<PAGE> 1
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999
Commission File Number 0-2604
GENERAL BINDING CORPORATION
(Exact name of registrant as specified in its charter)
36-0887470
(I.R.S. employer identification No.)
DELAWARE
(State or other jurisdiction of incorporation or organization)
ONE GBC PLAZA,
NORTHBROOK, ILLINOIS 60062
(Address of principal executive offices, including zip code)
(847) 272-3700
(Registrant's telephone number, including area code)
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
--- ---
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the close of the latest practicable date.
OUTSTANDING AT
CLASS OCTOBER 31, 1999
Common Stock, $.125 par value 13,338,898
Class B Common Stock, $.125 par value 2,398,275
===============================================================================
<PAGE> 2
GENERAL BINDING CORPORATION AND SUBSIDIARIES
FORM 10-Q
FOR THE QUARTER ENDED SEPTEMBER 30, 1999
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION Page
----
<S> <C>
Item 1. Financial statements (unaudited)
Condensed Consolidated Balance Sheets as of
September 30, 1999 and December 31, 1998 2
Condensed Consolidated Statements of Income for the three
and nine months ended September 30, 1999 and 1998 3
Condensed Consolidated Statements of Cash Flows for the
nine months ended September 30, 1999 and 1998 4
Notes to Condensed Consolidated Financial Statements 5
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 17
PART II. OTHER INFORMATION
Item 3. Defaults Upon Senior Securities 24
Item 5. Other Information 24
Item 6. Exhibits and Reports on Form 8-K 24
Signatures 25
</TABLE>
1
<PAGE> 3
GENERAL BINDING CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(000's omitted)
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
(unaudited)
------------- ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 76,948 $ 6,095
Receivables, less allowances for doubtful accounts
and sales returns: 1999 - $15,863, 1998 - $9,871 177,462 187,939
Inventories:
Raw materials 31,874 53,848
Work in process 6,097 6,533
Finished goods 94,526 104,136
--------- ---------
Total inventories 132,497 164,517
Deferred tax assets 11,489 12,429
Other 34,396 27,663
--------- ---------
Total current assets 432,792 398,643
Property, plant and equipment 220,344 217,179
Less - accumulated depreciation (96,422) (90,743)
--------- ---------
Net property, plant and equipment 123,922 126,436
Goodwill, net of amortization 292,004 304,649
Other 48,666 56,110
--------- ---------
Total assets $ 897,384 $ 885,838
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 41,819 $ 51,669
Accrued liabilities 95,217 77,115
Notes payable 19,507 27,462
Current maturities of long-term debt 723 972
--------- ---------
Total current liabilities 157,266 157,218
Long-term debt, less current maturities 540,110 490,591
Other long-term liabilities 14,160 13,760
Deferred tax liabilities 20,726 21,082
Stockholders' equity:
Common stock 1,962 1,962
Class B common stock 300 300
Additional paid-in capital 11,540 10,976
Retained earnings 188,658 225,112
Treasury stock (27,096) (26,632)
Accumulated other comprehensive income (10,242) (8,531)
--------- ---------
Total stockholders' equity 165,122 203,187
--------- ---------
Total liabilities and stockholders' equity $ 897,384 $ 885,838
========= =========
</TABLE>
The accompanying Notes to Condensed Consolidated
Financial Statements are an integral part of these statements.
2
<PAGE> 4
GENERAL BINDING CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(000's omitted except per share data)
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
---------------------- ----------------------
1999 1998 1999 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net sales $ 218,196 $ 233,058 $ 666,310 $ 677,710
Cost of sales:
Product cost of sales, including development
and engineering 139,043 131,009 396,652 384,489
Inventory rationalization and write-down charges 14,176 -- 14,176 --
Selling, service and administrative 77,617 75,916 236,098 221,995
Amortization of goodwill and related intangibles 2,766 2,737 8,216 8,029
Interest expense 12,281 10,721 33,065 28,149
Loss on sale of US RingBinder -- -- -- 3,500
Write-down of intangible and long-lived assets 8,505 -- 8,505 --
Restructuring and other expenses 3,442 -- 14,997 --
Other expense (income), net 607 174 (59) 632
--------- --------- --------- ---------
(Loss) income before taxes (40,241) 12,501 (45,340) 30,916
Income taxes (11,537) 5,232 (13,602) 12,834
--------- --------- --------- ---------
Net (loss) income $ (28,704) $ 7,269 $ (31,738) $ 18,082
========= ========= ========= =========
Other comprehensive income, net of taxes:
Foreign currency translation adjustments 1,208 (1,718) (1,711) (2,790)
--------- --------- --------- ---------
Comprehensive (loss) income $ (27,496) $ 5,551 $ (33,449) $ 15,292
========= ========= ========= =========
Net (loss) income per common share: (1)
Basic $ (1.82) $ 0.46 $ (2.02) $ 1.15
Diluted (1.82) 0.46 (2.02) 1.14
Weighted average number of common shares
outstanding: (2)
Basic 15,734 15,706 15,732 15,726
Diluted 15,734 15,910 15,732 15,887
</TABLE>
(1) Amounts represent per share amounts for both Common Stock and Class B Common
Stock.
(2) Weighted average shares includes both Common Stock and Class B Common
Stock.
The accompanying Notes to Condensed Consolidated
Financial Statements are an integral part of these financial statements.
3
<PAGE> 5
GENERAL BINDING CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(000's omitted)
<TABLE>
<CAPTION>
Nine months ended
September 30,
----------------------
1999 1998
--------- ---------
<S> <C> <C>
OPERATING ACTIVITIES:
Net (loss) income $ (31,738) $ 18,082
Adjustments to reconcile net (loss) income to net cash provided by operating activities:
Depreciation 13,449 11,864
Amortization 14,845 12,625
Provision for doubtful accounts 3,036 2,303
Restructuring and other expenses 14,997 --
Inventory rationalization and write-down charges 14,176 --
Write-down of intangible and long-lived assets 8,505 --
(Increase) decrease in non-current deferred taxes (521) 192
(Increase) in other long-term assets (2,468) (5,365)
Loss on sale of USRB, pretax -- 3,500
Other (238) (126)
Changes in current assets and liabilities:
Decrease (increase) in receivables 6,448 (14,391)
Decrease (increase) in inventories 16,770 (6,538)
(Increase) in other current assets (7,249) (2,611)
Decrease in deferred tax assets 958 989
(Decrease) in accounts payable and accrued liabilities (5,173) (7,362)
(Decrease) in income taxes payable (1,102) (1,839)
--------- ---------
Net cash provided by operating activities 44,695 11,323
INVESTING ACTIVITIES:
Capital expenditures (13,651) (18,890)
Payments for acquisitions and investments (net of cash acquired) -- (138,409)
Proceeds from sale of USRB -- 15,529
Proceeds from sale of plant and equipment 2,100 554
--------- ---------
Net cash (used in) investing activities (11,551) (141,216)
FINANCING ACTIVITIES:
Proceeds from long-term borrowings - maturities greater than 90 days 242,000 210,000
Repayments of long-term debt - maturities greater than 90 days (180,000) (60,000)
Net change in borrowings - maturities of 90 days or less (19,424) (5,004)
(Reduction) increase in current portion of long-term debt (258) 1,311
Payments of debt issuance costs (653) (8,449)
Dividends paid (4,717) (5,191)
Purchases of treasury stock (536) (3,537)
Proceeds from the exercise of stock options 636 913
--------- ---------
Net cash provided by financing activities 37,048 130,043
Effect of exchange rates on cash 661 (1,034)
--------- ---------
Net increase in cash and cash equivalents 70,853 (884)
Cash and cash equivalents at the beginning of the year 6,095 3,753
--------- ---------
Cash and cash equivalents at the end of the period $ 76,948 $ 2,869
========= =========
Supplemental disclosure:
Interest paid $ 25,977 $ 20,929
Income taxes paid 3,751 10,170
</TABLE>
The accompanying Notes to Condensed Consolidated
Financial Statements are an integral part of these statements.
4
<PAGE> 6
GENERAL BINDING CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
(1) BASIS OF PRESENTATION
The condensed consolidated financial statements include the accounts of
General Binding Corporation and its subsidiaries ("GBC" or the
"Company"). These financial statements have been prepared by GBC,
pursuant to the rules and regulations of the Securities and Exchange
Commission. Certain information and disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to such
rules and regulations. GBC believes that the disclosures included in
these condensed consolidated financial statements are adequate to make
the information presented not misleading. It is suggested that these
condensed consolidated financial statements be read in conjunction with
the financial statements and the notes thereto included in GBC's 1998
Annual Report on Form 10-K. In the opinion of GBC, all adjustments
necessary to present fairly the financial position of GBC as of
September 30, 1999 and December 31, 1998 and the results of their
operations for the three and nine month periods ended September 30,
1999 and 1998 have been included. Operating results for any interim
period are not necessarily indicative of results that may be expected
for the full year.
The preparation of financial statements in conformity with generally
accepted accounting principles requires the use of certain estimates by
management in determining the entity's assets, liabilities, revenues
and expenses. Actual results could differ from those estimates.
Certain amounts for prior periods have been reclassified to conform to
the 1999 presentation.
(2) LONG-TERM DEBT
Long-term debt consists of the following at September 30, 1999 and
December 31, 1998 - outstanding borrowings denominated in foreign
currencies have been converted to U.S. dollars (000's omitted):
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
------------- ------------
<S> <C> <C>
REVOLVING CREDIT FACILITY
U.S. Dollar borrowings - (weighted average floating interest rate of 6.87% at
September 30, 1999 and 6.2% at December 31, 1998) $324,000 $288,300
British Pound borrowings - (floating interest rate of 6.64% at September 30,
1999 and 7.8% at December 31, 1998) 27,177 19,416
Swiss Franc borrowings - (floating interest rate of 2.43% at September 30, 1999
and 2.33% at December 31, 1998) 9,228 7,785
Dutch Guilder borrowings - (floating interest rate of 4.01% at September 30,
1999 and 4.3% at December 31, 1998) 2,911 5,394
Euro borrowings - (floating interest rate of 3.95% at September 30, 1999)
Australian Dollar borrowings - (floating interest rate of 6.21% at September 5,024 --
30, 1999)
New Zealand Dollar borrowings - (floating interest rate of 6.05% at September 4,630 --
30, 1999)
1,450 --
INTERNATIONAL CREDIT AGREEMENT
Australian Dollar borrowings - due July 2000 (floating interest rate of 6.5% at
December 31, 1998) -- 2,449
</TABLE>
5
<PAGE> 7
<TABLE>
<S> <C> <C>
INDUSTRIAL REVENUE BONDS
Industrial Revenue Bond - due March 2026 (floating interest rate of 3.90% at
September 30, 1999 and 4.2% at December 31, 1998) 7,511 7,511
Industrial Revenue Bond - due annually from July 1994 to July 2008 (floating
interest rate of 4.22% at September 30, 1999 and 3.6% at December 31, 1998) 1,600 1,750
Industrial Revenue Bond - due annually from June 2002 to June 2007
(floating interest rate of 4.00% at September 30, 1999 and 3.45%
at December 31, 1998) 1,050 1,050
NOTES PAYABLE
Senior Subordinated Notes, U.S. Dollar borrowing - due 2008 (fixed interest
rate of 9.375%) 150,000 150,000
Note payable, Dutch Guilder borrowing - due monthly from November 1994 to
October 2004 (fixed interest rate of 8.85%) 1,418 1,782
Note payable, Dutch Guilder borrowing - due June 2000 (fixed interest rate of
7.05%) 1,577 1,701
OTHER BORROWINGS 3,257 4,425
-------- --------
Total debt 540,833 491,563
Less - current maturities 723 972
-------- --------
Total long-term debt $540,110 $490,591
======== ========
</TABLE>
See Item 2. -- Management's Discussion and Analysis of Financial Condition and
Results of Operations - Liquidity and Capital Resources for a further discussion
of the Company's credit facilities.
(3) EARNINGS PER SHARE
In accordance with SFAS No. 128, net income per common share was
computed as follows (000's omitted, except per share amounts):
<TABLE>
<CAPTION>
Three months ended Nine months ended
-------------------- --------------------
September 30, September 30,
-------------------- --------------------
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
(A) Net (loss) income available to common
Shareholders $(28,704) $ 7,269 $(31,738) $ 18,082
======== ======== ======== ========
(B) Weighted average number of common
shares outstanding (1) 15,734 15,706 15,732 15,726
Additional common shares issuable under
employee stock options using the treasury
stock method 204 161
-------- -------- -------- --------
(C) Weighted average number of common shares
outstanding assuming the exercise of stock
options (1) 15,734 15,910 15,732 15,887
======== ======== ======== ========
Net (loss) income per common share (2)(A)/(B)
$ (1.82) $ 0.46 $ (2.02) $ 1.15
======== ======== ======== ========
Net (loss) income per common share, assuming
dilution (2)(A)/(C) $ (1.82) $ 0.46 $ (2.02) $ 1.14
======== ======== ======== ========
</TABLE>
(1) Weighted average shares includes both Common Stock and Class B Common Stock.
(2) Amounts represent per share amounts for both Common Stock and Class B Common
Stock.
6
<PAGE> 8
(4) RESTRUCTURING AND OTHER EXPENSES
During the second and third quarters of 1999, GBC recorded
restructuring and other charges of $11,555 and $3,442, respectively.
The restructuring charge primarily consists of severance costs, early
retirement benefits, lease cancellation expenses and fixed asset
write-offs related to facility closures in conjunction with the
rationalization of various functions and reductions in discretionary
spending. Other expenses consist of consulting fees associated with
projects to rationalize GBC's SKU product offering and to reorganize
its supply chain management process. GBC's restructuring and other
efforts will be focused in the following areas:
- Consolidating all European distribution, logistics and
accounting operations;
- Streamlining the sales functions of the Document Finishing
Group's North American direct sales operations;
- Closing or consolidating several worldwide distribution
centers and rationalizing certain of the Company's supplies
manufacturing operations; and
- Rationalize SKU product offerings and reorganize supply chain
management.
Approximately 620 positions, or about 12% of GBC's worldwide workforce,
will be affected. The components of the restructuring and other
expenses are as follows (in millions):
<TABLE>
<CAPTION>
Three months ended, Nine months ended
September 30, 1999 September 30, 1999
------------------- ------------------
<S> <C> <C>
Severance and early retirement benefits $ 2.8 $10.1
Lease cancellation expenses .1 1.1
Asset write-off and write-downs -- 2.0
All other .5 1.8
----- -----
$ 3.4 $15.0
===== =====
</TABLE>
Management believes that the Company is progressing, as originally
planned, on its previously announced restructuring activities, and
that the restructuring provisions recorded will be adequate to cover
the estimated restructuring costs. Certain aspects of GBC's
restructuring did not qualify for liability recognition as of
September 30, 1999. GBC expects to recognize further restructuring
charges in subsequent quarters as these projects progress.
Changes in the restructuring reserve for the three months and nine
months ended September 30, 1999 were as follows (in millions):
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, 1999 September 30, 1999
------------------ ------------------
<S> <C> <C>
Balance - beginning of period $10,031 $ --
Provisions 3,442 14,997
Cash restructuring charges (2,386) (3,873)
Non-cash restructuring charges (247) (397)
Other (1) (142) (29)
------- -------
Balance - end of period $10,698 $10,698
======= =======
</TABLE>
(1) Amounts primarily relate to the effects of foreign exchange rate
changes.
7
<PAGE> 9
(5) WRITE-DOWN OF INTANGIBLE AND LONG-LIVED ASSETS
GBC has decided to narrow the focus of its visual communications
business in the U.K. and, as a result, will cease the manufacture of
writing boards and related supplies in the U.K. GBC had entered this
business in the U.K. with the 1998 acquisition of Allfax. The charge
consists of writing-off the unamortized goodwill of approximately $7.7
million related to the Allfax acquisition along with a $.8 million
write-down of fixed assets to their estimated net realizable values.
GBC plans on phasing out of manufacturing of writing boards and
supplies in the U.K. by the first quarter of 2000. Subsequent to the
cessation of manufacturing operations, GBC will continue to distribute
a range of branded writing boards in Europe that will be sourced from a
third party manufacturer. The wind-down of manufacturing in the U.K.
will result in additional restructuring charges for severance and other
expenses. This additional charge, which is estimated to be
approximately $1.2 million, will be recognized in the fourth quarter of
1999 as it did not qualify for liability recognition at September 30,
1999.
(6) INVENTORY RATIONALIZATION AND WRITE-DOWN CHARGES
During the third quarter of 1999, GBC embarked on a project to analyze
and rationalize its SKU product offerings. This project, which is
currently focused primarily on the North American Office Products
Group, identified overlapping product lines and products with sub-par
profitability which will be eliminated from GBC's product offering. As
a result of this project, a significant percentage of SKUs will be
eliminated. The eliminated SKUs, however, represent an insignificant
level of the North American Office Products Groups' revenue and gross
profit margin. An evaluation of the SKUs to be eliminated has resulted
in a charge to cost of goods sold of approximately $7.8 million in the
third quarter of 1999. This charge represents the write-down of
finished goods and raw material inventory to its net realizable value.
GBC is currently considering the expansion of this project to other
business units. If the project is expanded, there will likely be
additional charges in future quarters.
In connection with the exit strategy described in Note 5 above, the
inventory related to the U.K. writing board product line was evaluated.
As a result, a charge to cost of sales of $6.4 million was recorded to
write-down the finished goods and raw materials inventories to their
net realizable values.
(7) BUSINESS SEGMENTS
In accordance with SFAS No. 131, GBC has identified four reportable
operating segments based on the amount of revenues and operating income
of these segments. GBC's operating segments are based on the
organization of GBC into business groups comprised of similar products
and services or geographic location. The Document Finishing Group's
revenues are primarily derived from sales of binding and punching
equipment and related supplies, custom binders and folders, and
maintenance and repair services. The Films Group's revenues are
primarily derived through sales of thermal films, mid-range and
commercial high-speed laminators and large-format digital print
laminators. The Document Finishing Group and the Films Group's products
and services are sold through direct channels to the general office
markets, commercial reprographic centers, educational and training
markets, commercial printers, and to government agencies. The Office
Products Group's revenues are primarily derived from the sale of
8
<PAGE> 10
binding and laminating equipment and supplies, document shredders,
visual communications products and desktop accessories through indirect
channels including office product superstores, contract/commercial
stationers, wholesalers, mail order companies and retail dealers. The
European operating segment consists of GBC's businesses located in
Europe which are managed on a pan-European basis. Expenses incurred by
the four reportable segments described above relate to costs incurred
to manufacture or purchase products and selling, general and
administrative costs. The All Others category presented below primarily
represents expenses of a corporate nature and revenues and expenses for
certain entities not assigned to one of the other four reportable
segments. For internal management purposes, and the presentation below,
operating income is determined as income before taxes excluding
interest expense, other income and expense, the inventory
rationalization and write-down charges, restructuring expenses, and the
write-down of intangibles and long-lived assets.
<TABLE>
<CAPTION>
Unaffiliated Customer Sales Affiliate Sales Operating Income
--------------------------- ------------------ -------------------
Three months ended Three months ended Three months ended
September 30, September 30, September 30,
--------------------------- ------------------ -------------------
1999 1998 1999 1998 1999 1998
--------- ------------ ---------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Document Finishing Group $ 50,367 $ 54,337 $ 6,713 $ 8,412 $ 6,962 $ 7,672
Films Group 41,717 41,045 4,133 4,908 8,714 8,685
Office Products Group 84,451 92,108 3,484 24,192 (2,476) 16,882
Europe 29,504 33,036 27,294 5,307 (3,372) (1,118)
All Others 12,157 12,532 35 65 (11,058) (8,725)
Eliminations - - (41,659) (42,884) - -
--------- ------------ ---------- --------- --------- ---------
Total $ 218,196 $ 233,058 $ - $ - $ (1,230) $ 23,396
========= ============ ========== ========= ========= =========
Unaffiliated Customer Sales Affiliate Sales Operating Income
--------------------------- ------------------ -------------------
Three months ended Three months ended Three months ended
September 30, September 30, September 30,
--------------------------- ------------------ -------------------
1999 1998 1999 1998 1999 1998
--------- ------------ ---------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Document Finishing Group $ 152,264 $ 157,289 $ 30,287 $ 33,672 $ 21,367 $ 22,985
Films Group 120,205 116,297 13,940 20,172 24,678 25,486
Office Products Group 255,880 255,223 21,810 27,083 15,889 40,259
Europe 101,984 104,005 27,294 5,307 (5,288) 2,423
All Others 35,977 44,896 95 2,385 (31,302) (27,956)
Eliminations - - (93,426) (88,619) - -
--------- ------------ ---------- --------- --------- ---------
Total $ 666,310 $ 677,710 $ - $ - $ 25,344 $ 63,197
========= ============ ========== ========= ========= =========
</TABLE>
9
<PAGE> 11
Sales information for the three and nine months ended September 30,
1999 and 1998 by geographical area is summarized below.
<TABLE>
<CAPTION>
Sales to Unaffiliated Customers
------------------------------------------
Three months ended Nine months ended
September 30, September 30,
------------------------------------------
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
United States $152,906 $163,444 $452,927 $471,574
Europe 35,435 42,100 124,550 123,833
Other International 29,855 27,514 88,833 82,303
-------- -------- -------- --------
Total $218,196 $233,058 $666,310 $677,710
======== ======== ======== ========
</TABLE>
(8) SUBSIDIARY GUARANTOR INFORMATION
During 1998, GBC issued $150 million of 9.375% Senior Subordinated
Notes due 2008 in order to finance the acquisition of Ibico AG. Each of
GBC's domestic restricted subsidiaries has jointly and severally, fully
and unconditionally guaranteed the Senior Subordinated Notes. Rather
than filing separate financial statements for each guarantor subsidiary
with the Securities and Exchange Commission, GBC has elected to present
the following condensed consolidating results of operations, financial
position and cash flows of the Parent, Guarantors and Non-Guarantors
(in each case carrying investments under the equity method) and the
eliminations necessary to arrive at the information for GBC on a
consolidated basis:
10
<PAGE> 12
CONDENSED CONSOLIDATING BALANCE SHEETS (000'S OMITTED):
<TABLE>
<CAPTION>
September 30, 1999
-----------------------------------------------------------------
Non-
Parent Guarantors Guarantors Eliminations Consolidated
--------- ---------- ---------- ------------ ------------
<S> <C> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 66,907 $ (115) $ 10,156 $ -- $ 76,948
Receivables, net 110,950 888 65,624 -- 177,462
Inventories, at lower of cost or market 63,310 228 68,911 48 132,497
Deferred tax assets 9,863 353 1,273 -- 11,489
Other 12,894 167 21,335 -- 34,396
Due from affiliates 99,718 65,325 (25,553) (139,490) --
--------- --------- --------- --------- ---------
Total current assets 363,642 66,846 141,746 (139,442) 432,792
Net property, plant and equipment 85,329 8,703 29,890 -- 123,922
Goodwill, net of amortization 191,127 25,761 75,116 -- 292,004
Other 35,401 1,159 7,170 4,936 48,666
Investment in subsidiaries 167,366 124,889 -- (292,255) --
--------- --------- --------- --------- ---------
Total assets $ 842,865 $ 227,358 $ 253,922 $(426,761) $ 897,384
========= ========= ========= ========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 25,530 $ 986 $ 15,303 $ -- $ 41,819
Accrued liabilities 63,683 924 30,610 -- 95,217
Notes payable (1) -- 19,508 -- 19,507
Current maturities of long-term debt 261 -- 462 -- 723
Due to affiliates 34,101 54,088 20,481 (108,670) --
--------- --------- --------- --------- ---------
Total current liabilities 123,574 55,998 86,364 (108,670) 157,266
Long-term debt, affiliated -- -- 25,836 (25,836) --
Long-term debt, less current maturities 532,123 -- 7,987 -- 540,110
Other long-term liabilities 8,735 332 5,093 -- 14,160
Deferred tax liabilities 13,311 3,079 4,336 -- 20,726
Stockholders' equity:
Common stock 1,962 5 5,443 (5,448) 1,962
Class B common stock 300 -- -- -- 300
Additional paid-in capital 11,540 63,586 120,402 (183,988) 11,540
Retained earnings 188,658 102,119 8,293 (110,412) 188,658
Treasury stock (27,096) -- -- -- (27,096)
Accumulated other comprehensive income (10,242) 2,239 (9,832) 7,593 (10,242)
--------- --------- --------- --------- ---------
Total stockholders' equity 165,122 167,949 124,306 (292,255) 165,122
--------- --------- --------- --------- ---------
Total liabilities and stockholders' equity $ 842,865 $ 227,358 $ 253,922 $(426,761) $ 897,384
========= ========= ========= ========= =========
</TABLE>
11
<PAGE> 13
<TABLE>
<CAPTION>
December 31, 1998
----------------------------------------------------------------
Non-
Parent Guarantors Guarantors Eliminations Consolidated
--------- ---------- ---------- ------------ ------------
<S> <C> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 4,049 $ (650) $ 2,696 $ -- $ 6,095
Receivables, net 118,477 1,609 67,853 -- 187,939
Inventories, at lower of cost or market 79,657 7,033 77,760 67 164,517
Deferred tax assets 9,386 957 2,160 (74) 12,429
Other 18,667 559 8,437 -- 27,663
Due from affiliates 84,457 53,169 2,465 (140,091) --
--------- --------- --------- --------- ---------
Total current assets 314,693 62,677 161,371 (140,098) 398,643
Net property, plant and equipment 85,589 11,307 29,540 -- 126,436
Goodwill, net of amortization 191,511 31,264 82,073 (199) 304,649
Other 45,732 1,622 10,460 (1,704) 56,110
Investment in subsidiaries 168,617 152,006 -- (320,623) --
--------- --------- --------- --------- ---------
Total assets $ 806,142 $ 258,876 $ 283,444 $(462,624) $ 885,838
========= ========= ========= ========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 30,775 $ 3,187 $ 17,707 $ -- $ 51,669
Accrued liabilities 53,757 (253) 23,611 -- 77,115
Notes payable -- -- 27,462 -- 27,462
Current maturities of long-term debt 413 15 544 -- 972
Due to affiliates 21,910 58,956 60,057 (140,923) --
--------- --------- --------- --------- ---------
Total current liabilities 106,855 61,905 129,381 (140,923) 157,218
Long-term debt - affiliated 1,704 -- -- (1,704) --
Long-term debt, less current maturities 473,559 1,050 15,982 -- 490,591
Other long-term liabilities 7,901 226 5,633 -- 13,760
Deferred tax liabilities 12,936 3,454 4,692 -- 21,082
Stockholders' equity:
Common stock 1,962 5 5,171 (5,176) 1,962
Class B common stock 300 -- -- -- 300
Additional paid-in capital 10,976 53,421 102,788 (156,209) 10,976
Retained earnings 225,112 143,616 27,847 (171,463) 225,112
Treasury stock (26,632) -- -- -- (26,632)
Accumulated other comprehensive income (8,531) (4,801) (8,050) 12,851 (8,531)
--------- --------- --------- --------- ---------
Total stockholders' equity 203,187 192,241 127,756 (319,997) 203,187
--------- --------- --------- --------- ---------
Total liabilities and stockholders' equity $ 806,142 $ 258,876 $ 283,444 $(462,624) $ 885,838
========= ========= ========= ========= =========
</TABLE>
12
<PAGE> 14
CONDENSED CONSOLIDATING STATEMENTS OF INCOME (000'S OMITTED):
<TABLE>
<CAPTION>
Three months ended September 30, 1999
-----------------------------------------------------------------
Non-
Parent Guarantors(a) Guarantors Elimination Consolidated
--------- ------------ ---------- ----------- ------------
<S> <C> <C> <C> <C> <C>
Unaffiliated sales $ 152,906 $ -- $ 65,290 $ -- $ 218,196
Affiliated sales 10,843 -- 5,550 (16,393) --
--------- --------- --------- --------- ---------
Net sales 163,749 -- 70,840 (16,393) 218,196
Cost of sales:
Product cost of sales, including development and engineering 105,303 214 49,789 (16,263) 139,043
Inventory rationalization and write-down charges 7,784 -- 6,392 -- 14,176
Selling, service and administrative 55,064 27 22,526 -- 77,617
Amortization of goodwill and related intangibles 1,949 189 628 -- 2,766
Interest expense 10,011 445 2,734 (909) 12,281
Write-down of intangible and long lived assets 2,000 -- 6,505 -- 8,505
Restructuring and other expenses 2,142 -- 1,300 -- 3,442
Other (income) expense, net (392) (987) 1,208 778 607
--------- --------- --------- --------- ---------
(Loss) income before taxes and undistributed earnings
of wholly owned subsidiaries (20,112) 112 (20,242) 1 (40,241)
Income taxes (5,803) 103 (5,837) -- (11,537)
--------- --------- --------- --------- ---------
(Loss) income before undistributed earnings
of wholly owned subsidiaries (14,309) 9 (14,405) 1 (28,704)
Undistributed (losses) earnings of wholly-owned subsidiaries (14,395) (19,860) -- 34,255 --
--------- --------- --------- --------- ---------
Net (loss) income $ (28,704) $ (19,851) $ (14,405) $ 34,256 $ (28,704)
========= ========= ========= ========= =========
</TABLE>
(a) Effective January 1, 1999 the Pro-Tech and Sickinger subsidiaries were
merged into the Parent company.
<TABLE>
<CAPTION>
Three months ended September 30, 1998
-----------------------------------------------------------------
Non-
Parent Guarantors Guarantors Elimination Consolidated
---------- ---------- ---------- ----------- ------------
<S> <C> <C> <C> <C> <C>
Unaffiliated sales $ 150,759 $ 12,685 $ 69,614 $ -- $ 233,058
Affiliated sales 14,473 10,717 4,784 (29,974) --
--------- --------- --------- --------- ---------
Net sales 165,232 23,402 74,398 (29,974) 233,058
Cost of sales:
Product cost of sales, including development
and engineering 95,406 18,541 47,297 (30,235) 131,009
Selling, service and administrative 48,532 2,811 24,573 -- 75,916
Amortization of goodwill and related intangibles 1,563 293 881 -- 2,737
Interest expense 6,819 17 1,494 2,391 10,721
Other expense (income), net 513 5,004 (2,952) (2,391) 174
--------- --------- --------- --------- ---------
Income (loss) before taxes and undistributed earnings
of wholly owned subsidiaries 12,399 (3,264) 3,105 261 12,501
Income taxes 2,503 793 1,830 106 5,232
--------- --------- --------- --------- ---------
Income (loss) before undistributed earnings
of wholly owned subsidiaries 9,896 (4,057) 1,275 155 7,269
Undistributed (loss) earnings of wholly-owned subsidiaries (2,627) 3,785 -- (1,158) --
--------- --------- --------- --------- ---------
Net income (loss) $ 7,269 $ (272) $ 1,275 $ (1,003) $ 7,269
========= ========= ========= ========= =========
</TABLE>
13
<PAGE> 15
<TABLE>
<CAPTION>
Nine months ended September 30, 1999
----------------------------------------------------------------
Non-
Parent Guarantors(a) Guarantor Elimination Consolidated
---------- ------------- --------- ----------- ------------
<S> <C> <C> <C> <C> <C>
Unaffiliated sales $ 452,927 $ -- $ 213,383 $ -- $ 666,310
Affiliated sales 39,184 -- 30,162 (69,346) --
--------- --------- --------- --------- ---------
Net sales 492,111 -- 243,545 (69,346) 666,310
Cost of sales:
Product cost of sales, including development
and engineering 300,725 593 164,550 (69,216) 396,652
Inventory rationalization and write-down charges 7,784 -- 6,392 -- 14,176
Selling, service and administrative 160,672 72 75,354 -- 236,098
Amortization of goodwill and related intangibles 5,801 564 1,851 -- 8,216
Interest expense 29,438 1,143 4,821 (2,337) 33,065
Write-down of intangible and long-lived assets 2,000 -- 6,505 -- 8,505
Restructuring and other expenses 11,002 -- 3,995 -- 14,997
Other (income) expense, net (2,422) (1,816) 2,561 1,618 (59)
--------- --------- --------- --------- ---------
(Loss) income before taxes and undistributed earnings
earnings of wholly owned subsidiaries (22,889) (556) (22,484) 589 (45,340)
Income taxes (6,690) (167) (6,745) -- (13,602)
--------- --------- --------- --------- ---------
(Loss) income before undistributed earnings
of wholly owned subsidiaries (16,199) (389) (15,739) 589 (31,738)
Undistributed (losses) earnings of wholly-owned subsidiaries (15,539) (20,436) -- 35,975 --
--------- --------- --------- --------- ---------
Net (loss) income $ (31,738) $ (20,825) $ (15,739) $ 36,564 $ (31,738)
========= ========= ========= ========= =========
</TABLE>
(a) Effective January 1, 1999 the Pro-Tech and Sickinger subsidiaries were
merged into the Parent company.
<TABLE>
<CAPTION>
Nine months ended September 30, 1998
----------------------------------------------------------------
Non-
Parent Guarantors Guarantor Elimination Consolidated
---------- ---------- ---------- ----------- ------------
<S> <C> <C> <C> <C> <C>
Unaffiliated sales $ 426,047 $ 45,526 $ 206,137 $ -- $ 677,100
Affiliated sales 45,600 26,692 13,070 (85,362) --
--------- --------- --------- --------- ---------
Net sales 471,647 72,218 219,207 (85,362) 677,710
Cost of sales:
Product cost of sales, including development and engineering 273,590 57,796 139,500 (86,397) 384,489
Selling, service and administrative 141,485 13,069 67,441 -- 221,995
Amortization of goodwill and related intangibles 5,108 968 1,953 -- 8,029
Interest expense 27,781 943 3,581 (4,156) 28,149
Loss on sale of US RingBinder -- 3,500 -- -- 3,500
Other (income) expense, net (612) (319) (2,593) 4,156 632
--------- --------- --------- --------- ---------
Income (loss) before taxes and undistributed earnings
of wholly owned subsidiaries 24,295 (3,739) 9,325 1,035 30,916
Income taxes 5,854 2,630 3,931 419 12,834
--------- --------- --------- --------- ---------
Income (loss) before undistributed earnings
of wholly owned subsidiaries 18,441 (6,369) 5,394 616 18,082
Undistributed (loss) earnings of wholly-owned subsidiaries (359) 8,047 -- (7,688) --
--------- --------- --------- --------- ---------
Net income (loss) $ 18,082 $ 1,678 $ 5,394 $ (7,072) $ 18,082
========= ========= ========= ========= =========
</TABLE>
14
<PAGE> 16
CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS (000'S OMITTED):
<TABLE>
<CAPTION>
Nine months ended September 30, 1999
----------------------------------------------------------------
Non-
Parent Guarantors Guarantor Eliminations Consolidated
---------- ---------- ---------- ------------ ------------
<S> <C> <C> <C> <C> <C>
NET CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES $ 50,414 $ 1,344 $ (7,063) $ -- $ 44,695
INVESTING ACTIVITIES:
Capital expenditures (8,302) (239) (5,110) -- (13,651)
Proceeds from sale of plant and equipment 1,712 -- 388 -- 2,100
Intercompany sale of subsidiaries -- (786) 786 -- --
Capital contributions to subsidiaries (14,883) (9,277) -- 24,160 --
--------- --------- --------- --------- ---------
Net cash (used in) provided by investing
activities (21,473) (10,302) (3,936) 24,160 (11,551)
FINANCING ACTIVITIES:
(Decrease) increase in intercompany borrowing (16,257) -- 16,257 -- --
Proceeds from long-term borrowings (maturities
greater than 90 days) 242,000 -- -- -- 242,000
Repayments of long-term debt (maturities
greater than 90 days) (180,000) -- -- -- (180,000)
Net change in borrowings (maturities of 90
days or less) (6,265) 216 (13,375) -- (19,424)
(Reduction) increase in current portion of
long-term debt (291) -- 33 -- (258)
Payments of debt issuance costs (653) -- -- -- (653)
Dividends paid (4,717) -- -- -- (4,717)
Purchases of treasury stock (536) -- -- -- (536)
Proceeds from the exercise of stock options 636 -- -- -- 636
Capital contributions from parent companies -- 9,277 14,883 (24,160) --
--------- --------- --------- --------- ---------
Net cash provided by (used in) financing
activities 33,917 9,493 17,798 (24,160) 37,048
Effect of exchange rates on cash -- -- 661 -- 661
--------- --------- --------- --------- ---------
NET INCREASE IN CASH & CASH EQUIVALENTS 62,858 535 7,460 -- 70,853
Cash and cash equivalents at the beginning of
the year 4,049 (650) 2,696 -- 6,095
--------- --------- --------- --------- ---------
CASH AND CASH EQUIVALENTS AT THE END OF THE
PERIOD $ 66,907 $ (115) $ 10,156 -- $ 76,948
========= ========= ========= ========= =========
</TABLE>
15
<PAGE> 17
<TABLE>
<CAPTION>
Nine months ended September 30, 1999
----------------------------------------------------------------
Non-
Parent Guarantors Guarantor Eliminations Consolidated
---------- ---------- --------- ------------ ------------
<S> <C> <C> <C> <C> <C>
NET CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES $ 18,680 $ 1,273 $ (8,828) $ 198 $ 11,323
INVESTING ACTIVITIES:
Capital expenditures (11,016) (3,374) (4,500) -- (18,890)
Payments for acquisitions and investments
(net of cash acquired) -- (138,409) -- -- (138,409)
Proceeds from sale of plant and equipment 285 155 114 -- 554
Proceeds from sale of USRB -- 15,529 -- -- 15,529
--------- --------- --------- --------- ----------
Net cash (used in) investing activities (10,731) (126,099) (4,386) -- (141,216)
FINANCING ACTIVITIES:
(Decrease) increase in intercompany borrowing (142,403) 125,374 17,029 -- --
Proceeds from long-term borrowings (maturities
greater than 90 days) 210,000 -- -- -- 210,000
Repayments of long-term debt (maturities
greater than 90 days) (60,000) -- -- -- (60,000)
Net change in borrowings (maturities of 90
days or less) 128 (16) (4,918) (198) (5,004)
Increase in current portion of long-term debt -- -- 1,311 -- 1,311
Payments of debt issuance costs (8,449) -- -- -- (8,449)
Dividends paid (5,191) -- -- -- (5,191)
Purchases of treasury stock (3,537) -- -- -- (3,537)
Proceeds from the exercise of stock options 913 -- -- -- 913
--------- --------- --------- --------- ---------
Net cash (used in) provided by financing
activities (8,539) 125,358 13,422 (198) 130,043
Effect of exchange rates on cash -- -- (1,034) -- (1,034)
--------- --------- --------- --------- ---------
NET (DECREASE) INCREASE IN CASH & CASH EQUIVALENTS (590) 532 (826) -- (884)
Cash and cash equivalents at the beginning of
the year 1,098 (26) 2,681 -- 3,753
--------- --------- --------- --------- ---------
CASH AND CASH EQUIVALENTS AT THE END OF THE
PERIOD $ 508 $ 506 $ 1,855 $ -- $ 2,869
========= ========= ========= ========= =========
</TABLE>
16
<PAGE> 18
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following narrative discusses the results of operations, liquidity
and capital resources for GBC on a consolidated basis. This section
should be read in conjunction with GBC's Annual Report on Form 10-K for
the fiscal year ended December 31, 1998. See "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
contained therein.
FORWARD LOOKING STATEMENTS
Certain statements under the caption "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and
elsewhere in this Report constitute "forward looking statements" within
the meaning of Section 21E(I) (1) of the Exchange Act. Such
forward-looking statements involve known and unknown risks,
uncertainties and other factors which may cause actual results and
performance of GBC to be materially different than anticipated future
results and performance expressed or implied by such forward-looking
statements. Such factors include, among other things, the following:
competition within the office products and lamination film products
markets, the effects of economic conditions, the issues associated with
the acquisition and integration of recently acquired operations,
including Ibico AG ("Ibico"), operating risks, the ability of GBC's
distributors to successfully market and sell the Company's products,
the ability of GBC to obtain capital to finance anticipated operating
and capital requirements, the availability and price of raw materials,
dependence on certain suppliers of manufactured products, the effect of
consolidation in the office products industry and other factors
indicated in GBC's registration statements and reports filed with the
SEC. These important factors may also cause the forward-looking
statements made by GBC in this Report, including but not limited to
those contained under the caption "Management's Discussion and Analysis
of Financial Condition and Results of Operations," to be materially
different from the actual results achieved by the Company. In light of
these and other uncertainties, the inclusion of any forward-looking
statements herein should not be regarded as a representation by GBC
that the Company's plans and objectives will be achieved.
RESULTS OF OPERATIONS - QUARTER ENDED SEPTEMBER 30, 1999 COMPARED TO
QUARTER ENDED SEPTEMBER 30, 1998
Sales
Net sales for the third quarter of 1999 totaled $218.2 million, a
decrease of 6.4% as compared to the third quarter of 1998. Net sales
declined in each of GBC's business units with the exception of the
Films Group, which experienced a slight increase compared to the third
quarter of 1998. The decrease in the Document Finishing Group (7.3%)
was primarily related to weak sales in its domestic sales organization
stemming from higher than expected employee turnover subsequent to the
restructuring program implemented in the second quarter of 1999. The
Office Products Group changed many of its retail merchandising displays
("Plan-O-Gram")
17
<PAGE> 19
during the third quarter of 1999. The Plan-O-Gram changes resulted in
an abnormal level of customer credits issued and increases in credit
return allowances for merchandise not yet returned. Excluding the
impact of these unusual credits (approximately $7.0 million) in the
third quarter of 1999, the Office Product Group's sales would have been
relatively flat. European operations experienced a decline in sales of
10.7% in the third quarter of 1999 compared to 1998 primarily as a
result of issues associated with the writing board operation in the
U.K.
Gross Margin, Costs and Expenses
GBC's overall gross profit margin percentage declined to 36.3% in the
third quarter of 1999 (excluding inventory rationalization and
write-down charges), compared to 43.8% in 1998. The Office Products
Group's gross profit margin was unfavorably impacted due to unusually
high provisions recorded for product returns related to the Plan-O-Gram
changes described above. In Europe, GBC's gross profit margin
percentage was negatively impacted by the losses incurred in the
writing board business in the U.K. Gross margins in both the Films and
Document Finishing Groups were relatively flat in the third quarter of
1999 compared to 1998.
During the third quarter of 1999, GBC recorded $14.2 million of
inventory rationalization and write-down provisions (see Note 6 to the
Condensed Consolidated Financial Statements). These charges relate to
the commencement of the first phase of GBC's worldwide product line and
SKU rationalization program. Approximately $7.8 million of the charge
related to the North American Office Products Group, with efforts
focused on eliminating overlapping product lines with sub-par
profitability, and a sizeable number of SKUs which do not contribute
materially to the bottom line. The remaining $6.4 million of the
charges related to writing down the inventory of the visual
communications business in the U.K. to its net realizable value.
Selling, service and administrative expenses increased $1.7 million in
the third quarter of 1999 compared to 1998. As a percentage of sales,
operating expenses were 35.6% in the third quarter of 1999 compared to
32.6% in 1998. The increase in selling, service and administrative
expenses was primarily due to higher costs in the Office Products
Group. The increased costs resulted from higher customer rebate and
allowance programs along with higher distribution expenses associated
with servicing certain Ibico customers. Both Europe and the Document
Finishing Group experienced decreases in selling, service, and
administrative expenses as a result of prior cost saving and
restructuring actions taken by the Company.
Amortization of goodwill and related intangibles (excluding write-downs
recorded in connection with the exit from certain visual communication
product lines in the U.K), was $2.8 million for the third quarter,
which was approximately flat compared to the third quarter of 1998.
Interest expense for the third quarter of 1999 increased to $12.3
million compared to $10.7 million in 1998. The primary reason for the
increase was a provision for certain contingent liabilities which carry
an interest component.
18
<PAGE> 20
During the third quarter of 1999, GBC recorded a provision of $8.5 to
write-down intangible and long-lived assets, representing the goodwill
and certain fixed assets related to the visual communications business
in the U.K. (see Note 5 to the Condensed Consolidated Financial
Statements).
Restructuring and Other Expenses
During the third quarter of 1999 GBC recorded an after-tax
restructuring charge of $2.4 million ($3.4 million pre-tax), or
approximately $0.15 per diluted share. See Note 4 to the Condensed
Consolidated Financial Statements for additional information.
Income Taxes
GBC's overall effective income tax rate was a benefit of 28.7% for the
third quarter of 1999 compared to expense of 41.9% in 1998. The tax
rate was unfavorably impacted by a change in the Company's effective
annual tax rate from 40.5% in 1998 to approximately 30.0% in 1999. The
mix of income and losses in certain of GBC's international operations,
and the benefits recorded in connection with the special provisions and
restructuring charges were the primary reasons for the changes in the
effective tax rate.
Net Loss
As a result of the factors described above, GBC recorded a net loss for
the third quarter of 1999 of $28.7 million, or $1.82 per diluted share,
compared to net income of $7.3 million, or $0.46 per diluted share
during the third quarter of 1998. The after-tax loss for the third
quarter of 1999 was approximately $.21 per diluted share, excluding
special provisions, restructuring and other charges, and the impact of
Plan-O-Gram charges.
NINE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO NINE MONTHS ENDED
SEPTEMBER 30, 1998
Sales
Net sales for the first nine months of 1999 totaled $666.3 million, a
decrease of 1.7% compared to the first nine months of 1998. The
acquisition of Ibico (which was effective February 27, 1998)
contributed an additional $21.0 million in sales during the first nine
months of 1999 compared to 1998. Sales from the U.S. RingBinder
business, which was sold on June 30, 1998, were $12.7 million prior to
its disposition in June 1998. Excluding the impact of Ibico and U.S.
