<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended June 30, 1998
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the Transition Period From _____ to _____
---------------
Commission File Number 000-22973
CTB INTERNATIONAL CORP.
(Exact name of registrant as specified in the charter)
Delaware 35-1970751
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
State Road 15 North, P.O. Box 2000, Milford, IN 46542-2000
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (219)-658-4191
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
At June 30, 1998, approximately 12,797,002 shares, par value $.01 per share, of
common stock of the Registrant were outstanding.
<PAGE> 2
CTB INTERNATIONAL CORP. AND SUBSIDIARIES
INDEX
<TABLE>
<CAPTION>
Page
<S> <C>
Part I
Financial Information
Item 1. Financial Statements
Condensed Consolidated Balance Sheets at December 31, 1997 and
June 30, 1998 1
Condensed Consolidated Income Statements for the Three Months and
Six Months Ended June 30, 1997 and 1998 2
Pro Forma Condensed Consolidated Income Statements for the Three
Months and Six Months Ended June 30, 1997 and 1998 3
Condensed Consolidated Statements of Cash Flows for the Six
Months Ended June 30, 1997 and 1998 4
Notes to Condensed Consolidated Financial Statements 5
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 9
Part II
Other Information
Item 1. II-1
Item 5. II-1
Item 6. II-1
Signature II-1
</TABLE>
<PAGE> 3
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
CTB International Corp. and Subsidiaries
Condensed Consolidated Balance Sheets
(In thousands, except share data)
(Unaudited)
<TABLE>
<CAPTION>
December 31, June 30,
1997 1998
------------ --------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 1,161 $ 899
Accounts receivable - Net 23,875 39,435
Construction costs and estimated earnings in
excess of billings on uncompleted contracts -- 5,730
Inventories 25,352 28,575
Deferred income taxes 1,912 1,912
Prepaid expenses and other current assets 3,222 1,247
--------- ---------
Total current assets 55,522 77,798
PROPERTY, PLANT AND EQUIPMENT - Net 46,407 46,423
INTANGIBLES - Net 65,328 64,076
OTHER ASSETS 384 1,509
--------- ---------
TOTAL ASSETS $ 167,641 $ 189,806
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 10,598 $ 14,437
Current portion of long-term debt 1,245 1,152
Current portion of accrued Earn-Out 1,688 3,375
Accrued liabilities 11,810 13,601
Deferred revenue 3,863 2,876
--------- ---------
Total current liabilities 29,204 35,441
LONG-TERM DEBT 47,919 62,994
DEFERRED INCOME TAXES 9,369 9,372
ACCRUED POSTRETIREMENT BENEFIT COST 2,435 2,695
ACCRUED EARN-OUT 5,062 3,375
COMMITMENTS AND CONTINGENCIES (See Note 8)
MINORITY INTEREST 106 105
STOCKHOLDERS' EQUITY:
Common stock, $.01 par value; 40,000,000 shares authorized; 12,924,990
shares issued 129 129
Preferred stock - 6% cumulative, $.01 par value; 4,000,000
shares authorized; 0 shares issued and outstanding -- --
Treasury stock, at cost; 1997-0 shares, 1998-127,988 shares -- (1,686)
Additional paid-in capital 78,440 78,261
Reduction for carryover of predecessor cost basis (26,871) (26,871)
Retained earnings 22,401 26,699
Accumulated other comprehensive income: (See Note 10)
Cumulative translation adjustment (553) (708)
--------- ---------
Total stockholders' equity 73,546 75,824
--------- ---------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 167,641 $ 189,806
========= =========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
1
<PAGE> 4
CTB International Corp. and Subsidiaries
Condensed Consolidated Income Statements
(In thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
For the Three Months Ended For the Six Months Ended
June 30, June 30,
-------------------------- ------------------------
1997 1998 1997 1998
<S> <C> <C> <C> <C>
NET SALES $ 50,644 $ 70,464 $ 82,164 $ 117,242
COST OF SALES 36,943 55,966 60,859 91,699
--------- --------- --------- --------
Gross profit 13,701 14,498 21,305 25,543
OTHER OPERATING EXPENSE:
Selling, general, and 6,442 8,120 10,991 15,626
administrative expenses
Amortization of goodwill 303 445 543 889
--------- --------- --------- --------
OPERATING INCOME 6,956 5,933 9,771 9,028
OTHER INCOME (EXPENSE) - Net 2,077 (1,093) 785 (1,938)
--------- --------- --------- --------
INCOME BEFORE INCOME TAXES 9,033 4,840 10,556 7,090
INCOME TAXES 4,384 1,929 4,989 2,792
--------- --------- --------- --------
NET INCOME $ 4,649 $ 2,911 $ 5,567 $ 4,298
========= ========= ========= ========
EARNINGS PER SHARE:
Basic: Earnings per share $ 0.64 $ 0.23 $ 0.77 $ 0.34
========= ========= ========= ========
Weighted average common shares outstanding (a) 7,259 12,797 7,257 12,817
========= ========= ========= ========
Diluted: Earnings per common share $ 0.61 $ 0.22 $ 0.73 $ 0.33
========= ========= ========= ========
Weighted average common shares outstanding (a) 7,652 13,184 7,644 13,204
========= ========= ========= ========
</TABLE>
(a) Average number of common shares outstanding varies between periods
presented principally due to five million shares issued in the Company's
initial public offering, the exchange of all outstanding preferred stock
for 648 thousand shares of common stock on August 21, 1997 and 128
thousand net treasury shares repurchased by the Company in 1998.
See accompanying notes to condensed consolidated financial statements.
2
<PAGE> 5
CTB International Corp. and Subsidiaries
Pro Forma Condensed Consolidated Income Statements (a)
(In thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
For the Three Months Ended For the Six Months Ended
June 30, June 30,
-------------------------- ------------------------
1997 1998 1997 1998
<S> <C> <C> <C> <C>
NET SALES $ 65,818 $ 70,464 $ 110,887 $ 117,242
COST OF SALES 47,949 55,966 80,891 91,699
--------- --------- --------- --------
Gross profit 17,869 14,498 29,996 25,543
OTHER OPERATING EXPENSE:
Selling, general, and 8,243 8,120 15,630 15,626
administrative expenses
Amortization of goodwill 412 445 861 889
--------- --------- --------- --------
Operating income 9,214 5,933 13,505 9,028
OTHER INCOME (EXPENSE) - Net 2,512 (1,093) 1,657 (1,938)
--------- --------- --------- --------
INCOME BEFORE INCOME TAXES 11,726 4,840 15,162 7,090
INCOME TAXES 5,489 1,929 6,848 2,792
--------- --------- --------- --------
NET INCOME $ 6,237 $ 2,911 $ 8,314 $ 4,298
========= ========= ========= ========
EARNINGS PER SHARE:
Basic: Earnings per common share $ 0.48 $ 0.23 $ 0.64 $ 0.34
========= ========= ========= ========
Weighted average common shares outstanding 12,925 12,797 12,925 12,817
========= ========= ========= ========
Diluted: Earnings per common share (b) $ 0.47 $ 0.22 $ 0.62 $ 0.33
========= ========= ========= ========
Weighted average common shares outstanding (b) 13,339 13,184 13,339 13,204
========= ========= ========= ========
</TABLE>
(a) The pro forma income statements give effect to the following
transactions as if they had been completed on January 1, 1997: (i) the
Kansas City Grain Systems Division Acquisition, (ii) the Fancom
Acquisition, (iii) the repayment of all amounts outstanding under the
Old Credit Agreement with the proceeds of borrowings under the New
Credit Agreement and a portion of the net proceeds of the Offering, (iv)
the Stock Split, (v) the Preferred Stock Exchange, (vi) the Preferred
Stock Redemption and (vii) the Offering. The pro forma data do not
purport to be indicative of the Company's actual results of operations
that would have been reported had such events actually occurred on the
dates specified.
(b) Pro forma diluted earnings per share is calculated by dividing net
income by the pro forma weighted average common and common equivalent
shares outstanding, after giving effect to the following transactions as
if they had been completed on January 1, 1997: (i) the Stock Split, (ii)
the Preferred Stock Exchange, (iii) the Preferred Stock Redemption and
(iv) the Offering.
See accompanying notes to condensed consolidated financial statements.
3
<PAGE> 6
CTB International Corp. and Subsidiaries
Condensed Consolidated Statements of Cash Flows
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
For the Six Months Ended
June 30,
------------------------
1997 1998
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 5,567 $ 4,298
Adjustments to reconcile net income to net cash flows
from operating activities:
Depreciation 2,371 2,964
Amortization 687 1,171
Equity in income from joint venture -- 115
Gain on sale of assets (47) (254)
Gain on sale of Vinyl Division (3,562) --
Changes in operating assets and liabilities:
Accounts receivable (6,986) (15,560)
Construction costs and estimated earnings in excess of billings -- (5,730)
Inventories (1,577) (3,223)
Prepaid expenses and other assets 1,443 1,688
Accounts payable, accruals and other liabilities 4,699 4,902
-------- --------
Net cash flows from operating activities 2,595 (9,629)
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition of property, plant and equipment (1,754) (2,984)
Acquisitions, net of cash acquired (46,978) --
Investment in joint venture -- (1,200)
Proceeds from sale of Vinyl Division 8,158 --
Proceeds from sale of assets 88 504
-------- --------
Net cash flows from investing activities (40,486) (3,680)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Purchase of treasury stock -- (1,877)
Sale of treasury stock -- 12
Issuance of common stock 231 --
Issuance of preferred stock 69 --
Proceeds from long-term debt 57,948 34,900
Payments on long-term debt (19,152) (19,830)
-------- --------
Net cash flows from financing activities 39,096 13,205
-------- --------
NET INCREASE IN CASH AND CASH EQUIVALENTS 1,205 (104)
NET EFFECT OF TRANSLATION ADJUSTMENT (22) (158)
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 258 1,161
-------- --------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 1,441 $ 899
======== ========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
4
<PAGE> 7
CTB INTERNATIONAL CORP. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have
been prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and Article
10 of Regulation S-X. Accordingly, they do not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three months and six months ended June
30, 1998, are not necessarily indicative of the results that may be expected for
the year ending December 31, 1998. For further information, refer to the
Company's Form 10-K for the fiscal year ended December 31, 1997 which includes
the Company's annual audited financial statements.
NOTE 2. INVENTORIES
Inventories consist of the following (in thousands):
<TABLE>
<CAPTION>
December 31, June 30,
1997 1998
------------ --------
<S> <C> <C>
Raw material $ 7,878 $ 6,733
Work in process 3,872 2,747
Finished goods 13,602 19,095
------- -------
25,352 28,575
LIFO valuation allowance -- --
------- -------
Total $25,352 $28,575
======= =======
</TABLE>
NOTE 3. CONTRACTS IN PROCESS
Construction contracts in process consist of the following (in thousands):
<TABLE>
<CAPTION>
December 31, June 30,
1997 1998
------------ --------
<S> <C> <C>
Costs incurred on uncompleted contracts $ 3,486 $12,814
Estimated earnings 148 1,746
------- -------
3,634 14,560
Less: Billings to date 3,634 8,830
------- -------
Costs and estimated earnings in excess
of billings on uncompleted contracts $ -- $ 5,730
======= =======
</TABLE>
5
<PAGE> 8
NOTE 4. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consist of the following (in thousands):
<TABLE>
<CAPTION>
December 31, June 30,
1997 1998
------------ --------
<S> <C> <C>
Land and improvements $ 2,576 $ 2,576
Buildings and improvements 18,853 19,155
Machinery and equipment 31,322 35,370
Construction in progress 2,405 1,113
-------- --------
55,156 58,214
Less accumulated depreciation (8,749) (11,791)
-------- --------
Total $ 46,407 $ 46,423
======== ========
</TABLE>
NOTE 5. INTANGIBLES
Intangibles consist of the following (in thousands):
<TABLE>
<CAPTION>
December 31, June 30,
1997 1998
------------ --------
<S> <C> <C>
Goodwill $ 66,099 $ 66,009
Accumulated amortization (2,251) (3,221)
-------- --------
Goodwill - Net 63,848 62,788
-------- --------
Deferred finance costs 2,105 2,105
Accumulated amortization (625) (817)
-------- --------
Deferred finance costs - Net 1,480 1,288
-------- --------
Total $ 65,328 $ 64,076
======== ========
</TABLE>
NOTE 6. GAIN ON SALE OF VINYL DIVISION
On May 29, 1997 the Company sold substantially all assets (other than
accounts receivable) relating to its PVC deck, dock and fence business for
approximately $8.2 million to a subsidiary of Royal Group Technologies Limited.
The sale resulted in an approximate $3.6 million pre-tax gain with a related tax
expense of approximately $2.5 million. In conjunction with the sale, the Company
entered into a joint venture with the acquirer to produce certain extruded PVC
agricultural equipment component parts for the Company for a period of five
years.
NOTE 7. BUSINESS COMBINATIONS AND JOINT VENTURE
On May 1, 1997, the Company acquired all the capital stock of Fancom Holding
B.V. ("Fancom Acquisition"). Based in The Netherlands, Fancom is a manufacturer
and marketer of climate control systems and software applications for the
agricultural equipment industry. The purchase price of $12.6 million, net of
cash acquired and including expenses, was financed through borrowings.
On June 23, 1997, the Company acquired substantially all of the assets of
Butler Manufacturing Company's Grain Systems Division ("Kansas City Grain
Systems Division Acquisition"). Based in Kansas City, Missouri, Kansas City
Grain Systems Division manufactures grain storage bins and markets grain
storage, conditioning and handling systems for grain producers and processors
throughout the world. The purchase price of $33.3 million, net of cash acquired
and including expenses, was financed through borrowings.
6
<PAGE> 9
Both transactions were accounted for under the purchase method of accounting.
Accordingly, the purchase prices have been allocated to the acquired assets and
liabilities based on their fair market values as of the dates of acquisition
with the remainder charged to goodwill which will be amortized on a
straight-line basis over 25 years for Fancom and over 40 years for Kansas City
Grain Systems Division. Fancom's and Kansas City Grain Systems Division's
financial statements subsequent to the acquisitions are consolidated and
included in the Company's Consolidated Balance Sheet as of December 31, 1997 and
the Consolidated Statements of Income and Consolidated Statements of Cash Flows
for the year ended December 31, 1997. The purchase prices have been allocated as
follows:
<TABLE>
<CAPTION>
(In thousands)
--------------
<S> <C>
Current assets $ 23,779
Property, plant and equipment 12,927
Intangibles and other assets 25,651
Long-term debt assumed (5,854)
Liabilities assumed (10,590)
--------
Total purchase price $ 45,913
========
</TABLE>
The unaudited pro forma income statements included in this Form 10-Q assume
that the acquisitions had occurred at the beginning of the periods presented and
the purchase price was the same. The unaudited pro forma results have been
prepared for comparative purposes only and do not purport to represent what the
results of operations would have been if the acquisitions had actually occurred
on January 1, 1997 or to project future results.
On May 29, 1998, the formation of Rota Brock Ltda. was completed, a 50/50
joint venture between CTB, Inc. and Rota Industria de Maquinas Agricolas,
Brazil, pursuant to the joint venture agreement entered into February 9, 1998.
The joint venture will produce commercial grain storage silos and feed bins in
addition to seed storage and grain and seed handling equipment in Brazil. The
Company has contributed $1.2 million of its required $3.0 million to the joint
venture in 1998. The Company accounts for its interest in Rota Brock Ltda. on
the equity basis.
NOTE 8. COMMITMENTS AND CONTINGENCIES
There are various claims and pending legal proceedings against the Company
involving matters arising out of the ordinary conduct of business. While the
Company is unable to predict with certainty the outcome of current proceedings,
based upon the facts currently known to it, the Company does not believe that
resolution of these proceedings will have a material adverse effect on its
financial condition and results of operations.
Pursuant to the Stock Purchase Agreement, the Company has agreed to make
certain contingent payments to the Predecessor Company stockholders (the
"Earn-Out Amount") based on a calculation of cumulative Earnings Before
Interest, Taxes, Depreciation and Amortization ("EBITDA") calculated in
accordance with the Stock Purchase Agreement. The Earn-Out Amount is determined
based on cumulative EBITDA for the three-year period ended December 31, 1998.
The cumulative EBITDA target is subject to adjustment in the event of any
merger, acquisition, divestiture or other extraordinary transaction. An
amendment to the Stock Purchase Agreement to give effect to the Kansas City
Grain Systems Division Acquisition, the Fancom Acquisition and the Vinyl
Division Divestiture revised the EBITDA target from $89.5 million to $103.4
million.
The Company could be liable to pay the Predecessor Company stockholders up to
a maximum amount equal to $13.5 million, which would be recorded as an
adjustment to the purchase price for the Acquisition. Fifty percent of the
maximum Earn-out Amount is to be paid at the attainment of 85% of the cumulative
EBITDA target, with payment increasing on a linear scale up to the target
amount. No payment is required unless 85% of the cumulative EBITDA target is
attained. At December 31, 1997, the Company recorded a $6.75 million liability
with the expectation of attaining, at a minimum, 85% of the cumulative EBITDA
target.
7
<PAGE> 10
If an Earn-Out Amount is payable, the Company is obligated to pay the
Earn-Out Amount in four semi-annual installments beginning on August 31, 1998.
The first installment is equal to 25% of the estimated Earn-Out Amount, the
second installment is equal to 50% of the actual Earn-Out Amount minus the
amount of the first installment, and the third and fourth installments are each
equal to 25% of the actual Earn-Out Amount. Accrued interest from January 1,
1999 at the prime rate on the last business day of 1998 will be payable on the
third and fourth installments, provided that interest at such interest rate on
the first installment payment from August 31, 1998 to December 31, 1998 will be
credited against such amount.
NOTE 9. TREASURY STOCK
At June 30, 1998, treasury stock consisted of 127,988 shares of common stock.
The Company issued 14,512 shares of treasury stock in the second quarter to
fulfill its obligations under its stock option agreement. The shares repurchased
are accounted for under the cost method and reported as "Treasury Stock" and
result in a reduction of "Stockholders' Equity." When treasury shares are
reissued, the Company uses a first-in, first-out method and the difference in
repurchase cost and the reissuance price is treated as an adjustment to
"Additional Paid-in Capital."
NOTE 10. NEW ACCOUNTING PRONOUNCEMENT
Effective January 1, 1998, the Company adopted Statement of Financial
Accounting Standards No 130, "Reporting Comprehensive Income" (SFAS 130). This
statement establishes standards for reporting and display of comprehensive
income and its components. This standard expands disclosures and, accordingly,
has no impact on the Company's reported financial position, results of
operations and cash flows. Comprehensive income for the three months ended June
30, 1997 and 1998 was $4.6 million and $3.2 million, respectively, while
comprehensive income for the six months ended June 30, 1997 and 1998 was $5.5
million and $4.1 million, respectively. Net income was adjusted by the change in
the cumulative translation adjustment to arrive at comprehensive income.
Effective June 1998, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 133, "Accounting for Derivative
Instruments and Hedging Activities" (SFAS 133). This statement establishes
accounting and reporting standards for derivative instruments, including
certain derivative instruments embedded in other contracts (collectively
referred to as derivatives), and for hedging activities. It requires that an
entity recognize all derivatives as either assets or liabilities in the
statement of financial position and measure those instruments at fair value.
This statement is effective for the Company's fiscal year beginning 2000. The
Company is evaluating SFAS 133 to determine its impact on the consolidated
financial statements.
NOTE 11. SUBSEQUENT EVENT
On July 7, 1998, CTB International Corp. acquired Sibley Industries, Inc. of
Anderson, Missouri. Sibley Industries is a leading manufacturer of poultry
brooders, units that provide warmth to enhance the growing environment of young
birds, as well as heaters and handling equipment for livestock. The purchase
price of $2.1 million, net of cash acquired and including expenses, included
81,696 shares of the Company's treasury stock and cash installments of $0.3
million per year for four years beginning March 31, 1999. There is an Earn-Out
provision which would require the Company to pay up to an additional $1.15
million over four years should certain sales goals be met.
On August 12, 1998, CTB International Corp. announced it has signed a letter
of Intent to acquire Roxell N.V. of Maldegem, Belgium. Roxell is a leading
manufacturer of automated feeding and watering systems as well as feed storage
facilities for the poultry and swine production industries. Under Belgian
generally accepted accounting principles, Roxell reported sales of approximately
1,490 million Belgian francs and net income of approximately 92 million Belgian
francs in fiscal year ended October 31, 1997. Based on a current exchange rate
of 36.7 Belgian francs to the U.S. dollar, Roxell sales would have been
approximately $40.6 million and net income $2.5 million. The purchase price of
approximately $39 million, will be paid in cash and will be financed through
additional borrowings. The acquisition is subject to completion of a definitive
agreement and other customary conditions, including approval of CTB's board of
directors and Roxell's shareholders, and is expected to close within the next
two months.
8
<PAGE> 11
ITEM 2
CTB INTERNATIONAL CORP. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This commentary should be read in conjunction with the Company's Securities
and Exchange Commission filings, including, but not limited, to the Company's
Form 10-K for the fiscal year ended December 31, 1997, which includes the
Company's annual audited financial statements, for a full understanding of the
Company's financial condition and results of operations.
RESULTS OF OPERATIONS
The Company manufactures and markets automated feeding, watering and
ventilation systems, brooders, feed bins, grain storage bins and integrated
commercial egg laying and handling systems for the poultry, swine, grain and egg
production industries.
THREE MONTHS ENDED JUNE 30, 1998 COMPARED WITH THREE MONTHS ENDED JUNE 30, 1997
Net sales increased 39.1% to $70.5 million for the three months ended June
30, 1998 compared to $50.6 million in the corresponding period of 1997. The
increase reflects the Fancom Acquisition, the Kansas City Grain Systems Division
Acquisition partially offset by the Vinyl Division Divestiture, that were
completed in the second quarter of 1997 as well as domestic and Mexican poultry
market strength and revenues of $9.6 million from the Charoen Pokphand project
buildings. The Asian financial crisis and its spillover effect into Brazil,
which is a large poultry exporter to Asia; weakness in the Canadian grain bin
market and its resulting effect on increased cross-border competition; and
delays in the domestic on-farm bin market all contributed negatively to the
revenue line during the quarter.
Gross profit increased 5.8% to $14.5 million in the three months ended June
30, 1998 or 20.6% of net sales compared to $13.7 million in the corresponding
period of 1997 or 27.1% of net sales. Gross profit dollars increased due to
higher sales levels in 1998. The gross profit margin decrease of 6.5% was
attributable to lower margins relating to the sales of poultry buildings under
projects expected to last into the second quarter of 1999, sales increases in
lower margin ventilation products, the continued effect of the Asian financial
crisis which has reduced our exports of higher margin products to customers in
the region and declines environmental controls sales due to weakness in the
Dutch hog market. In addition, a temporary decline in manufacturing efficiencies
and in our ability to respond adequately to a strong level of dealer orders has
been experienced as a result of the implementation of a fully-integrated
enterprise resource system earlier this year. With added resources, our
responsiveness to customer orders has improved.
Selling, general and administrative expenses increased 26.0% or $1.7 million
to $8.1 million in the three months ended June 30, 1998 from $6.4 million in the
corresponding period of 1997. As a percent of net sales, selling, general and
administrative expenses were 11.5% in the three months ended June 30, 1998 and
12.7% in the corresponding period of 1997. The dollar increase is primarily
attributable to the Kansas City Grain Systems Division Acquisition, and to a
lesser degree the Fancom Acquisition, targeted investments in certain key areas
within the Company, additional costs of being a public company and the effect of
our implementation of the fully-integrated enterprise resource system partially
offset by lower bonuses and profit sharing expense due to lower than expected
performance. The decrease as a percentage of net sales was primarily attributed
to the increase in sales.
Amortization of goodwill increased to $0.4 million in the three months ended
June 30, 1998 or 46.9% from $0.3 million in the corresponding period for 1997.
The increase is attributable to the amortization of goodwill purchased in the
Fancom Acquisition, the Kansas City Grain Systems Division Acquisition offset
9
<PAGE> 12
by the goodwill sold in the Vinyl Division Divestiture.
Operating income decreased 14.7% or $1.1 million to $5.9 million in the
three months ended June 30, 1998 compared to $7.0 million in the corresponding
period of 1997. The decrease in operating income is due to the decline in gross
profit dollars and the increase in selling general and administration
expenses. Operating income margins decreased to 8.4% of net sales in the three
months ended June 30, 1998 from 13.7% of net sales in the corresponding period
of 1997.
Other income and expense decreased $3.2 million to $1.1 million of expense in
the three months ended June 30, 1998 from $2.1 million of income in the three
months ended June 30, 1997. Other income for 1997 included a pre-tax gain of
$3.6 million for the sale of the Vinyl Division offset somewhat by increased
costs to finance the Fancom Acquisition and the Kansas City Grain Systems
Division Acquisition. Other expense for 1998 includes interest on additional
borrowings incurred to fund investments, to finance seasonal working capital
needs and to support the poultry building project activities which was more than
offset by reduced interest costs as a result of the mid-third quarter 1997
initial public offering.
Net income decreased 37.4% or $1.7 million to $2.9 million in the three
months ended June 30, 1998 from $4.6 million for the corresponding period of
1997. The decrease was due to lower operating income in 1998 and the $1.1
million after-tax gain on sale related to the divestiture of the Company's Vinyl
Division offset somewhat by lower interest expense. The effective tax rate for
1998 was lower than 1997 primarily due to the tax impact of the Vinyl Division
Divestiture.
SIX MONTHS ENDED JUNE 30, 1998 COMPARED WITH SIX MONTHS ENDED JUNE 30, 1997
Net sales increased 42.7% to $117.2 million for the six months ended June 30,
1998 compared to $82.2 million in the corresponding period of 1997. The increase
reflects the Fancom Acquisition, the Kansas City Grain Systems Division
Acquisition partially offset by the Vinyl Division Divestiture that were
completed in the second quarter 1997 as well as domestic and Mexican poultry
market strength and revenues of $12.1 million from the Charoen Pokphand project
buildings. The Asian financial crisis and its spillover effect into Brazil,
which is a large poultry exporter to Asia; weakness in the Canadian grain bin
market and its resulting effect on increased cross-border competition; and
delays in the domestic on-farm bin market all contributed negatively to the
revenue line during the six month period.
Gross profit increased 19.9% to $25.5 million in the six months ended June
30, 1998 or 21.8% of net sales compared to $21.3 million in the corresponding
period of 1997 or 25.9% of net sales. Gross profit dollars increased due to
higher sales levels in 1998. The gross profit margin decrease of 4.1% was
attributable to lower margins relating to the sales of poultry buildings under
projects expected to last into the second quarter of 1999, sales increases in
lower margin ventilation products, and the continued effect of the Asian
financial crisis which has reduced our exports of higher margin products to
customers in the region. In addition, a temporary decline in manufacturing
efficiencies and in our ability to respond adequately to a strong level of
dealer orders has been experienced as a result of the implementation of a
fully-integrated enterprise resource system earlier this year. With added
resources, our responsiveness to customer orders has improved.
Selling, general and administrative expenses increased 42.2% or $4.6
million to $15.6 million in the six months ended June 30, 1998 from $11.0
million in the corresponding period of 1997. As a percent of net sales, selling,
general and administrative expenses were 13.3% in the six months ended June 30,
1998 and 13.4% in the corresponding period of 1997. The dollar increase is
primarily attributable to the Kansas City Grain Systems Division Acquisition and
the Fancom Acquisition, targeted investments in certain key areas within the
Company, additional costs of being a public company and the effect of our
implementation of the fully-integrated enterprise resource system partially
offset by lower bonuses and profit sharing expense due to lower than expected
performance. The decrease as a percentage of net sales was primarily attributed
to the increase in sales.
10
<PAGE> 13
Amortization of goodwill increased to $0.9 million in the six months ended
June 30, 1998 or 63.7% from $0.5 million in the corresponding period for 1997.
The increase is attributable to the amortization of goodwill purchased in the
Fancom Acquisition, the Kansas City Grain Systems Division Acquisition offset by
the goodwill sold in the Vinyl Division Divestiture.
Operating income decreased 7.6% or $0.8 million to $9.0 million in the six
months ended June 30, 1998 compared to $9.8 million in the corresponding period
of 1997. Operating income margins decreased to 7.7% of net sales in the six
months ended June 30, 1998 from 11.9% of net sales in the corresponding period
of 1997. The decrease in operating income is due to the decline in gross profit
dollars and the increase in selling, general and administrative expenses.
Other income and expense decreased $2.7 million to $1.9 million of expense in
the six months ended June 30, 1998 from $0.8 million of income in the six months
ended June 30, 1997. Other income for 1997 included a pre-tax gain of $3.6
million for the sale of the Vinyl Division offset somewhat by increased costs to
finance the Fancom Acquisition and the Kansas City Grain Systems Division
Acquisition. Other expense for 1998 includes interest on additional borrowings
incurred to fund investments, to finance seasonal working capital needs and to
support the poultry building project activities which was more than offset by
reduced interest costs as a result of the mid-third quarter 1997 initial public
offering.
Net income decreased 22.8% or $1.3 million to $4.3 million in the six months
ended June 30, 1998 from $5.6 million for the corresponding period of 1997. The
decrease was due to lower operating income in 1998 and the $1.1 million
after-tax gain on sale related to the divestiture of the Company's Vinyl
Division offset somewhat by lower interest expense. The effective tax rate for
1998 was lower than 1997 primarily due to the tax impact of the Vinyl Division
Divestiture.
EFFECTS OF VINYL DIVISION DIVESTITURE
The following summarizes certain operating results of the Company for the
three month period ended June 30, 1997 and 1998 on a pro forma basis giving
effect to the following transactions as if they had occurred on January 1, 1997:
(i) the Kansas City Grain Systems Division Acquisition, (ii) the Fancom
Acquisition, (iii) the Vinyl Division Divestiture, (iv) the repayment of amounts
outstanding under the Existing Credit Agreement with the proceeds of borrowings
under the New Credit Agreement and a portion of the net proceeds of the
Offering, (v) the Stock Split, (vi) the Preferred Stock Exchange, (vii) the
Preferred Stock Redemption, and (viii) the Offering.
For the three months ended June 30, 1998, net sales increased approximately
11.1% to approximately $70.5 million compared to approximately $63.4 million in
the corresponding period in 1997. Operating income decreased approximately 33.3%
to approximately $5.9 million compared to approximately $8.9 million in the
corresponding period in 1997. Net income decreased approximately 39.9% to
approximately $2.9 million compared to approximately $4.8 million in the
corresponding period in 1997.
For the six months ended June 30, 1998, net sales increased approximately
10.3% to approximately $117.2 million compared to approximately $106.3 million
in the corresponding period in 1997. Operating income decreased approximately
30.9% to approximately $9.0 million compared to approximately $13.1 million in
the corresponding period in 1997. Net income decreased approximately 36.9% to
approximately $4.3 million compared to approximately $6.8 million in the
corresponding period in 1997.
FINANCIAL POSITION
Changes in the financial position of the Company from December 31, 1997 to
June 30, 1998 were due to operational changes.
11
<PAGE> 14
Total assets increased $22.2 million from $167.6 million at December 31, 1997
to $189.8 million at June 30, 1998. Accounts receivable increase by $15.6
million from December 31, 1997 to June 30, 1998 due to the seasonal increase in
sales volumes and an increase in average days sales outstanding. At June 30,
1998, construction costs in excess of billings for the poultry broiler and
breeder projects were $5.7 million. Inventories at June 30, 1998 increased by
$3.2 million from December 31, 1997. The increase was due to higher inventory
levels to support higher order levels for the summer season. Net property, plant
and equipment did not change from the $46.4 million from December 31, 1997 since
net additions offset the additional accumulated depreciation for the period.
Intangibles decreased by $1.3 million from December 31, 1997 to June 30, 1998
due to amortization of goodwill and loan costs.
Total liabilities increased $19.9 million from $94.1 million at December
31, 1997 to $114.0 at June 30, 1998. Accounts payable and accrued liabilities
increased $5.6 million during this period. Long-term debt increased $14.9
million from $49.2 million at December 31, 1997 to $64.1 million at June 30,
1998 due to revolver borrowings to fund investments and to support seasonal
operational changes and other working capital needs. The current portion of the
Accrued Earn-Out increased by $1.7 million while the long-term portion of the
Accrued Earn-Out decreased by the same amount as the second installment due on
February 28, 1999 was recognized as a current liability.
Total stockholders' equity increased $2.3 million due to net income for the
period offset by net treasury stock purchases, stock options exercised and
changes in cumulative translation adjustment.
LIQUIDITY AND CAPITAL RESOURCES
As of June 30, 1998, the Company had $42.4 million of working capital, an
increase of $16.0 million from working capital as of December 31, 1997. Net cash
used for operating activities for the six months ended June 30, 1998 was $9.6
million. Net cash provided by operating activities for the six months ended June
30, 1997 was $2.6 million.
For the six months ended June 30, 1998, cash used in investing activities was
$3.7 million, which was used for the acquisition of assets and the Rota Brock
Ltda. joint venture investment offset slightly by the sale of assets. For the
six months ended June 30, 1997, cash used in investing activities was $40.5
million, which was used primarily for the Fancom and Kansas City Grain Systems
Division acquisitions offset by the sale of the Vinyl Division.
For the six months ended June 30, 1998, net cash provided by financing
activities was $13.2 million. During this period there was a net $15.0 million
increase in cash flows from debt activity offset by a $1.9 million use of cash
for treasury stock purchases. For the six months ended June 30, 1997, net cash
provided by financing activities was $39.1 million. Proceeds of debt provided
$57.9 million for use in acquisition financing and working capital needs while
payments on debts totaled $19.2 million.
The Company believes that existing cash, cash flows from operations and
available borrowings under the New Credit Agreement will be sufficient to
support its working capital, capital expenditure and debt service requirements
for the foreseeable future.
SEASONALITY
Sales of agricultural equipment are seasonal, with poultry, swine and egg
producers purchasing equipment during prime construction periods in the spring,
summer and fall and farmers traditionally purchasing grain storage bins in the
summer and fall in conjunction with the harvesting season. The Company's net
sales and net income have historically been lower during the first and fourth
fiscal quarters as compared to the second and third quarters as distributors and
dealers increase inventory in anticipation
12
<PAGE> 15
of seasonal demand.
The following table presents unaudited interim operating results of the
Company. The Company believes that the following information includes all
adjustments (consisting only of normal, recurring adjustments) that the Company
considers necessary for a fair presentation for the respective periods. The
operating results for any interim period are not necessarily indicative of
results for any interim period or the entire fiscal year.
<TABLE>
<CAPTION>
(In thousands, except per share amounts) Three Months Ended
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
June 30, June 30, September 30, December 31, March 31,
1998 1997 1997 1997 1998
------ ------ ------ ------ ------
Sales $ 70,464 $ 50,644 $ 71,740 $ 48,159 $ 46,778
Gross profit 14,498 13,701 20,590 11,823 11,045
Gross margin 20.6% 27.1% 28.7% 24.5% 23.6%
Operating incoming $ 5,933 $ 6,956 $ 12,186 $ 3,882 $ 3,095
Operating income margin 8.4% 13.7% 17.0% 8.1% 6.6%
Net income $ 2,911 $ 4,649 $ 6,375 $ 1,957 $ 1,387
Basic earnings per share $ 0.23 $ 0.64 $ 0.65 $ 0.15 $ 0.11
Basic weighted average common
shares outstanding 12,797 7,259 9,733 12,925 12,837
Diluted earnings per share $ 0.22 $ 0.61 $ 0.63 $ 0.15 $ 0.11
Diluted weighted average common
shares outstanding 13,184 7,652 10,149 13,360 13,208
</TABLE>
FORWARD LOOKING STATEMENTS
Certain statements made herein contain forward-looking statements relating
to 1998 financial performance and financial condition. Forward-looking
statements are not guarantees of future performance and involve risks and
uncertainties, including (i) the ability to support future capital
needs, (ii) seasonality of the Company's business, (iii) construction progress
and the timing of completion and impact on gross margin of building construction
projects, and (iv) the successful and timely resolution of the enterprise
resource system implementation issues and the related costs. For a more
complete presentation of risks and uncertainties, see the Company's filings
with the Securities and Exchange Commission, including the Company's report on
Form 10-K.
13
<PAGE> 16
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
See Note 8 to Part I
Item 5. Other Information
See Note 9 to the financial statements
Item 6. Exhibits and Reports on Form 8-K
a) Exhibits
3.1 Form of Restated Certificate of Incorporation of the Company
filed as Exhibit 3.1 to the Company's Registration Statement
on Form S-1 (Registration No. 333-29873) (the "Company's
Registration Statement") and incorporated herein by
reference.
3.2 Form of By-laws of the Company filed as Exhibit 3.2 to the
Company Registration Statement and incorporated herein by
reference.
4.1 Specimen Certificate of Common Stock of the Company filed as
Exhibit 4.1 to the Company Registration Statement and
incorporated herein by reference.
10.1 Credit Agreement dated as of August 15,1997, among CTB,
Inc., CHORE-TIME BROCK HOLDING B.V. as Borrowers, the
Lending Institution named therein, and KEYBANK NATIONAL
ASSOCIATION as Administrative Agent (the "Credit
Agreement").
10.2 Amendment No.1 dated as of March 1, 1998, to the Credit
Agreement;
10.3 Amendment No.2 dated as of June 1, 1998, to the Credit
Agreement.
11. Computation of Earnings Per Share.
27 Financial Data Schedule.
b) Reports on Form 8-K.
No reports on Form 8-K were filed by the Company during the
quarter ended June 30, 1998.
Items 2, 3, and 4 are not applicable and have been omitted.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CTB International Corp.
Dated: August 13, 1998 By
--------------------------------------
Don J. Steinhilber
Vice President, Chief Financial Officer
II-1
<PAGE> 1
===============================================================================
CREDIT AGREEMENT
DATED AS OF
AUGUST 15, 1997
AMONG
CTB, INC.
CHORE-TIME BROCK HOLDING B. V.
AS BORROWERS
THE LENDING INSTITUTIONS NAMED THEREIN
AS LENDERS
AND
KEYBANK NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 1. DEFINITIONS AND TERMS.......................................... 1
1.1. CERTAIN DEFINED TERMS.......................................... 1
1.2. COMPUTATION OF TIME PERIODS.................................... 16
1.3. ACCOUNTING TERMS............................................... 16
1.4. TERMS GENERALLY................................................ 16
1.5. CURRENCY EQUIVALENTS........................................... 17
SECTION 2. AMOUNT AND TERMS OF LOANS...................................... 17
2.1. COMMITMENTS FOR LOANS.......................................... 17
2.2. MINIMUM BORROWING AMOUNTS, ETC.; PRO RATA BORROWINGS........... 18
2.3. NOTICE OF BORROWING............................................ 18
2.4. DISBURSEMENT OF FUNDS FROM BORROWINGS.......................... 20
2.5. REFUNDING OF, OR PARTICIPATION IN, SWING LINE REVOLVING LOANS.. 21
2.6. NOTES.......................................................... 22
2.7. VOLUNTARY CONVERSION OF DOLLAR DENOMINATED GENERAL REVOLVING
LOANS; REDENOMINATION OF GENERAL REVOLVING LOANS............... 22
2.8. INTEREST ON LOANS.............................................. 24
2.9. INTEREST PERIODS............................................... 25
2.10. INCREASED COSTS, ILLEGALITY, ETC............................... 26
2.11. COMPENSATION................................................... 28
2.12. CHANGE OF LENDING OFFICE; REPLACEMENT OF LENDERS............... 28
SECTION 3. LETTERS OF CREDIT.............................................. 29
3.1. LETTERS OF CREDIT.............................................. 29
3.2. LETTER OF CREDIT REQUESTS: NOTICES OF ISSUANCE................. 30
3.3. AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS................... 30
3.4. LETTER OF CREDIT PARTICIPATIONS................................ 31
3.5. INCREASED COSTS................................................ 33
3.6. GUARANTY OF SUBSIDIARY LETTER OF CREDIT OBLIGATIONS............ 34
SECTION 4. FEES; COMMITMENTS.............................................. 35
4.1. FEES........................................................... 35
4.2. VOLUNTARY REDUCTION OF COMMITMENTS............................. 36
4.3. MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC...................... 37
4.4. EXTENSION OF MATURITY DATE..................................... 37
SECTION 5. PAYMENTS....................................................... 37
5.1. VOLUNTARY PREPAYMENTS.......................................... 37
5.2. MANDATORY PREPAYMENTS.......................................... 38
5.3. METHOD AND PLACE OF PAYMENT.................................... 39
5.4. NET PAYMENTS................................................... 39
SECTION 6. CONDITIONS PRECEDENT........................................... 41
6.1. CONDITIONS PRECEDENT AT INITIAL BORROWING DATE................. 41
6.2. FIRST BORROWING BY ANY ADDITIONAL FOREIGN BORROWING SUBSIDIARY. 42
6.3. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS...................... 42
SECTION 7. REPRESENTATIONS AND WARRANTIES................................. 43
7.1. CORPORATE STATUS, ETC.......................................... 43
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
7.2. SUBSIDIARIES................................................... 43
7.3. CORPORATE POWER AND AUTHORITY, ETC............................. 43
7.4. NO VIOLATION................................................... 43
7.5. GOVERNMENTAL APPROVALS......................................... 44
7.6. LITIGATION..................................................... 44
7.7. USE OF PROCEEDS; MARGIN REGULATIONS............................ 44
7.8. FINANCIAL STATEMENTS, ETC...................................... 44
7.9. NO MATERIAL ADVERSE CHANGE..................................... 45
7.10. TAX RETURNS AND PAYMENTS....................................... 45
7.11. TITLE TO PROPERTIES, ETC....................................... 45
7.12. LAWFUL OPERATIONS, ETC......................................... 45
7.13. ENVIRONMENTAL MATTERS.......................................... 45
7.14. COMPLIANCE WITH ERISA.......................................... 46
7.15. INTELLECTUAL PROPERTY, ETC..................................... 46
7.16. INVESTMENT COMPANY............................................. 46
7.17. BURDENSOME CONTRACTS; LABOR RELATIONS.......................... 47
7.18. EXISTING INDEBTEDNESS.......................................... 47
7.19. TRUE AND COMPLETE DISCLOSURE................................... 47
SECTION 8. AFFIRMATIVE COVENANTS.......................................... 48
8.1. REPORTING REQUIREMENTS......................................... 48
8.2. INSPECTIONS.................................................... 50
8.3. INSURANCE...................................................... 50
8.4. PAYMENT OF TAXES AND CLAIMS.................................... 50
8.5. CORPORATE FRANCHISES........................................... 50
8.6. GOOD REPAIR.................................................... 51
8.7. COMPLIANCE WITH STATUTES, ETC.................................. 51
8.8. COMPLIANCE WITH ENVIRONMENTAL LAWS............................. 51
8.9. FISCAL YEARS, FISCAL QUARTERS.................................. 52
8.10. CERTAIN SUBSIDIARIES TO JOIN IN SUBSIDIARY GUARANTY............ 52
8.11. CORPORATE SEPARATENESS......................................... 52
8.12. HEDGE AGREEMENTS, ETC.......................................... 53
8.13. ADDITION AND DELETION OF FOREIGN BORROWING SUBSIDIARIES........ 53
8.14. SENIOR DEBT.................................................... 53
SECTION 9. NEGATIVE COVENANTS............................................. 53
9.1. CHANGES IN BUSINESS............................................ 53
9.2. CONSOLIDATION, MERGER OR SALE OF ASSETS, ETC................... 53
9.3. LIENS.......................................................... 55
9.4. INDEBTEDNESS................................................... 56
9.5. ADVANCES, INVESTMENTS, LOANS AND GUARANTY OBLIGATIONS.......... 57
9.6. PREPAYMENTS AND REFINANCINGS OF OTHER DEBT, ETC................ 59
9.7. TOTAL INDEBTEDNESS/CONSOLIDATED EBITDA RATIO................... 59
9.8. TOTAL INDEBTEDNESS/TOTAL CAPITALIZATION RATIO.................. 59
9.9. INTEREST COVERAGE RATIO........................................ 59
9.10. MINIMUM CONSOLIDATED NET WORTH................................. 59
9.11. TRANSACTIONS WITH AFFILIATES................................... 60
9.12. LIMITATION ON CERTAIN RESTRICTIVE AGREEMENTS................... 60
9.13. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS................. 60
9.14. PLAN TERMINATIONS, MINIMUM FUNDING, ETC........................ 60
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 10. EVENTS OF DEFAULT.............................................. 61
10.1. EVENTS OF DEFAULT.............................................. 61
10.2. ACCELERATION, ETC.............................................. 62
10.3. APPLICATION OF LIQUIDATION PROCEEDS............................ 63
SECTION 11. THE ADMINISTRATIVE AGENT....................................... 63
11.1. APPOINTMENT.................................................... 63
11.2. DELEGATION OF DUTIES........................................... 64
11.3. EXCULPATORY PROVISIONS......................................... 64
11.4. RELIANCE BY ADMINISTRATIVE AGENT............................... 64
11.5. NOTICE OF DEFAULT.............................................. 64
11.6. NON-RELIANCE................................................... 65
11.7. INDEMNIFICATION................................................ 65
11.8. THE ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY................ 65
11.9. SUCCESSOR ADMINISTRATIVE AGENT................................. 65
11.10. OTHER AGENTS................................................... 66
SECTION 12. GUARANTY BY THE COMPANY........................................ 66
12.1. GUARANTY OF FOREIGN SUBSIDIARY BORROWINGS...................... 66
12.2. ADDITIONAL UNDERTAKING......................................... 66
12.3. GUARANTY UNCONDITIONAL, ETC.................................... 66
12.4. COMPANY OBLIGATIONS TO REMAIN IN EFFECT; RESTORATION........... 67
12.5. WAIVER OF ACCEPTANCE, ETC...................................... 67
12.6. SUBROGATION.................................................... 67
12.7. EFFECT OF STAY................................................. 67
SECTION 13. MISCELLANEOUS.................................................. 67
13.1. PAYMENT OF EXPENSES ETC........................................ 67
13.2. RIGHT OF SETOFF................................................ 68
13.3. NOTICES........................................................ 69
13.4. BENEFIT OF AGREEMENT........................................... 69
13.5. NO WAIVER: REMEDIES CUMULATIVE................................. 70
13.6. PAYMENTS PRO RATA.............................................. 70
13.7. CALCULATIONS: COMPUTATIONS..................................... 71
13.8. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL........................................... 71
13.9. COUNTERPARTS................................................... 72
13.10. EFFECTIVENESS.................................................. 72
13.11. HEADINGS DESCRIPTIVE........................................... 72
13.12. AMENDMENT OR WAIVER............................................ 72
13.13. SURVIVAL....................................................... 72
13.14. DOMICILE OF LOANS.............................................. 73
13.15. CONFIDENTIALITY................................................ 73
13.16. LENDER REGISTER................................................ 73
13.17. LIMITATIONS ON LIABILITY OF THE LETTER OF CREDIT ISSUERS....... 73
13.18. GENERAL LIMITATION OF LIABILITY................................ 74
13.19. NO DUTY........................................................ 74
13.20. LENDERS AND ADMINISTRATIVE AGENT NOT FIDUCIARY TO
COMPANY, ETC................................................... 74
13.21. JUDGMENT CURRENCY.............................................. 74
13.22. SURVIVAL OF REPRESENTATIONS AND WARRANTIES..................... 75
</TABLE>
iii
<PAGE> 5
- ------------------
<TABLE>
<S> <C>
ANNEX I - INFORMATION AS TO LENDERS
ANNEX II - INFORMATION AS TO SUBSIDIARIES
ANNEX III - DESCRIPTION OF EXISTING INDEBTEDNESS
ANNEX IV - DESCRIPTION OF EXISTING LIENS
ANNEX V - DESCRIPTION OF EXISTING ADVANCES, LOANS,
INVESTMENTS AND GUARANTEES
ANNEX VI - DESCRIPTION OF LETTERS OF CREDIT DEEMED ISSUED UNDER THE
CREDIT AGREEMENT
EXHIBIT A-1 - FORM OF GENERAL REVOLVING NOTE
EXHIBIT A-2 - FORM OF SWING LINE REVOLVING NOTE
EXHIBIT B-1 - FORM OF NOTICE OF BORROWING
EXHIBIT B-2 - FORM OF NOTICE OF CONVERSION
EXHIBIT B-3 - FORM OF LETTER OF CREDIT REQUEST
EXHIBIT B-4 - FORM OF NOTICE OF REDENOMINATION
EXHIBIT C-1 - FORM OF SUBSIDIARY GUARANTY
EXHIBIT C-2 - FORM OF FOREIGN SUBSIDIARY GUARANTY
EXHIBIT D - FORM OF OPINION OF INTERNAL COUNSEL TO THE COMPANY
EXHIBIT E - FORM OF ASSIGNMENT AGREEMENT
EXHIBIT F - FORM OF SECTION 5.4(B)(II) CERTIFICATE
EXHIBIT G - FORM OF ELECTION TO PARTICIPATE
EXHIBIT H - FORM OF ELECTION TO TERMINATE
</TABLE>
iv
<PAGE> 6
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of August 15, 1997, among the following:
(i) CTB, INC., an Indiana corporation (herein, together with its
successors and assigns, the "COMPANY" or a "BORROWER");
(ii) CHORE-TIME BROCK HOLDING B. V., a private limited liability
company formed under the laws of The Netherlands (herein, together with
its successors and assigns, "CHORE-TIME NETHERLANDS" or a "BORROWER"),
which is a Wholly-Owned Subsidiary of the Company;
(iii) the lending institutions listed in Annex I hereto (each a
"LENDER" and collectively, the "LENDERS"); and
(iv) KEYBANK NATIONAL ASSOCIATION, a national banking association,
as administrative agent (the "ADMINISTRATIVE AGENT"):
PRELIMINARY STATEMENTS:
(1) Unless otherwise defined herein, all capitalized terms used herein and
defined in section 1 are used herein as so defined.
