
York City time) on the Effective Date, the
Borrowers, jointly and severally, shall
indemnify each Lender and hold it harmless
from any loss, cost or expense which such
Lender may sustain or incur as a result of such
Lender having made arrangements in the London
interbank market or otherwise to fund its
Commitment on the Effective Date and the
Closing failing to occur by 3:00 p.m. (New York
City time) on that date.
6. The provisions of Sections 11 of the Credit
Agreement are, by this reference, incorporated
herein as if set forth in full herein together
with all necessary defined terms, except that
references to the term "Agreement" shall mean
this Notice and Agreement.
Exhibit B Page 2
206
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as of the
date first above written.
XXXXXX INTERNATIONAL INDUSTRIES,
INC.,
The Company
By:
Name:
Title:
XXXXXX HOLDING GMBH,
the Subsidiary Borrower
By:
Name:
Title:
Accepted this ___ day of _________, 20__:
COMMERZBANK AG, NEW YORK BRANCH,
as Administrative Agent
By:
Name:
Title:
By:
Name:
Title:
Exhibit B Page 3
207
EXHIBIT C
FORM OF
PROMISSORY NOTE
U.S. $____________ New York, New York
_________, 200_
FOR VALUE RECEIVED, the undersigned, [XXXXXX
INTERNATIONAL INDUSTRIES, INCORPORATED, a
Delaware corporation] [XXXXXX HOLDING GmbH, a
German corporation] (the "Borrower"), hereby
unconditionally promises to pay to the order of
________________________ (the "Lender"), in
care of Commerzbank AG, New York Branch, as
Administrative Agent (the "Agent"), to
Commerzbank AG, New York Branch, 2 World
Financial Center, New York, New York 10281-
1050, or at such other address as may be
specified by the Agent to the Borrower, the
principal sum of ___________________ AND __/100
U.S. DOLLARS $___________ on the Termination
Date, or such lesser amount as may be the then
outstanding and unpaid balance of all Loans
made by the Lender to the Borrower pursuant to,
and in accordance with the terms of, the
Amended and Restated Credit Agreement dated as
of July 5, 2000 (as amended, restated,
supplemented or otherwise modified from time to
time, the "Credit Agreement") among the
Borrower, [Xxxxxx International Industries,
Incorporated] [Xxxxxx Holding GmbH], the Agent,
Commerzbank AG, New York Branch, as Arranger,
and the other financial institutions party
thereto. Capitalized terms used herein and not
defined herein shall have the respective
meanings given to such terms in the Credit
Agreement.
The Borrower further agrees to pay interest at
said office, in like money, on the unpaid
principal amount owing hereunder from time to
time on the dates and at the rates and at the
times specified in the Credit Agreement.
This Note is one of the "Notes" referred to in
the Credit Agreement and is subject to, and
entitled to, all provisions and benefits
thereof. The Credit Agreement, among other
things, (a) provides for the making of Loans by
the Lender to the Borrower in an aggregate
amount not to exceed the Dollar amount first
above mentioned, (b) permits and, in certain
circumstances, requires the prepayment of the
Loans by the Borrower subject to certain terms
and conditions and (c) provides for the
acceleration of the Loans upon the occurrence
of certain specified events.
The Borrower hereby waives presentment, demand,
protest and notice of any kind. No failure to
exercise, and no delay in exercising any rights
hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
Exhibit C Page 1
208
IN WITNESS WHEREOF, the undersigned has
executed and delivered this Note as of the date
written above.