RingBinder, sales decreased approximately 3.0% in the first nine months
of 1999 compared to 1998. Sales for the Document Finishing Group for
the first nine months of 1999 were down approximately 3.2% compared to
1998, primarily due to issues experienced in the third quarter related
to domestic sales force turnover. The Films Group's sales increased
$3.9 million, or 3.4% primarily due to higher sales of laminating film.
Sales in the Office Products Group were relatively flat in the first
nine months of 1999 compared to 1998. Excluding the impact of Ibico,
sales for the Office Products Group decreased approximately $10.0
million. The primary reason for the decrease was the higher level of
customer credits.
19
<PAGE> 21
Gross Margin, Costs and Expenses
Excluding the impact of the inventory rationalization and write-down
charges, GBC's overall gross profit margin declined to 40.5% in the
first nine months of 1999 compared to 43.3% in 1998. The Office
Products Group gross profit margin was unfavorably impacted as a result
of unusually high level of customer returns related to Plan-O-Gram
changes at the Group's retail customers. Both the Films and Document
Finishing Groups experienced slightly lower gross profit margins in the
first nine months of 1999 compared to 1998. Gross profit margins
declined in the Films Group primarily due to price competition.
Inventory rationalization and write-down charges for the nine months
ended September 30, 1999 were equal to the amounts recorded for the
third quarter of 1999. These charges relate to the streamlining of
certain product lines in the North American Office Products Group and
the U.K., as discussed above.
Selling, service and administrative expenses increased $14.1 million in
the first nine months of 1999 compared to 1998. As a percentage of
sales, operating expenses were 35.4% in the first nine months of 1999
compared to 32.8% in 1998. The increase in selling, service and
administrative expenses was primarily due to higher costs in the Office
Products Group, and an additional two months of Ibico related
administrative expenses compared to 1998. The increased costs resulted
from higher rebate programs along with higher distribution expenses
associated with servicing certain Ibico customers.
Amortization of goodwill and related intangibles increased to $8.2
million in the first nine months of 1999 compared to $8.0 million in
the first half of 1998, primarily as a result of the Ibico acquisition.
Interest expense for the first nine months of 1999 increased to $33.1
million compared to $28.1 million in 1998. The primary reasons for the
increase were higher average debt levels as a result of the financing
of the Ibico acquisition, which was financed with the issuance of the 9
3/8% Senior Subordinated Notes, and higher average interest rates on
the Revolving Credit Facility.
During June 1998, GBC recognized a loss of $3.5 million from the sale
of US RingBinder.
Income Taxes
GBC's overall effective income tax rate was a benefit of 30.0% for the
first nine months of 1999 compared to expense of 41.5% in 1998. The mix
of income and losses in certain of GBC's international operations, and
the benefits recorded in connection with the special provisions and
restructuring charges were the primary reasons for the changes in the
effective annual tax rate.
20
<PAGE> 22
Net Loss
As a result of the factors described above, GBC recorded a net loss of
$(31.7) million for the first nine months of 1999, or $(2.02) per
diluted share, compared to net income of $18.1 million, or $1.14 per
diluted share in the first nine months of 1998. Excluding the after tax
impact of the special provisions, restructuring charges and the
Plan-O-Gram changes, net income was $0.03 per diluted share.
LIQUIDITY AND CAPITAL RESOURCES
GBC's cash requirements for operations and capital expenditures during
the first nine months of 1999 were financed by internally generated
cash flow and borrowings under GBC's revolving credit facilities and
other short-term facilities from banks.
Despite sharply lower earnings, net cash provided by operating
activities was $44.7 million for the first nine months of 1999 compared
to $11.3 million in the first nine months of 1998. The increase in net
cash provided by operating activities was principally generated by
significant reductions in inventory and accounts receivable during the
first nine months of 1999.
Capital expenditures during the first nine months of 1999 were $13.7
million compared to $18.9 million during the first nine months of 1998.
Cash dividends paid during the first nine months of 1999 and 1998 were
$0.30 and $0.33 per share, respectively. GBC's Board of Directors has
elected to omit payment of a dividend on its common stock in the fourth
quarter of 1999 and for the foreseeable future to increase cash
available for value-enhancing investments.
GBC has access to various U.S. and international credit facilities,
including a multicurrency revolving credit facility established on
January 13, 1997 (the "Revolving Credit Facility") with a group of
international banks providing for revolving credit borrowings through
January 2002. Effective November 12, 1999, GBC amended and restated the
Revolving Credit Facility to provide additional financial flexibility
through the facility's expiration date of January 2002 and waive all
non-compliance with the facility's financial covenants as of September
30, 1999. Management believes that the amended facility will provide
GBC with the liquidity necessary to meet currently-anticipated
operating and capital requirements. The amendment, in addition to
waiving the non-compliance at September 30, included, among other
things, (i) a decrease in the size of the facility to $410 million,
(ii) the pledging of substantially all of the assets of General Binding
Corporation and its domestic subsidiaries as collateral, (iii)
increases in interest rate spreads payable under the facility, which
vary depending upon the financial performance of the Company, (iv) a
new covenant setting minimum EBITDA levels, (v) more flexible covenants
regarding net worth levels, and future-starting leverage and interest
coverage hurdles, and (vi) certain new restrictions on dividends,
additional indebtness, investments and capital expenditures. See Item
3.-Defaults Upon Senior Securities and Item 5.-Other Information for
additional information.
As of September 30, 1999, GBC had the equivalent of $374.4 million of
borrowings outstanding under the Revolving Credit Facility.
21
<PAGE> 23
YEAR 2000 COMPLIANCE
In 1997 GBC began identifying issues and formulating plans to address
Year 2000 matters that might impact its operations. The Year 2000
problem consists of shortcomings in certain electronic data processing
systems that make them unable to process year-date data accurately
beyond the year 1999. Essentially, certain systems were designed to
abbreviate dates by eliminating the first two digits of the year under
the assumption that these digits would always be 19. As a result, such
applications could fail or create erroneous results if they recognize
"00" as the year 1900 rather than 2000.
GBC's State of Readiness
In early 1998 GBC established a Year 2000 Task Force which is directed
by GBC's Chief Information Officer. The Task Force has identified and
reviewed GBC's hardware and software systems, embedded technological
systems, GBC's product offerings, and material third party
relationships. GBC's state of readiness is as follows:
- Substantially all of its hardware systems are Year 2000 compliant.
- Certain software systems have been modified or replaced to become
Year 2000 compliant.
- Surveys have been sent to more than 380 material third party
suppliers. Approximately 84% of the surveys have been returned and
are currently being assessed by management of GBC's Business Units to
determine if the failure of any material supplier to have its
products or services compliant could have a materially adverse affect
on the results of GBC's business or operations. We are in the process
of following-up with the remaining suppliers to ensure compliance.
- The significant projects currently in process are summarized below:
<TABLE>
<CAPTION>
Operating Function Project Current Status Target Completion
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
North American Document Remediate order processing, Completed Completed
Finishing and Films distribution and financial systems
Replace manufacturing systems at Completed Completed
five sites
North American Office Remediate order processing, Completed Completed
Products distribution and financial systems
European Document Replace order processing, Implemented at 12 December 1999
Finishing and Office manufacturing, distribution and of 13 sites
Products financial systems
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
22
<PAGE> 24
Costs to Address the Company's Year 2000 Issues
The total cost of GBC's Year 2000 projects is estimated to be
approximately $3.0 million (a majority of the expenditures are in North
America). Such costs include new software purchased and outside
consultants hired to remediate non-compliant systems. GBC's estimated
Year 2000 costs do not include efforts to replace certain systems, as
those projects were not accelerated to ensure Year 2000 compliance; nor
does GBC's estimate include the costs of company employees that may
devote a portion of their efforts towards Year 2000 remediation
projects. These costs have not had, nor are expected to have, a
material effect on GBC's financial position, results of operations or
cash flows in any of the years in which spending has or will occur.
This expectation assumes that GBC will not be obligated to incur
significant Year 2000 related costs on behalf of its customers or
suppliers.
The Risks of the Company's Year 2000 Issues and Contingency Plans
GBC believes that any Year 2000 issues that could significantly impact
its operations have been identified and that replacement or remediation
efforts have been implemented. GBC has prioritized its European
implementation project focusing on early readiness for its most
significant European operations. GBC believes that non-compliance of
any European operation on January 1, 2000 will not cause any material
disruption to its business or operations as a whole and that, in such
event, contingency plans will have been implemented to bridge any
period of non-compliance. GBC will have personnel on site January 1,
2000 to detect and correct any residual problems which may arise, and
has developed contingency plans to ensure that it will be able to
operate critical areas of the business. GBC believes that it has
adequately addressed the risks of the Year 2000 issues, and in a
worst case scenario, the Company could experience minor operational
disruptions. However, management believes that any minor operational
disruptions would not have a material impact on GBC's financial
position.
23
<PAGE> 25
PART II. OTHER INFORMATION
Item 3. Defaults Upon Senior Securities
As of the close of the fiscal quarter ending September 30, 1999, the
Company was not in compliance with certain financial performance
covenants contained in the multicurrency revolving credit facility.
Pursuant to an amendment and restatement of such facility, dated and
effective November 12, 1999, the lenders thereunder waived such
non-compliance. No default, event of default or material non-compliance
exists under said facility, as amended, as of the date hereof.
Item 5. Other Information
Concurrent with the execution of the amendment and restatement of the
Company's multicurrency revolving credit facility, the Company and each
of its domestic subsidiaries granted liens and security interests in
substantially all of their owned real property and tangible and
intangible personal property, including certain equity interests of the
Company and its domestic subsidiaries in certain foreign subsidiaries
(in each case not more than 65% of the aggregate outstanding voting
shares). Such liens secure the performance by the Company and such
subsidiaries who are parties to the multicurrency revolving credit
facility of all of their duties and obligations under such facility as
well as certain hedging obligations owed to certain of the Company's
senior lenders and their affiliates.
Item 6. Exhibits and Reports on Form-8K
(a) Exhibit 10 Material Contracts:
(i) Amended and Restated Multicurrency Credit Agreement, dated as
of November 12, 1999 among the Issuer and GBC Nederland B.V.,
each of the guarantors party thereto, the lenders party
thereto in their capacities as lenders thereunder and Harris
Trust and Savings Bank, as administrative agent.
(ii) Summary of Exhibits and Schedules as referred to in the
Amended and Restated Multicurrency Credit Agreement dated as
of November 12, 1999.
Exhibit 27:
Financial Data Schedule for the nine months ended September 30,
1999.
(b) Reports on Form 8-K: None.
24
<PAGE> 26
SIGNATURE
Pursuant to the requirements of Section 13 or 19(d) 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.
GENERAL BINDING CORPORATION
By: /s/ Terry G. Westbrook
--------------------------------
Terry G. Westbrook
Senior Vice President and Chief
Financial Officer
November 15, 1999
25
<PAGE> 1
================================================================================
AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT
dated as of
November 12, 1999
among
GENERAL BINDING CORPORATION,
GBC NEDERLAND B.V.,
THE BANKS PARTY HERETO,
and
HARRIS TRUST AND SAVINGS BANK,
as Administrative Agent
and each of
BANK ONE, NA
as Co-Syndication Agent and Co-Agent
and
THE BANK OF NEW YORK
and
CREDIT AGRICOLE INDOSUEZ
and
LASALLE BANK NATIONAL ASSOCIATION
as Co-Agents
================================================================================
<PAGE> 2
TABLE OF CONTENTS
(This Table of Contents is not part of the Agreement)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 1 THE COMMITTED FACILITY.................................................................1
Section 1.1. The Revolving Credit Commitments.......................................................1
Section 1.2. Letters of Credit......................................................................2
SECTION 2 INTEREST RATES AND MANNER OF BORROWING COMMITTED LOANS.................................7
Section 2.1. Applicable Interest Rates..............................................................7
Section 2.2. Manner of Borrowing Committed Loans...................................................10
SECTION 3 THE DOMESTIC SWING LINE LOANS.........................................................12
Section 3.1. The Domestic Swing Line Loans.........................................................12
Section 3.2. Interest on Domestic Swing Line Loans.................................................12
Section 3.3. Requests for Domestic Swing Line Loans................................................13
Section 3.4. Refunding Domestic Swing Line Loans...................................................13
Section 3.5. Participations........................................................................14
Section 3.6. Indemnification.......................................................................14
SECTION 4 THE MULTICURRENCY SWING LINE LOANS....................................................15
Section 4.1. The Multicurrency Swing Line Loans....................................................15
Section 4.2. Requests for Multicurrency Swing Line Loans...........................................15
Section 4.3. The Participating Interests...........................................................16
Section 4.4. Indemnification.......................................................................17
SECTION 5 GENERAL PROVISIONS APPLICABLE TO ALL LOANS............................................17
Section 5.1. Interest Periods......................................................................17
Section 5.2. Minimum Borrowing Amount..............................................................18
Section 5.3. Maturity of Loans.....................................................................18
Section 5.4. Prepayments...........................................................................18
Section 5.5. Default Rate..........................................................................21
Section 5.6. The Notes.............................................................................22
Section 5.7. Commitment Terminations...............................................................23
Section 5.8. Funding Indemnity.....................................................................23
Section 5.9. Rate and Determinations of Original Dollar Amount and U.S. Dollar Equivalent..........24
Section 5.10. (a) Designation of Borrowing Subsidiaries............................................24
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 6 FEES AND PLACE AND APPLICATION OF PAYMENTS............................................25
Section 6.1. Facility Fees.........................................................................25
Section 6.2. Letter of Credit Fees.................................................................25
Section 6.3. Audit Fees............................................................................26
Section 6.4. Administrative Agent Fees.............................................................26
Section 6.5. Closing Fees..........................................................................26
Section 6.6. Fee Calculations......................................................................26
Section 6.7. Place of Payments.....................................................................26
Section 6.8. Funds and Remittance..................................................................26
Section 6.9. Application of Payments...............................................................27
SECTION 7 SECURITY..............................................................................27
Section 7.1. Collateral............................................................................27
Section 7.2. Liens on Real Property................................................................28
Section 7.3. Guarantees............................................................................29
Section 7.4. Foreign Security......................................................................29
Section 7.5. Further Assurances and Modifications..................................................30
SECTION 8 DEFINITIONS; INTERPRETATIONS..........................................................31
Section 8.1. Definitions...........................................................................31
Section 8.2. Interpretation........................................................................52
Section 8.3. Change in Accounting Principles.......................................................52
SECTION 9 REPRESENTATIONS AND WARRANTIES OF COMPANY.............................................53
Section 9.1. Corporate Organization and Authority..................................................53
Section 9.2. Subsidiaries..........................................................................53
Section 9.3. Corporate Authority and Validity of Obligations.......................................54
Section 9.4. Financial Statements..................................................................54
Section 9.5. No Litigation; No Labor Controversies.................................................54
Section 9.6. Taxes.................................................................................55
Section 9.7. Approvals.............................................................................55
Section 9.8. ERISA.................................................................................55
Section 9.9. Government Regulation.................................................................55
Section 9.10. Margin Stock..........................................................................55
Section 9.11. Licenses and Authorizations; Compliance with Environmental and Health Laws............55
Section 9.12. Ownership of Property; Liens..........................................................56
Section 9.13. No Burdensome Restrictions; Compliance with Agreements................................56
Section 9.14. Full Disclosure.......................................................................56
Section 9.15. Year 2000 Compliance..................................................................56
SECTION 10 REPRESENTATIONS AND WARRANTIES OF BORROWING SUBSIDIARIES..............................57
Section 10.1. Corporate Organization and Authority..................................................57
</TABLE>
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<TABLE>
<S> <C> <C>
Section 10.2. Corporate Authority and Validity of Obligations.......................................57
SECTION 11 CONDITIONS PRECEDENT..................................................................57
Section 11.1. Initial Borrowing.....................................................................57
Section 11.2. All Credit Events.....................................................................60
Section 11.3. First Borrowing by Each Borrowing Subsidiary..........................................61
Section 11.4. Additional Conditions to Credit Events other than Refunding Borrowings................61
SECTION 12 COVENANTS.............................................................................62
Section 12.1. Corporate Existence; Subsidiaries.....................................................62
Section 12.2. Maintenance...........................................................................62
Section 12.3. Taxes.................................................................................62
Section 12.4. ERISA.................................................................................62
Section 12.5. Insurance.............................................................................63
Section 12.6. Financial Reports and Other Information...............................................63
Section 12.7. Bank Inspection Rights................................................................65
Section 12.8. Conduct of Business...................................................................65
Section 12.9. Liens.................................................................................65
Section 12.10. Use of Proceeds; Regulation U.........................................................67
Section 12.11. Sales and Leasebacks..................................................................68
Section 12.12. Mergers, Consolidations and Sales of Assets...........................................68
Section 12.13. Use of Property and Facilities; Environmental and Health and Safety Laws..............70
Section 12.14. Investments, Acquisitions, Loans, Advances and Guaranties.............................70
Section 12.15. Consolidated Shareholder's Equity.....................................................72
Section 12.16. Current Ratio.........................................................................72
Section 12.17. Leverage Ratios.......................................................................72
Section 12.18. Interest Coverage Ratio...............................................................73
Section 12.19. Minimum Consolidated EBITDA...........................................................73
Section 12.20. Dividends and Other Restricted Payments...............................................74
Section 12.21. Company as Domestic Operation.........................................................75
Section 12.22. Indebtedness..........................................................................75
Section 12.23. Consolidated Capital Expenditures.....................................................76
Section 12.24. No Restrictions on Subsidiary Distributions...........................................76
Section 12.25. Transactions with Affiliates..........................................................77
Section 12.26. Compliance with Laws..................................................................77
Section 12.27. Subordinated Indebtedness.............................................................77
Section 12.28. Year 2000 Assessment..................................................................77
Section 12.29. European Monetary Union...............................................................78
Section 12.30. Interest Rate Protection..............................................................79
SECTION 13 EVENTS OF DEFAULT AND REMEDIES........................................................80
Section 13.1. Events of Default.....................................................................80
</TABLE>
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<TABLE>
<S> <C> <C>
Section 13.2. Non-Bankruptcy Defaults...............................................................82
Section 13.3. Bankruptcy Defaults...................................................................82
Section 13.4. Collateral for Undrawn Letters of Credit..............................................83
Section 13.5. Notice of Default.....................................................................83
Section 13.6. Expenses..............................................................................83
SECTION 14 CHANGE IN CIRCUMSTANCES...............................................................83
Section 14.1. Change of Law.........................................................................83
Section 14.2. Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR.........84
Section 14.3. Increased Cost and Reduced Return.....................................................84
Section 14.4. Lending Offices.......................................................................86
Section 14.5. Discretion of Bank as to Manner of Funding............................................87
SECTION 15 THE AGENTS............................................................................87
Section 15.1. Appointment and Authorization of Agents...............................................87
Section 15.2. Agents and Its Affiliates.............................................................87
Section 15.3. Action by Agents......................................................................87
Section 15.4. Consultation with Experts.............................................................88
Section 15.5. Liability of Agents; Credit Decision..................................................88
Section 15.6. Indemnity.............................................................................89
Section 15.7. Resignation or Removal of Administrative Agent and Successor Administrative Agent.....89
Section 15.8. Payments..............................................................................89
Section 15.9. Co-Agents.............................................................................90
SECTION 16 THE GUARANTEES........................................................................90
Section 16.1. The Guarantees........................................................................90
Section 16.2. Guarantee Unconditional...............................................................90
Section 16.3. Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances...........91
Section 16.4. Waivers...............................................................................92
Section 16.5. Limit on Recovery.....................................................................92
Section 16.6. Stay of Acceleration..................................................................92
Section 16.7. Benefit to Guarantors.................................................................92
SECTION 17 MISCELLANEOUS.........................................................................92
Section 17.1. Withholding Taxes.....................................................................92
Section 17.2. No Waiver of Rights...................................................................95
Section 17.3. Non-Business Day......................................................................95
Section 17.4. Documentary Taxes.....................................................................95
Section 17.5. Survival of Representations...........................................................95
Section 17.6. Survival of Indemnities...............................................................95
Section 17.7. Sharing of Set-Off....................................................................95
</TABLE>
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<TABLE>
<S> <C> <C>
Section 17.8. Notices...............................................................................96
Section 17.9. Counterparts..........................................................................96
Section 17.10. Successors and Assigns................................................................96
Section 17.11. Participants and Note Assignees.......................................................97
Section 17.12. Assignment of Revolving Credit Commitments by Banks...................................97
Section 17.13. Amendments............................................................................99
Section 17.13A. Amendments to Loan Documents.........................................................100
Section 17.14. Headings.............................................................................100
Section 17.15. Legal Fees, Other Costs and Indemnification..........................................100
Section 17.16. Set Off..............................................................................101
Section 17.17. Currency.............................................................................101
Section 17.18. Unlawful Interest....................................................................102
Section 17.19. Several Liability of Foreign Borrowers...............................................102
Section 17.20. Entire Agreement, Construction and Waiver............................................102
Section 17.21. Governing Law........................................................................103
Section 17.22. Submission to Jurisdiction; Waiver of Jury Trial.....................................103
Section 17.23. Confidentiality......................................................................103
Section 17.24. Previous Notes.......................................................................103
EXHIBIT A -- Committed Loan Note
EXHIBIT B -- Domestic Swing Line Note
EXHIBIT C -- Multicurrency Swing Line Note
EXHIBIT D -- Notice of Payment Request
EXHIBIT E-1 and E-2 -- Opinion of Counsel
EXHIBIT F -- Compliance Certificate
EXHIBIT G -- Election to Participate
EXHIBIT H -- Election to Terminate
EXHIBIT I -- Opinion of Counsel
EXHIBIT J -- Subsidiary Guarantee Agreement
EXHIBIT K -- Foreign Investment List
SCHEDULE 9.2 -- List of Subsidiaries
SCHEDULE 9.8 -- ERISA
SCHEDULE 9.12 -- Real Property
SCHEDULE 11.1(j) -- Mortgages and Title Insurance
SCHEDULE 12.9 -- Permitted Liens
SCHEDULE 12.22 -- Permitted Indebtedness
</TABLE>
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<PAGE> 7
AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT
This Amended and Restated Multicurrency Credit Agreement is entered
into as of the 12th day of November, 1999, by and between the undersigned,
General Binding Corporation, a Delaware corporation (the "Company"), GBC
Nederland B.V., a private company with limited liability incorporated under the
laws of the Netherlands with its corporate seat at Hoofddorp, the Netherlands,
each of the lending institutions which are or hereafter become party hereto
(hereinafter referred to as a "Bank" and collectively as the "Banks"), Harris
Trust and Savings Bank in its capacity as agent hereunder (hereinafter referred
to as the "Administrative Agent"), and LaSalle Bank National Association, Bank
One, NA, The Bank of New York and Credit Agricole Indosuez in their respective
capacities as Co-Agents hereunder (hereinafter referred to as the "Co-Agents").
The Company and each Borrowing Subsidiary are at times hereinafter referred to
individually as a "Borrower" and collectively as the "Borrowers".
R E C I T A L S
A. The Borrowers have requested that the Banks continue to extend
credit to the Borrowers.
B. The Borrowers, the Banks and the Agents are currently party to that
certain Multicurrency Credit Agreement dated as of January 13, 1997 (as amended,
the "Previous Credit Agreement"). The Borrowers hereby request that certain
amendments be made to the Previous Credit Agreement and, for the sake of clarity
and convenience, that the Previous Credit Agreement be restated as so amended.
This Agreement shall become effective, and shall amend and restate the Previous
Credit Agreement, upon the execution of this Agreement by the Credit Parties
signatory hereto, the Administrative Agent and the Required Banks and the
satisfaction of the conditions precedent contained in Section 11 hereof; and
from and after the Effective Date, (i) all references made to the Previous
Credit Agreement in the Loan Documents or in any other instrument or document
shall, without more, be deemed to refer to this Amended and Restated
Multicurrency Credit Agreement and (ii) the Previous Credit Agreement shall be
deemed amended and restated in its entirety hereby.
C. The Banks, upon acceptance of this Agreement in writing, will
continue to lend monies and/or make advances, extensions of credit or other
financial accommodations to, on behalf of or for the benefit of the Borrowers
pursuant hereto.
NOW, THEREFORE, in consideration of the recitals set forth above, which
by this reference are incorporated into this Agreement set forth below, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and subject to the terms and conditions hereof and on the
basis of the representations and warranties herein set forth, the Borrowers, the
Agents and the Banks hereby agree to the following:
SECTION 1. THE COMMITTED FACILITY.
Section 1.1. The Revolving Credit Commitments. The Committed Loans.
Subject to the terms and conditions hereof, each Bank, by its acceptance hereof,
severally agrees, before the
<PAGE> 8
Revolving Credit Termination Date, to make a loan or loans (individually a
"Committed Loan" and collectively "Committed Loans") to each and any Borrower
from time to time on a revolving basis in U.S. Dollars and Alternative
Currencies in an aggregate outstanding Original Dollar Amount for all the
Borrowers (taken together) not to exceed its Revolving Credit Commitment. At no
time shall the aggregate Original Dollar Amount of outstanding Loans (whether
Committed Loans or Swing Line Loans) and L/C Obligations to all Borrowers (taken
together) exceed the Revolving Credit Commitments then in effect, which
Revolving Credit Commitments on the date hereof total $410,000,000. Each
Borrowing of Committed Loans shall be made ratably from the Banks in proportion
to their respective Percentages. The relevant Borrower may elect, through the
Company, that each Borrowing of Committed Loans denominated in U.S. Dollars be
made available by means of either Domestic Rate Loans or Eurocurrency Loans. All
Loans denominated in an Alternative Currency shall be Eurocurrency Loans.
Section 1.2. Letters of Credit. (a) General Terms. Subject to the terms
and conditions hereof, as part of the Revolving Credit, the Administrative Agent
or Multicurrency Swing Line Bank (each an "Issuing Agent") shall from time to
time issue commercial and standby letters of credit (each a "Letter of Credit")
for the account of any one or more of the Borrowers (whether or not also for the
account of any other Subsidiary of the Company as well) prior to the Revolving
Credit Termination Date, provided that (x) the aggregate Original Dollar Amount
of L/C Obligations at any time outstanding shall not exceed the difference
between the Revolving Credit Commitments in effect at such time and the
aggregate Original Dollar Amount of Loans (whether Committed Loans or Swing Line
Loans) then outstanding, (y) the aggregate Original Dollar Amount of Committed
L/C Obligations at any time outstanding shall not exceed the L/C Commitment then
in effect and (z) the aggregate Original Dollar Amount of Foreign Credit L/C
Obligations and Multicurrency Swing Line Loans at any time outstanding shall not
exceed the Multicurrency Swing Line Commitment in effect at such time.
Notwithstanding anything herein to the contrary, that certain standby letter of
credit dated April 17, 1996 issued by Harris Trust and Savings Bank to Comerica
Bank, as Trustee under an Indenture of Trust dated April 1, 1996 between the
Maryland Industrial Development Financing Authority and such Trustee (the
"Maryland IRB Indenture"), in the original amount of $9,609,316 shall constitute
a "Letter of Credit" herein for all purposes of this Agreement to the same
extent, and with the same force and effect as if such Letter of Credit had been
issued under this Agreement at the request of the Company. Each Letter of Credit
shall be issued by an Issuing Agent, but each Bank (other than the Bank which
issued such Letter of Credit) shall be obligated to reimburse the relevant
Issuing Agent for its Percentage of the amount of each drawing thereunder and,
accordingly, the undrawn face amount of each Letter of Credit shall constitute
usage of the Revolving Credit Commitment of each Bank pro rata in accordance
with each Bank's Percentage.
(b) Term. Except for the Letter of Credit issued under the Maryland IRB
Indenture, each Letter of Credit issued hereunder shall expire not later than
the earlier of (i) one year from the date issued (or be cancelable not later
than one year from the date of issuance and each renewal) and (ii) the Revolving
Credit Termination Date.
(c) General Characteristics. Each Letter of Credit issued hereunder by
the Administrative Agent shall be payable in U.S. Dollars or an Alternative
Currency, shall conform to the general requirements of the Administrative Agent
for the issuance of commercial or
-2-
<PAGE> 9
standby letters of credit (as appropriate) as to form and substance and shall be
a letter of credit which the Administrative Agent may lawfully issue. Each
Letter of Credit issued hereunder by the Multicurrency Swing Line Bank shall be
a standby letter of credit issued solely for the purpose of supporting credit
extended by a foreign Affiliate of the Multicurrency Swing Line Bank to a
Foreign Subsidiary (it being understood that the face amount of such a Letter of
Credit may when issued exceed the U.S. Dollar Equivalent of the maximum amount
of credit it is supporting to the extent the lender providing such credit so
requires) and shall be payable in U.S. Dollars, shall conform to the general
requirements of the Multicurrency Swing Line Bank for the issuance of standby
letters of credit as to form and substance and shall be a letter of credit which
the Multicurrency Swing Line Bank may lawfully issue.
(d) Applications. At the time the Company (acting on behalf of the
applicable Borrower) requests an Issuing Agent to issue a Letter of Credit (or
prior to the first issuance of a Letter of Credit, in the case of a continuing
application) for the account of any Borrower, such Borrower (jointly with any
other Borrower if such other Borrower elects in its discretion) shall execute
and deliver to such Issuing Agent an application for such Letter of Credit in
the form customarily prescribed by such Issuing Agent for a Letter of Credit of
the type requested (individually an "Application" and collectively the
"Applications"). The current forms of each Issuing Agent's Applications are
attached as Schedule 1.2 (Commercial) and Schedule 1.2 (Standby) hereto. Each
Issuing Agent shall provide the Company and each Bank with copies of any new
form of Application that may, from time to time, be adopted by such Issuing
Agent. Notwithstanding anything contained in any Application to the contrary,
(i) each Borrower executing the Application for a Letter of Credit shall be
jointly and severally liable for all L/C Obligations in respect of such Letter
of Credit (nothing herein contained to impair or otherwise affect the joint and
several liability under Section 16 hereof of the Guarantors), (ii) the Borrowers
shall pay fees in connection with each Letter of Credit as set forth in Section
6.2 hereof, (iii) before the occurrence of an Event of Default, neither Issuing
Agent will call for the funding by a Borrower of any amount under a Letter of
Credit before being presented with a drawing thereunder, (iv) upon the
occurrence of the Revolving Credit Termination Date, the full amount then
available for drawing under all outstanding Letters of Credit shall be
immediately due and payable in the manner described in Section 13.4 hereof, and
(v) if an Issuing Agent is not timely reimbursed in accordance with Section
1.2(e) hereof (whether out of the proceeds of a Loan, including a Committed Loan
made pursuant to Section 2.2(c) hereof or otherwise) for the amount of any
drawing paid by such Issuing Agent under a Letter of Credit on the date such
drawing is paid, the joint and several obligation of the applicable Borrowers
(determined as set forth in clause (i) of this sentence) to reimburse such
Issuing Agent for the amount of such drawing shall bear interest (which such
Borrowers hereby promise to pay) from and after the date such drawing is paid at
a rate per annum equal to (x) in the case of a drawing under a Letter of Credit
denominated in U.S. Dollars or a Letter of Credit denominated in an Alternative
Currency as to which the relevant Issuing Agent has requested reimbursement for
such drawing in U.S. Dollars, (i) from the date such Issuing Agent paid such
drawing to and including the date two (2) Business Days after such payment, the
sum of the Domestic Rate Margin plus the Domestic Rate from time to time in
effect and (ii) from the date two (2) Business Days after the date such Issuing
Agent paid such drawing to the date such Issuing Agent is reimbursed by a
Borrower therefor, the sum of 2% plus the Domestic Rate Margin plus the Domestic
Rate from time to time in effect, and (y) in the case of a drawing under a
Letter of Credit denominated in an
-3-
<PAGE> 10
Alternative Currency as to which such Issuing Agent has requested reimbursement
for such drawing in such Alternative Currency, (i) from the date such Issuing
Agent paid such drawing to and including the date two (2) Business Days after
such payment, the sum of the Eurocurrency Margin plus the Overnight Foreign
Currency Rate and (ii) from the date two (2) Business Days after the date such
Issuing Agent paid such drawing to the date such Issuing Agent is reimbursed by
a Borrower therefor, the sum of 2% plus the Eurocurrency Margin plus the
Overnight Foreign Currency Rate. If an Issuing Agent issues any Letters of
Credit with expiration dates that are automatically extended, unless such
Issuing Agent gives notice that the expiration date will not so extend beyond
its then scheduled expiration date, such Issuing Agent will give such notice of
non-renewal before the time necessary to prevent such automatic extension if
before such required notice date (i) the expiration date of such Letter of
Credit if so extended would be after the Revolving Credit Termination Date, (ii)
the Revolving Credit Commitments have been terminated or (iii) a Default or
Event of Default exists and the Required Banks have given the Administrative
Agent and relevant Issuing Agent instructions not to so permit the extension of
the expiration date of such Letter of Credit. At least thirty (30) Business Days
before the date on which an Issuing Agent is required to give notice of the
non-renewal of such a Letter of Credit in order to prevent its automatic
extension, the Issuing Agent (other than an Issuing Agent then serving as
Administrative Agent) shall give notice to the Administrative Agent of such
circumstance and the Administrative Agent shall promptly notify each Bank
thereof. Each Issuing Agent agrees to issue amendments to the Letter(s) of
Credit increasing the amount, or extending the expiration date, thereof at the
request of the Company (acting on behalf of itself or pursuant to Section 5.10
hereof, a Borrowing Subsidiary) subject to the conditions of Section 11 and the
other terms of this Section 1.2. Each Issuing Agent (other than an Issuing Agent
then serving as Administrative Agent) shall promptly notify the Administrative
Agent of each request received by such Issuing Agent for the issuance of a
Letter of Credit or any extension, increase in the amount of or other
modification to a Letter of Credit and promptly furnish the Administrative Agent
with a copy of the completed Application for each Letter of Credit or in the
case of any such modification, a copy of the written request therefor. Each
Issuing Agent (other than an Issuing Agent then serving as Administrative Agent)
shall promptly notify the Administrative Agent of the issuance of each Letter of
Credit and each extension, increase in the amount or other modification of a
Letter of Credit and promptly furnish the Administrative Agent with a copy of
each Letter of Credit or modification thereof, as the case may be. The
Administrative Agent will promptly notify each Bank of each issuance of a Letter
of Credit and each extension or increase in the amount of a Letter of Credit. To
the extent so required by any Bank, each Issuing Agent shall furnish to such
Bank copies of Letters of Credit issued by such Issuing Agent and amendments
thereof. In the case of each such issuance, or increase in the amount of, any
Letter of Credit, the Administrative Agent shall determine and notify the
relevant Issuing Agent whether such amount would exceed any restriction in this
Section 1 on the aggregate face amount of Letters of Credit as set forth in
Section 11.2 hereof.
(e) The Reimbursement Obligations. Subject to Section 1.2(d) hereof,
the joint and several obligations of the applicable Borrowers (determined as set
forth in clause (i) of the fourth sentence of Section 1.2(d) hereof) to
reimburse the relevant Issuing Agent for all drawings under a Letter of Credit
(a "Reimbursement Obligation") shall be governed by the Application related to
such Letter of Credit, except that (i) payments of drawings shall be made to the
Administrative Agent, not the Issuing Agent, and the Administrative Agent shall
promptly thereafter remit such
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payment in like funds as received to the relevant Issuing Agent, (ii) the
reimbursement by such Borrowers of drawings made under a Letter of Credit
denominated in U.S. Dollars shall be made in U.S. Dollars and (iii) the
reimbursement by such Borrowers of drawings made under a Letter of Credit
denominated in an Alternative Currency shall be made by payment in U.S. Dollars
of the U.S. Dollar Equivalent, calculated on the date the relevant Issuing Agent
paid such draws, of the amount paid by such Issuing Agent pursuant to such
drawing, or, if such Issuing Agent shall elect by notice to the Company and the
Administrative Agent, by payment in the Alternative Currency which was paid by
such Issuing Agent pursuant to such drawing in an amount equal to such drawing
and (iv) reimbursement in U.S. Dollars of a drawing paid shall be made by no
later than 1:30 p.m. (Chicago time) on the date when each drawing is paid and
reimbursement in an Alternative Currency of a drawing paid shall be made by no
later than 12:00 noon local time at the place of payment or if earlier, such
local time as is necessary for such funds to be received and transferred to the
relevant Issuing Agent for same day value on the day such Reimbursement
Obligation is due; any payment of a Reimbursement Obligation received after such
time shall be deemed to have been received by the relevant Issuing Agent on the
next Business Day. If the applicable Borrowers do not make any such
reimbursement payment on the date due and the Participating Banks fund their
participations therein in the manner set forth in Section 1.2(f) below, then all
payments thereafter received by the Administrative Agent in discharge of any of
the relevant Reimbursement Obligations shall be distributed in accordance with
Section 1.2(f) below.
The joint and several obligations of the applicable Borrowers to the
Issuing Agents under this Section 1.2 shall be absolute, irrevocable and
unconditional under any and all circumstances whatsoever (except, without
limiting such Borrowers' joint and several obligations under each Application,
to the extent that a Borrower is relieved under applicable law (including as
such, to the extent applicable to a particular Letter of Credit, the then
current Uniform Customs and Practice for Documentary Credits of the
International Chamber of Commerce) from its obligation to reimburse an Issuing
Agent for a drawing under a Letter of Credit because of such Issuing Agent's
failure to determine that documents received under the Letter of Credit comply
on their face with the terms thereof).
(f) The Participating Interests. Each Bank (other than the Issuing
Agent for the applicable Letter of Credit), by its acceptance hereof, severally
agrees to purchase from the relevant Issuing Agent, and such Issuing Agent
hereby agrees to sell to each such Bank (in this Section, a "Participating
Bank"), an undivided percentage participating interest (a "Participating
Interest"), to the extent of its Percentage, in each Letter of Credit issued by,
and each Reimbursement Obligation owed to, such Issuing Agent. Upon any failure
by the applicable Borrowers to pay any Reimbursement Obligation at the time
required on the date the related drawing is paid, as set forth in Section 1.2(e)
above, or if an Issuing Agent is required at any time to return to a Borrower or
to a trustee, receiver, liquidator, custodian or other Person any portion of any
payment of any Reimbursement Obligation, each Participating Bank shall, not
later than the Business Day it receives a certificate in the form of Exhibit D
hereto from the relevant Issuing Agent (given directly or through the
Administrative Agent) to such effect, if such certificate is received before
1:00 p.m. (Chicago time), or not later than the following Business Day, if such
certificate is received after such time, pay to the Administrative Agent for the
account of the relevant Issuing Agent (i) in the case of a Reimbursement
Obligation payable
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by the applicable Borrowers in U.S. Dollars (including a Reimbursement
Obligation payable in U.S. Dollars by virtue of the Issuing Agent's election in
Section 1.2(e) above to be reimbursed in U.S. Dollars for a drawing it paid in
an Alternative Currency), an amount equal to such Participating Bank's
Percentage of such unpaid or recaptured Reimbursement Obligation, such payment
to be made in lawful money in the United States, in immediately available funds
at the Administrative Agent's principal office in Chicago, Illinois, together
with interest on such amount accrued from the date the related payment was made
by the relevant Issuing Agent to the date of such payment by such Participating
Bank at a rate per annum equal to (x) from the date the related payment was made
by such Issuing Agent to and including the date two (2) Business Days after
payment by such Participating Bank is due hereunder, the Federal Funds Rate for
each such day and (y) from the date two (2) Business Days after the date such
payment is due from such Participating Bank to the date such payment is made by
such Participating Bank, the Domestic Rate in effect for each such day and (ii)
in the case of a Reimbursement Obligation payable by the applicable Borrowers in
an Alternative Currency, an amount equal to such Participating Bank's Percentage
of such unpaid or recaptured Reimbursement Obligation, such payment to be made
in such Alternative Currency in such funds which are then customary for the
settlement of international transactions in such currency, together with
interest on such amount accrued from the date the related payment was made by
the relevant Issuing Agent to the date of such payment by the Participating Bank
at a rate per annum equal to (x) from the date the related payment was made by
such Issuing Agent to and including the date two (2) Business Days after payment
by such Participating Bank is due hereunder, the Overnight Foreign Currency Rate
for each such day and (y) from the date two (2) Business Days after the date
such payment is due from such Participating Bank to the date such payment is
made by such Participating Bank, the sum of 1% plus the Overnight Foreign
Currency Rate for each such day. Each such Participating Bank shall thereafter
be entitled to receive its Percentage of each payment received in respect of the
relevant Reimbursement Obligation and of interest paid thereon, with the
relevant Issuing Agent retaining its Percentage as a Bank hereunder.
The several obligations of the Participating Banks to the Issuing
Agents under this Section 1.2 shall be absolute, irrevocable and unconditional
under any and all circumstances whatsoever (except, without limiting the
applicable Borrowers' joint and several obligations under each Application, to
the extent that such Borrowers are relieved under applicable law (including as
such, to the extent applicable to a particular Letter of Credit, the then
current Uniform Customs and Practice for Documentary Credits of the
International Chamber of Commerce) from their obligation to reimburse an Issuing
Agent for a drawing under a Letter of Credit because of such Issuing Agent's
failure to determine that documents received under the Letter of Credit comply
on their face with the terms thereof) and shall not be subject to any set-off,
counterclaim or defense to payment which any Participating Bank may have or have
had against the Borrowers, an Issuing Agent, the Administrative Agent, any other
Bank or any other Person whatsoever. Without limiting the generality of the
foregoing, such obligations shall not be affected by any Default or Event of
Default or by the amount of any Commitment of any Bank, and each payment by a
Participating Bank under this Section 1.2 shall be made without any offset,
abatement, withholding or reduction whatsoever. The Administrative Agent and
Issuing Agents shall be entitled to offset amounts received for the account of a
Bank under this Agreement against unpaid amounts due from such Bank to the
Administrative Agent hereunder (whether as fundings of participations or
otherwise), but shall not be entitled to offset against
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amounts owed to the Administrative Agent or any Issuing Agent by any Bank
arising outside the Loan Documents.
(g) Indemnification. The Participating Banks shall, to the extent of
their respective Percentages, indemnify each Issuing Agent (to the extent not
reimbursed by the Borrowers and without in any way impairing or otherwise
affecting the Borrowers' joint and several obligations to do so) against any
cost, expense (including reasonable counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result from the Issuing
Agent's gross negligence or willful misconduct) that the Issuing Agent may
suffer or incur in connection with any Letter of Credit. The obligations of the
Participating Banks under this Section 1.2(g) and all other parts of this
Section 1.2 shall survive termination of this Agreement and of all other L/C
Documents.
(h) Outstanding Amount of Letters of Credit. For all purposes of this
Agreement, Letters of Credit shall be deemed outstanding as of any time in an
amount equal to the aggregate undrawn amount then available thereunder
(determined in accordance with Section 5.9 hereof) plus all unpaid Reimbursement
Obligations then outstanding. For such purposes, the undrawn amount available
under a Letter of Credit shall be the maximum amount which can be drawn
thereunder under any circumstances and over any period of time.
SECTION 2. INTEREST RATES AND MANNER OF BORROWING COMMITTED LOANS.
Section 2.1. Applicable Interest Rates. (a) Domestic Rate Loans. Each
Domestic Rate Loan made by a Bank shall bear interest (computed on the basis of
a 365 or 366 day year, as applicable, and actual days elapsed) on the unpaid
principal amount thereof from the date such Loan is made until maturity (whether
by acceleration or otherwise) at a rate per annum equal to the sum of the
Domestic Rate Margin plus the Domestic Rate from time to time in effect, payable
on the last day of the applicable Interest Period and at maturity (whether by
acceleration or otherwise).
"Domestic Rate" means for any day the greater of:
(i) the rate of interest announced by the Administrative
Agent from time to time as its prime commercial rate, or equivalent, as
in effect on such day, with any change in the Domestic Rate resulting
from a change in said prime commercial rate to be effective as of the
date of the relevant change in said prime commercial rate; and
(ii) the sum of (x) the rate determined by the Administrative
Agent to be the prevailing rate per annum (rounded upward, if
necessary, to the next higher 1/100 of 1%) at approximately 10:00 a.m.
(Chicago time) (or as soon thereafter as is practicable) on such day
(or, if such day is not a Business Day, on the immediately preceding
Business Day) for the purchase at face value of overnight Federal funds
in an amount comparable to the principal amount owed to the
Administrative Agent for which such rate is being determined, plus (y)
1/2 of 1% (0.50%).
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"Domestic Rate Margin" means (a) commencing on October 1, 1999, 1.00%
per annum at all times during which the Grid Pricing Condition has not been
satisfied and (b) 0% at all times when the Grid Pricing Condition has been
satisfied.
(b) Eurocurrency Loans. Each Eurocurrency Loan made by a Bank shall
bear interest during each Interest Period it is outstanding (computed on the
basis of a year of 360 days and actual days elapsed) on the unpaid principal
amount thereof from the date such Loan is made until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the sum of the LIBOR
plus the Eurocurrency Margin applicable to such Loan, payable on the last day of
the applicable Interest Period and at maturity (whether by acceleration or
otherwise), and, if the applicable Interest Period is longer than three months,
on each day occurring every three months after the date such Loan is made. A
Eurocurrency Loan shall bear additional interest in the events, on the terms and
in the amount set forth in the immediately following paragraph.