(2) The Borrowers have applied to the Lenders for credit facilities in
order to refinance certain indebtedness of the Borrowers and in order to
provide working capital and funds for other lawful purposes.
(3) Subject to and upon the terms and conditions set forth herein, the
Lenders are willing to make available to the Borrowers the credit facilities
provided for herein.
NOW, THEREFORE, it is agreed:
SECTION 1. DEFINITIONS AND TERMS.
1. CERTAIN DEFINED TERMS. As used herein, the following terms shall have
the meanings herein specified unless the context otherwise requires:
"ADMINISTRATIVE AGENT" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to section 11.9.
"AFFILIATE" shall mean, with respect to any person, any other person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such person. A person shall be deemed to control a second
person if such first person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the
election of directors or managers of such second person or (ii) to direct or
cause the direction of the management and policies of such second person,
whether through the ownership of voting securities, by contract or otherwise.
Notwithstanding the foregoing, (x) a director, officer or employee of a person
shall not, solely by reason of such status, be considered an Affiliate of such
person; and (y) neither the Administrative Agent nor any Lender shall in any
event be considered an Affiliate of the Company or any other Credit Party or
any of their respective Subsidiaries.
"AGREEMENT" shall mean this Credit Agreement, as the same may be from time
to time further modified, amended and/or supplemented.
<PAGE> 7
"ALTERNATIVE CURRENCY" shall mean and include (i) Dutch Guilders, German
Marks, French Francs, Pounds Sterling and European Currency Units (ECUs), if at
the time any such currency is readily and freely transferable and convertible
into Dollars; and (ii) any other lawful currency other than Dollars which is
readily and freely transferable and convertible into Dollars and which (A) in
the case of any General Revolving Loans to be denominated in such Alternative
Currency, is acceptable to all of the Lenders with General Revolving
Commitments, or (B) in the case of any Letter of Credit which is payable in
such Alternative Currency, is acceptable to the Required Lenders and any
applicable Letter of Credit Issuer.
"APPLICABLE EUROCURRENCY MARGIN" shall have the meaning provided in
section 2.8(g).
"APPLICABLE FACILITY FEE RATE" shall have the meaning provided in section
4.1(a).
"APPLICABLE LENDING OFFICE" shall mean, with respect to each Lender, (i)
such Lender's Domestic Lending Office in the case of Borrowings consisting of
Prime Rate Loans (or, in the case of any Borrowings of Swing Line Revolving
Loans consisting of Money Market Rate Loans), and (ii) such Lender's
Eurocurrency Lending Office in the case of Borrowings consisting of
Eurocurrency Loans.
"ASSET SALE" shall mean the sale, transfer or other disposition (including
by means of mergers, consolidations, and liquidations of a corporation,
partnership or limited liability company of the interests therein of the
Company or any Subsidiary) by the Company or any Subsidiary to any person other
than the Company or any Subsidiary of any of their respective assets (other
than sales, transfers or other dispositions of inventory, or obsolete or excess
furniture, fixtures, equipment or other property, tangible or intangible, in
the ordinary course of business).
"ASSIGNMENT AGREEMENT" shall mean an Assignment Agreement substantially in
the form of Exhibit E hereto.
"AUTHORIZED OFFICER" shall mean any officer or employee of any applicable
Borrower designated as such in writing to the Administrative Agent by such
Borrower.
"BANKRUPTCY CODE" shall have the meaning provided in section 10.1(h).
"BORROWER" shall mean any of the Company, Chore-Time Netherlands or any
other Foreign Borrowing Subsidiary, as the case may be.
"BORROWING" shall mean the incurrence of General Revolving Loans or Swing
Line Revolving Loans, as the case may be, consisting of a single Type of Loan
denominated in the same currency, by any applicable Borrower from all of the
Lenders having Commitments in respect thereof on a PRO RATA basis on any given
date (or in the case of General Revolving Loans, resulting from a conversion or
a Redenomination on a given date), having in the case of Eurocurrency Loans
denominated in any particular currency the same Interest Period, and having in
the case of any Money Market Rate Loans the same Quoted Rate and maturity.
"BUSINESS DAY" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the city in which the applicable Payment Office is located a legal
holiday or a day on which banking institutions are authorized by law or other
governmental actions to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurocurrency Loans, any day which is a Business Day described in clause (i) and
which is also a day on which dealings are carried on in the London interbank
market and banks are open for business in London and in the country of issue of
any Alternative Currency in which any applicable Eurocurrency Loans are
denominated.
"CAPITAL LEASE" as applied to any person shall mean any lease of any
property (whether real, personal or mixed) by that person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that person.
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"CAPITALIZED LEASE OBLIGATIONS" shall mean all obligations under Capital
Leases of the Company or any of its Subsidiaries in each case taken at the
amount thereof accounted for as liabilities identified as "capital lease
obligations" (or any similar words) on a consolidated balance sheet of the
Company and its Subsidiaries prepared in accordance with GAAP.
"CASH EQUIVALENTS" shall mean (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (PROVIDED that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than one year from the date of acquisition, (ii) U.S. dollar denominated time
deposits, certificates of deposit and bankers' acceptances of (x) any Lender or
(y) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Moody's is at least P-1 or the equivalent
thereof (any such bank, an "APPROVED LENDER"), in each case with maturities of
not more than 90 days from the date of acquisition, (iii) commercial paper
issued by any Lender or Approved Lender or by the parent company of any Lender
or Approved Lender and commercial paper issued by, or guaranteed by, any
industrial or financial company with a short- term commercial paper rating of
at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody's, or guaranteed by any industrial company with a long term
unsecured debt rating of at least A or A2, or the equivalent of each thereof,
from S&P or Moody's, as the case may be, and in each case maturing within 90
days after the date of acquisition, (iv) investments in money market funds
substantially all the assets of which are comprised of securities of the types
described in clauses (i) through (iii) above, and (v) in the case of any
Foreign Subsidiary only, short term deposits, certificates of deposits,
repurchase agreements and similar financial instruments, in any currency, with
or issued by any local or international financial institution, not exceeding
$5,000,000 (or the equivalent in any other currency) in the case of any single
financial institution.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time
to time, 42 U.S.C. Section 9601 ET SEQ.
"CHANGE OF CONTROL" shall mean and include any of the following:
(i) the Parent shall, for any reason, cease to have, directly or
indirectly, beneficial ownership (within the meaning of Rule 13d-3 and
13d-5 of the 1934 Act) of at least 85%, on a fully diluted basis, of the
economic or voting interest in the Company's capital stock;
(ii) any person or group (as such term is defined in section
13(d)(3) of the 1934 Act), other than the Parent, the Company, any
trustee or other fiduciary holding securities under an employee benefit
plan of the Parent or the Company, American Securities Partners GP
(Management) Corp. and/or ASP/CTB G.P. Corp and their Affiliates, J.
Christopher Chocola and Caryl M. Chocola and any active full-time
employees of the Company (and (x) trusts for the benefit of any such
individual person, his or her family and descendants, and (y) any voting
trust over which Mr. J. Christopher Chocola and/or officers of American
Securities Partners GP (Management Corp. or any of its Affiliates
exercises control), shall acquire, directly or indirectly, beneficial
ownership (within the meaning of Rule 13d-3 and 13d-5 of the 1934 Act) of
more than 25%, on a fully diluted basis, of the economic or voting
interest in the Parent's capital stock;
(iii) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the Parent's
Board of Directors (together with any new directors whose election by the
Parent's Board of Directors or whose nomination for election by the
Parent's shareholders was approved by a vote of at least two-thirds of
the directors then still in office who either were 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 directors then in office;
(iv) the shareholders of the Parent approve a plan of complete
liquidation of the Parent or an agreement or agreements for the sale or
disposition by the Parent of all or substantially all of the Parent's
assets; or
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<PAGE> 9
(v) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement or agreements for the sale or
disposition by the Company of all or substantially all of the Company's
assets.
"CHORE-TIME NETHERLANDS" shall have the meaning provided in the first
paragraph of this Agreement.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the
Effective Date and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"COMMITMENT" shall mean with respect to each Lender its General Revolving
Commitment or its Swing Line Revolving Commitment, as the case may be.
"COMPANY" shall have the meaning provided in the first paragraph of this
Agreement.
"CONSOLIDATED CAPITAL EXPENDITURES" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including amounts expended or capitalized under Capital Leases but
excluding any amount representing capitalized interest) by the Company and its
Subsidiaries during that period that, in conformity with GAAP, are or are
required to be included in the property, plant or equipment reflected in the
consolidated balance sheet of the Company and its Subsidiaries. Notwithstanding
the foregoing, amounts expended to complete, or capitalized in connection with
the completion of, Permitted Acquisitions, shall not constitute Capital
Expenditures.
"CONSOLIDATED EBIT" shall mean, for any period, Consolidated Net Income
for such period; PLUS (A) the sum of the amounts for such period included in
determining such Consolidated Net Income of (i) Total Interest Expense, (ii)
Total Income Tax Expense, (iii) amortization or write-off of deferred financing
costs, and (iv) extraordinary non-cash losses and other non-recurring non-cash
losses and charges; LESS (B) gains on sales of assets (excluding sales in the
ordinary course of business) and extraordinary gains and non-recurring non-cash
gains; all as determined for the Company and its Subsidiaries on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED EBITDA" shall mean, for any period, the sum of the amounts
for such period of (i) Consolidated EBIT, (ii) Total Depreciation Expense, and
(iii) Total Amortization Expense, all as determined for the Company and its
Subsidiaries on a consolidated basis in accordance with GAAP; PROVIDED that
Consolidated EBITDA for any period shall include the appropriate financial
items for any person or business unit which has been acquired by the Company
for any portion of such period prior to the date of acquisition, in which event
appropriate adjustments shall also be made to exclude the appropriate financial
items for any person or business unit which has been disposed of by the
Company, for the portion of such period prior to the date of disposition.
"CONSOLIDATED NET INCOME" shall mean for any period, the net income (or
loss), without deduction for minority interests, of the Company and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP, PROVIDED that there shall
be excluded therefrom (i) the income, (or loss) of any entity (other than
Subsidiaries of the Company) in which the Company or any of its Subsidiaries
has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to the Company or any of its Subsidiaries during
such period, (ii) the income (or loss) of any entity accrued prior to the date
it becomes a Subsidiary or is merged into or consolidated with the Company or
any of its Subsidiaries or on which its assets are acquired by the Company or
any of its Subsidiaries, and (iii) the income of any Subsidiary of the Company
to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary.
"CONSOLIDATED NET WORTH" shall mean at any time for the determination
thereof all amounts which, in conformity with GAAP, would be included under the
caption "total stockholders' equity" (or any like caption) on a consolidated
balance sheet of the Company as at such date; PROVIDED that such amounts shall
be adjusted to
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<PAGE> 10
eliminate the effect of foreign currency translation adjustments for any periods
subsequent to the fiscal quarter ended June 30, 1997.
"CREDIT DOCUMENTS" shall mean this Agreement, the Notes, the Subsidiary
Guaranty, the Foreign Subsidiary Guaranty, any Election to Participate and any
Letter of Credit Document.
"CREDIT EVENT" shall mean the making of any Loans and/or the issuance of
any Letter of Credit.
"CREDIT PARTY" shall mean each Borrower and each Subsidiary which is a
party to any Credit Document.
"DEFAULT" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with, respect to which a Lender
Default is in effect.
"DESIGNATED HEDGE AGREEMENT" shall mean any Hedge Agreement to which the
Company or any of its Subsidiaries is a party which, pursuant to a written
instrument signed by the Required Lenders, has been designated as a Designated
Hedge Agreement so that the Company's or Subsidiaries's counterparty's credit
exposure thereunder will be entitled to share in the benefits of the Subsidiary
Guaranty to the extent such Subsidiary Guaranty provide guarantees for
creditors of the Company or any Subsidiary under Designated Hedge Agreements.
The Required Lenders may impose as a condition to any designation of a
Designated Hedge Agreement a requirement that the counterparty enter into an
intercreditor or similar agreement with the Administrative Agent under which
recoveries from the Company and its Subsidiaries with respect to such
Designated Hedge Agreement will be shared in a manner consistent with the
provisions of section 10.3 hereof.
"DOLLARS", "U.S. DOLLARS", "DOLLARS" and the sign "$" each means lawful
money of the United States.
"DOMESTIC LENDING OFFICE" shall mean, with respect to any Lender, the
office of such Lender specified as its Domestic Lending Office in Annex I or in
the Assignment Agreement pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to time specify to the
Company and the Administrative Agent.
"EFFECTIVE DATE" shall have the meaning provided in section 13.10.
"ELECTION TO PARTICIPATE" shall mean an Election to Participate
substantially in the form of Exhibit G.
"ELECTION TO TERMINATE" shall mean an Election to Terminate substantially
in the form of Exhibit H.
"ELIGIBLE TRANSFEREE" shall mean and include a commercial bank, financial
institution or other "accredited investor" (as defined in SEC Regulation D), in
each case which (i) is not disapproved in writing by the Company in a notice
given to a requesting Lender and the Administrative Agent, specifying the
reasons for such disapproval, within five Business Days following the giving of
notice to the Company of the identity of any proposed transferee (any such
disapproval by the Company must be reasonable), PROVIDED that the Company shall
not be entitled to exercise the foregoing right of disapproval if and so long
as any Event of Default shall have occurred and be continuing; and (ii) is not
a direct competitor of the Company or engaged in the same or similar business
as the Company, or any of its respective Subsidiaries or is not an Affiliate of
any such competitors of the Company or any of its respective Subsidiaries.
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
non-compliance or violation, investigations or proceedings relating in any way
to any Environmental Law or any permit issued under any such law (hereafter
"CLAIMS"), including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
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<PAGE> 11
injunctive relief resulting from the storage, treatment or Release (as defined
in CERCLA) of any Hazardous Materials or arising from alleged injury or threat
of injury to health, safety or the environment.
"ENVIRONMENTAL LAW" shall mean any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, binding and enforceable
guideline, binding and enforceable written policy and rule of common law now or
hereafter in effect and in each case as amended, and any binding and
enforceable judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment issued to or
rendered against the Company or any of its Subsidiaries relating to the
environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. Section 2601 ET SEQ.; the Clean Air Act, 42 U.S.C. Section 7401 ET
SEQ.; the Safe Drinking Water Act, 42 U.S.C. Section 3803 ET SEQ.; the Oil
Pollution Act of 1990, 33 U.S.C. Section 2701 ET SEQ.; the Emergency Planning
and the Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 ET SEQ.,
the Hazardous Material Transportation Act, 49 U.S.C. Section 1801 ET SEQ. and
the Occupational Safety and Health Act, 29 U.S.C. Section 651 ET SEQ. (to the
extent it regulates occupational exposure to Hazardous Materials); and any
state and local or foreign counterparts or equivalents, in each case as amended
from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the
Effective Date and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in section 3(9) of
ERISA) which together with the Company or a Subsidiary of the Company would be
deemed to be a "single employer" (i) within the meaning of section 414(b),(c),
(m) or (o) of the Code or (ii) as a result of the Company or a Subsidiary of
the Company being or having been a general partner of such person.
"EUROCURRENCY LENDING OFFICE" shall mean, with respect to any Lender, the
office of such Lender specified as its Eurocurrency Lending Office in Annex I
or in the Assignment Agreement pursuant to which it became a Lender, or such
other office or offices (for Eurocurrency Loans denominated in Dollars or
particular Alternative Currencies) of such Lender (or its Affiliate or
correspondent banks) as such Lender may from time to time specify to the
Company and the Administrative Agent.
"EUROCURRENCY LOANS" shall mean each Loan, denominated in U.S. Dollars or
in an Alternative Currency, bearing interest at the rates provided in section
2.8(a)(ii).
"EUROCURRENCY RATE" shall mean with respect to each Interest Period for a
Eurocurrency Loan, (A) either (i) the rate per annum for deposits in Dollars or
in the relevant Alternative Currency of amounts in same day funds comparable to
the outstanding principal amount of the Eurocurrency Loan for which an interest
rate is then being determined for a maturity most nearly comparable to such
Interest Period which appears on page 3740 or 3750, as applicable, of the Dow
Jones Telerate Screen as of 11:00 A.M. (local time at the Notice Office) on the
date which is two Business Days prior to the commencement of such Interest
Period, or (ii) if such a rate does not appear on such a page, an interest rate
per annum equal to the average (rounded upward to the nearest whole multiple of
1/32 of 1% per annum, if such average is not such a multiple) of the rate per
annum at which deposits in Dollars or in the relevant Alternative Currency are
offered to each of the Reference Banks by prime banks in the London interbank
Eurocurrency market for deposits of amounts in same day funds comparable to the
outstanding principal amount of the Eurocurrency Loan for which an interest
rate is then being determined with maturities comparable to the Interest Period
to be applicable to such Eurocurrency Loan, determined as of 11:00 A.M. (London
time) on the date which is two Business Days prior to the commencement of such
Interest Period, in each case divided (and rounded upward to the nearest whole
multiple of 1/32 of 1%) by (B) a percentage equal to 100% minus the then stated
maximum rate of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves and without
benefit of credits for proration, exceptions or offsets which may be available
from time to time) applicable to any member bank of the Federal Reserve System
in respect of Eurocurrency liabilities as defined in Regulation D (or any
successor category of liabilities under Regulation D).
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"EVENT OF DEFAULT" shall have the meaning provided in section 10.1.
"EXISTING INDEBTEDNESS" shall have the meaning provided in section 7.18.
"EXISTING INDEBTEDNESS AGREEMENTS" shall have the meaning provided in
section 7.18.
"EXISTING LETTER OF CREDIT" shall have the meaning provided in section
3.1(d).
"FACILITY" shall mean the General Revolving Facility or the Swing Line
Revolving Facility, as applicable.
"FACILITY FEE" shall have the meaning provided in section 4.1(a).
"FACING FEE" shall have the meaning provided in section 4.1(c).
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative Agent.
"FEES" shall mean all amounts payable pursuant to, or referred to in,
section 4.1.
"FOREIGN BORROWING SUBSIDIARY" shall mean (i) Chore-Time Netherlands and
(ii) any other Wholly-Owned Subsidiary of the Company which shall have become a
Foreign Borrowing Subsidiary pursuant to section 8.13 hereof, or any of them,
as the case may be.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary (i) which is not
incorporated in the United States and substantially all of whose assets and
properties are located, or substantially all of whose business is carried on,
outside the United States, or (ii) substantially all of whose assets consist of
Subsidiaries that are Foreign Subsidiaries as defined in clause (i) of this
definition.
"FOREIGN SUBSIDIARY GUARANTY" shall have the meaning provided in section
8.10(c).
"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of section 9,
including defined terms as used therein, are subject (to the extent provided
therein) to section 13.7(a).
"GENERAL REVOLVING COMMITMENT" shall mean, with respect to each Lender,
the amount, if any, set forth opposite such Lender's name in Annex I as its
"General Revolving Commitment" as the same may be reduced from time to time
pursuant to section 4.2, 4.3 and/or 10 or adjusted from time to time as a
result of assignments to or from such Lender pursuant to section 13.4.
"GENERAL REVOLVING FACILITY" shall mean the facility evidenced by the
Total General Revolving Commitment.
"GENERAL REVOLVING FACILITY PERCENTAGE" shall mean at any time for any
Lender with a General Revolving Commitment, the percentage obtained by dividing
such Lender's General Revolving Commitment by the Total General Revolving
Commitment, PROVIDED, that if the Total General Revolving Commitment has been
terminated, the General Revolving Facility Percentage for each Lender with a
General Revolving Commitment shall be determined by dividing such Lender's
General Revolving Commitment immediately prior to such termination by the Total
General Revolving Commitment immediately prior to such termination.
"GENERAL REVOLVING LOAN" shall have the meaning provided in section
2.1(a).
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"GENERAL REVOLVING NOTE" shall have the meaning provided in section
2.6(a).
"GUARANTEED OBLIGATIONS" shall have the meaning provided in section 12.1.
"GUARANTY OBLIGATIONS" shall mean as to any person (without duplication)
any obligation of such person guaranteeing any Indebtedness ("PRIMARY
INDEBTEDNESS") of any other person (the "PRIMARY OBLIGOR") in any manner,
whether directly or indirectly, including, without limitation, any obligation
of such person, whether or not contingent, (a) to purchase any such primary
Indebtedness or any property constituting direct or indirect security therefor,
(b) to advance or supply funds (i) for the purchase or payment of any such
primary Indebtedness or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary Indebtedness of the
ability of the primary obligor to make payment of such primary Indebtedness, or
(d) otherwise to assure or hold harmless the owner of such primary Indebtedness
against loss in respect thereof, PROVIDED, HOWEVER, that the term Guaranty
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary Indebtedness in respect of which such Guaranty Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such person is required to perform
thereunder) as determined by such person in good faith.
"HEDGE AGREEMENT" shall mean (i) any interest rate swap agreement, any
interest rate cap agreement, any interest rate collar agreement or other
similar agreement or arrangement designed to protect against fluctuations in
interest rates, and (ii) any currency swap agreement, forward currency purchase
agreement or similar agreement or arrangement designed to protect against
fluctuations in currency exchange rates.
"HAZARDOUS MATERIALS" shall mean (i) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing levels of polychlorinated biphenyls,
and radon gas; and (ii) any chemicals, materials or substances defined as or
included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "restricted hazardous materials", "extremely hazardous
wastes", "restrictive hazardous wastes", "toxic substances", "toxic
pollutants", "contaminants" or "pollutants", or words of similar meaning and
regulatory effect under any applicable Environmental Law.
"INDEBTEDNESS" of any person shall mean without duplication:
(i) all indebtedness of such person for borrowed money,
(ii) all bonds, notes, debentures and similar debt securities of
such person,
(iii) the deferred purchase price of capital assets or services
which in accordance with GAAP would be shown on the liability side of the
balance sheet of such person,
(iv) the face amount of all letters of credit issued for the account
of such person and, without duplication, all drafts drawn thereunder,
(v) all Indebtedness of a second person secured by any Lien on any
property owned by such first person, whether or not such indebtedness has
been assumed,
(vi) all Capitalized Lease Obligations of such person,
(vii) the present value, determined on the basis of the implicit
interest rate, of all basic rental obligations under all "synthetic"
leases (i.e. leases accounted for by the lessee as operating leases under
which the lessee is the "owner" of the leased property for Federal income
tax purposes,
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<PAGE> 14
(viii) all obligations of such person to pay a specified purchase
price for goods or services whether or not delivered or accepted, I.E.,
take-or-pay and similar obligations,
(ix) the portion of the outstanding balance of trade receivables,
notes or other instruments sold which represents the recourse portion
thereof, other than any such sales solely for purposes of collection of
delinquent accounts, and
(x) all Guaranty Obligations of such person,
PROVIDED that neither trade payables and accrued expenses, in each case arising
in the ordinary course of business, nor obligations in respect of insurance
policies or performance or surety bonds which themselves are not guarantees of
Indebtedness (nor drafts, acceptances or similar instruments evidencing the
same nor obligations in respect of letters of credit supporting the payment of
the same), shall constitute Indebtedness.
"INITIAL BORROWING DATE" shall mean the date, on or after the Effective
Date, upon which the conditions specified in section 6.1 are satisfied.
"INTEREST COVERAGE RATIO" shall mean, for any Testing Period, the ratio of
(i) Consolidated EBIT to (ii) Total Interest Expense, in each case on a
consolidated basis for the Company and its Subsidiaries for such Testing
Period.
"INTEREST PERIOD" with respect to any Eurocurrency Loan shall mean the
interest period applicable thereto, as determined pursuant to section 2.9.
"KEYBANK" shall mean KeyBank National Association, a national banking
association, together with its successors and assigns.
"LEASEHOLDS" of any person means all the right, title and interest of such
person as lessee or licensee in, to and under leases or licenses of land,
improvements and/or fixtures.
"LENDER" shall have the meaning provided in the first paragraph of this
Agreement.
"LENDER DEFAULT" shall mean (i) the refusal (which has not been retracted)
of a Lender in violation of the requirements of this Agreement to make
available its portion of any incurrence of Loans or to fund its portion of any
unreimbursed payment under section 3.4(c) or (ii) a Lender having notified the
Administrative Agent and/or the Company that it does not intend to comply with
the obligations under section 2.1 and/or section 3.4(c), in the case of either
(i) or (ii) as a result of the appointment of a receiver or conservator with
respect to such Lender at the direction or request of any regulatory agency or
authority.
"LENDER REGISTER" shall have the meaning provided in section 13.16.
"LETTER OF CREDIT" shall have the meaning provided in section 3.1(a).
"LETTER OF CREDIT DOCUMENTS" shall have the meaning specified in section
3.2(a).
"LETTER OF CREDIT FEE" shall have the meaning provided in section 4.1(b).
"LETTER OF CREDIT ISSUER" shall mean (i) in respect of each Existing
Letter of Credit, the Lender that has issued same as of the Effective Date;
(ii) in any other case, any of the original Lenders named in this Agreement;
and/or (iii) any other Lender that is requested, and agrees, to so act by the
Company, and is approved by the Administrative Agent and the Required Lenders;
PROVIDED, that unless otherwise agreed by the Company and KeyBank, KeyBank will
act as the Letter of Credit Issuer for Letters of Credit issued after the
Effective Date for any of the purposes contemplated by section 3.1(a).
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<PAGE> 15
"LETTER OF CREDIT OUTSTANDINGS" shall mean, at any time, the sum, without
duplication, of (i) the aggregate Stated Amount of all outstanding Letters of
Credit and (ii) the aggregate amount of all Unpaid Drawings.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in section
3.2(a).
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement or any lease
in the nature thereof).
"LOAN" shall have the meaning provided in section 2.1 and shall include
any General Revolving Loan or any Swing Line Revolving Loan, as the case may
be.
"MARGIN STOCK" shall have the meaning provided in Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the
business, operations or condition (financial or otherwise) of, when used with
reference to the Company or any of its Subsidiaries, the Company and its
Subsidiaries, taken as a whole, or when used with reference to any other
person, such person and its Subsidiaries, taken as a whole, as the case may be.
"MATERIAL SUBSIDIARY" shall mean, at any time, with reference to any
person, any Subsidiary of such person that (x) has assets at such time
comprising 5% or more of the consolidated assets of such person and its
Subsidiaries or (y) had net income in the most recently ended fiscal year of
such person comprising 5% or more of the consolidated net income of such
person and its Subsidiaries for such fiscal year.
"MATURITY DATE" shall mean August 15, 2002, unless earlier terminated, or
extended in accordance with section 4.4.
"MINIMUM BORROWING AMOUNT" shall mean (i) for General Revolving Loans
which are (A) Prime Rate Loans, $500,000, with minimum increments thereafter of
$100,000, or (B) Eurocurrency Loans denominated in Dollars, $1,000,000, with
minimum increments thereafter of $100,000, or (C) Eurocurrency Loans
denominated in an Alternative Currency, the substantial equivalent in such
Alternative Currency of $4,000,000, with minimum increments thereafter of the
substantial equivalent in such Alternative Currency of $100,000; and (ii) for
Swing Line Revolving Loans, (A) $100,000, if the maturity thereof is longer
than 7 days, or (B) $250,000, if the maturity thereof is 7 days or less, in
each case with minimum increments thereafter in such amounts as the Company may
specify.
"MONEY MARKET RATE LOAN" shall mean each Swing Line Revolving Loan bearing
interest at a rate provided in section 2.8(b)(ii).
"MOODY'S" shall mean Moody's Investors Service, Inc. and its successors.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan, as defined in
section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate is
making or accruing an obligation to make contributions or has within any of the
preceding three plan years made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" shall mean an employee benefit plan, other than a
Multiemployer Plan, to which the Company or any ERISA Affiliate, and one or
more employers other than the Company or an ERISA Affiliate, is making or
accruing an obligation to make contributions or, in the event that any such
plan has been terminated, to which the Company or an ERISA Affiliate made or
accrued an obligation to make contributions during any of the five plan years
preceding the date of termination of such plan.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended.
"NON-DEFAULTING LENDER" shall mean each Lender other than a Defaulting
Lender.
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"NOTE" shall mean a General Revolving Note or a Swing Line Revolving Note,
as the case may be.
"NOTICE OF BORROWING" shall have the meaning provided in section 2.3(a).
"NOTICE OF CONVERSION" shall have the meaning provided in section 2.7(a).
"NOTICE OF REDENOMINATION" shall have the meaning provided in section
2.7(b).
"NOTICE OF SWING LINE REFUNDING" shall have the meaning provided in
section 2.5(a).
"NOTICE OFFICE" shall mean the office of the Administrative Agent at Key
Center, 127 Public Square, Cleveland, Ohio 44114, Attention: Large Corporate
Group (facsimile: (216) 689-4981), or such other office, located in a city in
the United States Eastern Time Zone, as the Administrative Agent may designate
to the Company from time to time.
"OBLIGATIONS" shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing by the
Company or any other Credit Party to the Administrative Agent or any Lender
pursuant to the terms of this Agreement or any other Credit Document.
"PARENT" shall mean CTB International Corp., a Delaware corporation, and
its successors and assigns.
"PARTICIPANT" shall have the meaning provided in section 3.4(a).
"PAYMENT OFFICE" shall mean (i) in the case of all payments to be made in
Dollars, the office of the Administrative Agent at Key Center, 127 Public
Square, Cleveland, Ohio 44114, Attention: Large Corporate Group (telephone:
(216) 689-4448; facsimile: (216) 689-4981), or such other office, located in a
city in the United States Eastern Time Zone, as the Administrative Agent may
designate to the Company from time to time, and (ii) in the case of all payments
to be made in an Alternative Currency, such office of the Administrative Agent,
one of its Affiliate banks or branches, or such correspondent bank, as is
specified in Annex A or as the Administrative Agent may designate to the Company
from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"PERCENTAGE" shall mean the General Revolving Facility Percentage or the
Swing Line Revolving Facility Percentage, as applicable.
"PERMITTED ACQUISITION" shall mean and include (i) any acquisition on a
going concern basis (whether by purchase, lease or otherwise) of facilities and
businesses operated by persons who are not Subsidiaries of the Company, and
(ii) acquisitions of equity or other similar interests in such persons (whether
by merger, stock purchase or otherwise); PROVIDED, that no such transaction
shall be considered a Permitted Acquisition if:
(A) such transaction is actively opposed by the Board of Directors
(or similar governing body) of the selling person or the person whose
equity interests are to be acquired, UNLESS all of the Lenders consent to
such transaction;
(B) the aggregate consideration for such transaction (including the
principal amount of any assumed Indebtedness and (without duplication)
any Indebtedness of any acquired person or persons), but excluding any
portion of such consideration consisting of common stock of the Company
or the Parent, would exceed $30,000,000, UNLESS the Required Lenders
consent to such transaction;
(C) the cumulative aggregate consideration for such transaction and
all other Permitted Acquisitions effected by the Company and its
Subsidiaries after June 30, 1997 (including the principal amount of any
assumed Indebtedness and (without duplication) any Indebtedness of any
acquired person or
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persons), but excluding any portion of such consideration consisting
of common stock of the Company or the Parent, would exceed $40,000,000,
UNLESS the Required Lenders consent to such transaction;
(D) such acquisition involves the Company and its Subsidiaries in a
business which is not similar or related to the businesses engaged in by
the Company and its Subsidiaries on the Effective Date; or
(E) as a result thereof the Company or any Subsidiary acquires any
equity interest in any person and such person does not by virtue of such
transaction become a Subsidiary of the Company.
Notwithstanding the foregoing, the term Permitted Acquisition does not include
Consolidated Capital Expenditures or any loans, advances, joint ventures or
investments otherwise permitted pursuant to section 9.5.
"PERMITTED LIENS" shall mean Liens described in section 9.3.
"PERSON" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" shall mean any multiemployer or single-employer plan as defined in
section 4001 of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribute by) the Company or a Subsidiary of the
Company or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which the Company, or a Subsidiary of
the Company or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"PRIME RATE" shall mean, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time which rate per annum shall at all
times be equal to the greater of (i) the rate of interest established by the
Administrative Agent at its principal office, from time to time, as its prime
rate, whether or not publicly announced, which interest rate may or may not be
the lowest rate charged by it for commercial loans or other extensions of
credit; and (ii) the Federal Funds Effective Rate in effect from time to time
PLUS 1/2 of 1% per annum.
"PRIME RATE LOAN" shall mean each Loan, denominated in U. S. Dollars,
bearing interest at the rates provided in section 2.8(a)(i) or 2.8(b)(i).
"PROHIBITED TRANSACTION" shall mean a transaction with respect to a Plan
that is prohibited under section 4975 of the Code or section 406 of ERISA and
not exempt under section 4975 of the Code or section 408 of ERISA.
"QUOTED RATE" shall have the meaning provided in section 2.3(c).
"RCRA" shall mean the Resource Conservation and Recovery Act, as the same
may be amended from time to time, 42 U.S.C. Section 6901 ET SEQ.
"REAL PROPERTY" of any person shall mean all of the right, title and
interest of such person in and to land, improvements and fixtures, including
Leaseholds.
"REDENOMINATE", "REDENOMINATION" and "REDENOMINATED" each refers to
redenomination of each Eurocurrency Loan comprising the same Borrowing from
Dollars into an Alternative Currency or from an Alternative Currency into
Dollars or another Alternative Currency pursuant to section 2.7(b).
"REFERENCE BANKS" shall mean KeyBank and any other Lender or Lenders
selected as a Reference Bank by the Administrative Agent, PROVIDED, that if any
of such Reference Banks is no longer a Lender, the Administrative Agent may
select a replacement Reference Bank from among the Lenders.
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"REGULATION D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"REGULATION U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
"REPORTABLE EVENT" shall mean an event described in section 4043(c) of
ERISA with respect to a Plan other than those events as to which the 30-day
notice period is waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC
Regulation section 2615.
"REQUIRED LENDERS" shall mean Non-Defaulting Lenders whose outstanding
General Revolving Loans and Unutilized General Revolving Commitments constitute
at least 66+2/3% of the sum of the total outstanding General Revolving Loans
and Unutilized General Revolving Commitments of Non-Defaulting Lenders
(PROVIDED that, for purposes hereof, neither the Company, nor any of its
Affiliates, shall be included in (i) the Lenders holding such amount of the
General Revolving Loans or having such amount of the Unutilized General
Revolving Commitments, or (ii) determining the aggregate unpaid principal
amount of the General Revolving Loans or Unutilized General Revolving
Commitments).
"SALE AND LEASE-BACK TRANSACTION" shall mean any arrangement with any
person providing for the leasing by the Company or any Subsidiary of the
Company of any property (except for temporary leases for a term, including any
renewal thereof, of not more than one year and except for leases between the
Company and a Subsidiary or between Subsidiaries), which property has been or
is to be sold or transferred by the Company or such Subsidiary to such person.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., and its successors.
"SEC" shall mean the United States Securities and Exchange Commission.
"SEC REGULATION D" shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time to
time.
"SECTION 5.4(B)(II) CERTIFICATE" shall have the meaning provided in
section 5.4(b)(ii).
"STATED AMOUNT" of each Letter of Credit shall mean the maximum available
to be drawn thereunder (regardless of whether any conditions or other
requirements for drawing could then be met).
"SUBSIDIARY" of any person shall mean and include (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless
otherwise expressly provided, all references herein to "Subsidiary" shall mean
a Subsidiary of the Company.
"SUBSIDIARY GUARANTOR" shall mean any Subsidiary which is a party to the
Subsidiary Guaranty.
"SUBSIDIARY GUARANTY" shall have the meaning provided in section 6.1(c).
"SUBORDINATED INDEBTEDNESS" shall mean any Indebtedness which has been
subordinated to the Obligations in such manner and to such extent as the
Required Lenders may require.
"SWING LINE REVOLVING COMMITMENT" shall mean, with respect to each Lender,
the amount, if any, set forth opposite such Lender's name in Annex I as its
"Swing Line Revolving Commitment" as the same may be reduced
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from time to time pursuant to section 4.2, 4.3 and/or 10 or adjusted from
time to time as a result of assignments to or from such Lender pursuant to
section 13.4.
"SWING LINE REVOLVING FACILITY" shall mean the facility evidenced by the
Total Swing Line Revolving Commitment.
"SWING LINE REVOLVING FACILITY PERCENTAGE" shall mean at any time for any
Lender with a Swing Line Revolving Commitment, the percentage obtained by
dividing such Lender's Swing Line Revolving Commitment by the Total Swing Line
Revolving Commitment, PROVIDED, that if the Total Swing Line Revolving
Commitment has been terminated, the Swing Line Revolving Facility Percentage
for each Lender with a Swing Line Revolving Commitment shall be determined by
dividing such Lender's Swing Line Revolving Commitment immediately prior to
such termination by the Total Swing Line Revolving Commitment immediately prior
to such termination.
"SWING LINE REVOLVING LOAN" shall have the meaning provided in section
2.1(b).
"SWING LINE REVOLVING NOTE" shall have the meaning provided in section
2.6(a).
"TESTING PERIOD" shall mean for any determination a single period
consisting of the four consecutive fiscal quarters of the Company most recently
ended (whether or not such quarters are all within the same fiscal year).
"TOTAL AMORTIZATION EXPENSE" shall mean, for any period, all amortization
expenses of the Company and its Subsidiaries, all as determined for the Company
and its Subsidiaries on a consolidated basis in accordance with GAAP.
"TOTAL CAPITALIZATION" shall mean at any time the sum of (i) the Total
Indebtedness at such time, and (ii) the Consolidated Net Worth at such time.
"TOTAL COMMITMENT" shall mean the sum of the Commitments of the Lenders.
"TOTAL DEPRECIATION EXPENSE" shall mean, for any period, all depreciation
expenses of the Company and its Subsidiaries, all as determined for the Company
and its Subsidiaries on a consolidated basis in accordance with GAAP.
"TOTAL GENERAL REVOLVING COMMITMENT" shall mean the sum of the General
Revolving Commitments of the Lenders.
"TOTAL INCOME TAX EXPENSE" shall mean, for any period, all provisions for
taxes based on the net income of the Company or any of its Subsidiaries
(including, without limitation, any additions to such taxes, and any penalties
and interest with respect thereto), all as determined for the Company and its
Subsidiaries on a consolidated basis in accordance with GAAP.
"TOTAL INDEBTEDNESS" shall mean the sum (without duplication) of the
following, for the Company and/or any of its Subsidiaries, all as determined on
a consolidated basis of:
(i) all indebtedness for borrowed money,
(ii) all bonds, notes, debentures and similar debt securities,
(iii) the deferred purchase price of capital assets which in
accordance with GAAP would be shown on the liability side of a
consolidated balance sheet of the Company and its Subsidiaries,
(iv) all drafts drawn under letters of credit issued for the account
of the Company or any Subsidiary which are not reimbursed within the time
period required for reimbursement,
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(v) all Capitalized Lease Obligations,
(vi) the present value, determined on the basis of the implicit
interest rate, of all basic rental obligations under all "synthetic"
leases (i.e. leases accounted for by the lessee as operating leases under
which the lessee is the "owner" of the leased property for Federal income
tax purposes, and
(vii) the portion of the outstanding balance of trade receivables,
notes or other instruments sold which represents the recourse portion
thereof, other than any such sales solely for purposes of collection of
delinquent accounts,
PROVIDED that neither trade payables and accrued expenses, in each case arising
in the ordinary course of business, nor obligations in respect of insurance
policies or performance or surety bonds which themselves are not guarantees of
Indebtedness, shall be included.
"TOTAL INTEREST EXPENSE" shall mean, for any period, total interest
expense (including that which is capitalized and that which is attributable to
Capital Leases, in accordance with GAAP) of the Company and its Subsidiaries on
a consolidated basis with respect to all outstanding Indebtedness of the
Company and its Subsidiaries including, without limitation, net costs under
Hedge Agreements, but excluding, however, any write-off, or amortization, of
deferred financing costs, all as determined in accordance with GAAP.
"TOTAL SWING LINE REVOLVING COMMITMENT" shall mean the sum of the Swing
Line Revolving Commitments of the Lenders.
"TYPE" shall mean any type of Loan determined with respect to the interest
option applicable thereto, I.E., a Prime Rate Loan, Eurocurrency Loan or Money
Market Rate Loan.
"UCC" shall mean the Uniform Commercial Code.
"UNFUNDED CURRENT LIABILITY" of any Plan shall mean the amount, if any, by
which the actuarial present value of the accumulated plan benefits under the
Plan as of the close of its most recent plan year exceeds the fair market value
of the assets allocable thereto, each determined in accordance with Statement
of Financial Accounting Standards No. 87, based upon the actuarial assumptions
used by the Plan's actuary in the most recent annual valuation of the Plan.
"UNITED STATES" and "U.S." each means United States of America.
"UNPAID DRAWING" shall have the meaning provided in section 3.3(a).
"UNUTILIZED GENERAL REVOLVING COMMITMENT" for any Lender at any time shall
mean the excess of (i) such Lender's General Revolving Commitment at such time
over (ii) the sum of the principal amount of General Revolving Loans made by
such Lender and outstanding at such time and (y) such Lender's General
Revolving Facility Percentage of Letter of Credit Outstandings at such time.
"UNUTILIZED TOTAL GENERAL REVOLVING COMMITMENT" shall mean, at any time,
the excess of (i) the Total General Revolving Commitment at such time over (ii)
the sum of (x) the aggregate principal amount of all General Revolving Loans
then outstanding plus (y) the aggregate Letter of Credit Outstandings at such
time.
"VALUE" shall mean, with respect to a Sale and Lease-Back Transaction, as
of any particular time, the amount equal to the greater of (i) the net proceeds
of the sale or transfer of the property leased pursuant to such Sale and
Lease-Back Transaction or (ii) the fair value in the opinion of the Company,
acting in good faith, of such property at the time of entering into such Sale
and Lease-Back Transaction.
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"WHOLLY-OWNED SUBSIDIARY" shall mean each Subsidiary of the Company at
least 95% of whose capital stock, equity interests and partnership interests,
other than director's qualifying shares or similar interests, are owned
directly or indirectly by the Company.
"WRITTEN", "WRITTEN" or "IN WRITING" shall mean any form of written
communication or a communication by means of telex, facsimile transmission,
telegraph or cable.
1.2. COMPUTATION OF TIME PERIODS. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each means "to
but excluding".
1.3. ACCOUNTING TERMS. Except as otherwise specifically provided herein,
all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; PROVIDED that, if the Company
notifies the Administrative Agent that the Company requests an amendment to any
provision of section 8 or 9 hereof to eliminate the effect of any change
occurring after the Effective Date in GAAP or in the application thereof to
such provision (or if the Administrative Agent notifies the Company that the
Required Lenders request an amendment to any such provision hereof for such
purposes), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance with the requirements of this
Agreement.
1.4. TERMS GENERALLY. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise, (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any person shall be construed to include such person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not
to any particular provision hereof, (d) all references herein to sections,
Annexes and Exhibits shall be construed to refer to sections of, and Annexes
and Exhibits to, this Agreement, and (e) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
real property, tangible and intangible assets and properties, including cash,
securities, accounts and contract rights, and interests in any of the
foregoing.
1.5. CURRENCY EQUIVALENTS. For purposes of this Agreement, except as
otherwise specified herein, (i) the equivalent in Dollars of any Alternative
Currency shall be determined by using the quoted spot rate at which the
Administrative Agent offers to exchange Dollars for such Alternative Currency
at its Payment Office at 9:00 A.M. (local time at the Payment Office) two
Business Days prior to the date on which such equivalent is to be determined,
(ii) the equivalent in any Alternative Currency of any other Alternative
Currency shall be determined by using the quoted spot rate at which the
Administrative Agent's Payment Office offers to exchange such Alternative
Currency for the equivalent in Dollars of such other Alternative Currency
at such Payment Office at 9:00 A.M. (local time at the Payment Office) two
Business Days prior to the date on which such equivalent is to be determined,
and (iii) the equivalent in any Alternative Currency of Dollars shall be
determined by using the quoted spot rate at which the Administrative Agent's
Payment Office offers to exchange such Alternative Currency for Dollars at the
Payment Office at 9:00 A.M. (local time at the Payment Office) two Business Days
prior to the date on which such equivalent is to be determined; PROVIDED, that
(A) the equivalent in Dollars of each Eurocurrency Loan made in an Alternative
Currency shall be recalculated hereunder on each date that it shall be necessary
(or the Administrative Agent shall elect) to determine the unused portion of
each Lender's Commitment, or any or all Loan or Loans outstanding on such date;
(B) the equivalent in Dollars of any Unpaid Drawing in respect of any Letter of
Credit denominated in an Alternative Currency shall be determined at the time
the drawing under such Letter of Credit was paid or disbursed by the applicable
Letter of Credit Issuer; (C) for purposes of sections 2.1(a), 3.1(b) and 5.2(a),
the equivalent in Dollars of the Stated Amount of any Letter of Credit
denominated in an Alternative Currency shall be
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calculated (x) on the date of the issuance of the respective Letter of Credit,
(y) on the first Business Day of each calendar month thereafter and (z) in any
other case where the same is required or permitted to be calculated, on such
other day as the Administrative Agent may, in its sole discretion, consider
appropriate; and (D) for purposes of sections 4.1(b) and (c), the equivalent in
Dollars of the Stated Amount of any Letter of Credit denominated in an
Alternative Currency shall be calculated on the first day of each calendar month
in the quarterly period in which the respective payment is due pursuant to said
sections.
SECTION 2. AMOUNT AND TERMS OF LOANS.
2.1. COMMITMENTS FOR LOANS. Subject to and upon the terms and conditions
herein set forth, each Lender severally agrees to make a loan or loans (each a
"LOAN" and, collectively, the "LOANS") to the respective Borrowers, which Loans
shall be drawn, to the extent such Lender has a commitment under a Facility,
under the applicable Facility, as set forth below:
(A) GENERAL REVOLVING FACILITY. Loans under the General Revolving
Facility (each a "GENERAL REVOLVING LOAN" and, collectively, the "GENERAL
REVOLVING LOANS"): (i) may be incurred by any Borrower, PROVIDED that the
aggregate principal amount of General Revolving Loans of all Foreign
Borrowing Subsidiaries (determined at the equivalent amount in Dollars, if
any of such Loans are denominated in any Alternative Currency) may not
exceed $25,000,000 outstanding at any time; (ii) may be made at any time
and from time to time on and after the Initial Borrowing Date and prior to
the Maturity Date; (iii) except as otherwise provided, may, at the option
of the Company (acting on behalf of any applicable Borrower), be incurred
and maintained as, or converted or Redenominated into, General Revolving
Loans which are Prime Rate Loans, or Eurocurrency Loans denominated in
Dollars or an Alternative Currency, PROVIDED that all General Revolving
Loans made as part of the same Borrowing shall, unless otherwise
specifically provided herein, consist of General Revolving Loans of the
same Type and currency, and, PROVIDED, FURTHER, that the aggregate
principal amount of all General Revolving Loans outstanding at any time
which are denominated in any Alternative Currency (determined at the
equivalent amount in Dollars) shall not exceed $25,000,000; (iv) may be
repaid or prepaid and reborrowed in accordance with the provisions hereof;
(v) may only be made if after giving effect thereto the Unutilized Total
General Revolving Commitment exceeds the outstanding Swing Line Revolving
Loans; and (vi) shall not exceed for any Lender at any time outstanding
that aggregate principal amount which, when added to the product at such
time of (A) such Lender's General Revolving Facility Percentage, TIMES (B)
the aggregate Letter of Credit Outstandings, equals the General Revolving
Commitment of such Lender at such time.