[XXXXXX INTERNATIONAL INDUSTRIES,
INCORPORATED]
[XXXXXX HOLDING GmbH]
By:
Name:
Title:
Exhibit C Page 2
209
[Execution Copy]
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of July 5, 2000
among
XXXXXX INTERNATIONAL INDUSTRIES, INCORPORATED,
XXXXXX HOLDING GMBH,
THE SEVERAL LENDERS FROM TIME TO TIME PARTY
HERETO
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH,
as Administrative Agent
and
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH
Lead Arranger
210
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1. Defined Terms 1
1.2. Other Definitional Provisions 13
SECTION 2. THE LOANS 14
2.1. Loans 14
2.2. Procedure for Borrowing 14
2.3 Repayment of Loans;
Evidence of Debt 14
2.4. [Reserved] 15
2.5. Optional Prepayments 15
2.6 Interest Rates and Payment Dates
for Loans 15
2.7. Inability to Determine Interest
Rate 16
2.8. Loans by Designated Lenders 16
SECTION 3. CERTAIN PROVISIONS APPLICABLE
TO THE LOANS 16
3.1. Certain Fees 16
3.2. Computation of Interest and Fees16
3.3. Pro Rata Treatment and Payments 17
3.4. Illegality 17
3.5. Requirements of Law 18
3.6. Taxes 20
3.7. Indemnity 22
3.8. Change of Funding Office 22
SECTION 4. REPRESENTATIONS AND
WARRANTIES 23
4.1. Financial Condition 23
4.2. No Change 24
4.3. Corporate Existence; Compliance
with Law 24
4.4. Corporate Power; Authorization;
Enforceable Obligations 24
4.5. No Legal Bar 24
4.6. No Material Litigation 24
4.7. No Default 25
4.8. Ownership of Property; Liens 25
4.9. Intellectual Property 25
4.10. Taxes 25
4.11. Federal Regulations 25
4.12. ERISA 26
4.13. Investment Company Act;
Other Regulations 26
(i)
211
4.14. Purpose of Loans 26
4.15. Accuracy and Completeness
of Information 26
4.16. Environmental Matters 27
SECTION 5. CONDITIONS PRECEDENT 28
5.1. Conditions to Amendment
and Restatement and
Making of Loans 28
SECTION 6. AFFIRMATIVE COVENANTS 29
6.1. Financial Statements 29
6.2. Certificates; Other Information 29
6.3. Payment of Obligations 30
6.4. Conduct of Business
and Maintenance of
Existence 30
6.5. Maintenance of Property;
Insurance 31
6.6. Inspection of Property;
Books and Records;
Discussions 31
6.7. Notices 31
6.8. Environmental Laws 32
SECTION 7. NEGATIVE COVENANTS 32
SECTION 8. GUARANTEE 32
8.1. Guarantee 32
8.2. No Subrogation 33
8.3. Modification of Obligations 33
8.4. Waiver 34
8.5. Reinstatement 35
8.6. Payment of Subsidiary
Obligations 35
SECTION 9. EVENTS OF DEFAULT 35
SECTION 10. THE ADMINISTRATIVE AGENT;
THE ARRANGER 37
10.1. Appointment 37
10.2. Delegation of Duties 38
10.3. Exculpatory Provisions 38
10.4. Reliance by
Administrative Agent 38
10.5. Notice of Default 38
10.6. Non-Reliance on
Administrative Agent
and Other Lenders 39
10.7. Indemnification 39
10.8. Administrative Agent
in Its Individual
Capacity 40
10.9. Successor Administrative Agent 40
10.10. Arranger 40
SECTION 11. MISCELLANEOUS 41
11.1. Amendments and Waivers
Generally; Amendments to
Schedules I, II and III 41
(ii)
212
11.2. Notices 42
11.3. No Waiver; Cumulative Remedies 43
11.4. Survival of Representations
and Warranties 43
11.5. Payment of Expenses and Taxes 43
11.6. Successors and Assigns;
Participations and Assignments 44
11.7. Adjustments; Set-off 47
11.8. Power of Attorney 48
11.9. Judgment 48
11.10. Counterparts 48
11.11. Severability 48
11.12. Integration 49
11.13. GOVERNING LAW 49
11.14. Submission To Jurisdiction;
Waivers 49
11.15. Acknowledgments 49
11.16. WAIVERS OF JURY TRIAL 50
11.17. Confidentiality 50
11.18. No Bankruptcy Proceedings 50
11.19. No Double Counting 50
SCHEDULES AND EXHIBITS
SCHEDULE I Commitments and Notice Information
SCHEDULE II Subsidiaries
SCHEDULE III Administrative Schedule
SCHEDULE IV Material Debt Instruments
EXHIBIT A Form of Designation Agreement
EXHIBIT B Form of Notice of Borrowing and
Indemnity Agreement
EXHIBIT C Form of Promissory Note
(iii)
213
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