In addition to the interest on a Eurocurrency Loan to a Borrower
described in the immediately preceding paragraph, such Borrower shall pay to
each affected Bank, so long as (a) such Bank shall be required under regulations
of the Board of Governors of the Federal Reserve System to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
Loans and (b) as a result the cost to such Bank (or its applicable Lending
Office) of making or maintaining its Eurodollar Loans is increased, additional
interest on the unpaid principal amount of each affected Loan of such Bank from
the date of such Loan until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder obtained by
subtracting (a) the LIBOR for such Interest Period for such Eurocurrency Loan
from (B) the rate obtained by dividing such LIBOR by a percentage equal to one
hundred percent (100%) minus the Eurocurrency Reserve Percentage of such Bank
for such Interest Period, payable on each date on which interest is payable on
such Eurocurrency Loan. Any Bank wishing to require payment of such additional
interest (x) shall so notify the Company and the Administrative Agent, in which
case such additional interest on the Eurodollar Loans of such Bank shall be
payable to the Administrative Agent for the account of such Bank at the place
indicated in such notice with respect to each Interest Period commencing at
least five (5) Business Days after the giving of such notice and (y) shall
furnish to the Company at least five (5) Business Days prior to each date on
which interest is payable on the Eurodollar Loans a certificate setting forth
the amount to which such Bank is then entitled under this Section (which shall
be consistent with such Bank's good faith estimate of the level at which the
related reserves are maintained by it and generally consistent with such Bank's
application of such requirement to other similarly situated borrowers obligated
under similar provisions in their loan agreements to provide such compensation).
Such certificate shall be conclusive and binding absent demonstrable error.
"Eurocurrency Margin" means (a) commencing on October 1, 1999, 2.500%
per annum at all times during which the Grid Pricing Condition has not been
satisfied and (b) at all times during which the Grid Pricing Condition has been
satisfied, from and including the relevant Pricing Date to but not including the
next Pricing Date, a rate per annum determined in accordance with the following
schedule:
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Level: Eurocurrency Margin:
------ --------------------
Level I 0.500%
Level II 0.750%
Level III 1.125%
Level IV 1.500%
; provided however that any change in Eurocurrency Margin on a Pricing Date with
respect to a Committed Eurocurrency Loan denominated in an Alternative Currency
outstanding immediately prior to such Pricing Date shall not be deemed
applicable to such Committed Eurocurrency Loan during its then current Interest
Period.
"LIBOR" means, for an Interest Period for a Borrowing of Eurocurrency
Loans, (a) for a Committed Borrowing or Multicurrency Swing Line Borrowing in
each case in an Original Dollar Amount of $10,000,000 or more, the LIBOR Index
Rate for such Interest Period, if such rate is available, and (b) for smaller
Committed Borrowings and Multicurrency Swing Line Borrowings, or if the LIBOR
Index Rate cannot be determined, the average rate of interest per annum (rounded
upwards, if necessary, to the nearest one hundred-thousandth of a percentage
point) at which deposits in U.S. Dollars or the relevant Alternative Currency,
as appropriate, in immediately available and freely transferable funds are
offered to the Reference Banks at 11:00 a.m. (London, England time) two (2)
Business Days before the beginning of such Interest Period by major banks in the
interbank eurocurrency market for delivery on the first day of and for a period
equal to such Interest Period in an amount equal or similar to the principal
amount of the Eurocurrency Loan scheduled to be made by (x) in the case of
Committed Eurocurrency Loans, the relevant Reference Bank as part of such
Borrowing and (y) in the case of Multicurrency Swing Line Loans, the
Multicurrency Swing Line Bank.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars or the relevant Alternative
Currency, as appropriate, for a period equal to such Interest Period, which
appears on the appropriate Telerate Page, as of 11:00 a.m. (London, England
time) on the day two (2) Business Days before the commencement of such Interest
Period.
"Reference Banks" means (a) in the case of Committed Eurocurrency
Loans, the Administrative Agent, Comerica Bank and The Bank of New York and (b)
in the case of Multicurrency Swing Line Loans, the Multicurrency Swing Line Bank
alone.
"Telerate Page" means the page designated on the Telerate Service (or
such other service as may be nominated by the British Bankers' Association as
the information vendor) for the purpose of displaying British Bankers'
Association Interest Settlement Rates for deposits of U.S. Dollars, currently
displayed on Page 3750, or of the appropriate Alternative Currency.
(c) Alternative Currencies. On the date the Company (acting on behalf
of the applicable Borrower) requests a Borrowing of Eurocurrency Loans in an
Alternative Currency to any Borrower, as provided in Section 2.2(a) below, the
Administrative Agent shall promptly
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notify each Bank of the currency in which such Borrowing is requested. If such
Alternative Currency is not available to a Bank in sufficient amount and for a
sufficient term to enable it to make the Loan requested of it as part of such
Eurocurrency Borrowing and such Bank so notifies the Administrative Agent no
later than 3:00 p.m. (Chicago time) on the same day it receives notice from the
Administrative Agent of such requested Loan, the Administrative Agent shall
promptly so notify the Company. If the Company or any Borrowing Subsidiary
nevertheless desires such Borrowing, the Company (acting on behalf of the
applicable Borrower) must notify the Administrative Agent by no later than 4:00
p.m. (Chicago time) on such day. If the Administrative Agent does not receive
such notice from the Company by 4:00 p.m. (Chicago time), the Company shall
automatically be deemed to have revoked on behalf of such Borrower that
Borrower's request for the Borrowing of Eurocurrency Loans and the
Administrative Agent will promptly notify the Banks of such revocation. Such
revocation shall not require any payment under the funding indemnity set forth
in Section 5.8 hereof. If the Company (acting on behalf of the applicable
Borrower) gives such notice by 4:00 p.m. (Chicago time), each Bank that did not
notify the Administrative Agent by 3:00 p.m. (Chicago time) that the requested
Alternative Currency is unavailable to it to fund the requested Loan shall,
subject to Section 11 hereof, make its Loan in the requested Alternative
Currency in accordance with Section 2.2(d) hereof. Each Bank that did so notify
the Administrative Agent by 3:00 p.m. (Chicago time) that it would not be able
to make the Loan requested from it shall, subject to Section 14 hereof, make a
Eurocurrency Loan denominated in U.S. Dollars in the Original Dollar Amount of,
and with the same Interest Period as, the Eurocurrency Loan such Bank was
originally requested to make. Such Eurocurrency Loan denominated in U.S. Dollars
shall be made by the affected Bank on the same day as the other Banks make their
Eurocurrency Loans denominated in the applicable Alternative Currency as part of
the relevant Borrowing of Eurocurrency Loans, but shall bear interest with
reference to the LIBOR applicable to U.S. Dollars rather than the relevant
Alternative Currency for the applicable Interest Period and shall be made
available in accordance with the procedures for disbursing U.S. Dollar Loans
under Section 2.2(d) hereof. Such an affected Bank's making of a Eurocurrency
Loan in U.S. Dollars rather than in the Alternative Currency shall not require
any payment under the funding indemnity set forth in Section 5.8 hereof. Any
Loan made in an Alternative Currency shall be advanced in such currency, and all
payments of principal and interest thereon shall be made in such Alternative
Currency.
(d) Rate Quotations. Each Reference Bank agrees to use its best efforts
to furnish quotations to the Administrative Agent as contemplated by this
Section. If any Reference Bank does not furnish a timely quotation, the
Administrative Agent shall determine the relevant interest rate on the basis of
the quotation or quotations furnished by each remaining Reference Bank or, if no
such quotation is provided on a timely basis, the provisions of Section 14.2
shall apply.
Section 2.2. Manner of Borrowing Committed Loans. (a) Notice to the
Administrative Agent. In order for any Borrower to borrow any Committed Loans,
the Company (acting on behalf of the applicable Borrower) shall give telephonic
or telecopy notice to the Administrative Agent (which notice shall, except as
provided in Section 2.1(c) hereof, be irrevocable once given and, if by
telephone, shall, except as provided in Section 2.1(c) hereof, be promptly
confirmed in writing) (i) by no later than 2:00 p.m. (Chicago time) on the date
at least four (4) Business Days before the date of each requested Borrowing of
Eurocurrency Loans denominated in an
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Alternative Currency, (ii) by no later than 2:00 p.m. (Chicago time) on the date
at least three (3) Business Days before the date of each requested Borrowing of
Eurocurrency Loans denominated in U.S. Dollars, and (iii) by no later than 10:00
a.m. (Chicago time) on the date of each requested Borrowing of Domestic Rate
Loans. Each such notice shall specify the date of the requested Borrowing (which
shall be a Business Day), the amount of the requested Borrowing, the type of
Loans to comprise such Borrowing, if such Borrowing is to be comprised of
Eurocurrency Loans, the Interest Period applicable thereto and the currency in
which such Loan is to be denominated and, if such Borrowing is to be made by a
Borrowing Subsidiary, the Borrowing Subsidiary for whose account such Loan shall
be disbursed. Each Borrower agrees that the Administrative Agent may rely on any
such telephonic or telecopy notice, and any notice under Section 2, given by any
person who identifies himself or herself as being an Authorized Representative
without the necessity of independent investigation and, in the event any
telephonic notice conflicts with the written confirmation, such notice shall
govern if the Administrative Agent has acted in reliance thereon.
(b) Notice to the Banks. The Administrative Agent shall give prompt
telephonic or telecopy notice to each Bank of any notice from the Company
received pursuant to Section 2.2(a) above. The Administrative Agent shall give
notice to the Company and each Bank by like means of the interest rate
applicable to each Borrowing of Eurocurrency Loans and, if such Borrowing is
denominated in an Alternative Currency, shall give notice by such means to the
Company and each Bank of the Original Dollar Amount thereof.
(c) Borrower's Failure to Notify. If the Company fails to give notice
of the reborrowing of any outstanding principal amount of a Borrowing by any
Borrower of Committed Loans denominated in U.S. Dollars before the last day of
its Interest Period within the period required by Section 2.2(a) and has not
notified the Administrative Agent by 10:00 a.m. (Chicago time) on such last day
of the Interest Period that the Company or such Borrower intends to repay such
Borrowing through funds not borrowed hereunder, such Borrowing shall
automatically be repaid through a Borrowing by the same Borrower of Committed
Domestic Rate Loans, subject to Section 11.2 hereof. If the Company fails to
give notice pursuant to Section 2.2(a) above of the reborrowing of the
outstanding principal amount of a Borrowing by any Borrower of Eurocurrency
Loans denominated in an Alternative Currency before the last day of its Interest
Period within the period required by Section 2.2(a) and has not notified the
Administrative Agent within the period required by 10:00 a.m. (Chicago time) on
the Business Day four (4) Business Days prior to the day such Borrowing matures
that the Company or such Borrower intends to repay such Borrowing through funds
not borrowed hereunder, such Borrowing shall automatically be repaid through a
Borrowing by the same Borrower of Committed Eurocurrency Loans in the same
Alternative Currency with an Interest Period of one month, subject to Section
11.2 hereof, including the application of Section 5.2 and of the restrictions
contained in the definition of Interest Period. In the event the Company fails
to give notice pursuant to Section 2.2(a) above of a Borrowing equal to the
amount of a Reimbursement Obligation of any Borrower payable in U.S. Dollars and
has not notified the Administrative Agent by 10:00 a.m. (Chicago time) on the
day such Reimbursement Obligation becomes due that it intends to repay such
Reimbursement Obligation through funds not borrowed under this Agreement, the
Company shall be deemed to have requested a Borrowing by the Company of Domestic
Rate Loans on such day in the amount of the Reimbursement Obligation then due,
subject to
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Section 11 hereof, which Borrowing shall be applied to pay the Reimbursement
Obligation then due.
(d) Disbursement of Committed Loans. Not later than 12:00 noon (Chicago
time) on the date of any Borrowing of Committed Loans (other than a Refunding
Borrowing) denominated in U.S. Dollars, subject to Section 11 hereof, each Bank
shall make available its Loan comprising part of such Borrowing in funds
immediately available in Chicago, Illinois at the principal office of the
Administrative Agent or, if such Borrowing is denominated in an Alternative
Currency, each Bank shall, subject to Section 2.1(c) and Section 11 hereof, make
available its Loan comprising part of such Borrowing at such office as the
Administrative Agent has previously specified in a notice to each Bank, in such
funds as are then customary for the settlement of international transactions in
such currency and no later than such local time as is necessary for such funds
to be received and transferred to the relevant Borrower for same day value on
the date of the Borrowing. The Administrative Agent shall make Loans available
to the relevant Borrower at such office as the Administrative Agent has
previously agreed to with the Company (acting on behalf of such Borrower), in
each case in the type of funds received by the Administrative Agent from the
Banks. To the extent a Borrowing is a reborrowing, in whole or in part, of the
principal amount of a maturing Borrowing by the same Borrower of Committed Loans
(a "Refunding Borrowing"), each Bank shall record the Loan made by it as a part
of such Refunding Borrowing on its books and records or on a schedule to its
Committed Loan Note, as provided in Section 5.6(d) hereof, and shall effect the
repayment, in whole or in part, as appropriate, of its maturing Loan through the
proceeds of such new Loan.
SECTION 3. THE DOMESTIC SWING LINE LOANS.
Section 3.1. The Domestic Swing Line Loans. Subject to all of the terms
and conditions hereof, the Bank then acting as Administrative Agent (the
"Domestic Swing Line Bank") agrees to make loans in U.S. Dollars to each and any
Borrower ("Domestic Swing Line Loans") which shall not in the aggregate (for all
the Borrowers taken together) at any time outstanding exceed the lesser of (i)
the Domestic Swing Line Commitment or (ii) the difference between (x) the
Revolving Credit Commitments in effect at such time and (y) the aggregate
Original Dollar Amount of all Loans (whether Committed Loans or Swing Line
Loans) and L/C Obligations then outstanding. The Domestic Swing Line Commitment
shall be available to each and any Borrower and may be availed of by each
Borrower from time to time and Borrowings thereunder may be repaid and used
again during the period ending on the Revolving Credit Termination Date. Without
regard to the face principal amount of the Domestic Swing Line Note issued by a
given Borrower, the actual principal amount at any time outstanding and owing by
such Borrower on account of such Domestic Swing Line Note on any date during the
period ending on the Revolving Credit Termination Date shall be the sum of all
Domestic Swing Line Loans then or theretofore made thereon through such date
less all payments actually received thereon through such date.
Section 3.2. Interest on Domestic Swing Line Loans. Each Domestic Swing
Line Loan shall bear interest (computed on the basis of a year of 360 days and
actual days elapsed) for the Interest Period selected therefor at the Domestic
Swing Line Rate for such Interest Period,
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provided that if any Domestic Swing Line Loan is not paid when due (whether by
lapse of time, acceleration or otherwise), such Domestic Swing Line Loan shall
bear interest whether before or after judgment, until payment in full thereof
through the end of the Interest Period then applicable thereto at the rate set
forth in Section 5.5 hereof. Interest on each Domestic Swing Line Loan shall be
due and payable on the last day of each Interest Period applicable thereto, and
interest after maturity (whether by lapse of time, acceleration or otherwise)
shall be due and payable upon demand.
Section 3.3. Requests for Domestic Swing Line Loans. The Company
(acting on behalf of the applicable Borrower) shall give the Domestic Swing Line
Bank prior notice (which may be written or oral) no later than 12:00 Noon
(Chicago time) on the Business Day upon which the applicable Borrower requests
that any Borrowing of a Domestic Swing Line Loan be made to such Borrower, of
the name of such Borrower, the amount and date (which must be a Business Day) of
such Domestic Swing Line Loan and the Interest Period selected therefor. Within
thirty (30) minutes after receiving such notice, the Domestic Swing Line Bank
shall quote an interest rate per annum (computed on the basis of a year of 360
days and actual days elapsed) determined in its discretion (but in no event to
be greater than the sum of the Federal Funds Rate then in effect plus the
Applicable Eurocurrency Margin) to the Company at which the Domestic Swing Line
Bank would be willing to make the Borrowing of such Domestic Swing Line Loan
available to the applicable Borrower for such Interest Period (the rate so
quoted for the Borrowing of a given Domestic Swing Line Loan being herein
referred to as the "Domestic Swing Line Rate" for such Loan). Each Borrower
acknowledges and agrees that the interest rate quote is given for immediate and
irrevocable acceptance by the Company (acting on behalf of the applicable
Borrower), and if the Company does not so immediately accept the Domestic Swing
Line Rate for the full amount requested for the Borrowing of such Domestic Swing
Line Loan, the Domestic Swing Line Rate shall be deemed immediately withdrawn
and the Borrowing of such Domestic Swing Line Loan shall not be made. Subject to
all of the terms and conditions hereof, the proceeds of each Borrowing of a
Domestic Swing Line Loan shall be made available to the applicable Borrower on
the date so requested at the offices of the Administrative Agent in Chicago,
Illinois. Anything contained in the foregoing to the contrary notwithstanding,
(i) the obligation of the Domestic Swing Line Bank to make Domestic Swing Line
Loans shall be subject to all of the terms and conditions of this Agreement and
(ii) the Domestic Swing Line Bank shall not be obligated to make more than one
Domestic Swing Line Loan during any one day.
Section 3.4. Refunding Domestic Swing Line Loans. In its sole and
absolute discretion, the Domestic Swing Line Bank may at any time, on behalf of
the applicable Borrower (each Borrower hereby irrevocably authorizing the
Domestic Swing Line Bank to act on its behalf for such purpose), request each
Bank to make a Committed Domestic Rate Loan to such Borrower (as the Domestic
Swing Line Bank elects in its discretion) in an amount equal to such Bank's
Percentage of the amount of the Domestic Swing Line Loans outstanding on the
date such notice is given. Whether or not any of the conditions of Section 11.2
are fulfilled on such date, unless a Bank is legally precluded from doing so
(because, for example, of the applicable Borrower's bankruptcy), such Bank shall
make the proceeds of its requested Committed Domestic Rate Loan available to the
Domestic Swing Line Bank, in immediately available funds, at the principal
office of the Domestic Swing Line Bank in Chicago, Illinois, before 12:00 noon
(Chicago time)
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on the Business Day following the day such notice is given. The proceeds of such
Committed Domestic Rate Loans shall be immediately applied to repay the
outstanding Domestic Swing Line Loans.
Section 3.5. Participations. If any Bank (other than the Domestic Swing
Line Bank) fails for any reason to make a Committed Domestic Rate Loan when
requested by the Domestic Swing Line Bank pursuant to Section 3.4 above, or if
the Domestic Swing Line Bank is required at any time to return to a Borrower or
to a trustee, receiver, liquidator, custodian or other Person any portion of any
payment of any Domestic Swing Line Loan, each such Bank (in this Section, a
"Participating Bank") will, by the time and in the manner such Committed Loan
was to have been funded to the Domestic Swing Line Bank, purchase from the
Domestic Swing Line Bank an undivided participating interest in the outstanding
Domestic Swing Line Loans in an amount equal to such Participating Bank's
Percentage of the aggregate principal amount of Domestic Swing Line Loans that
were to have been repaid with such Committed Loans or such recaptured Domestic
Swing Line Loans, as the case may be. Each Participating Bank's obligation to
fund such participation shall bear interest from the date due until funded at
the rate per annum equal to (i) from the date the related payment was due from
such Participating Bank to the date two (2) Business Days thereafter, the
Federal Funds Rate for each such day and (ii) from the date two (2) Business
Days after the date such payment is due from such Participating Bank to the date
such payment is made by such Participating Bank, the Domestic Rate in effect for
each such day. Each Participating Bank that so purchases a participation in a
Domestic Swing Line Loan shall thereafter be entitled to receive its Percentage
of each payment of principal received on the relevant Domestic Swing Line Loan
and of interest received thereon accruing from the date such Participating Bank
funded to the Domestic Swing Line Bank its participation in such Loan.
The several obligations of the Participating Banks under this Section
3.5 shall be absolute, irrevocable and unconditional under any and all
circumstances whatsoever and shall not be subject to any set-off, counterclaim
or defense to payment which any Participating Bank may have or have had against
any Borrower, any other Bank or any other Person whatever. Without limiting the
generality of the foregoing, such obligations shall not be affected by any
Default or Event of Default or by any reduction or termination of any Commitment
of any Bank, and each payment made by a Participating Bank under this Section
3.5 shall be made without any offset, abatement, withholding or reduction
whatsoever. The Domestic Swing Line Bank shall be entitled to offset amounts
received for the account of a Bank under this Agreement against unpaid amounts
due hereunder from such Bank to the Domestic Swing Line Bank or the
Administrative Agent (whether as fundings of participations or otherwise), but
shall not be entitled to offset against amounts owed to the Domestic Swing Line
Bank or the Administrative Agent by any Bank arising outside the Loan Documents.
Section 3.6. Indemnification. The Participating Banks shall, to the
extent of their respective Percentages, indemnify the Domestic Swing Line Bank
(to the extent not reimbursed by the Borrowers and without in any way impairing
or otherwise affecting the Borrowers' joint and several obligations to do so)
against any cost, expense (including reasonable counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from the
Domestic Swing Line Bank's gross negligence or willful misconduct) that the
Domestic Swing Line Bank may suffer or incur in connection with any Domestic
Swing Line Loan. The
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<PAGE> 21
obligations of the Participating Banks under this Section 3.6 and all other
parts of this Section 3 shall survive termination of this Agreement.
SECTION 4. THE MULTICURRENCY SWING LINE LOANS.
Section 4.1. The Multicurrency Swing Line Loans. Subject to all of the
terms and conditions hereof, LaSalle Bank National Association (the
"Multicurrency Swing Line Bank") agrees to make loans denominated in Alternative
Swing Line Currencies to each and any Borrower ("Multicurrency Swing Line
Loans") in amounts such that the Original Dollar Amount of (i) all Multicurrency
Swing Line Loans and Foreign Credit L/C Obligations outstanding hereunder shall
not exceed the Multicurrency Swing Line Commitment and (ii) all Loans (whether
Committed Loans or Swing Line Loans) and L/C Obligations at any time outstanding
hereunder shall not exceed the Revolving Credit Commitments then in effect. The
Multicurrency Swing Line Commitment shall be available to each and any Borrower
and may be availed of by each Borrower from time to time and Borrowings
thereunder may be repaid and used again during the period ending on the
Revolving Credit Termination Date. Each Multicurrency Swing Line Loan shall be a
Eurocurrency Loan subject to Section 2.1(b) hereof and the other terms and
provisions hereof applicable to Eurocurrency Loans denominated in the same
Alternative Swing Line Currency, other than the provisions of Section 1.1
applicable only to Committed Loans and the provisions of Section 2.2.
Section 4.2. Requests for Multicurrency Swing Line Loans. No later than
9:00 a.m. (Chicago time) on the Business Day three (3) Business Days prior to
any Borrowing of a Multicurrency Swing Line Loan, the Company (acting on behalf
of the applicable Borrower) shall give telephonic or telecopy notice to the
Administrative Agent and the Multicurrency Swing Line Bank (which notice, if by
telephone, shall be promptly confirmed by telecopy or other written notice) of
the currency and principal amount of such Multicurrency Swing Line Loan, the
Borrower to whom such Multicurrency Swing Line Loan is to be made, the Interest
Period of such Multicurrency Swing Line Loan and the date (which must be a
Business Day) on which such Multicurrency Swing Line Loan is to be made.
Promptly after receipt of such notice (but in no event later than 11:00 a.m.
(Chicago time) on the date the Administrative Agent receives such notice), the
Administrative Agent shall notify the Multicurrency Swing Line Bank whether such
requested Multicurrency Swing Line Loan is permitted under the limitations on
credit available hereunder expressed in the first sentence of Section 4.1
hereof. Subject to all of the terms and conditions hereof, the proceeds of the
Borrowing of such Multicurrency Swing Line Loan shall be made available to the
applicable Borrower on the date so requested at such office of the Multicurrency
Swing Line Bank or Affiliate thereof as the Multicurrency Swing Line Bank has
previously agreed to with the Company (acting on behalf of the applicable
Borrower), in such funds as are then customary for the settlement of
international transactions in such currency and no later than such local time as
is necessary for such funds to be received and transferred to the applicable
Borrower for same day value on the date of such Borrowing. The Multicurrency
Swing Line Bank agrees to use reasonable efforts to make its Multicurrency Swing
Line Loans from lending offices in jurisdictions in which the liability for
taxes of the type described in Section 17.1(a) hereof will be eliminated or
minimized, unless to do so would, in the judgment of the Multicurrency Swing
Line Bank, be impractical or disadvantageous in any
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<PAGE> 22
material respect to the Multicurrency Swing Line Bank. The parties hereto
understand and agree that such agreement by the Multicurrency Swing Line Bank is
an agreement by such Bank only and not binding on any Affiliates of such Bank.
Anything contained in the foregoing to the contrary notwithstanding, (i) the
obligation of the Multicurrency Swing Line Bank to make Multicurrency Swing Line
Loans shall be subject to all of the terms and conditions of this Agreement and
(ii) the Multicurrency Swing Line Bank shall not be obligated to make more than
one Multicurrency Swing Line Loan during any one day.
Section 4.3. The Participating Interests. Each Bank (other than the
Multicurrency Swing Line Bank), by its acceptance hereof, severally agrees to
purchase from the Multicurrency Swing Line Bank, and the Multicurrency Swing
Line Bank hereby agrees to sell to each such Bank (in this Section, a
"Participating Bank"), an undivided percentage participating interest, to the
extent of its Percentage, in each Multicurrency Swing Line Loan. Upon the
occurrence of an Event of Default and (except in the case of any Event of
Default described in Section 13.1(f) or 13.1(g) hereof) the acceleration of the
maturity of the Notes pursuant to Section 13.2 or 13.3 hereof, or if the
Multicurrency Swing Line Bank is required at any time to return to a Borrower or
to a trustee, receiver, liquidator, custodian or other Person any portion of any
payment of any Multicurrency Swing Line Loan, in each case if any Multicurrency
Swing Line Loans are then outstanding, each Participating Bank shall, to the
extent necessary, not later than the second Business Day after the date on which
such Participating Bank receives written demand from the Multicurrency Swing
Line Bank to such effect, if such demand is received before 12:00 noon (Chicago
time), or not later than the third Business Day after the date on which such
Participating Bank receives such demand, if such demand is received by it after
12:00 noon (Chicago time), pay to the Multicurrency Swing Line Bank an amount
equal to such Participating Bank's Percentage of such unpaid or recaptured
Multicurrency Swing Line Loan, in the currency of such Loans so that, after
giving effect to such adjustment, the outstanding principal amount of Loans of
all the Banks, calculated using quotations of the U.S. Dollar Equivalent of such
Loans received on the date of acceleration, shall be pro rata based on the
Banks' Percentages. Such purchase price shall be paid in the respective
currencies of such outstanding Loans in such funds which are then customary for
the settlement of international transactions in such currency, together with
interest on such amount accrued from the date the related payment was due from
such Participating Bank to the date of such payment by the Participating Bank at
a rate per annum equal to (x) from the date the related payment was due from
such Participating Bank to the date two (2) Business Days thereafter, the
Overnight Foreign Currency Rate for each such day and (y) from the date two (2)
Business Days after the date such payment is due from such Participating Bank to
the date such payment is made by such Participating Bank, the sum of 1% plus the
Overnight Foreign Currency Rate for each such day. Each such Participating Bank
shall thereafter be entitled to receive its Percentage of each payment received
in respect of the relevant Multicurrency Swing Line Loan and of interest paid
thereon accruing from the date such Participating Bank funded to the
Multicurrency Swing Line Bank its participation in such Loan.
The several obligations of the Participating Banks to the Multicurrency
Swing Line Bank under this Section 4.3 shall be absolute, irrevocable and
unconditional under any and all circumstances whatsoever and shall not be
subject to any set-off, counterclaim or defense to payment which any
Participating Bank may have or have had against the Borrowers, the Multicurrency
Swing Line Bank, any other Bank or any other Person whatsoever. Without
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<PAGE> 23
limiting the generality of the foregoing, such obligations shall not be affected
by any Default or Event of Default or by the amount of any Commitment of any
Bank, and each payment by a Participating Bank under this Section 4.3 shall be
made without any offset, abatement, withholding or reduction whatsoever. The
Multicurrency Swing Line Bank shall be entitled to, or entitled to direct the
Administrative Agent to, offset amounts received under this Agreement for the
account of a Participating Bank against unpaid amounts due hereunder from such
Participating Bank to the Multicurrency Swing Line Bank or the Administrative
Agent (whether as fundings of participations or otherwise), but shall not be
entitled to offset against amounts owed to the Multicurrency Swing Line Bank or
the Administrative Agent by any Participating Bank arising outside these Loan
Documents.
Section 4.4. Indemnification. The Participating Banks shall, to the
extent of their respective Percentages, indemnify the Multicurrency Swing Line
Bank (to the extent not reimbursed by the Borrowers) against any cost, expense
(including reasonable counsel fees and disbursements), claim, demand, action,
loss or liability (except such as result from the Multicurrency Swing Line
Bank's gross negligence or willful misconduct) that the Multicurrency Swing Line
Bank may suffer or incur in connection with any Multicurrency Swing Line Loan.
The obligations of the Participating Banks under this Section 4.4 and all other
parts of this Section 4 shall survive termination of this Agreement.
SECTION 5. GENERAL PROVISIONS APPLICABLE TO ALL LOANS.
Section 5.1. Interest Periods. As provided in (x) Section 2.2 hereof,
in the case of Committed Loans, (y) Section 3.3 hereof, in the case of Domestic
Swing Line Loans, and (z) Section 4.2 hereof, in the case of Multicurrency Swing
Line Loans, at the time of each request for the Borrowing of Loans hereunder
(other than Domestic Rate Loans) the Company (acting on behalf of the applicable
Borrower) shall select the Interest Period applicable to such Loans from among
the available options. The term "Interest Period" means the period commencing on
the date a Borrowing of Loans is made and ending: (i) in the case of Domestic
Rate Loans, on the last day of the calendar month in which such Loan is made or,
if earlier, on the Revolving Credit Termination Date; (ii) in the case of
Committed Eurocurrency Loans, the date, as the Company (acting on behalf of the
applicable Borrower) may select, one, two, three or six calendar months
thereafter or (unless any Bank notifies the Administrative Agent that deposits
of the type, currency and maturity appropriate to match fund the Eurocurrency
Loan in question are not available to it) the date, as the Company (acting on
behalf of the applicable Borrower) may select, nine or twelve calendar months
thereafter; (iii) in the case of Domestic Swing Line Loans, the date as the
Company (acting on behalf of the applicable Borrower) may select, 1 - 7 days
thereafter; and (iv) in the case of Multicurrency Swing Line Loans, the date as
the Company (acting on behalf of the applicable Borrower) may select, one, two,
three or six calendar months thereafter; provided, however, that:
(a) for any Borrowing of Fixed Rate Loans, the Company or
applicable Borrower may not select an Interest Period that extends
beyond the Revolving Credit Termination Date;
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(b) whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day of such
Interest Period shall be extended to the next succeeding Business Day,
provided that, in the case of an Interest Period for a Borrowing of
Eurocurrency Loans, if such extension would cause the last day of such
Interest Period to occur in the following calendar month, the last day
of such Interest Period shall be the immediately preceding Business
Day; and
(c) for purposes of determining the Interest Period for a
Borrowing of Eurocurrency Loans, a month means a period starting on one
day in a calendar month and ending on the numerically corresponding day
in the next calendar month; provided, however, that if there is no
numerically corresponding day in the month in which such an Interest
Period is to end or if such an Interest Period begins on the last
Business Day of a calendar month, then such Interest Period shall end
on the last Business Day of the calendar month in which such Interest
Period is to end.
Section 5.2. Minimum Borrowing Amount. Each Borrowing of Domestic Rate
Loans (other than a Borrowing of Domestic Swing Line Loans) shall be in an
amount not less than $3,000,000 and in integral multiples of $100,000. Each
Borrowing of Domestic Swing Line Loans shall be in a minimum amount of $100,000.
Each Borrowing of Eurocurrency Loans (other than a Borrowing of Multicurrency
Swing Line Loans) shall be (x) if denominated in U.S. Dollars, in an amount not
less than $10,000,000 and in integral multiples of $100,000 and (y) if
denominated in an Alternative Currency, in an amount not less than an Original
Dollar Amount of $5,000,000 and in integral multiples of 100,000 units of the
relevant currency. Each Borrowing of Multicurrency Swing Line Loans shall be in
an amount not less than an Original Dollar Amount of $500,000. There is no
requirement that Borrowings of Swing Line Loans which exceed such minimum
amounts be in any particular multiple.
Section 5.3. Maturity of Loans. Each Loan shall mature and become due
and payable by the relevant Borrower on the last day of the Interest Period
applicable thereto.
Section 5.4. Prepayments. (a) Voluntary Prepayments on Committed Loans.
Each Borrower shall have the privilege of prepaying Committed Loans without
premium or penalty and in whole or in part (but, if in part, then: (i) if such
Committed Borrowing is of Domestic Rate Loans, in an amount not less than
$3,000,000, (ii) if such Committed Borrowing is of Eurocurrency Loans
denominated in U.S. Dollars, in an amount not less than $10,000,000, (iii) if
such Committed Borrowing is denominated in an Alternative Currency, an amount
for which the U.S. Dollar Equivalent is not less than $5,000,000 and (iv) in an
amount such that the minimum amount required for a Borrowing of such type
pursuant to Section 5.2 hereof remains outstanding) any Committed Borrowing at
any time upon notice delivered to the Administrative Agent no later than 10:00
a.m. (Chicago time) on the date (x) in the case of a Committed Borrowing of
Eurocurrency Loans denominated in U.S. Dollars, no later than three (3) Business
Days' prior to the date of such prepayment or (y) in the case of a Committed
Borrowing of Eurocurrency Loans denominated in an Alternative Currency, no later
than four (4) Business Days prior to the date of such prepayment or (z) in the
case of a Committed Borrowing of Domestic Rate Loans, on the date of such
prepayment. Each such prepayment shall be made by the payment of the principal
amount to be prepaid and accrued interest thereon to the date fixed
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for prepayment and, in the case of Committed Eurocurrency Loans, any
compensation required by Section 5.8 hereof. The Administrative Agent will
promptly advise each Bank of any such prepayment notice it receives from any
Borrower. Any amount paid or prepaid before the Revolving Credit Termination
Date may, subject to the terms and conditions of this Agreement, be borrowed,
repaid and borrowed again.
(b) Voluntary Prepayments on Swing Line Loans. No Borrower may prepay
any Swing Line Loan before the last day of its Interest Period, except as
required pursuant to Section 5.4(c), Section 13 or Section 14.1 hereof, or as
permitted in the discretion of the relevant Swing Line Bank.
(c) Mandatory Prepayment re: Credit Over Commitments. If the aggregate
Original Dollar Amount of outstanding Loans and L/C Obligations shall at any
time for any reason exceed the Revolving Credit Commitments then in effect, the
Company shall, within two (2) Business Days, pay the amount of such excess to
the Administrative Agent for the ratable benefit of the Banks as a prepayment of
Loans (to be applied to such Borrowings as the Company shall direct at the time
of such payment) and, if necessary, a prefunding of Letters of Credit.
Immediately upon determining the need to make any such prepayment, the Company
shall notify the Administrative Agent of such required prepayment.
(d) Mandatory Prepayment re: Foreign Currency Excess. If the aggregate
U.S. Dollar Equivalent or Original Dollar Amount of outstanding Loans and L/C
Obligations in each case denominated in a particular Alternative Currency, less
in each case the aggregate amount of cash held by the Administrative Agent in
the cash collateral account described in Section 5.4(e) below (to the extent in
excess of any amount so held as cash collateral pursuant to Section 5.4(e) below
with respect to any other Alternative Currency), shall at any time for any
reason exceed the Foreign Currency Sub-Limit (if any) for such Alternative
Currency (any such excess being herein referred to as the "Foreign Currency
Excess"), the Company shall, within two (2) Business Days, pay the amount of
such Foreign Currency Excess to the Administrative Agent for the ratable benefit
of the Banks as a prepayment of such Loans (to be applied to such Borrowings as
the Company shall direct at the time of such payment) and, if necessary, a
prefunding of such Letters of Credit. Immediately upon determining the need to
make any such prepayment, the Company shall notify the Administrative Agent of
such required prepayment.
(e) Mandatory Prepayment re: Disposition and Event of Loss. If any
Borrower or any Subsidiary shall at any time or from time to time make or agree
to make a Disposition or shall suffer an Event of Loss resulting in Net Cash
Proceeds in excess of $3,000,000 on a cumulative basis in any fiscal year of the
Company, then (x) the Company shall promptly notify the Administrative Agent of
such proposed Disposition or Event of Loss (including the amount of the
estimated Net Cash Proceeds to be received by such Borrower or such Subsidiary
in respect thereof) and (y) promptly upon, and in no event later than three (3)
Business Days (but five (5) Business Days in the case of any Disposition or
Event of Loss with respect to any Foreign Subsidiary) after, receipt by such
Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or
Event of Loss, the Company shall (i) prepay the Loans (to be applied to such
Borrowings as the Company shall direct at the time of such payment) and (ii) if
necessary, prefund Letters of Credit, in each case in an aggregate amount equal
to 100% of the amount of
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such Net Cash Proceeds; provided, however, that (i) no such prepayment shall be
required with respect to the first $3,000,000 of Net Cash Proceeds in any
calendar year from Dispositions and Events of Loss and (ii) in the case of each
Disposition and Event of Loss, if the Company states in its notice of such event
that the Company or the applicable Subsidiary intends to reinvest, within 180
days of the applicable Disposition or receipt of Net Cash Proceeds from an Event
of Loss, the Net Cash Proceeds thereof in assets similar to the assets which
were subject to such Disposition or Event of Loss, then so long as no Default or
Event of Default then exists, the Company shall not be required to make a
mandatory prepayment under this Section 5.4(e) in respect of such Net Cash
Proceeds only to the extent such Net Cash Proceeds are actually reinvested in
such similar assets within such 180 day period. Promptly after the end of such
180 day period, the Company shall notify the Administrative Agent whether the
Company or such Subsidiary has reinvested such Net Cash Proceeds in such similar
assets, and to the extent such Net Cash Proceeds have not been so reinvested,
the Company shall promptly prepay the Loans and if necessary prefund Letters of
Credit, in each case in the amount of such Net Cash Proceeds not so reinvested.
The Company acknowledges that its performance hereunder shall not limit the
rights and remedies of the Banks for any breach of Section 12.12 hereof.
(f) Mandatory Prepayment re: Equity Offering. If after the date hereof
any Borrower or any Subsidiary shall issue new equity securities (whether common
or preferred stock or otherwise), other than (x) common stock issued in
connection with the exercise of employee stock options and (y) equity securities
issued as consideration for Acquisitions permitted by Section 12.14(e) hereof,
or dispose of any treasury stock, the Company shall promptly notify the
Administrative Agent of the estimated Net Cash Proceeds of such issuance or
disposition, as the case may be, to be received by or for the account of such
Borrower or such Subsidiary in respect thereof. Promptly upon, and in no event
later than the Business Day after, receipt by such Borrower or such Subsidiary
of Net Cash Proceeds of such issuance or disposition, the Company shall (i)
prepay the Loans (to be applied to such Borrowings as the Company shall direct
at the time of such payment) and (ii) if necessary, prefund Letters of Credit,
in each case in an aggregate amount equal to 100% of the amount of such Net Cash
Proceeds.
(g) Mandatory Prepayment re: Debt Offering. If after the date hereof
any Borrower or any Subsidiary shall issue new debt securities (including
without limitation additional 1998 Senior Subordinated Debt issued after the
date hereof) by public offering or private placement or in evidence of loans
extended by banks or other institutional investors (other than (x) Capitalized
Lease Obligations, (y) purchase money indebtedness and (z) credit extended to
Foreign Subsidiaries constituting Indebtedness permitted by Sections 12.22(f),
12.22(h) and 12.22(i) hereof), the Company shall promptly notify the
Administrative Agent of the estimated Net Cash Proceeds of such issuance to be
received by or for the account of such Borrower or such Subsidiary in respect
thereof. Promptly upon, and in no event later than the Business Day after,
receipt by such Borrower or such Subsidiary of Net Cash Proceeds of such
issuance, the Company shall (i) prepay the Loans (to be applied to such
Borrowings as the Company shall direct at the time of such payment) and (ii) if
necessary, prefund Letters of Credit, in each case in an aggregate amount equal
to 100% of the amount of such Net Cash Proceeds. The Company acknowledges that
its performance hereunder shall not limit the rights and remedies of the Banks
for any breach of Section 12.22 hereof.
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(h) Application and Manner of Mandatory Prepayments. Unless the Company
otherwise directs, prepayments of Loans under Sections 5.4(c), (d), (e), (f) and
(g) hereof shall be applied first to Borrowings of Domestic Rate Loans until
payment in full thereof with any balance applied to Borrowings of Eurocurrency
Loans in the order in which their Interest Periods expire. Each prepayment of
Loans under Sections 5.4(c), (d), (e), (f) and (g) shall be made by the payment
of the principal amount to be prepaid and accrued interest thereon to the date
of prepayment together with any amounts due the Banks under Section 5.8 hereof.
Each prefunding of L/C Obligations shall be made in accordance with Section 13.4
hereof.
(i) Cash Collateral Option. Notwithstanding the foregoing, if and so
long as no Default or Event of Default has occurred and is continuing, if and to
the extent a mandatory prepayment required under this Section 5.4 would
otherwise be applied against any Eurocurrency Loan, the Company may, in lieu of
making such prepayment, remit to the Administrative Agent an amount in U.S.
Dollars which is the then U.S. Dollar Equivalent of such prepayment, which
remittance shall constitute Collateral and be held in a cash collateral account
maintained by the Company with the Administrative Agent (such account to be
analogous to the Account identified and defined in Section 13.4(b) hereof except
that, in the case of a Eurocurrency Loan denominated in an Alternative Currency,
the Administrative Agent shall purchase, on the last day of the Interest Period
then applicable to such Eurocurrency Loan (or if earlier and the Administrative
Agent so elects, the first Business Day immediately following the occurrence of
any Default or Event of Default) the greatest amount of Alternative Currency
(but in no event greater than the amount necessary to make such prepayment)
which the Administrative Agent can, in accordance with its normal banking
procedures, purchase (after any premium and costs of exchange) with the cash so
held in such cash collateral account, for delivery on the date of such purchase
and apply the amount of Alternative Currency so purchased to reduce the
principal of such Eurocurrency Loan (it being understood that such prepayment
shall not affect such Loan's maturity pursuant to Section 5.3 hereof).
Notwithstanding anything herein to the contrary, to the extent the Company has
so provided cash collateral to the Administrative Agent in lieu of making a
prepayment required under Section 5.4(d) above on a Eurocurrency Loan
denominated in an Alternative Currency, if at any time prior to the aforesaid
conversion of such sum to such Alternative Currency and the application of such
sum in reduction of such Eurocurrency Loan, the Administrative Agent determines
that no Foreign Currency Excess exists (whether by virtue of exchange rate
fluctuation or a payment on the relevant Eurocurrency Loans), the Administrative
Agent shall release such cash from the cash collateral account upon the
Company's request to the extent that after giving effect to such release, no
Foreign Currency Excess, Default or Event of Default would exist.
Section 5.5. Default Rate. Notwithstanding anything to the contrary
contained herein, while any Event of Default exists or after acceleration, the
principal of all Loans shall bear interest (after as well as before entry of
judgment thereon to the extent permitted by law and computed on the basis of a
year of 360 days and actual days elapsed or, if based on the Domestic Rate, on
the basis of a year of 365 or 366 days, as applicable, and the actual number of
days elapsed) payable on demand, at a rate per annum equal to:
(a) for any Domestic Rate Loan, the sum of two percent (2%)
plus the Domestic Rate Margin plus the Domestic Rate from time to time
in effect; and
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(b) for any Fixed Rate Loan, the sum of two percent (2%) plus
the rate of interest in effect thereon at the time of such default
(with the Eurocurrency Margin for such purposes to be deemed equal to
(i) 2.500% if and so long as the Grid Pricing Condition has not been
satisfied and (ii) 1.500% if and so long as the Grid Pricing Condition
has been satisfied) until the end of the Interest Period applicable
thereto and, thereafter, if such Loan is denominated in U.S. Dollars,
at a rate per annum equal to the sum of two percent (2%) plus the
Domestic Rate Margin plus the Domestic Rate from time to time in effect
or, if such Loan is denominated in an Alternative Currency, at a rate
per annum equal to the sum of two percent (2%) plus the Eurocurrency
Margin (determined as aforesaid) plus the Overnight Foreign Currency
Rate;
provided, however, that in the absence of acceleration, any adjustments pursuant
to this Section 5.5 shall be made at the election of the Required Banks with
written notice to the Company. While any Event of Default exists or after
acceleration, interest shall be paid on demand of the Administrative Agent at
the request or with the consent of the Required Banks.
Section 5.6. The Notes. (a) All Committed Loans made to a Borrower by a
Bank shall be evidenced by a promissory note of such Borrower in the form of
Exhibit A hereto (individually a "Committed Loan Note" and collectively the
"Committed Loan Notes"), each such Committed Loan Note to be dated the date
hereof (or, if issued by a Borrowing Subsidiary, the date of issuance thereof),
payable to the order of the applicable Bank in the principal amount of all
Committed Loans to each Borrower and otherwise in the form of Exhibit A hereto.