(B) SWING LINE REVOLVING FACILITY. Loans to the Company under the
Swing Line Revolving Facility (each a "SWING LINE REVOLVING LOAN" and,
collectively, the "SWING LINE REVOLVING LOANS") (i) may only be incurred by
the Company; (ii) may be made at any time and from time to time on and after
the Initial Borrowing Date and prior to the Maturity Date; (iii) shall be
made only in U.S. Dollars; (iv) shall have a maturity of one month or less;
(v) except as otherwise provided, may, at the option of the Company, be
incurred as Swing Line Revolving Loans which are either Prime Rate Loans or
Money Market Rate Loans, PROVIDED that all Swing Line Revolving Loans made
as part of the same Borrowing shall, unless otherwise specifically provided
herein, consist of Swing Line Revolving Loans of the same Type; (vi) may be
repaid or prepaid and reborrowed in accordance with the provisions hereof;
and (vii) shall not exceed for any Lender at any time outstanding such
Lender's Swing Line Revolving Commitment at such time.
2.2. MINIMUM BORROWING AMOUNTS, ETC.; PRO RATA BORROWINGS. (a) The
aggregate principal amount of each Borrowing by any Borrower shall not be less
than the Minimum Borrowing Amount. More than one Borrowing may be incurred by
any Borrower on any day, PROVIDED that (i) if there are two or more Borrowings
on a single day by the same Borrower under the General Revolving Facility which
consist of Eurocurrency Loans denominated in the same currency, each such
Borrowing shall have a different initial Interest Period, and at no time shall
there be more than 10 Borrowings under the General Revolving Facility of
Eurocurrency Loans outstanding hereunder.
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(b) All Borrowings under a Facility shall be made by the Lenders having
Commitments under such Facility PRO RATA on the basis of their respective
Commitments under such Facility. It is understood that no Lender shall be
responsible for any default by any other Lender in its obligation to make Loans
hereunder and that each Lender shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to
fulfill its Commitments hereunder.
2.3. NOTICE OF BORROWING. (a) Whenever any Borrower desires to incur
Loans, the Company (on behalf of any applicable Borrower) shall give the
Administrative Agent at its Notice Office,
(A) in the case of any Borrowing under the General Revolving
Facility of Eurocurrency Loans denominated in Dollars to be made
hereunder, prior to 11:00 A.M. (local time at its Notice Office), at
least three Business Days' prior written or telephonic notice thereof (in
the case of telephonic notice, promptly confirmed in writing if so
requested by the Administrative Agent),
(B) in the case of any Borrowing under the General Revolving
Facility of Eurocurrency Loans denominated in an Alternative Currency to
be made hereunder, prior to 11:00 A.M. (local time at its Notice Office),
at least three Business Days' prior written or telephonic notice thereof
(in the case of telephonic notice, promptly confirmed in writing if so
requested by the Administrative Agent),
(C) in the case of any Borrowing under any Facility of Prime Rate
Loans to be made hereunder, prior to 11:00 A.M. (local time at its Notice
Office) on the proposed date thereof written or telephonic notice thereof
(in the case of telephonic notice, promptly confirmed in writing if so
requested by the Administrative Agent), or
(D) in the case of any Borrowing under the Swing Line Revolving
Facility of Money Market Rate Loans to be made hereunder, if the
Administrative Agent shall have furnished the Company with a Quoted Rate
therefor, prior to 11:00 A.M. (local time at its Notice Office) on the
proposed date thereof (which shall be within such period as the
Administrative Agent shall have specified for such Quoted Rate) written
or telephonic notice thereof (in the case of telephonic notice, promptly
confirmed in writing if so requested by the Administrative Agent).
Each such notice (each such notice, a "NOTICE OF BORROWING") shall (if
requested by the Administrative Agent to be confirmed in writing), be
substantially in the form of Exhibit B-1, and in any event shall be irrevocable
and shall specify: (i) the Facility under which the Borrowing is to be
incurred, (ii) the name of the Borrower which is to incur such Borrowing, (iii)
the aggregate principal amount of the Loans to be made pursuant to such
Borrowing; (iv) the date of the Borrowing (which shall be a Business Day); (v)
whether the Borrowing shall consist of Prime Rate Loans, Eurocurrency Loans or
Money Market Rate Loans; (vi) if the requested Borrowing consists of
Eurocurrency Loans, the Interest Period to be initially applicable thereto;
(vii) in the case of a requested Borrowing consisting of Loans which are
Eurocurrency Loans, the currency, if other than Dollars, in which such Loans
are requested; and (viii) if the Borrowing consists of Swing Line Revolving
Loans, the maturity date thereof (which shall not be more than one month), and
if such Swing Line Revolving Loans are Money Market Rate Loans, the Quoted Rate
therefor. If the Company fails to specify in a Notice of Borrowing the maturity
date of any Swing Line Revolving Loans, such maturity date shall be deemed to
be one month. The Administrative Agent shall promptly give each Lender which
has a Commitment under any applicable Facility written notice (or telephonic
notice promptly confirmed in writing) of each proposed Borrowing under the
applicable Facility, of such Lender's proportionate share thereof and of the
other matters covered by the Notice of Borrowing relating thereto. Each
Borrower other than the Company hereby authorizes the Company to give any
Notice of Borrowing on its behalf.
(b) In the case of a proposed Borrowing comprised of Loans which are
Eurocurrency Loans denominated in an Alternative Currency, the obligation of
each affected Lender to make its Eurocurrency Loan in the requested Alternative
Currency as part of such Borrowing is subject to:
(A) if such requested Alternative Currency is an Alternative
Currency described in clause (i) of the definition of the term
Alternative Currency, the confirmation by the Administrative Agent to the
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<PAGE> 24
Company not later than the second Business Day before the requested date
of such Borrowing that such Alternative Currency is readily and freely
transferable and convertible into Dollars, or
(B) if such requested Alternative Currency is not an Alternative
Currency described in clause (i) of the definition of the term
Alternative Currency, such requested Alternative Currency shall be
acceptable to such Lender (which acceptability shall be presumed if such
Lender fails to notify the Administrative Agent in writing not later than
the second Business Day before the requested date of such Borrowing that
such Alternative Currency is not acceptable to such Lender (any such
notice of unacceptability of an Alternative Currency shall be notified
immediately by the Administrative Agent to the Company.
If the Administrative Agent shall not have provided the confirmation referred
to in clause (A) above, or any affected Lender shall have so notified the
Administrative Agent that a particular Alternative Currency is not acceptable
to it as provided in clause (B) above, the Administrative Agent shall promptly
notify the Company and each affected Lender thereof, whereupon the Company may,
by notice to the Administrative Agent not later than the second Business Day
before the requested date of such Borrowing, withdraw the Notice of Borrowing
relating to such requested Borrowing. If the Company does so withdraw such
Notice of Borrowing, the Borrowing requested in such Notice of Borrowing shall
not occur and the Administrative Agent shall promptly so notify each affected
Lender. If the Company does not so withdraw such Notice of Borrowing, the
Administrative Agent shall promptly so notify each affected Lender and such
Notice of Borrowing shall be deemed to be a Notice of Borrowing which requests
a Borrowing of Loans comprised of Eurocurrency Loans in an aggregate amount in
Dollars equivalent, on the date the Administrative Agent so notifies each
affected Lender, to the amount of the originally requested Borrowing in an
Alternative Currency; and in such notice by the Administrative Agent to each
affected Lender the Administrative Agent shall state such aggregate equivalent
amount of such Borrowing in Dollars and such Lender's ratable portion of such
Borrowing.
(c) Whenever the Company proposes to submit a Notice of Borrowing with
respect to Swing Line Revolving Loans which will be Money Market Rate Loans, it
will prior to submitting such Notice of Borrowing notify the Administrative
Agent of its intention and request the Administrative Agent to quote a fixed or
floating interest rate (the "QUOTED RATE") to be applicable thereto prior to
the proposed maturity thereof. The Administrative Agent will immediately so
notify the Lenders with Commitments under the Swing Line Revolving Facility,
and if all of such Lenders are agreeable to a particular interest rate for the
proposed maturity of such Money Market Rate Loans if such Loans are made on or
prior to a specified date, the Administrative Agent shall quote such interest
rate to the Company as the Quoted Rate applicable to such proposed Money Market
Rate Loans if made on or before such specified date for a maturity as so
proposed by the Company. The Lenders with Commitments under the Swing Line
Revolving Facility contemplate that any Quoted Rate will be a rate of interest
which reflects a margin corresponding to (or greater than) the sum of (x) the
Applicable Eurocurrency Margin in effect at the time of quotation of any Quoted
Rate, plus (y) the Applicable Facility Fee Rate at such time, over the then
prevailing Federal Funds Effective Rate, a commercial paper, call money,
overnite repurchase or other commonly quoted interest rate, in each case as
selected by such Lenders. Nothing herein shall be deemed to permit any Lender
which does not have a Swing Line Revolving Commitment any right of approval
with respect to a Quoted Rate.
(d) Without in any way limiting the obligation of the Company (on behalf
of any applicable Borrower) to confirm in writing any telephonic notice
permitted to be given hereunder, the Administrative Agent may act prior to
receipt of written confirmation without liability upon the basis of such
telephonic notice believed by the Administrative Agent in good faith to be from
an Authorized Officer of the Company entitled to give telephonic notices under
this Agreement on behalf of any applicable Borrower. In each such case, the
Administrative Agent's record of the terms of such telephonic notice shall be
conclusive absent manifest error.
2.4. DISBURSEMENT OF FUNDS FROM BORROWINGS. (a) No later than 2:00 P.M.
(local time at the Payment Office of the Administrative Agent) on the date
specified in each Notice of Borrowing relating to Eurocurrency Loans,
and no later than 2:00 P.M. (local time at the Payment Office of the
Administrative Agent) on the date specified in each Notice of Borrowing
relating to any other Loans, each Lender with a Commitment under the applicable
Facility relating to such Loans will make available its PRO RATA share, if any,
of each Borrowing under
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<PAGE> 25
such Facility requested to be made on such date in the manner provided below.
All amounts relating to any Borrowing by a Borrower shall be made available to
the Administrative Agent in U.S. dollars or the applicable Alternative Currency
and immediately available funds at the Administrative Agent's Payment Office and
the Administrative Agent promptly will make available to the applicable Borrower
by depositing to its account at such Payment Office, or at such other account in
another financial institution designated by such Borrower to the Administrative
Agent, the aggregate of the amounts so made available in the currency and type
of funds received. Unless the Administrative Agent shall have been notified by
any Lender prior to the date of a Borrowing that such Lender does not intend to
make available to the Administrative Agent its portion of the Borrowing or
Borrowings to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on such
date of Borrowing, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so)
make available to the applicable Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender and the Administrative Agent has made available same to the
applicable Borrower, the Administrative Agent shall be entitled to recover such
corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Company (on behalf of any
applicable Borrower), and the applicable Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from such Lender or the applicable Borrower,
as the case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the Administrative
Agent to the applicable Borrower to the date such corresponding amount is
recovered by the Administrative Agent at a rate per annum equal to (x) if paid
by such Lender, at the overnight Federal Funds Effective Rate, in the case of
any Loan denominated in Dollars, or at the weighted average overnite or weekend
borrowing rate for immediately available and freely transferrable funds in the
applicable Alternative Currency which is offered to the Administrative Agent in
the international markets, in the case of any Loan denominated in an Alternative
Currency, or (y) if paid by the applicable Borrower, the then applicable rate of
interest, calculated in accordance with section 2.8, for the respective Loan
(but without any requirement to pay any amounts in respect thereof pursuant to
section 2.11).
(b) Nothing herein and no subsequent termination of the Commitments
pursuant to section 4.2 or 4.3 shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder and in existence from time to
time or to prejudice any rights which any Borrower may have against any Lender
as a result of any default by such Lender hereunder.
2.5. REFUNDING OF, OR PARTICIPATION IN, SWING LINE REVOLVING LOANS. (a) If
any Event of Default exists, any Lender which has Swing Line Revolving Loans
owing to it (a "SWING LINE LENDER") may, in its sole and absolute discretion,
direct that the Swing Line Revolving Loans owing to it be refunded by
delivering a notice to such effect to the Administrative Agent, specifying the
aggregate principal amount thereof (a "NOTICE OF SWING LINE REFUNDING").
Promptly upon receipt of a Notice of Swing Line Refunding, the Administrative
Agent shall give notice of the contents thereof to the Lenders with General
Revolving Commitments and, unless an Event of Default specified in section
10.1(h) in respect of the Company has occurred, the Company. Each such Notice
of Swing Line Refunding shall be deemed to constitute delivery by the Company
of a Notice of Borrowing requesting General Revolving Loans for the Company
consisting of Prime Rate Loans in the amount of the Swing Line Revolving Loans
to which it relates. Each Lender with a General Revolving Commitment (including
the Swing Line Lender giving the Notice of Swing Line Refunding) hereby
unconditionally agrees (notwithstanding that any of the conditions specified in
section 6.3 hereof or elsewhere in this Agreement shall not have been
satisfied, but subject to the provisions of paragraph (b) below) to make a
General Revolving Loan to the Company in an amount equal to such Lender's
General Revolving Facility Percentage of the aggregate amount of the Swing Line
Revolving Loans to which such Notice of Swing Line Refunding relates. Each such
Lender shall make the amount of such General Revolving Loan available to the
Administrative Agent in immediately available funds at the Payment Office not
later than 2:00 P.M. (local time at the Payment Office), if such notice is
received by such Lender prior to 11:00 A.M. (local time at its Domestic Lending
Office), or not later than 2:00 P.M. (local time at the Payment Office) on the
next Business Day, if such notice is received by such Lender after such time.
The proceeds of such General Revolving Loans shall be made immediately
available to the Swing Line Lender giving such Notice of Swing Line Refunding
and applied by it to repay the principal amount of the Swing Line Revolving
Loans to which such Notice of Swing Line Refunding related. The Company
irrevocably and unconditionally agrees that, notwithstanding anything to the
contrary
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contained in this Agreement, General Revolving Loans made as herein provided
in response to a Notice of Swing Line Refunding shall constitute General
Revolving Loans of the Company hereunder consisting of Prime Rate Loans.
(b) If prior to the time a General Revolving Loan would otherwise have
been made as provided above as a consequence of a Notice of Swing Line
Refunding, any of the events specified in section 10.1(h) shall have occurred
in respect of the Company or one or more of the Lenders with General Revolving
Commitments shall determine that it is legally prohibited from making a General
Revolving Loan under such circumstances, each Lender (other than the Swing Line
Lender giving the Notice of Swing Line Refunding), or each Lender (other than
such Swing Line Lender) so prohibited, as the case may be, shall, on the date
such General Revolving Loan would have been made by it (the "PURCHASE DATE"),
purchase an undivided participating interest in the outstanding Swing Line
Revolving Loans to which such Notice of Swing Line Refunding related, in an
amount (the "SWING LINE PARTICIPATION AMOUNT") equal to such Lender's General
Revolving Facility Percentage of such Swing Line Revolving Loans. On the
Purchase Date, each such Lender or each such Lender so prohibited, as the case
may be, shall pay to the Swing Line Lender, in immediately available funds,
such Lender's Swing Line Participation Amount, and promptly upon receipt
thereof the Swing Line Lender shall, if requested by such other Lender, deliver
to such Lender a participation certificate, dated the date of the Swing Line
Lender's receipt of the funds from, and evidencing such Lender's participating
interest in such Swing Line Revolving Loans and its Swing Line Participation
Amount in respect thereof. If any amount required to be paid by a Lender to the
Swing Line Lender pursuant to the above provisions in respect of any Swing Line
Participation Amount is not paid on the date such payment is due, such Lender
shall pay to the Swing Line Lender on demand interest on the amount not so paid
at the overnight Federal Funds Effective Rate from the due date until such
amount is paid in full.
(c) Whenever, at any time after the Swing Line Lender has received from
any other Lender such Lender's Swing Line Participation Amount, the Swing Line
Lender receives any payment from or on behalf of the Company on account of the
related Swing Line Revolving Loans, the Swing Line Lender will promptly
distribute to such Lender its General Revolving Facility Percentage of such
payment on account of its Swing Line Participation Amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Lender's participating interest was outstanding and funded);
PROVIDED, HOWEVER, that in the event such payment received by the Swing Line
Lender is required to be returned, such Lender will return to the Swing Line
Lender any portion thereof previously distributed to it by the Swing Line
Lender.
(d) Each Lender's obligation to make General Revolving Loans and/or to
purchase participations in connection with a Notice of Swing Line Refunding
(which shall in all events be within such Lender's Unutilized General Revolving
Commitment) shall be subject to the conditions that (i) such Lender shall have
received a Notice of Swing Line Refunding complying with the provisions hereof
and (ii) at the time the Swing Line Revolving Loans which are the subject of
such Swing Line Refunding were made, the Swing Line Lender making the same had
no actual notice from another Lender that an Event of Default had occurred and
was continuing, but otherwise shall be absolute and unconditional, shall be
solely for the benefit of the Swing Line Lender which gives such Notice of
Swing Line Refunding, and shall not be affected by any circumstance, including,
without limitation, (A) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against any other Lender, any Credit Party, or
any other person, or any Credit Party may have against any Lender or other
person, as the case may be, for any reason whatsoever; (B) the occurrence or
continuance of a Default or Event of Default; (C) any event or circumstance
involving a Material Adverse Effect upon the Company, (D) any breach of any
Credit Document by any party thereto; or (E) any other circumstance, happening
or event, whether or not similar to any of the foregoing.
2.6. NOTES. (a) Each applicable Borrower's obligation to pay the principal
of, and interest on, the General Revolving Loans made to it by each Lender with
a General Revolving Commitment shall be evidenced by a promissory note of such
Borrower substantially in the form of Exhibit A-1 (each a "GENERAL REVOLVING
NOTE" and, collectively, the "GENERAL REVOLVING NOTES"). The Company's
obligation to pay the principal of, and interest on, the Swing Line Revolving
Loans made to it by each Lender with a Swing Line Revolving Commitment shall be
evidenced by a promissory note of the Company substantially in the form of
Exhibit A-2 with blanks appropriately completed in conformity herewith (each a
"SWING LINE REVOLVING NOTE" and, collectively, the "SWING LINE REVOLVING
NOTES").
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(b) The General Revolving Note issued by any Borrower to a Lender with a
General Revolving Commitment shall: (i) be executed by such Borrower; (ii) be
payable to the order of such Lender and be dated on or prior to the Initial
Borrowing Date or, if later, the date such Lender became a party hereto with a
General Revolving Commitment hereunder; (iii) be payable in the principal
amount of General Revolving Loans evidenced thereby; (iv) mature on the
Maturity Date; (v) bear interest as provided in section 2.8 in respect of the
Prime Rate Loans or Eurocurrency Loans, as the case may be, evidenced thereby;
(vi) be subject to mandatory prepayment as provided in section 5.2; and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) The Swing Line Revolving Note issued by the Company to a Lender with a
Swing Line Revolving Commitment shall: (i) be executed by the Company; (ii) be
payable to the order of such Lender and be dated on or prior to the Initial
Borrowing Date or, if later, the date such Lender became a party hereto with a
Swing Line Revolving Commitment hereunder; (iii) be in a stated principal
amount equal to the Swing Line Revolving Commitment of such Lender; (iv) be
payable in the principal amount of Swing Line Revolving Loans evidenced
thereby; (v) mature as to any Swing Line Revolving Loan evidenced thereby on
the maturity date, not later than one month following the date such Swing Line
Revolving Loan was made, specified in the applicable Notice of Borrowing; (vi)
bear interest as provided in section 2.8 in respect of the Prime Rate Loans or
Money Market Rate Loans, as the case may be, evidenced thereby; (vii) be
subject to mandatory prepayment as provided in section 5.2; and (viii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) Each Lender will note on its internal records the amount of each Loan
made by it and each payment in respect thereof and will, prior to any transfer
of any of the Notes issued to it by any Borrower, endorse on the reverse side
thereof or the grid attached thereto the outstanding principal amount of Loans
evidenced thereby. Failure to make any such notation or any error in any such
notation shall not affect any Borrower's obligations in respect of such Loans.
2.7. VOLUNTARY CONVERSION OF DOLLAR DENOMINATED GENERAL REVOLVING LOANS;
REDENOMINATION OF GENERAL REVOLVING LOANS. (a) Each Borrower shall have the
option to convert on any Business Day all or a portion at least equal to the
applicable Minimum Borrowing Amount of the outstanding principal amount of its
General Revolving Loans denominated in Dollars of one Type owing by it pursuant
to the General Revolving Facility into a Borrowing or Borrowings pursuant to
the same Facility of another Type of Loans denominated in Dollars which can be
made pursuant to such Facility, PROVIDED that: (i) no partial conversion of a
Borrowing of Eurocurrency Loans shall reduce the outstanding principal amount
of the Eurocurrency Loans made pursuant to such Borrowing to less than the
Minimum Borrowing Amount applicable thereto; (ii) any conversion of
Eurocurrency Loans into Prime Rate Loans shall be made on, and only on, the
last day of an Interest Period for such Eurocurrency Loans; (iii) Prime Rate
Loans may only be converted into Eurocurrency Loans if no Default under section
10.1(a) or Event of Default is in existence on the date of the conversion
unless the Required Lenders otherwise agree; and (iv) Borrowings of
Eurocurrency Loans resulting from this section 2.7 shall conform to the
requirements of section 2.2. Each such conversion shall be effected by the
Company (on behalf of any applicable Borrower) giving the Administrative Agent
at its Notice Office, prior to 11:00 A.M. (local time at such Notice Office),
at least three Business Days' (or prior to 11:00 A.M. (local time at such
Notice Office) same Business Day's, in the case of a conversion into Prime Rate
Loans) prior written notice (or telephonic notice promptly confirmed in writing
if so requested by the Administrative Agent) (each a "NOTICE OF CONVERSION"),
substantially in the form of Exhibit B-2, specifying the Loans to be so
converted, the Type of Loans to be converted into and, if to be converted into
a Borrowing of Eurocurrency Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each Lender prompt
notice of any such proposed conversion affecting any of its Loans. For the
avoidance of doubt, the prepayment or repayment of any General Revolving Loans
out of the proceeds of other General Revolving Loans by a Borrower is not
considered a conversion of such General Revolving Loans into other General
Revolving Loans.
(b) The Company may on behalf of any applicable Borrower, upon notice
given to the Administrative Agent at least three Business Days prior to the
date of the proposed Redenomination, request that all General Revolving Loans
comprising the same Borrowing by the same Borrower be Redenominated from
Dollars into an Alternative Currency or from an Alternative Currency into
Dollars or another Alternative Currency; PROVIDED, HOWEVER, that any
Redenomination of Eurocurrency Loans shall be made on, and only on, the last
day of an Interest
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Period for such Loans; and PROVIDED, FURTHER, that no Redenomination shall be
made if at the time thereof a Default under section 10.1(a) or Event of Default
shall have occurred and be continuing unless the Required Lenders otherwise
agree. Each such notice of request of a Redenomination (a "NOTICE OF
REDENOMINATION") shall be by telecopier, telex or cable (confirmed immediately
in writing if so requested by the Administrative Agent), in substantially the
form of Exhibit B-4 hereto, specifying (i) the name of the applicable Borrower
and the applicable Facility involved, (ii) the Loans comprising the Borrowing to
be Redenominated, (iii) the date of the proposed Redenomination, (iv) the
currency into which such Loans are to be Redenominated, and (v) if such Loans as
so Redenominated are to be Eurocurrency Loans, the duration of the Interest
Period for such Loans upon being so Redenominated. The Administrative Agent
shall promptly notify each affected Lender of any such requested
Redenomination. In the case of a Notice of Redenomination which requests a
Redenomination of Loans into an Alternative Currency, such Redenomination is
subject to (x) if it involves a Redenomination into an Alternative Currency
described in clause (i) of the definition of the term Alternative Currency, the
confirmation by the Administrative Agent to the Company that such Alternative
Currency is readily and freely transferable and convertible into Dollars, or (y)
if it involves a Redenomination into an Alternative Currency described in clause
(ii) of the definition of the term Alternative Currency, the willingness of each
Lender which has a Commitment in respect of the applicable Facility to effect
such Redenomination. If any affected Lender has not, by 2:00 P.M. (local time at
the Notice Office) on the second Business Day before the requested date of such
Redenomination, notified the Administrative Agent that a particular requested
Redenomination is not acceptable to it, such requested Redenomination shall be
conclusively presumed to be acceptable to it. Any objection by a Lender to a
requested Redenomination shall be notified immediately by the Administrative
Agent to the Company. If any affected Lender shall have so notified the
Administrative Agent of its objection to a requested Redenomination, or if the
Administrative Agent shall have confirmed to the Company that the Alternative
Currency involved in such Redenomination is not readily and freely transferable
and convertible into Dollars, the requested Redenomination will not occur and
the Administrative Agent shall promptly notify the Company and each affected
Lender that a Lender is unwilling to make such requested Redenomination and that
the requested Redenomination will not occur. If no affected Lender shall have so
provided to the Administrative Agent notice of its unwillingness to effect a
requested Redenomination or if such Notice of Redenomination requests a
Redenomination of Loans into Dollars, each Loan so requested to be Redenominated
will be Redenominated, on the date specified therefor in such Notice of
Redenomination, into an equivalent amount thereof in the currency requested in
such Notice of Redenomination, such equivalent amount to be determined on such
date by the Administrative Agent in accordance with section 1.5, and in the case
of any such Loan being so Redenominated which will be a Eurocurrency Loan, such
Eurocurrency Loan will have an initial Interest Period as requested in such
Notice of Redenomination. Each Borrower other than the Company hereby authorizes
the Company to give any Notice of Redenomination on its behalf.
2.8. INTEREST ON LOANS. (a) The unpaid principal amount of each General
Revolving Loan which is (i) a Prime Rate Loan shall bear interest from the date
of the Borrowing thereof until maturity (whether by acceleration or otherwise)
at a fluctuating rate per annum which shall at all times be equal to the Prime
Rate in effect from time to time; and (ii) a Eurocurrency Loan shall bear
interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum which shall at all times be the
Applicable Eurocurrency Margin (as defined below) for such General Revolving
Loan PLUS the relevant Eurocurrency Rate.
(b) The unpaid principal amount of each Swing Line Revolving Loan which is
(i) a Prime Rate Loan shall bear interest from the date of the Borrowing
thereof until maturity (whether by acceleration or otherwise) at a fluctuating
rate per annum which shall at all times be equal to the Prime Rate in effect
from time to time; and (ii) a Money Market Rate Loan shall bear interest from
the date of the Borrowing thereof until maturity (whether by acceleration or
otherwise) at a rate per annum which shall be equal to the Quoted Rate
therefor.
(c) Notwithstanding the above provisions, if any amount of principal on
any Loan is not paid when due (whether at stated maturity, by acceleration or
otherwise), such amount shall bear interest, payable on demand, at a rate per
annum equal to 2% per annum above the interest rate otherwise applicable
thereto.
(d) Interest shall accrue from and including the date of any Borrowing to
but excluding the date of any prepayment or repayment thereof and shall be
payable:
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(i) in the case of any Swing Line Revolving Loan, on any prepayment
(on the amount prepaid), at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand; and
(ii) in the case of any General Revolving Loan, (A) which is a Prime
Rate Loan, quarterly in arrears on the last Business Day of March, June,
September and December, (B) which is a Eurocurrency Loan, on the last day
of each Interest Period applicable thereto and, in the case of an
Interest Period in excess of three months, on the dates which are
successively three months after the commencement of such Interest Period,
and (C) in respect of each Loan, on any prepayment, conversion or
Redenomination (on the amount prepaid, converted or Redenominated), at
maturity (whether by acceleration or otherwise) and, after such maturity,
on demand.
(e) All computations of interest hereunder shall be made in accordance
with section 13.7(b).
(f) Each Reference Bank agrees to furnish the Administrative Agent timely
information for the purpose of determining the Eurocurrency Rate for any
Borrowing consisting of Eurocurrency Loans. If any one or more of the Reference
Banks shall not timely furnish such information, the Administrative Agent shall
determine the Eurocurrency Rate on the basis of timely information furnished by
the remaining Reference Banks. The Administrative Agent upon determining the
interest rate for any Borrowing shall promptly notify the Company (on behalf of
any applicable Borrower) and the Lenders thereof.
(g) As used herein, the term "APPLICABLE EUROCURRENCY MARGIN", as applied
to any Loan which is a Eurocurrency Loan, means 37.50 basis points per annum;
PROVIDED, that subsequent to the fiscal quarter of the Company ended nearest to
September 30, 1997, the Applicable Eurocurrency Margin will change to the rate
per annum indicated in the Pricing Grid Table which appears below, based on the
ratio referred to in section 9.7 and identified in such Table. Changes in the
Applicable Eurocurrency Margin based upon changes in such ratio shall become
effective on the first day of the month following the receipt by the
Administrative Agent pursuant to section 8.1(a) or (b) of the financial
statements of the Company, accompanied by the certificate referred to in
section 8.1(c), demonstrating the computation of such ratio, based upon the
ratio in effect at the end of the applicable period covered (in whole or in
part) by such financial statements; PROVIDED that if any financial statements
referred to in section 8.1(a) or (b), or the related certificate referred to in
section 8.1(c), are not timely delivered, the Administrative Agent may
determine the Applicable Eurocurrency Margin based upon a good faith estimate
by the Company of such ratio as in effect at the end of the applicable period
to be covered (in whole or in part) by such financial statements, PROVIDED,
FURTHER, that if upon delivery of such delinquent financial statements and
related certificate, such financial statements indicate that such good faith
estimate was incorrect and, as a result thereof, the Applicable Eurocurrency
Margin for any Loans was too low at such determination, the Applicable
Eurocurrency Margin for such Loans shall be increased, as appropriate, with
retroactive effect to the date of the change made on the basis of such
determination, and the applicable Borrower will immediately pay to the
Administrative Agent, for the account of the Lenders having Commitments in
respect of the Facility under which such Loans were incurred all additional
interest due by reason of such increased Applicable Eurocurrency Margin. Any
changes in the Applicable Eurocurrency Margin shall be determined by the
Administrative Agent and the Administrative Agent will promptly provide notice
of such determinations to the Company (which shall itself notify the other
Borrowers) and the Lenders. Any such determination by the Administrative Agent
pursuant to this section 2.8(g) shall be conclusive and binding absent manifest
error.
24
<PAGE> 30
PRICING GRID TABLE
(EXPRESSED IN BASIS POINTS)
<TABLE>
<CAPTION>
===============================================================================
APPLICABLE APPLICABLE
TOTAL INDEBTEDNESS/CONSOLIDATED EBITDA EUROCURRENCY FACILITY
RATIO MARGIN FEE RATE
- -------------------------------------------------------------------------------
<S> <C> <C>
> 2.75 to 1.00 62.50 25.00
-
- -------------------------------------------------------------------------------
> 2.25 to 1.00 and < 2.75 to 1.00 50.00 22.50
-
- -------------------------------------------------------------------------------
> 1.75 to 1.00 and < 2.25 to 1.00 45.00 20.00
-
- -------------------------------------------------------------------------------
> 1.25 to 1.00 and < 1.75 to 1.00 37.50 17.50
-
- -------------------------------------------------------------------------------
< 1.25 to 1.00 25.00 15.00
===============================================================================
</TABLE>
If as of the Initial Borrowing Date, the Administrative Agent determines that
as of such date the Company's ratio referred to in section 9.8 exceeds 55%, the
Applicable Eurocurrency Margins set forth in the above Table will each be
increased by 5 basis points effective upon notification by the Administrative
Agent to the Company and the Lenders of such determination. If such increase is
made and thereafter the Administrative Agent determines that as of the end of
any fiscal quarter of the Company ending after such increase was made the
Company's ratio referred to in section 9.8 is less than 55%, the increase made
pursuant to the previous sentence will be eliminated on a prospective basis,
effective from and after notification by the Administrative Agent to the Company
and the Lenders of such determination.
2.9. INTEREST PERIODS. (a) At the time the Company (on behalf of any
applicable Borrower) gives a Notice of Borrowing, Notice of Conversion or
Notice of Redenomination in respect of the making of, conversion into, or
Redenomination of, a Borrowing of Eurocurrency Loans (in the case of the
initial Interest Period applicable thereto) or prior to 11:00 A.M. (local time
at the Notice Office) on the third Business Day prior to the expiration of an
Interest Period applicable to a Borrowing of Eurocurrency Loans, it shall have
the right (on behalf of any applicable Borrower) to elect by giving the
Administrative Agent written or telephonic notice (in the case of telephonic
notice, promptly confirmed in writing if so requested by the Administrative
Agent) of the Interest Period applicable to such Borrowing, which Interest
Period shall, at the option of the Company (on behalf of any applicable
Borrower), be a one, two, three or six month period. Notwithstanding anything
to the contrary contained above:
(i) the initial Interest Period for any Borrowing of Eurocurrency
Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of Prime Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence
on the day on which the next preceding Interest Period expires;
(ii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day
of such calendar month;
(iii) if any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, PROVIDED that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) no Interest Period for any Loan may be selected which would end
after the Maturity Date; and
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<PAGE> 31
(v) no Interest Period may be elected at any time when a Default
under section 10.1(a) or an Event of Default is then in existence unless
the Required Lenders otherwise agree.
(b) If upon the expiration of any Interest Period the Company (on behalf
of any applicable Borrower) has failed to (or may not) elect a new Interest
Period to be applicable to the respective Borrowing of Eurocurrency Loans as
provided above, (i) in the case of any such Eurocurrency Loans which are
denominated in Dollars, the Company (on behalf of any applicable Borrower)
shall be deemed to have elected to convert such Borrowing to Prime Rate Loans
effective as of the expiration date of such current Interest Period, and (ii)
in the case of any such Eurocurrency Loans which are denominated in an
Alternative Currency, the Company (on behalf of any applicable Borrower) shall
be deemed to have elected effective as of the expiration date of such current
Interest Period to Redenominate such Loans from the applicable Alternative
Currency into an equivalent amount thereof in Dollars, such equivalent amount
to be determined on such date by the Administrative Agent in accordance with
section 1.5, and to treat such Loans as so Redenominated as Prime Rate Loans.
2.10. INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x) in the
case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Lender, shall have determined on a reasonable
basis (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurocurrency Rate for
Eurocurrency Loans denominated in Dollars or in an Alternative Currency
for any Interest Period that, by reason of any changes arising after the
Effective Date affecting the interbank Eurocurrency market, adequate and
fair means do not exist for ascertaining the applicable interest rate on
the basis provided for in the definition of Eurocurrency Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder in an amount
which such Lender deems material with respect to any Eurocurrency Loans
(other than any increased cost or reduction in the amount received or
receivable resulting from the imposition of or a change in the rate of
taxes or similar charges) because of (x) any change since the Effective
Date in any applicable law, governmental rule, regulation, guideline, order
or request (whether or not having the force of law), or in the
interpretation or administration thereof and including the introduction of
any new law or governmental rule, regulation, guideline, order or request
(such as, for example, but not limited to, a change in official reserve
requirements, but, in all events, excluding reserves includable in the
Eurocurrency Rate pursuant to the definition thereof), and/or (y) other
circumstances adversely affecting the interbank Eurocurrency market or the
position of such Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurocurrency Loan denominated in Dollars or in an Alternative Currency
has become unlawful by compliance by such Lender in good faith with any
change since the Effective Date in any law, governmental rule, regulation,
guideline or order, or the interpretation or application thereof, or would
conflict with any thereof not having the force of law but with which such
Lender customarily complies or has become impracticable as a result of a
contingency occurring after the Effective Date which materially adversely
affects the interbank Eurocurrency market;
THEN, and in any such event, such Lender (or the Administrative Agent in the
case of clause (i) above) shall (x) on or promptly following such date or time
and (y) within 10 Business Days of the date on which such event no longer
exists give notice (by telephone confirmed in writing) to the Company (on
behalf of any applicable Borrower) and to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other applicable Lenders). Thereafter (x) in the case of clause
(i) above, Eurocurrency Loans shall no longer be available in the applicable
currency until such time as the Administrative Agent notifies the Company (on
behalf of the applicable Borrowers) and the applicable Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing, Notice of Conversion or Notice of
Redenomination given by or on behalf of a Borrower with respect to Eurocurrency
Loans denominated in such currency which have not yet been incurred, converted
or Redenominated shall be deemed rescinded by such Borrower or, in the case of
a Notice of Borrowing, shall, at the option of the Company (on behalf of such
Borrower),
26
<PAGE> 32
be deemed converted into a Notice of Borrowing for Prime Rate Loans to be
made on the date of Borrowing contained in such Notice of Borrowing, (y) in the
case of clause (ii) above, the applicable Borrower shall pay to such Lender,
upon written demand therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender shall determine) as shall be required to compensate such Lender,
for such increased costs or reductions in amounts receivable hereunder (a
written notice as to the additional amounts owed to such Lender, showing the
basis for the calculation thereof, which basis must be reasonable, submitted to
the Company (on behalf of such Borrower) by such Lender shall, absent manifest
error, be final and conclusive and binding upon all parties hereto) and (z) in
the case of clause (iii) above, the applicable Borrower shall take one of the
actions specified in section 2.10(b) as promptly as possible and, in any event,
within the time period required by law.
(b) At any time that any Eurocurrency Loan denominated in Dollars or an
Alternative Currency is affected by the circumstances described in section
2.10(a)(ii) or (iii), the applicable Borrower may (and in the case of a
Eurocurrency Loan affected pursuant to section 2.10(a)(iii) the applicable
Borrower shall) either (i) if the affected Eurocurrency Loan is then being made
pursuant to a Borrowing, by giving the Administrative Agent telephonic notice
(confirmed promptly in writing if requested) thereof on the same date that such
Borrower was notified by a Lender pursuant to section 2.10(a)(ii) or (iii),
cancel said Borrowing, convert the related Notice of Borrowing into one
requesting a Borrowing of Prime Rate Loans or require the affected Lender to
make its requested Loan as a Prime Rate Loan, or (ii) if the affected
Eurocurrency Loan is then outstanding, upon at least one Business Day's notice
to the Administrative Agent, require the affected Lender to convert each such
Eurocurrency Loan denominated in Dollars into a Prime Rate Loan, or require the
affected Lender to Redenominate each such Eurocurrency Loan denominated in an
Alternative Currency into a Prime Rate Loan, PROVIDED that if more than one
Lender is affected at any time, then all affected Lenders must be treated the
same pursuant to this section 2.10(b).
(c) If any Lender shall have determined that after the Effective Date, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged by law with the interpretation or administration thereof, or compliance
by such Lender or its parent corporation with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank, or comparable agency, in each case made subsequent to
the Effective Date, has or would have the effect of reducing by an amount
reasonably deemed by such Lender to be material the rate of return on such
Lender's or its parent corporation's capital or assets as a consequence of such
Lender's commitments or obligations hereunder to a level below that which such
Lender or its parent corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's or
its parent corporation's policies with respect to capital adequacy), then from
time to time, within 15 days after demand by such Lender (with a copy to the
Administrative Agent), each applicable Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or its parent
corporation for such reduction. Each Lender, upon determining in good faith
that any additional amounts will be payable pursuant to this section 2.10(c),
will give prompt written notice thereof to the Company (who will in turn give
notice to the other Borrowers), which notice shall set forth, in reasonable
detail, the basis of the calculation of such additional amounts, which basis
must be reasonable, although the failure to give any such notice shall not
release or diminish any applicable Borrower's obligations to pay additional
amounts pursuant to this section 2.10(c) upon the subsequent receipt of such
notice.
(d) Notwithstanding anything in this Agreement to the contrary, (i) no
Lender shall be entitled to compensation or payment or reimbursement of other
amounts under section 2.10, 3.5 or 5.4 for any amounts incurred or accruing
more than 180 days prior to the giving of notice to the Company of additional
costs or other amounts of the nature described in such sections, and (ii) no
Lender shall demand compensation for any reduction referred to in section
2.10(c) or payment or reimbursement of other amounts under section 3.5 or 5.4
if it shall not at the time be the general policy or practice of such Lender to
demand such compensation, payment or reimbursement in similar circumstances
under comparable provisions of other credit agreements.
2.11. COMPENSATION. Each applicable Borrower shall compensate each
applicable Lender, upon its written request (which request shall set forth the
detailed basis for requesting and the method of calculating such compensation),
for all reasonable losses, expenses and liabilities (including, without
limitation, any loss, expense or
27
<PAGE> 33
liability incurred by reason of the liquidation or reemployment of deposits
or other funds required by such Lender to fund its Eurocurrency Loans or Money
Market Rate Loans) which such Lender may sustain: (i) if for any reason (other
than a default by such Lender or the Administrative Agent), (A) a Borrowing of
Eurocurrency Loans by such Borrower does not occur on a date specified therefor
in a Notice of Borrowing, Notice of Conversion or Notice of Redenomination
(whether or not rescinded or withdrawn by or on behalf of such Borrower or
deemed rescinded or withdrawn pursuant to section 2.10(a)), or (B) a Borrowing
of Money Market Rate Loans by the Company does not occur on a date specified
therefor in a Notice of Borrowing; (ii) if any repayment, prepayment, conversion
or Redenomination of any of its Eurocurrency Loans occurs on a date which is not
the last day of an Interest Period applicable thereto; (iii) if any repayment or
prepayment of any of the Company's Money Market Rate Loans occurs on a date
which is not the maturity date thereof; (iv) if any prepayment of any of its
Eurocurrency Loans or Money Market Rate Loans, as the case may be, is not made
on any date specified in a notice of prepayment given by or on behalf of such
Borrower; or (v) as a consequence of (x) any other default by such Borrower to
repay its Eurocurrency Loans or Money Market Rate Loans, as the case may be,
when required by the terms of this Agreement or (y) an election made pursuant to
section 2.10(b).
2.12. CHANGE OF LENDING OFFICE; REPLACEMENT OF LENDERS. (a) Each Lender
agrees that, upon the occurrence of any event giving rise to the operation of
section 2.10(a)(ii) or (iii), 2.10(c), 3.5 or 5.4 with respect to such Lender,
it will, if requested by the Company (on behalf of any applicable Borrower),
use reasonable efforts (subject to overall policy considerations of such
Lender) to designate another Applicable Lending Office for any Loans or
Commitment affected by such event, PROVIDED that such designation is made on
such terms that such Lender and its Applicable Lending Office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of any such section.
(b) If any Lender requests any compensation, reimbursement or other
payment under section 2.10(a)(ii) or (iii), 2.10(c) or 3.5 with respect to such
Lender, or if any applicable Borrower is required to pay any additional amount
to any Lender or governmental authority pursuant to section 5.4, or if any
Lender is a Defaulting Lender, then the Company may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with the
restrictions contained in section 13.4(b)), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); PROVIDED that (i) the Company shall have received the prior
written consent of the Administrative Agent, which consent shall not be
unreasonably withheld, (ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
any applicable Borrower (in the case of all other amounts), and (iii) in the
case of any such assignment resulting from a claim for compensation,
reimbursement or other payments required to be made under section 2.10(a)(ii) or
(iii), 2.10(c) or 3.5 with respect to such Lender, or resulting from any
required payments to any Lender or governmental authority pursuant to section
5.4, such assignment will result in a reduction in such compensation,
reimbursement or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to require such
assignment and delegation cease to apply.
(c) Nothing in this section 2.12 shall affect or postpone any of the
obligations of any Borrower or the right of any Lender provided in section
2.10, 3.5 or 5.4.
SECTION 3. LETTERS OF CREDIT.
3.1. LETTERS OF CREDIT. (a) Subject to and upon the terms and conditions
herein set forth, the Company may request a Letter of Credit Issuer at any time
and from time to time on or after the Initial Borrowing Date and prior to the
date that is 15 Business Days prior to the Maturity Date to issue, for the
account of the Company or any of its Subsidiaries and in support of (i) trade
obligations of the Company and its Subsidiaries incurred in the ordinary course
of business, and/or (ii) worker compensation, liability insurance, releases of
contract retention obligations, contract performance guarantee requirements and
other bonding obligations of the Company or any such Subsidiary incurred in the
ordinary course of its business, and such other standby obligations of the
Company and its
28
<PAGE> 34
Subsidiaries that are acceptable to the Letter of Credit Issuer, and
subject to and upon the terms and conditions herein set forth, such Letter of
Credit Issuer agrees to issue from time to time, irrevocable documentary or
standby letters of credit denominated in Dollars or an Alternative Currency in
such form as may be approved by such Letter of Credit Issuer and the
Administrative Agent (each such letter of credit (and each Existing Letter of
Credit described in section 3.1(d)), a "LETTER OF CREDIT" and collectively, the
"LETTERS OF CREDIT").
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued
the Stated Amount of which, when added to the Letter of Credit Outstandings at
such time, would exceed either (x) $10,000,000 or (y) when added to the
aggregate principal amount of all Loans then outstanding, an amount equal to
the Total General Revolving Commitment at such time; (ii) no individual Letter
of Credit (other than any Existing Letter of Credit) shall be issued which has
an initial Stated Amount less than $100,000 unless such lesser Stated Amount is
acceptable to the Letter of Credit Issuer; and (iii) each Letter of Credit
shall have an expiry date (including any renewal periods) occurring not later
than the earlier of (A) one year from the date of issuance thereof, unless a
longer period is approved by the relevant Letter of Credit Issuer and Lenders
(other than any Defaulting Lender) holding a majority of the Total General
Revolving Commitment, and (B) 15 Business Days prior to the Maturity Date, in
each case on terms acceptable to the Administrative Agent and the relevant
Letter of Credit Issuer.
(c) Notwithstanding the foregoing, in the event a Lender Default exists,
no Letter of Credit Issuer shall be required to issue any Letter of Credit
unless either (i) such Letter of Credit Issuer has entered into arrangements
satisfactory to it and the Company to eliminate such Letter of Credit Issuer's
risk with respect to the participation in Letters of Credit of the Defaulting
Lender or Lenders, including by cash collateralizing such Defaulting Lender's
or Lenders' General Revolving Facility Percentage of the Letter of Credit
Outstandings; or (ii) the issuance of such Letter of Credit, taking into
account the potential failure of the Defaulting Lender or Lenders to risk
participate therein, will not cause the Letter of Credit Issuer to incur
aggregate credit exposure hereunder with respect to General Revolving Loans and
Letter of Credit Outstandings in excess of its General Revolving Commitment,
and the Company has undertaken, for the benefit of such Letter of Credit
Issuer, pursuant to an instrument satisfactory in form and substance to such
Letter of Credit Issuer, not to thereafter incur Loans or Letter of Credit
Outstandings hereunder which would cause the Letter of Credit Issuer to incur
aggregate credit exposure hereunder with respect to General Revolving Loans and
Letter of Credit Outstandings in excess of its General Revolving Commitment.
(d) Annex VI hereto contains a description of all letters of credit
outstanding on, and to continue in effect after, the Initial Borrowing Date.
Each such letter of credit issued by a bank that is or becomes a Lender under
this Agreement on the Effective Date (each, an "EXISTING LETTER OF CREDIT")
shall constitute a "Letter of Credit" for all purposes of this Agreement,
issued, for purposes of section 3.4(a), on the Initial Borrowing Date, and the
Company, the Administrative Agent and the applicable Lenders hereby agree that,
from and after such date, the terms of this Agreement shall apply to such
Letters of Credit, superseding any other agreement theretofore applicable to
them to the extent inconsistent with the terms hereof.
3.2. LETTER OF CREDIT REQUESTS: NOTICES OF ISSUANCE. (a) Whenever it
desires that a Letter of Credit be issued, the Company shall give the
Administrative Agent and the Letter of Credit Issuer written or telephonic
notice (in the case of telephonic notice, promptly confirmed in writing if so
requested by the Administrative Agent) which, if in the form of written notice
shall be substantially in the form of Exhibit B-3, or transmit by electronic
communication (if arrangements for doing so have been approved by the Letter of
Credit Issuer), prior to 11:00 A.M. (local time at its Notice Office) at least
three Business Days (or such shorter period as may be acceptable to the
relevant Letter of Credit Issuer) prior to the proposed date of issuance (which
shall be a Business Day) (each a "LETTER OF CREDIT REQUEST"), which Letter of
Credit Request shall include such supporting documents that such Letter of
Credit Issuer customarily requires in connection therewith (including, in the
case of a Letter of Credit for an account party other than the Company, an
application for, and if applicable a reimbursement agreement with respect to,
such Letter of Credit). Any such documents executed in connection with the
issuance of a Letter of Credit, including the Letter of Credit itself, are
herein referred to as "LETTER OF CREDIT DOCUMENTS". In the event of any
inconsistency between any of the terms or provisions of any Letter of Credit
Document and the terms and provisions of this Agreement respecting Letters of
Credit, the terms and provisions of this Agreement shall control. The
Administrative Agent shall promptly notify each Lender of each Letter of Credit
Request.
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<PAGE> 35
(b) Each Letter of Credit Issuer shall, on the date of each issuance of a
Letter of Credit by it, give the Administrative Agent, each applicable Lender
and the Company written notice of the issuance of such Letter of Credit,
accompanied by a copy to the Administrative Agent of the Letter of Credit or
Letters of Credit issued by it. Each Letter of Credit Issuer shall provide to
the Administrative Agent a quarterly (or monthly if requested by any applicable
Lender) summary describing each Letter of Credit issued by such Letter of
Credit Issuer and then outstanding and an identification for the relevant
period of the daily aggregate Letter of Credit Outstandings represented by
Letters of Credit issued by such Letter of Credit Issuer.
3.3. AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The Company hereby
agrees to reimburse (or cause any Subsidiary for whose account a Letter of
Credit was issued to reimburse) each Letter of Credit Issuer, by making payment
directly to such Letter of Credit Issuer in immediately available funds at the
payment office of such Letter of Credit Issuer, for any payment or disbursement
made by such Letter of Credit Issuer under any Letter of Credit (each such
amount so paid or disbursed until reimbursed, an "UNPAID DRAWING") immediately
after, and in any event on the date on which, such Letter of Credit Issuer
notifies the Company (or any such Subsidiary for whose account such Letter of
Credit was issued) of such payment or disbursement (which notice to the Company
(or such Subsidiary) shall be delivered reasonably promptly after any such
payment or disbursement), such payment to be made in Dollars (and in the amount
which is the Dollar equivalent of any such payment or disbursement made or
denominated in an Alternative Currency), with interest on the amount so paid or
disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior
to 1:00 P.M. (local time at the payment office of the Letter of Credit Issuer)
on the date of such payment or disbursement, from and including the date paid
or disbursed to but not including the date such Letter of Credit Issuer is
reimbursed therefor at a rate per annum which shall be the rate then applicable
to Revolving Loans which are Prime Rate Loans (plus an additional 2% per annum
if not reimbursed by the third Business Day after the date of such payment or
disbursement), any such interest also to be payable on demand.
(b) The Company's obligation under this section 3.3 to reimburse, or cause
a Subsidiary to reimburse, each Letter of Credit Issuer with respect to Unpaid
Drawings (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances, including, without limitation,
any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any set-off, counterclaim, defense or other
right which the Company (or any Subsidiary) may have at any time against
a beneficiary named in a Letter of Credit, any transferee of any Letter
of Credit (or any person for whom any such transferee may be acting), the
Administrative Agent, any Letter of Credit Issuer, any Lender, or other
person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Company (or any
Subsidiary) and the beneficiary named in any such Letter of Credit);
PROVIDED, HOWEVER that the Company shall not be obligated to reimburse, or
cause a Subsidiary to reimburse, a Letter of Credit Issuer for any wrongful
payment made by such Letter of Credit Issuer under a Letter of Credit as a
result of acts or omissions constituting willful misconduct or gross
negligence on the part of such Letter of Credit Issuer;
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) any non-application or misapplication by the beneficiary of the
proceeds of such drawing;
(v) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents: or
(vi) the occurrence of any Default or Event of Default.
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<PAGE> 36
3.4. LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the issuance
by a Letter of Credit Issuer of any Letter of Credit (and on the Initial
Borrowing Date with respect to any Existing Letter of Credit), such Letter of
Credit Issuer shall be deemed to have sold and transferred to each Lender with a
General Revolving Commitment, and each such Lender (each a "PARTICIPANT") shall
be deemed irrevocably and unconditionally to have purchased and received from
such Letter of Credit Issuer, without recourse or warranty, an undivided
interest and participation, to the extent of such Lender's General Revolving
Facility Percentage, in such Letter of Credit, each substitute letter of credit,
each drawing made thereunder, the obligations of the Company under this
Agreement with respect thereto (although Letter of Credit Fees shall be payable
directly to the Administrative Agent for the account of the Lenders as provided
in section 4.1(b) and the Participants shall have no right to receive any
portion of any fees of the nature contemplated by section 4.1(c)), the
obligations of any Subsidiary of the Company under any Letter of Credit
Documents pertaining thereto, and any security for, or guaranty pertaining to,
any of the foregoing. Upon any change in the General Revolving Commitments of
the Lenders pursuant to section 13.4(b), it is hereby agreed that, with respect
to all outstanding Letters of Credit and Unpaid Drawings, there shall be an
automatic adjustment to the participations pursuant to this section 3.4 to
reflect the new General Revolving Facility Percentages of the assigning and
assignee Lenders.
(b) In determining whether to pay under any Letter of Credit, a Letter of
Credit Issuer shall not have any obligation relative to the Participants other
than to determine that any documents required to be delivered under such Letter
of Credit have been delivered and that they appear to comply on their face with
the requirements of such Letter of Credit. Any action taken or omitted to be
taken by a Letter of Credit Issuer under or in connection with any Letter of
Credit if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for such Letter of Credit Issuer any resulting
liability.
(c) In the event that a Letter of Credit Issuer makes any payment under
any Letter of Credit and the Company shall not have reimbursed (or caused any
applicable Subsidiary to reimburse) such amount in full to such Letter of
Credit Issuer pursuant to section 3.3(a), such Letter of Credit Issuer shall
promptly notify the Administrative Agent, and the Administrative Agent shall
promptly notify each Participant of such failure, and each Participant shall
promptly and unconditionally pay to the Administrative Agent for the account of
such Letter of Credit Issuer, the amount of such Participant's General
Revolving Facility Percentage of such payment in U.S. Dollars (the
Administrative Agent having determined in the case of any payment by a Letter
of Credit Issuer made in an Alternative Currency the equivalent thereof in
Dollars) and in same day funds, PROVIDED, HOWEVER, that no Participant shall be
obligated to pay to the Administrative Agent its General Revolving Facility
Percentage of such unreimbursed amount for any wrongful payment made by such
Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of
such Letter of Credit Issuer. If the Administrative Agent so notifies any
Participant required to fund a payment under a Letter of Credit prior to 11:00
A.M. (local time at its Notice Office) on any Business Day, such Participant
shall make available to the Administrative Agent for the account of the
relevant Letter of Credit Issuer such Participant's General Revolving Facility
Percentage of the amount of such payment on such Business Day in same day
funds. If and to the extent such Participant shall not have so made its General
Revolving Facility Percentage of the amount of such payment available to the
Administrative Agent for the account of the relevant Letter of Credit Issuer,
such Participant agrees to pay to the Administrative Agent for the account of
such Letter of Credit Issuer, forthwith on demand such amount, together with
interest thereon, for each day from such date until the date such amount is paid
to the Administrative Agent for the account of such Letter of Credit Issuer at
the Federal Funds Effective Rate. The failure of any Participant to make
available to the Administrative Agent for the account of the relevant Letter of
Credit Issuer its General Revolving Facility Percentage of any payment under any
Letter of Credit shall not relieve any other Participant of its obligation
hereunder to make available to the Administrative Agent for the account of such
Letter of Credit Issuer its General Revolving Facility Percentage of any payment
under any Letter of Credit on the date required, as specified above, but no
Participant shall be responsible for the failure of any other Participant to
make available to the Administrative Agent for the account of such Letter of
Credit Issuer such other Participant's General Revolving Facility Percentage of
any such payment.
(d) Whenever a Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to section 3.4(c) above, such Letter of Credit Issuer shall pay to the
Administrative Agent and
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the Administrative Agent shall promptly pay to each Participant which has
paid its General Revolving Facility Percentage thereof, in U.S. dollars and in
same day funds, an amount equal to such Participant's General Revolving Facility
Percentage of the principal amount thereof and interest thereon accruing after
the purchase of the respective participations, as and to the extent so received.
(e) The obligations of the Participants to make payments to the
Administrative Agent for the account of each Letter of Credit Issuer with
respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of
this Agreement under all circumstances, including, without limitation, any of
the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any set-off, counterclaim, defense or other
right which the Company (or any Subsidiary) may have at any time against
a beneficiary named in a Letter of Credit, any transferee of any Letter
of Credit (or any person for whom any such transferee may be acting), the
Administrative Agent, any Letter of Credit Issuer, any Lender, or other
person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Company (or any
Subsidiary) and the beneficiary named in any such Letter of Credit),
other than any claim which the Company (or any Subsidiary which is the
account party with respect to a Letter of Credit) may have against any
applicable Letter of Credit Issuer for gross negligence or wilful
misconduct of such Letter of Credit Issuer in making payment under any
applicable Letter of Credit;
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) any non-application or misapplication by the beneficiary of the
proceeds of such drawing;
(v) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents: or
(vi) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified by the
Company, the Participants will reimburse and indemnify the Letter of Credit
Issuer, in proportion to their respective General Revolving Facility
Percentages, for and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by the Letter of Credit Issuer in performing its respective
duties in any way related to or arising out of its issuance of Letters of
Credit, PROVIDED that no Participants shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements resulting from the Letter of Credit
Issuer's gross negligence or willful misconduct.
3.5. INCREASED COSTS. If after the Effective Date, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Letter of Credit Issuer or any
Lender with any request or directive (whether or not having the force of law)
by any such authority, central bank or comparable agency (in each case made
subsequent to the Effective Date) shall either (i) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement
against Letters of Credit issued by such Letter of Credit Issuer or such
Lender's participation therein, or (ii) shall impose on such Letter of
Credit Issuer or any Lender any other conditions affecting this Agreement, any
Letter of Credit or such Lender's participation therein; and the result of any
of the foregoing is to increase the cost to such Letter of
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Credit Issuer or such Lender of issuing, maintaining or participating in any
Letter of Credit, or to reduce the amount of any sum received or receivable by
such Letter of Credit Issuer or such Lender hereunder (other than any increased
cost or reduction in the amount received or receivable resulting from the
imposition of or a change in the rate of taxes or similar charges), then, upon
demand to the Company by such Letter of Credit Issuer or such Lender (a copy of
which notice shall be sent by such Letter of Credit Issuer or such Lender to the
Administrative Agent), the Company shall pay to such Letter of Credit Issuer or
such Lender such additional amount or amounts as will compensate any such Letter
of Credit Issuer or such Lender for such increased cost or reduction. A
certificate submitted to the Company by any Letter of Credit Issuer or any
Lender, as the case may be (a copy of which certificate shall be sent by such
Letter of Credit Issuer or such Lender to the Administrative Agent), setting
forth, in reasonable detail, the basis for the determination of such additional
amount or amounts necessary to compensate any Letter of Credit Issuer or such
Lender as aforesaid shall be conclusive and binding on the Company absent
manifest error, although the failure to deliver any such certificate shall not
release or diminish any of the Company's obligations to pay additional amounts
pursuant to this section 3.5. Reference is hereby made to the provisions of
section 2.10(d) for certain limitations upon the rights of a Letter of Credit
Issuer or Lender under this section.
3.6. GUARANTY OF SUBSIDIARY LETTER OF CREDIT OBLIGATIONS. (a) The Company
hereby unconditionally guarantees, for the benefit of the Administrative Agent
and the Lenders, the full and punctual payment of the Obligations of each
Subsidiary under each Letter of Credit Document to which such Subsidiary is now
or hereafter becomes a party. Upon failure by any such Subsidiary to pay
punctually any such amount, the Company shall forthwith on demand by the
Administrative Agent pay the amount not so paid at the place and in the
currency and otherwise in the manner specified in this Agreement or any
applicable Letter of Credit Document.
(b) As a separate, additional and continuing obligation, the Company
unconditionally and irrevocably undertakes and agrees, for the benefit of the
Administrative Agent and the Lenders, that, should any amounts not be
recoverable from the Company under section 3.6(a) for any reason whatsoever
(including, without limitation, by reason of any provision of any Credit
Document or any other agreement or instrument executed in connection therewith
being or becoming void, unenforceable, or otherwise invalid under any
applicable law) then, notwithstanding any notice or knowledge thereof by any
Lender, the Administrative Agent, any of their respective Affiliates, or any
other person, at any time, the Company as sole, original and independent
obligor, upon demand by the Administrative Agent, will make payment to the
Administrative Agent, for the account of the Lenders and the Administrative
Agent, of all such obligations not so recoverable by way of full indemnity, in
such currency and otherwise in such manner as is provided in the Credit
Documents.
(c) The obligations of the Company under this section shall be
unconditional and absolute and, without limiting the generality of the
foregoing shall not be released, discharged or otherwise affected by the
occurrence, one or more times, of any of the following:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect to any obligation of any Subsidiary under any Letter
of Credit Document, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement, any Note or any other Credit Document;
(iii) any release, non-perfection or invalidity of any direct or
indirect security for any obligation
of the Company under this Agreement, any Note or any other Credit
Document or of any Subsidiary under any Letter of Credit Document;
(iv) any change in the corporate existence, structure or ownership
of any Subsidiary or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any Subsidiary or its assets or any
resulting release or discharge of any obligation of any Subsidiary
contained in any Letter of Credit Document;
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(v) the existence of any claim, set-off or other rights which the
Company may have at any time against any Subsidiary, the Administrative
Agent, any Lender or any other person, whether in connection herewith or
any unrelated transactions;
(vi) any invalidity or unenforceability relating to or against any
Subsidiary for any reason of any Letter of Credit Document, or any
provision of applicable law or regulation purporting to prohibit the
payment by any Subsidiary of any Obligations in respect of any Letter of
Credit; or
(vii) any other act or omission to act or delay of any kind by any
Subsidiary, the Administrative Agent, any Lender or any other person or
any other circumstance whatsoever which might, but for the provisions of
this section, constitute a legal or equitable discharge of the Company's
obligations under this section.
(d) The Company's obligations under this section shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Company under
the Credit Documents and by any Subsidiary under the Letter of Credit Documents
shall have been paid in full. If at any time any payment of any of the
Obligations of any Subsidiary in respect of any Letter of Credit Documents is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of such Subsidiary, the Company's obligations
under this section with respect to such payment shall be reinstated at such
time as though such payment had been due but not made at such time.
(e) The Company irrevocably waives acceptance hereof, presentment, demand,
protest and any notice not provided for herein, as well as any requirement that
at any time any action be taken by any person against any Subsidiary or any
other person, or against any collateral or guaranty of any other person.
(f) Until the indefeasible payment in full of all of the Obligations and
the termination of the Commitments of the Lenders hereunder, the Company shall
have no rights, by operation of law or otherwise, upon making any payment under
this section to be subrogated to the rights of the payee against any Subsidiary
with respect to such payment or otherwise to be reimbursed, indemnified or
exonerated by any Subsidiary in respect thereof.
(g) In the event that acceleration of the time for payment of any amount
payable by any Subsidiary under any Letter of Credit Document is stayed upon
insolvency, bankruptcy or reorganization of such Subsidiary, all such amounts
otherwise subject to acceleration under the terms of any applicable Letter of
Credit Document shall nonetheless be payable by the Company under this section
forthwith on demand by the Administrative Agent.
SECTION 4. FEES; COMMITMENTS.
4.1. FEES. (a) The Company agrees to pay to the Administrative Agent a
Facility Fee ("FACILITY FEE") for the account of each Non-Defaulting Lender
which has a General Revolving Commitment for the period from and including the
Effective Date to but not including the date the Total General Revolving
Commitment has been terminated, on the average daily amount of the Total
General Revolving Commitment, whether used or unused, at the Applicable
Facility Fee Rate, payable quarterly in advance for the next succeeding quarter
on the Effective Date for the period through September 30, 1997 and on each
October 1, January 1, April 1 and July 1 thereafter, commencing October 1,
1997, until the Maturity Date, PROVIDED, HOWEVER, that if at any time the Total
General Revolving Commitment is reduced in part pursuant to section 4.2 or
terminated in whole pursuant to section 4.2, each affected Lender will pay to
the Company promptly thereafter the excess, if any, of (i) the Facility Fee
paid by the Company to the Administrative Agent for such Lender in respect of
the Total General Revolving Commitment on the last date of payment of the
Facility Fee therefor, over (ii) the Facility Fee which would have been payable
to such Lender on such date after giving effect to such reduction or
termination of the Total General Revolving Commitment. As used herein, the term
"APPLICABLE FACILITY FEE RATE" means 17.50 basis points per annum; PROVIDED,
that if subsequent to the fiscal quarter of the Company ended nearest to
September 30, 1997, no Default under section 10.1(a) or Event of Default shall
have occurred and be continuing, the Applicable Facility Fee Rate will change to
the rate per annum indicated in the Pricing Grid Table which appears in section
2.8(g), based on the ratio referred
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to in section 9.6. Changes in the Applicable Facility Fee Rate based upon
changes in such ratio shall become effective for any Facility Fee scheduled to
be paid at any time following the receipt by to the Administrative Agent
pursuant to section 8.1(a) or (b) of the financial statements of the Company,
accompanied by the certificate referred to in section 8.1(c), demonstrating the
computation of such ratio, based upon the ratio in effect at the end of the
applicable period covered (in whole or in part) by such financial statements;
PROVIDED that if any financial statements referred to in section 8.1(a) or (b),
or the related certificate referred to in section 8.1(c), are not timely
delivered, the Administrative Agent may determine the Applicable Facility Fee
Rate based upon a good faith estimate by the Company of such ratio as in effect
at the end of the applicable period to be covered (in whole or in part) by such
financial statements, PROVIDED, FURTHER, that if upon delivery of such
delinquent financial statements and related certificate, such financial
statements indicate that such good faith estimate was incorrect and, as a result
thereof, the Applicable Facility Fee Rate was too low at such determination, the
Applicable Facility Fee Rate shall be increased, as appropriate, with
retroactive effect to the date of the change made on the basis of such
determination, and the Company will immediately pay to the Administrative Agent
for the account of the Lenders all additional Facility Fee due by reason of such
increased Applicable Facility Fee Rate. Any changes in the Applicable Facility
Fee Rate shall be determined by the Administrative Agent and the Administrative
Agent will promptly provide notice of such determinations to the Company and the
Lenders. Any such determination by the Administrative Agent pursuant to this
section 4.1(a) shall be conclusive and binding absent manifest error.
(b) The Company agrees to pay to the Administrative Agent, for the account
of each Non-Defaulting Lender, PRO RATA on the basis of its General Revolving
Facility Percentage, on or prior to the date of issuance of any Letter of
Credit (an increase in the amount of a Letter of Credit shall be considered an
issuance to the extent of the increase), a fee in respect of such Letter of
Credit (the "LETTER OF CREDIT FEE"), computed at the rate per annum equal to
the Applicable Eurocurrency Margin then in effect, on the average daily Stated
Amount of such Letter of Credit, for the period from and including the date of
issuance to but excluding the date of expiration date thereof (assuming
exercise of any renewal rights applicable thereto).
(c) The Company agrees to pay directly to each Letter of Credit Issuer a
fee in respect of each Letter of Credit issued by it (a "FACING FEE"), on or
prior to the date of such issuance (an increase in the amount of a Letter of
Credit shall be considered an issuance to the extent of the increase), computed
at the rate of 1/8 of 1% per annum on the average daily Stated Amount of such
Letter of Credit, for the period from and including the date of issuance to but
excluding the date of expiration date thereof (assuming exercise of any renewal
rights applicable thereto).
(d) The Company agrees to pay directly to each Letter of Credit Issuer
upon each drawing under, and/or amendment, extension, renewal or transfer of, a
Letter of Credit issued by it such amount as shall at the time of such drawing,
amendment, extension, renewal or transfer be the administrative charge which
such Letter of Credit Issuer is customarily charging for drawings under or
amendments, extensions, renewals or transfers of, letters of credit issued by
it.
(e) The Company shall pay to the Administrative Agent on the Effective
Date and thereafter for its own account such administrative agency fees as have
heretofore been agreed by the Company and the Administrative Agent.
(f) All computations of Fees shall be made in accordance with section
13.7(b).
4.2. VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least three Business
Days' prior written notice (or telephonic notice confirmed in writing) to the
Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Lenders), the Company (on behalf
of all Borrowers) shall have the right, without premium or penalty, to
terminate or to partially and permanently reduce (x) the Unutilized Total
General Revolving Commitment, and/or (y) the Unutilized Total Swing Line
Revolving Commitment, PROVIDED that (i) any such termination or reduction shall
apply to proportionately and permanently reduce the General Revolving
Commitment or Swing Line Revolving Commitment, as the case may be, if any, of
each of the affected Lenders, (ii) in the case of any such reduction of the
Unutilized Total General Revolving Commitment, the maximum aggregate amount of
Borrowings by Foreign Borrowing Subsidiaries and the maximum aggregate amount
of Borrowings denominated in any Alternative Currency, as specified in section
2.1(a), shall each be reduced in the
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same proportion as such reduction of the Unutilized Total General Revolving
Commitment, (iii) any partial reduction of the Unutilized Total General
Revolving Commitment pursuant to this section 4.2 shall be in the amount of at
least $3,000,000 (or, if greater, in integral multiples of $1,000,000), and (iv)
any partial reduction of the Unutilized Total Swing Line Revolving Commitment
pursuant to this section 4.2 shall be in the amount of at least $500,000 (or, if
greater, in integral multiples of $100,000).
4.3. MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. (a) The Total Commitment
(and the General Revolving Commitment and Swing Line Revolving Commitment of
each Lender) shall terminate on October 31, 1997, unless the Initial Borrowing
Date has occurred on or prior to such date.
(b) The Total Commitment (and the Commitment of each Lender) shall
terminate on the earlier of (x) the Maturity Date and (y) the date on which a
Change of Control occurs.
(c) The Total General Revolving Commitment shall be permanently reduced,
without premium or penalty, at the time that any mandatory prepayment of
General Revolving Loans would be made pursuant to section 5.2(c) if General
Revolving Loans were then outstanding in the full amount of the Total General
Revolving Commitment, in an amount at least equal to the required prepayment of
principal of General Revolving Loans which would be required to be made in such
circumstance. Any such reduction shall apply to proportionately and permanently
reduce the General Revolving Commitment of each of the affected Lenders, and
any partial reduction of the Total General Revolving Commitment pursuant to
this section 4.3(c) shall be in the amount of at least $1,000,000 (or, if
greater, in integral multiples of $1,000,000). The Company will provide at
least three Business Days' prior written notice (or telephonic notice confirmed
in writing) to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), of any
reduction of the Total Commitment pursuant to this section 4.3(c), specifying
the date and amount of the reduction.
4.4. EXTENSION OF MATURITY DATE. At any time after January 1, 1998 and
during the 30 day period following delivery by the Company pursuant to section
8.1(a) of its consolidated financial statements for its fiscal year then most
recently ended, and annually thereafter during the 30 day period following
delivery by the Company of its consolidated financial statements pursuant to
section 8.1(a), the Company may request the Administrative Agent to determine
if all of the Lenders are then willing to extend the Maturity Date for a single
additional year. If the Company so requests, the Administrative Agent will so
advise the Lenders. If all of the Lenders in their sole discretion are all
willing to so extend the Maturity Date, after taking into account such
considerations as any Lender may deem relevant, the Company, the other
Borrowers, the Administrative Agent and all of the Lenders (including each
Letter of Credit Issuer) shall execute and deliver a definitive written
instrument so extending the Maturity Date. No such extension of the Maturity
Date shall be valid or effective for any purpose unless such definitive written
instrument is so signed and delivered within 60 days following the giving by
the Administrative Agent of notice to the Lenders that the Company has
requested such an extension.
SECTION 5. PAYMENTS.
5.1. VOLUNTARY PREPAYMENTS. Any Borrower shall have the right to prepay
any of its Loans, in whole or in part, without premium or penalty, from time to
time on the following terms and conditions: (i) such Borrower (or the Company
on its behalf) shall give the Administrative Agent at the Notice Office written
or telephonic notice (in the case of telephonic notice, promptly confirmed in
writing if so requested by the Administrative Agent) of its intent to prepay
the General Revolving Loans or Swing Line Revolving Loans, as the case may be,
the amount of such prepayment and (in the case of Eurocurrency Loans and Money
Market Rate Loans) the specific Borrowing(s) pursuant to which made, which
notice shall be received by the Administrative Agent by (x) 11:00 A.M. (local
time at the Notice Office) three Business Days prior to the date of such
prepayment, in the case of any prepayment of Eurocurrency Loans, or (y) 12:00
noon (local time at the Notice Office) on the date of such prepayment, in the
case of any prepayment of Prime Rate Loans or Money Market Rate Loans, and
which notice shall promptly be transmitted by the Administrative Agent to each
of the affected Lenders; (ii) each partial prepayment of any General Revolving
Loans which are Prime Rate Loans shall be in an aggregate principal of at least
$500,000 or an integral multiple of $100,000 in excess thereof; (iii) each
partial prepayment of any General Revolving Loans which are
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Eurocurrency Loans denominated in Dollars shall be in an aggregate
principal of at least $1,000,000 or an integral multiple of $100,000 in excess
thereof; (iv) each partial prepayment of any General Revolving Loans which are
Eurocurrency Loans denominated in an Alternative Currency shall be in an
aggregate principal of at least the substantial equivalent of $5,000,000 or an
integral multiple of the substantial equivalent of $100,000 in excess thereof;
(v) each partial prepayment of any Swing Line Revolving Loans shall be in an
aggregate principal of at least $250,000 or an integral multiple of $50,000 in
excess thereof; (vi) no partial prepayment of any Loans made pursuant to a
Borrowing shall reduce the aggregate principal amount of such Loans outstanding
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto; (vii) each prepayment in respect of any Loans made pursuant
to a Borrowing shall be applied PRO RATA among such Loans; and (viii) each
prepayment of Eurocurrency Loans or Money Market Rate Loans pursuant to this
section 5.1 on any date other than the last day of the Interest Period
applicable thereto, in the case of Eurocurrency Loans, or the maturity date
thereof, in the case of Money Market Rate Loans, shall be accompanied by any
amounts payable in respect thereof under section 2.11.
5.2. MANDATORY PREPAYMENTS. (a) If on any date (after giving effect to
any other payments on such date) the sum of (i) the aggregate outstanding
principal amount of General Revolving Loans PLUS (ii) the aggregate amount of
Letter of Credit Outstandings, exceeds the Total General Revolving Commitment as
then in effect, the Borrowers shall prepay on such date that principal amount of
General Revolving Loans and, after General Revolving Loans have been paid in
full, Unpaid Drawings, in an aggregate amount at least equal to such excess. If,
after giving effect to the prepayment of General Revolving Loans and Unpaid
Drawings, the aggregate amount of Letter of Credit Outstandings exceeds the
Total General Revolving Commitment as then in effect, the Company shall pay to
the Administrative Agent an amount in cash and/or Cash Equivalents equal to such
excess and the Administrative Agent shall hold such payment as security for the
obligations of the Company hereunder pursuant to a cash collateral agreement to
be entered into in form and substance reasonably satisfactory to the
Administrative Agent and the Company (which shall permit certain investments in
Cash Equivalents satisfactory to the Administrative Agent and the Company until
the proceeds are applied to the secured obligations).
(b) If on any date (after giving effect to any other payments on such
date) the aggregate outstanding principal amount of Swing Line Revolving Loans
exceeds the Unutilized Total General Revolving Commitment as then in effect,
the Company shall prepay on such date Swing Line Revolving Loans in an
aggregate principal amount at least equal to such excess. If on any date (after
giving effect to any other payments on such date) the aggregate outstanding
principal amount of Swing Line Revolving Loans exceeds the Total Swing Line
Revolving Commitment as then in effect, the Company shall prepay on such date
Swing Line Revolving Loans in an aggregate principal amount at least equal to
such excess.
(c) On the date on which a Change of Control occurs, notwithstanding
anything to the contrary contained in this Agreement, no further Borrowings
shall be made and the then outstanding principal amount of all Loans, if any,
shall become due and payable and shall be prepaid in full, and the Company
shall contemporaneously either (i) cause all outstanding Letters of Credit to
be surrendered for cancellation (any such Letters of Credit to be replaced by
letters of credit issued by other financial institutions), or (ii) the Company
shall pay to the Administrative Agent an amount in cash and/or Cash Equivalents
equal to 100% of the Letter of Credit Outstandings and the Administrative Agent
shall hold such payment as security for the obligations of the Company
hereunder pursuant to a cash collateral agreement to be entered into in form and
substance reasonably satisfactory to the Administrative Agent and the Company
(which shall permit certain investments in Cash Equivalents satisfactory to the
Administrative Agent and the Company until the proceeds are applied to the
secured obligations).
(d) With respect to each prepayment of Loans required by this section 5.2,
the Company shall (on behalf of any applicable Borrower) designate the Types of
Loans which are to be prepaid and the specific Borrowing(s) pursuant to which
such prepayment is to be made, PROVIDED that (i) the Company shall first so
designate all Loans that are Prime Rate Loans and Eurocurrency Loans with
Interest Periods ending on the date of prepayment prior to designating any
other Eurocurrency Loans for prepayment, (ii) if the outstanding principal
amount of any Eurocurrency Loans made pursuant to a Borrowing is reduced below
the applicable Minimum Borrowing Amount as a result of any such prepayment,
then all the Loans outstanding pursuant to such Borrowing shall be converted
into Prime Rate Loans, and (iii) each prepayment of any Loans made pursuant to
a Borrowing shall be applied PRO RATA among such Loans. In the absence of a
designation by the Company as described in the preceding
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sentence, the Administrative Agent shall, subject to the above, make such
designation in its sole discretion with a view, but no obligation, to minimize
breakage costs owing under section 2.11. Any prepayment of Eurocurrency Loans or
Money Market Rate Loans pursuant to this section 5.2 shall in all events be
accompanied by such compensation as is required by section 2.11.
5.3. METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the
Administrative Agent for the ratable (based on its PRO RATA share) account of
the Lenders entitled thereto, not later than 11:00 A.M. (local time at the
Payment Office) on the date when due and shall be made in immediately available
funds and in lawful money of the United States of America (in the case of Loans
denominated in Dollars), or in the applicable Alternative Currency (in the case
of General Revolving Loans denominated in an Alternative Currency), at the
applicable Payment Office, it being understood that written notice by any
Borrower (or by the Company on behalf of any other Borrower) to the
Administrative Agent to make a payment from the funds in such Borrower's account
at the Payment Office shall constitute the making of such payment to the extent
of such funds held in such account. Any payments under this Agreement which are
made in Dollars later than 11:00 A.M. (local time at the Payment Office) shall
be deemed to have been made on the next succeeding Business Day, and any
payments under this Agreement which are made in an Alternative Currency later
than 11:00 A.M. (local time at the Payment Office) shall be deemed to have been
made on the next succeeding Business Day. Whenever any payment to be made
hereunder shall be stated to be due on a day which is not a Business Day, the
due date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable during such
extension at the applicable rate in effect immediately prior to such extension.
5.4. NET PAYMENTS. (a) All payments made by any Borrower hereunder, under
any Note or any other Credit Document, will be made without setoff,
counterclaim or other defense. Except as provided for in section 5.4(b), all
such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in the
second succeeding sentence, any tax, imposed on or measured by the net income
or net profits of a Lender pursuant to the laws of the jurisdiction under which
such Lender is organized or the jurisdiction in which the principal office or
Applicable Lending Office of such Lender is located or any subdivision thereof
or therein) and all interest, penalties or similar liabilities with respect to
such non excluded taxes, levies imposts, duties, fees, assessments or other
charges (all such nonexcluded taxes levies, imposts, duties, fees assessments
or other charges being referred to collectively as "TAXES"). If any Taxes are
so levied or imposed, the applicable Borrower agrees to pay the full amount of
such Taxes and such additional amounts as may be necessary so that every
payment by it of all amounts due hereunder, under any Note or under any other
Credit Document, after withholding or deduction for or on account of any Taxes
will not be less than the amount provided for herein or in such Note or in such
other Credit Document. If any amounts are payable in respect of Taxes pursuant
to the preceding sentence, the applicable Borrower agrees to reimburse each
Lender, upon the written request of such Lender for taxes imposed on or
measured by the net income or profits of such Lender pursuant to the laws of
the jurisdiction in which such Lender is organized or in which the principal
office or Applicable Lending Office of such Lender is located or under the laws
of any political subdivision or taxing authority of any such jurisdiction in
which the principal office or Applicable Lending Office of such Lender is
located and for any withholding of income or similar taxes imposed by the
United States of America as such Lender shall determine are payable by, or
withheld from, such Lender in respect of such amounts so paid to or on behalf
of such Lender pursuant to the preceding sentence and in respect of any amounts
paid to or on behalf of such Lender pursuant to this sentence, which request
shall be accompanied by a statement from such Lender setting forth, in
reasonable detail, the computations used in determining such amounts. The
applicable Borrower will furnish to the Administrative Agent within 45 days
after the date the payment of any Taxes, or any withholding or deduction on
account thereof, is due pursuant to applicable law certified copies of tax
receipts, or other evidence satisfactory to the Lender, evidencing such payment
by the applicable Borrower. The applicable Borrower will indemnify and hold
harmless the Administrative Agent and each Lender, and reimburse the
Administrative Agent or such Lender upon its written request, for the amount of
any Taxes so levied or imposed and paid or withheld by such Lender.
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(b) Each Lender that is not a United States person (as such term is
defined in section 7701(a)(30) of the Code) for Federal income tax purposes
agrees to provide to each applicable Borrower and the Administrative Agent on
or prior to the Effective Date, or in the cases of a Lender that is an assignee
or transferee of an interest under this Agreement pursuant to section 13.4
(unless the respective Lender was already a Lender hereunder immediately prior
to such assignment or transfer and such Lender is in compliance with the
provisions of this section 5.4(b)), on the date of such assignment or transfer
to such Lender, (i) two accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001 (or successor forms) certifying to
such Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement, any
Note or any other Credit Document, or (ii) if the Lender is not a "bank" within
the meaning of section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit F (any such certificate, a
"SECTION 5.4(B)(II) CERTIFICATE") and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8 (or successor form)
certifying to such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments of interest to be made under
this Agreement, any Note or any other Credit Document. In addition, each Lender
agrees that from time to time after the Effective Date, when a lapse in time or
change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the applicable Borrower
and the Administrative Agent two new accurate and complete original signed
copies of Internal Revenue Service Form 4224 or 1001, or Form W-8 and a Section
5.4(b)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement, any Note or any other Credit
Document, or it shall immediately notify the applicable Borrower and the
Administrative Agent of its inability to deliver any such Form or Certificate,
in which case such Lender shall not be required to deliver any such Form or
Certificate pursuant to this section 5.4(b). Notwithstanding anything to the
contrary contained in section 5.4(a), but subject to section 13.4(b) and the
immediately succeeding sentence, (x) the applicable Borrower shall be entitled,
to the extent it is required to do so by law, to deduct or withhold income or
other similar taxes imposed by the United States (or any political subdivision
or taxing authority thereof or therein) from interest, fees or other amounts
payable hereunder for the account of any Lender which is not a United States
person (as such term is defined in section 7701(a)(30) of the Code) for United
States federal income tax purposes and which has not provided to the applicable
Borrower such forms that establish a complete exemption from such deduction or
withholding and (y) the applicable Borrower shall not be obligated pursuant to
section 5.4(a) hereof to gross-up payments to be made to a Lender in respect of
income or similar taxes imposed by the United States or any additional amounts
with respect thereto (I) if such Lender has not provided to the applicable
Borrower the Internal Revenue Service forms required to be provided to the
applicable Borrower pursuant to this section 5.4(b) or (II) in the case of a
payment other than interest, to a Lender described in clause (ii) above, to the
extent that such forms do not establish a complete exemption from withholding
of such taxes. Notwithstanding anything to the contrary contained in the
preceding sentence or elsewhere in this section 5.4 and except as specifically
provided for in section 13.4(b), the applicable Borrower agrees to pay
additional amounts and indemnify each Lender in the manner set forth in section
5.4(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any increase in Taxes deducted or
withheld by it as described in the previous sentence as a result of any changes
after the Effective Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of income or similar Taxes.
(c) If any Lender, in its sole opinion, determines that it has finally and
irrevocably received or been granted a refund in respect of any Taxes paid as
to which indemnification has been paid by the applicable Borrower pursuant to
this section, it shall promptly remit such refund (including any interest
received in respect thereof), net of all out-of-pocket costs and expenses;
PROVIDED, that the applicable Borrower agrees to promptly return any such
refund (plus interest) to such Lender in the event such Lender is required to
repay such refund to the relevant taxing authority. Any such Lender shall
provide the applicable Borrower with a copy of any notice of assessment from
the relevant taxing authority (redacting any unrelated confidential information
contained therein) requiring repayment of such refund. Nothing contained herein
shall impose an obligation on any Lender to apply for any such refund.
(d) Reference is hereby made to the provisions of section 2.10(d) for
certain limitations upon the rights of a Lender under this section.
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SECTION 6. CONDITIONS PRECEDENT.
6.1. CONDITIONS PRECEDENT AT INITIAL BORROWING DATE. The obligation of the
Lenders to make Loans, and of any Letter of Credit Issuer to issue Letters of
Credit, is subject to the satisfaction of each of the following conditions on
the Initial Borrowing Date:
(A) EFFECTIVENESS; NOTES. On or prior to the Initial Borrowing
Date, (i) the Effective Date shall have occurred and (ii) there shall
have been delivered to the Administrative Agent for the account of each
Lender each appropriate Note executed by each Borrower, in each case, in
the amount, maturity and as otherwise provided herein.
(B) FEES, ETC. The Company shall have paid or caused to be paid all
fees required to be paid by it on or prior to such date pursuant to
section 4 hereof and all reasonable fees and expenses of the
Administrative Agent and of special counsel to the Administrative Agent
which have been invoiced on or prior to such date in connection with the
preparation, execution and delivery of this Agreement and the other
Credit Documents and the consummation of the transactions contemplated
hereby and thereby.
(C) OTHER CREDIT DOCUMENTS. The Credit Parties named therein shall
have duly executed and delivered and there shall be in full force and
effect, and original counterparts shall have been delivered to the
Administrative Agent, in sufficient quantities for the Administrative
Agent and the Lenders, of the Subsidiary Guaranty (as modified, amended
or supplemented from time to time in accordance with the terms thereof
and hereof, the "SUBSIDIARY GUARANTY"), substantially in the form
attached hereto as Exhibit C-1.
(D) CORPORATE RESOLUTIONS AND APPROVALS. The Administrative Agent
shall have received, in sufficient quantity for the Administrative Agent
and the Lenders, certified copies of the resolutions of the Board of
Directors of each Borrower and each other Credit Party, approving the
Credit Documents to which such Borrower or any such other Credit Party,
as the case may be, is or may become a party, and of all documents
evidencing other necessary corporate action and governmental approvals,
if any, with respect to the execution, delivery and performance by such
Borrower or any such other Credit Party of the Credit Documents to which
it is or may become a party.
(E) INCUMBENCY CERTIFICATE. The Administrative Agent shall have
received, in sufficient quantity for the Administrative Agent and the
Lenders, a certificate of the Secretary or an Assistant Secretary of each
Borrower and of each other Credit Party, certifying the names and true
signatures of the officers of such Borrower or such other Credit Party,
as the case may be, authorized to sign the Credit Documents to which such
Borrower or such other Credit Party is a party and any other documents to
which such Borrower or any such other Credit Party is a party which may
be executed and delivered in connection herewith.
(F) OPINION OF COUNSEL. On the Initial Borrowing Date, the
Administrative Agent shall have received an opinion, addressed to the
Administrative Agent and each of the Lenders and dated the Initial
Borrowing Date, from internal counsel to the Company, substantially in
the form of Exhibit D hereto and covering such other matters incident to
the transactions contemplated hereby as the Administrative Agent may
reasonably request, such opinion to be in form and substance satisfactory
to the Administrative Agent.
(G) EXISTING CREDIT AGREEMENT. Contemporaneously with the initial
Borrowing hereunder, the Company shall have terminated the commitments of
the lenders under the existing Credit Agreement, dated as of December 22,
1995, shall have prepaid all borrowings thereunder, shall have made
effective provision satisfactory to the Administrative Agent for the
termination, and if required in connection with such termination, made
effective provision for any letters of credit issued thereunder to be
supported or replaced by Letters of Credit issued hereunder.
(H) IPO TRANSACTION, ETC. Contemporaneously with the initial
Borrowing hereunder, (1) the Parent shall have completed the initial
public offering of shares of its common stock in compliance with all
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applicable legal requirements; (2) the Parent shall have contributed the
entire net proceeds of such offering (after provision for payment of
underwriting discounts and customary costs and expenses, and after
application of any portion thereof to the contemporaneous redemption of
shares of its preferred stock), to the capital of the Company; (3) the
Company shall have received such capital contribution, in an amount not
less than $40,000,000, and the Company shall have a ratio of Total
Indebtedness to Total Capitalization of less than 60%; and (4) if after
giving effect to such contribution the Company's ratio of Total
Indebtedness to Total Capitalization is not less than 52.5%, the Company
and its Subsidiaries (other than any Foreign Subsidiaries), shall have
executed and delivered to the Administrative Agent such pledge
agreements, security agreements and related UCC-1 Financing Statements as
the Administrative Agent shall in its discretion (or pursuant to
instructions from the Required Lenders) require as security for the
Obligations.
(I) PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings
and all documents incidental to the transactions contemplated hereby
shall be satisfactory in substance and form to the Administrative Agent
and the Lenders and the Administrative Agent and its special counsel and
the Lenders shall have received all such counterpart originals or
certified or other copies of such documents as the Administrative Agent
or its special counsel or any Lender may reasonably request.
6.2. FIRST BORROWING BY ANY ADDITIONAL FOREIGN BORROWING SUBSIDIARY. The
obligations of the Lenders to make any General Revolving Loan on the occasion
of the first Borrowing by any Foreign Borrowing Subsidiary hereunder (other
than a Foreign Borrowing Subsidiary which is an original party hereto) is
subject to the satisfaction of the following conditions:
(A) NOTES. Receipt by the Administrative Agent for the account of
each Lender of each appropriate General Revolving Note executed by such
Foreign Borrowing Subsidiary, in each case, in the amount, maturity and
as otherwise provided herein.
(B) CERTIFIED RESOLUTIONS AND INCUMBENCY. Receipt by the
Administrative Agent, in sufficient quantities for the Lenders, of
certified resolutions and an incumbency certificate for such Foreign
Borrowing Subsidiary, satisfactory in form and substance to the
Administrative Agent.
(C) ELECTION TO PARTICIPATE. Receipt by the Administrative Agent,
in sufficient quantities for the Lenders, of a duly executed Election to
Participate of such Foreign Borrowing Subsidiary, satisfactory in form
and substance to the Administrative Agent.
6.3. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligations of the
Lenders to make each Loan and/or of a Letter of Credit Issuer to issue each
Letter of Credit is subject, at the time thereof, to the satisfaction of the
following conditions:
(A) NOTICE OF BORROWING, ETC. The Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of section 2.3
with respect to the incurrence of Loans or a Letter of Credit Request
meeting the requirement of section 3.2 with respect to the issuance of a
Letter of Credit.
(B) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of each
Credit Event and also after giving effect thereto, (i) there shall exist
no Default or Event of Default and (ii) all representations and
warranties of the Credit Parties contained herein or in the other Credit
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 the date of such Credit Event, except to the extent that
such representations and warranties expressly relate to an earlier
specified date, in which case such representations and warranties shall
have been true and correct in all material respects as of the date when
made.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the applicable Borrower to each of the Lenders
that all of the applicable conditions specified in section 6.1, 6.2 and/or 6.3,
as the case may be, exist as of that time. All of the certificates, legal
opinions and other documents and papers referred
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to in section 6.1, section 6.2 or this section 6.3, unless otherwise
specified, shall be delivered to the Administrative Agent for the account of
each of the Lenders and, except for the Notes, in sufficient counterparts for
each of the Lenders, and the Administrative Agent will promptly distribute to
the Lenders their respective Notes and the copies of such other certificates,
legal opinions and documents.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders to enter into this Agreement and to make
the Loans, and/or to issue and/or to participate in the Letters of Credit
provided for herein, the Company makes the following representations and
warranties to, and agreements with, the Lenders, all of which shall survive the
execution and delivery of this Agreement and each Credit Event:
7.1. CORPORATE STATUS, ETC. Each of the Company and its Subsidiaries (i)
is a duly organized or formed and validly existing corporation, partnership or
limited liability company, as the case may be, in good standing (except as to
any Indiana corporation, inasmuch as such concept is not recognized in Indiana)
under the laws of the jurisdiction of its formation and has the corporate,
partnership or limited liability company power and authority, as applicable, to
own its property and assets and to transact the business in which it is engaged
and presently proposes to engage, and (ii) has duly qualified and is authorized
to do business in all jurisdictions where it is required to be so qualified
except where the failure to be so qualified would not have a Material Adverse
Effect.
7.2. SUBSIDIARIES. Annex II hereto lists, as of the date hereof, each
Subsidiary of the Company (and the direct and indirect ownership interest of
the Company therein).
7.3. CORPORATE POWER AND AUTHORITY, ETC. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is party and has taken all
necessary corporate or other organizational action to authorize the execution,
delivery and performance of the Credit Documents to which it is party. Each
Credit Party has duly executed and delivered each Credit Document to which it
is party and each Credit Document to which it is party constitutes the legal,
valid and binding agreement or obligation of such Credit Party enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
7.4. NO VIOLATION. Neither the execution, delivery and performance by any
Credit Party of the Credit Documents to which it is party nor compliance with
the terms and provisions thereof (i) will contravene any provision of any law,
statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality applicable to such Credit Party or its properties
and assets, (ii) will conflict with or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of (or the obligation to create or
impose) any Lien upon any of the property or assets of such Credit Party
pursuant to the terms of any promissory note, bond, debenture, indenture,
mortgage, deed of trust, credit or loan agreement, or any other material
agreement or other instrument, to which such Credit Party is a party or by
which it or any of its property or assets are bound or to which it may be
subject, or (iii) will violate any provision of the certificate or articles of
incorporation, code of regulations or by-laws, or other charter documents of
such Credit Party.
7.5. GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required as a
condition to (i) the execution, delivery and performance by any Credit Party of
any Credit Document to which it is a party, or (ii) the legality, validity,
binding effect or enforceability of any Credit Document to which any Credit
Party is a party.
7.6. LITIGATION. There are no actions, suits or proceedings pending or,
to, the knowledge of the Company, threatened with respect to the Company or
any of its Subsidiaries (i) that have, or could reasonably be expected to
have, a Material Adverse Effect, or (ii) which question the validity or
enforceability of any of the Credit
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Documents, or of any action to be taken by any Credit Party pursuant to
any of the Credit Documents to which it is a party.
7.7. USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of all Loans
shall be utilized (i) to retire the Indebtedness referred to in section 6.1(g),
and (ii) for other lawful purposes not inconsistent with the requirements of
this Agreement.
(b) No part of the proceeds of any Credit Event will be used directly or
indirectly to purchase or carry Margin Stock, or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock. Neither any Credit
Event, nor the use of the proceeds thereof, will violate or be inconsistent
with the provisions of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System. No Borrower is engaged in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. At no time
would more than 25% of the value of the assets of the Company or of the Company
and its consolidated Subsidiaries that are subject to any "arrangement" (as
such term is used in section 221.2(g) of such Regulation U) hereunder be
represented by Margin Stock.