(b) All Domestic Swing Line Loans made to a Borrower by the Domestic
Swing Line Bank shall be evidenced by a promissory note of such Borrower in the
form of Exhibit B hereto (individually a "Domestic Swing Line Note" and
collectively the "Domestic Swing Line Notes"), each such Domestic Swing Line
Note to be dated the date hereof (or, if issued by a Borrowing Subsidiary, the
date of issuance thereof), payable to the order of the Domestic Swing Line Bank
in the principal amount of the Domestic Swing Line Commitment and otherwise in
the form of Exhibit B hereto.
(c) All Multicurrency Swing Line Loans made to a Borrower by the
Multicurrency Swing Line Bank shall be evidenced by a promissory note of such
Borrower in the form of Exhibit C hereto (individually a "Multicurrency Swing
Line Note" and collectively, the "Multicurrency Swing Line Notes"), each such
Multicurrency Swing Line Note to be dated the date hereof (or, if issued by a
Borrowing Subsidiary, the date of issuance thereof), payable to the order of the
Multicurrency Swing Line Bank in the principal amount of all Multicurrency Swing
Line Loans to such Borrower and otherwise in the form of Exhibit C hereto.
(d) Each Bank shall record on its books and records or on a schedule to
the appropriate Note the amount of each Loan made by it to a Borrower, all
payments of principal and interest and the principal balance from time to time
outstanding thereon, the type of such Loan, for any Fixed Rate Loan, the
Interest Period and interest rate applicable thereto and, for any Eurocurrency
Loan, the currency in which such Loan is denominated; provided that prior to the
transfer of any Note such information relating to any outstanding Loans made by
such Bank shall
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be recorded on the back of such Note or on a schedule to such Note or otherwise
provided in writing to the transferee. The record thereof, whether shown on such
books and records of a Bank or on a schedule to any Note, shall be prima facie
evidence as to all such matters; provided, however, that the failure of any Bank
to record any of the foregoing or any error in any such record shall not limit
or otherwise affect the obligation of each Borrower to repay all Loans made to
it hereunder together with accrued interest thereon. At the request of any Bank
and upon such Bank tendering to the relevant Borrower the Note to be replaced,
such Borrower shall furnish a new Note to such Bank to replace any outstanding
Note and at such time the first notation appearing on a schedule on the reverse
side of, or attached to, such new Note shall set forth the aggregate unpaid
principal amount of all Loans, if any, then outstanding thereon.
Section 5.7. Commitment Terminations. (a) Voluntary. The Company
(acting on behalf of the applicable Borrower) shall have the right at any time
and from time to time, upon five (5) Business Days' prior written notice to the
Administrative Agent, to terminate without premium or penalty, in whole or in
part, the Revolving Credit Commitments, any partial termination to be in an
amount not less than $10,000,000 or any larger amount that is an integral
multiple of $1,000,000, and to reduce ratably each Bank's Revolving Credit
Commitment; provided, however, that (x) the Revolving Credit Commitments may not
be reduced to an amount less than the sum of the Original Dollar Amount of all
Loans (whether Committed Loans or Swing Line Loans) and all L/C Obligations then
outstanding and (y) any reduction of the Revolving Credit Commitments to an
amount less than a Swing Line Commitment or L/C Commitment shall automatically
reduce such Swing Line Commitment or L/C Commitment, as the case may be, to such
amount as well. The Administrative Agent shall give prompt notice to each Bank
of any such termination of Commitments. Any termination of Commitments pursuant
to this Section 5.7 may not be reinstated.
(b) Mandatory. Concurrent with each prepayment required under
subsections (e), (f) and (g) of Section 5.4, the Revolving Credit Commitments
shall permanently terminate ratably in accordance with each Bank's Percentage by
an amount equal to the aggregate amount required to be so prepaid.
Section 5.8. Funding Indemnity. If any Bank shall incur any loss, cost
or expense (including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or re-employment of deposits or other funds acquired
by such Bank to fund or maintain any Fixed Rate Loan or the relending or
reinvesting of such deposits or amounts paid or prepaid to such Bank, but in any
event excluding loss of profit) as a result of:
(a) any payment or prepayment of a Fixed Rate Loan on a date
other than the last day of its Interest Period,
(b) any failure (because of a failure to meet the conditions
of Section 11 or otherwise) by any Borrower to borrow a Fixed Rate Loan
on the date specified in a notice given pursuant to Section 2.2, 3.3 or
4.2 hereof (other than any such failure due to timely revocation by the
Company under Section 2.1(c) hereof of a Borrower's request for a
Borrowing of Eurocurrency Loans denominated in an Alternative
Currency),
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(c) any failure by any Borrower to make any payment of
principal on any Fixed Rate Loan when due (whether by acceleration or
otherwise), or
(d) any acceleration of the maturity of a Fixed Rate Loan as
a result of the occurrence of any Event of Default hereunder,
then, upon the demand of such Bank, the relevant Borrower shall pay to such Bank
such amount as will reimburse such Bank for such loss, cost or expense. If any
Bank makes such a claim for compensation, it shall provide to the relevant
Borrower, with a copy to the Administrative Agent, a certificate executed by an
officer of such Bank setting forth the amount of such loss, cost or expense in
reasonable detail (including an explanation of the basis for and the computation
of such loss, cost or expense) and the amounts shown on such certificate shall
be conclusive in the absence of demonstrable error.
Section 5.9. Rate and Determinations of Original Dollar Amount and U.S.
Dollar Equivalent. The Administrative Agent shall determine each interest rate
or other rate applicable to Obligations and the Original Dollar Amount and U.S.
Dollar Equivalent of Loans and Letters of Credit denominated in Alternative
Currencies, and its determination thereof shall be conclusive and binding except
in the case of manifest error or willful misconduct. The Original Dollar Amount
of each Eurocurrency Loan denominated in an Alternative Currency shall be
determined effective as of the first day of the Interest Period applicable to
such Loan. The Original Dollar Amount of a Reimbursement Obligation shall be
calculated on the date of the Administrative Agent's payment of the drawing
giving rise to such Reimbursement Obligation and subject to the last sentence of
this Section, on the last day of each calendar quarter. The Original Dollar
Amount of each Letter of Credit shall be determined or redetermined, as
applicable, on the date of issuance, increase or extension of such Letter of
Credit and subject to the last sentence of this Section, on the last day of each
calendar quarter. At the request of any Bank or the Company, the Administrative
Agent shall redetermine the Original Dollar Amount of any L/C Obligation at such
additional times, and from time to time, as may be requested for such L/C
Obligation.
Section 5.10. (a) Designation of Borrowing Subsidiaries. Any
Wholly-Owned Subsidiary may elect (with the Company's consent) to become a
Borrower hereunder (each a "Borrowing Subsidiary") by delivering to the
Administrative Agent an Election to Participate in the form of Exhibit G hereto
executed by the Borrowing Subsidiary and, through an Authorized Representative,
by the Company; provided, however, that if any such proposed Borrowing
Subsidiary is incorporated under the laws of, or principally located in, any
jurisdiction other than an Approved Jurisdiction, the consent of each Bank shall
be required prior to the effectiveness of such designation. Each Borrowing
Subsidiary shall cease to be a Borrower hereunder upon the delivery to the
Administrative Agent of an Election to Terminate in the form of Exhibit H hereto
or such Borrowing Subsidiary ceasing to be a Wholly-Owned Subsidiary. Upon
ceasing to be a Borrower pursuant to the preceding sentence, a Borrower shall
lose the right to request Borrowings hereunder (whether Refunding Borrowings or
otherwise), but such circumstance shall not affect any obligation of a Borrowing
Subsidiary theretofore incurred. The Administrative Agent shall promptly give
notice to the Banks of the receipt of any Election to Participate or Election to
Terminate.
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(b) Appointment of Company as Agent for Borrowing Subsidiaries. Each
Borrowing Subsidiary irrevocably appoints the Company as its agent hereunder to
issue requests for Borrowings and Letters of Credit on its behalf under Sections
1, 2, 3 and 4 hereof, to terminate the Revolving Credit Commitments and (subject
to clause (iii) of Section 17.13 hereof) to take any other action contemplated
by the Loan Documents with respect to credit extended hereunder to such
Borrowing Subsidiary.
SECTION 6. FEES AND PLACE AND APPLICATION OF PAYMENTS.
Section 6.1. Facility Fees. The Company shall pay to the Administrative
Agent for the ratable account of the Banks, based on their Revolving Credit
Commitments, a facility fee (the "Facility Fee") on the average daily amount of
the Revolving Credit Commitments hereunder (whether used or unused) at the rate
(the "Facility Fee Rate") of (a) commencing on October 1, 1999, 0.50% per annum
at all times during which the Grid Pricing Condition has not been satisfied and
(b) at all times during which the Grid Pricing Condition has been satisfied,
from and including the relevant Pricing Date to but not including the next
Pricing Date, a rate per annum determined in accordance with (i) the schedule
below and (ii) the definition of "Pricing Date" in Section 8.1 hereof, in each
case payable in arrears on the last day of each March, June, September, and
December, commencing on the first of such dates to follow the Effective Date (on
which date shall also be paid any unpaid Facility Fee which accrued prior to the
Effective Date), and on the Revolving Credit Termination Date unless the
Revolving Credit Commitments are terminated in whole on an earlier date, in
which event the Facility Fee for the period to the date of such termination in
whole shall be paid on the date of such termination:
Level: Facility Fee Rate:
------ ------------------
I 0.250%
II 0.250%
III 0.375%
IV 0.500%
Section 6.2. Letter of Credit Fees. On the date of issuance or
extension, or increase in the amount, of any Standby Letter of Credit pursuant
to Section 1.2 hereof, the Company and each Borrowing Subsidiary (if any) for
whose account such Standby Letter of Credit was issued, jointly and severally,
shall pay to the Administrative Agent for the account of the relevant Issuing
Agent an issuance fee equal to 1/8 of 1% (0.125) per annum of the face amount of
(or of the increase in the face amount of) such Standby Letter of Credit.
Quarterly in arrears, on the last day of each calendar quarter, commencing on
December 31, 1999, the Company and each Borrowing Subsidiary (if any) for whose
account the relevant Letter of Credit was issued, jointly and severally, shall
pay to the Administrative Agent, for the ratable benefit of the Banks in
accordance with their Percentages, a letter of credit fee at a rate per annum
equal to the Eurocurrency Margin in effect during each day of such quarter
applied to the daily average undrawn face amount of each Letter of Credit
(whether Standby or Commercial) outstanding during such quarter. In addition,
the Company and each Borrowing Subsidiary (if any) for whose account the
relevant Letter of Credit was issued, jointly and severally, shall pay to the
Administrative Agent for the account of the relevant Issuing Agent (i) such
Issuing Agent's
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standard issuance fee for each Commercial Letter of Credit issued by such
Issuing Agent and (ii) such Issuing Agent's standard drawing, negotiation,
amendment, and other administrative fees for each Letter of Credit issued by
such Issuing Agent. Such standard fees referred to in the preceding clauses (i)
and (ii) may be established by each such Issuing Agent from time to time.
Section 6.3. Audit Fees. The Company shall pay to the Administrative
Agent for its own use and benefit charges for audits of the Collateral performed
by the Administrative Agent or its agents or representatives in such amounts as
the Administrative Agent may from time to time reasonably request; provided,
however, that in the absence of any Default or Event of Default, (i) the Company
shall not be required to reimburse the Administrative Agent for its costs of
conducting more than one (1) audit in any one (1) calendar year and (ii) the
Company shall not be liable during any one calendar year for more than $600 per
person per day for such audits plus reasonable out-of-pocket costs and expenses.
Section 6.4. Administrative Agent Fees. The Company shall pay to the
Administrative Agent the fees agreed to in a letter exchanged between them.
Section 6.5. Closing Fees. The Company shall pay to the Administrative
Agent for the account of the Banks the closing fees agreed to in a letter or
letters exchanged between them.
Section 6.6. Fee Calculations. All fees payable hereunder shall be
computed on the basis of a year of 365 or 366 days, as applicable, for the
actual number of days elapsed.
Section 6.7. Place of Payments. All payments of amounts payable under
this Agreement to the Banks in U.S. Dollars shall be made to the Administrative
Agent by no later than 12:00 noon (Chicago time) (or in the case of payments on
Swing Line Loans, 2:00 p.m. (Chicago time)) at the principal office of the
Administrative Agent in Chicago, Illinois (or such other location in the State
of Illinois as the Administrative Agent may designate to the Company or the
relevant Borrower) or, if such payment is to be made in an Alternative Currency,
no later than 12:00 noon local time (or in the case of payments on Multicurrency
Swing Line Loans, 2:00 p.m. local time, or in case of any Loan payable in an
Alternative Currency, such earlier time as the Administrative Agent may notify
to the Company as is necessary for such funds to be received for same day value
on the date of such payment) at the place of payment to such office as the
Administrative Agent has previously agreed to with the Company (acting on behalf
of the applicable Borrower) for the benefit of the Person or Persons entitled
thereto. Any payments received after such time shall be deemed to have been
received by the Administrative Agent on the next Business Day and shall bear
interest for such additional day or days, as the case may be, in accordance with
the provisions of this Agreement.
Section 6.8. Funds and Remittance. All such payments shall be made (i)
if in U.S. Dollars, in immediately available funds at the place of payment, or
(ii) if in an Alternative Currency, in such Alternative Currency in funds then
customary for the settlement of international transactions in such currency, in
each case without setoff or counterclaim. The Administrative Agent will promptly
thereafter (and in any case, for U.S. Dollars, before the close of business on
the day the Administrative Agent receives such funds, if timely received by the
Administrative Agent) cause to be distributed like funds relating to the payment
of principal or
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interest on Committed Loans, or Reimbursement Obligations in which the Banks
have purchased participating interests, or Facility Fees or letter of credit
participation fees, ratably to the Banks and like funds relating to the payment
of any other amount payable to any Person to such Person, in each case to be
applied in accordance with the terms of this Agreement.
Section 6.9. Application of Payments. Anything contained herein to the
contrary notwithstanding, all payments and collections received in respect of
the Obligations and all proceeds of the Collateral received, in each instance,
by the Administrative Agent or any of the Banks after the occurrence and during
the continuation of an Event of Default shall be remitted to the Administrative
Agent and distributed as follows:
(a) first, to the payment of any outstanding costs and
expenses incurred by the Administrative Agent, and any security trustee
therefor, in monitoring, verifying, protecting, preserving or enforcing
the Liens on the Collateral, in protecting, preserving or enforcing
rights under the Loan Documents, to the extent such costs and expenses
are of a character which the Company and the other Borrowers have
agreed to pay the Administrative Agent under (i) Section 17.15 hereof
or (ii) the other Loan Documents (such funds to be retained by the
Administrative Agent for its own account unless it has previously been
reimbursed for such costs and expenses by the Banks, in which event
such amounts shall be remitted to the Banks to reimburse them for
payments theretofore made to the Administrative Agent);
(b) second, to the payment of principal and interest on the
Notes, unpaid Reimbursement Obligations, together with amounts to be
held by the Administrative Agent as collateral security for any
outstanding L/C Obligations (until the Administrative Agent is holding
an amount of cash equal to the then outstanding amount of all such L/C
Obligations), unpaid fees and other Obligations due under the Loan
Documents, and Hedging Liability, the aggregate amount paid to, or held
as collateral security for, the Banks and, in the case of Hedging
Liability, their Affiliates to whom such Obligations and Hedging
Liability are owed to be allocated pro rata in accordance with the
aggregate unpaid amounts owing to each; and
(c) third, to the Company or whoever else may be lawfully
entitled thereto.
SECTION 7. SECURITY.
Section 7.1. Collateral. The Obligations and the Hedging Liability
shall at all times be secured by (a) valid, perfected and enforceable Liens on
all right, title and interest of the Company and each Domestic Subsidiary in all
capital stock and other equity interests held by such Person in each of its
Domestic Subsidiaries, whether now owned or hereafter formed or acquired, and
all proceeds thereof, (b) subject to Section 7.4 hereof, valid, perfected and
enforceable Liens on all right, title and interest of the Company and each
Domestic Subsidiary in up to 65% of Voting Equity and 100% of Non-Voting Equity
of each First Tier Foreign Subsidiary, whether now owned or hereafter formed or
acquired, and all proceeds thereof and (c) valid, perfected (subject to the
proviso appearing at the end of this sentence) and enforceable Liens on all
right, title and interest of the Company and each Domestic Subsidiary in all
accounts
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<PAGE> 34
and accounts receivable, notes and notes receivable, contract rights,
instruments, documents, chattel paper, general intangibles (including, without
limitation, patents, trademarks, tradenames, copyrights, and other intellectual
property rights, but in any event excluding applications for trademarks based on
"intent to use" and intellectual property registered outside of the United
States of America), investment property (subject to the limitations specified in
subsection (b) above), inventory, farm products, machinery, equipment, fixtures,
deposit accounts, and real estate (subject to Section 7.2 hereof), whether now
owned or hereafter acquired or arising, and all proceeds thereof; provided,
however, that: (i) the Lien of the Administrative Agent on Property subject to a
Capital Lease or conditional sale agreement or subject to a purchase money lien,
in each instance to the extent permitted hereby, shall be subject to the rights
of the lessor or lender thereunder and (ii) until a Default or Event of Default
has occurred and is continuing and thereafter until otherwise required by the
Administrative Agent or the Required Banks, Liens need not be granted or
perfected on (A) notes and notes receivable or vehicles which are subject to a
certificate of title law provided that the total value of such property at any
one time not so perfected shall not exceed $2,000,000 in the aggregate, (B)
Property of the Company and Domestic Subsidiaries (other than Property which is
being pledged pursuant to the Pledge Agreements) located outside of the United
States of America or Property as to which the grant or perfection of a Lien
thereon would not be governed by the laws of the United States of America or any
State thereof, provided that the aggregate net book value of such Property at
any one time not so encumbered does not exceed $6,000,000 in the aggregate, (C)
goods in transit outside of the United States of America in the ordinary course
of business, (D) interests in leaseholds of real estate (other than the
Booneville Leasehold, Kenosha Leaseholds, Del Rio Leasehold and Buffalo Grove
Leasehold) provided that the aggregate net book value of such interests in
leaseholds at any one time not so encumbered does not exceed $1,000,000, (E) the
equity interest of GBC International, Inc. in IBICO GmbH if and so long as (1)
the Company and its Subsidiaries are diligently pursuing the consent of the
federal and relevant cantonal tax authorities of Switzerland to effect a pledge
of not more than 65% of such equity interest and (2) the pledging of such equity
interest without first obtaining such consent would reasonably be expected to
result in a materially adverse liability to the Company and its Subsidiaries,
(F) the equity interest in any Foreign Subsidiary which has (together with its
subsidiaries) consolidated gross sales of less than $2,000,000 as of the close
of the current and each subsequent fiscal year of the Company for which audited
financial statements are then available, and (G) the equity interest of the
Company in GMP Co., Ltd., a corporation organized and existing under the laws of
the Republic of Korea and operated as a joint venture between the Company and
certain South Korean investors. The Company acknowledges and agrees that the
Liens on the Collateral shall be granted to the Administrative Agent for the
benefit of itself, the Banks, certain Affiliates of the Banks and the Issuing
Agents and shall be valid and perfected first priority Liens subject, however,
to the proviso appearing at the end of the immediately preceding sentence, in
each case pursuant to one or more Collateral Documents from such Persons, each
in form and substance satisfactory to the Administrative Agent.
Section 7.2. Liens on Real Property. In the event that the Company or
any Domestic Subsidiary owns or hereafter acquires fee interests in any real
property (other than the real property presently owned by the Company in New
Bedford, Massachusetts, commonly known as 429 Church Street, which real property
the Company hereby represents is in the process of being sold), the Company
shall, or shall cause such Domestic Subsidiary to, execute and deliver to the
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Administrative Agent (or a security trustee therefor) a mortgage or deed of
trust acceptable in form and substance to the Administrative Agent for the
purpose of granting to the Administrative Agent for the benefit of itself, the
Banks, certain Affiliates of the Banks and the Issuing Agents a Lien on each
such real property to secure the Obligations and the Hedging Liability, shall
pay all taxes, costs and expenses incurred by the Administrative Agent in
recording such mortgage or deed of trust, and shall supply to the Administrative
Agent (to the extent not otherwise waived in writing by the Administrative
Agent) at the Company's cost and expense a survey, environmental report, hazard
insurance policy, and a mortgagee's policy of title insurance from a title
insurer acceptable to the Administrative Agent insuring the validity of such
mortgage or deed of trust and its status as a first Lien (subject to Liens
permitted by this Agreement) on the real property encumbered thereby and such
other instrument, documents, certificates, and opinions reasonably required by
the Administrative Agent in connection therewith.
Section 7.3. Guarantees. The Obligations and the Hedging Liability
shall at all times be guaranteed by each existing or hereafter acquired Domestic
Subsidiary (and First Tier Foreign Subsidiary in the event that the
Administrative Agent does not receive the evidence specified in Section 7.4
hereof upon the occurrence of the events contemplated therein) of the Company
pursuant hereto and the Subsidiary Guarantee Agreements; provided, however, that
Plastic need not be a Guarantor hereunder or be a party to any of the Collateral
Documents so long as Plastic does not (i) own assets with an aggregate book
value in excess of $500 at any time and (ii) engage in any active business from
and after the date hereof.
Section 7.4. Foreign Security. If following a change in the relevant
sections of the Code or the regulations, rules, rulings, notices or other
official pronouncements issued or promulgated thereunder, counsel for the
Company reasonably acceptable to the Administrative Agent does not within thirty
(30) Business Days after a request (an "Evidence Request") from the
Administrative Agent deliver evidence, in form and substance mutually
satisfactory to the Administrative Agent and the Company, with respect to any
First Tier Foreign Subsidiary which has not already had all of its stock pledged
pursuant to the Pledge Agreements, that (i) a pledge of 66% or more of the total
combined voting power of all classes of capital stock or other equity interest
of such First Tier Foreign Subsidiary entitled to vote, (ii) the entering into
by such First Tier Foreign Subsidiary of a security agreement in substantially
the form of the Security Agreement and (iii) the entering into by such First
Tier Foreign Subsidiary of a guaranty in substantially the form of the
Subsidiary Guarantee Agreement, in any such case would cause the undistributed
earnings of such First Tier Foreign Subsidiary as determined for Federal income
tax purposes to be treated as a deemed dividend to such First Tier Foreign
Subsidiary's United States parent for Federal income tax purposes, then in the
case of a failure to deliver the evidence described in clause (i) above and to
the extent not otherwise waived by the Administrative Agent, that portion of
such First Tier Foreign Subsidiary's outstanding capital stock not theretofore
pledged pursuant to the Pledge Agreement shall be so pledged to the
Administrative Agent for the benefit of itself, the Banks, certain Affiliates of
the Banks and the Issuing Agents, and in the case of a failure to deliver the
evidence described in clause (ii) above and to the extent not otherwise waived
by the Administrative Agent, such First Tier Foreign Subsidiary shall execute
and deliver the Security Agreement (or another security agreement in
substantially similar form, if needed), granting the Administrative Agent for
the benefit of itself, the Banks, certain Affiliates of the Banks and the
Issuing Agents a security interest in all of such First Tier Foreign
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<PAGE> 36
Subsidiary's personal property, in each case securing the Obligations and the
Hedging Liability, and in the case of failure to deliver the evidence described
in clause (iii) above and to the extent not otherwise waived by the
Administrative Agent, such First Tier Foreign Subsidiary shall execute and
deliver the Subsidiary Guarantee Agreement (or another guaranty in substantially
similar form, if needed), guaranteeing the Obligations and the Hedging
Liability, in each case (i) promptly, but in any event within thirty (30)
Business Days after each such Evidence Request and (ii) to the extent that
entering into such pledge, Security Agreement or Subsidiary Guarantee Agreement
is (A) permitted by the laws of the applicable foreign jurisdiction, (B) in the
case of GBC Nederland B.V., prior to the entering into such documentation the
consultation procedure with the works council (ondernemingsraad) of such
Subsidiary pursuant to section 25 of the Dutch Works Councils Act (Wet op de
ondernemingsraden) has been completed (such Subsidiary hereby agreeing to
commence such procedure promptly after the date hereof by requesting its works
council to render an advice with respect to this Agreement, such Security
Agreement and such Subsidiary Guaranty Agreement and the transactions
contemplated thereby) and (C) is not restricted by any contract or agreement to
which such First Tier Foreign Subsidiary is a party (to the extent such
restriction pre-dates this Agreement) and with all documents delivered pursuant
to this Section 7.4 to be in form and substance reasonably satisfactory to the
Administrative Agent.
Section 7.5. Further Assurances and Modifications.
(a) Collateral. The Company agrees that it shall, and shall cause each
Subsidiary to, from time to time at the request of the Administrative Agent or
the Required Banks, execute and deliver such documents and do such acts and
things as the Administrative Agent or the Required Banks may reasonably request
in order to provide for or perfect or protect the Liens on the Collateral
contemplated by Sections 7.1, 7.2 and 7.4 hereof. In the event the Company or
any Domestic Subsidiary forms or acquires any other Domestic Subsidiary or First
Tier Foreign Subsidiary after the date hereof, the Company shall within ten (10)
Business Days (or thirty (30) Business Days in the case of a Foreign Subsidiary)
of such formation or acquisition, and shall cause such newly formed or acquired
Subsidiary (and any other applicable Subsidiary in the case of Pledge
Agreements), to execute such Collateral Documents as the Administrative Agent
may then require, and the Company shall also deliver to the Administrative
Agent, or cause such Subsidiary to deliver to the Administrative Agent, at the
Company's cost and expense, such other instruments, documents, certificates and
opinions reasonably required by the Administrative Agent in connection
therewith, in each case to the extent contemplated under Sections 7.1, 7.2 and
7.4 hereof had such newly-formed or acquired Subsidiary existed as of the
Effective Date.
(b) Guarantees. Within ten (10) Business Days (or thirty (30)
Business Days in the case of a Foreign Subsidiary) after establishing or
acquiring any Domestic Subsidiary or First Tier Foreign Subsidiary or any
Subsidiary becoming a Domestic Subsidiary or First Tier Foreign Subsidiary,
unless the Required Banks otherwise agree or the Company elects otherwise as set
forth in the immediately following sentence, the Company shall (i) cause such
Domestic Subsidiary (and First Tier Foreign Subsidiary in the event that the
Administrative Agent does not receive the evidence specified in Section 7.4
hereof upon the occurrence of the events contemplated therein) to execute such
Collateral Documents and deliver such other instruments, documents, certificates
and opinions as the Administrative Agent may reasonably request,
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(ii) cause such Domestic Subsidiary (and First Tier Foreign Subsidiary in the
event that the Administrative Agent does not receive the evidence specified in
Section 7.4 hereof upon the occurrence of the events contemplated therein) to
execute a Subsidiary Guarantee Agreement and (iii) cause such Domestic
Subsidiary or First Tier Foreign Subsidiary to deliver documentation similar to
that described in Section 11.1(a) through (c) relating to the authorization for,
execution and delivery of, and validity of such Subsidiary's obligations under
the Loan Documents to which it is a party in form and substance satisfactory to
the Required Banks. If concurrent with the closing of any sale or other
disposition of a Credit Party (other than the Company) permitted by Section
12.12 hereof, the Company or such Credit Party fully pays all Loans (if any)
made to such Credit Party and the Company pays or assumes in a manner acceptable
to the Banks the liability for all L/C Obligations of such Credit Party and the
Company requests the Administrative Agent (which shall promptly inform the
Banks) that such Credit Party be released from its Obligations hereunder and
under any Subsidiary Guarantee Agreement to which it is a party and no Default
or Event of Default has occurred and is continuing, the Banks will so release
such Credit Party (it being understood and agreed that any Borrowing Subsidiary
shall, as provided in Section 5.10(a) hereof, cease to be a Borrower hereunder
upon ceasing to be a Wholly-Owned Subsidiary).
(c) Modifications. The Administrative Agent may from time to time enter
into such modifications and amendments to the Loan Documents as are necessary to
secure credit extended by commercial lenders to Foreign Subsidiaries and
Minority Foreign Investments (or any Guaranty thereof) with a Lien on the
Collateral under the Collateral Documents on a pari passu basis with the
Obligations and the Hedging Liability provided (i) the U.S. Dollar Equivalent of
the aggregate principal amount of credit available under the terms of the
indebtedness so secured (whether or not such credit is in use and with the U.S.
Dollar Equivalent of each credit facility so secured to be set at all times
solely for purposes of this clause at the U.S. Dollar Equivalent as of the first
day such credit facility becomes so secured) does not exceed $27,000,000, (ii)
the documentation (including such modifications and amendments to the Loan
Documents) and arrangements which spread the Collateral to secure such
indebtedness must in all events be satisfactory to the Administrative Agent and
(iii) the U.S. Dollar Equivalent (determined at all times solely for purposes of
this clause as of the last day of the then most recent calendar quarter and at
such other more recent time as the Administrative Agent or the Required Banks
shall elect) of the maximum aggregate principal amount of credit then so
available (whether or not in use) shall, notwithstanding anything in this
Agreement to the contrary, be deemed usage of the Revolving Credit Commitments
in the form of a like amount of Committed Eurocurrency Loans for the sole
purpose of determining the aggregate amount of credit permitted under this
Agreement (including without limitation Sections 1.1, 1.2, 3.1, 4.1, 5.4(c) and
11.2(d) hereof).
SECTION 8. DEFINITIONS; INTERPRETATIONS.
Section 8.1. Definitions. The following terms when used herein have the
following meanings:
"Account" is defined in Section 13.4(b) hereof.
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"Acquisition" means any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which the Company
or any of the Subsidiaries (i) acquires any going business, line of business or
all or substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise, or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation or other firm which have ordinary
voting power for the election of the board of directors or similar governing
body of such corporation or firm (other than securities having such power only
by reason of the happening of a contingency).
"Administrative Agent" means Harris Trust and Savings Bank and any
successor pursuant to Section 15.7 hereof.
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "control" (including, with their correlative
meanings, "controlled by" and "under common control with") means possession,
directly or indirectly, of power to direct or cause the direction of management
or policies of a Person (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise), provided that, in any
event for purposes of this definition: (i) any Person which owns directly or
indirectly 20% or more of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or 20% or more of
the partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) will be deemed to control such
corporation or other Person; and (ii) each director and executive officer of the
Company or any Subsidiary shall be deemed an Affiliate of the Company and each
Subsidiary.
"Agents" means the Administrative Agent, each Issuing Agent and each
Swing Line Bank, in each case in its capacity as such.
"Alternative Currency" means (i) any of Euros, Belgian Francs, Deutsche
Marks, Dutch Guilders, Japanese Yen, Pounds Sterling, Spanish Pesetas,
Australian Dollars, Canadian Dollars, French Francs, Italian Lira, Swiss Francs,
Austrian Shillings, New Zealand Dollars, Singapore Dollars, Swedish Krona, Irish
Punts and Portuguese Escudos (collectively, the "Designated Alternative
Currencies") and (ii) any other currency available to each Bank (each such other
non-designated currency being hereinafter referred to as an "Other Alternative
Currency"), in each case for so long as such Designated Alternative Currency and
Other Alternative Currency, as the case may be, is freely transferable and
freely convertible to U.S. Dollars and the Dow Jones Telerate Service or Reuters
monitor Money Rates Service (or any successor to either) reports a LIBOR for
such currency for interest periods of one, two, three and six calendar months;
provided, however, that availability of each Other Alternative Currency is
subject to the additional conditions that (a) the Company has made written
request on the Administrative Agent to add such currency as an Other Alternative
Currency (the Administrative Agent to promptly notify the Banks of each such
request and the proposed effective date of such currency's inclusion as an Other
Alternative Currency), (b) such currency shall, subject to the other provisions
of this definition, constitute an Other Alternative Currency effective on the
date ten (10) Business Days following such notice by the Administrative Agent to
the Banks of the
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Company's request for such new currency, (c) such amendments, modifications or
supplements are made to this Agreement as the Administrative Agent determines
are necessary or appropriate (if any) to give effect to the borrowing and
funding of Loans in such Other Alternative Currency and (d) such additional
currency shall no longer be available if any of the Banks notifies the
Administrative Agent at any time that in the judgment of such Bank, it is
impossible, illegal or impracticable for such Bank to make or participate in
Loans in such Other Alternative Currency or that in the judgment of such Bank,
additional costs or expenses will be incurred by such Bank or additional taxes,
charges or other impositions will be imposed on such Bank (such as withholding
taxes of the type described in Section 17.1(a) hereof) as a result of making or
participating in Loans in such Other Alternative Currency disbursed or payable
in the United States or any Approved Jurisdiction.
"Alternative Swing Line Currency" means any of Euros, Deutsche Marks,
Dutch Guilders, Pounds Sterling, French Francs, Swiss Francs and Austrian
Shillings, in each case for so long as such currency constitutes an Alternative
Currency; provided, however, that availability of each Alternative Swing Line
Currency is subject to the additional conditions that (a) the Multicurrency
Swing Line Bank has not notified the Administrative Agent that in the judgment
of the Multicurrency Swing Line Bank, it is impossible, illegal or impracticable
for such Bank to make Multicurrency Swing Line Loans in such Alternative Swing
Line Currency or that in the judgment of the Multicurrency Swing Line Bank,
additional costs or expenses will be incurred by such Bank or additional taxes,
charges or other impositions will be imposed on such Bank (such as withholding
taxes of the type described in Section 17.1(a) hereof) as a result of making
Multicurrency Swing Line Loans in such Alternative Swing Line Currency disbursed
or payable in the United States or any Approved Jurisdiction and (b) such
amendments, modifications or supplements are made to this Agreement as the
Administrative Agent and Multicurrency Swing Line Bank determine are necessary
or appropriate (if any) to give effect to the borrowing and funding of
Multicurrency Swing Line Loans in such Alternative Swing Line Currency.
"Applications" is defined in Section 1.2(d) hereof.
"Approved Jurisdictions" means Austria, Australia, Belgium, Canada,
Germany, the Netherlands, the Republic of Ireland, Italy, Japan, New Zealand,
Singapore, Sweden, Portugal, Spain, Switzerland and the United Kingdom and such
other jurisdictions as the Company requests from time to time in writing;
provided, however, that the addition of any Approved Jurisdiction not
specifically listed above in this sentence is subject to the additional
conditions that (a) the Company has made written request on the Administrative
Agent to add such jurisdiction as an Approved Jurisdiction (the Administrative
Agent to promptly notify the Banks of each such request and the proposed
effective date of such jurisdiction's inclusion as an Approved Jurisdiction),
(b) such jurisdiction shall, subject to the other provisions of this definition,
constitute an Approved Jurisdiction effective on the date ten (10) Business Days
following such notice by the Administrative Agent to the Banks of the Company's
request for such new jurisdiction, (c) such amendments, modifications or
supplements are made to this Agreement as the Administrative Agent determines
are necessary or appropriate (if any) to give effect to the addition of such
Approved Jurisdiction and (d) such additional jurisdiction shall no longer be an
Approved Jurisdiction if any of the Banks notifies the Administrative Agent at
any time that in the judgment of such Bank, it is impossible, illegal or
impracticable for such Bank to
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make or participate in Loans disbursed or payable in such Approved Jurisdiction
or that in the judgment of such Bank, additional costs or expenses will be
incurred by such Bank or additional taxes, charges or other impositions will be
imposed on such Bank (such as withholding taxes of the type described in Section
17.1(a) hereof) as a result of making or participating in Loans disbursed or
payable in such Approved Jurisdiction.
"Australian Dollars" means the lawful currency of Australia.
"Austrian Shillings" means the lawful currency of Austria.
"Authorized Representative" means any person shown on the list of
officers provided by the Company pursuant to Section 11.1(g) hereof, or any
other person shown on any updated such list provided by the Company to the
Administrative Agent, or any further or different officer(s) or employee(s) of
the Company so named by any Authorized Representative in a written notice to the
Administrative Agent.
"Bank" means each bank signatory hereto, and its successors, and any
assignee of a Bank pursuant to Section 17.12 hereof and includes each Issuing
Agent in its capacity as issuer of Letters of Credit and holder of L/C
Obligations after giving effect to each Participating Bank's interest therein
and also includes each Swing Line Bank in its capacity as the lender on its
Swing Line Loans after giving effect to each Participating Bank's interest
therein.
"Belgian Francs" means the lawful currency of the Kingdom of Belgium.
"Booneville Leasehold" means the real estate of the City of Booneville,
Mississippi in Booneville, Mississippi, commonly known as 300 Quartet Avenue,
currently leased by the Company pursuant to a Lease Agreement dated as of
December 1, 1986.
"Borrower" is defined in the introduction hereto.
"Borrowing" means the total of Loans of a single type made by one or
more Banks to the same Borrower on a single date and for a single Interest
Period. Borrowings of Committed Loans are made ratably from each of the Banks
according to their Revolving Credit Commitments. Borrowings of Domestic Swing
Line Loans are made from the Domestic Swing Line Bank in accordance with the
procedures of Section 3 hereof. Borrowings of Multicurrency Swing Line Loans are
made from the Multicurrency Swing Line Bank in accordance with the procedures of
Section 4 hereof. The term "Committed Borrowing" shall mean a Borrowing of
Committed Loans advanced pursuant to Section 2.2 hereof and the term "Swing Line
Borrowing" shall mean a Borrowing of Swing Line Loans advanced pursuant to
Section 3 or Section 4 hereof.
"Borrowing Subsidiary" is defined in Section 5.10 hereof (the parties
hereto acknowledging that, as of the date hereof, GBC Nederlands B.V. is the
sole Borrowing Subsidiary).
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"Buffalo Grove Leasehold" means the real estate of Chevy Chase Business
Park Limited Partnership in Buffalo Grove, Illinois, commonly known as 301
Hastings Drive, currently leased by the Company pursuant to a Lease Agreement
dated as of May 8, 1997.
"Business Day" means any day other than a Saturday or Sunday on which
banks are not authorized or required to close in Chicago, Illinois and, if the
applicable Business Day relates to the borrowing or payment of a Eurocurrency
Loan denominated in U.S. Dollars, on which banks are dealing in U.S. Dollar
deposits or the relevant Alternative Currency in the interbank market in London,
England and, if the applicable Business Day relates to the borrowing or payment
of a Eurocurrency Loan denominated in an Alternative Currency (other than
Euros), on which banks and foreign exchange markets are open for business in the
city where disbursements of or payments on such Loan are to be made and, if the
applicable Business Day relates to the borrowing or payment of a Eurocurrency
Loan denominated in Euros, on which banks and foreign exchange markets are open
for business in the city where disbursements of or payments on such Loan are to
be made which is a TARGET Day.
"Canadian Dollars" means the lawful currency of Canada.
"Capital Lease" of a Person means at any date any lease of property by
such Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Change of Control Event" means (a) that at any time Lane Industries,
Inc., a Delaware corporation, fails to own and control, either directly or
indirectly through one or more of its subsidiaries, a sufficient number of
shares of the Company's outstanding Voting Stock to elect a majority of the
Board of Directors of the Company or (b) any "Change of Control" (or words of
like import), as defined in any agreement or indenture relating to any issue of
Subordinated Debt, shall occur, the effect of which is to cause the acceleration
of any issue of Subordinated Debt or to enable any holder of Subordinated Debt
to cause the Company or any Subsidiary to repurchase, redeem or retire if any
Subordinated Debt held by it.
"Co-Agents" is defined in the introductory paragraph hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all properties, rights, interests and privileges
from time to time subject to the Liens granted to the Administrative Agent, or
any security trustee therefor, by the Collateral Documents.
"Collateral Documents" means the Mortgages, the Pledge Agreements, the
Security Agreement, Security Agreement Re: Intellectual Property, and all other
mortgages, deeds of trust, security agreements, pledge agreements, assignments,
financing statements and other
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documents as shall from time to time secure or relate to the Obligations, the
Hedging Liability or any part thereof.
"Commercial Letter of Credit" means a Letter of Credit that finances a
commercial transaction by paying part or all of the purchase price for goods
against delivery of a document of title covering such goods and any other
required documentation.
"Committed Eurocurrency Loan" means a Eurocurrency Loan made pursuant
to the provisions of Section 2.2 hereof.
"Committed L/C Obligations" means L/C Obligations owed to the
Administrative Agent.
"Committed Loan" is defined in Section 1.1 hereof.
"Committed Loan Notes" is defined in Section 5.6(a) hereof.
"Commitments" means the Revolving Credit Commitments, the L/C
Commitment, the Domestic Swing Line Commitment and the Multicurrency Swing Line
Commitment, and the term "Commitment" means any of the foregoing unless the
context in which such term is used shall otherwise require.
"Company" means General Binding Corporation, a Delaware corporation.
"Compliance Certificate" means a duly completed certificate in the form
of Exhibit F hereto.
"Consolidated Capital Expenditures" means with reference to any period,
the aggregate amount of all expenditures (whether paid in cash or accrued as a
liability, but without duplication) by the Company and its Subsidiaries during
that period which, in accordance with GAAP consistently applied, are capital
expenditures.
"Consolidated Current Ratio" means, at any time the same is to be
determined, the ratio of current assets of the Company and its Subsidiaries to
current liabilities of the Company and its Subsidiaries, all as determined on a
consolidated basis in accordance with GAAP consistently applied, but in any
event excluding the Loans from current liabilities for such purposes.
"Consolidated Debt" means all Debt of the Company and its Subsidiaries
determined (without duplication) on a consolidated basis in accordance with
GAAP; provided, however, that it is understood that to avoid duplication in
calculating Consolidated Debt, only Guaranties of third parties' obligations and
of other obligations not otherwise included in the Debt of the Company or of a
consolidated Subsidiary shall be included; provided further, however, that
Consolidated Debt shall also not include any guarantees to the extent and only
to the extent the obligations covered by such guarantees are secured by
Permitted Liquid Investments segregated and held expressly for that purpose by
or on behalf of the party to whom such obligations are owed.
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"Consolidated EBITDA" means, for any period, determined on a
consolidated basis for the Company and its Subsidiaries in accordance with GAAP,
(i) earnings before income taxes for such period, plus (ii) Consolidated
Interest Expense for such period, plus (iii) the amount of all depreciation and
amortization expense deducted in determining earnings for such period, minus
(iv) net earnings for such period of any unconsolidated Person in which the
Company or any Subsidiary has an ownership interest, unless such earnings are
received in cash pursuant to a dividend distribution (or equivalent distribution
in the event of one made by a Person other than a corporation) received by the
Company, any Borrower or any Guarantor, plus (v) net losses for such period of
any unconsolidated Person in which the Company or any Subsidiary has an
ownership interest to the extent such losses are deducted in determining
earnings for such period in an amount in excess of any increase during such
period in Investments of the Company and its Subsidiaries in such Person;
provided, however, that notwithstanding anything in this definition to the
contrary: (a) non-cash gains and non-cash losses on sales or other dispositions
of assets of the Company and its Subsidiaries outside the ordinary course of
their business shall be given no effect in determining Consolidated EBITDA; and
(b) if an Acquisition or (c) if a Divestiture occurs at any time during such
period, Consolidated EBITDA shall be calculated on a proforma basis to include
(in the case of an Acquisition) or exclude (in the case of a Divestiture)
earnings reasonably allocable to the acquired (or divested) Person or business,
as the case may be, for the entire period as if such Acquisition or Divestiture
had taken place on the first day of such period, all as reasonably calculated by
the Company based on historical operations (including, but not limited to,
operations conducted during such quarter) and reasonably calculated adjustments
due to anticipated operational changes. Notwithstanding anything contained
herein to the contrary, to the extent deducted in computing Consolidated EBITDA
for any period, the Fiscal Year 1999/2000 Charges shall be added back to each
such computation of Consolidated EBITDA for the relevant period.
"Consolidated Interest Expense" means, for any period, an amount equal
to interest expense during such period on Consolidated Debt, as determined on a
consolidated basis in accordance with GAAP; provided, however, that if an
Acquisition occurs at any time during such period, Consolidated Interest Expense
shall be calculated on a proforma basis to include interest expense reasonably
allocable to the acquired Person or business, as the case may be, for the entire
period as if such Acquisition had taken place on the first day of such period
and the Consolidated Debt incurred to finance or otherwise related to the
relevant Acquisition had been incurred on the first day of such period, all as
reasonably calculated by the Company.
"Consolidated Shareholder's Equity" means, as of any date the same is
to be determined, the total shareholder's equity (including capital stock,
additional paid-in-capital and retained earnings after deducting treasury stock,
but excluding minority interests in Subsidiaries) which would appear on a
balance sheet of the Company and its Subsidiaries determined on a consolidated
basis in accordance with GAAP.
"Consolidated Total Assets" shall mean as of the date of any
determination thereof, the total amount of all assets of the Company and its
Subsidiaries as determined on a consolidated basis in accordance with GAAP.
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"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its Property is bound.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"Credit Documents" means this Agreement (including each Election to
Participate and Election to Terminate issued hereunder), the L/C Documents and
the Notes.
"Credit Event" means the advancing of any Loan, or the issuance of, or
extension of the expiration date or increase in the amount of, any Letter of
Credit.
"Credit Party" means the Company, each Borrowing Subsidiary and each
Guarantor.
"Debt" means, for any Person, any Indebtedness of such Person of the
type described in clauses (i) through (vi) of the definition of such term.
"Default" means any event or condition the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an Event
of Default.
"Del Rio Leasehold" means the real estate of Ueli Wolfensberger, as
Trustee of the U.W. Trust #1 dated as of August 1, 1990, in Del Rio, Texas,
commonly known as the Northwest corner of the intersection of Leonel Martinez
Boulevard and Avenue T, currently leased by the Company pursuant to an
Industrial Building Lease Agreement dated as of August 1, 1990.
"Deutsche Marks" means the lawful currency of the Federal Republic of
Germany.
"Disposition" means the sale, lease, conveyance or other disposition of
Property, other than dispositions permitted by provisos (a)(1), (a)(2), (a)(3),
(a)(4) and (a)(5) to Section 12.12.
"Divestiture" means any Disposition or series of related Dispositions
by which the Company or any of the Subsidiaries sells or otherwise disposes of
(i) any going business, line of business or all or substantially all of the
assets of any Subsidiary or (ii) any Subsidiary.
"Domestic Borrower" means each Borrower which is a Domestic Subsidiary.
"Domestic Rate" is defined in Section 2.1(a) hereof.
"Domestic Rate Loan" means a Loan bearing interest prior to maturity at
the rate specified in Section 2.1(a) hereof.
"Domestic Rate Margin" is defined in Section 2.1(a) hereof.
"Domestic Subsidiary" means each Subsidiary of the Company which is
organized under the laws of the United States of America or any State thereof.
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"Domestic Swing Line Bank" is defined in Section 3.1 hereof.
"Domestic Swing Line Commitment" means $35,000,000, as such amount may
be reduced pursuant to Section 5.7 hereof.
"Domestic Swing Line Loans" is defined in Section 3.1 hereof.
"Domestic Swing Line Note" is defined in Section 5.6(b) hereof.
"Domestic Swing Line Rate" is defined in Section 3.3 hereof.
"Dutch Guilder" means the lawful currency of the Netherlands.
"Effective Date" means the date on which the Administrative Agent has
received signed counterpart signature pages of this Agreement from each of the
signatories (or, in the case of a Bank, confirmation that such Bank has executed
such a counterpart and dispatched it for delivery to the Administrative Agent)
and the conditions in Section 11.1 hereof have been fulfilled.
"Election to Participate" means a letter to the Administrative Agent in
the form of Exhibit G hereto executed by a Borrowing Subsidiary and an
Authorized Representative and acknowledged by the Administrative Agent.
"Election to Terminate" means a letter in the form of Exhibit H hereto
executed by a Borrowing Subsidiary and an Authorized Representative and
acknowledged by the Administrative Agent.
"EMU" means economic and monetary union as contemplated in the Treaty
on European Union.
"EMU Commencement" means January 1, 1999 (the date of commencement of
the third stage of EMU).
"EMU Legislation" means 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", "euros" or otherwise), being in
part the implementation of the third stage of EMU.
"Environmental and Health Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, judgments, permits and
other governmental rules or restrictions relating to human health, safety
(including without limitation occupational safety and health standards), or the
environment or to emissions, discharges or releases of pollutants, contaminants,
hazardous or toxic substances, wastes or any other controlled or regulated
substance into the environment, including without limitation ambient air,
surface water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, hazardous or toxic substances, wastes or
any other controlled or regulated substance or the clean-up or other remediation
thereof.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Euro" means the single currency of Euro Members of the European Union.
"Eurocurrency Loan" means a Loan bearing interest prior to maturity at
the rate specified in Section 2.1(b) hereof. By way of illustration and not of
limitation, a Multicurrency Swing Line Loan is a Eurocurrency Loan.
"Eurocurrency Loans" shall mean both Committed Eurocurrency Loans and
Multicurrency Swing Line Loans.
"Eurocurrency Margin" is defined in Section 2.1(b) hereof.
"Eurocurrency Reserve Percentage" means, for any Borrowing of
Eurocurrency Loans, the daily average for the applicable Interest Period of the
maximum rate, expressed as a decimal, at which reserves (including, without
limitation, any supplemental, marginal and emergency reserves) are imposed
during such Interest Period by the Board of Governors of the Federal Reserve
System (or any successor) on "eurocurrency liabilities", as defined in such
Board's Regulation D (or in respect of any other category of liabilities that
includes deposits by reference to which the interest rate on Eurocurrency Loans
is determined or any category of extensions of credit or other assets that
include loans by non-United States offices of any Bank to United States
residents), subject to any amendments of such reserve requirement by such Board
or its successor, taking into account any transitional adjustments thereto. For
purposes of this definition, the Eurocurrency Loans shall be deemed to be
"eurocurrency liabilities" as defined in Regulation D without benefit or credit
for any prorations, exemptions or offsets under Regulation D.
"Euro Member" means each state described as a "participating member
state" in any EMU Legislation.
"Euro Unit" means the currency unit of Euros.
"Event of Default" means any of the events or circumstances specified
in Section 13.1 hereof.
"Event of Loss" means, with respect to any Property, any of the
following: (a) any loss, destruction or damage of such Property or (b) any
condemnation, seizure, or taking, by exercise of the power of eminent domain or
otherwise, of such Property, or confiscation of such Property or the requisition
of the use of such Property by any government or governmental authority.
"Facility Fee" means any of the fees payable by the Company to the
Banks under Section 6.1 hereof.
"Facility Fee Rate" is defined in Section 6.1 hereof.
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"Federal Funds Rate" means the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Domestic Rate in
Section 2.1(a) hereof.
"First Tier Foreign Subsidiary" shall mean, at any date of
determination, each Foreign Subsidiary with respect to which any one or more of
the Company and its Domestic Subsidiaries owns directly more than 50%, in the
aggregate, of the Voting Equity of such Foreign Subsidiary.
"Fiscal Year 1999/2000 Charges" means: (i) not more than $19,055,000 of
non-recurring charges incurred during the Company's fiscal year ended December
31, 1999 or prior to March 31, 2000 under the expense reduction/restructuring
program of the Company in such period; (ii) not more than $16,000,000 of
non-recurring charges incurred during the Company's fiscal year ended December
31, 1999 in winding down the so-called "UK board business" in such period; (iii)
not more than $16,000,000 of non-recurring charges incurred during the Company's
fiscal year ended December 31, 1999 or prior to June 30, 2000 under the supply
chain and SKU rationalization program in such period; and (iv) not more than
$5,000,000 of non-recurring charges representing consulting fees incurred prior
to the Revolving Credit Termination Date; provided, however, that any such
charges described in the immediately preceding clauses (i) and (iii) to the
extent taken during the Company's fiscal year ended December 31, 2000 within the
time frames set forth in such clauses and aggregating in excess of $10,200,000
shall not constitute Fiscal Year 1999/2000 Charges. Any foregoing cash and
non-cash charges not classified as "restructuring charges" in accordance with
GAAP must be one-time expenses reasonably deemed to have been incurred as a
result of such expense reduction/restructuring program, such wind-down of the
"UK board business", such supply chain and SKU rationalization program, or such
consulting fees. All such charges must be reported by the Company in reasonable
detail in separate schedules accompanying the Compliance Certificates required
by Section 12.6 hereof for each of the fiscal quarters in which such expenses
are incurred.
"Fixed Rate Loans" means Eurocurrency Loans and Swing Line Loans.
"Foreign Borrower" means each Borrower which is a Foreign Subsidiary.
"Foreign Credit L/C Obligations" means L/C Obligations owed to the
Multicurrency Swing Line Bank.
"Foreign Currency Sub-Limit" means $15,000,000 with respect to New
Zealand Dollars and $15,000,000 with respect to Portuguese Escudos or any amount
set by the Required Banks for any Other Alternative Currency in a written notice
from the Administrative Agent to the Company.
"Foreign Investment List" means a duly completed certificate from the
Company in the form of Exhibit K hereto describing in reasonable detail (by item
and amount) the Foreign Investments as of a specified date.
"Foreign Investments" means Investments of the type permitted solely by
reason of Section 12.14(h)(ii), Section 12.14(k) or Section 12.14(l) hereof.
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"Foreign Subsidiary" shall mean each Subsidiary that is not a Domestic
Subsidiary.
"French Francs" means the lawful currency of the Republic of France.
"GAAP" means generally accepted accounting principles, from time to
time in effect in the United States of America, consistently applied.
"Grid Pricing Condition" means, for each period from and including one
Pricing Date to but not including the immediately following Pricing Date, the
Company has maintained (i) a Leverage Ratio of less than 5.00 to 1 and (ii) a
Senior Leverage Ratio of less than 3.75 to 1 (or such lower Senior Leverage
Ratio as shall be required under Section 12.17(b) hereof), in each case as of
the close of the two consecutive fiscal quarters of the Company completed
immediately prior to the commencement of such period.
"Guarantor" means the Company and each Subsidiary of the Company that
is a signatory hereto (unless solely identified herein as a Borrowing
Subsidiary) or that executes and delivers to the Administrative Agent a
Subsidiary Guarantee Agreement along with the accompanying closing documents
required by Section 12.1 hereof.
"Guaranty" of a Person means any agreement by which such Person
assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes liable upon, the obligation of any
other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person or otherwise assures any creditor of
such other Person against loss, including, without limitation, any comfort
letter, operating agreement, take-or-pay contract or letter of credit.
"Hazardous Material" means and includes (a) any asbestos, PCBs or
dioxins or insulation or other material composed of or containing asbestos, PCBs
or dioxins and (b) any petroleum product or derivative or other hydrocarbon, and
any hazardous or toxic waste, substance or material defined as such in (or for
purposes of) CERCLA, any so-called "Superfund" or "Superlien" law, or any other
applicable federal, state, local or other statute, law, ordinance, code, rule,
regulation, order or decree regulating or pertaining to any such waste,
substance or material, as in effect now or at any time hereafter.
"Hedging Arrangements" means interest rate swaps, interest rate caps,
interest rate collars, foreign currency contracts, currency swap contracts or
other interest rate, commodity or currency hedging arrangements.
"Hedging Liability" means the liabilities of one or more of the
Borrowers or one or more of the Subsidiaries to the Banks or any of them or to
any of their Affiliates arising in connection with any one or more Hedging
Arrangements from time to time entered into by any Borrower or any Subsidiary
with any Bank or any Affiliate of any Bank. Unless and until the amount of the
Hedging Liability is fixed and determined, the Hedging Liability shall be deemed
to be the market value of the hedge from the date of computation to the date the
hedge expires.
"Indebtedness" means and includes, for any Person, all obligations of
such Person, without duplication, which are required by GAAP to be shown as
liabilities on its balance sheet,
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and in any event shall include all of the following whether or not so shown as
liabilities: (i) obligations of such Person for borrowed money, (ii) obligations
of such Person representing the deferred purchase price of property or services
other than accounts payable arising in the ordinary course of business on terms
customary in the trade, (iii) obligations of such Person evidenced by notes,
acceptances, or other instruments of such Person, (iv) obligations, whether or
not assumed, secured by Liens or payable out of the proceeds or production from
Property now or hereafter owned or acquired by such Person, (v) Capitalized
Lease Obligations of such Person and (vi) obligations for which such Person is
obligated pursuant to a Guaranty.
"Interest Coverage Ratio" means, for any period of four consecutive
fiscal quarters of the Company ending with the most recently completed such
fiscal quarter, the ratio of Consolidated EBITDA for such period to Consolidated
Interest Expense for such period.
"Interest Period" is defined in Section 5.1 hereof.
"Investment" is defined in Section 12.14 hereof.
"Issuing Agent" is defined in Section 1.2(a) hereof.
"Italian Lira" means the lawful currency of Italy.
"Japanese Yen" means the lawful currency of Japan.
"Kenosha Leaseholds" means the real properties of Pleasant Prairie
Investors I, L.L.C. and Pleasant Prairie Investors II, L.L.C. in Kenosha,
Wisconsin, commonly known as 10303 80th Street and 10150 80th Street,
respectively, currently leased by the Company pursuant to Leases dated October
15, 1996 and April 16, 1997, respectively.
"L/C Commitment" means $25,000,000, as such amount may be reduced
pursuant to Section 5.7 hereof.
"L/C Documents" means the Letters of Credit, any draft or other
document presented in connection with a drawing thereunder, the Applications and
this Agreement.
"L/C Obligations" means the aggregate undrawn face amounts of all
outstanding Letters of Credit and all unpaid Reimbursement Obligations.
"Lending Office" is defined in Section 14.4.
"Letter of Credit" is defined in Section 1.2(a) hereof.
"Level I" means the Borrower's Leverage Ratio as of the end of the
Borrower's fiscal quarter ending immediately prior to the most recent Pricing
Date is less than 2.00 to 1.00.
"Level II" means the Borrower's Leverage Ratio as of the end of the
Borrower's fiscal quarter ending immediately prior to the most recent Pricing
Date is greater than or equal to 2.00 to 1.00 and less than 3.00 to 1.00.
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"Level III" means the Borrower's Leverage Ratio as of the end of the
Borrower's fiscal quarter ending immediately prior to the most recent Pricing
Date is greater than or equal to 3.00 to 1.00 and less than 4.00 to 1.00.
"Level IV" means the Borrower's Leverage Ratio as of the end of the
Borrower's fiscal quarter ending immediately prior to the most recent Pricing
Date is greater than or equal to 4.00 to 1.00 and less than 5.00 to 1.00, or
that Level IV is deemed to exist as set forth below in the definition of Pricing
Date.
"Leverage Ratio" means, as of any time the same is to be determined,
the ratio of (a) Consolidated Debt at such time to (b) Consolidated EBITDA for
the four then most recently completed fiscal quarters of the Company.
"LIBOR" is defined in Section 2.1(b) hereof.
"Lien" of a Person means any security interest, mortgage, pledge, lien,
claim, charge, encumbrance, title retention agreement, lessor's interest under a
capitalized lease or analogous instrument, in, of or on any property of such
Person.
"Loan" means and includes Committed Loans, Domestic Swing Line Loans
and Multicurrency Swing Line Loans, and each of them singly, and the term "type"
of Loan refers to its status as a Committed Loan, Domestic Swing Line Loan or
Multicurrency Swing Line Loan or, if a Committed Loan, to its status as a
Domestic Rate Loan or Eurocurrency Loan.
"Loan Documents" means the Credit Documents, the Subsidiary Guarantee
Agreements, the Notes and the Collateral Documents.
"Maryland IRB Indenture" is defined in Section 1.2(a) hereof.
"Material Adverse Effect" means (i) any materially adverse change in
the business, operations, financial condition or Properties of the Company and
its Subsidiaries, taken as a whole, or (ii) any fact or circumstance which
singly or in the aggregate causes a materially adverse change described in
clause (i) with respect to the Company and its Subsidiaries, taken as a whole,
or (iii) the inability of any Borrower or Guarantor to perform in any material
respect its obligations under the Loan Documents or the inability of any of the
Banks or any Agent to enforce in any material respect their rights under the
Loan Documents or (iv) a material adverse effect upon (A) the legality,
validity, binding effect or enforceability against the Company or any Subsidiary
of any Loan Document or the rights and remedies of the Administrative Agent and
the Banks thereunder or (B) the perfection or priority of any Lien granted under
any Collateral Document on Collateral aggregating in excess of $2,500,000
(excluding Property on which Section 7.1 hereof does not require any such Lien
be granted or perfected).
"Material Plan" is defined in Section 13.1(i) hereof.
"Minority Foreign Investment" means any corporation or other Person,
organized under the laws of a jurisdiction outside of the United States of
America or any State thereof, of which no more than fifty percent (50%) of the
outstanding stock or comparable equity interests having
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ordinary voting power for the election of the Board of Directors of such
corporation or similar governing body in the case of a non-corporation
(irrespective of whether or not, at the time, stock or other equity interests of
any other class or classes of such corporation or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned by the Company or by one or more of its
Domestic Subsidiaries.
"Mortgages" means those certain mortgages dated as of even date
herewith between the Company or a Domestic Subsidiary and the Administrative
Agent relating to certain real properties located in the locations specified on
Schedule 11.1(j) hereto, as the same may be amended, modified, supplemented or
restated from time to time.
"Multicurrency Swing Line Bank" is defined in Section 4.1 hereof.
"Multicurrency Swing Line Commitment" means $35,000,000, as such amount
may be reduced pursuant to Section 5.7 hereof.
"Multicurrency Swing Line Loan" is defined in Section 4.1 hereof.
"Multicurrency Swing Line Note" is defined in Section 5.6(c) hereof.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Company or any member
of the Controlled Group is a party to which more than one employer is obligated
to make contributions.
"Net Cash Proceeds" means, as applicable, (a) with respect to any
Disposition by a Person, cash and cash equivalent proceeds received by or for
such Person's account, net of (i) reasonable direct costs relating to such
Disposition and reasonable cash reserves in accordance with GAAP for liabilities
of the seller associated with such Disposition, (ii) taxes paid or payable by
such Person as a direct result of such Disposition, and (iii) amounts required
to be applied to repay principal of, premium, if any, and interest on any
Indebtedness secured by a Lien on the Property (or portion thereof) sold or
otherwise disposed of (other than the Obligations) which is required to be and
is repaid in connection with such Disposition (or in the case of any Foreign
Subsidiary's Property, any Indebtedness representing credit extended in reliance
on such Property and the terms of which require prepayment out of the proceeds
of such Disposition with respect to such Property); (b) with respect to any
Event of Loss of a Person, cash and cash equivalent proceeds received by or for
such Person's account (whether as a result of payments made under any applicable
casualty insurance policy therefor or in connection with condemnation
proceedings or otherwise), net of (i) reasonable direct costs incurred in
connection with such Event of Loss and reasonable reserves associated therewith
in accordance with GAAP and (ii) amounts required to be applied to repay
principal of, premium, if any, and interest on any Indebtedness secured by a
Lien on the Property (or portion thereof) so damaged or taken (other than the
Obligations) which is required to be and is repaid in connection with such Event
of Loss (or in the case of any Foreign Subsidiary's Property, any Indebtedness
representing credit extended in reliance on such Property and the terms of which
require prepayment out of the proceeds of such Event of Loss with respect to
such Property); and (c) with respect to any offering of equity securities of a
Person or the issuance of any Indebtedness by a Person, cash and cash equivalent
proceeds received by or for such Person's account, net of reasonable
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underwriting, discounts and commissions and other reasonable costs directly
incurred and payable as a result thereof.
"1998 Senior Subordinated Debt" means the up to $225,000,000 in
aggregate principal amount of 9-3/8% Senior Subordinated Notes Due 2008 issued
or to be issued by the Company under that certain Indenture dated as of May 21,
1998 between the Company, certain of its Subsidiaries party thereto and First
Union National Bank, as Trustee, as the same has been or may from time to time
be amended, modified, restated or supplemented.
"Non-Voting Equity" shall mean issued and outstanding shares of each
class of capital stock or other ownership interest not entitled to vote (within
the meaning of Tres. Reg., Section 1.956-2(c)(2).
"Note" means and includes the Committed Loan Notes, the Domestic Swing
Line Note and Multicurrency Swing Line Note and each individually, unless the
context in which such term is used shall otherwise require.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans and L/C Obligations, all accrued and unpaid facility fees
and letter of credit fees and all other payment obligations of any one or more
of the Borrowers to any one or more of the Agents or Banks in each case arising
under any one or more of the Loan Documents.
"Original Dollar Amount" means the amount of any Obligation denominated
in U.S. Dollars and, in relation to any Loan denominated in an Alternative
Currency, the U.S. Dollar Equivalent of such Loan on the first day of its
Interest Period and, in relation to any L/C Obligation denominated in an
Alternative Currency, the U.S. Dollar Equivalent of such L/C Obligation on the
day such amount is being computed.
"Overnight Foreign Currency Rate" shall mean for any amount payable in
a currency other than U.S. Dollars, the rate of interest per annum as determined
by the Administrative Agent (or in the case of any amount payable on a
Multicurrency Swing Line Loan, the Multicurrency Swing Line Bank) (rounded
upwards, if necessary, to the nearest whole multiple of one-hundredth of one
percent (1/100 of 1%)) at which overnight or weekend deposits of the appropriate
currency (or, if such amount due remains unpaid more than three Business Days,
then for such other period of time not longer than six months as the
Administrative Agent (or if applicable as aforesaid, the Multicurrency Swing
Line Bank) may elect in its absolute discretion) for delivery in immediately
available and freely transferable funds would be offered by the Administrative
Agent (or if applicable as aforesaid, the Multicurrency Swing Line Bank) to
major banks in the interbank market upon request of such major banks for the
applicable period as determined above and in an amount comparable to the unpaid
principal amount of the related Loan or Reimbursement Obligation (or, if the
Administrative Agent (or if applicable as aforesaid, the Multicurrency Swing
Line Bank) is not placing deposits in such currency in the interbank market,
then the cost of funds to the Administrative Agent or Multicurrency Swing Line
Bank, as applicable, in such currency for such period).
"Participating Bank" is defined in Sections 1.2(f), 3.5 and 4.3 hereof.
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"PBGC" means the Pension Benefit Guaranty Corporation and its
successors and assigns.
"Percentage" means, for each Bank, the percentage of the Revolving
Credit Commitments represented by such Bank's Revolving Credit Commitment or, if
the Revolving Credit Commitments have been terminated, the percentage held by
such Bank (including through participation interests as a Participating Bank in
Swing Line Loans and Reimbursement Obligations) of the aggregate principal
amount of all outstanding Committed Loans, Swing Line Loans and L/C Obligations.
"Permitted Future Foreign Subsidiary Support" means (without
duplication) (i) Investments (as defined in Section 12.14) in Foreign
Subsidiaries and Minority Foreign Investments and (ii) Indebtedness representing
credit and other financial accommodations extended to Foreign Subsidiaries and
Minority Foreign Investments and permitted by Section 12.22(f)(ii) hereof, which
Investments and Indebtedness do not in the aggregate exceed $50,000,000
outstanding from and after September 30, 1999, and consist solely of the
following:
(i) not more than $15,000,000 in an aggregate amount on a
cumulative basis from and after September 30, 1999 to finance capital
expenditures of such Foreign Subsidiaries and Minority Foreign
Investments;
(ii) not more than $14,000,000 in an aggregate amount on a
cumulative basis from and after September 30, 1999 to pay (x) cash
charges of Foreign Subsidiaries constituting Fiscal Year 1999/2000
Charges or (y) tax liabilities associated with the Company's Mexican
operations; and
(iii) not more than $21,000,000 in an aggregate outstanding
principal amount from and after September 30, 1999 to finance ordinary
working capital needs (including maintenance of reasonable cash
balances) of such Foreign Subsidiaries and Minority Foreign
Investments.
"Permitted Liquid Investments" means investments that would reasonably
be considered cash equivalents or other short-term, high quality, liquid
investments.
"Person" means any corporation, natural person, firm, joint venture,
partnership, limited liability company, trust, unincorporated organization,
enterprise, government or any department or agency of any government.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Internal Revenue Code as to which the Company or any Subsidiary may have any
liability.
"Plastic" means Plastic Binding Corporation, an Illinois corporation.
"Pledge Agreements" means (i) that certain Pledge Agreement dated as of
even date herewith and (ii) each other pledge agreement (or analogous
instrument), in each case among the
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Company and certain of its Subsidiaries and the Administrative Agent, as the
same may be amended, modified, supplemented or restated from time to time.
"Pound Sterling" means the lawful currency of the United Kingdom.
"Previous Credit Agreement" is defined in the second recital hereof.
"Pricing Date" means, for any fiscal quarter of the Company ended after
the date hereof (except for the last such fiscal quarter in each fiscal year of
the Company), the sixtieth day after the last day of such fiscal quarter and for
the last such fiscal quarter, the ninetieth day after the last day of such
fiscal quarter. The Domestic Rate Margin, the Eurocurrency Margin and the
Facility Fee Rate established on a Pricing Date shall remain in effect until the
next Pricing Date (and for the next five (5) Business Days in the event set
forth in the immediately following sentence). If the Company has not delivered a
Compliance Certificate by the fifth Business Day following the date (the "Due
Date") on which such Compliance Certificate was required to be delivered under
Section 12.6(b) hereof, then until a Compliance Certificate is delivered before
the next Pricing Date, from (but not including) such Due Date, (i) the Domestic
Rate Margin shall be deemed equal to 1.00% if and so long as the Grid Pricing
Condition has not been satisfied and 0% if and so long as the Grid Pricing
Condition has been satisfied, (ii) the Eurocurrency Margin shall be deemed equal
to 2.500% if and so long as the Grid Pricing Condition has not been satisfied
and 1.500% if and so long as the Grid Pricing Condition has been satisfied and
(iii) the Facility Fee Rate shall be deemed equal to 0.50%. If the Company
subsequently delivers such a Compliance Certificate before the next Pricing
Date, the Domestic Rate Margin, the Eurocurrency Margin and the Facility Fee
Rate established by such late-delivered Compliance Certificate shall take effect
from the date of delivery until the next Pricing Date. In all other
circumstances, the Domestic Rate Margin, the Eurocurrency Margin and the
Facility Fee Rate established by a Compliance Certificate shall be in effect
from the Pricing Date that coincides with the deadline for delivery of the
corresponding Compliance Certificate until the next Pricing Date.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible, whether now owned or
hereafter acquired.
"Quartet" means Quartet Manufacturing Company, a Delaware corporation.
"Quartet Acquisition" shall mean the Acquisition by the Company of
certain assets of Quartet Manufacturing Company, a Delaware corporation,
pursuant to the Quartet Purchase Agreement.
"Quartet Purchase Agreement" shall mean the certain Asset Purchase
Agreement dated as of November 12, 1996 between the Company and Quartet relating
to the Quartet Acquisition.
"Refunding Borrowing" is defined in Section 2.2(d) hereof.
"Reimbursement Obligation" is defined in Section 1.2(e) hereof.
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"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such Section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation has waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event (provided that a failure to meet the minimum
funding standard of Section 412 of the Code or of Section 302 of ERISA shall be
a reportable event regardless of the issuance of any such waivers in accordance
with Section 412(d) of the Code).
"Required Banks" means, as of the date of determination thereof, those
Banks holding at least 60% of the Percentages.
"Responsible Officer" means the individuals (if any) holding the
following offices in the Company or performing the following functions for the
Company: chief executive officer, chief financial officer, chief operating
officer, treasurer, assistant treasurer and general counsel.
"Restricted Payments" is defined in Section 12.20 hereof.
"Revolving Credit Commitment" means, as of any time, for each Bank, an
amount equal to such Bank's Percentage of the Revolving Credit Commitments then
in effect.
"Revolving Credit Commitments" means the aggregate of the Revolving
Credit Commitments for all the Banks (taken together) which shall, subject to
Section 5.7 hereof, be in the amount of $410,000,000.
"Revolving Credit Termination Date" means January 13, 2002.
"Security Agreement" means that certain Security Agreement dated as of
even date herewith among the Company and certain of its Domestic Subsidiaries
and the Administrative Agent, as the same may be amended, modified, supplemented
or restated from time to time.
"Security Agreement Re: Intellectual Property" means that certain
Security Agreement Re: Intellectual Property dated as of even date herewith
among the Company, certain of its Domestic Subsidiaries and the Administrative
Agent, as the same may be amended, modified, supplemented or restated from time
to time.
"Senior Consolidated Debt" means all Debt (other than Subordinated
Debt) of the Company and its Subsidiaries determined (without duplication) on a
consolidated basis in accordance with GAAP; provided, however, that it is
understood that to avoid duplication in calculating Senior Consolidated Debt,
only Guaranties of third parties' obligations and of other obligations not
otherwise included in the Debt of the Company or of a consolidated Subsidiary
shall be included; provided, further, however, that Senior Consolidated Debt
shall also not include any guarantees to the extent and only to the extent the
obligations covered by such guarantees are secured by Permitted Liquid
Investments segregated and held expressly for that purpose by or on behalf of
the party to whom such obligations are owed.
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"Senior Leverage Ratio" means, as of any time the same is to be
determined, the ratio of Senior Consolidated Debt at such time to Consolidated
EBITDA for the four most recently completed fiscal quarters of the Company.
"Set-off" is defined in Section 17.7 hereof.
"Significant Subsidiary" means (i) each Subsidiary except a Subsidiary
that neither (a) has (together with its subsidiaries) consolidated total assets
that constitute more than 3% of Consolidated Total Assets as of the close of the
current or any subsequent fiscal year of the Company for which audited financial
statements are available, nor (b) has (together with its subsidiaries)
consolidated gross sales that constitute more than 3% of consolidated gross
sales of the Company and its Subsidiaries as of the close of the current or any
subsequent fiscal year of the Company for which audited financial statements are
available, (ii) each Borrowing Subsidiary and (iii) each Guarantor (other than
the Company). Assets and sales of Foreign Subsidiaries shall be converted into
U.S. Dollars at the U.S. Dollar Equivalent as of the date of the most recent
audited financial statements furnished to the Banks pursuant to Section 12.6(a)
hereof. Once a Subsidiary is a Significant Subsidiary, it shall remain a
Significant Subsidiary unless and until the Required Banks agree otherwise.
"Single Employer Plan" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of the
Controlled Group.
"Spanish Pesetas" means the lawful currency of Spain.
"Standby Letter of Credit" means a Letter of Credit that is not a
Commercial Letter of Credit.
"Subordinated Debt" means, as of any time the same is to be determined,
Debt of the Company or any Subsidiary subordinated in right of payment to the
Obligations, pursuant to documentation containing interest rates, payment terms,
maturities, amortization schedules, covenants, defaults, remedies, subordination
provisions and other material terms in form and substance reasonably
satisfactory to the Required Banks.
"Subsidiary" means, as to the Company, any corporation or other Person
of which more than fifty percent (50%) of the outstanding stock or comparable
equity interests having ordinary voting power for the election of the Board of
Directors of such corporation or similar governing body in the case of a
non-corporation (irrespective of whether or not, at the time, stock or other
equity interests of any other class or classes of such corporation or other
entity shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned by the Company or by
one or more of its Subsidiaries.
"Subsidiary Guarantee Agreement" means (i) for each Subsidiary which is
a signatory hereto, this Agreement and (ii) for each other Subsidiary, a letter
to the Administrative Agent in the form of Exhibit J hereto executed by such
Subsidiary whereby it acknowledges it is party hereto as a Guarantor under
Section 16 hereof.
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"Swing Line Banks" means the Domestic Swing Line Bank and the
Multicurrency Swing Line Bank, and the term "Swing Line Bank" shall mean each of
the Swing Line Banks individually, unless the context in which such term is used
shall otherwise require.
"Swing Line Loans" means the Domestic Swing Line Loans and the
Multicurrency Swing Line Loans, and the term "Swing Line Loan" shall mean each
of the Swing Line Loans individually, unless the context in which such term is
used shall otherwise require.
"Swiss Francs" means the lawful currency of Switzerland.
"TARGET Day" means any day on which the Trans-European Automated
Realtime Gross Settlement Express Transfer system is operating.
"Total Consideration" means the total amount (but without duplication)
of (a) cash paid in connection with any Acquisition, plus (b) indebtedness
payable to the seller in connection with such Acquisition, plus (c) the fair
market value of any equity securities, including any warrants or options
therefor, delivered in connection with any Acquisition (other than new equity
securities issued by the Company or any of its Subsidiaries), plus (d) the
present value of payments due pursuant to covenants not to compete entered into
in connection with such Acquisition or other future payments which are required
to be made over a period of time and are not contingent upon the Company or any
of its Subsidiaries meeting financial performance objectives (discounted at the
Domestic Rate), but only to the extent not included in clause (a), (b), or (c)
above, plus (e) the amount of indebtedness assumed in connection with such
Acquisition.
"Treaty on European Union" means the Treaty of Rome of March 25, 1957,
as amended by the Single European Act of 1986 and the Maastricht Treaty (which
was signed at Maastricht on February 7, 1992, and came into force on November 1,
1993, as amended from time to time).
"Unfunded Vested Liabilities" means, (i) in the case of Single Employer
Plans, the amount (if any) by which the present value of all vested
nonforfeitable benefits under such Plan exceeds the fair market value of all
Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, and (ii) in the case of Multiemployer
Plans, the withdrawal liability of the Company or other member of the Controlled
Group under such Multiemployer Plan.
"Unused Revolving Credit Commitments" means as of any time, the
difference between (x) the Revolving Credit Commitments then in effect and (y)
the greater of the (i) Original Dollar Amount and (ii) U.S. Dollar Equivalent,
as the case may be, of the aggregate principal amount of all Loans (whether
Committed Loans or Swing Line Loans) and L/C Obligations then outstanding.
"U.S. Dollars" and "$" each means the lawful currency of the United
States of America.
"U.S. Dollar Equivalent" means the amount of U.S. Dollars which would
be realized by converting a foreign currency into U.S. Dollars in the spot
market at the exchange rate quoted by the Administrative Agent (or the
Multicurrency Swing Line Bank, for the sole purpose of
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determining the amount of Multicurrency Swing Line Loans or Foreign Credit L/C
Obligations if such determination would result in a larger amount and the
Multicurrency Swing Line Bank so informs the Administrative Agent) at
approximately 11:00 a.m. (London time) two Business Days prior to the date on
which a computation thereof is required to be made, to major banks in the
interbank foreign exchange market for the purchase of U.S. Dollars with such
foreign currency.
"Voting Equity" shall mean the issued and outstanding shares of each
class of capital stock or other ownership interests entitled to vote (within the
meaning of Treas. Reg. Section 1.956-2(c)(2).
"Voting Stock" of any Person means capital stock of any class or
classes or other equity interests (however designated) having ordinary voting
power for the election of directors or similar governing body of such Person,
other than stock or other equity interests having such power only by reason of
the happening of a contingency.
"Wholly-Owned" when used in connection with any Subsidiary of the
Company means a Subsidiary of which all of the issued and outstanding shares of
stock or other equity interests (other than directors' qualifying shares as
required by law) shall be owned by the Company and/or one or more of its
Wholly-Owned Subsidiaries.
"Year 2000 Problem" means any significant risk that computer hardware,
software, or equipment containing embedded microchips essential to the business
or operations of the Company or any of its Subsidiaries will not, in the case of
dates or time periods occurring after December 31, 1999, function at least as
efficiently and reliably as in the case of times or time periods occurring
before January 1, 2000, including the making of accurate leap year calculations.
Section 8.2. Interpretation. The foregoing definitions shall be equally
applicable to both the singular and plural forms of the terms defined. All
references to times of day herein shall be references to Chicago, Illinois time
unless otherwise specifically provided. Where the character or amount of any
asset or liability or item of income or expense is required to be determined or
any consolidation or other accounting computation is required to be made for the
purposes of this Agreement, the same shall be done in accordance with GAAP
except where such principles are inconsistent with the specific provisions of
this Agreement.
Section 8.3. Change in Accounting Principles. If, after the date of
this Agreement, there shall occur any change in GAAP from those used in the
preparation of the financial statements referred to in Section 9.4 hereof and
such change shall result in a change in the method of calculation of any
financial covenant, standard or term found in this Agreement, either the Company
or the Required Banks may by notice to the Banks and the Company, respectively,
require that the Banks and the Company negotiate in good faith to amend such
covenant, standard and term so as equitably to reflect such change in accounting
principles, with the desired result being that the criteria for evaluating the
financial condition of the Company and its Subsidiaries shall be the same as if
such change had not been made. No delay by the Company or the Required Banks in
requiring such negotiation shall limit their right to so require such a
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negotiation at any time after such a change in accounting principles. Until any
such covenant, standard or term is amended in accordance with this Section 8.3,
financial covenants shall be computed and determined in accordance with GAAP in
effect prior to such change in accounting principles. Without limiting the
generality of the foregoing, the Company shall neither be deemed to be in
compliance with any financial covenant hereunder nor out of compliance with any
financial covenant hereunder if such state of compliance or noncompliance, as
the case may be, would not exist but for the occurrence of a change in
accounting principles after the date hereof.
SECTION 9. REPRESENTATIONS AND WARRANTIES OF COMPANY.
The Company hereby represents and warrants to each Bank as to itself
and, where the following representations and warranties apply to Subsidiaries,
as to each of its Subsidiaries, as follows:
Section 9.1. Corporate Organization and Authority. The Company is duly
organized and existing in good standing under the laws of the State of Delaware;
has all necessary corporate power to carry on its present business; and is duly
licensed or qualified and in good standing in each jurisdiction in which the
nature of the business transacted by it or the nature of the Property owned or
leased by it makes such licensing, qualification or good standing necessary and
in which the failure to be so licensed, qualified or in good standing would have
a Material Adverse Effect.
Section 9.2. Subsidiaries. Schedule 9.2 (as updated from time to time
pursuant to Section 12.6(a)) hereto identifies, as of the date of the most
recent such Schedule delivered to the Administrative Agent, each Subsidiary, the
jurisdiction of its incorporation, the percentage of issued and outstanding
shares of each class of its capital stock owned by the Company and the
Subsidiaries and, if such percentage is not 100% (excluding directors'
qualifying shares as required by law), a description of each class of its
authorized capital stock and the number of shares of each class issued and
outstanding. Each Subsidiary is duly incorporated and existing in good standing
as a corporation under the laws of the jurisdiction of its incorporation, has
all necessary corporate power to carry on its present business, and is duly
licensed or qualified and in good standing in each jurisdiction in which the
nature of the business transacted by it or the nature of the Property owned or
leased by it makes such licensing or qualification necessary and in which the
failure to be so licensed or qualified would have a Material Adverse Effect. All
of the issued and outstanding shares of capital stock of each Subsidiary are
validly issued and outstanding and fully paid and nonassessable except as set
forth on Schedule 9.2 hereto. All such shares owned by the Company are owned
beneficially, and of record, free of any Lien other than the Liens granted in
favor of the Administrative Agent pursuant to the Collateral Documents. Each
Subsidiary that is a Significant Subsidiary and each Subsidiary which is a First
Tier Foreign Subsidiary is so noted in each case on Schedule 9.2 hereto. Each
Subsidiary is a Guarantor except to the extent (i) Section 7.5(b) does not yet
require such Subsidiary be a Guarantor, (ii) in the case of a Foreign
Subsidiary, Section 7.4 does not yet require such Foreign Subsidiary be a
Guarantor and (iii) in the case of those Subsidiaries established or acquired
after the date hereof, the Required Banks have agreed pursuant to Section 7.5(b)
hereof that the same need not be Guarantors.
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Section 9.3. Corporate Authority and Validity of Obligations. The
Company has full right and authority to enter into this Agreement and the other
Loan Documents to which it is a party, to grant to the Administrative Agent the
Liens described in the Collateral Documents executed by the Company, to make the
borrowings herein provided for, to issue its Notes in evidence thereof, to apply
for the issuance of the Letters of Credit, and to perform all of its obligations
under the Loan Documents, to which it is a party. Each Guarantor has full right
and authority to enter into this Agreement as a signatory hereto or pursuant to
a Subsidiary Guarantee Agreement and to perform all of its obligations hereunder
or thereunder. Each Loan Document to which the Company or any Guarantor is a
party has been duly authorized, executed and delivered by the Company or such
Guarantor, as the case may be, and constitutes a valid and binding obligation of
the Company or such Guarantor, enforceable in accordance with its terms, subject
to general principles of equity and bankruptcy, reorganization, insolvency and
similar laws of general application to enforcement of creditors' rights. No Loan
Document, nor the performance or observance by the Company or any Guarantor of
any of the matters or things therein provided for, contravenes any provision of
law or any charter or by-law provision of the Company or any Guarantor or any
Contractual Obligation of or affecting the Company or any Guarantor or any of
their respective Properties which if breached would reasonably be expected to
have a Material Adverse Effect or results in or requires the creation or
imposition of any Lien on any of the Properties or revenues of the Company or
any Subsidiary other than the Liens granted in favor of the Administrative Agent
pursuant to the Collateral Documents.
Section 9.4. Financial Statements. All audited financial statements
heretofore delivered to the Banks showing historical performance of the Company
for each of the Company's fiscal years ending on or before December 31, 1998,
and the unaudited interim financial statements heretofore delivered to the Banks
for the three fiscal quarters ending September 30, 1999, in each case, have been
prepared in accordance with generally accepted accounting principles applied on
a basis consistent, except as otherwise noted therein, with that of the previous
fiscal year. Each of such financial statements fairly presents on a consolidated
basis the financial condition of the Company and its Subsidiaries as of the
dates thereof and the results of operations for the periods covered thereby. The
Company and its Subsidiaries have no material contingent liabilities other than
those disclosed in such financial statements referred to in this Section 9.4 or
in comments or footnotes thereto, or in any report supplementary thereto,
heretofore furnished to the Banks. The Company and its Subsidiaries have no
material Foreign Investments other than those disclosed in the most recent
Foreign Investment List furnished to the Banks. Since September 30, 1999, there
has occurred no event which has had or would reasonably be expected to have a
Material Adverse Effect.
Section 9.5. No Litigation; No Labor Controversies. (a) There is no
litigation or governmental proceeding pending, or to the knowledge of the
Company or any Subsidiary threatened, against the Company or any Subsidiary
which would reasonably be expected to be adversely determined and which, if
adversely determined, would have a Material Adverse Effect.
(b) There are no labor controversies pending or, to the knowledge of
the Company or any Subsidiary, threatened against the Company or any Subsidiary
which would be reasonably expected to have a Material Adverse Effect.
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Section 9.6. Taxes. The Company and its Subsidiaries have filed all
United States federal and state income tax returns, and all other material tax
returns, required to be filed and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company or any Subsidiary,
except (i) such taxes, if any, as are being contested in good faith and for
which adequate reserves have been provided and (ii) the taxes listed on Schedule
9.6 hereto. The United States income tax returns of the Company and the
Subsidiaries, on a consolidated basis, have been audited by the Internal Revenue
Service through the fiscal year ended December 31, 1990. No tax liens have been
filed and no claims are being asserted concerning any such taxes, which liens or
claims are material to the financial condition of the Company and its
Subsidiaries on a consolidated basis taken as a whole. To the Company's
knowledge, the charges, accruals and reserves on the books of the Company and
its Subsidiaries for any taxes or other governmental charges are adequate.
Section 9.7. Approvals. No authorization, consent, license, exemption,
filing or registration with any court or governmental department, agency or
instrumentality, nor any approval or consent of the stockholders of the Company
or any Subsidiary or from any other Person, in either case which has not yet
been made or obtained, is necessary for the valid execution, delivery or
performance by the Company or any Subsidiary of any Loan Document to which it is
a party.
Section 9.8. ERISA. Except as set forth on Schedule 9.8 hereto, (i)
each Plan complies in all material respects with all applicable requirements of
law and regulations to the extent noncompliance therewith would reasonably be
expected to create a liability to the Company or any Subsidiary aggregating in
excess of $10,000,000, (ii) no Reportable Event has occurred with respect to any
Plan, (iii) neither the Company nor any of its Subsidiaries has withdrawn from
any Plan or initiated steps to do so, and (iv) no steps have been taken to
terminate any Plan except as disclosed in writing by the Company to the Banks.
Section 9.9. Government Regulation. Neither the Company nor any
Subsidiary is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
Section 9.10. Margin Stock. Neither the Company nor any Subsidiary is
engaged principally, or as one of its primary activities, in the business of
extending credit for the purpose of purchasing or carrying margin stock ("margin
stock" to have the same meaning herein as in Regulation U of the Board of
Governors of the Federal Reserve System). The Company will not use the proceeds
of any Loan or Letter of Credit in a manner that violates any provision of
Regulation U or X of the Board of Governors of the Federal Reserve System.
Section 9.11. Licenses and Authorizations; Compliance with Environmental
and Health Laws. (a) The Company and each of its Subsidiaries has all necessary
licenses, permits and governmental authorizations to own and operate its
Properties and to carry on its business as currently conducted and contemplated,
except to the extent the failure to have such licenses, permits or
authorizations would not have a Material Adverse Effect.
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(b) To the Company's knowledge, the business and operations of the
Company and each Subsidiary comply in all respects with all applicable
Environmental and Health Laws, except where the failure to so comply would not
reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any Subsidiary has given, nor is it
required to give, nor has it received, any notice, letter, citation, order,
warning, complaint, inquiry, claim or demand to or from any governmental entity
or in connection with any court proceeding which would reasonably be expected to
result in a Material Adverse Effect claiming that: (i) the Company or any
Subsidiary has violated, or is about to violate, any Environmental and Health
Law; (ii) there has been a release, or there is a threat of release, of
Hazardous Materials from the Company's or any Subsidiary's Property, facilities,
equipment or vehicles; (iii) the Company or any Subsidiary may be or is liable,
in whole or in part, for the costs of cleaning up, remediating or responding to
a release of Hazardous Materials; or (iv) any of the Company's or any
Subsidiary's property or assets are subject to a Lien in favor of any
governmental entity for any liability, costs or damages, under any Environmental
and Health Law arising from, or costs incurred by such governmental entity in
response to, a release of Hazardous Materials.
Section 9.12. Ownership of Property; Liens. Schedule 9.12 lists all
principal real property locations used as of the date hereof by the Company or
any Subsidiary in the conduct of their respective businesses. The Company and
each Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all such real property, as specified in Schedule 9.12,
and good title to or valid leasehold interests in all its other Property.
Section 9.13. No Burdensome Restrictions; Compliance with Agreements.
Neither the Company nor any Subsidiary is (a) party or subject to any law,
regulation, rule or order, or any Contractual Obligation that has a Material
Adverse Effect or (b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any agreement to
which it is a party, which default has a Material Adverse Effect.
Section 9.14. Full Disclosure. All information heretofore furnished by
the Company or any Subsidiary to the Administrative Agent or any Bank for
purposes of or in connection with the Loan Documents or any transaction
contemplated thereby is, and all such information hereafter furnished by the
Company or any Subsidiary to the Administrative Agent or any Bank will be, true
and accurate in all material respects and not misleading on the date as of which
such information is stated or certified. Notwithstanding the foregoing, the
Administrative Agent and Banks acknowledge that as to any projections furnished
to them, the Company only represents that the same were prepared on the basis of
information and estimates the Company believed to be reasonable.