7.8. FINANCIAL STATEMENTS, ETC. (a) The Company has furnished to the
Lenders and the Administrative Agent complete and correct copies of (i) the
audited consolidated balance sheet of the Company and its consolidated
subsidiaries as of December 31, 1996, and the related audited consolidated
statements of income, shareholders' equity, and cash flows for the fiscal year
then ended, accompanied by the unqualified report thereon of the Company's
independent accountants; and (ii) the unaudited condensed consolidated balance
sheet of the Company and its consolidated subsidiaries as of March 31, 1997,
and the related unaudited condensed consolidated statements of income and of
cash flows of the Company and its consolidated subsidiaries for the fiscal
quarter then ended. All such financial statements have been prepared in
accordance with GAAP, consistently applied (except as stated therein), and
fairly present, in all material respects, the financial position of the Company
and its consolidated subsidiaries as of the respective dates indicated and the
consolidated results of their operations and cash flows for the respective
periods indicated, subject in the case of any such financial statements which
are unaudited, to normal audit adjustments, none of which will involve a
Material Adverse Effect.
(b) Each Borrower has received consideration which is the reasonable
equivalent value of the obligations and liabilities that such Borrower has
incurred to the Administrative Agent and the Lenders. Each Borrower now has
capital sufficient to carry on its business and transactions and all business
and transactions in which it is about to engage and is now solvent and able to
pay its debts as they mature and each Borrower, as of the Initial Borrowing
Date, owns property having a value, both at fair valuation and at present fair
salable value, greater than the amount required to pay such Borrower's debts;
and no Borrower is entering into the Credit Documents with the intent to
hinder, delay or defraud its creditors.
(c) The Company has delivered to the Lenders prior to the execution and
delivery of this Agreement (i) a copy of the Parent's Form S-1 Registration
Statement as filed (without Exhibits) with the SEC on June 24, 1997 and all
substantive Amendments thereto (other than any pricing Amendment) filed
(without Exhibits) with the SEC prior to the Effective Date, which contains a
general description of the business and affairs of the Company and its
Subsidiaries, and (ii) financial projections prepared by management of the
Company under date of May 29, 1997 for the Company and its Subsidiaries for the
fiscal years 1997-2002 (the "FINANCIAL PROJECTIONS"). The Financial
Projections were prepared on behalf of the Company in good faith after taking
into account the existing and historical levels of business activity of the
Company and its Subsidiaries, historical financial information with respect to
the properties and business acquired in acquisition transactions, known trends,
including general economic trends, and all other information, assumptions and
estimates considered by management of the Company and its Subsidiaries to be
pertinent thereto. The Financial Projections were considered by management of
the Company, as of such date of preparation, to be realistically achievable;
PROVIDED, that no representation or warranty is made as to the impact of future
general economic conditions or as to whether the Company's projected
consolidated results as set forth in the Financial Projections will actually be
realized. No facts are known to the Company at the date hereof which, if
reflected in the Financial Projections, would result in a material adverse
change in the assets, liabilities, results of operations or cash flows
reflected therein.
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7.9. NO MATERIAL ADVERSE CHANGE. Since December 31, 1996, there has been
no change in the condition, business or affairs of the Company and its
Subsidiaries taken as a whole, or their properties and assets considered as an
entirety, except for changes none of which, individually or in the aggregate,
has had or could reasonably be expected to have, a Material Adverse Effect, and
except for changes incident to the acquisitions and divestitures disclosed in
the Registration Statement (and any amendments thereto) delivered to the
Lenders prior to the Effective Date pursuant to section 7.8(c).
7.10. TAX RETURNS AND PAYMENTS. Each of the Company and each of its
Subsidiaries has filed all federal income tax returns and all other material
tax returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, other than
those not yet delinquent and except for those contested in good faith. The
Company and each of its Subsidiaries has established on its books such charges,
accruals and reserves in respect of taxes, assessments, fees and other
governmental charges for all fiscal periods as are required by GAAP. The
Company knows of no proposed assessment for additional federal, foreign or
state taxes for any period, or of any basis therefor, which, individually or in
the aggregate, taking into account such charges, accruals and reserves in
respect thereof as the Company and its Subsidiaries have made, could reasonably
be expected to have a Material Adverse Effect.
7.11. TITLE TO PROPERTIES, ETC. The Company and each of its Subsidiaries
has good and marketable title, in the case of real property, and good title (or
valid leasehold interests, in the case of any leased property), in the case of
all other property, to all of its properties and assets free and clear of Liens
other than Liens permitted by section 9.3. The interests of the Company and
each of its Subsidiaries in the properties reflected in the most recent balance
sheet referred to in section 7.8, taken as a whole, were sufficient, in the
judgment of the Company, as of the date of such balance sheet for purposes of
the ownership and operation of the businesses conducted by the Company and such
Subsidiaries.
7.12. LAWFUL OPERATIONS, ETC. The Company and each of its Subsidiaries (i)
holds all necessary federal, state and local governmental licenses,
registrations, certifications, permits and authorizations necessary to conduct
its business, and (ii) is in full compliance with all material requirements
imposed by law, regulation or rule, whether federal, state or local, which are
applicable to it, its operations, or its properties and assets, including
without limitation, applicable requirements of Environmental Laws, except for
any failure to obtain and maintain in effect, or noncompliance, which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
7.13. ENVIRONMENTAL MATTERS. (a) The Company and each of its Subsidiaries
is in compliance with all Environmental Laws governing its business except to
the extent that any such failure to comply (together with any resulting
penalties, fines or forfeitures) would not reasonably be expected to have a
Material Adverse Effect. All licenses, permits, registrations or approvals
required for the business of the Company and each of its Subsidiaries, as
conducted as of the Initial Borrowing Date, under any Environmental Law have
been secured and the Company and each of its Subsidiaries is in substantial
compliance therewith, except for such licenses, permits, registrations or
approvals the failure to secure or to comply therewith is not reasonably likely
to have a Material Adverse Effect. Neither the Company nor any of its
Subsidiaries has received written notice, or otherwise knows, that it is in any
respect in noncompliance with, breach of or default under any applicable writ,
order, judgment, injunction, or decree to which the Company or such Subsidiary
is a party or which would affect the ability of the Company or such Subsidiary
to operate any real property and no event has occurred and is continuing which,
with the passage of time or the giving of notice or both, would constitute
noncompliance, breach of or default thereunder, except in each such case, such
noncompliance, breaches or defaults as would not reasonably be expected to, in
the aggregate, have a Material Adverse Effect. There are as of the Initial
Borrowing Date no Environmental Claims pending or, to the best knowledge of the
Company, threatened wherein an unfavorable decision, ruling or finding would
reasonably be expected to have a Material Adverse Effect. There are no facts,
circumstances, conditions or occurrences on any Real Property now or at any
time owned, leased or operated by the Company or any of its Subsidiaries or on
any property adjacent to any such Real Property, which are known by the Company
or as to which the Company or any such Subsidiary has received written notice,
that could reasonably be expected (i) to form the basis of an Environmental
Claim against the Company or any of its Subsidiaries or any Real Property of
the Company or any of its Subsidiaries, or (ii) to cause such Real Property to
be subject to any restrictions on the ownership, occupancy, use or
transferability
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of such Real Property under any Environmental Law, except in each such case,
such Environmental Claims or restrictions that individually or in the aggregate
would not reasonably be expected to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i) generated, used,
treated or stored on, or transported to or from, any Real Property of the
Company or any of its Subsidiaries or (ii) released on any such Real Property,
in each case where such occurrence or event is not in compliance with
Environmental Laws and is reasonably likely to have a Material Adverse Effect.
7.14. COMPLIANCE WITH ERISA. Compliance by the Company with the provisions
hereof and Credit Events contemplated hereby will not involve any
prohibited transaction within the meaning of ERISA or section 4975 of the Code.
The Company and each of its Subsidiaries, (i) has fulfilled all obligations
under minimum funding standards of ERISA and the Code with respect to each Plan
that is not a Multiemployer Plan or a Multiple Employer Plan, (ii) has
satisfied all respective contribution obligations in respect of each
Multiemployer Plan and each Multiple Employer Plan, (iii) is in compliance in
all material respects with all other applicable provisions of ERISA and the
Code with respect to each Plan, each Multiemployer Plan and each Multiple
Employer Plan, and (iv) has not incurred any liability under the Title IV of
ERISA to the PBGC with respect to any Plan, any Multiemployer Plan, any
Multiple Employer Plan, or any trust established thereunder. No Plan or trust
created thereunder has been terminated, and there have been no Reportable
Events, with respect to any Plan or trust created thereunder or with respect to
any Multiemployer Plan or Multiple Employer Plan, which termination or
Reportable Event will or could result in the termination of such Plan,
Multiemployer Plan or Multi Employer Plan and give rise to a material liability
of the Company or any ERISA Affiliate in respect thereof. Neither the Company
nor any ERISA Affiliate is at the date hereof, or has been at any time within
the two years preceding the date hereof, an employer required to contribute to
any Multiemployer Plan or Multiple Employer Plan, or a "contributing sponsor"
(as such term is defined in section 4001 of ERISA) in any Multiemployer Plan or
Multiple Employer Plan. Neither the Company nor any ERISA Affiliate has any
contingent liability with respect to any post-retirement "welfare benefit plan"
(as such term is defined in ERISA) except as has been disclosed to the Lenders
in writing.
7.15. INTELLECTUAL PROPERTY, ETC. The Company and each of its Subsidiaries
has obtained or has the right to use all material patents, trademarks,
servicemarks, trade names, copyrights, licenses and other rights with respect
to the foregoing necessary for the present and planned future conduct of its
business, without any known conflict with the rights of others, EXCEPT for such
patents, trademarks, servicemarks, trade names, copyrights, licenses and
rights, the loss of which, and such conflicts, which in any such case
individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
7.16. INVESTMENT COMPANY ACT, ETC. Neither the Company nor any of its
Subsidiaries is subject to regulation with respect to the creation or
incurrence of Indebtedness under the Investment Company Act of 1940, as
amended, the Interstate Commerce Act, as amended, the Federal Power Act, as
amended, the Public Utility Holding Company Act of 1935, as amended, or any
applicable state public utility law.
7.17. BURDENSOME CONTRACTS; LABOR RELATIONS. The Company and its
Subsidiaries (i) are not subject to any burdensome contract, agreement,
corporate restriction, judgment, decree or order, (ii) are not parties to any
labor dispute, (iii) are not subject to any material strikes, slow downs,
workouts or other concerted interruptions of operations by employees of the
Company or any Subsidiary, whether or not relating to any labor contracts, (iv)
are not subject to any significant pending or, to the knowledge of the Company,
threatened, unfair labor practice complaint, before the National Labor
Relations Board, and (v) are not subject to any significant pending or, to the
knowledge of the Company, threatened, grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement, (vi)
are not subject to any significant pending or, to the knowledge of the Company,
threatened, significant strike, labor dispute, slowdown or stoppage, and (vii)
to the knowledge of the Company, no union representation question exists with
respect to the employees of the Company or any of its Subsidiaries, EXCEPT
(with respect to any matter specified in any of the above clauses), for such
matters as, individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect.
7.18. EXISTING INDEBTEDNESS. Annex III sets forth a true and complete
list, as of the date or dates set forth therein, of all Indebtedness of the
Company and each of its Subsidiaries, on a consolidated basis, which (i) has
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an outstanding principal amount of at least $500,000, or may be incurred
pursuant to existing commitments, or (ii) is secured by any Lien on any
property of the Company or any Subsidiary, and which will be outstanding on the
Initial Borrowing Date after giving effect to the initial Borrowing hereunder,
other than the Indebtedness created under the Credit Documents (all such
Indebtedness, whether or not in a principal amount meeting such threshold and
required to be so listed on Annex III, herein the "EXISTING INDEBTEDNESS"). The
Company has provided to the Administrative Agent prior to the date of execution
hereof true and complete copies (or summary descriptions) of all agreements and
instruments governing the Indebtedness listed on Annex III (the "EXISTING
INDEBTEDNESS AGREEMENTS").
7.19. TRUE AND COMPLETE DISCLOSURE. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of the Company
or any of its Subsidiaries in writing to the Administrative Agent or any Lender
for purposes of or in connection with this Agreement or any transaction
contemplated herein, other than the Financial Projections (as to which
representations are made only as provided in section 7.8), is, and all other
such factual information (taken as a whole) hereafter furnished by or on behalf
of such person in writing to any Lender will be, true and accurate in all
material respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any material fact necessary
to make such information (taken as a whole) not misleading at such time in
light of the circumstances under which such information was provided, except
that any such future information consisting of financial projections prepared
by management of the Company is only represented herein as being based on good
faith estimates and assumptions believed by such persons to be reasonable at
the time made, it being recognized by the Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ materially from
the projected results. As of the Effective Date, there is no fact known to the
Company or any of its Subsidiaries which has, or could reasonably be expected
to have, a Material Adverse Effect which has not theretofore been disclosed to
the Lenders.
SECTION 8. AFFIRMATIVE COVENANTS.
The Company hereby covenants and agrees that so long as this Agreement is
in effect and until such time as the Total Commitment has been terminated, no
Notes are outstanding and the Loans, together with interest, Fees and all other
Obligations hereunder, have been paid in full:
8.1. REPORTING REQUIREMENTS. The Company will furnish to each Lender and
the Administrative Agent:
(A) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any
event within 90 days after the close of each fiscal year of the Company,
the consolidated balance sheets of the Company and its consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, of stockholder's equity and of cash
flows for such fiscal year, in each case setting forth comparative figures
for the preceding fiscal year, all in reasonable detail and accompanied by
the opinion with respect to such consolidated financial statements of
independent public accountants of recognized national standing selected by
the Company, which opinion shall be unqualified and shall (i) state that
such accountants audited such consolidated financial statements in
accordance with generally accepted auditing standards, that such
accountants believe that such audit provides a reasonable basis for their
opinion, and that in their opinion such consolidated financial statements
present fairly, in all material respects, the consolidated financial
position of the Company and its consolidated subsidiaries as at the end of
such fiscal year and the consolidated results of their operations and cash
flows for such fiscal year in conformity with generally accepted
accounting principles, or (ii) contain such statements as are customarily
included in unqualified reports of independent accountants in conformity
with the recommendations and requirements of the American Institute of
Certified Public Accountants (or any successor organization).
(B) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year of the Company, the unaudited
condensed consolidated balance sheets of the Company and its consolidated
Subsidiaries as
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at the end of such quarterly period and the related unaudited
condensed consolidated statements of income and of cash flows for such
quarterly period, and setting forth, in the case of such unaudited
consolidated statements of income and of cash flows, comparative figures
for the related periods in the prior fiscal year, and which consolidated
financial statements shall be certified on behalf of the Company by the
Chief Financial Officer or other Authorized Officer of the Company,
subject to changes resulting from normal year-end audit adjustments.
(C) OFFICER'S COMPLIANCE CERTIFICATES. At the time of the delivery
of the financial statements provided for in sections 8.1(a) and (b), a
certificate on behalf of the Company of the Chief Financial Officer or
other Authorized Officer of the Company to the effect that, to the best
knowledge of the Company, no Default or Event of Default exists or, if
any Default or Event of Default does exist, specifying the nature and
extent thereof, which certificate shall set forth the calculations
required to establish compliance with the provisions of sections 9.7
through 9.10, inclusive, of this Agreement, including an identification
of the amounts of any financial items of persons or business units
acquired by the Company for any periods prior to the date of acquisition
which are used in making such calculations.
(D) ADDITIONAL QUARTERLY FINANCIAL INFORMATION. As soon as
available and in any event within 45 days after the close of each of the
first three quarterly accounting periods in each fiscal year of the
Company, or within 90 days after the close of the final quarterly
accounting period in each fiscal year of the Company, as the case may be,
such unaudited consolidated profit and loss statements as the Company
produces for itself for each division or line of business of the Company
and its consolidated Subsidiaries for such quarterly period.
(E) BUDGET. Not later than 90 days after the commencement of any
fiscal year of the Company and its Subsidiaries, a consolidated budget in
reasonable detail for each of the four fiscal quarters of such fiscal
year.
(F) NOTICE OF DEFAULT, LITIGATION. Promptly, and in any event
within five Business Days after the Company or any of its Subsidiaries
obtains knowledge thereof, notice of
(i) the occurrence of any event which constitutes a Default
or Event of Default, which notice shall specify the nature thereof,
the period of existence thereof and what action the Company
proposes to take with respect thereto, or
(ii) any litigation or governmental or regulatory proceeding
pending against the Company or any of its Subsidiaries which is
likely to have a Material Adverse Effect or a material adverse
effect on the ability of the Company to perform its obligations
hereunder or under any other Credit Document.
(G) ERISA. Promptly, and in any event within 10 Business Days after
the Company, any Subsidiary of the Company or any ERISA Affiliate knows
of the occurrence of any of the following, the Company will deliver to
each of the Lenders a certificate on behalf of the Company of an
Authorized Officer of the Company setting forth the full details as to
such occurrence and the action, if any, that the Company, such Subsidiary
or such ERISA Affiliate is required or proposes to take, together with
any notices required or proposed to be given to or filed with or by the
Company, the Subsidiary, the ERISA Affiliate, the PBGC, a Plan
participant or the Plan administrator with respect thereto:
(i) that a Reportable Event has occurred with respect to any
Plan;
(ii) the institution of any steps by the Company, any ERISA
Affiliate, the PBGC or any other person to terminate any Plan;
(iii) the institution of any steps by the Company or any ERISA
Affiliate to withdraw from any Plan;
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(iv) the institution of any steps by the Company or any
Subsidiary to withdraw from any Multiemployer Plan or Multiple
Employer Plan, if such withdrawal could result in withdrawal
liability (as described in Part 1 of Subtitle E of Title IV of
ERISA) in excess of $1,000,000;
(v) a non-exempt "prohibited transaction" within the meaning
of section 406 of ERISA in connection with any Plan;
(vi) that a Plan has an Unfunded Current Liability exceeding
$1,000,000;
(vii) any material increase in the contingent liability of the
Company or any Subsidiary with respect to any post-retirement
welfare liability; or
(viii) the taking of any action by, or the threatening of the
taking of any action by, the Internal Revenue Service, the
Department of Labor or the PBGC with respect to any of the
foregoing.
(H) ENVIRONMENTAL MATTERS. Promptly upon, and in any event within
10 Business Days after, an officer of the Company obtains actual
knowledge thereof, notice of any of the following environmental matters
which involves any reasonable likelihood (in the Company's reasonable
judgment) of resulting in a Material Adverse Effect: (i) any pending or
threatened (in writing) Environmental Claim against the Company or any of
its Subsidiaries or any Real Property owned or operated by the Company or
any of its Subsidiaries; (ii) any condition or occurrence on or arising
from any Real Property owned or operated by the Company or any of its
Subsidiaries that (A) results in noncompliance by the Company or any of
its Subsidiaries with any applicable Environmental Law or (B) would
reasonably be expected to form the basis of an Environmental Claim
against the Company or any of its Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned, leased or
operated by the Company or any of its Subsidiaries that could reasonably
be expected to cause such Real Property to be subject to any restrictions
on the ownership, occupancy, use or transferability by the Company or any
of its Subsidiaries of such Real Property under any Environmental Law;
and (iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real Property
owned, leased or operated by the Company or any of its Subsidiaries as
required by any Environmental Law or any governmental or other
administrative agency. All such notices shall describe in reasonable
detail the nature of the Environmental Claim and the Company's or such
Subsidiary's response thereto.
(I) SEC REPORTS AND REGISTRATION STATEMENTS. As promptly as
practicable following transmission thereof or other filing with the SEC,
copies of all registration statements (other than the exhibits thereto
and any registration statement on Form S-8 or its equivalent) and annual,
quarterly or current reports that the Parent, the Company or any of its
Subsidiaries files with the SEC.
(J) OTHER INFORMATION. With reasonable promptness, such other
information or documents (financial or otherwise) relating to the Company
or any of its Subsidiaries as any Lender may reasonably request from time
to time.
8.2. INSPECTIONS. The Company will permit the Administrative Agent and
each Lender or any other holder of any Note, upon its reasonable request and
at its expense, at any reasonable time and from time to time upon reasonable
notice, to visit and inspect its properties and the properties of its
Subsidiaries and to examine and make copies of, and abstracts from its records
and books of account and the records and books of account of its Subsidiaries
and to discuss its affairs, finances and accounts with its Chief Executive
Officer, President, Chief Financial Officer or Treasurer, and any other
accounting, financial or operating officer identified by the Administrative
Agent or any such Lender or holder by position or function, and with its
independent accountants (the Company by this sentence authorizes such officers
and accountants to discuss the same, at the expense of and upon prior notice to
the Company, providing the Company with an opportunity to be present at any
such discussion), all at such reasonable times and as often as may be
reasonably requested.
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8.3. INSURANCE. The Company will, and will cause each of its Subsidiaries
to, (i) maintain insurance coverage by such insurers and in such forms and
amounts and against such risks as are generally consistent with the insurance
coverage maintained by the Company and its Subsidiaries at the date hereof, and
(ii) forthwith upon any Lender's written request, furnish to such Lender such
information about such insurance as such Lender may from time to time
reasonably request, which information shall be prepared in form and detail
satisfactory to such Lender and certified by an Authorized Officer of the
Company.
8.4. PAYMENT OF TAXES AND CLAIMS. The Company will pay and discharge, and
will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien or charge upon any properties of the Company or any of its
Subsidiaries; PROVIDED that neither the Company nor any of its Subsidiaries
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP; and PROVIDED,
FURTHER, that the Company will not be considered to be in default of any of the
provisions of this sentence if the Company or any Subsidiary fails to pay any
such amount which, individually or in the aggregate, is immaterial to the
Company and its Subsidiaries considered as an entirety.
8.5. CORPORATE FRANCHISES. The Company will do, and will cause each of its
Subsidiaries to do, or cause to be done, all things necessary to preserve
and keep in full force and effect its corporate or other organizational
existence, rights, authority and franchises, PROVIDED that nothing in this
section 8.5 shall be deemed to prohibit (i) any transaction permitted by
section 9.2; (ii) the termination of existence of any Subsidiary if (A) the
Company determines that such termination is in its best interest and (B) such
termination is not adverse in any material respect to the Lenders; or (iii) the
loss of any rights, authorities or franchises if the loss thereof, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
8.6. GOOD REPAIR. The Company will, and will cause each of its
Subsidiaries to, ensure that its material properties and equipment used or
useful in its business in whomsoever's possession they may be, are kept in good
repair, working order and condition, normal wear and tear excepted, and that
from time to time there are made in such properties and equipment all needful
and proper repairs, renewals, replacements, extensions, additions, betterments
and improvements, thereto, to the extent and in the manner customary for
companies in similar businesses, but subject to such exceptions as do not in
the aggregate result in a Material Adverse Effect.
8.7. COMPLIANCE WITH STATUTES, ETC. The Company will, and will cause each
of its Subsidiaries to, comply, in all material respects, with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed
by, all governmental bodies, domestic or foreign, in respect of the conduct of
its business and the ownership of its property, other than those (i) being
contested in good faith by appropriate proceedings, as to which adequate
reserves are established to the extent required under GAAP, and (ii) the
noncompliance with which would not have, and which would not be reasonably
expected to have, a Material Adverse Effect or a material adverse effect on the
ability of the Company to perform its obligations under any Credit Document.
8.8. COMPLIANCE WITH ENVIRONMENTAL LAWS. Without limitation of the
covenants contained in section 8.7:
(a) The Company will, and will cause each of its Subsidiaries to,
(i) comply in all material respects, with all Environmental Laws
applicable to the ownership, lease or use of all Real Property now or
hereafter owned, leased or operated by the Company or any of its
Subsidiaries, and promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, except for such
noncompliance as would not have, and which would not be reasonably
expected to have, a Material Adverse Effect or a material adverse effect
on the ability of the Company to perform its obligations under any Credit
Document; and (ii) keep or cause to be kept all such Real Property free
and clear of any Liens imposed pursuant to such Environmental Laws which
are not permitted under section 9.3.
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(b) Neither the Company nor any of its Subsidiaries will generate,
use, treat, store, release or dispose of, or permit the generation, use,
treatment, storage, release or disposal of, Hazardous Materials on any
Real Property now or hereafter owned, leased or operated by the Company
or any of its Subsidiaries or transport or permit the transportation of
Hazardous Materials to or from any such Real Property other than in
compliance with applicable Environmental Laws and in the ordinary course
of business, except for such noncompliance as would not have, and which
would not be reasonably expected to have, a Material Adverse Effect or a
material adverse effect on the ability of the Company to perform its
obligations under any Credit Document.
(c) If required to do so under any applicable order of any
governmental agency, the Company will undertake, and cause each of its
Subsidiaries to undertake, any clean up, removal, remedial or other
action necessary to remove and clean up any Hazardous Materials from any
Real Property owned, leased or operated by the Company or any of its
Subsidiaries in accordance with, in all material respects, the
requirements of all applicable Environmental Laws and in accordance with,
in all material respects, such orders of all governmental authorities,
except (i) to the extent that the Company or such Subsidiary is
contesting such order in good faith and by appropriate proceedings and
for which adequate reserves have been established to the extent required
by GAAP, or (ii) for such noncompliance as would not have, and which
would not be reasonably expected to have, a Material Adverse Effect or a
material adverse effect on the ability of the Company to perform its
obligations under any Credit Document.
8.9. FISCAL YEARS, FISCAL QUARTERS. The Company will, for consolidated
financial reporting purposes, continue to use December 31 as the end of its
fiscal year and March 31, June 30, September 30 and December 31 as the
end of its fiscal quarters. If the Company shall change any of its
Subsidiaries' fiscal years or fiscal quarters (other than the fiscal year or
fiscal quarters of a person which becomes a Subsidiary, made at the time such
person becomes a Subsidiary, to conform to the Company's fiscal year and fiscal
quarters or to conform to the fiscal year or fiscal quarters which the Company
generally utilizes for its Subsidiaries), the Company will promptly, and in any
event within 30 days following any such change, deliver a notice to the
Administrative Agent and the Lenders describing such change and any material
accounting entries made in connection therewith and stating whether such change
will have any impact upon any financial computations to be made hereunder, and
if any such impact is foreseen, describing in reasonable detail the nature and
extent of such impact. If the Required Lenders determine that any such change
will have any impact upon any financial computations to be made hereunder which
is adverse to the Lenders, the Company will, if so requested by the
Administrative Agent, enter into an amendment to this Agreement, in form and
substance satisfactory to the Administrative Agent and the Required Lenders,
modifying any of the financial covenants or related provisions hereof in such
manner as the Required Lenders determine is necessary to eliminate such adverse
effect.
8.10. CERTAIN SUBSIDIARIES TO JOIN IN SUBSIDIARY GUARANTY. (a) In the
event that at any time after the Initial Borrowing Date
(x) the Company has any Subsidiary (other than a Foreign Subsidiary
as to which section 8.10(b) applies) which is not a party to the
Subsidiary Guaranty, or
(y) an Event of Default shall have occurred and be continuing and
the Company has any Subsidiary which is not a party to the Subsidiary
Guaranty,
the Company will notify the Administrative Agent in writing of such event,
identifying the Subsidiary in question and referring specifically to the rights
of the Administrative Agent and the Lenders under this section. The Company
will, within 30 days following request therefor from the Administrative Agent
(who may give such request on its own initiative or upon request by the
Required Lenders), cause such Subsidiary to deliver to the Administrative
Agent, in sufficient quantities for the Lenders, (i) a joinder supplement,
satisfactory in form and substance to the Administrative Agent and the Required
Lenders, duly executed by such Subsidiary, pursuant to which such Subsidiary
joins in the Subsidiary Guaranty as a guarantor thereunder, and (ii) if such
Subsidiary is a corporation, resolutions of the Board of Directors of such
Subsidiary, certified by the Secretary or an Assistant Secretary of such
Subsidiary as duly adopted and in full force and effect, authorizing the
execution and delivery of such joinder
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supplement, or if such Subsidiary is not a corporation, such other evidence of
the authority of such Subsidiary to execute such joinder supplement as the
Administrative Agent may reasonably request.
(b) Notwithstanding the foregoing, the Company shall not, unless an Event
of Default shall have occurred and be continuing, be required to cause a
Foreign Subsidiary to join in the Subsidiary Guaranty if (i) to do so would
subject the Company to liability for additional United States income taxes by
virtue of section 956 of the Code in an amount the Company considers material,
and (ii) the Company provides the Administrative Agent with documentation,
including computations prepared by the Company's internal tax officer, its
independent accountants or tax counsel, acceptable to the Required Lenders, in
support thereof.
(c) Within 90 days following the Initial Borrowing Date, the Company will
cause the principal Subsidiaries of Chore-Time Netherlands to execute and
deliver to the Administrative Agent the Foreign Subsidiary Guaranty (as
modified, amended or supplemented from time to time in accordance with the
terms thereof and hereof, the "FOREIGN SUBSIDIARY GUARANTY"), substantially in
the form attached hereto as Exhibit C-2.
8.11. CORPORATE SEPARATENESS. The Company will take, and will cause each
of its Subsidiaries to take, all such action as is necessary to keep the
operations of the Company and its Subsidiaries separate and apart from those of
each Subsidiary which has outstanding Indebtedness, including, without
limitation, ensuring that all customary formalities regarding corporate
existence, including holding regular board of directors' meetings and
maintenance of corporate records, are followed. All financial statements of the
Company and its Subsidiaries provided to creditors will clearly evidence the
corporate separateness of the Company and its other Subsidiaries from each
Subsidiary which has Indebtedness outstanding. Finally, neither the Company nor
any of its other Subsidiaries will take any action, or conduct its affairs in a
manner which is likely to result in the corporate existence of a Subsidiary
which has Indebtedness outstanding, on the one hand, and the Company and its
other Subsidiaries, on the other hand, being ignored, or in the assets and
liabilities of the Company or any of its other Subsidiaries being substantively
consolidated with those of a Subsidiary which has Indebtedness outstanding in a
bankruptcy, reorganization or other insolvency proceeding. No action or
indemnity, or provision of support in the form of a letter of credit, expressly
permitted by this Agreement will breach this covenant.
8.12. HEDGE AGREEMENTS, ETC. If the Company or any Subsidiary determines to
enter into any Hedge Agreement, the Company will, and will cause each of its
Subsidiaries to, enter into such Hedge Agreement in order to provide protection
to the Company or any such Subsidiary from fluctuations and other changes in
interest rates and currency exchange rates, as and to the extent considered
reasonably necessary by the Company, but without exposing the Company or its
Subsidiaries to predominantly speculative risks unrelated to the amount of
Indebtedness or assets intended to be subject to coverage on a notional basis
under all such Hedge Agreements.
8.13. ADDITION AND DELETION OF FOREIGN BORROWING SUBSIDIARIES. Whenever
the Company determines that it desires for a Foreign Subsidiary which is not
already a Foreign Borrowing Subsidiary to become a party hereto as a Foreign
Borrowing Subsidiary, it will cause such Subsidiary to deliver to the
Administrative Agent an Election to Participate for such Subsidiary and the
other documents contemplated by section 6.2. If at any time the Company
determines that a Subsidiary should no longer be a Foreign Borrowing
Subsidiary, it may, if such Foreign Borrowing Subsidiary has no outstanding
Loans or other Obligations hereunder, cause such Foreign Borrowing Subsidiary
to deliver to the Administrative Agent an Election to Terminate with respect to
such Foreign Borrowing Subsidiary.
8.14. SENIOR DEBT. The Company will at all times ensure that (a) the
claims of the Lenders in respect of the Obligations of the Company will not be
subordinate to, and will in all respects at least rank PARI PASSU with, the
claims of every other senior unsecured creditor of the Company, and (b) any
Indebtedness subordinated in any manner to the claims of any senior unsecured
creditor of the Company will be subordinated in like manner to such claims of
the Lenders.
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SECTION 9. NEGATIVE COVENANTS.
The Company hereby covenants and agrees that on the Effective Date and
thereafter for so long as this Agreement is in effect and until such time as
the Total Commitment has been terminated, no Notes remain outstanding and the
Loans, together with interest, Fees and all other Obligations incurred
hereunder are paid in full:
9.1. CHANGES IN BUSINESS. Neither the Company nor any of its Subsidiaries
will engage in any business if, as a result, the general nature of the
business, taken on a consolidated basis, which would then be engaged in by the
Company and its Subsidiaries, would be substantially changed from the general
nature of the business engaged in by the Company and its Subsidiaries on the
date hereof.
9.2. CONSOLIDATION, MERGER OR SALE OF ASSETS, ETC. The Company will not,
and will not permit any Subsidiary to, wind up, liquidate or dissolve its
affairs, or enter into any transaction of merger or consolidation or sell or
otherwise dispose of any of its property or assets (but excluding any sale or
disposition of inventory, or obsolete or excess furniture, fixtures, equipment
or other property in the ordinary course of business), or purchase, lease or
otherwise acquire (in one transaction or a series of related transactions) all
or any part of the property or assets of any person (excluding any purchases,
leases or other acquisitions of property or assets in, and for use in, the
ordinary course of business) or agree to do any of the foregoing at any future
time, EXCEPT that the following shall be permitted:
(A) CAPITAL EXPENDITURES: Consolidated Capital Expenditures;
(B) PERMITTED INVESTMENTS: the investments permitted pursuant to
section 9.5;
(C) CERTAIN INTERCOMPANY MERGERS, ETC.: if no Default or Event of
Default shall have occurred and be continuing or would result therefrom,
(i) the merger, consolidation or amalgamation of any Wholly-Owned
Subsidiary with or into the Company or another Wholly-Owned Subsidiary,
so long as in any merger, consolidation or amalgamation involving any
Borrower such Borrower is the surviving or continuing or resulting
corporation, or the liquidation or dissolution of any Subsidiary which is
not a Borrower, or (ii) the transfer or other disposition of any property
by the Company to any Wholly-Owned Subsidiary or by any Wholly-Owned
Subsidiary to the Company or any other Wholly-Owned Subsidiary of the
Company;
(D) PERMITTED ACQUISITIONS: if no Default or Event of Default shall
have occurred and be continuing or would result therefrom, the Company or
any Subsidiary may make Permitted Acquisitions, PROVIDED that at least
five Business Days prior to the date of any such Permitted Acquisition
which involves consideration (including the amount of any assumed
Indebtedness and (without duplication) any outstanding Indebtedness of any
person which becomes a Subsidiary as a result of such Permitted
Acquisition) of $5,000,000 or more, the Company shall have delivered to
the Administrative Agent an officer's certificate executed on behalf of
the Company by an Authorized Officer of the Company, which certificate
shall (A) contain the date such Permitted Acquisition is scheduled to be
consummated, (B) contain the estimated purchase price of such Permitted
Acquisition, (C) contain a description of the property and/or assets
acquired in connection with such Permitted Acquisition, (D) demonstrate
that at the time of making any such Permitted Acquisition the covenants
contained in sections 9.7 through 9.13 shall be complied with on a PRO
FORMA basis as if the properties and/or assets so acquired had been owned
by the Company, and the Indebtedness assumed and/or incurred to acquire
and/or finance same has been outstanding, for the 12 month period
immediately preceding such acquisition (without giving effect to any
credit for unobtained or unrealized gains or any adjustments to overhead
in connection with any such Permitted Acquisition), and (E) if requested
by the Administrative Agent, attach thereto a true and correct copy of the
then proposed purchase agreement, merger agreement or similar agreement,
partnership agreement and/or other contract entered into in connection
with such Permitted Acquisition;
(E) PERMITTED DISPOSITIONS: if no Default or Event of Default shall
have occurred and be continuing or would result therefrom, the Company or
any of its Subsidiaries may (i) sell any property, land
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or building (including any related receivables or other intangible
assets) to any person which is not a Subsidiary of the Company, or (ii)
sell the entire capital stock (or other equity interests) and
Indebtedness of any Subsidiary owned by the Company or any other
Subsidiary to any person which is not a Subsidiary of the Company, or
(iii) permit any Subsidiary to be merged or consolidated with a person
which is not an Affiliate of the Company, or (iv) consummate any other
Asset Sale with a person who is not a Subsidiary of the Company; PROVIDED
that (A) the consideration for such transaction represents fair value (as
determined by management of the Company), (B) on a cumulative aggregate
basis, not more than $5,000,000 of the consideration receivable for all
such transactions completed after the Effective Date consists of non-cash
consideration, (C) no such transaction may be completed if the cumulative
aggregate consideration for all such transactions completed after the
Effective Date would be in excess of $10,000,000, and (D) in the case of
any such transaction involving consideration in excess of $2,000,000, at
least five Business Days prior to the date of completion of such
transaction the Company shall have delivered to the Administrative Agent
an officer's certificate executed on behalf of the Company by an
Authorized Officer of the Company, which certificate shall contain a
description of the proposed transaction, the date such transaction is
scheduled to be consummated, the estimated purchase price or other
consideration for such transaction, financial information pertaining to
compliance with the preceding clause (A), and which shall (if requested
by the Administrative Agent) include a certified copy of the draft or
definitive documentation pertaining thereto; and PROVIDED, FURTHER, that
sales of obsolete or worn out equipment in the ordinary course of
business shall be excluded from the operation and computations under this
section 9.2(e);
(F) CONTRIBUTIONS TO JOINT VENTURES, ETC.: if no Default or Event of
Default shall have occurred and be continuing or would result therefrom,
the Company or any of its Subsidiaries may contribute assets to joint
ventures and other persons in accordance with section 9.5(q);
(G) SALES OF RECEIVABLES: if no Default or Event of Default shall
have occurred and be continuing or would result therefrom, the Company or
any of its Subsidiaries may continue to sell from time to time to any
financial institution or institutions (including factors) receivables due
from foreign-based account debtors, without any requirement to apply the
proceeds of any such sales to the payment or prepayment of outstanding
Loans or to reduce any Commitments; PROVIDED that (i) such sales do not
involve more than the U.S. dollar equivalent of $10,000,000 in aggregate
receivables outstanding from time to time, and (ii) as to any receivables
so sold, the recourse, if any, of such financial institution or
institutions (or factors) for collection and similar losses incurred in
connection with realization upon such sold receivables is contractually
limited to not more than 10% of the aggregate amount of such sold
receivables; and
(H) LEASES: the Company or any of its Subsidiaries may enter into
leases of property or assets not constituting Permitted Acquisitions in
the ordinary course of business not otherwise in violation of this
Agreement.
9.3. LIENS. The Company will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Company or any such Subsidiary whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable or notes with or
without recourse to the Company or any of its Subsidiaries, other than for
purposes of collection in the ordinary course of business) or assign any right
to receive income, or file or permit the filing of any financing statement
under the UCC or any other similar notice of Lien under any similar recording
or notice statute, EXCEPT that the foregoing restrictions shall not apply to:
(a) Liens for taxes not yet delinquent or Liens for taxes being
contested in good faith and by appropriate proceedings for which adequate
reserves have been established in accordance with GAAP;
(b) Liens in respect of property or assets imposed by law which were
incurred in the ordinary course of business, such as carriers',
warehousemen's, materialmen's and mechanics' Liens and other similar
Liens arising in the ordinary course of business, which do not in the
aggregate materially detract
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from the value of such property or assets or materially impair the
use thereof in the operation of the business of the Company or any
Subsidiary;
(c) Liens created by this Agreement or the other Credit Documents;
(d) Liens (i) in existence on the Initial Borrowing Date which are
listed, and the Indebtedness secured thereby and the property subject
thereto on the Initial Borrowing Date described, in Annex IV, or (ii)
arising out of the refinancing, extension, renewal or refunding of any
Indebtedness secured by any such Liens, PROVIDED that the principal
amount of such Indebtedness is not increased and such Indebtedness is not
secured by any additional assets;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under section 10.1(g);
(f) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security; and mechanic's Liens, carrier's Liens, and other Liens to
secure the performance of tenders, statutory obligations, contract bids,
government contracts, performance and return-of-money bonds and other
similar obligations, incurred in the ordinary course of business
(exclusive of obligations in respect of the payment for borrowed money),
whether pursuant to statutory requirements, common law or consensual
arrangements;
(g) Leases or subleases granted to others not interfering in any
material respect with the business of the Company or any of its
Subsidiaries and any interest or title of a lessor under any lease not in
violation of this Agreement;
(h) easements, rights-of-way, zoning or deed restrictions, minor
defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary
conduct of the business of the Company or any of its Subsidiaries
considered as an entirety;
(i) Liens arising from financing statements regarding property
subject to leases not in violation of the requirements of this Agreement,
PROVIDED that such Liens are only in respect of the property subject to,
and secure only, the respective lease (and any other lease with the same
or an affiliated lessor); and
(j) Liens which
(i) are placed upon equipment or machinery used in the
ordinary course of business of the Company or any Subsidiary
at the time of (or within 180 days after) the acquisition thereof by
the Company or any such Subsidiary to secure Indebtedness incurred
to pay or finance all or a portion of the purchase price thereof,
PROVIDED that the Lien encumbering the equipment or machinery so
acquired does not encumber any other asset of the Company or any
such Subsidiary; or
(ii) are existing on property or other assets at the time
acquired by the Company or any Subsidiary or on assets of a person
at the time such person first becomes a Subsidiary of the Company;
PROVIDED that (A) any such Liens were not created at the time of or
in contemplation of the acquisition of such assets or person by the
Company or any of its Subsidiaries; (B) in the case of any such
acquisition of a person, any such Lien attaches only to the
property and assets of such person; and (C) in the case of any such
acquisition of property or assets by the Company or any Subsidiary,
any such Lien attaches only to the property and assets so acquired
and not to any other property or assets of the Company or any
Subsidiary;
PROVIDED that (1) the Indebtedness secured by any such Lien does not
exceed 100% of the fair market value of the property and assets to which
such Lien attaches, determined at the time of the acquisition of such
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property or asset or the time at which such person becomes a Subsidiary
of the Company (except in the circumstances described in clause (ii)
above to the extent such Liens constituted customary purchase money Liens
at the time of incurrence and were entered into in the ordinary course of
business), and (2) the Indebtedness secured thereby is permitted by
section 9.4(c); and
(k) Liens and security interests on receivables (and any related
collateral, insurance or letter of credit securing or supporting the
account debtors' obligations) created in connection with the sale thereof
in accordance with section 9.2(g).
9.4. INDEBTEDNESS. The Company will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness of the Company or any of its Subsidiaries, EXCEPT:
(a) Indebtedness incurred under this Agreement and the other Credit
Documents;
(b) Indebtedness of the Company or any Subsidiary in respect of
Capital Leases; PROVIDED that (i) the aggregate Capitalized Lease
Obligations of the Company and its Subsidiaries, plus the aggregate
outstanding principal amount of Indebtedness permitted under clause (c)
below, shall not exceed $5,000,000 in the aggregate at any time
outstanding, and (ii) at the time of any incurrence thereof after the
date hereof, and after giving effect thereto, no Event of Default shall
have occurred and be continuing or would result therefrom;
(c) Indebtedness of the Company or any Subsidiary subject to Liens
permitted by section 9.3(j), including and any guaranty by the Company of
any such Indebtedness; PROVIDED that (i) the aggregate principal amount
of such Indebtedness shall not exceed $5,000,000 in the aggregate at any
time outstanding, and (ii) at the time of any incurrence thereof after
the date hereof, and after giving effect thereto, no Event of Default
shall have occurred and be continuing or would result therefrom;
(d) Existing Indebtedness (including Indebtedness incurred pursuant
to commitments described on Annex III), to the extent not otherwise
permitted pursuant to the foregoing clauses; and any refinancing,
extension, renewal or refunding of any such Existing Indebtedness not
involving an increase in the principal amount thereof or a reduction of
more than 10% in the remaining weighted average life to maturity thereof
(computed in accordance with standard financial practice); PROVIDED that
(i) in the case of any Existing Indebtedness consisting of letters of
credit other than Letters of Credit deemed issued hereunder pursuant to
section 3.1(d), no extension, renewal or replacement thereof shall be
permitted except by virtue of the issuance of Letters of Credit
hereunder, and (ii) the Existing Indebtedness identified in Annex III as
being intended to be refinanced by Loans incurred hereunder may not be
otherwise refinanced;
(e) Indebtedness of the Company or any Subsidiary under Hedge
Agreements;
(f) Indebtedness of the Company to any of its Subsidiaries, and
Indebtedness of any of the Company's Subsidiaries to the Company
or to another Subsidiary of the Company, in each case to the extent
permitted under section 9.5;
(g) Indebtedness representing recourse obligations incurred to
effect the sale of receivables in accordance with section 9.2(g);
(h) Guaranty Obligations permitted under section 9.5; and
(i) additional unsecured Indebtedness of the Company not in excess
of $15,000,000 aggregate principal amount outstanding at any time, to the
extent not otherwise permitted pursuant to the foregoing clauses,
provided that at the time of incurrence thereof, and after giving effect
thereto, (i) the Company will be in compliance with section 9.7, and (ii)
no Default or Event of Default shall have occurred and be continuing or
would result therefrom.
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9.5. ADVANCES, INVESTMENTS, LOANS AND GUARANTY OBLIGATIONS. The Company
will not, and will not permit any of its Subsidiaries to, (1) lend money or
credit or make advances to any person, (2) purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, or other investment in, any person, (3) make investments in
any Subsidiary, (4) make investments in any joint venture or partnership, or
(5) be or become obligated under any Guaranty Obligations (other than those
created in favor of the Lenders pursuant to the Credit Documents), EXCEPT:
(a) the Company or any of its Subsidiaries may invest in cash and
Cash Equivalents;
(b) any endorsement of a check or other medium of payment for
deposit or collection, or any similar transaction in the normal course of
business;
(c) the Company and its Subsidiaries may acquire and hold
receivables owing to them in the ordinary course of business and payable
or dischargeable in accordance with customary trade terms;
(d) investments acquired by the Company or any of its Subsidiaries
(i) in exchange for any other investment held by the Company or any such
Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other
investment, or (ii) as a result of a foreclosure by the Company or any of
its Subsidiaries with respect to any secured investment or other transfer
of title with respect to any secured investment in default;
(e) loans, advances and investments acquired by the Company or any
of its Subsidiaries in Permitted Acquisitions or other transactions
permitted by section 9.2;
(f) loans and advances to employees for business-related travel
expenses, moving expenses, costs of replacement homes and other similar
expenses, in each case incurred in the ordinary course of business, not
in excess of $1,000,000 in the aggregate outstanding at any time, shall
be permitted;
(g) investments in the capital of any Wholly-Owned Subsidiary which
is (i) a Subsidiary Guarantor, and (ii) not a Foreign Subsidiary;
(h) to the extent not permitted by the foregoing clauses, existing
investments in any Subsidiaries (and any increases thereof attributable
to increases in retained earnings);
(i) to the extent not permitted by the foregoing clauses, the
existing loans, advances, investments and guarantees described on Annex V
hereto;
(j) any unsecured guaranty by the Company of any Indebtedness of a
Subsidiary permitted by section 9.4, and any guaranty by any Subsidiary
described in section 9.4;
(k) investments of the Company and its Subsidiaries in Hedge
Agreements;
(l) loans and advances by any Subsidiary of the Company to the
Company, PROVIDED that the Indebtedness represented thereby constitutes
Subordinated Indebtedness;
(m) loans and advances by the Company or by any Subsidiary of the
Company to, or other investments in, any Subsidiary of the Company which
is (i) a Subsidiary Guarantor, (ii) a Wholly-Owned Subsidiary, and (iii)
not a Foreign Subsidiary;
(n) loans, advances and investments by the Company or any Subsidiary
made to or in any Foreign Subsidiary after June 30, 1997 (exclusive of
any investments in a Foreign Subsidiary made in connection with a
Permitted Acquisition of such Foreign Subsidiary), PROVIDED that the
cumulative aggregate amount thereof does not exceed $10,000,000;
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(o) loans and advances by any Subsidiary of the Company which is not
a Subsidiary Guarantor to, or other investments by any such Subsidiary
in, any other Subsidiary of the Company which is a Wholly-Owned
Subsidiary;
(p) Guaranty Obligations, not otherwise permitted by the foregoing
clauses, of (i) the Company or any Subsidiary in respect of leases of the
Company or any Subsidiary the entry into which is not prohibited by this
Agreement, (ii) the Company or any Subsidiary in respect of any other
person (other than in respect of (x) Indebtedness for borrowed money or
represented by bonds, notes, debentures or similar securities, or (y)
Indebtedness constituting Capital Leases) arising as a matter of
applicable law because the Company or such Subsidiary is or is deemed to
be a general partner of such other person, or (iii) the Company or any
Subsidiary in respect of any other person (other than in respect of (x)
Indebtedness for borrowed money or represented by bonds, notes,
debentures or similar securities, or (y) Indebtedness constituting
Capital Leases) arising in the ordinary course of business;
(q) any other loans, advances, investments (whether in the form of
cash or contribution of property, and if in the form of a contribution of
property, such property shall be valued for purposes of this clause (q)
at the fair value thereof as reasonably determined by the Company) and
Guaranty Obligations, including, without limitation, in or to or for the
benefit of, Subsidiaries, joint ventures, or other persons, not otherwise
permitted by the foregoing clauses, made after March 31, 1997 (such
loans, advances and investments, collectively, "BASKET INVESTMENTS", and
such Guaranty Obligations, collectively "BASKET GUARANTEES") described
below: (i) if no Event of Default shall have occurred and be continuing,
or would result therefrom, Basket Investments of up to an aggregate of
$10,000,000, taking into account the repayment of any loans or advances
comprising such Basket Investments, shall be permitted to be made, and
(ii) if no Event of Default shall have occurred and be continuing, or
would result therefrom, Basket Guarantees covering up to $5,000,000
aggregate principal amount of Indebtedness outstanding at any time, shall
be permitted to be incurred.