Section 9.15. Year 2000 Compliance. The Company is conducting a
comprehensive review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including, to the extent the Company
deems appropriate, those areas affected by suppliers, vendors and customers)
reasonably expected to be affected by any defect in computer software, data
bases, hardware, controls and peripherals related to the occurrence of the year
2000 or the use at any time of any date which is before, on and after December
31, 1999, in connection
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therewith. Based on the foregoing review, assessment and inquiry, the Company
believes that no such defect could reasonably be expected to have a Material
Adverse Effect.
SECTION 10. REPRESENTATIONS AND WARRANTIES OF BORROWING SUBSIDIARIES.
By its execution and delivery of its Election to Participate, each
Borrowing Subsidiary severally represents and warrants to each Bank as to itself
as follows:
Section 10.1. Corporate Organization and Authority. Such Borrowing
Subsidiary is duly organized and existing in good standing under the laws of the
jurisdiction of its incorporation; has all necessary corporate power to carry on
its present business; and is duly licensed or qualified and in good standing in
each jurisdiction in which the nature of the business transacted by it or the
nature of the Property owned or leased by it makes such licensing, qualification
or good standing necessary and in which the failure to be so licensed, qualified
or in good standing would have a Material Adverse Effect.
Section 10.2. Corporate Authority and Validity of Obligations. Such
Borrowing Subsidiary has full right and authority to enter into this Agreement,
its Election to Participate and the other Loan Documents to which it is a party,
to grant to the Administrative Agent the Liens described in the Collateral
Documents executed by such Borrowing Subsidiary, to make the borrowings herein
provided for, to issue its Notes in evidence thereof, to apply for the issuance
of the Letters of Credit, and to perform all of its obligations under the Loan
Documents to which it is a party. Each Loan Document to which such Borrowing
Subsidiary is a party has been duly authorized, executed and delivered by such
Borrowing Subsidiary and constitutes a valid and binding obligation of such
Borrowing Subsidiary enforceable in accordance with its terms, subject to
general principles of equity and bankruptcy, reorganization, insolvency and
similar laws of general application to enforcement of creditors' rights. No Loan
Document, nor the performance or observance by such Borrowing Subsidiary of any
of the matters or things therein provided for, contravenes any provision of law
or of any charter or by-law (or any comparable constituent document) of such
Borrowing Subsidiary or any Contractual Obligation of or affecting the Company
or such Borrowing Subsidiary or any of their respective Properties which if
breached would reasonably be expected to have a Material Adverse Effect or
results in or requires the creation or imposition of any Lien on any of the
Properties or revenues of the Company or any Borrowing Subsidiary other than
Liens granted in favor of the Administrative Agent pursuant to the Collateral
Documents.
SECTION 11. CONDITIONS PRECEDENT.
The obligation of each Bank to make any Loan hereunder, or of an
Issuing Agent to issue, extend the expiration date (including by not giving
notice of non-renewal) of or increase the amount of any Letter of Credit, shall
be subject to the following conditions precedent:
Section 11.1. Initial Borrowing. On or prior to the Effective Date:
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(a) the Administrative Agent shall have received for each
Bank the favorable written opinions of (i) Steven Rubin, general
counsel to the Company and each Domestic Subsidiary, (ii) Sidley &
Austin, outside counsel to the Company and each Domestic Subsidiary, in
substantially the forms of Exhibits E-1 and E-2, respectively, hereto,
and otherwise in form and substance satisfactory to the Required Banks,
(iii) counsel for each Borrowing Subsidiary signatory hereto acceptable
to the Administrative Agent, substantially in the form of Exhibit I
hereto (with appropriate assumptions, exceptions and qualifications
reasonably acceptable to the Administrative Agent reflecting the laws
of the relevant jurisdiction) and covering such additional matters as
the Required Banks may reasonably request, and (iv) to the extent not
otherwise waived in writing by the Administrative Agent, local and
other counsel to the Company and each Subsidiary party to the Pledge
Agreements reasonably satisfactory to the Administrative Agent and
which opinions shall cover such matters incident to the transactions
contemplated herein and in the Pledge Agreements as the Administrative
Agent may request and shall be in form and substance reasonably
satisfactory to the Administrative Agent;
(b) the Administrative Agent shall have received for each
Bank (i) certified copies of resolutions of the Board of Directors (or
comparable authorizing documents) of each Borrower authorizing the
execution, delivery and performance of this Agreement and such
Borrower's Notes, indicating the authorized signers of this Agreement
and such Borrower's Notes and all other documents relating thereto and
the specimen signatures of such signers and (ii) copies of such
Borrower's Certificate of Incorporation and by-laws (or other
comparable constituent documents) certified by the Secretary or other
appropriate officer of such Borrower together with (if available in the
relevant jurisdiction) a certificate of good standing (or similar
document) certified by the appropriate governmental officer in the
jurisdiction of such Borrower's organization;
(c) the Administrative Agent shall have received for each
Bank (i) certified copies of resolutions of the Board of Directors of
each Domestic Subsidiary authorizing its execution, delivery and
performance of the Loan Documents to which it is a party, indicating
the authorized signers of the Loan Documents to which it is a party and
all other documents relating thereto and the specimen signatures of
such signers and (ii) copies of such Domestic Subsidiary's Certificate
or Articles of Incorporation and by-laws (or analogous organizational
documents) certified by the Secretary or other appropriate officer of
such Domestic Subsidiary together with, to the extent customarily
issued, a certificate of good standing certified by the appropriate
governmental officer in the jurisdiction of such Domestic Subsidiary's
organization;
(d) the Administrative Agent shall have received for each
Bank such Bank's duly executed Committed Loan Note of each Borrower
dated the date hereof and otherwise in compliance with the relevant
provisions of Section 5.6 hereof and shall have received for each Swing
Line Bank its Swing Line Note of each Borrower dated the date hereof
and otherwise in compliance with the relevant provisions of Section 5.6
hereof;
(e) each Domestic Subsidiary (other than Plastic) shall have
executed this Agreement as a Guarantor;
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(f) the Administrative Agent shall have received a Foreign
Investment List completed as of the most recently completed fiscal
quarter of the Company;
(g) the Administrative Agent shall have received from the
Company a list of the Authorized Representatives;
(h) to the extent not otherwise waived in writing by the
Administrative Agent, the Administrative Agent shall have received the
Security Agreement, Security Agreement Re: Intellectual Property and
Pledge Agreements duly executed by the Company and the Subsidiaries
party thereto and the Mortgages, duly executed, together with (i)
original stock certificates or other similar instruments or securities
representing 100% (in the case of a Domestic Subsidiary) or 65% (in the
case of a First Tier Foreign Subsidiary) of the issued and outstanding
shares of capital stock or other equity interests of each such
Subsidiary, (ii) stock powers for the Collateral consisting of the
stock or other equity interest each such Subsidiary executed in blank
and undated, and (iii) UCC financing statements to be filed against the
Company and each Domestic Subsidiary (other than Plastic), as debtor,
in favor of the Administrative Agent, as secured party;
(i) the Administrative Agent shall have received evidence of
insurance required to be maintained under the Loan Documents, naming
the Administrative Agent as mortgagee and loss payee;
(j) to the extent not otherwise waived in writing by the
Administrative Agent, the Administrative Agent shall have received a
mortgagee's title insurance policy (or a prepaid binding commitment
therefor) in the form of an ALTA Loan Policy Form 1992 and otherwise in
form and substance acceptable to the Administrative Agent from Lawyers
Title Insurance Corporation or such other title insurance company
acceptable to the Administrative Agent in the amounts specified on
Schedule 11.1(j) hereto insuring the lien of each of the Mortgages to
be a valid first priority lien subject to no matters of survey (other
than on Site No. 4 listed on Schedule 11.1(j) hereof) or defects or
objections which are unacceptable to the Administrative Agent in its
reasonable business judgment, together with a lender's comprehensive
endorsement, a revolving letter of credit endorsement, a last dollar
endorsement and such other endorsements as the Administrative Agent may
reasonably require;
(k) to the extent not otherwise waived in writing by the
Administrative Agent, the Administrative Agent shall have received a
survey in form and substance acceptable to the Administrative Agent
prepared by a licensed surveyor on each parcel of real property subject
to the lien of each of the Mortgages, which survey shall also state
whether or not any portion of the real property is in a federally
designated flood hazard area; and
(l) the Administrative Agent shall have received financing
statement, tax and judgment lien search results against the Property of
the Company and each Domestic Subsidiary evidencing the absence of
Liens on its Property except as permitted by Section 12.9 hereof.
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Section 11.2. All Credit Events. As of the time of each Credit Event
hereunder (including the initial Credit Event):
(a) In the case of a Borrowing, the Administrative Agent
shall have received the notice required by Section 2.2 hereof
(including any deemed notice under Section 2.2(c)) or 3.3 or 4.2
hereof, as applicable, and the Note of the relevant Borrower required
by Section 5.6 hereof for a Borrowing of such type; in the case of the
issuance of any Letter of Credit the relevant Issuing Agent shall have
received a duly completed Application for a Letter of Credit; and in
the case of an extension or increase in the amount of a Letter of
Credit, a written request therefor, in a form acceptable to the
relevant Issuing Agent;
(b) In the case of a Credit Event other than a Refunding
Borrowing, each of the representations and warranties of the Company
and Borrowing Subsidiaries set forth in Sections 9 (other than the last
sentence of Section 9.4) and 10 hereof shall be and remain true and
correct in all material respects as of said time, except that if any
such representation or warranty relates solely to an earlier date it
need only remain true as of such date;
(c) In the case of a Credit Event other than (i) a Refunding
Borrowing in Domestic Rate Loans and (ii) a Refunding Borrowing in
Eurocurrency Loans (refunding a Borrowing denominated in an Alternative
Currency) in the same Alternative Currency with an Interest Period not
exceeding one (1) calendar month, no Default or Event of Default shall
have occurred and be continuing or would occur as a result of such
Credit Event;
(d) In the case of a Credit Event (including a Refunding
Borrowing), after giving effect to such Credit Event, (i) neither the
Original Dollar Amount nor the U.S. Dollar Equivalent of the aggregate
principal amount of all Loans (whether Committed Loans or Swing Line
Loans and L/C Obligations outstanding hereunder shall exceed the
Revolving Credit Commitments then in effect, (ii) the aggregate
Original Dollar Amount of Committed L/C Obligations shall not exceed
the L/C Commitment then in effect, (iii) the aggregate principal amount
of Domestic Swing Line Loans outstanding hereunder shall not exceed the
lesser of the Unused Revolving Credit Commitments and the Domestic
Swing Line Commitment, (iv) neither the aggregate Original Dollar
Amount nor the U.S. Dollar Equivalent of the aggregate principal amount
of Multicurrency Swing Line Loans and Foreign Credit L/C Obligations
outstanding hereunder shall exceed the lesser of the Unused Revolving
Credit Commitments and the Multicurrency Swing Line Commitment, and (v)
neither the Original Dollar Amount nor the U.S. Dollar Equivalent of
all Loans and L/C Obligations denominated in an Alternative Currency
and outstanding hereunder shall exceed the Foreign Currency Sub-Limit
(if any) for such Alternative Currency; and
(e) Such Borrowing shall not violate any order, judgment or
decree of any court or other authority or any provision of law or
regulation applicable to any Bank
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(including, without limitation, Regulation U of the Board of Governors
of the Federal Reserve System) as then in effect.
Each request for a Borrowing hereunder shall be deemed to be a
representation and warranty by the Company on the date of such Borrowing as to
the facts specified in paragraphs (b), (c) and (d) of this Section 11.2.
Section 11.3. First Borrowing by Each Borrowing Subsidiary. In the case
of the first Borrowing after the Effective Date by each Borrowing Subsidiary
hereunder:
(a) The Administrative Agent shall have received an opinion
of counsel for such Borrowing Subsidiary acceptable to the
Administrative Agent, substantially in the form of Exhibit I hereto
(with appropriate assumptions, exceptions and qualifications reasonably
acceptable to the Administrative Agent reflecting the laws of the
relevant jurisdiction) and covering such additional matters as the
Required Banks may reasonably request; and
(b) The Administrative Agent shall have received for each
Bank (i) certified copies of resolutions of the Board of Directors (or
comparable authorizing documents) of such Borrowing Subsidiary
authorizing the execution, delivery and performance of this Agreement,
including the execution and delivery of an Election to Participate, and
the Borrowing Subsidiary's Notes, indicating the authorized signers of
this Agreement, through the Election to Participate, and the Borrowing
Subsidiary's Notes and all other documents relating thereto and the
specimen signatures of such signers and (ii) copies of such Borrowing
Subsidiary's charter and by-laws (or other comparable constituent
documents) certified by the Secretary or other appropriate officer of
such Borrowing Subsidiary together with (if available in the relevant
jurisdiction) a certificate of good standing (or similar document)
certified by the appropriate governmental officer in the jurisdiction
of such Borrowing Subsidiary's incorporation.
(c) In the case of such first Borrowing by GBC Nederland
B.V., the consultation procedure with the works council
(ondernemingsraad) of such Subsidiary pursuant to section 25 of the
Dutch Works Councils Act (Wet op de ondernemingsraden) has been
completed.
The documents referred to in this Section 11.3 shall be delivered to
the Administrative Agent by the Borrower no later than the date of the first
Borrowing by such Borrower. The opinion referred to in clause (a) above shall be
dated on or prior to the date of the first Borrowing by such Borrower hereunder.
Section 11.4. Additional Conditions to Credit Events other than
Refunding Borrowings. In addition to the conditions set forth in Sections 11.1,
11.2 and 11.3 hereof, as of the time of each Credit Event other than a Refunding
Borrowing, the representations and warranties set forth in the last sentence of
Section 9.4 hereof shall be true as of said time, and the request for such
Credit Event, as referred to in Section 11.2(a), shall be and constitute a
representation and warranty as to such matters specified in the last sentence of
Section 9.4 hereof; provided,
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however, that the reference in such sentence to the date December 31, 1998 shall
be deemed a reference to the date of the most recent annual financial statements
submitted pursuant to Sections 12.6(a)(i) hereof.
SECTION 12. COVENANTS.
The Company covenants and agrees that, so long as any Note or any L/C
Obligation is outstanding hereunder, or any Commitment is available to or in use
by any Borrower hereunder, except to the extent compliance in any case is waived
in writing by the Required Banks:
Section 12.1. Corporate Existence; Subsidiaries. The Company shall, and
shall cause each of its Subsidiaries to, preserve and maintain its corporate
existence, subject to the provisions of Section 12.12 hereof.
Section 12.2. Maintenance. The Company will maintain, preserve and keep
its plants, properties and equipment deemed by it necessary to the proper
conduct of its business in reasonably good repair, working order and condition
and will from time to time make all reasonably necessary repairs, renewals,
replacements, additions and betterments thereto so that at all times such
plants, properties and equipment shall be reasonably preserved and maintained,
and the Company will cause each of its Subsidiaries to do so in respect of
Property owned or used by it; provided, however, that nothing in this Section
12.2 shall prevent the Company or a Subsidiary from discontinuing the operation
or maintenance of any such Properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole and not reasonably expected to have any Material
Adverse Effect.
Section 12.3. Taxes. The Company will duly pay and discharge, and will
cause each of its Subsidiaries duly to pay and discharge, all federal and state
income taxes and other material taxes, rates, assessments, fees and governmental
charges upon or against it or against its Properties, in each case before the
same becomes delinquent and before penalties accrue thereon, unless and to the
extent that the same is being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP have been provided therefor on the books of
the Company.
Section 12.4. ERISA. The Company will, and will cause each of its
Subsidiaries to, promptly pay and discharge all obligations and liabilities
arising under ERISA of a character which if unpaid or unperformed might result
in the imposition of a Lien against any of its properties or assets and will
promptly notify the Administrative Agent of (i) the occurrence of any reportable
event (as defined in ERISA) affecting a Plan, other than any such event of which
the PBGC has waived notice by regulation, (ii) receipt of any notice from PBGC
of its intention to seek termination of any Plan or appointment of a trustee
therefor, (iii) its or any of its Subsidiaries' intention to terminate or
withdraw from any Plan, and (iv) the occurrence of any event affecting any Plan
which could result in the incurrence by the Company or any of its Subsidiaries
of any material liability, fine or penalty, or any material increase in the
contingent
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liability of the Company or any of its Subsidiaries under any post-retirement
Welfare Plan benefit. The Administrative Agent will promptly distribute to each
Bank any notice it receives from the Company pursuant to this Section 12.4.
Section 12.5. Insurance. The Company will insure, and keep insured, and
will cause each of its Subsidiaries to insure, and keep insured, with good and
responsible insurance companies all insurable Property owned by it of a
character usually insured by companies similarly situated and operating like
Property. To the extent reasonably and in good faith deemed appropriate by the
Company, the Company will also insure, and cause each of its Subsidiaries to
insure, employers' and public and product liability risks with good and
responsible insurance companies. The Company shall in any event maintain, and
cause each Subsidiary to maintain, insurance on the Collateral to the extent
required by the Collateral Documents. The Company will upon request of any Bank
furnish to such Bank a summary setting forth the nature and extent of the
insurance maintained pursuant to this Section 12.5.
Section 12.6. Financial Reports and Other Information. (a) The Company
will maintain a system of accounting in accordance with GAAP and will furnish to
the Banks and their respective duly authorized representatives such information
respecting the business and financial condition of the Company and its
Subsidiaries as any Bank may reasonably request; and without any request, the
Company will furnish each of the following to each Bank:
(i) Within 90 days after the close of each of its fiscal
years, an audit report certified by independent certified public
accountants acceptable to the Required Banks, unqualified as to scope
or going concern, prepared in accordance with GAAP on a consolidated
basis for itself and the Subsidiaries, including a balance sheet as of
the end of such period, and an income statement and statement of cash
flows for such period, accompanied by a certificate of said accountants
that, in the course of their examination necessary for their
certification of the foregoing, they have obtained no knowledge of any
Default or Event of Default or if, in the opinion of such accountants,
any Default or Event of Default shall exist, stating the nature and
status thereof;
(ii) Within 50 days after the close of each quarterly period
of each of its fiscal years (except for the last such quarterly period
in each fiscal year), for itself and the Subsidiaries, a consolidated
unaudited balance sheet as at the close of each such period, and a
consolidated income statement and consolidated statement of cash flows
for such period, in each case in accordance with GAAP for the period
from the beginning of such fiscal year to the end of such quarter, all
certified by its chief financial officer;
(iii) Within 30 days after the close of each monthly accounting
period of each of its fiscal years (except for each monthly accounting
period which coincides with a quarterly fiscal period), for itself and
the Subsidiaries, a consolidated unaudited balance sheet as at the
close of each such period, and a consolidated income statement and a
consolidated statement reflecting Consolidated Capital Expenditures and
consolidated depreciation and amortization for the Company and its
Subsidiaries, in each case for such period and in accordance with GAAP
for the period from the beginning of such fiscal year to the each of
such monthly period, all certified by its chief financial officer;
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(iv) Within one year after the close of each fiscal year, a
statement of the Unfunded Vested Liabilities of each Single Employer
Plan, certified as correct by an actuary enrolled under ERISA;
(v) As soon as possible and in any event within 10 days after
the Company knows that any Reportable Event has occurred with respect
to any Plan, a statement, signed by the chief financial officer of the
Company, describing said Reportable Event and the action the Company
proposes to take with respect thereto;
(vi) As soon as possible and in any event within 10 days after
any new Domestic Subsidiary is created or acquired, an updated Schedule
9.2 showing such Domestic Subsidiary;
(vii) As soon as possible and in any event no later than 10
days following the close of each calendar quarter in which any new
Foreign Subsidiary is created or acquired, an updated Schedule 9.2
showing such Foreign Subsidiary; and
(viii) Promptly upon their becoming available, one copy of each
financial statement, report, notice or proxy statement sent by the
Company to stockholders generally and of each regular or periodic
report, registration statement or prospectus filed by the Company or
any Subsidiary with any securities exchange or the Securities and
Exchange Commission or any successor agency, and copies of any orders
in any proceedings to which the Company or any of its Subsidiaries is a
party, issued by any governmental agency, federal or state, having
jurisdiction over the Company or any of its Subsidiaries, which would
reasonably be expected to have a Material Adverse Effect.
(b) Each financial statement furnished to the Banks pursuant to
subsection (i) or (ii) of this Section 12.6 shall be accompanied by (A) a
written certificate signed by the Company's chief financial officer to the
effect that (i) no Default or Event of Default has occurred during the period
covered by such statements or, if any such Default or Event of Default has
occurred during such period, setting forth a description of such Default or
Event of Default and specifying the action, if any, taken or to be taken by the
Company to remedy the same, (ii) the representations and warranties contained in
Section 9 hereof are true and correct in all material respects as though made on
the date of such certificate (other than those representations (x) made solely
as of an earlier date, which need only remain true as of such date (y) contained
in Section 9.5 or (z) contained in the last sentence of Section 9.4) taking into
account any amendments to such Section (including without limitation any
amendments to the Schedules referenced therein) made after the date of this
Agreement in accordance with its provisions and except as otherwise described
therein, (B) a Compliance Certificate showing the Company's compliance with the
covenants set forth in Sections 12.14(k), 12.14(l), 12.15, 12.16, 12.17, 12.18,
12.19, 12.22 and 12.23 hereof and (C) a Foreign Investment List prepared as of
the close of the relevant fiscal quarter.
(c) The Company will promptly (and in any event within three Business
Days after a Responsible Officer of the Company has knowledge thereof) give
notice to the Administrative Agent and each Bank:
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(i) of the occurrence of any Change of Control Event, Default
or Event of Default;
(ii) of any default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries, except for any
such default or event of default which is not reasonably expected to
have a Material Adverse Effect;
(iii) of any event which has or would reasonably be expected to
have a Material Adverse Effect;
(iv) of any litigation or governmental proceeding of the type
described in Section 9.5 hereof and of any notice of alleged
noncompliance with any laws or regulations of the type described in
Section 9.11 hereof which is reasonably expected to have a Material
Adverse Effect; and
(v) Within 30 days of becoming aware of such occurrence,
notice of any occurrence of the type described in Section 13.1(f) or
(g) hereof with respect to any Subsidiary that is not a Significant
Subsidiary.
Section 12.7. Bank Inspection Rights. Upon reasonable notice from the
Administrative Agent, the Company will permit the Administrative Agent (and such
Persons as the Administrative Agent may designate) or any Bank during normal
business hours to visit and inspect any of the Properties of the Company or any
of its Subsidiaries (such inspections including the right to conduct field
audits of the Collateral), to examine all of their books of account, records,
reports and other papers, to make copies and extracts therefrom, and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and, with the consent of the Company (which consent shall not be
unreasonably withheld), independent public accountants (and by this provision
the Company authorizes such accountants to discuss with the Banks (and such
Persons as any Bank may reasonably designate) the finances and affairs of the
Company and its Subsidiaries) all at such reasonable times and as often as may
be reasonably requested; provided, however, that except upon the occurrence and
during the continuation of any Default or Event of Default, the Company shall
not be liable for the costs and expenses of such visits and inspections
conducted by the Banks or their designees (excluding the Administrative Agent).
Nothing contained in this Section 12.7 shall be construed as an express or
implied waiver or forfeiture by the Company or any Subsidiary of any
accountant-client or other privilege belonging to or accruing to the Company and
all information disclosed to any Bank pursuant to this Section or inspected by
any such Bank shall be subject to the provisions of Section 17.23 of this
Agreement.
Section 12.8. Conduct of Business. Neither the Company nor any
Subsidiary will engage in any line of business if, as a result, the general
nature of the business of the Company and its Subsidiaries taken as a whole
would be substantially changed from that conducted on the date hereof.
Section 12.9. Liens. The Company will not, and will not permit any of
its Subsidiaries to, create, incur, permit to exist or to be incurred any Lien
of any kind on any Property owned by the
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Company or any Subsidiary; provided, however, that this Section 12.9 shall not
apply to nor operate to prevent:
(a) Liens arising by operation of law in connection with
worker's compensation, unemployment insurance, social security
obligations, taxes, assessments, statutory obligations or other similar
charges, good faith deposits, pledges or Liens in connection with bids,
tenders, contracts or leases to which the Company or any Subsidiary is
a party (other than contracts for borrowed money), or other deposits
required to be made in the ordinary course of business; provided that
in each case the obligation secured is not more than 30 days overdue
or, if more than 30 days overdue, is being contested in good faith by
appropriate proceedings which prevent enforcement of the matter under
contest and for which reserves in conformity with GAAP have been
provided on the books of the Company; further provided, however, that
in no event is any action taken to foreclose on or repossess or
otherwise realize on the Property subject to such Lien;
(b) mechanics', workmen's, materialmen's, landlords',
carriers', repairmens' or other similar Liens arising in the ordinary
course of business (or deposits to obtain the release of such Liens)
securing obligations not more than 60 days overdue or, if more than 60
days overdue, being contested in good faith by appropriate proceedings
which prevent enforcement of the matter under contest and for which
reserves in conformity with GAAP have been provided on the books of the
Company; provided, however, that in no event is any action taken to
foreclose on or repossess or otherwise realize on the Property subject
to such Lien;
(c) Liens for taxes or assessments or other government
charges or levies on the Company or any Subsidiary of the Company or
their respective Properties, not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being contested in
good faith by appropriate proceedings and for which reserves in
conformity with GAAP have been provided on the books of the Company;
(d) Liens arising out of judgments or awards against the
Company or any Subsidiary of the Company, or in connection with surety
or appeal bonds in connection with bonding such judgments or awards,
the time for appeal from which or petition for rehearing of which shall
not have expired or with respect to which the Company or such
Subsidiary shall be prosecuting an appeal or proceeding for review, and
with respect to which it shall have obtained a stay of execution
pending such appeal or proceeding for review; provided that the
aggregate amount of liabilities (including interest and penalties, if
any) of the Company and its Subsidiaries secured by such Liens shall
not exceed $5,000,000 at any one time outstanding;
(e) Survey exceptions or encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and
other similar purposes, or rights of lessors or sublessors of real
property leased by the Company or any Subsidiary, or zoning or other
restrictions as to the use of real properties which are necessary for
the conduct of the activities of the Company and any Subsidiary of the
Company or which customarily exist
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on properties of corporations engaged in similar activities and
similarly situated and which do not in any event materially impair
their use in the operation of the business of the Company or any
Subsidiary of the Company;
(f) any Lien existing on any Property (other than receivables
and inventory) prior to the acquisition thereof by the Company or any
Subsidiary, provided that such Lien is not created in contemplation of
or in connection with such acquisition and the aggregate principal
amount of Indebtedness at any time outstanding, secured by such Liens,
shall not exceed $3,000,000;
(g) Any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in the foregoing subsection (f), provided, however, that
the principal amount of Indebtedness secured thereby shall not exceed
the principal amount of Indebtedness so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to the Property which was subject to the
Lien so extended, renewed or replaced;
(h) Liens on property of the Company or any Subsidiary
created solely (i) in connection with Capitalized Lease Obligations and
(ii) for the purpose of securing indebtedness permitted by Section
12.22(b) hereof, in each case representing or incurred to finance,
refinance or refund the purchase price of Property, provided that no
such Lien shall extend to or cover other Property of the Company or
such Subsidiary other than the respective Property so acquired, and the
principal amount of indebtedness secured by any such Lien shall at no
time exceed the original purchase price of such Property;
(i) Liens on Property of any Foreign Subsidiary granted in
favor of each third party lender which from time to time extends credit
to such Foreign Subsidiary permitted by Section 12.22(f) hereof;
(j) Liens granted pursuant to the Collateral Documents;
(k) Liens described on Schedule 12.9 hereof; and
(l) Liens not otherwise permitted under this Section 10.9 on
Property (other than receivables and inventory) securing Indebtedness
that does not exceed $1,000,000;
provided, further, that no Lien permitted under subsections (b), (e), (f) and
(g) above may apply to any capital stock of any Subsidiary.
Section 12.10. Use of Proceeds; Regulation U. The proceeds of each
Borrowing, and the credit provided by Letters of Credit, will be used by the
Company for working capital, repayment of other Debt, and other general
corporate purposes including Investments permitted by Section
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12.14 hereof. The Company will not use any part of the proceeds of any of the
Borrowings or of the Letters of Credit directly or indirectly to purchase or
carry any margin stock (as defined in Section 9.10 hereof) or to extend credit
to others for the purpose of purchasing or carrying any such margin stock. At no
time will margin stock (as defined in Section 9.10 hereof) constitute 25% or
more of the assets of the Company or of the Company and its Subsidiaries, taken
as a whole.
Section 12.11. Sales and Leasebacks. The Company will not, nor will it
permit any Subsidiary to, enter into any arrangement with any bank, insurance
company or other lender or investor providing for the leasing by the Company or
any such Subsidiary of any Property theretofore owned by it and which has been
or is to be sold or transferred by such owner to such lender or investor;
provided, however, that the foregoing shall not apply to nor operate to prevent
such sale-leaseback arrangements exclusively among two Foreign Subsidiaries in
which the percentage of the Company's direct or indirect Voting Equity in the
buyer-lessor is equal to or greater than the percentage of the Company's direct
or indirect Voting Equity in the seller-lessee.
Section 12.12. Mergers, Consolidations and Sales of Assets. (a) The
Company will not, and will not permit any of its Subsidiaries to, (i)
consolidate with or be a party to a merger with any other Person or (ii) sell,
lease or otherwise dispose of all or any of the Property of the Company and its
Subsidiaries; provided, however, that:
(1) any Subsidiary of the Company may merge or consolidate
with or into or sell, lease or otherwise convey all or a substantial
part of its assets to the Company, any Wholly-Owned Subsidiary or any
Subsidiary of which the Company or any Wholly-Owned Subsidiary holds at
least the same percentage equity ownership after any such event as it
did immediately prior to the consummation of such event; provided that
in any such merger or consolidation involving the Company, the Company
shall be the surviving or continuing corporation;
(2) the Company or any Subsidiary of the Company may
consolidate or merge with any other Person if the Company or such
Subsidiary or, in the case of such a transaction involving the Company,
the Company is the surviving or continuing corporation and at the time
of such consolidation or merger, and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing;
(3) the Company or any Subsidiary of the Company may sell or
lease inventory in the ordinary course of business;
(4) the Company or any Subsidiary of the Company may sell,
transfer, lease, or otherwise dispose of its Property to one another in
the ordinary course of its business;
(5) the Company or any Subsidiary of the Company may sell
delinquent notes or accounts receivable in the ordinary course of
business for purposes of collection only (and not for the purpose of
any bulk sale or securitization transaction);
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(6) the Company or any Subsidiary of the Company may sell,
transfer, or make other Dispositions of any tangible personal property
that, in the reasonable business judgment of the Company or such
Subsidiary, has become uneconomical, obsolete or worn out, and to the
extent such Property is disposed of in the ordinary course of business
and replaced with similar property at least equal in quality and
condition to that so sold, transferred or disposed and owned by the
Company or such Subsidiary free of all Liens other than the Lien in
favor of the Administrative Agent; provided that the aggregate amount
of such property so disposed by the Company and its Subsidiaries (taken
together) in any calendar year does not, when taken together with the
aggregate amount of Property lost, damaged or destroyed during such
year as results of Events of Loss, exceed $15,000,000; and
(7) the Company or any Subsidiary of the Company may sell,
transfer, lease, or make other Dispositions of Property of the Company
or such Subsidiary aggregating for the Company and its Subsidiaries not
more than $5,000,000 during any 12-month period.
(b) The Company will not sell, transfer or otherwise dispose of, and
will not permit any Subsidiary to issue, sell, transfer or otherwise dispose of,
any shares of stock of any class (including as "stock" for purposes of this
Section, any warrants, rights or options to purchase or otherwise acquire stock
or other securities exchangeable for or convertible into stock) of any other
Credit Party, (v) except to the Company or a Wholly-Owned Subsidiary of the
Company, (w) except for the purpose of qualifying directors, (x) except for the
issuance and sale by the Company or any Subsidiary of its capital stock to
effect an Acquisition permitted by Section 12.14(e) hereof, (y) except for the
issuance and sale by the Company or any Subsidiary of its capital stock in
connection with the exercise of employee stock options granted by the Company or
such Subsidiary and (z) except for any such sale or other disposition not
otherwise prohibited by this Section 12.12 if the Company or such other Credit
Party fully pays all Loans (if any) made to such other Credit Party and the
Company pays or assumes in a manner acceptable to the Banks the liability for
all L/C Obligations of such other Credit Party (it being understood and agreed
that any Borrowing Subsidiary shall, as provided in Section 5.10(a) hereof,
cease to be a Borrower hereunder upon ceasing to be a Wholly-Owned Subsidiary).
(c) In the event of any merger permitted by proviso (2) above, the
Company shall give the Administrative Agent and the Banks prior written notice
of any such event and, immediately after giving effect to any such merger,
Schedule 9.2 of this Agreement shall be deemed amended excluding reference to
any such Subsidiary merged out of existence.
(d) So long as (i) no Default or Event of Default has occurred and is
continuing or would arise as a result thereof, the Administrative Agent shall
release its Lien on any Property sold to a third party pursuant to provisos (4),
(5), (6) and (7) above, and (ii) the Loans and L/C Obligations have not been
accelerated and no Event of Default has occurred and is continuing under Section
13.1(f) or 13.1(g) hereof, the Administrative Agent shall release its Lien on
any Property sold to a third party pursuant to proviso (3) above. Except to the
extent otherwise provided in the immediately preceding sentence and elsewhere in
the Loan Documents, the Administrative Agent shall not, without the prior
written consent or waiver of each Bank, release
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in any 12-month period all or any part of the Collateral with an aggregate fair
market value in excess of $3,000,000.
Section 12.13. Use of Property and Facilities; Environmental and Health
and Safety Laws. The Company will, and will cause each of its Subsidiaries to,
comply with the requirements of all Environmental and Health Laws applicable to
or pertaining to the Properties or business operations of the Company or any
Subsidiary to the extent that noncompliance would reasonably be expected to have
a Material Adverse Effect. Without limiting the foregoing, the Company will not,
and will not permit any Person to, except in accordance with applicable law,
dispose of any Hazardous Material into, onto or upon any real property owned or
operated by the Company or any of its Subsidiaries if such disposal would
reasonably be expected to have a Material Adverse Effect.
Section 12.14. Investments, Acquisitions, Loans, Advances and Guaranties.
The Company will not, nor will it permit any Subsidiary to, directly or
indirectly, make, retain or have outstanding any investments (whether through
purchase of stock or obligations or otherwise) in, or loans or advances to, any
other Person, or effect any Acquisition, or be or become liable as endorser,
guarantor, surety or otherwise (such as liability as a general partner) for any
debt, obligation or undertaking of any other Person, or otherwise agree to
provide funds for payment of the obligations of another, or supply funds thereto
or invest therein or otherwise assure a creditor of another against loss, or
apply for or become liable to the issuer of a letter of credit which supports an
obligation of another (cumulatively, all of the foregoing being "Investments");
provided, however, that the foregoing provisions shall not apply to nor operate
to prevent:
(a) Permitted Liquid Investments;
(b) Ownership of stock, obligations or securities received in
settlement of debts (created in the ordinary course of business) owing
to the Company or any Subsidiary;
(c) endorsements of negotiable instruments for collection in
the ordinary course of business;
(d) loans and advances to employees in the ordinary course of
business;
(e) Acquisitions of all or any part of the assets or business
of any other Person or division thereof engaged in a line of business
related to that of the Company and its Subsidiaries, or of a majority
of the Voting Stock of such a Person, or of equity interests in any
partnership, joint venture or corporation which does not become a
Subsidiary as a result of such Acquisition but is engaged (or promptly
after such Acquisition will be engaged) in a line of business related
to that of the Company and its Subsidiaries, provided that (i) no
Default or Event of Default exists or would exist after giving effect
to such Acquisition, (ii) the Board of Directors or other governing
body of such Person whose Property, or Voting Stock or other interests
in which, are being so acquired has approved the terms of such
Acquisition, (iii) the Company can demonstrate that on a
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proforma basis after giving effect to such Acquisition it will continue
to comply through the Revolving Credit Termination Date with all the
terms and conditions of the Loan Documents, (iv) the Leverage Ratio
shall, as of the most recently completed fiscal quarter of the Company
(with the Leverage Ratio calculated on a pro forma basis as if such
Acquisition had been consummated before the end of such fiscal quarter)
be less than 5.50 to 1 and (v) the Total Consideration expended by the
Company and its Subsidiaries as consideration for all Acquisitions does
not at any time exceed $2,000,000;
(f) Obligations of Guarantors hereunder;
(g) Guaranties of the 1998 Senior Subordinated Debt by any
Subsidiary if and so long as such Subsidiary is obligated on a
Subsidiary Guarantee Agreement it has executed and delivered to the
Administrative Agent;
(h) Investments (as defined above in this Section) (i) by the
Company or another Credit Party in a joint venture with Neschen AG for
the manufacture and sale of film products provided (A) such Credit
Party at all times maintains at least a 50% equity interest in such
joint venture, (B) the aggregate amount of Investments in such joint
venture, when taken together with the aggregate amount of capital
expenditures (if any) made by the Company or any Subsidiary for such
joint venture, does not exceed $5,000,000 on a cumulative basis on and
after September 30, 1999 and (C) such Investments do not take the form
of Guaranties by any Credit Party, (ii) in Minority Foreign Investments
existing on September 30, 1999, together with increases therein arising
from equity in undistributed income;
(i) Investments (as defined above in this Section) in one or
more Subsidiaries and Minority Foreign Investments consisting of trade
credit extended in the ordinary course of business on ordinary terms on
an arm's-length basis to the Company or any Subsidiary or any Minority
Foreign Investment to finance its purchase of goods and services for
sale in the ordinary course of its business;
(j) Investments (as defined above in this Section) in Credit
Parties in an amount not in excess of the amount of Investments in
Credit Parties (other than the Company) existing on September 30, 1999;
(k) Investments (as defined above in this Section) in one or
more Foreign Subsidiaries and Minority Foreign Investments not
otherwise permitted by this Section 12.14 provided that such
Investments constitute Permitted Future Foreign Subsidiary Support; and
(l) Investments (as defined above in this Section) in Foreign
Subsidiaries and Minority Foreign Investments not otherwise permitted
by this Section 12.14 in an amount not in excess of the amount of
Investments existing on September 30, 1999 in (i) Foreign Subsidiaries
and (ii) Minority Foreign Investments; and
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(m) Investments (as defined above in this Section) by one
Foreign Subsidiary (other than a Foreign Subsidiary which is a Credit
Party) in another Foreign Subsidiary.
In determining the amount of investments, loans, advances and
guarantees permitted under this Section 12.14, Investments (1) shall always be
valued at the net book value thereof (without giving effect to (x) any
subsequent market appreciation or depreciation therein or (y) any non-cash
adjustments), loans and advances shall be taken at the principal amount thereof
then remaining unpaid, and guarantees shall be taken at the amount of
obligations guaranteed thereby and (2) by the Company in a Subsidiary to the
extent such Subsidiary uses the proceeds of such Investments solely to invest in
one or more Foreign Subsidiaries shall be deemed as an Investment by the Company
in such Foreign Subsidiary only and not as an Investment by the Company in such
Subsidiary.
Section 12.15. Consolidated Shareholder's Equity. The Company will, as of
the close of each fiscal quarter of the Company, maintain a Consolidated
Shareholder's Equity of not less than the Minimum Required Amount. For purposes
of this section, the "Minimum Required Amount" shall mean $130,000,000 and shall
increase (but not decrease) (w) as of December 31, 1999 and each fiscal quarter
thereafter, by an amount equal to 80% of the cumulative positive consolidated
net income for the Company and its Subsidiaries earned for the fiscal quarter of
the Company then ended (but with each such fiscal quarter taken separately,
without reduction in the Minimum Required Amount for any negative consolidated
net income for the Company and its Subsidiaries for any fiscal quarter), (x) as
of each issuance and sale of any equity securities by the Company or any
Subsidiary, by an amount equal to 80% of the Net Cash Proceeds generated from
such sale and (y) as of December 31, 2000, to the extent all the Fiscal Year
1999/2000 Charges (other than the charges representing consulting fees specified
in clause (iv) of the definition of "Fiscal Year 1999/2000 Charges") were not
actually taken on or prior to such date, by the additional amount by which
Consolidated Shareholders' Equity would have been lower had all the Fiscal Year
1999/2000 Charges not so taken been taken on such date, and shall decrease by,
as of December 31, 1999 and each fiscal quarter thereafter, the amount of the
charges representing consulting fees specified in clause (iv) of the definition
of "Fiscal Year 1999/2000 Charges" which were actually taken on or prior to such
date. For purposes of this Section, Consolidated Shareholder's Equity shall be
determined exclusive of adjustments to net income used to determine
comprehensive income in accordance with GAAP.
Section 12.16. Current Ratio. The Company will at all times maintain the
Consolidated Current Ratio of not less than 1.25 to 1.00.
Section 12.17. Leverage Ratios. (a) Leverage Ratio. The Company shall
not, as of the close of any fiscal quarter of the Company set forth below,
permit the Leverage Ratio to be more than the amount set forth to the right of
such closing date:
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Leverage Ratio Shall
As of Close of Not Be More Than:
-------------- -----------------
2nd fiscal quarter of 5.70 to 1
fiscal year 2001
3rd fiscal quarter of 5.50 to 1
fiscal year 2001
each fiscal quarter 5.30 to 1
thereafter
(b) Senior Leverage Ratio. The Company shall not, as of the close of
any fiscal quarter of the Company set forth below, permit the Senior Leverage
Ratio to be more than the amount set forth to the right of such closing date:
Senior Leverage Ratio
Shall
As of Close of Not Be More Than:
-------------- -----------------
2nd fiscal quarter of 4.15 to 1
fiscal year 2001
3rd fiscal quarter of 3.90 to 1
fiscal year 2001
each fiscal quarter 3.70 to 1
thereafter
Section 12.18. Interest Coverage Ratio. The Company shall not, as of the
close of any fiscal quarter of the Company set forth below, permit the Interest
Coverage Ratio to be less than the amount set forth to the right of such closing
date:
Interest Coverage
Ratio Shall
As of Close of Not Be Less Than:
-------------- -----------------
2nd fiscal quarter of 1.50 to 1
fiscal year 2001
3rd fiscal quarter of 1.60 to 1
fiscal year 2001
each fiscal quarter 1.70 to 1
thereafter
Section 12.19. Minimum Consolidated EBITDA.
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(a) Quarterly Consolidated EBITDA. As of the last day of each fiscal
quarter of the Company below, the Company shall not permit Consolidated EBITDA
to be less than the amount set forth below:
Consolidated
EBITDA Shall
As of Close of Not Be Less Than:
-------------- -----------------
3rd fiscal quarter of $7,700,000
fiscal year 1999
4th fiscal quarter of $16,000,000
fiscal year 1999
1st fiscal quarter of $34,000,000
fiscal year 2000
2nd fiscal quarter of $54,000,000
fiscal year 2000
For the purposes of this Section 12.19(a), Consolidated EBITDA shall be computed
(i) as of the close of the 3rd and 4th fiscal quarters of the Company's fiscal
year 1999, for the respective quarter then ended, (ii) as of the close of the
1st fiscal quarter of the Company's fiscal year 2000, for the two consecutive
fiscal quarters then ended and (iii) as of the close of the 2nd fiscal quarter
of the Company's fiscal year 2000, for the three consecutive fiscal quarters
then ended.
(b) Annual Consolidated EBITDA. As of the close of each fiscal quarter
of the Company set forth below, the Company shall not permit Consolidated EBITDA
for the four fiscal quarters then ended to be less than the amount set forth to
the right of such closing date:
Consolidated
EBITDA Shall
As of Close of Not Be Less Than:
-------------- -----------------
3rd fiscal quarter of $77,000,000
fiscal year 2000
4th fiscal quarter of $82,000,000
fiscal year 2000
1st fiscal quarter of $86,500,000
fiscal year 2001
Section 12.20. Dividends and Other Restricted Payments. The Company shall
not, nor shall it permit any Subsidiary to, (i) declare or pay any dividends on
or make any other distributions in respect of any class or series of its capital
stock or any other equity interest (other than dividends payable solely in its
capital stock) or (ii) directly or indirectly purchase, redeem or otherwise
acquire or retire any of its capital stock or any other equity interest or (iii)
prepay any
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Indebtedness (other than the prepayment of the Loans and L/C Obligations in
accordance with Section 5.4 hereof and the effecting of any redemption of such
Loans) (such non-excepted dividends, distributions, purchases, redemptions,
acquisitions, prepayments and retirements being hereinafter collectively called
"Restricted Payments"); provided, however, that the foregoing shall not apply to
or operate to prevent (x) the making of dividends or distributions by any
Subsidiary to the Company or any other Subsidiary and (y) any Restricted
Payments made in any fiscal year of the Company in the form of treasury stock
repurchases by the Company to acquire its capital stock to the extent necessary
to cover bona fide employee stock options granted in the ordinary course of
business if and to the extent that at the time each such Restricted Payment is
made and after giving effect thereto, no Default or Event of Default shall occur
or be continuing.
Section 12.21. Company as Domestic Operation. Notwithstanding Sections
12.12 and 12.14 or any other provision of this Agreement, the assets owned
directly by the Company and its Wholly-Owned Subsidiaries which are Domestic
Subsidiaries (without regard to their ownership of equity interests in
Subsidiaries) shall at all times constitute the majority of the total
consolidated assets of the Company and its Subsidiaries.
Section 12.22. Indebtedness. The Company shall not, nor shall it permit
any Subsidiary to, issue, incur, assume, create or have outstanding any
Indebtedness; provided, however, that the foregoing shall not restrict nor
operate to prevent:
(a) the Obligations of each Borrower owing to the
Administrative Agent and the Banks hereunder;
(b) purchase money indebtedness and Capitalized Lease
Obligations of the Company and of its Subsidiaries in an aggregate
amount not to exceed $5,000,000 at any one time outstanding;
(c) Obligations of each Borrower arising out of Hedging
Arrangements in the ordinary course of business for bona fide hedging
purposes and not for any speculative purposes;
(d) guaranties expressly permitted by Section 12.14 hereof;
(e) intercompany indebtedness from time to time owing by the
Company and its Subsidiaries as a result of intercompany loans and
advances from the Company and its Subsidiaries permitted by Section
12.14 hereof;
(f) Indebtedness of each Foreign Subsidiary representing
credit extended by third party lenders to such Foreign Subsidiary to
finance its operating needs in the ordinary course of business provided
(i) the U.S. Dollar Equivalent of the aggregate principal amount of
such credit as is outstanding as of September 30, 1999 does not exceed
$26,000,000 and (ii) all other credit extended constitutes Permitted
Future Foreign Subsidiary Support;
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(g) Indebtedness, in an amount not in excess of $2,500,000,
incurred under the currently undrawn portion of the facility provided
under the Maryland IRB Indenture;
(h) other Indebtedness existing on the date of this Agreement
and described on Schedule 12.22 attached hereto and made a part hereof,
including extensions, renewals and refinancings thereof from time to
time (but excluding in any event any increase in the principal amount
thereof); and
(i) other indebtedness of the Company and its Subsidiaries
not otherwise permitted by this Section in an aggregate amount not to
exceed $3,000,000 at any one time outstanding.
Section 12.23. Consolidated Capital Expenditures. The Company shall not
permit, during each period of time specified in the immediately following
sentence, the aggregate Consolidated Capital Expenditures for the Company and
its Subsidiaries to exceed the Maximum Permitted Amount for such period. For
purposes of this Section 12.16 "Maximum Permitted Amount" shall mean (i)
$30,000,000 during the fiscal year of the Company ending on or about December
31, 2000 and (ii) $37,500,000 during the period commencing with the first day of
the fiscal year of the Company ending on or about December 31, 2001 and ending
on the Revolving Credit Termination Date; provided, however, that the Maximum
Permitted Amount for the period commencing with the first day of the Company's
fiscal year 2001 and ending on the Revolving Credit Termination Date shall be
increased by the amount, if any, by which the Maximum Permitted Amount for the
immediately preceding fiscal year, computed without giving effect to this
proviso, exceeds the actual Consolidated Capital Expenditures expended by the
Company and its Subsidiaries for such preceding fiscal year.
Section 12.24. No Restrictions on Subsidiary Distributions. Except as
provided herein, the Company shall not, nor shall it permit any Subsidiary to,
directly or indirectly create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of the Company or any Subsidiary to: (a) guarantee the Obligations and the
Hedging Liability; (b) grant Liens on its assets to the Administrative Agent for
the benefit of the Administrative Agent, the Banks, certain Affiliates of the
Banks and the Issuing Agents, as required by Section 7 hereof; (c) in the case
of any Subsidiary, pay dividends or make any other distribution on any of such
Subsidiary's capital stock or other equity interests owned by the Company or any
Subsidiary; (d) pay any indebtedness owed to the Company or any Subsidiary; (e)
make loans or advances to the Company or any Subsidiary; or (f) transfer any of
its property or assets to the Company or any Subsidiary; provided, however, the
foregoing shall not apply to (i) restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness, (ii) customary provisions in leases and other contracts
restricting the assignment thereof, (iii) restrictions or conditions imposed by
the Indenture described in the definition hereunder of 1998 Senior Subordinated
Debt, (iv) restrictions and conditions imposed by the Stock Purchase Agreement
dated as of October 17, 1997 among the Company and Dr. U. Wolfensberger relating
to the Company's acquisition of Ibico AG and (v) customary provisions in
overseas financing arrangements by Foreign Subsidiaries which are not Credit
Parties.
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Section 12.25. Transactions with Affiliates. Except as disclosed in the
Company's periodic reports to the Securities and Exchange Commission prior to
the date hereof, the Company will not, and will not permit any of its
Subsidiaries to, enter into or be a party to any material transaction or
arrangement (where "material" means material for the Company and its
Subsidiaries taken as a whole) with any Affiliate of such Person (other than the
Company or any of its Subsidiaries), including without limitation, the purchase
from, sale to or exchange of Property with, any merger or consolidation with or
into, or the rendering of any service by or for, any Affiliate, and except in
the ordinary course 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 to the
extent that any such transaction or arrangement would have a Material Adverse
Effect.
Section 12.26. Compliance with Laws. Without limiting any of the other
covenants of the Company in this Section 12, the Company will, and will cause
each of its Subsidiaries to, conduct its business, and otherwise be, in
compliance with all applicable laws, regulations, ordinances and orders of any
governmental or judicial authorities; provided, however, that neither the
Company nor any Subsidiary of the Company shall be required to comply with any
such law, regulation, ordinance or order if (x) it shall be contesting such law,
regulation, ordinance or order in good faith by appropriate proceedings and
reserves in conformity with GAAP have been provided therefor on the books of the
Company or such Subsidiary, as the case may be, or (y) the failure to comply
therewith is not reasonably expected to have a Material Adverse Effect.
Section 12.27. Subordinated Indebtedness. The Company shall not, and
shall not permit any Subsidiary to:
(a) make any voluntary prepayment on, or effect any voluntary
redemption of, any Subordinated Debt; or
(b) make any other payment on account of any Subordinated
Debt which is prohibited under the terms of any instrument or agreement
subordinating such indebtedness to the prior payment of any
Obligations; or
(c) increase or (except to reduce to a lower fixed rate)
amend the interest rate applicable to, or shorten the scheduled
amortization or final maturity of, any Subordinated Debt.
Section 12.28. Year 2000 Assessment. The Company shall complete on a
timely basis the review and assessment of its business and operations referred
to in Section 9.16 hereof and use reasonable efforts to assure that its
computer-based and other systems (and those of all Subsidiaries) are able to
effectively process dates, including dates before, on and after January 1, 2000,
without experiencing any Year 2000 Problem that could reasonably be expected to
cause a Material Adverse Effect. At the request of the Administrative Agent, the
Company will provide the Administrative Agent with such written reports and
information (including, but not limited to, the results of internal or external
audit reports prepared in the ordinary course of business)
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reasonably acceptable to the Administrative Agent as to the capability of the
Company and its Subsidiaries to conduct its and their businesses and operations
before, on and after January 1, 2000, without experiencing a Year 2000 Problem
causing a Material Adverse Effect.
Section 12.29. European Monetary Union. (a) If, as a result of the EMU
Commencement, (i) any Alternative Currency ceases to be lawful currency of the
state issuing the same and is replaced by Euros or (ii) any Alternative Currency
and Euros are at the same time both recognized by the central bank or comparable
governmental authority of the state issuing such currency as lawful currency of
such state, then any amount payable hereunder by any party hereto in such
Alternative Currency (including, without limitation, any Loan to be made under
this Agreement) shall instead be payable in Euros and the amount so payable
shall be determined by redenominating or converting such amount into Euros at
the exchange rate officially fixed by the European Central Bank for the purpose
of implementing the EMU, provided, that to the extent any EMU Legislation
provides that an amount denominated either in Euros or in the applicable
Alternative Currency can be paid either in Euros or in the applicable
Alternative Currency, each party to this Agreement shall be entitled to pay or
repay such amount in Euros or in the applicable Alternative Currency. Prior to
the occurrence of the event or events described in clause (i) or (ii) of the
preceding sentence, each amount payable hereunder in any such Alternative
Currency will, except as otherwise provided herein, continue to be payable only
in that Alternative Currency.
(b) The Company (acting on behalf of the Borrowers) shall from time to
time, at the request of the Administrative Agent, pay to the Administrative
Agent for the account of each Bank 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 Bank
or any holding company of such Bank as a result of the introduction of,
changeover to or operation of Euros in any applicable state to the extent
reasonably attributable to such Bank's obligations hereunder or for the credit
which is the subject matter hereof; provided, however, that (a) such Bank shall
promptly notify the Company of an event which might cause it to seek
compensation, and the Company shall be obligated to pay only such compensation
which is incurred or which arises after the date ninety (90) days prior to the
date such notice is given and (b) such Bank shall not be entitled to make such a
claim for compensation if the Bank has not generally been making claims for
compensation under similar circumstances from other borrowers similarly situated
under loan agreements with provisions comparable to this Section entitling the
Bank to make such a claim. In the event any circumstance arises by virtue of
which a Bank is determined to be entitled to a refund for any amount or amounts
which were paid or reimbursed by the Company to such Bank hereunder, such Bank
shall refund such amount or amounts to the Company without interest. Each Bank
that determines to seek compensation under this Section 12.29(b) shall notify
the Company and the Administrative Agent of the circumstances that entitle the
Bank to such compensation pursuant to this Section 12.29(b) and will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Bank, be
otherwise impractical or disadvantageous in any material respect to such Bank. A
certificate of any Bank claiming compensation under this Section 12.29(b) and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of demonstrable error. In determining such amount,
such Bank may use any reasonable averaging and attribution methods.
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The protection of this Section 12.29(b) shall be available to each Bank
regardless of any possible contention of the invalidity or inapplicability of
any law, regulation or other condition which shall give rise to any demand by
such Bank for compensation.
(c) With respect to the payment of any amount denominated in Euros or
in any Alternative Currency, the Administrative Agent shall not be liable to the
Company (acting on behalf of the Borrowers) or any of the Banks 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 any Alternative Currency) to the account with
the bank in the principal financial center in the Euro Member which the Company
(acting on behalf of the Borrowers) or, as the case may be, any Bank shall have
specified for such purpose. In this paragraph (c), "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 Euros.
(d) If the basis of accrual of interest or fees expressed in this
Agreement with respect to the currency of any state that becomes a Euro Member
shall be inconsistent with any convention or practice in the London interbank
market for the basis of accrual of interest or fees in respect of Euros, such
convention or practice shall replace such expressed basis effective as of and
from the date on which such state becomes a Euro Member; 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.
(e) In addition, the Company (acting on behalf of the Borrowers) and
the Administrative Agent shall enter into negotiations in good faith, if and to
the extent necessary, to amend this Agreement (including, without limitation,
the definition of Eurocurrency Loan) to reflect such EMU Commencement and change
in currency and to put the Banks and the Borrowers in the same position, so far
as possible, that they would have been in if such implementation and change in
currency had not occurred. The parties hereto acknowledge and agree that if,
within sixty (60) days of the commencement of such negotiations, the Company
(acting on behalf of the Borrowers) and the Administrative Agent fail to reach
agreement regarding any such amendments, then the provisions of Section 14.2
hereof shall be deemed operative and, until such an agreement is reached, the
obligations of the Banks to make Eurocurrency Loans in Euros or any other
Alternative Currency issued by a Euro Member shall be suspended. Except as
provided in the foregoing provisions of this Section 12.29, no such
implementation or change in currency nor any economic consequences resulting
therefrom shall (i) give rise to any right to terminate prematurely, contest,
cancel, rescind, alter, modify or renegotiate the provisions of this Agreement
or (ii) discharge, excuse or otherwise affect the performance of any obligations
of the Borrowers under this Agreement, any Notes or any other Loan Documents.
Section 12.30. Interest Rate Protection. On or before the date hereof,
the Company will hedge its interest rate risk on at least $100,000,000 in
principal amount of the Loans, or if less,
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the aggregate principal amount outstanding on the Loans, through the use of one
or more interest rate swaps, interest rate caps, interest rate collars or other
recognized interest rate hedging arrangements (collectively, "Rate Hedging
Arrangements"), with all of the foregoing to effectively limit the amount of
interest that such Borrower must pay on notional amounts of not less than such
portion of the Loans to not more than a rate reasonably acceptable to the
Administrative Agent in its discretion for a period ending no earlier than the
Revolving Credit Termination Date and to be with the Banks, their respective
Affiliates or with other parties reasonably acceptable to the Required Banks. If
any Borrower enters into any Rate Hedging Arrangements with any Bank, such
Borrower's obligations to such Bank in connection with such Rate Hedging
Arrangements do not constitute usage of the Commitments of such Bank.
SECTION 13. EVENTS OF DEFAULT AND REMEDIES.
Section 13.1. Events of Default. Any one or more of the following shall
constitute an Event of Default:
(a) default (x) in the payment when due of the principal
amount of any Loan or of any Reimbursement Obligation or (y) for a
period of five (5) days in the payment when due of interest or the fees
payable under Section 6 hereof or (z) for a period of ten (10) days in
the payment when due of any other Obligation;
(b) default by the Company or any Subsidiary in the
observance or performance of any covenant set forth in Sections 12.1,
12.6(c)(i), 12.9 through 12.12 or 12.14 through 12.25 hereof or of any
provision in any Loan Document dealing with the use, disposition or
remittance of the proceeds of Collateral or requiring the maintenance
of insurance thereon;
(c) default by the Company or any Subsidiary in the
observance or performance of any provision hereof or of any other Loan
Document not mentioned in (a) or (b) above, which is not remedied
within thirty (30) days after notice thereof to the Company by the
Administrative Agent;
(d) (i) failure to pay when due Debt of the Company or any
Subsidiary in an aggregate principal amount of $10,000,000 or more for
the Company and its Subsidiaries, taken together, or (ii) default shall
occur under one or more indentures, agreements or other instruments
under which any Debt of the Company or any Subsidiary in an aggregate
principal amount of $10,000,000 or more for the Company and its
Subsidiaries, taken together, may be issued or created and such default
shall continue for a period of time sufficient to permit the holder or
beneficiary of such Debt or a trustee therefor to cause the
acceleration of the maturity of any such Debt or any mandatory
unscheduled prepayment, purchase or funding thereof;
(e) any representation or warranty made herein or in any
other Loan Document by the Company or any Subsidiary, or in any
statement or certificate furnished pursuant hereto or pursuant to any
other Loan Document by the Company or any
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Subsidiary, or in connection with any Loan Document, proves untrue in
any material respect as of the date of the issuance or making, or
deemed making or issuance, thereof;
(f) the Company or any Significant Subsidiary shall (i) have
entered involuntarily against it an order for relief under the United
States Bankruptcy Code, as amended, or any analogous action is taken
under any other applicable law of any country or any political
subdivision thereof in each case relating to bankruptcy or insolvency,
(ii) fail to pay, or admit in writing its inability to pay, its debts
generally as they become due, (iii) make an assignment for the benefit
of creditors, (iv) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any substantial part of its Property, (v)
institute any proceeding seeking to have entered against it an order
for relief under the United States Bankruptcy Code, as amended, or any
analogous law of any country or any political subdivision thereof in
each case to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (vi) take any corporate action (such as the passage by the
Company's board of directors of a resolution) authorizing any matter
described in parts (i)-(v) above, or (vii) fail to contest in good
faith any appointment or proceeding described in Section 13.1(g)
hereof;
(g) a custodian, receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Company or any Significant
Subsidiary or any substantial part of any of their Property, or a
proceeding described in Section 13.1(f)(v) shall be instituted against
the Company or any Significant Subsidiary, and such appointment
continues undischarged or such proceeding continues undismissed or
unstayed for a period of forty-five (45) days;
(h) the Company or any Subsidiary shall fail within thirty
(30) days to pay, bond or otherwise discharge any judgment or order for
the payment of money (i) in an aggregate amount for the Company and its
Subsidiaries, taken together, equal to or greater than $10,000,000 in
excess of the amount covered by insurance from an insurer who has
acknowledged its liability thereon and (ii) not stayed on appeal or
otherwise being appropriately contested in good faith in a manner that
stays execution thereon;
(i) the Company or any other member of the Controlled Group
shall fail to pay when due an amount or amounts aggregating in excess
of $10,000,000 which it shall have become liable to pay to the PBGC or
to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans having aggregate Unfunded Vested Liabilities in excess of
$10,000,000 (collectively, a "Material Plan") shall be filed under
Title IV of ERISA by the Company or any Subsidiary or any other member
of the Controlled Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate or to cause a trustee to be appointed to
administer any Material Plan or a proceeding shall be instituted by a
fiduciary of any Material Plan against the Company or any other member
of the Controlled Group to
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enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within thirty (30) days thereafter; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be terminated;
(j) the Company or any Subsidiary, or any Person acting on
behalf of the Company or a Subsidiary, or any governmental authority
challenges the validity of any Loan Document or the Company's or a
Subsidiary's obligations thereunder or any Loan Document ceases to be
in full force and effect (other than by reason of action taken by the
Administrative Agent or the Banks); or
(k) a Change of Control Event shall occur.
Section 13.2. Non-Bankruptcy Defaults. When any Event of Default other
than those described in subsections (f) or (g) of Section 13.1 hereof has
occurred and is continuing, the Administrative Agent shall, by written notice to
the Company: (a) if so directed by the Required Banks, terminate the remaining
Commitments and all other obligations of the Banks hereunder on the date stated
in such notice (which may be the date thereof); (b) if so directed by the
Required Banks, declare the principal of and the accrued interest on all
outstanding Notes to be forthwith due and payable and thereupon all outstanding
Notes, including both principal and interest thereon, shall be and become
immediately due and payable together with all other amounts payable under the
Loan Documents without further demand, presentment, protest or notice of any
kind; and (c) if so directed by the Required Banks, demand that the Company and
(subject to Section 17.19) the other Borrowers immediately pay to the
Administrative Agent, subject to Section 13.4, the full amount then available
for drawing under each or any Letter of Credit, and the Company and such
Borrowers agree to immediately make such payment and acknowledge and agree that
the Banks would not have an adequate remedy at law for failure by the Company
and such Borrowers to honor any such demand and that the Administrative Agent,
for the benefit of the Banks, shall have the right to require the Company and
such Borrowers to specifically perform such undertaking whether or not any
drawings or other demands for payment have been made under any Letter of Credit.
The Administrative Agent, after giving notice to the Company pursuant to Section
13.1(c) or this Section 13.2, shall also promptly send a copy of such notice to
the other Banks, but the failure to do so shall not impair or annul the effect
of such notice.
Section 13.3. Bankruptcy Defaults. When any Event of Default described
in subsections (f) or (g) of Section 13.1 hereof has occurred and is continuing,
then all outstanding Notes shall immediately become due and payable together
with all other amounts payable under the Loan Documents without presentment,
demand, protest or notice of any kind, the obligation of the Banks to extend
further credit pursuant to any of the terms hereof shall immediately terminate
and the Company and (subject to Section 17.19) the other Borrowers shall
immediately pay to the Administrative Agent, subject to Section 13.4, the full
amount then available for drawing under all outstanding Letters of Credit, the
Company and such Borrowers acknowledging that the Banks would not have an
adequate remedy at law for failure by the Company and such Borrowers to honor
any such demand and that the Banks, and the Administrative Agent on their
behalf, shall have the right to require the Company and such
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Borrowers to specifically perform such undertaking whether or not any draws or
other demands for payment have been made under any of the Letters of Credit.
Section 13.4. Collateral for Undrawn Letters of Credit. (a) If the
payment or prepayment of the amount available for drawing under any or all
outstanding Letters of Credit is required under Section 1.2(d) or Section 5.4(c)
or under Section 13.2 or 13.3 above, the Company and (subject to Section 17.19)
the other Borrowers shall forthwith pay the amount required to be so prepaid, to
be held by the Administrative Agent as provided in subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a) above shall be held
by the Administrative Agent in a separate collateral account (such account, and
the credit balances, properties and any investments from time to time held
therein, and any substitutions for such account, any certificate of deposit or
other instrument evidencing any of the foregoing and all proceeds of and
earnings on any of the foregoing being collectively called the "Account") as
security for, and for application by the Administrative Agent (to the extent
available) to, the reimbursement of any payment under any Letter of Credit then
or thereafter made by an Issuing Agent, and thereafter to the payment of the
unpaid balance of any Loans and all other Obligations. The Account shall be held
in the name of and subject to the exclusive dominion and control of the
Administrative Agent for the benefit of the Administrative Agent and the Banks.
If and when requested by the Company, the Administrative Agent shall invest
funds held in the Account from time to time in direct obligations of, or
obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America with a remaining maturity of one
year or less, provided that the Administrative Agent is irrevocably authorized
to sell investments held in the Account when and as required to make payments
out of the Account for application to Obligations then due and owing; provided,
however, that if (i) all the obligations referred to in subsection (a) above
shall have been paid and (ii) no Letters of Credit, Commitments, Loans or other
Obligations remain outstanding hereunder, then the Administrative Agent shall
repay to the Company any remaining amounts held in the Account.
Section 13.5. Notice of Default. The Administrative Agent shall give
notice to the Company under Section 13.1(c) hereof promptly upon being requested
to do so by any Bank and shall thereupon notify all the Banks thereof.
Section 13.6. Expenses. The Company and (subject to Section 17.19
hereof) the other Borrowers agree to pay to the Administrative Agent and each
Bank, and any other holder of any Note outstanding hereunder, all reasonable
out-of-pocket expenses incurred or paid by the Administrative Agent and such
Bank or any such holder, including reasonable attorneys' fees (which in any
event may include allocated costs of in-house counsel) and court costs, in
connection with any Default or Event of Default or in connection with the
enforcement of any of the Loan Documents.
SECTION 14. CHANGE IN CIRCUMSTANCES.
Section 14.1. Change of Law. Notwithstanding any other provisions of
this Agreement or any Note, if at any time after the date hereof any change in
applicable law or regulation or in the interpretation thereof makes it unlawful
for any Bank to make or continue to maintain
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Eurocurrency Loans or to perform its obligations as contemplated hereby, such
Bank shall promptly give notice thereof to the Company (with a copy to the
Administrative Agent) and such Bank's obligations to make or maintain
Eurocurrency Loans under this Agreement shall terminate until it is no longer
unlawful for such Bank to make or maintain Eurocurrency Loans. The Company and
(subject to Section 17.19) the other Borrowers shall prepay on demand the
outstanding principal amount of any such affected Eurocurrency Loans, together
with all interest accrued thereon at a rate per annum equal to the interest rate
applicable to such Loan; provided, however, subject to all of the terms and
conditions of this Agreement, the Company or applicable Borrower may then elect
to borrow the principal amount of the affected Eurocurrency Loans from such Bank
by means of Domestic Rate Loans from such Bank, which Domestic Rate Loans shall
not be made ratably by the Banks but only from such affected Bank.
Section 14.2. Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR. If on or prior to the first day of any Interest Period for
any Borrowing of Eurocurrency Loans:
(a) the Administrative Agent (or in the case of a
Multicurrency Swing Line Loan, the Multicurrency Swing Line Bank)
determines that deposits in U.S. Dollars or the applicable Alternative
Currency (in the applicable amounts) are not being offered to it in the
eurocurrency interbank market for such Interest Period, or that by
reason of circumstances affecting the interbank eurocurrency market
adequate and reasonable means do not exist for ascertaining the
applicable LIBOR, or
(b) Banks having 25% or more of the aggregate amount of the
Revolving Credit Commitments reasonably determine and so advise the
Administrative Agent that LIBOR as reasonably determined by the
Administrative Agent will not adequately and fairly reflect the cost to
such Banks of funding their Eurocurrency Loans or Loan for such
Interest Period,
then the Administrative Agent shall forthwith give notice thereof to the Company
and the Banks, whereupon until the Administrative Agent notifies the Company
that the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make Eurocurrency Loans in the currency so affected
shall be suspended.
Section 14.3. Increased Cost and Reduced Return. (a) If, on or after the
date hereof, 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 Bank (or its
Lending Office), including (if applicable) in its capacity as an Issuing Agent
or Swing Line Bank hereunder, with any request or directive (whether or not
having the force of law but, if not having the force of law, compliance with
which is customary in the relevant jurisdiction) of any such authority, central
bank or comparable agency:
(i) shall subject any Bank (or its Lending Office) to any
tax, duty or other charge with respect to its Fixed Rate Loans, its
Notes, its Letter(s) of Credit, or its participation in any thereof,
any Reimbursement Obligations owed to it or its obligation
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to make Fixed Rate Loans, issue a Letter of Credit, or to participate
therein, or shall change the basis of taxation of payments to any Bank
(or its Lending Office) of the principal of or interest on its Fixed
Rate Loans, Letter(s) of Credit, or participations therein or any other
amounts due under this Agreement in respect of its Fixed Rate Loans,
Letter(s) of Credit, or participations therein, any Reimbursement
Obligations owed to it, or its obligation to make Fixed Rate Loans,
issue a Letter of Credit, or acquire participations therein (except for
changes in the tax on the overall net income or profits of such Bank or
its Lending Office imposed by the jurisdiction in which such Bank or
its Lending Office is incorporated or in which such Bank's principal
executive office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System or with respect to Obligations denominated in Pound
Sterling, the Bank of England, but excluding with respect to any
Eurocurrency Loans any such requirement to the extent such Bank has
already been compensated pursuant to the second paragraph of Section
2.1(b) hereof) against assets of, deposits with or for the account of,
or credit extended by, any Bank (or its Lending Office) or shall impose
on any Bank (or its Lending Office) or on the interbank market any
other condition affecting its Fixed Rate Loans, its Notes, its
Letter(s) of Credit, or its participation in any thereof, any
Reimbursement Obligation owed to it, or its obligation to make Fixed
Rate Loans, to issue a Letter of Credit, or to participate therein;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Fixed Rate Loan, issuing or
maintaining a Letter of Credit, or participating therein, or to reduce the
amount of any sum received or receivable by such Bank (or its Lending Office)
under this Agreement or under its Notes with respect thereto, by an amount
deemed by such Bank to be material, then, within fifteen (15) days after demand
by such Bank (with a copy to the Administrative Agent), the Company and (subject
to Section 17.19 hereof) the other Borrowers shall be jointly and severally
obligated to pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction; provided, however,
that (a) such Bank shall promptly notify the Company of an event which might
cause it to seek compensation, and the Company shall be obligated to pay only
such compensation which is incurred or which arises after the date ninety (90)
days prior to the date such notice is given and (b) such Bank shall not be
entitled to make such a claim for compensation if the Bank has not generally
been making claims for compensation under similar circumstances from other
borrowers similarly situated under loan agreements with provisions comparable to
this Section entitling the Bank to make such a claim. In the event any law,
rule, regulation or interpretation described above is revoked, declared invalid
or inapplicable or is otherwise rescinded, and as a result thereof a Bank is
determined to be entitled to a refund from the applicable authority for any
amount or amounts which were paid or reimbursed by the Company to such Bank
hereunder, such Bank shall refund such amount or amounts to the Company without
interest.
(b) If, after the date hereof, any Bank (including in its capacity as
an Issuing Agent or Swing Line Bank hereunder) or the Administrative Agent shall
have determined that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change
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therein (including, without limitation, any revision in the Final Risk-Based
Capital Guidelines of the Board of Governors of the Federal Reserve System (12
CFR Part 208, Appendix A; 12 CFR Part 225, Appendix A) or of the Office of the
Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any other
applicable capital rules heretofore adopted and issued by any governmental
authority), 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 Bank (or its
Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law but, if not having the force of law,
compliance with which is customary in the applicable jurisdiction) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Bank's capital, or on the capital of any
corporation controlling such Bank, as a consequence of its obligations hereunder
to a level below that which such Bank could have achieved but for such adoption,
change or compliance (taking into consideration such Bank's policies with
respect to capital adequacy) by an amount deemed by such Bank to be material,
then from time to time, within fifteen (15) days after demand by such Bank (with
a copy to the Administrative Agent), the Company and (subject to Section 12.17
hereof) the other Borrowers shall pay to such Bank such additional amount or
amounts as will compensate such Bank for such reduction; provided, however, that
(a) such Bank shall promptly notify the Company of an event which might cause it
to seek compensation, and the Company and (subject to Section 17.19 hereof) the
other Borrowers shall be obligated to pay only such compensation which is
incurred or which arises after the date ninety (90) days prior to the date such
notice is given and (b) such Bank shall not be entitled to make such a claim for
compensation if the Bank has not generally been making claims for compensation
under similar circumstances from other borrowers similarly situated under loan
agreements with provisions comparable to this Section entitling the Bank to make
such a claim.
(c) Each Bank that determines to seek compensation under this Section
14.3 shall notify the Company and the Administrative Agent of the circumstances
that entitle the Bank to such compensation pursuant to this Section 14.3 and
will designate a different Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise impractical or disadvantageous in any
material respect to such Bank. A certificate of any Bank claiming compensation
under this Section 14.3 and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of demonstrable error.
In determining such amount, such Bank may use any reasonable averaging and
attribution methods. The protection of this Section 14.3 shall be available to
each Bank regardless of any possible contention of the invalidity or
inapplicability of any law, regulation or other condition which shall give rise
to any demand by such Bank for compensation.
Section 14.4. Lending Offices. Subject to Sections 4.2, 14.3(c) and
17.1(d) hereof, each Bank may, at its option, elect to make its Loans hereunder
at the branch office or affiliate specified on the appropriate signature page
hereof (each a "Lending Office") for each type of Loan available hereunder or at
such other of its branches, offices or affiliates as it may from time to time
elect and designate in a written notice to the Company and the Administrative
Agent. The Borrowers shall have no obligations under Section 14.3 to indemnify a
Bank for any cost or loss incurred by it which results solely from such Bank's
changing any applicable Lending
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Office other than any such change which, in the judgment of such Bank, is
required by this Agreement.
Section 14.5. Discretion of Bank as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Bank shall be
entitled to fund and maintain its funding of all or any part of its Loans in any
manner it sees fit, it being understood, however, that for the purposes of this
Agreement all determinations hereunder shall be made as if each Bank had
actually funded and maintained each Eurocurrency Loan through the purchase of
deposits of U.S. Dollars or the applicable Alternative Currency in the
eurocurrency interbank market having a maturity corresponding to such Loan's
Interest Period and bearing an interest rate equal to LIBOR for such Interest
Period.
SECTION 15. THE AGENTS.
Section 15.1. Appointment and Authorization of Agents. Each Bank hereby
appoints Harris Trust and Savings Bank as the Administrative Agent under the
Loan Documents and hereby appoints the Administrative Agent and LaSalle Bank
National Association as Issuing Agents hereunder and hereby appoints each Swing
Line Bank to act as such hereunder. Each Bank hereby authorizes each Agent to
take such action as such Agent on its behalf and to exercise such powers under
the Loan Documents as are delegated to such Agent by the terms thereof, together
with such powers as are reasonably incidental thereto.
Section 15.2. Agents and Its Affiliates. Each Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any other
Bank and may exercise or refrain from exercising the same as though it were not
an Agent, and each Agent and its affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with any Borrower or any
Affiliate of the Company as if it were not an Agent under the Loan Documents.
The term "Bank" as used herein and in all other Loan Documents, unless the
context otherwise clearly requires, includes each Agent in its individual
capacity as a Bank. References in Sections 1, 2 or 3 hereof to an Agent's Loans,
or to the amount owing to such Agent for which an interest rate is being
determined, refer to such Agent in its individual capacity as a Bank.
Section 15.3. Action by Agents. If the Administrative Agent receives
from the Company a written notice of an Event of Default pursuant to Section
12.6(c)(i) hereof, the Administrative Agent shall promptly give each of the
Banks written notice thereof. The obligations of each Agent under the Loan
Documents are only those expressly set forth therein. Each Agent shall be acting
as an independent contractor hereunder and nothing herein shall be deemed to
impose on such Agent any fiduciary obligations to the Banks or the Borrowers.
Without limiting the generality of the foregoing, no Agent shall be required to
take any action hereunder with respect to any Default or Event of Default,
except as expressly provided in Sections 13.2 and 13.5. Upon the occurrence of
an Event of Default, the Administrative Agent shall take such action to enforce
its Lien on the Collateral and to preserve and protect the Collateral as may be
directed by the Required Banks. In no event, however, shall any Agent be
required to take any action in violation of applicable law or of any provision
of any Loan Document, and each Agent shall in all cases be fully justified in
failing or refusing to act hereunder or under any other Loan Document unless it
shall be first indemnified to its reasonable satisfaction by the Banks against
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any and all costs, expense, and liability which may be incurred by it by reason
of taking or continuing to take any such action. Each Agent shall be entitled to
assume that no Default or Event of Default exists unless notified to the
contrary by a Bank or the Company. In all cases in which this Agreement and the
other Loan Documents do not require an Agent to take certain actions, such Agent
shall be fully justified in using its discretion in failing to take or in taking
any action hereunder and thereunder.
Section 15.4. Consultation with Experts. Each Agent may consult with
legal counsel, independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
Section 15.5. Liability of Agents; Credit Decision. Neither any Agent
nor any of its directors, officers, agents, or employees shall be liable for any
action taken or not taken by it in connection with the Loan Documents (i) with
the consent or at the request of the Required Banks or (ii) in the absence of
its own gross negligence or willful misconduct. Neither any Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement, any other Loan Document
or any Credit Event; (ii) the performance or observance of any of the covenants
or agreements of any Borrower or Guarantor contained herein or in any other Loan
Document; (iii) the satisfaction of any condition specified in Section 11
hereof, except receipt of items required to be delivered to any Agent; (iv) the
validity, effectiveness, genuineness, enforceability, perfection, value, worth
or collectibility hereof or of any other Loan Document or of any other documents
or writing furnished in connection with any Loan Document or of any Collateral;
and no Agent makes any representation of any kind or character with respect to
any such matter mentioned in this sentence. Each Agent may execute any of its
duties under any of the Loan Documents by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Banks, any Borrower, or any
Guarantor or any other Person for the default or misconduct of any such agents
or attorneys-in-fact selected with reasonable care. No Agent shall incur any
liability by acting in reliance upon any notice, consent, certificate, other
document or statement (whether written or oral) believed by it to be genuine or
to be sent by the proper party or parties. In particular and without limiting
any of the foregoing, no Agent shall have any responsibility for confirming the
accuracy of any Compliance Certificate or other document or instrument received
by it under the Loan Documents. The Administrative Agent may treat the Banks
that are named herein as the holders of the Notes and the other Obligations
contemplated herein unless and until the Administrative Agent receives notice of
the assignment of the relevant Note and other Obligations held by a Bank
hereunder pursuant to an assignment contemplated by Section 17.12 hereof. Each
Bank acknowledges that it has independently and without reliance on any Agent or
any other Bank, and based upon such information, investigations and inquiries as
it deems appropriate, made its own credit analysis and decision to extend credit
to the Borrowers in the manner set forth in the Loan Documents. It shall be the
responsibility of each Bank to keep itself informed as to the creditworthiness
of the Borrowers and the Guarantors, and no Agent shall have any liability to
any Bank with respect thereto.
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Section 15.6. Indemnity. The Banks shall ratably, in accordance with
their respective Percentages, indemnify and hold each Agent, and its directors,
officers, employees, agents and representatives harmless from and against any
liabilities, losses, costs or expenses suffered or incurred by it under any Loan
Document or in connection with the transactions contemplated thereby, regardless
of when asserted or arising, except to the extent they are promptly reimbursed
for the same by the Borrowers (without in any way impairing or otherwise
affecting the Borrowers' joint and several obligations to do so) and except to
the extent that any event giving rise to a claim was caused by the gross
negligence or willful misconduct of the party seeking to be indemnified. The
obligations of the Banks under this Section 15.6 shall survive termination of
this Agreement.
Section 15.7. Resignation or Removal of Administrative Agent and
Successor Administrative Agent. The Administrative Agent may resign at any time
by giving written notice thereof to the Banks and the Company, and the
Administrative Agent may be removed at any time by written notice of removal
from the Required Banks to the Administrative Agent and the Company. Upon any
such resignation or removal of the Administrative Agent, the Required Banks
shall have the right to appoint a successor Administrative Agent with the
consent of the Company (which shall not be unreasonably withheld); provided,
however, the consent of the Company shall not be so required upon the occurrence
and during the continuance of an Event of Default hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Banks, and
shall have accepted such appointment, within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation or the Required Banks
giving notice of the retiring Administrative Agent's removal, then the retiring
Administrative Agent may, on behalf of the Banks, with the consent of the
Company (which shall not be unreasonably withheld) appoint a successor
Administrative Agent, which shall be any Bank hereunder or any commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $200,000,000; provided,
however, the consent of the Company shall not be so required upon the occurrence
and during the continuance of an Event of Default hereunder. Upon the acceptance
of its appointment as the Administrative Agent hereunder, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring or removed Administrative Agent under the Loan
Documents, and the retiring Administrative Agent shall be discharged from its
duties and obligations thereunder. After any retiring Administrative Agent's
resignation or removal hereunder as an Agent, the provisions of this Section 15
and all protective provisions of the other Loan Documents shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent.
Section 15.8. Payments.
(a) To Administrative Agent. Unless the Administrative Agent shall have
been notified by a Bank prior to the date on which such Bank is scheduled to
make payment to the Administrative Agent of the proceeds of a Loan (which notice
shall be effective upon receipt) that such Bank does not intend to make such
payment, the Administrative Agent may assume that such Bank has made such
payment when due and the Administrative Agent may in reliance upon such
assumption (but shall not be required to) make available to the Borrower the
proceeds of the Loan to be made by such Bank and, if any Bank has not in fact
made such payment to the
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Administrative Agent, such Bank shall, on demand, pay to the Administrative
Agent the amount made available to the Borrower attributable to such Bank
together with interest thereon in respect of each day during the period
commencing on the date such amount was made available to the Borrower and ending
on (but excluding) the date such Bank pays such amount to the Administrative
Agent at a rate per annum equal to the Federal Funds Rate. If such amount is not
received from such Bank by the Administrative Agent immediately upon demand, the
Borrower will, on demand, repay to the Administrative Agent the proceeds of the
Loan attributable to such Bank with interest thereon at a rate per annum equal
to the interest rate applicable to the relevant Loan, but without such payment
being considered a payment or prepayment of a Loan, so that the Borrower will
have no liability under Section 5.8 hereof with respect to such payment.
(b) From Administrative Agent. On any Business Day that the
Administrative Agent receives a payment from a Borrower by the time required by
Section 6.7 hereof, the Administrative Agent shall be required to pay to each
Bank for whose account such payment is received its share of such amount before
the close of business on such day. If the Administrative Agent receives any such
payment after the time required by Section 6.7 hereof, the Administrative Agent
shall only be required to remit such payment to the Bank or Banks for whose
account such payment was received on the following Business Day. If the
Administrative Agent fails to remit a payment to a Bank on the Business Day
required in this Section 15.8(b), the Administrative Agent shall pay to such
Bank interest on the U.S. Dollar Equivalent of the amount it was required to
remit (as determined as of the day the Administrative Agent was required to make
such remittance) at the Federal Funds Rate for each day that such amount is not
so remitted.
Section 15.9. Co-Agents. Notwithstanding anything herein to the
contrary, nothing in this Agreement shall impose any obligation whatsoever on
any of LaSalle Bank National Association, Bank One, NA, The Bank of New York or
Credit Agricole Indosuez in their capacity as Co-Agents.
SECTION 16. THE GUARANTEES.
Section 16.1. The Guarantees. To induce the Banks to provide the credits
described herein and in consideration of benefits expected to accrue to each
Guarantor by reason of the Commitments and for other good and valuable
consideration, receipt of which is hereby acknowledged, each Guarantor hereby
unconditionally, irrevocably and jointly and severally guarantees to each Agent,
the Banks, and each other holder of an obligation hereby guaranteed, the due and
punctual payment of (i) all present and future Obligations and (ii) any present
and future Hedging Liability. If any Borrower or Guarantor fails to pay
punctually any indebtedness or other obligations guaranteed hereby, each
Guarantor hereby unconditionally agrees jointly and severally to make such
payment or to cause such payment to be made punctually as and when the same
shall become due and payable, whether at stated maturity, by acceleration or
otherwise, and as if such payment were made by such Borrower or Guarantor.
Section 16.2. Guarantee Unconditional. The obligations of each Guarantor
as a guarantor under this Section 16 shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
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(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any indebtedness or other obligation of any
Borrower or of any other Guarantor under this Agreement or any other
Loan Document or by operation of law or otherwise;
(b) any modification or amendment of or supplement to this
Agreement or any other Loan Document;
(c) any change in the corporate existence, structure or
ownership of, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting, any Borrower, any other Guarantor, or any
of their respective assets, or any resulting release or discharge of
any obligation of any Borrower or of any other Guarantor contained in
any Loan Document;
(d) the existence of any claim, set-off or other rights which
the Guarantor may have at any time against any Agent, any Bank or any
other Person, whether or not arising in connection herewith;
(e) any failure to assert, or any assertion of, any claim or
demand or any exercise of, or failure to exercise, any rights or
remedies against any Borrower, any other Guarantor or any other Person
or Property;
(f) any application of any sums by whomsoever paid or
howsoever realized to any obligation of any Borrower, regardless of
what obligations of any Borrower remain unpaid;
(g) any invalidity or unenforceability relating to or against
any Borrower or any other Guarantor for any reason of this Agreement or
of any other Loan Document or any provision of applicable law or
regulation purporting to prohibit the payment by any Borrower or any
other Guarantor of the principal of or interest on any Loan or any
other Obligations; or
(h) any other act or omission to act or delay of any kind by
any Agent, any Bank or any other Person or any other circumstance
whatsoever that might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the obligations of the
Guarantor under this Section 16.
Section 16.3. Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances. Each Guarantor's obligations under this Section 16 shall
remain in full force and effect until the Commitments are terminated and the
principal of and interest on the Loans and all other Obligations shall have been
paid in full. If at any time any payment of the principal of or interest on any
Loan or any other Obligations is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of a Borrower or of a
Guarantor, or otherwise, each Guarantor's obligations under this Section 16 with
respect to such payment shall be reinstated at such time as though such payment
had become due but had not been made at such time.
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Section 16.4. Waivers.
(a) General. Each Guarantor 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 Agent, any Bank or
any other Person against any Borrower, another Guarantor or any other Person.
(b) Subrogation and Contribution. Unless and until the Obligations have
been fully paid and satisfied and the Commitments have terminated, each
Guarantor hereby agrees not to exercise or otherwise assert any claim or other
right it may now or hereafter acquire against any Borrower or any other
Guarantor that arises from the existence, payment, performance or enforcement of
such Guarantor's obligations under this Section 16 or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, or any right to participate in any
claim or remedy of any Agent, any Bank or any other holder of the indebtedness
guaranteed hereby against any Borrower or any other Guarantor whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from any
Borrower or any other Guarantor directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other right.
Section 16.5. Limit on Recovery. Notwithstanding any other provision
hereof, the right to recovery of the holders of the Obligations against each
Guarantor under this Section 16 shall not exceed the amount which would render
such Guarantor's obligations under this Section 16 void or voidable under
applicable law, including without limitation fraudulent conveyance law less
$1.00.
Section 16.6. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by any Borrower under this Agreement or any other
Loan Document is stayed upon the insolvency, bankruptcy or reorganization of any
Borrower, all such amounts otherwise subject to acceleration under the terms of
this Agreement or the other Loan Documents shall nonetheless be payable jointly
and severally by the Guarantors hereunder forthwith on demand by the
Administrative Agent made at the request of the Required Banks.
Section 16.7. Benefit to Guarantors. The Company and all of the other
Guarantors are engaged in related businesses and integrated to such an extent
that the financial strength and flexibility of each Guarantor has a direct
impact on the success of each other Guarantor. Each Guarantor will derive
substantial direct and indirect benefit from the extension of credit hereunder.
SECTION 17. MISCELLANEOUS.
Section 17.1. Withholding Taxes.
(a) Payments Free of Withholding. Except as otherwise required by law
and subject to Section 17.1(b) hereof, each payment by each Borrower and
Guarantor under this Agreement or the other Loan Documents shall be made without
withholding for or on account of any present or
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future taxes (other than overall net income taxes on the recipient) imposed by
or within the jurisdiction in which such Borrower or Guarantor is domiciled, any
jurisdiction from which such Borrower or Guarantor makes any payment, or (in
each case) any political subdivision or taxing authority thereof or therein. If
any such withholding is so required, the relevant Borrower or Guarantor shall
make the withholding, pay the amount withheld to the appropriate governmental
authority before penalties attach thereto or interest accrues thereon and
forthwith pay such additional amount as may be necessary to ensure that the net
amount actually received by each Bank (including the Swing Line Banks) and each
Agent free and clear of such taxes (including such taxes on such additional
amount) is equal to the amount which that Bank or any Agent (as the case may be)
would have received had such withholding not been made. If any Agent or Bank
pays any amount in respect of any such taxes, penalties or interest the relevant
Borrower or Guarantor shall reimburse that Agent or Bank for that payment on
demand in the currency in which such payment was made. If any Borrower or
Guarantor pays any such taxes, penalties or interest, it shall deliver official
tax receipts evidencing that payment or certified copies thereof to the Bank or
Agent on whose account such withholding was made (with a copy to the
Administrative Agent if not the recipient of the original) on or before the
ninetieth day after payment. If any Bank or Agent determines it has received or
been granted a credit against or relief or remission for, or repayment of, any
taxes paid or payable by it because of any taxes, penalties or interest paid by
any Borrower or Guarantor and evidenced by such a tax receipt, such Bank or
Agent shall, to the extent it can do so without prejudice to the retention of
the amount of such credit, relief, remission or repayment, pay to such Borrower
or Guarantor as applicable, such amount as such Bank or Agent determines is
attributable to such deduction or withholding and which will leave such Bank or
Agent (after such payment) in no better or worse position than it would have
been in if the relevant Borrower or Guarantor had not been required to make such
deduction or withholding. Nothing in this Agreement shall interfere with the
right of each Bank and Agent to arrange its tax affairs in whatever manner it
thinks fit nor oblige any Bank or Agent to disclose any information relating to
its tax affairs or any computations in connection with such taxes.