9.6. PREPAYMENTS AND REFINANCINGS OF OTHER DEBT, ETC. The Company will
not, and will not permit any of its Subsidiaries to, make (or give any notice in
respect thereof) any voluntary or optional payment or prepayment or redemption
or acquisition for value of (including, without limitation, by way of
depositing with the trustee with respect thereto money or securities before due
for the purpose of paying when due) or exchange of, or refinance or refund, any
Indebtedness of the Company or its Subsidiaries (other than the Obligations);
PROVIDED that the Company or any Subsidiary may refinance or refund any such
Indebtedness if the aggregate principal amount thereof is not increased and the
weighted average life to maturity thereof (computed in accordance with standard
financial practice) is not reduced by more than 10%.
9.7. TOTAL INDEBTEDNESS/CONSOLIDATED EBITDA RATIO. The Company will not
permit the ratio of (i) the amount of Total Indebtedness at the end of any
fiscal quarter to (ii) Consolidated EBITDA for the Testing Period then ended,
to exceed 3.00 to 1.00.
9.8. TOTAL INDEBTEDNESS/TOTAL CAPITALIZATION RATIO. The Company will not
at any time permit the ratio, expressed as a percentage, of (i) the amount of
Total Indebtedness to (ii) the amount of Total Capitalization, to exceed 60.00%
as of the end of any fiscal quarter ending on or prior to December 31, 1997, or
55.00% as of the end of any fiscal quarter thereafter.
9.9. INTEREST COVERAGE RATIO. The Company will not permit its Interest
Coverage Ratio for any Testing Period to be less than 2.50 to 1.00.
9.10. MINIMUM CONSOLIDATED NET WORTH. The Company will not permit its
Consolidated Net Worth at any time to be less than an amount equal to 90% of
the sum of (x) the Company's Consolidated Net Worth at June 30, 1997, plus (y)
the amount of capital contributed to the Company as contemplated by section
6.1(i)(3) which remains after any redemption of preferred stock referred to
therein, EXCEPT that (i) effective as of the end of the Company's fiscal
quarter ended September 30, 1997, and as of the end of each fiscal quarter
thereafter, the foregoing amount (as it may from time to time be increased as
herein provided), shall be increased by 50% of the consolidated
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net income of the Company and its Subsidiaries for the fiscal quarter ended
on such date, if any, without deduction for minority interests, as determined
in conformity with GAAP (there being no reduction in the case of any such
consolidated net income which reflects a deficit), and (ii) the foregoing
amount (as it may from time to time be increased as herein provided), shall be
increased by (A) an amount equal to 100% of the cash proceeds (net of
underwriting discounts and commissions and other customary fees and costs
associated therewith) from any sale or issuance of equity by the Company or the
Parent after the Initial Borrowing Date (other than any sale or issuance to
management or employees pursuant to employee benefit plans of general
application), plus (B) the amount of any Indebtedness of the Parent or the
Company or any of its Subsidiaries which after the Initial Borrowing Date is
converted or exchanged for equity interests in the Parent, the Company or any
of its Subsidiaries.
9.11. TRANSACTIONS WITH AFFILIATES. The Company will not, and will not
permit any Subsidiary to, enter into any transaction or series of transactions
with any Affiliate (other than, in the case of the Company, any Subsidiary, and
in the case of a Subsidiary, the Company or another Subsidiary) other than in
the ordinary course of business of and pursuant to the reasonable requirements
of the Company's or such Subsidiary's business and upon fair and reasonable
terms no less favorable to the Company or such Subsidiary than would obtain in
a comparable arm's-length transaction with a person other than an Affiliate,
EXCEPT (i) loans, advances and investments permitted by section 9.5, (ii) sales
of goods to an Affiliate for use or distribution outside the United States
which in the good faith judgment of the Company complies with any applicable
legal requirements of the Code, (iii) earn-out and similar payments pursuant to
section 1.5 of the Stock Purchase Agreement dated as of November 29, 1995 (as
in effect on the Effective Date), or (iv) agreements and transactions with and
payments to officers, directors and shareholders (or any Affiliate thereof)
which are either (A) entered into in the ordinary course of business and not
prohibited by any of the provisions of this Agreement, or (B) entered into
outside the ordinary course of business, approved by the directors or
shareholders of the Company, and not prohibited by any of the provisions of
this Agreement.
9.12. LIMITATION ON CERTAIN RESTRICTIVE AGREEMENTS. The Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist or become effective, any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Company or any Subsidiary to create, incur or suffer to exist
any Lien upon any of its property or assets as security for Indebtedness, or
(b) the ability of any such Subsidiary to pay dividends or make any other
distributions on its capital stock or any other interest or participation in
its profits owned by the Company or any Subsidiary of the Company, or pay any
Indebtedness owed to the Company or a Subsidiary of the Company, or to make
loans or advances to the Company or any of the Company's other Subsidiaries, or
transfer any of its property or assets to the Company or any of the Company's
other Subsidiaries, EXCEPT for such restrictions existing under or by reason of
(i) applicable law, (ii) this Agreement and the other Credit Documents, (iii)
customary provisions restricting subletting or assignment of any lease
governing a leasehold interest, (iv) customary provisions restricting
assignment of any licensing agreement entered into in the ordinary course of
business, (v) customary provisions restricting the transfer of assets subject
to Liens permitted under section 9.3(j), (vi) restrictions contained in the
Existing Indebtedness Agreements as in effect on the Effective Date and
customary restrictions affecting only a Subsidiary of the Company under any
agreement or instrument governing any of the Indebtedness of a Subsidiary
permitted pursuant to 9.4, (vii) any document relating to Indebtedness secured
by a Lien permitted by section 9.3, insofar as the provisions thereof limit
grants of junior liens on the assets securing such Indebtedness, and (viii) any
operating lease or Capital Lease, insofar as the provisions thereof limit
grants of a security interest in, or other assignments of, the related
leasehold interest to any other person.
9.13. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. The Company will
not, nor will it permit any Subsidiary to, enter into any Sale and Lease-Back
Transaction involving any individual property (or related group of properties
as part of the same Sale and Lease-Back Transaction) having a Value over
$5,000,000 unless either (a) the Company or such Subsidiary would be
entitled to incur Indebtedness secured by a Lien on such property pursuant to
section 9.4(c), or (b) the Company shall voluntarily permanently reduce the
Unutilized Total General Revolving Commitment by an amount at least equal to
the Value of such Sale and Lease-Back Transaction.
9.14. PLAN TERMINATIONS, MINIMUM FUNDING, ETC. The Company will not, and
will not permit any ERISA Affiliate to, (i) terminate any Plan or plans so as
to result in liability of the Company or any ERISA Affiliate to the PBGC in
excess of $1,000,000 in the aggregate, (ii) permit to exist one or more events
or conditions which
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reasonably present a material risk of the termination by the PBGC of any
Plan or Plans with respect to which the Company or any ERISA Affiliate would,
in the event of such termination, incur liability to the PBGC in excess of
$1,000,000 in the aggregate, or (iii) fail to comply with the minimum funding
standards of ERISA and the Code with respect to any Plan.
SECTION 10. EVENTS OF DEFAULT.
10.1. EVENTS OF DEFAULT. Upon the occurrence of any of the following
specified events (each an "EVENT OF DEFAULT"):
(A) PAYMENTS: any Borrower shall (i) default in the payment when
due of any principal of the Loans or any reimbursement obligation in
respect of any Unpaid Drawing; or (ii) default, and such default shall
continue for five or more Business Days, in the payment when due of any
interest on the Loans or any Fees or any other amounts owing hereunder or
under any other Credit Document; or
(B) REPRESENTATIONS, ETC.: any representation or warranty made or
deemed made by any Borrower or any other Credit Party in this Agreement
or any other Credit Document, or by any Borrower or any other Credit
Party in any document furnished pursuant hereto or thereto or otherwise
in connection with the transactions contemplated hereby, shall prove to
have been incorrect in any material respect on or as of the date as of
which made, and as a result thereof, either (i) the condition (financial
or otherwise), operations, business, assets, liabilities and affairs of
the Company and its Subsidiaries, considered as an entirety, shall be
materially and adversely different than the condition (financial or
otherwise), operations, business, assets, liabilities and affairs of the
Company and its Subsidiaries, considered as an entirety, as represented
and warranted by the Company or any other Credit Party in this Agreement
or any other Credit Document, or (ii) a Material Adverse Effect shall
result from the matter as to which such representation or warranty was
incorrect in any material respect; or
(C) CERTAIN NEGATIVE COVENANTS: the Company shall default in the
due performance or observance by it of any term, covenant or agreement
contained in sections 9.2 through 9.10, inclusive, or section 9.14, of
this Agreement; or
(D) OTHER COVENANTS: the Company shall default in the due
performance or observance by it of any term, covenant or agreement
contained in this Agreement or any other Credit Document, other than
those referred to in section 10.1(a) or (b) or (c) above, and such
default is not remedied within 30 days after the earlier of (i) an
officer of the Company obtaining actual knowledge of such default and
(ii) the Company receiving written notice of such default from the
Administrative Agent or the Required Lenders (any such notice to be
identified as a "notice of default " and to refer specifically to this
paragraph); or
(E) CROSS DEFAULT UNDER OTHER AGREEMENTS: the Company or any of its
Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) owed to any Lender, or having
an unpaid principal amount of $2,000,000 or greater, and such default
shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Indebtedness, or (ii)
default in the observance or performance of any agreement or condition
relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto (and all grace periods
applicable to such observance, performance or condition shall have
expired), 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 a trustee or agent on
behalf of such holder or holders) to cause any such Indebtedness to
become due prior to its stated maturity; or any such Indebtedness of the
Company or any of its Subsidiaries shall be declared to be due and
payable, or shall be required to be prepaid (other than by a regularly
scheduled required prepayment or redemption, prior to the stated maturity
thereof); or
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(F) OTHER CREDIT DOCUMENTS: the Subsidiary Guaranty or the Foreign
Subsidiary Guaranty (once executed and delivered) shall cease for any
reason (other than termination in accordance with its terms) to be in
full force and effect; or any Credit Party shall default in any payment
obligation thereunder; or any Credit Party shall default in any material
respect in the due performance and observance of any other obligation
thereunder and such default shall continue unremedied for a period of at
least 30 days after notice by the Administrative Agent or the Required
Lenders; or any Credit Party shall (or seek to) disaffirm or otherwise
limit its obligations thereunder otherwise than in strict compliance with
the terms thereof; or
(G) JUDGMENTS: one or more judgments or decrees shall be entered
against the Company and/or any of its Subsidiaries involving a liability
(other than a liability covered by insurance, as to which the carrier has
adequate claims paying ability and has not reserved its rights) of
$1,000,000 or more in the aggregate for all such judgments and decrees
for the Company and its Subsidiaries) and any such judgments or decrees
shall not have been vacated, discharged or stayed or bonded pending
appeal within 30 days (or such longer period, not in excess of 60 days,
during which enforcement thereof, and the filing of any judgment lien, is
effectively stayed or prohibited) from the entry thereof; or
(H) BANKRUPTCY, ETC.: the Company or any of its Material
Subsidiaries shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy," as now or
hereafter in effect, or any successor thereto (the "BANKRUPTCY CODE"); or
an involuntary case is commenced against the Company or any of its
Material Subsidiaries and the petition is not controverted within 10
days, or is not dismissed within 60 days, after commencement of the case;
or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of the Company
or any of its Material Subsidiaries; or the Company or any of its
Material Subsidiaries commences (including by way of applying for or
consenting to the appointment of, or the taking of possession by, a
rehabilitator, receiver, custodian, trustee, conservator or liquidator
(collectively, a "CONSERVATOR") of itself or all or any substantial
portion of its property) any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency, liquidation, rehabilitation, conservatorship or similar law
of any jurisdiction whether now or hereafter in effect relating to the
Company or any of its Material Subsidiaries; or any such proceeding is
commenced against the Company or any of its Material Subsidiaries to the
extent such proceeding is consented by such person or remains undismissed
for a period of 60 days; or the Company or any of its Material
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief
or other order approving any such case or proceeding is entered; or the
Company or any of its Material Subsidiaries suffers any appointment of
any conservator or the like for it or any substantial part of its
property which continues undischarged or unstayed for a period of 60
days; or the Company or any of its Material Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate (or similar
organizational) action is taken by the Company or any of its Material
Subsidiaries for the purpose of effecting any of the foregoing; or
(I) ERISA: (i) any of the events described in clauses (i) through
(viii) of section 8.1(g) shall have occurred; or (ii) there shall result
from any such event or events the imposition of a lien, the granting of a
security interest, or a liability or a material risk of incurring a
liability; and (iii) any such event or events or any such lien, security
interest or liability, individually, and/or in the aggregate, in the
opinion of the Required Lenders, has had, or could reasonably be expected
to have, a Material Adverse Effect.
10.2. ACCELERATION, ETC. Upon the occurrence of any Event of Default,
and at any time thereafter, if any Event of Default shall then be continuing,
the Administrative Agent shall, upon the written request of the Required
Lenders, by written notice to the Borrowers, take any or all of the following
actions, without prejudice to the rights of the Administrative Agent or any
Lender to enforce its claims against any Borrower, except as otherwise
specifically provided for in this Agreement (PROVIDED that, if an Event of
Default specified in section 10.1(h) shall occur with respect to any Borrower,
the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Lender shall forthwith
terminate immediately without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans, all Unpaid
Drawings and all obligations owing hereunder and thereunder to be,
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whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower; (iii) terminate any Letter of Credit which may
be terminated in accordance with its terms; and (iv) direct the Company to pay
(and the Company hereby agrees that on receipt of such notice or upon the
occurrence of an Event of Default with respect to any Borrower under section
10.1(h), it will pay) to the Administrative Agent an amount of cash equal to
the aggregate Stated Amount of all Letters of Credit then outstanding (such
amount to be held as security for the Company's (and any Subsidiaries which are
account parties) reimbursement obligations in respect thereof).
10.3. APPLICATION OF LIQUIDATION PROCEEDS. All monies received by the
Administrative Agent or any Lender from the exercise of remedies hereunder or
under the other Credit Documents or under any other documents relating to this
Agreement shall, unless otherwise required by the terms of the other Credit
Documents or by applicable law, be applied as follows:
(I) FIRST, to the payment of all expenses (to the extent not paid
by the Borrowers) incurred by the Administrative Agent and the
Lenders in connection with the exercise of such remedies, including,
without limitation, all reasonable costs and expenses of collection,
attorneys' fees, court costs and any foreclosure expenses;
(II) SECOND, to the payment PRO RATA of interest then accrued on the
outstanding Loans;
(III) THIRD, to the payment PRO RATA of any fees then accrued and
payable to the Administrative Agent, any Letter of Credit Issuer or any
Lender under this Agreement in respect of the Loans or the Letter of
Credit Outstandings;
(IV) FOURTH, to the payment PRO RATA of (A) the principal balance
then owing on the outstanding Loans, (B) the amounts then due under
Designated Hedge Agreements to creditors of the Company or any
Subsidiary, subject to confirmation by the Administrative Agent of any
calculations of termination or other payment amounts being made in
accordance with normal industry practice, and (C) the Stated Amount of
the Letter of Credit Outstandings (to be held and applied by the
Administrative Agent as security for the reimbursement obligations in
respect thereof);
(V) FIFTH, to the payment to the Lenders of any amounts then
accrued and unpaid under sections 2.10, 2.11 and 3.5 hereof, and if
such proceeds are insufficient to pay such amounts in full, to the
payment of such amounts PRO RATA;
(VI) SIXTH, to the payment PRO RATA of all other amounts owed by the
Borrowers to the Administrative Agent, to any Letter of Credit Issuer or
any Lender under this Agreement or any other Credit Document, and to any
counterparties under Designated Hedge Agreements of the Company and its
Subsidiaries, and if such proceeds are insufficient to pay such amounts
in full, to the payment of such amounts PRO RATA; and
(VII) FINALLY, any remaining surplus after all of the Obligations
have been paid in full, to the Borrowers or to whomsoever shall be
lawfully entitled thereto.
SECTION 11. THE ADMINISTRATIVE AGENT.
11.1. APPOINTMENT. Each Lender hereby irrevocably designates and appoints
KeyBank as Administrative Agent to act as specified herein and in the other
Credit Documents, and each such Lender hereby irrevocably authorizes KeyBank as
the Administrative Agent for such Lender, to take such action on its behalf
under the provisions of this Agreement and the other Credit 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 Credit
Documents, together with such other powers as are reasonably incidental
thereto. The Administrative Agent agrees to act as such upon the express
conditions contained in this section 11. Notwithstanding any provision to the
contrary
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elsewhere in this Agreement, the Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth herein or in the
other Credit Documents, nor any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent. The provisions of this section 11 are solely for the
benefit of the Administrative Agent, and the Lenders, and the Company and its
Subsidiaries shall not have any rights as a third party beneficiary of any of
the provisions hereof. In performing its functions and duties under this
Agreement, the Administrative Agent shall act solely as agent of the Lenders
and does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for the Company or any of its
Subsidiaries.
11.2. DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Credit Document 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 except to the extent
otherwise required by section 11.3.
11.3. EXCULPATORY PROVISIONS. Neither the Administrative Agent nor any of
its respective 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 (except
for its or such person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Company or of its Subsidiaries or any
of their respective officers contained in this Agreement, any other Credit
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 Credit Document or for any failure
of the Company or any Subsidiary of the Company or any of their respective
officers to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Company or any of its Subsidiaries. The
Administrative Agent shall not be responsible to any Lender for the
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement or any Credit Document or for any
representations, warranties, recitals or statements made herein or therein or
made in any written or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents in connection
herewith or therewith furnished or made by the Administrative Agent to the
Lenders or by or on behalf of the Company or any of its Subsidiaries to the
Administrative Agent or any Lender or be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or of the existence or possible existence of any Default
or Event of Default.
11.4. 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,
cablegram, telegram, facsimile transmission, telex or teletype message,
statement, order or other document or conversation believed by it, in good
faith, 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 or any of its
Subsidiaries), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of the
Required 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 Credit
Documents in accordance with a request of the Required Lenders (or all of the
Lenders, as to any matter which, pursuant to section 13.12, can only be
effectuated with the consent of all Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders.
11.5. 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
any Borrower referring to this Agreement, describing such Default or Event of
Default and stating
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that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give prompt 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 Required 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.
11.6. NON-RELIANCE. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates have made any representations or warranties to
it and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Company or any of its Subsidiaries, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent, or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Company and its Subsidiaries and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent, or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Company and its Subsidiaries.
The Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, assets, property, financial and other conditions, prospects or
creditworthiness of the Company or any of its Subsidiaries which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
11.7. INDEMNIFICATION. The Lenders agree to indemnify the Administrative
Agent in its capacity as such ratably according to their respective General
Revolving Loans and Unutilized General Revolving Commitments, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Obligations) be imposed on, incurred by or
asserted against the Administrative Agent in its capacity as such in any way
relating to or arising out of this Agreement or any other Credit Document, or
any documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted to be taken by the
Administrative Agent under or in connection with any of the foregoing, but only
to the extent that any of the foregoing is not paid by the Borrowers, PROVIDED
that no Lender shall be liable to the Administrative Agent for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent
resulting solely from the Administrative Agent's gross negligence or willful
misconduct. If any indemnity furnished to the Administrative Agent for any
purpose shall, in the opinion of the Administrative Agent, be insufficient or
become impaired, the Administrative Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished. The agreements in this section 11.7 shall
survive the payment of all Obligations.
11.8. THE ADMINISTRATIVE AGENT IN 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 Company, its Subsidiaries and their
Affiliates as though not acting as Administrative Agent hereunder. With
respect to the Loans made by it and all Obligations owing to it, the
Administrative Agent shall have the same rights and powers under this Agreement
as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
11.9. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as the Administrative Agent upon 20 days' notice to the Lenders
and the Company. The Required Lenders shall appoint from among the Lenders a
successor Administrative Agent for the Lenders subject to prior approval by the
Company (such approval not to be unreasonably withheld or delayed), whereupon
such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall include such
successor agent effective
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upon its appointment, and the resigning Administrative Agent's rights, powers
and duties as the 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. After the retiring Administrative Agent's
resignation hereunder as the Administrative Agent, the provisions of this
section 11 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.
11.10. OTHER AGENTS. Any Lender identified herein as a Co-Agent,
Syndication Agent, Documentation Agent, Managing Agent, Manager or any
other corresponding title, other than "Administrative Agent", shall have no
right, power, obligation, liability, responsibility or duty under this
Agreement or any other Credit Document except those applicable to all Lenders
as such. Each Lender acknowledges that it has not relied, and will not rely, on
any Lender so identified in deciding to enter into this Agreement or in taking
or not taking any action hereunder.
SECTION 12. GUARANTY BY THE COMPANY.
12.1. GUARANTY OF FOREIGN SUBSIDIARY BORROWINGS. The Company hereby
unconditionally guarantees, for the benefit of the Administrative Agent and the
Lenders, the full and punctual payment by each Foreign Borrowing Subsidiary of
all Indebtedness and other Obligations of each Foreign Borrowing Subsidiary
incurred pursuant to this Agreement (collectively, the "GUARANTEED
OBLIGATIONS"). Upon failure by any Foreign Borrowing Subsidiary to pay
punctually any such amount, the Company shall forthwith on demand by the
Administrative Agent pay the amount not so paid at the place and in the
currency and otherwise in the manner specified in this Agreement or any other
applicable agreement or instrument.
12.2. ADDITIONAL UNDERTAKING. As a separate, additional and continuing
obligation, the Company unconditionally and irrevocably undertakes and agrees,
for the benefit of the Administrative Agent and the Lenders that, should any
amounts not be recoverable from the Company under section 12.1 for any reason
whatsoever (including, without limitation, by reason of any provision of any
Credit Document or any other agreement or instrument executed in connection
therewith being or becoming void, unenforceable, or otherwise invalid under any
applicable law) then, notwithstanding any notice or knowledge thereof by any
Lender, the Administrative Agent, any of their respective Affiliates, or any
other person, at any time, the Company as sole, original and independent
obligor, upon demand by the Administrative Agent, will make payment to the
Administrative Agent, for the account of the Lenders and the Administrative
Agent, of all such obligations not so recoverable by way of full indemnity, in
such currency and otherwise in such manner as is provided in the Credit
Documents or any other applicable agreement or instrument.
12.3. GUARANTY UNCONDITIONAL, ETC. The obligations of the Company under
this section shall be unconditional and absolute and, without limiting the
generality of the foregoing shall not be released, discharged or otherwise
affected by the occurrence, one or more times, of any of the following:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect to any Guaranteed Obligation of any Foreign Borrowing
Subsidiary under any agreement or instrument, by operation of law or
otherwise;
(ii) any modification or amendment of or supplement to this
Agreement, any Note, any other Credit Document, or any agreement or
instrument evidencing or relating to any Guaranteed Obligation;
(iii) any release, non-perfection or invalidity of any direct or
indirect security for any Guaranteed Obligation of any Foreign Borrowing
Subsidiary under any agreement or instrument evidencing or relating to
any Guaranteed Obligation;
(iv) any change in the corporate existence, structure or ownership
of any Foreign Borrowing Subsidiary or other Subsidiary or any
insolvency, bankruptcy, reorganization or other similar proceeding
affecting any Foreign Borrowing Subsidiary or other Subsidiary or its
assets or any resulting release or
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discharge of any obligation of any Foreign Borrowing Subsidiary or
other Subsidiary contained in any agreement or instrument evidencing or
relating to any Guaranteed Obligation;
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against any Foreign Borrowing Subsidiary,
the Administrative Agent, any Lender, any Affiliate of any Lender or any
other person, whether in connection herewith or any unrelated
transactions;
(vi) any invalidity or unenforceability relating to or against any
Foreign Borrowing Subsidiary for any reason of any agreement or
instrument evidencing or relating to any Guaranteed Obligation, or any
provision of applicable law or regulation purporting to prohibit the
payment by any Foreign Borrowing Subsidiary of any Guaranteed
Obligations; or
(vii) any other act or omission to act or delay of any kind by any
Foreign Borrowing Subsidiary, the Administrative Agent, any Lender or any
other person or any other circumstance whatsoever which might, but for
the provisions of this section, constitute a legal or equitable discharge
of the Company's obligations under this section.
12.4. COMPANY OBLIGATIONS TO REMAIN IN EFFECT; RESTORATION. The Company's
obligations under this section shall remain in full force and effect until the
Commitments shall have terminated, and the principal of and interest on the
Notes and other Guaranteed Obligations, and all other amounts payable by the
Company, any Foreign Borrowing Subsidiary or other Subsidiary, under the Credit
Documents or any other agreement or instrument evidencing or relating to any of
the Guaranteed Obligations, shall have been paid in full. If at any time any
payment of any of the Guaranteed Obligations of any Foreign Borrowing
Subsidiary in respect of any Guaranteed Obligations is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of such Foreign Borrowing Subsidiary, the Company's obligations
under this section with respect to such payment shall be reinstated at such
time as though such payment had been due but not made at such time.
12.5. WAIVER OF ACCEPTANCE, ETC. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any person against any Foreign Borrowing Subsidiary or any other
person, or against any collateral or guaranty of any other person.
12.6. SUBROGATION. Until the indefeasible payment in full of all of the
Obligations and the termination of the Commitments of the Lenders hereunder,
the Company shall have no rights, by operation of law or otherwise, upon making
any payment under this section to be subrogated to the rights of the payee
against any Foreign Borrowing Subsidiary with respect to such payment or
otherwise to be reimbursed, indemnified or exonerated by any Foreign Borrowing
Subsidiary in respect thereof.
12.7. EFFECT OF STAY. In the event that acceleration of the time for
payment of any amount payable by any Foreign Borrowing Subsidiary under any
Guaranteed Obligation is stayed upon insolvency, bankruptcy or reorganization
of such Foreign Borrowing Subsidiary, all such amounts otherwise subject to
acceleration under the terms of any applicable agreement or instrument
evidencing or relating to any Guaranteed Obligation shall nonetheless be
payable by the Company under this section forthwith on demand by the
Administrative Agent.
SECTION 13. MISCELLANEOUS.
13.1. PAYMENT OF EXPENSES ETC. The Company agrees to: (i) whether or
not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent in connection with
the negotiation, preparation, execution and delivery of the Credit Documents
and the documents and instruments referred to therein and any amendment, waiver
or consent relating thereto (including, without limitation, the reasonable fees
and disbursements of Jones, Day, Reavis & Pogue, special counsel to the
Administrative Agent), and of the Administrative Agent and each of the Lenders
in connection with the enforcement of the Credit Documents and the documents
and instruments referred to therein (including, without limitation, the
reasonable fees and
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disbursements of counsel for the Administrative Agent and for each of the
Lenders and any allocated costs of internal counsel for any of the Lenders);
(ii) in the event of the bankruptcy, insolvency, rehabilitation or other
similar proceeding in respect of the Company or any of its Subsidiaries, pay
all costs of collection and defense, including reasonable attorneys' fees in
connection therewith and in connection with any appellate proceeding or
post-judgment action involved therein, which shall be due and payable together
with all required service or use taxes; (iii) pay and hold each of the Lenders
harmless from and against any and all present and future stamp and other
similar taxes with respect to the foregoing matters and save each of the
Lenders harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to
such Lender) to pay such taxes; and (iv) indemnify each Lender, its officers,
directors, employees, representatives and agents (collectively, the
"INDEMNITEES") from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses reasonably incurred by any of them as
a result of, or arising out of, or in any way related to, or by reason of (a)
any investigation, litigation or other proceeding (whether or not any Lender is
a party thereto) related to the entering into and/or performance of any Credit
Document or the use of the proceeds of any Loans hereunder or the consummation
of any transactions contemplated in any Credit Document, other than any such
investigation, litigation or proceeding arising out of transactions solely
between any of the Lenders or the Administrative Agent, transactions solely
involving the assignment by a Lender of all or a portion of its Loans and
Commitment, or the granting of participations therein, as provided in this
Agreement, or arising solely out of any examination of a Lender by any
regulatory authority having jurisdiction over it, or (b) the actual or alleged
presence of Hazardous Materials in the air, surface water or groundwater or on
the surface or subsurface of any Real Property owned, leased or at any time
operated by the Company or any of its Subsidiaries, the release, generation,
storage, transportation, handling or disposal of Hazardous Materials at any
location, whether or not owned or operated by the Company or any of its
Subsidiaries, if the Company or any such Subsidiary could have or is alleged to
have any responsibility in respect thereof, the non-compliance of any Real
Property with foreign, federal, state and local laws, regulations and
ordinances (including applicable permits thereunder) applicable to any Real
Property, or any Environmental Claim asserted against the Company or any of its
Subsidiaries, in respect of any Real Property owned, leased or at any time
operated by the Company or any of its Subsidiaries, including, in each case,
without limitation, the reasonable fees and disbursements of counsel incurred
in connection with any such investigation, litigation or other proceeding (but
excluding any such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the negligence or willful misconduct of the person
to be indemnified or of any other Indemnitee who is such person or an Affiliate
of such person). To the extent that the undertaking to indemnify, pay or hold
harmless any person set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, the Company shall make the
maximum contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.
13.2. RIGHT OF SETOFF. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence of an Event of Default, each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Borrower or to any other person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by such Lender (including, without limitation, by
branches and agencies of such Lender wherever located) to or for the credit or
the account of any Borrower against and on account of the Obligations and
liabilities of the Borrowers (or any of them) to such Lender under this
Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Lender pursuant to
section 13.4(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Lender shall have made any demand hereunder and although
said Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
13.3. NOTICES. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile transmission or cable communication)
and mailed, telegraphed, telexed, transmitted, cabled or delivered, (a) if to
any Borrower, to such Borrower at State Road 15 North, Milford, Indiana 46542,
attention: Donald J. Steinhilber, Vice President & Chief Financial Officer
(facsimile: (219) 658-4133); (b) if to any Lender at its address specified for
such Lender on Annex I hereto; (c) if to the Administrative Agent, at its
Notice Address; or (d) at such other address as shall be designated
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by any party in a written notice to the other parties hereto. All such notices
and communications shall be mailed, telegraphed, telexed, telecopied, or cabled
or sent by overnight courier, and shall be effective when received.
13.4. BENEFIT OF AGREEMENT. (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns, PROVIDED that no Borrower may assign or
transfer any of its rights or obligations hereunder without the prior written
consent of all the Lenders. Each Lender may at any time grant participations
in any of its rights hereunder or under any of the Notes to another financial
institution or any other "accredited investor" (as defined in SEC Regulation
D), PROVIDED that in the case of any such participation, (i) the participant
shall not have any rights under this Agreement or any of the other Credit
Documents, including rights of consent, approval or waiver (the participant's
rights against such Lender in respect of such participation to be those set
forth in the agreement executed by such Lender in favor of the participant
relating thereto), (ii) such Lender's obligations under this Agreement
(including, without limitation, its Commitment hereunder) shall remain
unchanged, (iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iv) such Lender shall
remain the holder of any Note for all purposes of this Agreement and (v) the
Borrowers, the Administrative Agent, and the other Lenders shall continue to
deal solely and directly with the selling Lender in connection with such
Lender's rights and obligations under this Agreement, and all amounts payable
by the Borrowers hereunder shall be determined as if such Lender had not sold
such participation, except that the participant shall be entitled to the
benefits of sections 2.10, 2.11 and 5.4 of this Agreement to the extent that
such Lender would be entitled to such benefits if the participation had not
been entered into or sold, and, PROVIDED FURTHER, that no Lender shall
transfer, grant or sell any participation under which the participant shall
have rights to approve any amendment to or waiver of this Agreement or any
other Credit Document except to the extent such amendment or waiver would (x)
extend the final scheduled maturity of the Loans in which such participant is
participating (it being understood that any waiver of the making of, or the
application of any mandatory prepayment or the method of any application of any
mandatory prepayment to the amortization of the Loans shall not constitute an
extension of the final maturity date thereof), or reduce the rate or extend the
time of payment of interest or Fees thereon (except in connection with a waiver
of the applicability of any post-default increase in interest rates), or reduce
the principal amount thereof, or increase such participant's participating
interest in any Commitment over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of any mandatory
prepayment or a mandatory reduction in the Total Commitment (or any component
thereof), or a mandatory prepayment, shall not constitute a change in the terms
of any Commitment) or (y) release any Credit Party from any obligations under
the Subsidiary Guaranty, except in accordance with the explicit terms hereof or
thereof, or (z) consent to the assignment or transfer by any Borrower of any of
its rights and obligations under this Agreement.
(b) Notwithstanding the foregoing, (x) any Lender may assign all or a
fixed portion of its Loans and/or Commitments, which does not have to be PRO
RATA among the Facilities, and its rights and obligations hereunder to another
Lender that is not a Defaulting Lender, or to an Affiliate of any Lender
(including itself) which is not a Defaulting Lender which is a commercial bank,
financial institution or other "accredited investor" (as defined in SEC
Regulation D), and (y) any Lender may assign all, or if less than all, a fixed
portion, equal to at least $7,000,000 in the aggregate for the assigning Lender
or assigning Lenders in the case of assignments of General Revolving Loans
and/or General Revolving Commitments, of its Loans and/or Commitments and its
rights and obligations hereunder, which assignment does not have to be PRO RATA
between the Facilities, to one or more Eligible Transferees, each of which
assignees shall become a party to this Agreement as a Lender by execution of an
Assignment Agreement, PROVIDED that, (i) in the case of any assignment of a
portion of the General Revolving Loans and/or General Revolving Commitments of
a Lender, such Lender shall retain a minimum fixed portion thereof equal to at
least $7,000,000, (ii) at the time of any such assignment Annex I shall be
deemed modified to reflect the Commitments of such new Lender and of the
existing Lenders, (iii) upon surrender of the old Notes, new Notes will be
issued, at the Company's expense, to such new Lender and to the assigning
Lender, such new Notes to be in conformity with the requirements of section 2.6
(with appropriate modifications) to the extent needed to reflect the revised
Commitments, (iv) in the case of clause (y) only, the consent of the
Administrative Agent and each Letter of Credit Issuer shall be required in
connection with any such assignment (which consent shall not be unreasonably
withheld or delayed), and (v) the Administrative Agent shall receive at the
time of each such assignment, from the assigning or assignee Lender, the
payment of a non-refundable assignment fee of $3,500 and, PROVIDED FURTHER,
that such transfer or assignment will not be effective until recorded by the
Administrative Agent on the Lender Register
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maintained by it as provided herein. To the extent of any assignment
pursuant to this section 13.4(b), the assigning Lender shall be relieved of its
obligations hereunder with respect to its assigned Commitments. At the time of
each assignment pursuant to this section 13.4(b) to a person which is not
already a Lender hereunder and which is not a United States person (as such
term is defined in section 7701(a)(30) of the Code) for Federal income tax
purposes, the respective assignee Lender shall provide to the Company and the
Administrative Agent the appropriate Internal Revenue Service Forms (and, if
applicable a Section 5.4(b)(ii) Certificate) described in section 5.4(b). To
the extent that an assignment of all or any portion of a Lender's Commitment
and related outstanding Obligations pursuant to this section 13.4(b) would, at
the time of such assignment, result in increased costs under section 2.10 from
those being charged by the respective assigning Lender prior to such
assignment, then the applicable Borrower shall not be obligated to pay such
increased costs (although the applicable Borrower shall be obligated to any
other increased costs of the type described above resulting from changes after
the date of the respective assignment). Nothing in this section 13.4(b) shall
prevent or prohibit any Lender from pledging its Notes or Loans to a Federal
Reserve Bank in support of borrowings made by such Lender from such Federal
Reserve Bank.
(c) Notwithstanding any other provisions of this section 13.4, no transfer
or assignment of the interests or obligations of any Lender hereunder or any
grant of participation therein shall be permitted if such transfer, assignment
or grant would require any Borrower to file a registration statement with the
SEC or to qualify the Loans under the "Blue Sky" laws of any State.
(d) Each Lender initially party to this Agreement hereby represents, and
each person that became a Lender pursuant to an assignment permitted by this
section 13.4 will, upon its becoming party to this Agreement, represent that it
is a commercial lender, other financial institution or other "accredited"
investor (as defined in SEC Regulation D) which makes or acquires loans in the
ordinary course of its business and that it will make or acquire Loans for its
own account in the ordinary course of such business, PROVIDED that subject to
the preceding sections 13.4(a) and (b), the disposition of any promissory notes
or other evidences of or interests in Indebtedness held by such Lender shall at
all times be within its exclusive control.
13.5. NO WAIVER: REMEDIES CUMULATIVE. No failure or delay on the part of
the Administrative Agent or any Lender in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing
between any Borrower and the Administrative Agent or any Lender shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any Lender would otherwise have. No notice to or
demand on any Borrower in any case shall entitle such Borrower to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent or the Lenders to any other or
further action in any circumstances without notice or demand.
13.6. PAYMENTS PRO RATA. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of any
Borrower in respect of any Obligations, it shall distribute such payment to the
Lenders (other than any Lender that has expressly waived in writing its right
to receive its PRO RATA share thereof) PRO RATA based upon their respective
shares, if any, of the Obligations with respect to which such payment was
received. As to any such payment received by the Administrative Agent prior to
1:00 P.M. (local time at its Payment Office) in funds which are immediately
available on such day, the Administrative Agent will use all reasonable efforts
to distribute such payment in immediately available funds on the same day to
the Lenders as aforesaid.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such
Obligation then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the
Obligations to such Lenders in such amount as shall result in a proportional
participation by all of
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the Lenders in such amount, PROVIDED that if all or any portion of such excess
amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding sections 13.6(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Lenders which are not Defaulting Lenders, as opposed to
Defaulting Lenders.
13.7. CALCULATIONS: COMPUTATIONS. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Company to the Lenders); PROVIDED, that if at any time the computations
determining compliance with section 9 utilize accounting principles different
from those utilized in the financial statements furnished to the Lenders, such
computations shall set forth in reasonable detail a description of the
differences and the effect upon such computations.
(b) All computations of interest on Eurocurrency Loans and Money Market
Rate Loans hereunder and all computations of Facility Fees, Letter of Credit
Fees and other Fees hereunder shall be made on the actual number of days
elapsed over a year of 360 days, and all computations of interest on Prime Rate
Loans hereunder shall be made on the actual number of days elapsed over a year
of 365 or 366 days, as the case may be.
13.8. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF OHIO. TO THE FULLEST
EXTENT PERMITTED BY LAW, EACH BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY JURISDICTION OTHER THAN THE
STATE OF OHIO GOVERNS THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS. Any
legal action or proceeding with respect to this Agreement or any other Credit
Document may be brought in the Courts of the State of Ohio, or of the United
States for the Northern District of Ohio, and, by execution and delivery of
this Agreement, each Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each Borrower hereby further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action
or proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such Borrower at its address for notices pursuant to
section 13.3, such service to become effective 30 days after such mailing or at
such earlier time as may be provided under applicable law. Nothing herein
shall affect the right of the Administrative Agent or any Lender to serve
process in any other manner permitted by law or to commence legal proceedings
or otherwise proceed against the Borrower in any other jurisdiction.
(b) Each Borrower hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in section 13.8(a) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) Each of the parties to this Agreement hereby irrevocably waives all
right to a trial by jury in any action, proceeding or counterclaim arising out
of or relating to this Agreement, the other Credit Documents or the
transactions contemplated hereby or thereby.
13.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same agreement. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
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13.10. EFFECTIVENESS. This Agreement shall become effective on the date
(the "EFFECTIVE DATE") on which each Borrower and each of the Lenders shall have
signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Administrative Agent at the Notice Office of the
Administrative Agent or, in the case of the Lenders, shall have given to the
Administrative Agent telephonic (confirmed in writing), written telex or
facsimile transmission notice (actually received) at such office that the same
has been signed and mailed to it.
13.11. HEADINGS DESCRIPTIVE. The headings of the several sections and
other portions of this Agreement are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Agreement.
13.12. AMENDMENT OR WAIVER. Neither this Agreement nor any terms hereof or
thereof may be changed, waived, discharged or terminated UNLESS such change,
waiver, discharge or termination is in writing signed by the Borrowers and the
Required Lenders, PROVIDED that no such change, waiver, discharge or
termination shall, without the consent of each Lender (other than a Defaulting
Lender) affected thereby, (i) extend any interim or final maturity date
provided for herein (including any extension of any interim maturity date to be
effected in accordance with section 4.4 hereof) applicable to a Loan or a
Commitment under a Facility (it being understood that any waiver of the making
of, or application of any mandatory prepayment of or the method of application
of any mandatory prepayment to, the amortization of, the Loans shall not
constitute an extension of such final maturity thereof), reduce the rate or
extend the time of payment of interest (other than as a result of waiving the
applicability of any post-default increase in interest rates) or Fees thereon,
or reduce the principal amount thereof, or increase the Commitment of any
Lender over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of any mandatory prepayment or a
mandatory reduction in the Total Commitment (or any component thereof) shall
not constitute a change in the terms of any Commitment of any Lender), (ii)
release the Company from any obligations as a guarantor of any of its
Subsidiaries' obligations under any Credit Document, (iii) release any Credit
Party from the Subsidiary Guaranty, except in connection with a transaction
permitted by section 9.2(e), (iv) change the definition of the term "Change of
Control" or any of the provisions of section 5.2(c) which are applicable upon a
Change of Control, (v) change the definition of the term "Permitted
Acquisition" or any of the provisions of section 9.2(d) which are applicable to
Permitted Acquisitions which would have the effect of depriving such Lender of
its rights in connection with transactions described in clause (A) of such
definition, (vi) amend, modify or waive any provision of this section 13.12, or
section 11.7, 13.1, 13.4, 13.6 or 13.7(b), or any other provision of any of the
Credit Documents pursuant to which the consent or approval of all Lenders is by
the terms of such provision explicitly required, (vii) reduce the percentage
specified in, or otherwise modify, the definition of Required Lenders, or
(viii) consent to the assignment or transfer by any Borrower of any of its
rights and obligations under this Agreement. No provision of section 3 or 11
may be amended without the consent of (x) any Letter of Credit Issuer adversely
affected thereby or (y) the Administrative Agent, respectively.
13.13. SURVIVAL. All indemnities set forth herein including, without
limitation, in section 2.10, 2.11, 3.5, 11.7 and 13.1, shall survive the
execution and delivery of this Agreement and the making, prepayment and
repayment of Loans.
13.14. DOMICILE OF LOANS. Each Lender may transfer and carry its Loans at,
to or for the account of any branch office, subsidiary or affiliate of such
Lender, PROVIDED that no Borrower shall be responsible for costs arising under
section 2.10 resulting from any such transfer (other than a transfer pursuant
to section 2.12) to the extent not otherwise applicable to such Lender prior to
such transfer.
13.15. CONFIDENTIALITY. Each Lender shall hold all non-public information
obtained pursuant to the requirements of this Agreement which has been
identified as such by the Company or any Subsidiary in accordance with its
customary procedure for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event may make
disclosure reasonably required by any BONA FIDE transferee or participant in
connection with the contemplated transfer of any Loans or Commitment or
participation therein (PROVIDED that each such prospective transferee and/or
participant shall execute an agreement for the benefit of the Borrowers with
such prospective transferor Lender containing provisions substantially
identical to those contained in this section 13.15), to its auditors, attorneys
or as required or requested by any governmental agency or representative
thereof or pursuant to legal process, PROVIDED that, unless specifically
prohibited by applicable law
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or court order, each Lender shall notify the Company of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender by
such governmental agency) for disclosure of any such non-public information
prior to disclosure of such information, and PROVIDED FURTHER that in no event
shall any Lender be obligated or required to return any materials furnished by
or on behalf of the Company or any of its Subsidiaries. Each Borrower hereby
agrees that the failure of a Lender to comply with the provisions of this
section 13.15 shall not relieve any Borrower of any of the obligations to such
Lender under this Agreement and the other Credit Documents.
13.16. LENDER REGISTER. Each Borrower hereby designates the Administrative
Agent to serve as its agent, solely for purposes of this section 13.16, to
retain a copy of each Assignment Agreement delivered to and accepted by it and
to maintain a register (the "LENDER REGISTER") on or in which it will record
the names and addresses of the Lenders, and the Commitments from time to time
of each of such Lenders to such Borrower, the Loans made to such Borrower by
each of such Lenders and each repayment or prepayment in respect of the
principal amount of such Loans of each such Lender. Failure to make any such
recordation, or (absent manifest error) any error in such recordation, shall
not affect such Borrower's obligations in respect of such Loans. With respect
to any Lender, the transfer of the Commitments of such Lender and the rights to
the principal of, and interest on, any Loan made pursuant to such Commitments
shall not be effective until such transfer is recorded on the Lender Register
maintained by the Administrative Agent with respect to ownership of such
Commitments and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitments and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Administrative Agent on the
Lender Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment Agreement pursuant to section
13.4(b). Each Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this section 13.16. The
Lender Register shall be available for inspection by any Borrower or any Lender
at any reasonable time and from time to time upon reasonable prior notice.
13.17. LIMITATIONS ON LIABILITY OF THE LETTER OF CREDIT ISSUERS. The
Company assumes all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such Letters of
Credit. Neither any Letter of Credit Issuer nor any of its officers or
directors shall be liable or responsible for: (a) the use which may be made of
any Letter of Credit or any acts or omissions of any beneficiary or transferee
in connection therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged; (c)
payment by a Letter of Credit Issuer against presentation of documents that do
not comply with the terms of a Letter of Credit, including failure of any
documents to bear any reference or adequate reference to such Letter of Credit;
or (d) any other circumstances whatsoever in making or failing to make payment
under any Letter of Credit, EXCEPT that the Company (or a Subsidiary which is
the account party in respect of the Letter of Credit in question) shall have a
claim against a Letter of Credit Issuer, and a Letter of Credit Issuer shall be
liable to the Company (or such Subsidiary), to the extent of any direct, but
not consequential, damages suffered by the Company (or such Subsidiary) which
the Company (or such Subsidiary) proves were caused by (i) such Letter of
Credit Issuer's willful misconduct or gross negligence in determining whether
documents presented under a Letter of Credit comply with the terms of such
Letter of Credit or (ii) such Letter of Credit Issuer's willful failure to make
lawful payment under any Letter of Credit after the presentation to it of
documentation strictly complying with the terms and conditions of such Letter
of Credit. In furtherance and not in limitation of the foregoing, a Letter of
Credit Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation.
13.18. GENERAL LIMITATION OF LIABILITY. No claim may be made by any
Borrower, any Lender, the Administrative Agent, any Letter of Credit Issuer or
any other person against the Administrative Agent, any Letter of Credit Issuer,
or any other Lender or the Affiliates, directors, officers, employees,
attorneys or agents of any of them for any damages other than actual
compensatory damages in respect of any claim for breach of contract or any
other theory of liability arising out of or related to the transactions
contemplated by this Agreement or any of the other Credit Documents, or any
act, omission or event occurring in connection therewith; and each Borrower,
each Lender, the Administrative Agent and each Letter of Credit Issuer hereby,
to the fullest extent permitted under applicable law, waives, releases and
agrees not to sue or counterclaim upon any such claim for any special,
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consequential or punitive damages, whether or not accrued and whether or not
known or suspected to exist in its favor.
13.19. NO DUTY. All attorneys, accountants, appraisers, consultants and
other professional persons (including the firms or other entities on behalf of
which any such person may act) retained by the Administrative Agent or any
Lender with respect to the transactions contemplated by the Credit Documents
shall have the right to act exclusively in the interest of the Administrative
Agent or such Lender, as the case may be, and shall have no duty of disclosure,
duty of loyalty, duty of care, or other duty or obligation of any type or
nature whatsoever to the Company, to any of its Subsidiaries, or to any other
person, with respect to any matters within the scope of such representation or
related to their activities in connection with such representation.
13.20. LENDERS AND ADMINISTRATIVE AGENT NOT FIDUCIARY TO COMPANY, ETC. The
relationship among the Company and its Subsidiaries, on the one hand, and the
Administrative Agent, each Letter of Credit Issuer and the Lenders, on the
other hand, is solely that of debtor and creditor, and the Administrative
Agent, each Letter of Credit Issuer and the Lenders have no fiduciary or other
special relationship with the Company and its Subsidiaries, and no term or
provision of any Credit Document, no course of dealing, no written or oral
communication, or other action, shall be construed so as to deem such
relationship to be other than that of debtor and creditor.
13.21. JUDGMENT CURRENCY. (a) If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder or under any of the
Notes in any currency (the "ORIGINAL CURRENCY") into another currency (the
"OTHER CURRENCY") the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the Original Currency with the Other Currency at the Payment Office on
the second Business Day preceding that on which final judgment is given.
(b) The obligation of any Borrower in respect of any sum due in the
Original Currency from it to any Lender or the Administrative Agent hereunder
shall, notwithstanding any judgment in any Other 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
such Other Currency such Lender or the Administrative Agent (as the case may
be) may in accordance with normal banking procedures purchase U.S. Dollars with
such Other Currency; if the amount of the Original Currency so purchased is
less than the sum originally due to such Lender or the Administrative Agent (as
the case may be) in the Original Currency, the Borrower 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 Original Currency so purchased exceeds the sum originally due to
any Lender or the Administrative Agent (as the case may be) in the Original
Currency, such Lender or the Administrative Agent (as the case may be) agrees
to remit to the applicable Borrower such excess.
13.22. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties herein shall survive the making of Loans and the issuance of Letters
of Credit hereunder, the execution and delivery of this Agreement, the Notes
and the other documents the forms of which are attached as Exhibits hereto, the
issue and delivery of the Notes, any disposition thereof by any holder thereof,
and any investigation made by the Administrative Agent or any Lender or any
other holder of any of the Notes or on its behalf. All statements contained in
any certificate or other document delivered to the Administrative Agent or any
Lender or any holder of any Notes by or on behalf of the Company or of its
Subsidiaries pursuant hereto or otherwise specifically for use in connection
with the transactions contemplated hereby shall constitute representations and
warranties by the Company hereunder, made as of the respective dates specified
therein or, if no date is specified, as of the respective dates furnished to
the Administrative Agent or any Lender.
[The balance of this page is intentionally blank;
the following two signature pages are unnumbered.]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Agreement to be duly executed and delivered as of the date first above
written.
CTB, INC.
BY:
----------------------------------------
VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER
CHORE-TIME BROCK HOLDING B. V.
BY:
----------------------------------------
MANAGING DIRECTOR
KEYBANK NATIONAL ASSOCIATION,
INDIVIDUALLY AS A LENDER
AND AS A LETTER OF CREDIT ISSUER,
AND IN ITS CAPACITY AS THE
ADMINISTRATIVE AGENT
BY:
----------------------------------------
ASSISTANT VICE PRESIDENT
<PAGE> 79
BANK ONE, INDIANA, NATIONAL COOPERATIEVE CENTRALE
ASSOCIATION RAIFFEISEN-BOERENLEEBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
BY: BY:
----------------------------- ----------------------------------
VICE PRESIDENT NAME:
TITLE:
BY:
----------------------------------
NAME:
TITLE:
COMERICA BANK
BY:
-----------------------------
VICE PRESIDENT
LASALLE NATIONAL BANK
BY:
-----------------------------
COMMERCIAL LOAN OFFICER
NBD BANK, N.A.
BY:
-----------------------------
VICE PRESIDENT
<PAGE> 80
ANNEX I
INFORMATION AS TO LENDERS
<TABLE>
<CAPTION>
===============================================================================================================================
EUROCURRENCY
NAME OF LENDER COMMITMENTS DOMESTIC LENDING OFFICE LENDING OFFICE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
KeyBank National Key Center Key Center
Association 127 Public Square 127 Public Square
GENERAL REVOLVING Cleveland, Ohio 44114-1306 Cleveland, Ohio 44114-1306
COMMITMENT:
NOTICES: EUROCURRENCY LENDING OFFICES AND PAYMENT
$22,666,667 [use above address] OFFICES FOR EUROCURRENCY LOANS DENOMINATED IN
Attention: Large Corporate Group AN ALTERNATIVE CURRENCY:
SWING LINE Facsimile: (216) 689-4981
REVOLVING DEUTSCHE MARKS:
COMMITMENT: PRIMARY CONTACT: Dresdner Bank A.G.
Matthew P. Tuohey Juergen Ponto Platz 1
$5,000,000 Assistant Vice President D-6000 Frankfurt 11, Germany
Telephone: (216) 689-0598 Account No. 499 08 184 227
Swift Address: DRESDEFF
CONTACT FOR BORROWINGS, Account Name: KEYBANK NATIONAL ASSOCIATION,
PAYMENTS, ETC.: CLEVELAND, OH
Sandy Wilder
Telephone: (216) 689-4448 FRENCH FRANCS:
Facsimile: (216) 689-4981 Banque Nationale de Paris S.A.
Boulevard des Italiens 16
WIRING INFORMATION: 75450 Paris Cedex 09 France
Centre d'Operations Avec L'Etranger
ABA # 041 001 039 Bank Code 30004
Account of CTB, Inc. Branch Code 00897
Account No. 040033610
Swift Address: BNPAFRPP
Account Name: KEYBANK NATIONAL ASSOCIATION,
CLEVELAND, OH
POUNDS STERLING:
Royal Bank of Scotland
Correspondent Banking Branch
P.O. box 450
5-10 Great Tower Street
London ec3P 3HX England
Sort Code: 160034
Account No. 12291629
Swift Address: RBOSGB2L
Account Name: KEYBANK NATIONAL ASSOCIATION,
CLEVELAND, OH
DUTCH GUILDERS:
ABN AMRO Bank N. V.
Vijzelstraat 32
1017HL Amsterdam, The Netherlands
Account No. 540433845
Swift Address: ABNANL2A
Account Name: KEYBANK NATIONAL ASSOCIATION,
CLEVELAND, OH
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 81
<TABLE>
<CAPTION>
===============================================================================================================================
EUROCURRENCY
NAME OF LENDER COMMITMENTS DOMESTIC LENDING OFFICE LENDING OFFICE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Bank One, Indiana, Bank One, Indiana, Bank One, Indiana,
National Association National Association National Association
GENERAL REVOLVING 111 Monument Circle 111 Monument Circle
COMMITMENT: Suite 1911 Suite 1911
$14,666,667 Indianapolis, Indiana 46277-0119 Indianapolis, Indiana 46277-0119
NOTICES:
[use above address] EUROCURRENCY LENDING OFFICES AND PAYMENT
Facsimile: (317) 321-8830 OFFICES FOR EUROCURRENCY LOANS DENOMINATED IN
AN ALTERNATIVE CURRENCY:
PRIMARY CONTACTS:
D. Kelly Queisser FRENCH FRANCS (FRF):
Vice President Societe Generale
Telephone: (317) 321-8226 SWIFT CODE: SOGEFRPP
For account of Bank One, Indiana
BACK-UP CONTACT: Account No. 001014420860
Emily Martidis
Portfolio Manager DEUTSCHE MARKS (DEM):
Telephone: (317) 321-2773 Dresdner Bank
SWIFT CODE: DRESDEFF
CONTACT FOR BORROWINGS, For account of Bank One, Indiana
PAYMENTS, ETC.: Account No. 8.183.478.00
Shelia Goodwin
Telephone: (317) 321-8241 DUTCH GUILDERS (NLG):
Facsimile: (317) 321-8830 ABN-AMRO BANK
SWIFT CODE: ABNANL2A
WIRING INFORMATION: For account of Bank One, Indiana
ABA # 074 0000 10 Account No. 540433470
Reference: CTB, Inc.
ENGLISH POUNDS (GBP):
Lloyd's Bank
SWIFT CODE: LOYDGB2L
For account of Bank One, Indiana
Account No. 01080807
- -------------------------------------------------------------------------------------------------------------------------------
Comerica Bank Comerica Bank Comerica Bank
Comerica Tower at Detroit Center Comerica Tower at Detroit Center
GENERAL REVOLVING 500 Woodward 500 Woodward
COMMITMENT: 9th Floor 9th Floor
Detroit, Michigan 48226-3269 Detroit, Michigan 48226-3269
$12,333,333
NOTICES:
[use above address] EUROCURRENCY LENDING OFFICES AND PAYMENT
Facsimile: (313) 222-9516 OFFICES FOR EUROCURRENCY LOANS DENOMINATED IN
AN ALTERNATIVE CURRENCY:
PRIMARY CONTACTS:
Philip A. Coosaia DUTCH GUILDERS - NLG:
Vice President ABN-AMRO Bank, Amsterdam
Telephone: (313) 222-7044 SWIFT Code - ABNANL2A
Account # 540434299
CONTACT FOR BORROWINGS,
PAYMENTS, ETC.: GERMAN MARKS - DEM:
Deutsche Bank AG-Frankfurt
SWIFT Code - DEUTDEFF
Account # 100.9586355.0000
WIRING INFORMATION: ENGLISH POUNDS - GBP:
Barclays Bank
ABA # SWIFT Code - BARCGB22
Reference: CTB, Inc. Account # 00789887
FRENCH FRANCS - FRF:
Banque Nationale de Paris, Paris
SWIFT Code - BNPAFRPP
Account # 40030409
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE> 82
<TABLE>
<CAPTION>
============================================================================================================================
EUROCURRENCY
NAME OF LENDER COMMITMENTS DOMESTIC LENDING OFFICE LENDING OFFICE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LaSalle National Bank GENERAL REVOLVING LaSalle National Bank LaSalle National Bank
COMMITMENT: One American Square One American Square
$14,000,000 Suite 2215 Suite 2215
Indianapolis, Indiana 46282 Indianapolis, Indiana 46282
NOTICES: EUROCURRENCY LENDING OFFICES AND PAYMENT
[use above address] OFFICES FOR EUROCURRENCY LOANS DENOMINATED IN
Facsimile: (317) 756-7021 AN ALTERNATIVE CURRENCY:
PRIMARY CONTACTS: DUTCH GUILDERS (NLG):
Wesley Jost ABN AMRO Bank, Amsterdam
Commercial Loan Officer SWIFT CODE: ABNANL2A
Telephone: (317) 756-7011 For account of LaSalle National Bank
Account No. 540433918
CONTACT FOR BORROWINGS,
PAYMENTS, ETC.: GERMAN MARKS (DEM):
ABN AMRO Bank, Frankfurt
SWIFT CODE: ABNADEFFFRA
For account of LaSalle National Bank
Account No. 56.01.992/002
WIRING INFORMATION: ENGLISH POUNDS (GBP):
ABN AMRO Bank, London
ABA # 07 1000 505 SWIFT CODE: ABNAGB2L
Reference: CTB, Inc. For account of LaSalle National Bank
Account No. 909904
FRENCH FRANCS (FRF):
Banque de Neuflize, Schlumberger Mallet, Paris
SWIFT CODE: NSMBFRPP
For account of LaSalle National Bank
Account No. 00-12040-12882-00
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE> 83
<TABLE>
<CAPTION>
============================================================================================================================
EUROCURRENCY
NAME OF LENDER COMMITMENTS DOMESTIC LENDING OFFICE LENDING OFFICE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
NBD Bank, N.A. GENERAL REVOLVING NBD Bank, N.A. NBD Bank, N.A.
COMMITMENT: One Indiana Square One Indiana Square
Suite 7028 Suite 7028
$12,333,333 Indianapolis, Indiana 46266 Indianapolis, Indiana 46266
NOTICES: EUROCURRENCY LENDING OFFICES AND PAYMENT
[use above address] OFFICES FOR EUROCURRENCY LOANS DENOMINATED IN
Facsimile: (317) 266-6042 AN ALTERNATIVE CURRENCY:
PRIMARY CONTACTS: DUTCH GUILDERS (NLG):
Stephen V. Buchanan Ing Bank
Vice President Herengracht 580
Telephone: (317) 266-6885 Amsterdam, The Netherlands
Account No.: 0053500008
CONTACT FOR BORROWINGS, SWIFT Address: INGBNL2A
PAYMENTS, ETC.:
Myrl Merriweather GERMAN MARKS (DEM):
Telephone: (317) 266-4021 Swiss Bank Corporation/Schweizersher
Facsimile: (317)266-6042 Bankverein Deutschland
Ulmentrasse 30 (D-6000)
WIRING INFORMATION: Frankfurt, Germany
Account No.: 111550-5005
ABA # 074 0000 52 SWIFT Address: SBCODEFF
Reference: CTB, Inc.
FRENCH FRANCS:
Credit Commerciale de France
103 Avenue des Champes-Elysess
Paris, France
Account No.: 00203501611
SWIFT Address: CCFRFRPP
POUNDS STERLING (GBP):
Midland Bank PLC - London
International Division
london, England
Account No.: 35202851
EUROPEAN CURRENCY UNITS (ECUS):
Kreditbank N.V. Brussels
Arenbergtraat 7
Brussels, Belgium
Account No.: 480-9179897-19
SWIFT Address: KREDBEBB
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE> 84
<TABLE>
<CAPTION>
=============================================================================================================================
EUROCURRENCY
NAME OF LENDER COMMITMENTS DOMESTIC LENDING OFFICE LENDING OFFICE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Rabobank Nederland, Rabobank Nederland, Rabobank Nederland,
New York Branch New York Branch New York Branch
GENERAL REVOLVING 245 Park Avenue 245 Park Avenue
COMMITMENT: New York, New York 10167-0062 New York, New York 10167-0062
$14,000,000 Tax ID No. 13-3036591 EUROCURRENCY LENDING OFFICES AND PAYMENT
OFFICES FOR EUROCURRENCY LOANS DENOMINATED
NOTICES: IN AN ALTERNATIVE CURRENCY:
Rabobank Nederland
300 South Wacker Drive DUTCH GUILDERS (NLG):
Chicago, Illinois 60606 Rabobank Nederland, Utrecht
Facsimile: (312) 408-8240 SWIFT CODE: RABONL2U
Account No. 3908.17.333
PRIMARY CONTACTS:
Michael J. Butz GERMAN MARKS (DEM):
Vice President Rabobank Deutscheland, Frankfurt
Telephone: (312) 408-8209 SWIFT CODE: RABODEFF
Account No. 603-93775
LEGAL DOCUMENTS TO:
Andrew L. Sherman ENGLISH POUNDS (GBP):
Counsel Rabobank UK London Office
Legal and Tax Department SWIFT CODE: RABOGB2L
Rabobank Nederland, Account No. 1429957021
New York Branch
245 Park Avenue FRENCH FRANCS (FRF):
New York, New York 10167-0062 Rabobank France, Paris
Telephone: (212) 808-2513 SWIFT CODE: RABOFRPP
Facsimile: (212) 916-7880 Account No. 1019230100
CONTACT FOR BORROWINGS,
PAYMENTS, ETC.:
Debra Rivers
Telephone: (212) 916-7845
Madeline Ricci
Telephone: (212) 916-7994
Corporate Services
Rabobank Nederland,
New York Branch
245 Park Avenue
New York, New York 10167-0062
Facsimile: (212) 916-7930
WIRING INFORMATION:
The Bank of New York
New York, NY 10167
ABA # 021 0000 18
For a/c Rabobank Nederland
a/c no. 802 6002 533
Reference: CTB, Inc.
Attn.: Debra Rivers
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE> 85
ANNEX II
INFORMATION AS TO SUBSIDIARIES
(as of August 15, 1997)
<TABLE>
<CAPTION>
==================================================================================================
JURISDICTION/ NUMBER OF RECORD
DATE OF SHARES OWNER OF
NAME FORM ORGANIZATION OUTSTANDING SHARES
===================================================================================================
<S> <C> <C> <C> <C>
CTB Credit Corporation Indiana 100 CTB, Inc., as to
Corporation 8-30-82 100% of outstanding
shares
- ---------------------------------------------------------------------------------------------------
CBT Sales Corporation St. Thomas, Virgin 100 CTB, Inc., as to
Corporation Islands 100% of outstanding
10-23-86 shares
- ---------------------------------------------------------------------------------------------------
Chore-Time Corporation Texas 1000 CTB, Inc., as to
Texas, Inc. 2-4-93 100% of outstanding
shares
- ---------------------------------------------------------------------------------------------------
Chore-Time Brock Private Company The Netherlands 400 CTB, Inc., as to
B.V. Limited Liability 10-22-91 100% of outstanding
(foreign) shares
- ---------------------------------------------------------------------------------------------------
Chore-Time Brock Private Company The Netherlands 2,000 CTB, Inc., as to
Holding B.V. Limited Liability 4-28-97 100% of outstanding
(foreign) shares
- ---------------------------------------------------------------------------------------------------
Chore-Time Brock Limitada-- Parana, Brazil CTB, Inc.
Ltda. Private Company 9-11-96 N/A (99.9% of Quotas)
Limited Liability
(foreign)
- ---------------------------------------------------------------------------------------------------
Fancom Holding B.V. Dutch Private The Netherlands 1,257,000 Chore-Time Brock
Company with 12-29-95 Holding B.V., as to
Limited Liability 100% of outstanding
shares
- ---------------------------------------------------------------------------------------------------
Fancom B.V. Dutch Private The Netherlands 2,000 Fancom Holding
Company with 6-10-74 B.V., as to 100% of
Limited Liability outstanding shares
===================================================================================================
</TABLE>
<PAGE> 86
ANNEX III
DESCRIPTION OF EXISTING INDEBTEDNESS
1. Credit Agreement among CTB, Inc., KeyBank, N.A. and other Lenders, dated
December 22, 1995 as amended for $126,000,000, to be terminated as of the
Initial Borrowing Date.
2. Unadvised foreign exchange trading facilities to facilitate foreign
exchange with LaSalle National Bank in the aggregate of $1,200,000, Bank
One in the aggregate of $2,000,000 and KeyBank NA in the aggregate of
$3,000,000.
Foreign exchange transactions create a certain degree of credit risk in
addition to political and economic risk. In order to expedite approval of
credit exposure, preapproval is given for settlement (transaction) and
outstanding limits. No documentation of these approved units is required
because each transaction is evidenced by a "Foreign Exchange Confirmation
of Trade" which specifies the responsibilities of each party to the
transaction.
3. Indebtedness of the Company owed to Chore-Time Texas, Inc. in the
ordinary course of business, at June 30, 1997 this amount was $4,190.
4. Indebtedness of Subsidiaries to the Company at June 30, 1997:
Chore-Time Brock B.V. $1,921,978
Chore-Time Brock Ltda. $1,412,114
CTB Credit Corporation $2,857,979
CTB Sales Corporation $1,106,505
----------
$7,298,576
5. Indebtedness of Fancom Holding B.V. (through Fancom B.V. and Masterfan
Ventilatie B.V.) of approximately $5,402,000 (NLG 10,617,114), including
both term debt and revolving credit (overdraft) facility as follows
(amounts shown in NLG):
<TABLE>
<CAPTION>
===================================================================================
Loan Number Amount Available Amount Outstanding Final Maturity Date
- -----------------------------------------------------------------------------------
<S> <C> <C> <C>
40.66.25.700 (ABN) 208,390 9/1/2003
- -----------------------------------------------------------------------------------
43.09.88.974 (ABN) 343,750 12/1/2001
- -----------------------------------------------------------------------------------
41.21.07.023 (ABN) 225,000 3/1/1999
- -----------------------------------------------------------------------------------
48.88.32.160 (ABN) 310,000 3/1/2005
- -----------------------------------------------------------------------------------
61.89.79.697 (ABN) 7,500,000 1/1/2001
- -----------------------------------------------------------------------------------
EURL (Fancom) (BNP) 62,969
- -----------------------------------------------------------------------------------
Capital lease (FMN) 51,005 1/31/1998
- -----------------------------------------------------------------------------------
Revolving credit (ABN) 3,500,000 1,916,000
===================================================================================
</TABLE>
6. None other than accounts payable, accrued liabilities and deferred income
taxes incurred in the ordinary course of business.
[End of Annex III]
<PAGE> 87
ANNEX IV
DESCRIPTION OF EXISTING LIENS
<TABLE>
<CAPTION>
===============================================================================
Debtor Secured Party Location Collateral Description
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Fancom B.V. & ABN AMRO Netherlands first mortgage on
Masterfan land & buildings in
Ventilatie Panningen, Netherlands
first lien on all
inventory and
accounts receivable
- -------------------------------------------------------------------------------
EURL Fancom Banque Nationale de France first mortgage on
Paris, France land and building
===============================================================================
</TABLE>
No other material liens other than those otherwise permitted under section 9.3.
<PAGE> 88
ANNEX V
DESCRIPTION OF EXISTING ADVANCES, LOANS, INVESTMENTS AND GUARANTEES
(AS OF JUNE 30, 1997)
1. Prior to final Purchase Accounting treatment related to the
Company's acquisition of Fancom Holding B.V., Company has an
investment and loan in Chore-Time Brock Holding B.V. of $12,992,366.
2. Company investment in Chore Time Brock Ltda of $250,000.
3. Company investment in Chore Time Brock B.V. of $19,708.
4. Loans to Foreign Subsidiaries of $3,334,092 (see Annex III
referring to Chore Time Brock Ltda and Chore Time Brock B.V.)
5. Employee receivables of $73,057 (including a loan of NLG
100,000 to the Managing Director of Fancom B.V.).
6. No other material advances, loans, investments and guarantees
other than those otherwise permitted under section 9.5.
<PAGE> 89
ANNEX VI
DESCRIPTION OF LETTERS OF CREDIT DEEMED ISSUED UNDER
THE CREDIT AGREEMENT
<TABLE>
<CAPTION>
===============================================================================
LETTER OF ORIGINAL DATE AND NO./ EXPIRATION
CREDIT ISSUER APPLICANT BENEFICIARY AMOUNT DATE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
KeyBank National CTB, Inc. Buhler, Inc. $125,000 4/21/98
Association
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
===============================================================================
</TABLE>
<PAGE> 90
EXHIBIT A-1
GENERAL REVOLVING NOTE
Cleveland, Ohio
_________, 1997
FOR VALUE RECEIVED, the undersigned ________________, a [company]
[corporation] organized under the laws of _____________ (herein, together with
its successors and assigns, the "BORROWER"), hereby promises to pay to the
order of ______________ (the "LENDER"), in lawful money of the United States of
America, in the case of General Revolving Loans denominated in Dollars, or in
the Alternative Currency, in the case of General Revolving Loans denominated in
such Alternative Currency (such terms and certain other terms used herein
without definition shall have the meanings ascribed thereto in the Agreement
referred to below), in immediately available funds, at the applicable Payment
Office of KeyBank National Association (the "ADMINISTRATIVE AGENT"), on the
Maturity Date, the aggregate principal amount of all General Revolving Loans
made by the Lender to the Borrower pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
of each General Revolving Loan made by the Lender to the Borrower at said
office from the date hereof until paid at the rates and at the times provided
in section 2.8 of the Agreement and in Dollars (in the case of General
Revolving Loans denominated in Dollars) or an Alternative Currency (in the case
of General Revolving Loans denominated in such Alternative Currency).
This Note is one of the General Revolving Notes referred to in the Credit
Agreement, dated as of August 15, 1997, among the Borrower, the other Borrowers
named therein, the financial institutions from time to time party thereto
(including the Lender), and KeyBank National Association, as Administrative
Agent (as from time to time in effect, the "AGREEMENT"), and is entitled to the
benefits thereof and of the other Credit Documents. As provided in the
Agreement, this Note is subject to mandatory prepayment prior to the Maturity
Date, in whole or in part.
In case an Event of Default shall occur and be continuing, the principal
of and accrued interest on this Note may be declared to be due and payable in
the manner and with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note. No failure to exercise, or delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of any such rights.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE STATE OF OHIO, UNITED STATES OF AMERICA.
[NAME OF BORROWER]
By:
----------------------------
Title:
2
<PAGE> 91
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
===============================================================================
CURRENCY AMOUNT
AND OF
DATE AMOUNT TYPE PRINCIPAL UNPAID
OF OF OF INTEREST PAID OR PRINCIPAL
NOTATION LOAN LOAN PERIOD PREPAID BALANCE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
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- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
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- -------------------------------------------------------------------------------
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===============================================================================
</TABLE>
<PAGE> 92
EXHIBIT A-2
SWING LINE REVOLVING NOTE
U.S.$________________ Cleveland, Ohio
_________, 1997
FOR VALUE RECEIVED, the undersigned CTB, INC., an Indiana corporation
(herein, together with its successors and assigns, the "BORROWER"), hereby
promises to pay to the order of _________________________ (the "LENDER"), in
lawful money of the United States of America in immediately available funds, at
the applicable Payment Office (such term and certain other terms used herein
without definition shall have the meanings ascribed thereto in the Agreement
referred to below) of KeyBank National Association (the "ADMINISTRATIVE
AGENT"), the principal sum of ________________ DOLLARS ($ ) or, if less,
the then unpaid principal amount of all Swing Line Revolving Loans made by the
Lender to the Borrower pursuant to the Agreement. The Borrower will pay the
principal amount of any Swing Line Revolving Loan on the maturity date
specified therefor in the Notice of Borrowing relating thereto, which maturity
date shall in no event be more than one month following the date such Swing
Line Revolving Loan was made.
The Borrower promises also to pay interest on the unpaid principal amount
of each Swing Line Revolving Loan made by the Lender in like money at said
office from the date hereof until paid at the rates and at the times provided
in section 2.8 of the Agreement.
This Note is one of the Notes referred to in the Credit Agreement, dated
as of August 15, 1997, among the Borrower, the other Borrowers named therein,
the financial institutions from time to time party thereto (including the
Lender), and KeyBank National Association, as Administrative Agent (as from
time to time in effect, the "AGREEMENT"), and is entitled to the benefits
thereof and of the other Credit Documents (as defined in the Agreement). As
provided in the Agreement, this Note is subject to mandatory prepayment prior
to the maturity date of any Swing Line Revolving Loan, in whole or in part.
In case an Event of Default shall occur and be continuing, the principal
of and accrued interest on this Note may be declared to be due and payable in
the manner and with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note. No failure to exercise, or delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of any such rights.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE STATE OF OHIO.
CTB, INC.
By:
----------------------------------
Vice President &
Chief Financial Officer
<PAGE> 93
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
=========================================================================================
AMOUNT
TYPE OF OF
DATE AMOUNT LOAN/OR PRINCIPAL UNPAID
OF OF INTEREST PAID OR PRINCIPAL MADE
NOTATION LOAN RATE MATURITY PREPAID BALANCE BY
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
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- -----------------------------------------------------------------------------------------
=========================================================================================
</TABLE>
<PAGE> 94
EXHIBIT B-1
NOTICE OF BORROWING
[Date]
KeyBank National Association,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Group
Re: Notice of Borrowing under Credit Agreement,
dated as of August 15, 1997, to which CTB, Inc.
is a party
-----------------------------------------------
Ladies and Gentlemen:
The undersigned, CTB, Inc. (the "COMPANY"), refers to the Credit
Agreement, dated as of August 15, 1997 (as amended from time to time, the
"CREDIT AGREEMENT", the terms defined therein being used herein as therein
defined), among the Company, the other Borrowers named therein, the financial
institutions from time to time party thereto (the "LENDERS"), and KeyBank
National Association, as Administrative Agent for such Lenders, and hereby
gives you notice, irrevocably, pursuant to section 2.3(a) of the Credit
Agreement, that the undersigned hereby requests one or more Borrowings under
the Credit Agreement, and in that connection sets forth in the schedule
attached hereto the information relating to each such Borrowing (collectively
the "PROPOSED BORROWING") as required by section 2.3(a) of the Credit
Agreement.
The Company hereby specifies that the Proposed Borrowing will consist of
Loans as indicated in the schedule attached hereto.
The Company hereby certifies that the following statements are true on the
date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties of the Credit Parties
contained in the Credit Agreement and the other Credit Documents are and
will be true and correct in all material respects, before and after
giving effect to the Proposed Borrowing and to the application of the
proceeds thereof, as though made on such date, except to the extent that
such representations and warranties expressly relate to an earlier
specified date, in which case such representations and warranties were
true and correct in all material respects as of the date when made; and
(B) no Default or Event of Default has occurred and is continuing,
or would result from such Proposed Borrowing or from the application of
the proceeds thereof.
Very truly yours,
CTB, INC.
By:
--------------------------------
Title:
<PAGE> 95
BORROWING SCHEDULE
PROPOSED BORROWING #1:
NAME OF BORROWER: __________________
<TABLE>
<CAPTION>
=============================================================================================
BUSINESS DAY INTEREST PERIOD
OF AGGREGATE IF LOANS ARE
PROPOSED TYPE OF AMOUNT EUROCURRENCY
BORROWING FACILITY LOANS OF LOANS LOANS
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
______, 19____ General Revolving Prime Rate Loans One Month
Loans
Eurocurrency Loans $____________ Two Months
Swing Line Money Market Rate Three Months
Revolving Loans Loans with rate of
interest of ___% Alternative Six Months
and maturity of Currency and
____ days Amount: [Circle one of
above]
[Circle one of [Circle and/or -------------
above] complete one of
above] [Complete one
of above]
=============================================================================================
</TABLE>
PROPOSED BORROWING #2:
NAME OF BORROWER: __________________
<TABLE>
<CAPTION>
============================================================================================
BUSINESS DAY INTEREST PERIOD
OF AGGREGATE IF LOANS ARE
PROPOSED TYPE OF AMOUNT EUROCURRENCY
BORROWING FACILITY LOANS OF LOANS LOANS
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
General Revolving Prime Rate Loans One Month
______, 19____ Loans
Eurocurrency Loans $____________ Two Months
Swing Line Revolving Money Market Rate Three Months
Loans Loans with rate of Alternative
interest of ___% Currency and Six Months
and maturity of Amount:
____ days [Circle one of
above]
[Circle one of [Circle and/or __________
above] complete one of
above] [Complete one
of above]
============================================================================================
</TABLE>
<PAGE> 96
PROPOSED BORROWING #3:
NAME OF BORROWER: __________________
<TABLE>
<CAPTION>
=============================================================================================
BUSINESS DAY INTEREST PERIOD
OF AGGREGATE IF LOANS ARE
PROPOSED TYPE OF AMOUNT EUROCURRENCY
BORROWING FACILITY LOANS OF LOANS LOANS
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
General Revolving Prime Rate Loans One Month
______, 19____ Loans
Eurocurrency Loans $____________ Two Months
Swing Line Money Market Rate Three Months
Revolving Loans Loans with rate of Alternative
interest of ___% Currency and Six Months
and maturity of Amount:
____ days [Circle one of
above]
[Circle one of [Circle and/or __________
above] complete one of
above] [Complete one
of above]
=============================================================================================
</TABLE>
PROPOSED BORROWING #4:
NAME OF BORROWER: __________________
<TABLE>
<CAPTION>
=============================================================================================
BUSINESS DAY INTEREST PERIOD
OF AGGREGATE IF LOANS ARE
PROPOSED TYPE OF AMOUNT EUROCURRENCY
BORROWING FACILITY LOANS OF LOANS LOANS
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
______, 19____ General Revolving Prime Rate Loans One Month
Loans
Eurocurrency Loans $____________ Two Months
Swing Line Money Market Rate Three Months
Revolving Loans Loans with rate of Alternative
interest of ___% Currency and Six Months
and maturity of Amount:
____ days [Circle one of
above]
[Circle one of [Circle and/or __________
above] complete one of
above] [Complete one
of above]
=============================================================================================
</TABLE>
2
<PAGE> 97
EXHIBIT B-2
NOTICE OF CONVERSION
[Date]
KeyBank National Association,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Group
Re: Notice of Conversion under Credit Agreement,
dated as of August 15, 1997, to which CTB, Inc.
is a party
-----------------------------------------------
Ladies and Gentlemen:
The undersigned, CTB, Inc. (the "COMPANY"), refers to the Credit
Agreement, dated as of August 15, 1997 (as amended from time to time, the
"CREDIT AGREEMENT", the terms defined therein being used herein as therein
defined), among the Company, the other Borrowers named therein, the financial
institutions from time to time party thereto (the "LENDERS"), and KeyBank
National Association, as Administrative Agent for such Lenders, and hereby
gives you notice, irrevocably, pursuant to section 2.7(a) of the Credit
Agreement, that the Company hereby requests one or more conversions of General
Revolving Loans denominated in Dollars of one Type into General Revolving Loans
of another Type, pursuant to section 2.7(a) of the Credit Agreement, and in
that connection sets forth in the schedule attached hereto the information
relating to each such conversion.
Very truly yours,
CTB, INC.
By:
--------------------------------------
Title:
<PAGE> 98
CONVERSION SCHEDULE
PROPOSED CONVERSION #1
[OF THE LOANS DESCRIBED IN THE FIRST TABLE BELOW
INTO LOANS DESCRIBED IN THE SECOND TABLE BELOW]
NAME OF APPLICABLE BORROWER: ___________________
<TABLE>
<CAPTION>
===============================================================================
DATE INTEREST PERIOD
OF AGGREGATE AMOUNT IF LOANS ARE
LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Prime Rate Loans One Month
__________, 19____
Eurocurrency Loans $_____________ Two Months
Three Months
[Circle One of
Above] Six Months
[Circle one of
above]
==============================================================================
</TABLE>
<TABLE>
<CAPTION>
===============================================================================
DATE INTEREST PERIOD
OF AGGREGATE AMOUNT IF LOANS ARE
LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Prime Rate Loans One Month
__________, 19____
Eurocurrency Loans $____________ Two Months
Three Months
[Circle One of
Above] Six Months
[Circle one of
above]
===============================================================================
</TABLE>
<PAGE> 99
PROPOSED CONVERSION #2
[OF THE LOANS DESCRIBED IN THE FIRST TABLE BELOW
INTO LOANS DESCRIBED IN THE SECOND TABLE BELOW]
NAME OF APPLICABLE BORROWER: ___________________
<TABLE>
<CAPTION>
===============================================================================
DATE INTEREST PERIOD
OF AGGREGATE AMOUNT IF LOANS ARE
LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Prime Rate Loans One Month
__________, 19____
Eurocurrency $_____________ Two Months
Loans
Three Months
[Circle One of
Above] Six Months
[Circle one of
above]
===============================================================================
</TABLE>
<TABLE>
<CAPTION>
===============================================================================
DATE INTEREST PERIOD
OF AGGREGATE AMOUNT IF LOANS ARE
LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Prime Rate Loans One Month
__________, 19____
Eurocurrency $_____________ Two Months
Loans
Three Months
[Circle One of
Above] Six Months
[Circle one of
above]
===============================================================================
</TABLE>
2
<PAGE> 100
EXHIBIT B-3
LETTER OF CREDIT REQUEST
No. ______________1
Dated __________2
KeyBank National Association,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Group
[Insert Name of applicable Letter
of Credit Issuer, if other than
KeyBank National Association]
Re: Letter of Credit Request under Credit Agreement,
dated as of August 15, 1997, to which CTB, Inc.
is a party
------------------------------------------------
Ladies and Gentlemen:
The undersigned, CTB, Inc. (the "COMPANY"), refers to the Credit Agreement,
dated as of August 15, 1997 (as amended, modified or supplemented from time to
time, the "CREDIT AGREEMENT", the capitalized terms defined therein being used
herein as therein defined), among the Company, the other Borrowers named
therein, the financial institutions from time to time party thereto (the
"LENDERS"), and KeyBank National Association, as Administrative Agent for such
Lenders.
The Company hereby requests that _______________, as a Letter of Credit
Issuer, issue a Letter of Credit on __________, 199_ (the "DATE OF ISSUANCE")
in the aggregate amount of [U.S.$_______] [amount in specified Alternative
Currency], for the account of ____________________.
The beneficiary of the requested Letter of Credit will be_______________,3
and such Letter of Credit will be in support of _____________________4 and will
have a stated termination date of ____________.5
The Company hereby certifies that after giving effect to the requested
issuance of the Letter of Credit:
- ---------------------------
1 Letter of Request Number.
2 Date of Letter of Request (at least three Business Days prior to the Date
of Issuance or such lesser number as may be agreed by the relevant Letter
of Credit Issuer).
3 Insert name and address of beneficiary.
4 Insert description of the supported obligations, name of agreement and/or
the commercial transaction to which this Letter of Credit Request relates.
5 Insert last date upon which drafts may be presented (which may not be
beyond the 15th Business Day next preceding the Maturity Date).
<PAGE> 101
The Company hereby certifies that after giving effect to the requested
issuance of the Letter of Credit:
(i) $_________ principal amount of Loans will be outstanding; and
(ii) the Letter of Credit Outstandings will be $___________.
The Company hereby certifies that the following statements are true on the
date hereof, and will be true on the Date of Issuance:
(A) the representations and warranties of the Credit Parties
contained in the Credit Agreement and the other Credit Documents are and
will be true and correct in all material respects, before and after giving
effect to the issuance of the Letter of Credit requested hereby, as though
made on the Date of Issuance, except to the extent that such
representations and warranties expressly relate to an earlier specified
date, in which case such representations and warranties were true and
correct in all material respects when made; and
(B) no Default or Event of Default has occurred and is continuing, or
would result after giving effect to the issuance of the Letter of Credit
requested hereby.
Copies of all documentation with respect to the supported transaction are
attached hereto.
Very truly yours,
CTB, INC.
By:
--------------------------------------
Title:
2
<PAGE> 102
EXHIBIT B-4
NOTICE OF REDENOMINATION
[Date]
KeyBank National Association,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Group
Re: Notice of Redenomination under Credit Agreement,
dated as of August 15, 1997, to which CTB, Inc.
is a party
------------------------------------------------
Ladies and Gentlemen:
The undersigned, CTB, Inc. (the "COMPANY"), refers to the Credit
Agreement, dated as of August 15, 1997 (as amended from time to time, the
"CREDIT AGREEMENT", the terms defined therein being used herein as therein
defined), among the Company, the other Borrowers named therein, the financial
institutions from time to time party thereto (the "LENDERS"), and KeyBank
National Association, as Administrative Agent for such Lenders, and hereby
gives you notice pursuant to section 2.7(b) of the Credit Agreement, that the
Company hereby requests one or more Redenominations of General Revolving Loans
into General Revolving Loans of another currency, and in that connection sets
forth in the schedule attached hereto the information relating to each such
Redenomination.
Very truly yours,
CTB, INC.
By:
----------------------------------
Title:
<PAGE> 103
REDENOMINATION SCHEDULE
PROPOSED REDENOMINATION #1
[OF THE LOANS DESCRIBED IN THE FIRST TABLE BELOW
INTO LOANS DESCRIBED IN THE SECOND TABLE BELOW]
NAME OF APPLICABLE BORROWER: ___________________
<TABLE>
<CAPTION>
====================================================================================
DATE INTEREST PERIOD
OF AGGREGATE AMOUNT IF LOANS ARE
LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
Prime Rate One Month
_______, 19____ Loans
$____________________ Two Months
Eurocurrency
Loans Alternative Currency Three Months
and Amount:__________
[Circle One of Six Months
Above] [Complete one of above]
[Circle one of
above]
====================================================================================
</TABLE>
<TABLE>
<CAPTION>
====================================================================================
DATE INTEREST PERIOD
OF AGGREGATE AMOUNT IF LOANS ARE
LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
Prime Rate One Month
_______, 19____ Loans
$____________________ Two Months
Eurocurrency
Loans Alternative Currency Three Months
and Amount:__________
[Circle One of Six Months
Above] [Complete one of above]
[Circle one of
above]
====================================================================================
</TABLE>
<PAGE> 104
PROPOSED REDENOMINATION #2
[OF THE LOANS DESCRIBED IN THE FIRST TABLE BELOW
INTO LOANS DESCRIBED IN THE SECOND TABLE BELOW]
NAME OF APPLICABLE BORROWER: ___________________
<TABLE>
<CAPTION>
====================================================================================
DATE INTEREST PERIOD
OF AGGREGATE AMOUNT IF LOANS ARE
LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
Prime Rate One Month
_______, 19____ Loans
$____________________ Two Months
Eurocurrency
Loans Alternative Currency Three Months
and Amount:__________
[Circle One of Six Months
Above] [Complete one of above]
[Circle one of
above]
====================================================================================
</TABLE>
<TABLE>
<CAPTION>
====================================================================================
DATE INTEREST PERIOD
OF AGGREGATE AMOUNT IF LOANS ARE
LOANS TYPE OF LOANS OF LOANS EUROCURRENCY LOANS
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
Prime Rate One Month
_______, 19____ Loans
$____________________ Two Months
Eurocurrency
Loans Alternative Currency Three Months
and Amount:__________
[Circle One of Six Months
Above] [Complete one of above]
[Circle one of
above]
====================================================================================
</TABLE>
2
<PAGE> 105
EXHIBIT C-1
____________________________
FORM OF
SUBSIDIARY GUARANTY
____________________________
<PAGE> 106
EXHIBIT C-2
____________________________
FORM OF
FOREIGN SUBSIDIARY GUARANTY
____________________________
<PAGE> 107
EXHIBIT D
FORM OF OPINION OF INTERNAL COUNSEL TO THE COMPANY
________ __, 1997
The Administrative Agent
and each of the Lenders party to the
Credit Agreement referred to below
c/o KeyBank National Association
127 Public Square
Cleveland, Ohio 44114
Re: Credit Agreement, dated as of August 15, 1997,
with CTB, Inc. and the other Borrowers named therein
----------------------------------------------------
Ladies and Gentlemen:
I am the Vice President, General Counsel and Secretary of CTB, Inc., an
Indiana corporation (the "COMPANY"), and have acted as counsel to the Company
in connection with (i) the execution and delivery of the Credit Agreement,
dated as of August 15, 1997 (the "CREDIT AGREEMENT"), among the Company, the
other Borrowers named therein, the financial institutions party thereto (the
"LENDERS"), and KeyBank National Association, as Administrative Agent, and (ii)
the transactions contemplated thereby. Unless otherwise indicated, capitalized
terms used herein but not otherwise defined herein shall have the respective
meanings set forth in the Credit Agreement. This opinion letter is delivered by
me to you at the request of the Company in accordance with the requirements of
section 6.1(g) of the Credit Agreement.
I have examined and relied upon originals or copies, certified or
otherwise identified to my satisfaction as being true copies, of all such
records of the Company and its Subsidiaries, all such agreements, certificates
of officers of the Company, its Subsidiaries and others, and such other
documents, certificates and corporate or other records as I have deemed
necessary as a basis for the opinions expressed in this letter.
In my examination, I have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to me as originals and the conformity to authentic original documents
of all documents submitted to me as certified or photostatic copies. As to
facts material to the opinions expressed in this letter, I have relied upon
statements and certificates of officers of the Company and of state authorities
and on the representations, warranties and statements contained in the Credit
Documents. I have assumed that the Credit Documents, together with the other
documents referred to therein, reflect the complete understanding and agreement
of the parties thereto.
I have assumed that each entity that is a party to any of the documents
referred to herein (other than the Company and its Subsidiaries) has been duly
organized or formed and is validly existing and (if applicable) in good
standing as a corporate or similar organization under the laws of its
jurisdiction of organization, and is qualified to do business and is in good
standing as a foreign corporation or other organization in each jurisdiction
where by law it is required to be so qualified; that each such document has
been duly authorized, executed and delivered by each such entity; that each
such entity has the requisite corporate or other organizational power and
authority to perform
<PAGE> 108
such party's obligations under each such document to which it is a party; and
that each such entity has performed and will perform such party's obligations
thereunder.
I have investigated such questions of law for the purpose of rendering the
opinions in this letter as I have deemed necessary. I express no opinion in
this letter concerning any law other than the laws of the State of Indiana and
the federal laws of the United States of America. I assume, with your
permission and without independent review, that insofar as the law of any other
states may be applicable to any matters opined to herein, such law is identical
to the laws of the State of Indiana, but I express no opinion as to the extent
to which the law of the State of Indiana or the law of any other jurisdiction
may apply.
On the basis of and in reliance on the foregoing, and subject to the
limitations, qualifications and exceptions set forth below, I am of the opinion
that:
1. CORPORATE STATUS, ETC. The Company and each of its Subsidiaries
which is a Credit Party (i) is a validly existing corporation under the
laws of the jurisdiction of its formation and has the corporate power and
authority to own its property and assets and to transact the business in
which it is engaged and presently proposed to engage and (ii) to my
knowledge, is duly qualified and is authorized to do business and is in
good standing (if applicable) in each jurisdiction where it is required
to be so qualified except where the failure to be so qualified would not
have a Material Adverse Effect.
2. SUBSIDIARIES. To my knowledge, Annex II to the Credit Agreement
correctly sets forth each Subsidiary of the Company and the direct and
indirect ownership interest of the Company therein.
3. CORPORATE POWER AND AUTHORITY, ETC. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms
and provisions of the Credit Documents to which it is a party and has
taken all necessary corporate action to authorize the execution, delivery
and performance of the Credit Documents to which it is a party.
4. CREDIT DOCUMENTS. Each Credit Party has duly executed and
delivered each Credit Document to which it is a party and each such
Credit Document to which it is a party constitutes the legal, valid and
binding agreement or obligation of such Credit Party enforceable against
such Credit Party in accordance with its terms, except to the extent that
the enforceability thereof may be limited by (i) applicable bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or similar
laws, and related judicial doctrines, from time to time in effect
affecting creditors' rights and remedies generally, (ii) general
principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable
defenses and limits on the availability of equitable remedies), whether
such principles are considered in a proceeding at law or in equity, and
(iii) the qualification that certain other provisions of such Credit
Documents may be unenforceable in whole or in part under the laws
(including judicial decisions) of the State of Indiana or other
applicable jurisdictions, but the inclusion of such provisions does not
affect the validity as against any Credit Party of any of such Credit
Documents as a whole, and such Credit Documents contain adequate
provisions for enforcing payment of the obligations governed or secured
thereby and for the realization of the principal rights and benefits
afforded thereby, subject to the other qualifications and limitations
contained in this opinion letter.
5. NO VIOLATION. Neither the execution, delivery or performance by
any Credit Party of the Credit Documents to which it is a party nor
compliance with the terms and provisions thereof, (i) will contravene any
provision of any State of Indiana or United States federal law, statute,
rule, regulation (including, without limitation, Regulations G, T, U and
X of the Board of Governors of the Federal Reserve System), or, to my
knowledge, any order, writ, injunction or decree of any court or
governmental instrumentality applicable to the Company or its properties
and assets, (ii) will conflict or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of any
Credit Party pursuant to the terms of any promissory note, bond,
debenture, indenture, mortgage, deed of trust, credit or loan agreement,
or any other material agreement or other instrument, of
2
<PAGE> 109
which I have knowledge to which any Credit Party is a party or by
which it or any of its property or assets are bound or to which it may be
subject or (iii) will violate any provision of the charter, by-laws or
code of regulations of any Credit Party.
6. GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration
with, or exemption by, any Ohio or United States federal governmental or
public body or authority, or any subdivision thereof, is required to
authorize or is required as a condition to (i) the execution, delivery
and performance by any Credit Party of any Credit Document to which it is
a party, or (ii) the legality, validity, binding effect or enforceability
of any such Credit Document.