(b) U.S. Withholding Tax Exemptions. (i) Each Bank that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) (a
"Non-U.S. Person") shall submit to the Company and the Administrative Agent on
or before the earlier of the date the initial Borrowing is made hereunder and
thirty (30) days after the date hereof (or within thirty (30) days after such
Person becomes a Bank), two duly completed and signed copies of either Form 1001
(relating to such Bank and entitling it to a complete exemption from withholding
under the Code on all amounts to be received by such Bank, including fees,
pursuant to the Loan Documents and the Loans) or Form 4224 (relating to all
amounts to be received by such Bank, including fees, pursuant to the Loan
Documents and the Loans) of the United States Internal Revenue Service or, in
the case of any Bank exempt from United States Federal withholding tax pursuant
to Sections 871(h) or 881(c) of the Code, a Form W-8 or any successor applicable
form (a "Form W-8") together with a statement under penalty of perjury that such
Bank is not a "bank" under Section 881(c)(3) of the Code. Thereafter and from
time to time, each such Bank shall submit to any Borrower and the Administrative
Agent such additional duly completed and signed copies of one or the other of
such Forms (or such successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may be (i) requested by the
Company or such Borrower in a written notice, directly or through the
Administrative Agent, to such Bank and
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(ii) required under then-current United States law or regulations to avoid or
reduce United States withholding taxes on payments in respect of all amounts to
be received by such Bank, including fees, pursuant to the Loan Documents or the
Loans. Each Bank that is a Non-U.S. Person and that is a party hereto as of the
Effective Date hereby represents and warrants that, as of the Effective Date,
payments made to it hereunder are exempt from the withholding of United States
Federal income taxes (i) because such payments are effectively connected with a
United States trade or business conducted by such Non-U.S. Person; (ii) pursuant
to the terms of an income tax treaty between the United States and such Non-U.S.
Person's country of residence; or (iii) because such payments are portfolio
interest exempt pursuant to Sections 871(h) or 881(c) of the Code.
(ii) Each Bank agrees at the Company's expense to complete, accurately
and in a manner reasonably satisfactory to the Company and the Administrative
Agent, and to execute, arrange for any required certification of, and deliver to
the Company and the Administrative Agent (or to such government or taxing
authority as the Company or Administrative Agent reasonably directs), any other
form or document that may be required under the laws of any jurisdiction outside
the United States to allow any Borrower or Guarantor to make a payment under
this Agreement or the other Loan Documents without any deduction or withholding
for or on account of any taxes of the type described in Section 17.1 hereof or
with any such deduction or withholding for or on account of such taxes at a
reduced rate, in each case so long as such Bank is (i) legally entitled to
provide such certification and deliver such form or document and (ii) such
action is consistent with its overall tax policies and is not otherwise, in the
judgment of such Bank, impractical or disadvantageous in any material respect to
such Bank.
(c) Inability of Bank to Submit Forms. If any Bank determines, as a
result of any change in applicable law, regulation or treaty, or in any official
application or interpretation thereof, that it is unable to submit to any
Borrower or the Administrative Agent any form or certificate that such Bank is
obligated to submit pursuant to subsection (b) of this Section 17.1 or that such
Bank is required to withdraw or cancel any such form or certificate previously
submitted or any such form or certificate otherwise becomes ineffective or
inaccurate, such Bank shall promptly notify the Company or such Borrower and the
Administrative Agent of such fact and the Bank shall to that extent not be
obligated to provide any such form or certificate and will be entitled to
withdraw or cancel any affected form or certificate, as applicable.
(d) Lending Office. Each Bank will use reasonable efforts to make its
Loans from its Lending Offices in jurisdictions in which liability for taxes
with respect to the payments and remittances described in Section 17.1(a) above
will be eliminated or minimized unless to do so would, in the judgment of such
Bank, be impractical or disadvantageous to such Bank. The parties hereto
understand and agree that such agreement by each Bank is an agreement by such
Bank only and not binding on any Affiliates of such Bank.
(e) Change of Office or Failure to Provide Tax Forms. Notwithstanding
any provision of Section 17.1(a) above to the contrary, the Borrower shall not
have any obligation to pay any taxes or to indemnify any Bank for such taxes
pursuant to this Section 17.1 to the extent that such taxes result from (i) the
failure of any Bank to comply with its obligations pursuant to Section 17.1(b)
or (ii) any representation made on Form 1001, 4224 or W-8 or successor
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applicable form or certification by any Bank incurring such taxes proving to
have been incorrect, false or misleading in any material respect when so made or
deemed to be made or (iii) such Bank changing its Lending Office to a
jurisdiction in which such taxes arise, except to the extent in the judgment of
such Bank such change was required by the terms of this Agreement.
Section 17.2. No Waiver of Rights. No delay or failure on the part of
any Agent, Bank or Borrower or on the part of the holder or holders of any Note
in the exercise of any power or right afforded such party under any Loan
Document shall operate as a waiver thereof, nor as an acquiescence in any
default, nor shall any single or partial exercise thereof preclude any other or
further exercise of any other power or right, and the rights and remedies
hereunder of the Agents, the Banks, the Borrowers and the holder or holders of
any Notes are cumulative to, and not exclusive of, any rights or remedies which
any of them would otherwise have.
Section 17.3. Non-Business Day. If any payment of principal or interest
on any Loan or of any other Obligation shall fall due on a day which is not a
Business Day, interest or fees (as applicable) at the rate, if any, such Loan or
other Obligation bears for the period prior to maturity shall continue to accrue
on such Obligation from the stated due date thereof to and including the next
succeeding Business Day, on which the same shall be payable.
Section 17.4. Documentary Taxes. The Company and (subject to Section
17.19 hereof) the other Borrowers agree that they will pay any documentary,
stamp or similar taxes payable in respect to any Loan Document, including
interest and penalties, in the event any such taxes are assessed, irrespective
of when such assessment is made and whether or not any credit is then in use or
available hereunder.
Section 17.5. Survival of Representations. All representations and
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
shall continue in full force and effect with respect to the date as of which
they were made as long as any credit is in use or available hereunder.
Section 17.6. Survival of Indemnities. All indemnities and all other
provisions relative to reimbursement to the Banks of amounts sufficient to
protect the yield of the Banks with respect to the Loans, including, but not
limited to, Section 5.8, Section 14.3 and Section 17.15 hereof, shall survive
the termination of this Agreement and the other Loan Documents and the payment
of the Loans and all other Obligations.
Section 17.7. Sharing of Set-Off. Each Bank agrees with each other Bank
a party hereto that if such Bank shall receive and retain any payment, whether
by set-off or application of deposit balances or otherwise ("Set-off"), on any
of the Committed Loans or Reimbursement Obligations in excess of its ratable
share (in accordance with its Percentage) of payments on all such Committed
Obligations then outstanding to the Banks, then such Bank shall purchase for
cash at face value, but without recourse, ratably from each of the other Banks
such amount of the Committed Loans or Reimbursement Obligations, or
participations therein, held by each such other Banks (or interest therein) as
shall be necessary to cause such Bank to share such excess payment ratably with
all the other Banks; provided, however, that if any such purchase is made
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by any Bank, and if such excess payment or part thereof is thereafter recovered
from such purchasing Bank, the related purchases from the other Banks shall be
rescinded ratably and the purchase price restored as to the portion of such
excess payment so recovered, but without interest. For purposes of this Section
17.7, amounts owed to or recovered by, an Issuing Agent in connection with
Reimbursement Obligations in which Banks have been required to fund their
participation shall be treated as amounts owed to or recovered by such Issuing
Agent as a Bank hereunder.
Section 17.8. Notices. Except as otherwise specified herein, all notices
under the Loan Documents shall be in writing (including telecopy or other
electronic communication) and shall be given to a party hereunder at its address
or telecopier number set forth below or such other address or telecopier number
as such party may hereafter specify by notice to the Administrative Agent and
the Company, given by courier, by United States certified or registered mail, or
by other telecommunication device capable of creating a written record of such
notice and its receipt. Notices under the Loan Documents to the Banks and the
Administrative Agent shall be addressed to their respective addresses,
telecopier or telephone numbers set forth on the signature pages hereof, and to
the Borrowers and the Guarantors in all cases to:
General Binding Corporation
One GBC Plaza
Northbrook, Illinois 60062
Telephone: (847) 272-3700
Telecopy: (847) 272-7680
Attention: Chief Financial Officer
cc: Secretary and General Counsel
Each such notice, request or other communication shall be effective (i)
if given by telecopier, when such telecopy is transmitted to the telecopier
number specified in this Section 17.8 or on the signature pages hereof and a
confirmation of receipt of such telecopy has been received by the sender, (ii)
if given by courier, when delivered, (iii) if given by mail, five (5) Business
Days after such communication is deposited in the mail, registered with return
receipt requested, addressed as aforesaid or (iv) if given by any other means,
when delivered at the addresses specified in this Section 17.8 or on the
signature pages hereof; provided that any notice given pursuant to Sections 1,
2, 3 or 4 hereof shall be effective only upon receipt and notices described in
clauses (i), (ii) and (iv) above that are received after normal business hours
will be deemed received at the opening of business on the next business day.
Section 17.9. Counterparts. This Agreement may be executed in any number
of counterpart signature pages, and by the different parties on different
counterparts, each of which when executed shall be deemed an original but all
such counterparts taken together shall constitute one and the same instrument.
Section 17.10. Successors and Assigns. This Agreement shall be binding
upon the Borrowers and their respective successors and assigns, and shall inure
to the benefit of each of the Banks and the benefit of their respective
successors and assigns, including any subsequent
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holder of any Note. No Borrower may assign any of its rights or obligations
under any Loan Document without the written consent of all of the Banks.
Section 17.11. Participants and Note Assignees. Each Bank shall have the
right (with or without the Company's consent, which if requested shall not be
unreasonably withheld) at its own cost to grant participations (to be evidenced
by one or more agreements or certificates of participation) in the Loans made,
and Reimbursement Obligations and/or Revolving Credit Commitments held, by such
Bank at any time and from time to time, and to assign its rights under such
Loans or Reimbursement Obligations or the Notes evidencing such Loans; provided,
however, that no (a) such participation or assignment shall relieve any Bank of
any of its obligations under this Agreement, and any agreement pursuant to which
such participation or assignment of a Note or the rights thereunder is granted
shall provide that the granting Bank shall retain the sole right and
responsibility to enforce the obligations of the Borrowers under the Loan
Documents, including, without limitation, the right to approve any amendment,
modification or waiver of any provision thereof, except that if the Company
consents to such participation, such agreement may provide that such Bank will
not agree to any modification, amendment or waiver of this Agreement described
in clause (i) of Section 17.13 hereof without the consent of such participant or
assignee; and (b) no such assignee or participant shall have any rights under
this Agreement except as provided in this Section 17.11, and no Agent shall have
any obligation or responsibility to such participant or assignee, except that
nothing herein provided is intended to affect the rights of an assignee of a
Note to enforce the Note assigned. Any party to which such a participation or
assignment has been granted shall have the benefits of Sections 5.8, 14.3 and
17.1 hereof but shall not be entitled to receive any greater payment under
either such Section than the Bank granting such participation or assignment
would have been entitled to receive with respect to the rights transferred. The
Borrowers and Guarantors authorize each Bank to disclose to any purchaser or
prospective purchaser of an interest in its Loans or Revolving Credit Commitment
any financial or other information pertaining to the Company and its
Subsidiaries, subject to Section 17.23 hereof. Nothing herein shall limit or
otherwise affect the rights of a Bank to assign any of its rights hereunder and
under its Notes to any Federal Reserve Bank.
Section 17.12. Assignment of Revolving Credit Commitments by Banks. (a)
Each Bank shall have the right at any time, with the prior written consent
(which consent shall not be unreasonably withheld or delayed) of the Company and
the Administrative Agent, to assign all or any part of its Revolving Credit
Commitment (including the same percentage of its Committed Note, outstanding
Committed Loans and participations in Letters of Credit and Swing Line Loans) to
one or more other Persons; provided that each such assignment is in an amount of
at least $7,500,000 (or $1,000,000 in the case of an assignment to another Bank)
or the entire Revolving Credit Commitment of such assigning Bank, and if such
assignment is not for such Bank's entire Revolving Credit Commitment, then such
assigning Bank's Revolving Credit Commitment after giving effect to such
assignment shall not be less than $10,000,000; provided further that no such
consents from the Administrative Agent or Company shall be required if the
assignee is another Bank or an Affiliate of the assigning Bank (provided that
any such Affiliate of the assigning Bank complies with Section 17.1(b) hereof at
the time of such assignment) and no such consent shall be required from the
Company for any such assignment made during the continuance of any Event of
Default or for any such assignment to an Affiliate of a Bank. Each such
assignment shall set forth the assignee's address for notices to be given under
Section 17.8
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hereof hereunder and its designated Lending Office pursuant to Section 14.4
hereof. Upon any such assignment, delivery to the Administrative Agent and the
Company of an executed copy of such assignment agreement and the forms referred
to in Section 17.1 hereof, if applicable, and, in the case of an assignment to a
Person other than an Affiliate of the assigning Bank, the payment of a $3,000
recordation fee to the Administrative Agent, the assignee shall become a Bank
hereunder, all Loans, participations in Letters of Credit and Swing Line Loans
and the Revolving Credit Commitment it thereby holds shall be governed by all
the terms and conditions hereof and the Bank granting such assignment shall have
its Revolving Credit Commitment, and its obligations and rights in connection
therewith, reduced by the amount of such assignment. At the time of the
assignment the Company and other relevant Borrowers shall execute and deliver
new Notes to the assignor and/or assignee.
(b) Assignment of Commitments Under Certain Circumstances. If (a) the
Company receives a notice or certificate from a Bank requesting an amount be
paid to such Bank under Section 14.3 hereof and the Required Banks have not
similarly made requests for payment arising out of the same circumstances or (b)
the obligation of any Bank to make or maintain any Eurocurrency Loan has
terminated under Section 14.1 hereof and the obligations of the Required Banks
to make or maintain Eurocurrency Loans have not similarly terminated by reason
of the same circumstances or (c) any Bank shall fail or refuse to make or
participate in any Loan or L/C Obligation as and when required by the terms of
this Agreement or (d) any Borrower shall be required to make additional payments
to any Bank under Section 17.1 hereof (or would be required to make such
additional payments with respect to any future interest payment) or (e) any Bank
is unable to make or fund a participation in any Loan denominated in an
Alternative Currency and the Required Banks have not similarly been unable to
make or participate in Loans in the same Alternative Currency under the same
circumstances or (f) any Bank fails to consent to an Approved Jurisdiction to
which the Required Banks have consented, the Company shall have the right, but
not the obligation, at its own expense, upon notice to such Bank and the
Administrative Agent, to replace such Bank with an assignee (in accordance with
and subject to the restrictions contained in Section 17.12(a) hereof), and such
Bank hereby agrees to transfer and assign without recourse (in accordance with
and subject to the restrictions contained in Section 17.12(a) hereof) all of
such assigning Bank's interests, rights and obligations under this Agreement to
such assignee; provided, however, that (A) no such assignment shall conflict
with any law or any rule, regulation or order of any governmental authority, (B)
such assignee Bank shall pay to the affected Bank in immediately available funds
on the date of such assignment the principal of the Loans made and Reimbursement
Obligations funded by such Bank hereunder, (C) the Company must exercise its
right to replace such Bank within one hundred twenty (120) days of the event
giving rise to the Company's right to so replace such Bank, and (D) the
Borrowers shall pay to the affected Bank in immediately available funds on the
date of such assignment the interest accrued to the date of payment on the Loans
made by such Bank hereunder and all other amounts accrued for such Bank's
account or owed to it hereunder.
(c) The Administrative Agent, acting for this purpose as agent of each
Borrower, shall maintain at one of its offices in Chicago, Illinois a copy of
each assignment delivered to it pursuant to paragraphs (a) or (b) above and a
register for the recordation of the names and addresses of the Banks, and the
Revolving Credit Commitment of, and principal amount of the Loans and L/C
Obligations owing to, each Bank pursuant to the terms hereof from time to time
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(the "Register"). The entries in the Register shall be conclusive in the absence
of manifest error, and the Borrowers, the Agents and the Banks shall treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Bank hereunder for all purposes of this Agreement. The Register shall be
available for inspection by each Borrower, Issuing Agent and Bank, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed assignment executed by an
assigning Bank and an assignee pursuant to paragraphs (a) or (b) above, the
recordation fee referred to in paragraph (a) above and the written consent of
the Administrative Agent (and if required, the Company) to such assignment, the
Administrative Agent shall (i) accept such assignment, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Banks and other Agents.
Section 17.13. Amendments. Any provision of the Credit Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by (a) the Company (acting on behalf of all the Borrowers), (b) the
Required Banks, (c) if the rights or duties of any Agent are affected thereby,
such Agent and (d) if the rights and duties of a Swing Line Bank are affected
thereby, such Swing Line Bank; provided, however, that:
(i) no amendment or waiver pursuant to this Section 17.13
shall (A) increase any Commitment or increase the obligations of any
Bank without the consent of such Bank or (B) reduce the amount of or
postpone any fixed date for payment of any principal of any Loan or
Reimbursement Obligation or of any fee payable hereunder without the
consent of each Bank or (C) reduce the stated rate at which any
interest is calculated or postpone any fixed date for payment of
interest without the consent of each Bank;
(ii) no amendment or waiver pursuant to this Section 17.13
shall, unless signed by each Bank, change any provision of Section 11,
this Section 17.13, or the definitions of Required Banks or Revolving
Credit Termination Date, or affect the number of Banks required to take
any action under the Credit Documents, or release any Borrower or
Guarantor from its liability for any Obligations (except as permitted
by Sections 12.1 or 12.12(b) hereof); and
(iii) no amendment or waiver shall, unless signed by the
relevant Borrowing Subsidiary, (w) subject such Borrowing Subsidiary to
any additional obligation beyond its obligation as a Guarantor
hereunder, (x) increase the principal of or rate of interest on any
outstanding Loan of such Borrowing Subsidiary, (y) accelerate the
stated maturity of any outstanding Loan of such Borrowing Subsidiary or
(z) change this clause (iii).
The Banks acknowledge and agree that the Company may from time to time request
them to treat Acquisitions for purposes of determining Consolidated EBITDA
(including, as used in such determination, Consolidated Interest Expense) in the
same manner in which the Quartet Acquisition was treated in determining
Consolidated EBITDA. The Banks further acknowledge and agree that such
modifications to the computation of Consolidated EBITDA shall only require the
approval of the Required Banks.
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Section 17.13A. Amendments to Loan Documents. Any provision of the Loan
Documents (other than the Credit Documents) may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed by (a) the Company
(acting on behalf of all the Borrowers), (b) the Required Banks, and (c) if the
rights or duties of any Agent are affected thereby, such Agent; provided,
however that no amendment or waiver pursuant to this Section 17.13A shall,
unless signed by each Bank, affect the number of Banks required to take any
action under the Loan Documents.
Section 17.14. Headings. Section headings used in this Agreement are for
reference only and shall not affect the construction of this Agreement.
Section 17.15. Legal Fees, Other Costs and Indemnification. (a) The
Company and (to the extent permitted by Section 17.19 hereof) the other
Borrowers agree, jointly and severally, to pay all reasonable out-of-pocket
costs and expenses of the Administrative Agent (which in any event may include
allocated costs of in-house counsel) in connection with the preparation and
negotiation of the Loan Documents, including without limitation, the reasonable
fees and disbursements of Chapman and Cutler, counsel to the Administrative
Agent, in connection with the preparation and execution of the Loan Documents,
and any amendment, waiver or consent related hereto, whether or not the
transactions contemplated herein are consummated, together with any fees and
charges suffered or incurred by the Administrative Agent in connection with
periodic environmental audits, fixed asset appraisals, title insurance policies,
collateral filing fees and lien searches. The Company and (to the extent
permitted by Section 17.19 hereof) the other Borrowers further agree, jointly
and severally, to indemnify each Bank, each Agent, and their respective
directors, officers and employees, against all losses, claims, damages,
penalties, judgments, liabilities and reasonable out-of-pocket expenses
(including, without limitation, all expenses of litigation or preparation
therefor, whether or not the indemnified Person is a party thereto and in any
event also including, without limitation, allocated costs of in-house counsel)
which any of them may incur or pay arising out of or relating to any Loan
Document or any of the transactions contemplated thereby or the direct or
indirect application or proposed application of the proceeds of any Loan or
Letter of Credit, other than those which arise from the gross negligence or
willful misconduct of the party claiming indemnification. The Company and (to
the extent permitted by Section 17.19 hereof) the other Borrowers, upon demand
on any one or more of them by any Agent or Bank at any time, shall reimburse
such Agent or Bank for any reasonable legal or other out-of-pocket expenses
(which in any event may include allocated costs of in-house counsel) incurred in
connection with investigating or defending against any of the foregoing except
if the same is directly due to the gross negligence or willful misconduct of the
party to be indemnified.
(b) The Company (and to the extent permitted by Section 17.19 hereof
each other Borrower) unconditionally agrees to forever indemnify, defend and
hold harmless, and covenants not to sue for any claim for contribution against,
the Administrative Agent and the Banks for any damages, costs, loss or expense,
including without limitation, response, remedial or removal costs, arising out
of any of the following: (i) any presence, release, threatened release or
disposal of any hazardous or toxic substance or petroleum by the Company or any
Subsidiary or otherwise occurring on or with respect to its Property (whether
owned or leased), (ii) the operation or violation of any environmental law,
whether federal, state, or local, and any
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regulations promulgated thereunder, by the Company or any Subsidiary or
otherwise occurring on or with respect to its Property (whether owned or
leased), (iii) any claim for personal injury or property damage in connection
with the Company or any Subsidiary or otherwise occurring on or with respect to
its Property (whether owned or leased), and (iv) the inaccuracy or breach of any
environmental representation, warranty or covenant by the Company or any
Subsidiary made herein or in any other Loan Document evidencing or securing any
Obligations or Hedging Liability or setting forth terms and conditions
applicable thereto or otherwise relating thereto, except for damages arising
from the willful misconduct or gross negligence of the party claiming
indemnification. This indemnification shall survive the payment and satisfaction
of all Obligations and the Hedging Liability and the termination of this
Agreement, and shall remain in force beyond the expiration of any applicable
statute of limitations and payment or satisfaction in full of any single claim
under this indemnification. This indemnification shall be binding upon the
successors and assigns of the Company and each other Borrower and shall inure to
the benefit of the Administrative Agent and the Banks and their directors,
officers, employees, agents, and collateral trustees, and their successors and
assigns.
Section 17.16. Set Off. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
during the continuance of any Event of Default and the acceleration of the
maturity of the Notes or L/C Obligations pursuant to Section 13.2 or 13.3
hereof, each Bank and each subsequent holder of any Note is hereby authorized by
each Borrower and Guarantor at any time or from time to time, without notice to
the Borrowers, to the Guarantors or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts, and in whatever currency denominated) and any other
Indebtedness at any time held or owing by that Bank or that subsequent holder to
or for the credit or the account of any Borrower or Guarantor, whether or not
matured, against and on account of the obligations and liabilities of any
Borrower or Guarantor to that Bank or that subsequent holder under the Loan
Documents, including, but not limited to, all claims of any nature or
description arising out of or connected with the Loan Documents, irrespective of
whether or not (a) that Bank or that subsequent holder shall have made any
demand hereunder or (b) the principal of or the interest on the Loans or Notes
and other Obligations shall have become due and payable pursuant to Section 13
and although said obligations and liabilities, or any of them, may be contingent
or unmatured.
Section 17.17. Currency. Each reference in this Agreement to U.S. Dollars
or to an Alternative Currency (the "relevant currency") is of the essence. To
the fullest extent permitted by law, the obligation of each Borrower and
Guarantor in respect of any amount due in the relevant currency under this
Agreement shall, notwithstanding any payment in any other currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the relevant currency that the Person entitled to receive such payment
may, in accordance with normal banking procedures, purchase with the sum paid in
such other currency (after any premium and costs of exchange) on the Business
Day immediately following the day on which such Person receives such payment. If
the amount of the relevant currency so purchased is less than the sum originally
due to such Person in the relevant currency, the relevant Borrower or Guarantor
agrees, as a separate obligation and notwithstanding any such judgment,
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to indemnify such Person against such loss, and if the amount of the specified
currency so purchased exceeds the sum of (a) the amount originally due to the
relevant Person in the specified currency plus (b) any amounts shared with other
Banks as a result of allocations of such excess as a disproportionate payment to
such Person under Section 17.7 hereof, such Person agrees to remit such excess
to the Company.
Section 17.18. Unlawful Interest. In no event shall the amount of
interest due or payable hereunder or under the Notes or Applications exceed the
maximum rate of interest allowed by applicable law in any jurisdiction, and if
any such payment is inadvertently made to any Bank by any Borrower or
inadvertently received by any Bank, then such excess sum shall be credited as a
payment of principal, unless such Borrower shall notify such Bank in writing
that it elects to have such excess sum returned. It is the express intent of the
parties hereto that the Borrowers not pay and the Banks not receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may
legally be paid by any Borrower under applicable law in any jurisdiction.
Section 17.19. Several Liability of Foreign Borrowers. Notwithstanding
anything in this Agreement to the contrary:
(a) Except as provided in Section 17.19(b), all Guarantors
(including without limitation the Company and the Domestic Borrowing
Subsidiaries) are unconditionally and absolutely liable for all
Obligations and the Hedging Liability, as set forth more fully in
Section 16 hereof.
(b) Each of the Foreign Borrowers shall be severally liable
for its indebtedness and its other direct obligations under this
Agreement and the other Loan Documents, and no Foreign Borrower shall
be liable for the Obligations of any other Borrower under this
Agreement and the other Loan Documents. Each Foreign Borrower shall be
severally liable for all payments of the principal of and interest on
Loans to and L/C Obligations of such Foreign Borrower, any amounts due
with respect thereto pursuant to Sections 5.8 or 14.3 hereof and any
other amount due hereunder that is specifically allocable to such
Foreign Borrower or the Loans to or L/C Obligations of such Foreign
Borrower. With respect to any other amount due hereunder, including
fees, but excluding principal of and interest on any Loan or L/C
Obligation, that is not specifically allocable to a particular Foreign
Borrower, each Foreign Borrower shall be liable for such amount pro
rata in the same proportion as such Foreign Borrower's outstanding
Loans bear to the total of outstanding Loans to and L/C Obligations of
all Borrowers (both Foreign and Domestic).
Section 17.20. Entire Agreement, Construction and Waiver. The Loan
Documents constitute the entire understanding of the parties thereto with
respect to the subject matter thereof and any prior or contemporaneous
agreements, whether written or oral, with respect thereto are superseded
thereby. Nothing contained herein shall be deemed or construed to permit any act
or omission which is prohibited by the terms of any Collateral Document, the
covenants and agreements contained herein being in addition to and not in
substitution for the covenants and
-102-
<PAGE> 109
agreements contained in the Collateral Documents. Upon the effectiveness of this
Agreement, the Banks hereby waive each Borrower's noncompliance with the
Previous Credit Agreement.
Section 17.21. Governing Law. This Agreement and the other Loan
Documents, and the rights and duties of the parties hereto, shall be construed
and determined in accordance with the internal laws of the State of Illinois.
Section 17.22. Submission to Jurisdiction; Waiver of Jury Trial. The
Company and each Guarantor hereby submit to the nonexclusive jurisdiction of the
United States District Court for the Northern District of Illinois and of any
Illinois State court sitting in the City of Chicago for purposes of all legal
proceedings arising out of or relating to this Agreement, the other Loan
Documents or the transactions contemplated hereby or thereby. The Company and
each Guarantor irrevocably waive, to the fullest extent permitted by law, any
objection which any of them may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
THE COMPANY, EACH BORROWER, EACH GUARANTOR, EACH AGENT, AND EACH BANK HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
THEREBY.
Section 17.23. Confidentiality. Each Bank agrees to maintain in
confidence and not to disclose without the Company's consent (other than to its
employees, affiliates, auditors, counsel or other professional advisors, or to
another Bank, each of which shall also be bound by this Section 17.23) any
information concerning the Company or any of its Subsidiaries furnished pursuant
to this Agreement which such Bank would reasonably expect to be confidential in
nature; provided that any Bank may disclose any such information (a) that has
become generally available to the public, (b) if required or appropriate in any
report, statement or testimony submitted to any regulatory body having or
claiming to have jurisdiction over such Bank, (c) if required or appropriate in
response to any summons or subpoena or in connection with any litigation, (d) in
order to comply with any law, order, regulation or ruling applicable to such
Bank, or (e) to any prospective or actual participant or assignee under Sections
17.11 or 17.12 hereof in connection with any contemplated or actual transfer of
an interest in such Bank's rights or obligations hereunder; provided, that (i)
such actual or prospective transferee executes an agreement with such Bank
containing provisions substantially identical to those contained in this Section
17.23 and (ii) in the case of any disclosure under subsection (c) above, such
Bank shall (to the extent permitted by applicable law) notify the Company of
such disclosure so that the Company may seek an appropriate protective order or
waive such Bank's compliance with the provisions of this Section, it being
understood that if the Company has no right to obtain such a protective order or
if the Company does not commence procedures to obtain such a protective order
within ten business days of the receipt of such notice, such Bank's compliance
with this Section shall be deemed to have been waived with respect to such
disclosure.
Section 17.24. Previous Notes. Each Bank agrees to return to the Company,
promptly after the Effective Date, each Note (marked "cancelled" or words of
similar import) previously issued by each Borrower to such Bank under the
Previous Credit Agreement.
-103-
<PAGE> 110
[Signature Pages to Follow]
-104-
<PAGE> 111
Dated as of November 12, 1999.
GENERAL BINDING CORPORATION
By /s/ Steve Rubin
------------------------------------
Name Steve Rubin
------------------------------------
Title Vice President, Secretary &
General Counsel
------------------------------------
GBC NEDERLAND B.V., as a Borrowing
Subsidiary
By: GENERAL BINDING CORPORATION
Its: Attorney-in-Fact
By /s/ Steve Rubin
------------------------------------
Name Steve Rubin
------------------------------------
Title Vice President, Secretary &
General Counsel
------------------------------------
GBC INTERNATIONAL, INC.
By /s/ Steve Rubin
------------------------------------
Name Steve Rubin
------------------------------------
Title Vice President & Secretary
------------------------------------
GBC INDIA HOLDINGS INC.
By /s/ Steve Rubin
------------------------------------
Name Steve Rubin
------------------------------------
Title Vice President & Secretary
------------------------------------
VELOBIND, INCORPORATED
By /s/ Steve Rubin
------------------------------------
Name Steve Rubin
------------------------------------
Title Vice President & Secretary
------------------------------------
-105-
<PAGE> 112
Accepted and Agreed to as of the day and year last above written.
111 West Monroe Street HARRIS TRUST AND SAVINGS BANK,
Chicago, Illinois 60690 in its individual capacity as a Bank and
Telecopy: (312) 461-2591 as Administrative Agent
Telephone: (312) 461-2800
Initial Revolving Credit
Commitment: $34,526,315.79
By /s/ Raymond Whitacre
----------------------------------------
Name Raymond Whitacre
--------------------------------------
Title Managing Director
-------------------------------------
Lending Offices:
Domestic Rate Loans: 111 West Monroe Street
Chicago, Illinois 60690
Eurocurrency Loans: Nassau Branch
c/o 111 West Monroe Street
Chicago, Illinois 60690
-106-
<PAGE> 113
Accepted and Agreed to as of the day and year last above written.
135 South LaSalle Street LASALLE BANK NATIONAL ASSOCIATION,
Chicago, Illinois 60603 in its individual capacity as a Bank
Telecopy: (312) 606-8423 and as Co-Agent
Telephone: (312) 904-2121
Initial Revolving Credit
Commitment: $28,052,631.58
By /s/ James M. Minich
---------------------------------
Name James M. Minich
-----------------------------
Title First Vice President
-----------------------------
Lending Offices:
Domestic Rate Loans: 135 South LaSalle Street
Chicago, Illinois 60603
Eurocurrency Loans: 135 South LaSalle Street
Chicago, Illinois 60603
-107-
<PAGE> 114
Accepted and Agreed to as of the day and year last above written.
1 Bank One Plaza BANK ONE, NA (MAIN OFFICE
Mail Suite 0088 CHICAGO), in its individual capacity as a
Chicago, Illinois 60670-0088 Bank, as Co-Syndication Agent and as
Telecopy: (312) 732-1117 Co-Agent
Telephone: (312) 732-1614
Initial Revolving Credit By /s/ Scott D. Moreen
Commitment: $30,210,526.32 ----------------------------------------
Name Scott D. Moreen
------------------------------------
Title Vice President
-----------------------------------
Lending Offices:
Domestic Rate Loans: 1 Bank One Plaza
Mail Suite 0088
Chicago, Illinois 60670-0088
Eurocurrency Loans: 1 Bank One Plaza
Mail Suite 0088
Chicago, Illinois 60670-0088
-108-
<PAGE> 115
Accepted and Agreed to as of the day and year last above written.
One Wall Street, 19th Floor THE BANK OF NEW YORK,
Central Division in its individual capacity as a Bank
New York, New York 10286 and as Co-Agent
Telecopy: (212) 635-1208
Telephone: (212) 635-8204
Initial Revolving Credit
Commitment: $30,210,526.32
By /s/ John-Paul Marotta
--------------------------------
Name John-Paul Marotta
--------------------------------
Title Vice President
--------------------------------
Lending Offices:
Domestic Rate Loans: 101 Barclay Street
New York, New York 10286
ABA # 021000018
Commercial Loan Servicing Department
GLA#: 111556
Eurocurrency Loans: 101 Barclay Street
New York, New York 10286
ABA # 021000018
Eurodollar/Cayman Funding Area
GLA#: 111556
-109-
<PAGE> 116
Accepted and Agreed to as of the day and year last above written.
55 East Monroe CREDIT AGRICOLE INDOSUEZ,
Chicago, Illinois 60608-5702 in its individual capacity as
Telecopy: (312) 372-2830 a Bank and as Co-Agent
Telephone: (312) 917-7446
Initial Revolving Credit
Commitment: $25,894,736.84
By /s/ Susan Knight
-------------------------------------
Name Susan Knight
---------------------------------
Title Vice President
--------------------------------
By /s/ David Bouhl
-------------------------------------
Name David Bouhl
---------------------------------
Title First Vice President &
Managing Director
--------------------------------
Lending Offices:
Domestic Rate Loans: 55 East Monroe
Chicago, Illinois 60608-5702
Eurocurrency Loans: 55 East Monroe
Chicago, Illinois 60608-5702
-110-
<PAGE> 117
Accepted and Agreed to as of the day and year last above written.
500 Woodward Avenue COMERICA BANK
Mail Code 3241
Detroit, Michigan 48226
Telecopy: (313) 222-5759
Telephone: (313) 222-9175 By /s/ Jeffrey P. Bradley
Initial Revolving Credit ---------------------------------
Commitment: $30,210,526.32 Name Jeffrey P. Bradley
-----------------------------
Title Vice President
----------------------------
Lending Offices:
Domestic Rate Loans: 500 Woodward Avenue
Mail Code 3241
Detroit, Michigan 48226
Eurocurrency Loans: 500 Woodward Avenue
Mail Code 3241
Detroit, Michigan 48226
-111-
<PAGE> 118
Accepted and Agreed to as of the day and year last above written.
THE BANK OF TOKYO-MITSUBISHI, LIMITED,
227 West Monroe Street CHICAGO BRANCH
Suite 2300
Chicago, Illinois 60606
Telecopy: (312) 696-4535
Telephone: (312) 696-4663 By /s/ Hisashi Miyashiro
Initial Revolving Credit ---------------------------------
Commitment: $19,421,052.63 Name Hisashi Miyashiro
-----------------------------
Lending Offices: Title Deputy General Manager
----------------------------
Domestic Rate Loans: 227 West Monroe Street
Suite 2300
Chicago, Illinois 60606
Eurocurrency Loans: 227 West Monroe Street
Suite 2300
Chicago, Illinois 60606
-112-
<PAGE> 119
Accepted and Agreed to as of the day and year last above written.
303 Peachtree Street NE, 3rd Floor SUNTRUST BANK, ATLANTA
Mail Code 1928
Atlanta, Georgia 30308
Telecopy: (404) 658-4905
Telephone: (404) 588-7915 By /s/ Shelley M. Browne
Initial Revolving Credit --------------------------------
Commitment: $23,736,842.11 Name Shelley M. Browne
---------------------------
Title Vice President
---------------------------
Lending Offices:
Domestic Rate Loans: 303 Peachtree Street NE, 3rd Floor
Mail Code 1928
Atlanta, Georgia 30308
Eurocurrency Loans: 303 Peachtree Street NE, 3rd Floor
Mail Code 1928
Atlanta, Georgia 30308
-113-
<PAGE> 120
Accepted and Agreed to as of the day and year last above written.
#1 Mercantile Center, 12th Floor MERCANTILE BANK NATIONAL
St. Louis, Missouri 63101 ASSOCIATION
Telecopy: (314) 425-2203
Telephone: (314) 425-1967 By: /s/ Gerald S. Kiek
Initial Revolving Credit ----------------------------------
Commitment: $15,105,263.16 Name Gerald S. Kiek
----------------------------------
Title Vice President
----------------------------------
Lending Offices:
Domestic Rate Loans: #1 Mercantile Center, 12th Floor
St. Louis, Missouri 63101
Eurocurrency Loans: #1 Mercantile Center, 12th Floor
St. Louis, Missouri 63101
-114-
<PAGE> 121
Accepted and Agreed to as of the day and year last above written.
One First Union Center FIRST UNION NATIONAL BANK OF
NC 0745 NORTH CAROLINA
Charlotte, North Carolina 28288-0745
Telecopy: (314) 425-2203
Telephone: (704)383-1392 By /s/ Frederick W. Price
Initial Revolving Credit ------------------------------
Commitment: $21,578,947.37 Name Frederick W. Price
--------------------------
Title Senior Vice President
-------------------------
Lending Offices:
Domestic Rate Loans:
One First Union Center
NC 0745
Charlotte, North Carolina 28288-0745
Eurocurrency Loans: One First Union Center
NC 0745
Charlotte, North Carolina 28288-0745
-115-
<PAGE> 122
Accepted and Agreed to as of the day and year last above written.
1900 East Ninth Street NATIONAL CITY BANK
Cleveland, Ohio 44114
Diego Tobon
Locator 2104
Telecopy: (216) 575-9396
Telephone: (216) 575-3115 By /s/ Richard H. Michalik
Initial Revolving Credit --------------------------------
Commitment: $19,421,052.63 Name Richard H. Michalik
----------------------------
Title Vice President
---------------------------
Lending Offices:
Domestic Rate Loans: 1900 East Ninth Street
Cleveland, Ohio 44114
Diego Tobon
Locator 2104
Eurocurrency Loans: 1900 East Ninth Street
Cleveland, Ohio 44114
Diego Tobon
Locator 2104
-116-
<PAGE> 123
Accepted and Agreed to as of the day and year last above written.
227 West Monroe Street CREDIT LYONNAIS CHICAGO BRANCH
Suite 3800
Chicago, Illinois 60606
Telecopy: (312) 641-0527
Telephone: (312) 220-7317 By /s/ Mary Ann Klemm
---------------------------
Initial Revolving Credit Name Mary Ann Klemm
Commitment: $21,578,947.37 --------------------------
Title Vice President
--------------------------
Lending Offices:
Domestic Rate Loans: 227 West Monroe Street
Suite 3800
Chicago, Illinois 60606
Eurocurrency Loans: 227 West Monroe Street
Suite 3800
Chicago, Illinois 60606
-117-
<PAGE> 124
Accepted and Agreed to as of the day and year last above written.
181 West Madison Street THE BANK OF NOVA SCOTIA
Suite 3700
Chicago, Illinois 60602
Telecopy: (312) 201-4108
Telephone: (312) 201-4125 By /s/ M.D. Smith
---------------------------
Initial Revolving Credit Name M.D. Smith
Commitment: $21,578,947.37 -------------------------
Title Agent Operations
-------------------------
Lending Offices:
Domestic Rate Loans: Atlanta Agency
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
Attn: Vicki Gibson
Eurocurrency Loans: Atlanta Agency
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
Attn: Vicki Gibson
-118-
<PAGE> 125
Accepted and Agreed to as of the day and year last above written.
181 West Madison SOCIETE GENERALE
Suite 3400
Chicago, Illinois 60602
Telecopy: (312) 578-5099
Telephone: (312) 578-5000 By /s/ Editha Paras
------------------------
Initial Revolving Credit Name Editha Paras
Commitment: $23,736,842.11 ------------------------
Vice President
------------------------
Lending Offices:
Domestic Rate Loans: 2001 Ross Avenue
Suite 4800
Dallas, Texas 75201
Eurocurrency Loans: 2001 Ross Avenue
Suite 4800
Dallas, Texas 75201
-119-
<PAGE> 126
Accepted and Agreed to as of the day and year last above written.
60 Long Ridge Road GENERAL ELECTRIC CAPITAL CORPORATION
Stamford, Connecticut 06927-5100
Telecopy: (203) 316-7978
Telephone: (203) 961-5793 By /s/ Gregory Hong
Initial Revolving Credit -----------------------------------
Commitment: $15,105,263.16 Name Gregory Hong
-------------------------------
Title Duly Authorized Signatory
-------------------------------
Lending Offices:
Domestic Rate Loans: 60 Long Ridge Road
Stamford, Connecticut 06927-5100
Eurocurrency Loans: 60 Long Ridge Road
Stamford, Connecticut 06927-5100
-120-
<PAGE> 127
Accepted and Agreed to as of the day and year last above written.
425 Lexington Avenue CIBC, INC.
New York, New York
Telecopy: (212) 856-3991
Telephone: (212) 856-3650 By /s/ Lindsay Gordon
----------------------------
Initial Revolving Credit Name Lindsay Gordon
Commitment: $19,421,052.63 ----------------------------
Title Executive Director
CIBC World Markets Corp.,
as Agent
----------------------------
Lending Offices:
Domestic Rate Loans: Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Eurocurrency Loans: Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
-121-
<PAGE> 128
130 Liberty Street BANKERS TRUST COMPANY
New York, New York 10006
Telecopy:
-----------------
Telephone: By /s/ M.A. Orlando
---------------- ------------------------------
Initial Revolving Credit Name M.A. Orlando
Commitment: $17,263,157.89 --------------------------
Title Principal
--------------------------
Lending Offices:
Domestic Rate Loans: -------------------
-------------------
-------------------
-------------------
Eurocurrency Loans: -------------------
-------------------
-------------------
-------------------
-122-
<PAGE> 129
10 South Wacker Drive, 31st Floor THE SANWA BANK, LIMITED, Chicago Branch
Chicago, Illinois 60606
Telecopy:
-----------------
Telephone: By /s/ Kenneth W. Eichwald
---------------- ------------------------------
Initial Revolving Credit Name Kenneth W. Eichwald
Commitment: $12,947,368.42 --------------------------
Title First Vice President &
Assistant General
--------------------------
Lending Offices:
Domestic Rate Loans: -------------------
-------------------
-------------------
-------------------
Eurocurrency Loans: -------------------
-------------------
-------------------
-------------------
-123-
<PAGE> 130
Summary of Exhibits and Schedules as Referred to in the Amended
and Restated Multicurrency Credit Agreement dated as of November 12, 1999
EXHIBIT A -- Committed Loan Note
EXHIBIT B -- Domestic Swing Line Note
EXHIBIT C -- Multicurrency Swing Line Note
EXHIBIT D -- Notice of Payment Request
EXHIBIT E-1 and E-2 -- Opinion of Counsel
EXHIBIT F -- Compliance Certificate
EXHIBIT G -- Election to Participate
EXHIBIT H -- Election to Terminate
EXHIBIT I -- Opinion of Counsel
EXHIBIT J -- Subsidiary Guarantee Agreement
EXHIBIT K -- Foreign Investment List
SCHEDULE 9.2 -- List of Subsidiaries
SCHEDULE 9.8 -- ERISA
SCHEDULE 9.12 -- Real Property
SCHEDULE 11.1(j) -- Mortgages and Title Insurance
SCHEDULE 12.9 -- Permitted Liens
SCHEDULE 12.22 -- Permitted Indebtedness
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 76,948
<SECURITIES> 0
<RECEIVABLES> 193,325
<ALLOWANCES> (15,863)
<INVENTORY> 132,497
<CURRENT-ASSETS> 432,792
<PP&E> 220,344
<DEPRECIATION> (96,422)
<TOTAL-ASSETS> 897,384
<CURRENT-LIABILITIES> 157,266
<BONDS> 540,110
0
0
<COMMON> 2,262
<OTHER-SE> 162,860
<TOTAL-LIABILITY-AND-EQUITY> 897,384
<SALES> 666,310
<TOTAL-REVENUES> 666,310
<CGS> 396,652
<TOTAL-COSTS> 396,652
<OTHER-EXPENSES> 281,933
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 33,065
<INCOME-PRETAX> (45,340)
<INCOME-TAX> (13,602)
<INCOME-CONTINUING> (31,738)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (31,738)
<EPS-BASIC> (2.02)
<EPS-DILUTED> (2.02)
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