7. LITIGATION. To my knowledge, there are no actions, suits or
proceedings pending or, to, my knowledge, threatened with respect to the
Company or any other Credit Party (i) that have, or could reasonably be
expected to have, a Material Adverse Effect, or (ii) which question the
validity or enforceability of any of the Credit Documents, or of any
action to be taken by any Credit Party pursuant to any of the Credit
Documents to which it is a party.
8. INVESTMENT COMPANY ACT, ETC. Neither the Company nor any of the
other Credit Parties is subject to regulation with respect to the
creation or incurrence of Indebtedness under the Investment Company Act
of 1940, as amended, the Interstate Commerce Act, as amended, the Federal
Power Act, as amended, the Public Utility Holding Company Act of 1935, as
amended, or any applicable state public utility law.
This opinion letter is being furnished only to the addresses and is solely
for their benefit and the benefit of their participants and assigns in
connection with the transactions contemplated by the Credit Documents. This
opinion letter may not be relied upon for any other purpose, or relied upon by
any other person, firm or corporation for any purpose, without my prior written
consent.
Very truly yours,
Michael J. Kissane
Vice President, General Counsel
and Secretary
3
<PAGE> 110
EXHIBIT E
____________________________
FORM OF
ASSIGNMENT AGREEMENT
____________________________
<PAGE> 111
ASSIGNMENT AGREEMENT
DATE:_____________
Reference is made to the Credit Agreement described in Item 2 of Annex I
annexed hereto (as such Credit Agreement may hereafter be amended, modified or
supplemented from time to time, the "CREDIT AGREEMENT"). Unless defined in
Annex I attached hereto, terms defined in the Credit Agreement are used herein
as therein defined.
_____________ (the "ASSIGNOR") and ______________ (the "ASSIGNEE") hereby
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee without recourse
and without representation or warranty (other than as expressly provided
herein), and the Assignee hereby purchases and assumes from the Assignor, that
interest in and to all of the Assignor's rights and obligations under the
Credit Agreement as of the date hereof which represents the percentage interest
specified in Item 4 of Annex I (the "ASSIGNED SHARE") of all of Assignor's
outstanding rights and obligations under the Credit Agreement indicated in Item
4 of Annex I, including, without limitation, all rights and obligations with
respect to the Assigned Share of the Assignor's Commitment and of the Loans,
Unpaid Drawings and the Notes held by the Assignor. After giving effect to
such sale and assignment, the Assignee's Commitment will be as set forth in
Item 4 of Annex I.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any liens or security interests; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Company or any of its Subsidiaries or the performance or observance by the
Company of any of its obligations under the Credit Agreement or the other
Credit Documents or any other instrument or document furnished pursuant
thereto.
3. The Assignee (i) represents and warrants that it is duly authorized to
enter into and perform the terms of this Assignment Agreement; (ii) confirms
that it has received a copy of the Credit Agreement and the other Credit
Documents, together with copies of the financial statements referred to therein
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment Agreement;
(iii) agrees that it will, independently and without reliance upon the
Administrative Agent, the Assignor 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 the Credit
Agreement; (iv) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement and the other Credit Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; [and] (v) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Lender[; and (vi) to the extent legally
entitled to do so, attaches the forms described in section 5.4(b)(ii) of the
Credit Agreement(6).
4. Following the execution of this Assignment Agreement by the Assignor
and the Assignee, an executed original hereof (together with all attachments)
will be delivered to the Administrative Agent. The effective date of this
Assignment Agreement shall be the date of execution hereof by the Assignor, the
Assignee and the consent hereof by the Administrative Agent and the receipt by
the Administrative Agent of the administrative fee referred to in section
13.4(b) of the Credit Agreement, unless otherwise specified in Item 5 of Annex
I hereto (the "SETTLEMENT DATE").
- --------------------
6 If the Assignee is organized under the laws of a jurisdiction outside the
United States.
<PAGE> 112
5. Upon the delivery of a fully executed original hereof to the
Administrative Agent, as of the Settlement Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment
Agreement, have the rights and obligations of a Lender thereunder and under the
other Credit Documents and (ii) the Assignor shall, to the extent provided in
this Assignment Agreement, relinquish its rights and be released from its
obligations under the Credit Agreement and the other Credit Documents.
6. It is agreed that upon the effectiveness hereof, the Assignee shall be
entitled to (x) all interest on the Assigned Share of the Loans at the rates
specified in Item 6 of Annex I, (y) all Facility Fee (if applicable) on the
Assigned Share of the Commitment at the rate specified in Item 7 of Annex I,
and (z) all Letter of Credit Fees (if applicable) on the Assignee's
participation in all Letters of Credit at the rate specified in Item 8 of Annex
I hereto, which, in each case, accrue on and after the Settlement Date, such
interest and, if applicable, Facility Fee and Letter of Credit Fees, to be paid
by the Administrative Agent, upon receipt thereof from any Borrower, directly
to the Assignee. It is further agreed that all payments of principal made by
any Borrower on the Assigned Share of the Loans which occur on and after the
Settlement Date will be paid directly by the Administrative Agent to the
Assignee. Upon the Settlement Date, the Assignee shall pay to the Assignor an
amount specified by the Assignor in writing which represents the Assigned Share
of the principal amount of the respective Loans made by the Assignor pursuant
to the Credit Agreement which are outstanding on the Settlement Date, net of
any closing costs, and which are being assigned hereunder. The Assignor and the
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement for periods prior to the Settlement Date directly between themselves
on the Settlement Date.
7. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By: By:
---------------------------------- -------------------------------
Title: Title:
Acknowledged and Agreed:
KeyBank National Association,
as Administrative Agent
By:
----------------------------------
Vice President
2
<PAGE> 113
ANNEX I
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
ANNEX I
1. The Borrower:
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of August 15, 1997, among CTB, Inc., the other
Borrowers named therein, the Lenders from time to time party thereto, and
KeyBank National Association, as Administrative Agent.
3. Date of Assignment Agreement:
_________ ___, _____
4. Amounts (as of date of item #3 above):
<TABLE>
<CAPTION>
General General Swing Line Swing Line
Revolving Revolving Revolving Revolving
Commitment Loans Commitment Loans
---------- --------- ---------- ---------
<S> <C> <C> <C> <C>
a. Aggregate Amount
for all Lenders $________ $_________ $_________ $_________
b. Assigned Share _________ __________ __________ __________
c. Amount of Assigned
Share $________ $_________ $_________ $_________
</TABLE>
5. Settlement Date:
_________ ___, ___
6. Rate of Interest
to the Assignee: As set forth in section 2.8 of the Credit
Agreement (unless otherwise agreed to by the
Assignor and the Assignee).(7)
__________________________
(7) The Borrower and the Administrative Agent shall direct the entire amount of
the interest to the Assignee at the rate set forth in section 2.8 of the
Credit Agreement, with the Assignor and Assignee effecting any agreed upon
sharing of interest through payments by the Assignee to the Assignor.
<PAGE> 114
7. Facility
Fee: As set forth in section 4.1(a) of the Credit
Agreement (unless otherwise agreed to by the
Assignor and the Assignee)(8).
8. Letter of
Credit Fees: As set forth in section 4.1(b) of the Credit
Agreement (unless otherwise agreed to by the
Assignor and the Assignee)(9).
9. Notices:
ASSIGNOR: ASSIGNEE:
______________________ ______________________
______________________ ______________________
______________________ ______________________
Attention: Attention:
Telephone No.: Telephone No.:
Facsimile No.: Facsimile No.:
10. Payment Instructions:
ASSIGNOR: ASSIGNEE:
____________________ _______________________
____________________ _______________________
____________________ _______________________
ABA No.: ABA No.:
Account No.: Account No.:
Reference: Reference:
Attention: Attention:
_______________________
(8) The Borrower and the Administrative Agent shall direct the entire amount of
the Facility Fee to the Assignee at the rate set forth in section 4.1(a)
of the Credit Agreement, with the Assignor and the Assignee effecting any
agreed upon sharing of Facility Fee through payment by the Assignee to the
Assignor.
(9) The Borrower and the Administrative Agent shall direct the entire amount of
the Letter of Credit Fees to the Assignee at the rate set forth in section
4.1(b) of the Credit Agreement, with the Assignor and the Assignee
effecting any agreed upon sharing of the Letter of Credit Fees through
payment by the Assignee to the Assignor.
2
<PAGE> 115
EXHIBIT F
SECTION 5.4(B)(II) CERTIFICATE
Reference is hereby made to the Credit Agreement dated as of August 15,
1997, among CTB, Inc., the other Borrowers named therein, the financial
institutions party thereto from time to time, and KeyBank National Association,
as Administrative Agent (the "CREDIT AGREEMENT"). Pursuant to the provisions
of section 5.4(b)(ii) of the Credit Agreement, the undersigned hereby certifies
that it is not a "bank" as such term is used in section 881(c)(3)(A) of the
Internal Revenue Code of 1986, as amended.
[Name of Bank]
By:
-------------------------------------
Title:
Dated:
---------------
<PAGE> 116
EXHIBIT G
FORM OF ELECTION TO PARTICIPATE
[Date]
KeyBank National Association,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Group
Re: Election to Participate as a Foreign Borrowing Subsidiary
under the Credit Agreement, dated as of August 15, 1997, to
which CTB, Inc. is a party
-----------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of August 15, 1997 (as
amended from time to time, the "CREDIT AGREEMENT", the terms defined therein
being used herein as therein defined), among CTB, Inc. (the "COMPANY"), the
other Borrowers named therein, the financial institutions from time to time
party thereto (the "LENDERS"), and KeyBank National Association, as
Administrative Agent for such Lenders.
1. The undersigned, [name of Foreign Borrowing Subsidiary], a
[jurisdiction of incorporation] corporation, hereby elects to be a Foreign
Borrowing Subsidiary for purposes of the Credit Agreement effective from the
date hereof until an Election to Terminate shall have been delivered on behalf
of the undersigned in accordance with the Credit Agreement. The undersigned
confirms that the representations and warranties set forth in the Credit
Agreement insofar as they apply to the undersigned are true and correct as to
the undersigned as of the date hereof, and the undersigned hereby agrees to
perform all the obligations of a Foreign Borrowing Subsidiary under, and to be
bound in all respects by the terms of, the Credit Agreement, to the extent
applicable to a Foreign Borrowing Subsidiary, as if the undersigned had been an
original signatory party thereto.
2. The address to which all notices to the undersigned under the Credit
Agreement should be directed is:
[insert address]
3. [Other than as set forth in paragraph 4 hereof,] there is no income,
stamp or other tax of [jurisdiction of incorporation and, if different,
principal place of business], or any taxing authority thereof or therein,
imposed by or in the nature of withholding or otherwise, which is imposed on
any payment to be made by the undersigned pursuant to the Credit Agreement or
its Notes, or is imposed on or by virtue of the execution, delivery or
enforcement of its Election to Participate or of its Notes.
[4. Tax disclosure]
<PAGE> 117
5. This instrument shall be construed in accordance with and governed by
the laws of the State of Ohio, United States of America.
6. This instrument may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Very truly yours,
[NAME OF SUBSIDIARY]
BY:
---------------------------------------
NAME:
TITLE:
The undersigned hereby confirms that (i) [name of Subsidiary] is a Foreign
Borrowing Subsidiary for purposes of the Credit Agreement described above and
(ii) the representations and warranties set forth in the Credit Agreement are
true and correct as to [name of Subsidiary] as of the date hereof.
CTB, INC.
BY:
---------------------------------------
NAME:
TITLE:
Receipt of the above Election to Participate
is hereby acknowledged on and as of
the date set forth above.
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
BY:
-------------------------------------------
VICE PRESIDENT
2
<PAGE> 118
EXHIBIT H
FORM OF ELECTION TO TERMINATE
[Date]
KeyBank National Association,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Group
Re: Election to Terminate status as a Foreign Borrowing Subsidiary
under the Credit Agreement, dated as of August 15, 1997, to
which CTB, Inc. is a party
--------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of August 15, 1997 (as
amended from time to time, the "CREDIT AGREEMENT", the terms defined therein
being used herein as therein defined), among CTB, Inc. (the "COMPANY"), the
other Borrowers named therein, the financial institutions from time to time
party thereto (the "LENDERS"), and KeyBank National Association, as
Administrative Agent for such Lenders.
1. The undersigned, [name of Foreign Borrowing Subsidiary], a
[jurisdiction of incorporation] corporation, hereby elects to terminate its
status a Foreign Borrowing Subsidiary for purposes of the Credit Agreement
effective from the date hereof.
2. The undersigned hereby represents and warrants that all principal and
interest on all Notes of the undersigned and all other amounts payable by the
undersigned pursuant to the Credit Agreement have been paid in full on or prior
to the date hereof.
3. This Election to Terminate shall not operate to release the undersigned
from any obligation of the undersigned under section 5.4 or other indemnity
provisions of the Credit Agreement with respect to any claims arising under
such provisions on or prior to the date hereof which have not yet been
asserted.
4. This instrument shall be construed in accordance with and governed by
the laws of the Sate of Ohio, United states of America.
5. This instrument may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Very truly yours,
[NAME OF SUBSIDIARY]
BY:
-------------------------------------
NAME:
TITLE:
<PAGE> 119
The undersigned hereby confirms that the status of [name of Subsidiary] as
a Foreign Borrowing Subsidiary for purposes of the Credit Agreement described
above is terminated as of the date set forth above.
CTB, INC.
BY:
---------------------------------------
NAME:
TITLE:
Receipt of the above Election to Terminate
is hereby acknowledged on and as of
the date set forth above.
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
BY:
----------------------------------------
VICE PRESIDENT
2
<PAGE> 1
_______________________________________________________________________________
_______________________________________________________________________________
CTB, INC.
CHORE-TIME BROCK HOLDING B. V.
AS BORROWERS
AND
THE FINANCIAL INSTITUTIONS NAMED HEREIN
AS LENDERS
AND
KEYBANK NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT
_____________________
AMENDMENT NO. 1
DATED AS OF
MARCH 1, 1998
TO
CREDIT AGREEMENT
DATED AS OF
AUGUST 15, 1997
_____________________
_______________________________________________________________________________
_______________________________________________________________________________
<PAGE> 2
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of March 1, 1998 ("THIS
AMENDMENT"), among the following:
(i) CTB, INC., an Indiana corporation (herein, together with its
successors and assigns, the "COMPANY" or a "BORROWER");
(ii) CHORE-TIME BROCK HOLDING B. V., a private limited liability
company formed under the laws of The Netherlands (herein, together with
its successors and assigns, "CHORE-TIME NETHERLANDS" or a "BORROWER"),
which is a Wholly-Owned Subsidiary of the Company;
(iii) the financial institutions which are signatories hereto, each
of which is one of the Lenders (the "LENDERS") party to the Credit
Agreement; and
(iv) KEYBANK NATIONAL ASSOCIATION, a national banking association,
as Administrative Agent (the "ADMINISTRATIVE AGENT") for the Lenders
under the Credit Agreement:
PRELIMINARY STATEMENTS:
(1) The Borrowers entered into the Credit Agreement (the "CREDIT
AGREEMENT"), dated as of August 15, 1997, with the Lenders named therein and
KeyBank National Association, as Administrative Agent for the Lenders under the
Credit Agreement.
(2) Capitalized terms used herein without definition shall have the
respective meanings ascribed thereto in the Credit Agreement.
(3) The Borrower is a Subsidiary of CTB International Corp., a Delaware
corporation (herein, together with its successors and assigns, the "PARENT")
which is subject to the public reporting requirements of the 1934 Act.
(4) The Borrowers have requested the Lenders and the Administrative Agent
to amend certain of the financial reporting requirements of the Credit Agreement
in order to avoid the necessity of obtaining audited financial statements for
the Company under circumstances where the Company represents substantially all
of the assets of the Parent and contributes substantially all of the earnings
before interest, taxes, depreciation and amortization of the Parent, and the
Lenders and the Administrative Agent are willing to amend the Credit Agreement,
all as more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
<PAGE> 3
SECTION 1. AMENDMENTS.
1.1. ADDITIONAL DEFINITIONS. Effective on the Effective Date provided in
section 4 hereof, the following definitions are added to section 1.1 of the
Credit Agreement in appropriate alphabetic order:
"PARENT" shall mean CTB International Corp., a Delaware corporation,
and its successors and assigns.
"PARENT FINANCIAL STATEMENT CONDITIONS" shall mean the following:
(i) as of the end of any applicable fiscal period the Company
is a Wholly-Owned Subsidiary of the Parent;
(ii) the Parent and the Company have the same fiscal year,
(iii) the consolidated total assets of the Company represent
at least 95% of the consolidated total assets of the Parent,
(iv) the Company's Consolidated EBITDA for such fiscal year
represents at least 95% of the consolidated earnings before
interest, taxes, depreciation and amortization of the Parent for
such fiscal year, and
(v) the Company contemporaneously delivers to the Lenders and
the Administrative Agent a certificate of the Chief Financial
Officer or other responsible financial officer of the Parent
demonstrating, in reasonable detail, satisfaction of the conditions
specified in clauses (iii) and (iv) above.
1.2. FINANCIAL REPORTING REQUIREMENTS. Effective on the Effective Date
provided in section 4 hereof, (i) PROVISOS are added to sections 8.1(a) and (b)
of the Credit Agreement, and (ii) section 8.1(c) of the Credit Agreement is
amended to include complementary changes, so that, after giving effect thereto,
sections 8.1(a), (b) and (c) of the Credit Agreement read in their entirety as
follows:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any
event within 90 days after the close of each fiscal year of the Company,
the consolidated balance sheets of the Company and its consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, of stockholder's equity and of cash
flows for such fiscal year, in each case setting forth comparative figures
for the preceding fiscal year, all in reasonable detail and accompanied by
the opinion with respect to such consolidated financial statements of
independent public accountants of recognized national standing selected by
the Company, which opinion shall be unqualified and shall (i) state that
such accountants audited such consolidated financial statements in
accordance with generally accepted auditing standards, that such
accountants believe that such audit provides a reasonable basis for their
opinion, and that in their opinion such consolidated financial statements
present fairly, in all material respects, the consolidated financial
position of the Company and its consolidated subsidiaries as at the end of
such fiscal year and the consolidated results of their operations and cash
flows for such fiscal year in conformity with generally accepted
accounting principles, or (ii) contain such statements as are customarily
included in unqualified reports of independent accountants in conformity
with the recommendations and requirements of the American Institute of
Certified Public Accountants (or any successor
2
<PAGE> 4
organization); PROVIDED that if the Parent Financial Statement Conditions
are satisfied at such time, the Company may, in lieu of delivering such
financial statements, deliver instead the consolidated financial
statements of the Parent and its consolidated subsidiaries as at the end
of and for such fiscal year, in the form filed with the SEC under the 1934
Act as part of the Parent's Report on Form 10-K for such fiscal year,
accompanied by the opinion with respect to such consolidated financial
statements of independent public accountants of recognized national
standing selected by the Parent, which opinion shall be unqualified.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year of the Company, the unaudited
condensed consolidated balance sheets of the Company and its consolidated
Subsidiaries as at the end of such quarterly period and the related
unaudited condensed consolidated statements of income and of cash flows
for such quarterly period, and setting forth, in the case of such
unaudited consolidated statements of income and of cash flows, comparative
figures for the related periods in the prior fiscal year, and which
consolidated financial statements shall be certified on behalf of the
Company by the Chief Financial Officer or other Authorized Officer of the
Company, subject to changes resulting from normal year-end audit
adjustments; PROVIDED that if the Parent Financial Statement Conditions
are satisfied at such time, the Company may, in lieu of delivering such
financial statements, deliver instead the condensed consolidated
financial statements of the Parent and its consolidated subsidiaries as at
the end of and for such fiscal quarter (or the portion of the fiscal year
elapsed to date), in the form filed with the SEC under the 1934 Act as
part of the Parent's Report on Form 10-Q for such fiscal quarter.
(c) OFFICER'S COMPLIANCE CERTIFICATES. At the time of the delivery
of the financial statements provided for in sections 8.1(a) and (b), a
certificate on behalf of the Company of the Chief Financial Officer or
other Authorized Officer of the Company to the effect that, to the best
knowledge of the Company, no Default or Event of Default exists or, if any
Default or Event of Default does exist, specifying the nature and extent
thereof, which certificate shall set forth (x) the calculations required
to establish compliance with the provisions of sections 9.7 through 9.10,
inclusive, of this Agreement, including an identification of the amounts
of any financial items of persons or business units acquired by the
Company for any periods prior to the date of acquisition which are used in
making such calculations, and (y) if the Parent's financial statements are
being delivered instead of the Company's financial statements as provided
above, the calculations, in reasonable detail, of any adjustments to the
items reflected in such financial statements pertinent to establishing
compliance with the provisions of sections 9.7 through 9.10, inclusive, of
this Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrowers jointly and severally represent and warrant that (i) this
Amendment has been duly authorized by all necessary corporate action on the part
of the Borrowers, has been duly executed and delivered by a duly authorized
officer or officers of the Borrowers, and constitutes the valid and binding
agreement of the Borrowers, enforceable against the Borrowers in accordance with
its terms; (ii) the representations and warranties of the Borrowers contained in
the Credit Agreement, as amended hereby, are true and correct on and as of the
date hereof as though made on and as of the date hereof, except to the extent
that such representations and warranties expressly relate to a specified date,
in which case such representations and warranties are hereby reaffirmed as true
and correct when made; (iii) no condition or
3
<PAGE> 5
event has occurred or exists which constitutes or which, after notice or lapse
of time or both, would constitute an Event of Default; and (iv) the Borrowers
are in full compliance with all covenants and agreements contained in the Credit
Agreement, as amended hereby, and the other Credit Documents to which any
Borrower is a party.
SECTION 3. RATIFICATIONS.
The terms and provisions set forth in this Amendment shall modify and
supersede all inconsistent terms and provisions set forth in the Credit
Agreement, and except as expressly modified and superseded by this Amendment,
the terms and provisions of the Credit Agreement are ratified and confirmed and
shall continue in full force and effect.
SECTION 4. BINDING EFFECT.
This Amendment shall become effective if and when, on a date (the
"EFFECTIVE DATE"), on or prior to April 15, 1998, (i) this Amendment shall have
been executed by the Borrowers and the Administrative Agent, and counterparts
hereof as so executed shall have been delivered to the Administrative Agent,
(ii) the Acknowledgment and Consent appended hereto shall have been executed by
the Credit Parties named therein, and counterparts thereof as so executed shall
have been delivered to the Administrative Agent, (iii) the Administrative Agent
shall have been notified by the Required Lenders that such Lenders have executed
this Amendment (which notification may be by facsimile or other written
confirmation of such execution), and (iv) the Administrative Agent shall have
notified the Company and each Lender in writing that the conditions specified in
the foregoing clauses have been satisfied; and thereafter this Amendment shall
be binding upon and inure to the benefit of the Borrowers, each Lender and the
Administrative Agent and their respective permitted successors and assigns,
except that no Borrower shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of all of the Lenders.
SECTION 5. MISCELLANEOUS.
5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Amendment shall survive the execution and delivery of
this Amendment, and no investigation by the Administrative Agent or any Lender
or any subsequent Loan or issuance of a Letter of Credit shall affect the
representations and warranties or the right of the Administrative Agent or any
Lender to rely upon them.
5.2. REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any and all
other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Credit Agreement as amended hereby, are
hereby amended so that any reference therein to the Credit Agreement shall mean
a reference to the Credit Agreement as amended hereby.
5.3. EXPENSES. As provided in the Credit Agreement, but without limiting
any terms or provisions thereof, the Company agrees to pay on demand all
reasonable costs and expenses incurred by the Administrative Agent in connection
with the preparation, negotiation, and execution of this Amendment, including
without limitation the costs and fees of the Administrative Agent's special
legal counsel, regardless of whether this Amendment becomes effective in
accordance with the terms hereof,
4
<PAGE> 6
and all costs and expenses incurred by the Administrative Agent or any Lender in
connection with the enforcement or preservation of any rights under the Credit
Agreement, as amended hereby.
5.4. SEVERABILITY. Any term or provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
5.5. APPLICABLE LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Ohio.
5.6. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.7. ENTIRE AGREEMENT. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto relating to the subject matter hereof or any other
subject matter relating to the Credit Agreement.
5.8. COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same agreement.
[The balance of this page is intentionally blank.]
5
<PAGE> 7
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as
of the date first above written.
<TABLE>
<S> <C>
CTB, INC. COMERICA BANK
By:____________________________________ By:____________________________________
Vice President & Chief Financial Officer Vice President
CHORE-TIME BROCK HOLDING B. V. LaSALLE NATIONAL BANK
By: CTB, Inc.,
one of its Managing Directors By:____________________________________
Commercial Lending Officer
By:____________________________________
Vice President & Chief Financial Officer
KEYBANK NATIONAL ASSOCIATION, NBD BANK, N. A.
individually and as Administrative Agent
By:____________________________________
Vice President
By:____________________________________
Vice President
BANK ONE, INDIANA, NATIONAL COOPERATIEVE CENTRALE
ASSOCIATION RAIFFEISEN-BOERENLEEBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
By:____________________________________
Vice President
By:____________________________________
Title:
By:____________________________________
Vice President
</TABLE>
6
<PAGE> 8
ACKNOWLEDGMENT AND CONSENT
For the avoidance of doubt, and without limitation of the intent and effect
of sections 5 and 6 of the Subsidiary Guaranty and sections 6 and 7 of the
Foreign Subsidiary Guaranty (as such terms are defined in the Credit Agreement
referred to in the Amendment No. 1 to Credit Agreement (the "AMENDMENT"), to
which this Acknowledgment and Consent is appended), the undersigned hereby
unconditionally and irrevocably (i) acknowledges receipt of a copy of the Credit
Agreement, as in effect prior to the Amendment, and the Amendment, and (ii)
consents to all of the terms and provisions of the Credit Agreement, as in
effect prior to the Amendment, as amended by the Amendment.
Capitalized terms which are used herein without definition shall have the
respective meanings ascribed thereto in the Credit Agreement referred to herein.
This Acknowledgment and Consent is for the benefit of the Lenders and the
Administrative Agent, any other person who is a third party beneficiary of the
Subsidiary Guaranty and/or the Foreign Subsidiary Guaranty, and their respective
successors and assigns. No term or provision of this Acknowledgment and Consent
may be modified or otherwise changed without the prior written consent of the
Administrative Agent, given as provided in the Credit Agreement. This
Acknowledgment and Consent shall be binding upon the successors and assigns of
the undersigned. This Acknowledgment and Consent may be executed by the
undersigned in separate counterparts, each of which shall be an original and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Acknowledgment and Consent as of the date of the Amendment referred to herein.
<TABLE>
<S> <C>
CTB CREDIT CORPORATION CHORE-TIME TEXAS, INC.
By:_________________________________ By:_________________________________
Title: Title:
CTB CREDIT CORPORATION FANCOM HOLDING B. V.
By:_________________________________ By:_________________________________
Title: Jan H. M. Cremers
Managing Director
CTB SALES CORPORATION FANCOM B. V.
By:_________________________________ By:_________________________________
Title: Jan H. M. Cremers
Managing Director
By:_________________________________
Har H. W. Gootzen
Managing Director
</TABLE>
<PAGE> 1
================================================================================
================================================================================
CTB, INC.
CHORE-TIME BROCK HOLDING B. V.
AS BORROWERS
AND
THE FINANCIAL INSTITUTIONS NAMED HEREIN
AS LENDERS
AND
KEYBANK NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT
_____________________
AMENDMENT NO. 2
DATED AS OF
JUNE 1, 1998
TO
CREDIT AGREEMENT
DATED AS OF
AUGUST 15, 1997
_____________________
================================================================================
================================================================================
<PAGE> 2
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of June 1, 1998 ("THIS
AMENDMENT"), among the following:
(i) CTB, INC., an Indiana corporation (herein, together with its
successors and assigns, the "COMPANY" or a "BORROWER");
(ii) CHORE-TIME BROCK HOLDING B. V., a private limited liability
company formed under the laws of The Netherlands (herein, together with its
successors and assigns, "CHORE-TIME NETHERLANDS" or a "BORROWER"), which is
a Wholly-Owned Subsidiary of the Company;
(iii) the financial institutions which are signatories hereto, each of
which is one of the Lenders (the "LENDERS") party to the Credit Agreement;
and
(iv) KEYBANK NATIONAL ASSOCIATION, a national banking association, as
Administrative Agent (the "ADMINISTRATIVE AGENT") for the Lenders under the
Credit Agreement:
PRELIMINARY STATEMENTS:
(1) The Borrowers entered into the Credit Agreement, dated as of August
15, 1997, as amended by Amendment No. 1 thereto, dated as of March 1, 1998,
with the Lenders named therein and KeyBank National Association, as
Administrative Agent for the Lenders under the Credit Agreement (as so amended,
the "CREDIT AGREEMENT").
(2) Capitalized terms used herein without definition shall have the
respective meanings ascribed thereto in the Credit Agreement.
(3) The Borrowers have requested the Lenders and the Administrative Agent
to amend certain of the terms of the Credit Agreement, and the Lenders and the
Administrative Agent are willing to amend the Credit Agreement, all as more
fully set forth below.
(4) The parties have determined that it wold be appropriate to add
provisions to the Credit Agreement with respect to the introduction or
changeover to a single or unified European currency commonly referred to as the
"euro", and the Borrowers, the Lenders and the Administrative Agent are willing
to add such provisions to the Credit Agreement, all as more fully set forth
below.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1. EXTENSION OF MATURITY DATE. Effective on the Effective Date
provided in section 4 hereof, the date August 15, 2002 which appears in the
definition of the term Maturity Date in section 1.1 of the Credit Agreement is
changed to May 31, 2003.
<PAGE> 3
1.2. ACQUISITIONS. Effective on the Effective Date provided in section 4
hereof, (i) the dollar amount $40,000,000 which appears in clause (C) of the
definition of the term Permitted Acquisitions in section 1.1 of the Credit
Agreement is changed to $60,000,000; and (ii) the dollar amount $5,000,000
which appears in clause (d) of section 9.2 of the Credit Agreement is changed
to $10,000,000.
1.3. BASKET INVESTMENTS AND GUARANTEES. Effective on the Effective Date
provided in section 4 hereof, section 9.5(q) of the Credit Agreement is amended
by, among other things, increasing the amount of the Basket Investments and
Basket Guarantees provided for therein, with the result that, as so amended,
such section 9.5(q) reads in its entirety as follows:
(q) any other loans, advances, investments (whether in the form of
cash or contribution of property, and if in the form of a contribution of
property, such property shall be valued for purposes of this clause (q) at
the fair value thereof as reasonably determined by the Company) and
Guaranty Obligations, including, without limitation, in or to or for the
benefit of, Subsidiaries, joint ventures, or other persons, not otherwise
permitted by the foregoing clauses, made after March 31, 1997 (such loans,
advances and investments, collectively, "BASKET INVESTMENTS", and such
Guaranty Obligations, collectively "BASKET GUARANTEES"), if at the time of
making any such Basket Investment or Basket Guarantee, and after giving
effect thereto,
(i) no Event of Default shall have occurred and be continuing,
or would result therefrom,
(ii) the aggregate Basket Investments so made do not exceed an
amount equal to the greater of (A) $10,000,000, or (B) 15% of the
Company's Consolidated Net Worth as of the date of the then most
recent financial statements furnished to the Lenders under this
Agreement, in each case taking into account the repayment of any loans
or advances comprising such Basket Investments, and
(iii) the aggregate Basket Guarantees so made cover an aggregate
principal amount of Indebtedness outstanding at any time which is not
in excess of the greater of (A) $5,000,000, or (B) 10% of the
Company's Consolidated Net Worth as of the date of the then most
recent financial statements furnished to the Lenders under this
Agreement.
1.4. EURO PROVISIONS. Effective on the Effective Date provided in
section 4 hereof, the Credit Agreement is amended by (i) adding a new clause
(iii) to the definition of the term Alternative Currency in section 1.1 of the
Credit Agreement, with the result that such term shall read in its entirety as
set forth below, and (ii) adding the following additional sections 2.13 and
13.23 to the Credit Agreement:
"ALTERNATIVE CURRENCY" shall mean and include (i) Dutch Guilders,
German Marks, French Francs, Pounds Sterling and European Currency Units
(ECUs), if at the time any such currency is readily and freely transferable
and convertible into Dollars; (ii) any other lawful currency other than
Dollars which is readily and freely transferable and convertible into
Dollars and which (A) in the case of any General Revolving Loans to be
denominated in such Alternative Currency, is acceptable to all of the
Lenders with General Revolving Commitments, or (B) in the case of any
Letter of Credit which is payable in such Alternative Currency, is
acceptable to the Required Lenders and any applicable Letter of Credit
Issuer; and (iii) after the commencement of the third stage of EMU, the
euro (as such terms are defined in section 13.23), if at the time the euro
is readily and freely transferable and convertible into Dollars.
2
<PAGE> 4
2.13. EURO PROVISIONS. The applicable provisions of the foregoing
section 2 which relate to Alternative Currencies are subject to the
provisions of section 13.23.
13.23. EUROPEAN ECONOMIC AND MONETARY UNION. (a) DEFINITIONS. In
this section 13.23 and in each other provision of this Agreement to which
reference is made expressly or impliedly, the following terms have the
meanings given to them in this section 13.23:
"COMMENCEMENT OF THE THIRD STAGE OF EMU" shall mean the date of
commencement of the third stage of EMU (at the date hereof expected to
be January 1, 1999) or the date on which circumstances arise which (in
the opinion of the Administrative Agent) have substantially the same
effect and result in substantially the same consequences as
commencement of the third stage of EMU as contemplated by the Treaty
on European Union.
"EMU" shall mean the economic and monetary union as
contemplated by the Treaty on European Union.
"EMU LEGISLATION" shall mean legislative measures of the
European Council for the introduction of, changeover to or operation
of a single or unified European currency (whether known as the euro or
otherwise), being in part the implementation of the third stage of
EMU.
"EURO" shall mean the single currency of participating member
states of the European Union.
"EURO UNIT" shall mean the currency unit of the euro.
"NATIONAL CURRENCY UNIT" shall mean the unit of currency (other
than a euro unit) of a participating member state.
"PARTICIPATING MEMBER STATE" shall mean each state so described
in any EMU legislation.
"TREATY ON EUROPEAN UNION" shall mean the Treaty of Rome of
March 25, 1957, as amended by the Single European Act 1986 and the
Maastricht Treaty (which was signed in Maastricht on February 7, 1992,
and came into force on November 1, 1993), as amended from time to
time.
(b) EFFECTIVENESS OF PROVISIONS. The provisions of paragraphs (c)
to (j) below (inclusive) shall be effective at and from the commencement of
the third stage of EMU, PROVIDED, that, if and to the extent that any such
provision relates to any state (or the currency of such state) that is not
a participating member state on the commencement of the third stage of EMU,
such provision shall become effective in relation to such state (and the
currency of such state) at and from the date on which such state becomes a
participating member state.
(c) REDENOMINATION AND ALTERNATIVE CURRENCIES. Each obligation
under this Agreement of a party to this Agreement which has been
denominated in the national currency unit
3
<PAGE> 5
of a participating member state shall be redenominated into the euro unit
in accordance with the EMU legislation, PROVIDED, that if and to the extent
that any EMU legislation provides that following the commencement of the
third stage of EMU an amount denominated either in the euro or in the
national currency unit of a participating member state and payable within
that participating member state by crediting an account of the creditor can
be paid by the debtor either in the euro unit or in that national currency
unit, each party to this Agreement shall be entitled to pay or repay such
amount either in the euro unit or in such national currency unit.
(d) LOANS. Any Loan in the currency of a participating member
state shall be made in the euro unit.
(e) BUSINESS DAYS. With respect to any amount denominated or to be
denominated in the euro or a national currency unit, any reference to a
"Business Day" shall be construed as a reference to a day (other than a
Saturday or a Sunday) on which banks are generally open for business in (i)
Cleveland, Ohio; and (ii) Frankfurt am Main, Germany (or such principal
financial center in such participating member state or states as the
Administrative Agent may from time to time nominate for this purpose).
(f) PAYMENTS TO THE ADMINISTRATIVE AGENT. Sections 5.3 and 5.4
shall be construed so that, in relation to the payment of any amount of
euro units or national currency units, such amount shall be made available
to the Administrative Agent in immediately available, freely transferable,
cleared funds to such account with such bank in Frankfurt am Main, Germany
(or such other principal financial center in such participating member
state as the Administrative Agent may from time to time nominate for this
purpose) as the Administrative Agent shall from time to time nominate for
this purpose.
(g) PAYMENTS BY THE ADMINISTRATIVE AGENT TO THE LENDERS. Any
amount payable by the Administrative Agent to the Lenders under this
Agreement in the currency of a participating member state shall be paid in
the euro unit.
(h) PAYMENTS BY THE ADMINISTRATIVE AGENT GENERALLY. With respect
to the payment of any amount denominated in the euro or in a national
currency unit, the Administrative Agent shall not be liable to the
applicable Borrower or any of the Lenders in any way whatsoever for any
delay, or the consequences of any delay, in the crediting to any account of
any amount required by this Agreement to be paid by the Administrative
Agent if the Administrative Agent shall have taken all relevant steps to
achieve, on the date required by this Agreement, the payment of such amount
in immediately available, freely transferable, cleared funds (in the euro
unit or, as the case may be, in a national currency unit) to the account
with the bank in the principal financial center in the participating member
state which the applicable Borrower or, as the case may be, any Lender
shall have specified for such purpose. In this paragraph (h), "all relevant
steps" means all such steps as may be prescribed from time to time by the
regulations or operating procedures of such clearing or settlement system
as the Administrative Agent may from time to time determine for the purpose
of clearing or settling payments of the euro.
(i) BASIS OF ACCRUAL. If the basis of accrual of interest or Fees
expressed in this Agreement with respect to the currency of any state that
becomes a participating member state shall be inconsistent with any
convention or practice in the London Interbank Market or otherwise provided
in this Agreement for the basis of accrual of interest or fees in respect
of the euro, such
4
<PAGE> 6
convention or practice shall replace such expressed basis effective as of
and from the date on which such state becomes a participating member state;
PROVIDED, that if any Loan in the currency of such state is outstanding
immediately prior to such date, such replacement shall take effect, with
respect to such Loan, at the end of the then current Interest Period.
(j) ROUNDING AND OTHER CONSEQUENTIAL CHANGES. Without prejudice
and in addition to any method of conversion or rounding prescribed by any
EMU legislation and without prejudice to the respective liabilities for
indebtedness of the applicable Borrower to the Lenders and the Lenders to
the applicable Borrower under or pursuant to this Agreement:
(i) each reference in this Agreement to a minimum amount (or
an integral multiple thereof) in a national currency unit to be paid
to or by the Administrative Agent shall be replaced by a reference to
such reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit as the Administrative Agent may
from time to time specify; and
(ii) except as expressly provided in this section 13.23, each
provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to
time specify to be necessary or appropriate to reflect the
introduction of or changeover to the euro in participating member
states.
(k) INCREASED COSTS. The applicable Borrower shall from time to
time, at the request of the Administrative Agent, pay to the Administrative
Agent for the account of each Lender the amount of any cost or increased
cost incurred by, or of any reduction in any amount payable to or in the
effective return on its capital to, or of interest or other return foregone
by, such Lender or any holding company of such Lender as a result of the
introduction of, changeover to or operation of the euro in any
participating member state, other than any such cost or reduction or amount
foregone reflected in the Eurocurrency Rate.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrowers jointly and severally represent and warrant that (i) this
Amendment has been duly authorized by all necessary corporate action on the
part of the Borrowers, has been duly executed and delivered by a duly
authorized officer or officers of the Borrowers, and constitutes the valid and
binding agreement of the Borrowers, enforceable against the Borrowers in
accordance with its terms; (ii) the representations and warranties of the
Borrowers contained in the Credit Agreement, as amended hereby, are true and
correct on and as of the date hereof as though made on and as of the date
hereof, except to the extent that such representations and warranties expressly
relate to a specified date, in which case such representations and warranties
are hereby reaffirmed as true and correct when made; (iii) no condition or
event has occurred or exists which constitutes or which, after notice or lapse
of time or both, would constitute an Event of Default; and (iv) the Borrowers
are in full compliance with all covenants and agreements contained in the
Credit Agreement, as amended hereby, and the other Credit Documents to which
any Borrower is a party.
5
<PAGE> 7
SECTION 3. RATIFICATIONS.
The terms and provisions set forth in this Amendment shall modify and
supersede all inconsistent terms and provisions set forth in the Credit
Agreement, and except as expressly modified and superseded by this Amendment,
the terms and provisions of the Credit Agreement are ratified and confirmed and
shall continue in full force and effect.
SECTION 4. BINDING EFFECT.
This Amendment shall become effective if and when, on a date (the
"EFFECTIVE DATE"), on or prior to June 30, 1998, (i) this Amendment shall have
been executed by the Borrowers and the Administrative Agent, and counterparts
hereof as so executed shall have been delivered to the Administrative Agent,
(ii) the Acknowledgment and Consent appended hereto shall have been executed by
the Credit Parties named therein, and counterparts thereof as so executed shall
have been delivered to the Administrative Agent, (iii) the Administrative Agent
shall have been notified by all of the Lenders that such Lenders have executed
this Amendment (which notification may be by facsimile or other written
confirmation of such execution), and (iv) the Administrative Agent shall have
notified the Company and each Lender in writing that the conditions specified in
the foregoing clauses have been satisfied; and thereafter this Amendment shall
be binding upon and inure to the benefit of the Borrowers, each Lender and the
Administrative Agent and their respective permitted successors and assigns,
except that no Borrower shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of all of the Lenders.
SECTION 5. MISCELLANEOUS.
5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Amendment shall survive the execution and delivery of
this Amendment, and no investigation by the Administrative Agent or any Lender
or any subsequent Loan or issuance of a Letter of Credit shall affect the
representations and warranties or the right of the Administrative Agent or any
Lender to rely upon them.
5.2. REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any and all
other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Credit Agreement as amended hereby, are
hereby amended so that any reference therein to the Credit Agreement shall mean
a reference to the Credit Agreement as amended hereby.
5.3. EXPENSES. As provided in the Credit Agreement, but without limiting
any terms or provisions thereof, the Company agrees to pay on demand all
reasonable costs and expenses incurred by the Administrative Agent in
connection with the preparation, negotiation, and execution of this Amendment,
including without limitation the costs and fees of the Administrative Agent's
special legal counsel, regardless of whether this Amendment becomes effective
in accordance with the terms hereof, and all costs and expenses incurred by the
Administrative Agent or any Lender in connection with the enforcement or
preservation of any rights under the Credit Agreement, as amended hereby.
5.4. SEVERABILITY. Any term or provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
6
<PAGE> 8
5.5. APPLICABLE LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Ohio.
5.6. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.7. ENTIRE AGREEMENT. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto relating to the subject matter hereof or any other
subject matter relating to the Credit Agreement.
5.8. COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same agreement.
[The balance of this page is intentionally blank.]
7
<PAGE> 9
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as
of the date first above written.
<TABLE>
<S> <C>
CTB, INC. COMERICA BANK
By:____________________________________ By:____________________________________
Vice President & Chief Financial Officer Vice President
CHORE-TIME BROCK HOLDING B. V. LaSALLE NATIONAL BANK
By: CTB, Inc.,
one of its Managing Directors By:____________________________________
Commercial Lending Officer
By:____________________________________
Vice President & Chief Financial Officer
KEYBANK NATIONAL ASSOCIATION, NBD BANK, N. A.
individually and as Administrative Agent
By:____________________________________
By:____________________________________ Vice President
Senior Vice President
BANK ONE, INDIANA, NATIONAL COOPERATIEVE CENTRALE
ASSOCIATION RAIFFEISEN-BOERENLEEBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
By:____________________________________
Vice President
By:____________________________________
Title:
By:____________________________________
Title:
</TABLE>
8
<PAGE> 10
ACKNOWLEDGMENT AND CONSENT
For the avoidance of doubt, and without limitation of the intent and
effect of sections 5 and 6 of the Subsidiary Guaranty and sections 6 and 7 of
the Foreign Subsidiary Guaranty (as such terms are defined in the Credit
Agreement referred to in the Amendment No. 2 to Credit Agreement (the
"AMENDMENT"), to which this Acknowledgment and Consent is appended), the
undersigned hereby unconditionally and irrevocably (i) acknowledges receipt of
a copy of the Credit Agreement, as in effect prior to the Amendment, and the
Amendment, and (ii) consents to all of the terms and provisions of the Credit
Agreement, as in effect prior to the Amendment, as amended by the Amendment.
Capitalized terms which are used herein without definition shall have the
respective meanings ascribed thereto in the Credit Agreement referred to
herein. This Acknowledgment and Consent is for the benefit of the Lenders and
the Administrative Agent, any other person who is a third party beneficiary of
the Subsidiary Guaranty and/or the Foreign Subsidiary Guaranty, and their
respective successors and assigns. No term or provision of this Acknowledgment
and Consent may be modified or otherwise changed without the prior written
consent of the Administrative Agent, given as provided in the Credit Agreement.
This Acknowledgment and Consent shall be binding upon the successors and
assigns of the undersigned. This Acknowledgment and Consent may be executed by
the undersigned in separate counterparts, each of which shall be an original
and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Acknowledgment and Consent as of the date of the Amendment referred to herein.
CTB CREDIT CORPORATION FANCOM HOLDING B. V.
By:_________________________________ By:_________________________________
Title: Jan H. M. Cremers
Managing Director
CTB SALES CORPORATION FANCOM B. V.
By:_________________________________ By:_________________________________
Title: Jan H. M. Cremers
Managing Director
By:_________________________________
Har H. W. Gootzen
Managing Director
<PAGE> 1
EXHIBIT 11
CTB International Corp. and Subsidiaries
Diluted Earnings Per Common and Common Equivalent Share
Three Months Ended June 30, 1997 and 1998
(In thousands)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
--------------------- ---------------------
1997 1998 1997 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
ACTUAL
Net Income $ 4,649 $ 2,911 $ 5,567 $ 4,298
======== ======== ======== ========
Average number of common shares outstanding 7,259 12,797 7,257 12,817
Common equivalent shares
Stock Options 393 387 387 387
-------- -------- -------- --------
Total average common and common
equivalent shares outstanding 7,652 13,184 7,644 13,204
======== ======== ======== ========
Earnings income per common and common equivalent share $ 0.61 $ 0.22 $ 0.73 $ 0.33
======== ======== ======== ========
PRO FORMA
Net Income $ 6,237 $ 2,911 $ 8,314 $ 4,298
======== ======== ======== ========
Pro forma average number of common shares outstanding (1) 12,925 12,797 12,925 12,817
Pro forma common equivalent shares (1)
Stock Options 414 387 414 387
-------- -------- -------- --------
Total pro forma average common and common
equivalent shares outstanding 13,339 13,184 13,339 13,204
======== ======== ======== ========
Pro forma diluted earnings per common and common
equivalent share (1) $ 0.47 $ 0.22 $ 0.62 $ 0.33
======== ======== ======== ========
</TABLE>
(1) Pro forma earnings common and common equivalent share is calculated by
dividing net income by the pro forma weighted average common and common
equivalent shares outstanding, after giving effect to the following
transactions as if they had been completed on January 1, 1997: (i) the
Stock Split, (ii) the Preferred Stock Exchange, (iii) the Preferred
Stock Redemption and (iv) the Offering.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> JUN-30-1998
<CASH> 899
<SECURITIES> 0
<RECEIVABLES> 40,247
<ALLOWANCES> 812
<INVENTORY> 28,575
<CURRENT-ASSETS> 77,798
<PP&E> 58,214
<DEPRECIATION> 11,791
<TOTAL-ASSETS> 189,806
<CURRENT-LIABILITIES> 35,441
<BONDS> 0
0
0
<COMMON> 129
<OTHER-SE> 75,695
<TOTAL-LIABILITY-AND-EQUITY> 189,806
<SALES> 70,464
<TOTAL-REVENUES> 70,464
<CGS> 55,966
<TOTAL-COSTS> 55,966
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 997
<INCOME-PRETAX> 4,840
<INCOME-TAX> 1,929
<INCOME-CONTINUING> 2,911
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,911
<EPS-PRIMARY> $0.23
<EPS-DILUTED> $0.22
</TABLE>
