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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): AUGUST 1, 1999
MYERS INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
OHIO 001-08524 34-0778636
(State or other jurisdiction of (Commission (IRS employer
incorporation or organization) file number) identification number)
1293 S. MAIN STREET AKRON, OHIO 44301 (330) 253-5592
(Address of Principal Executive Offices) (Zip Code) (Telephone Number)
Correspondence to:
Kevin C. O'Neil
Brouse McDowell
500 First National Tower
Akron, Ohio 44308-1471
(330) 434-5207
[email protected]
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On August 2, 1999, Myers Industries, Inc. ("Myers" or the "Company"),
closed on its previously announced acquisition of substantially all of the
assets of Dillen Products, Inc. and its affiliated operating companies
(collectively "Dillen"). Dillen is a leading manufacturer and distributor of
plastic horticultural containers in North America and had 1998 net sales of
approximately $40.0 million.
The closing occurred after the expiration of the necessary waiting
period for regulatory approval and the satisfaction of other conditions of
closing. The purchase price was approximately $50.0 million, not including
assumed debt and certain contingent payments, and will be accounted for under
the purchase method of accounting with the purchase price allocated to the
assets acquired and liabilities assumed based on their estimated fair market
values and results of operations included with those of the Company subsequent
to the date of the acquisition. The acquisition is expected to be accretive in
1999 and thereafter.
On July 1, 1999, Myers issued a press release announcing the Dillen
acquisition, a copy of which is attached as Exhibit 99(a).
The acquisition was financed through Myers' multi-currency credit
facility with Bank One Michigan, on behalf of itself and as agent for a
syndicate of other lenders, which was amended on August 2, 1999, to increase the
facility from $250.0 million to $350.0 million. Each significant domestic
subsidiary of the Company has guaranteed all obligations of the Company under
the multi-currency credit facility. In addition, these obligations are secured
by a pledge of 65% the capital stock of certain of the foreign subsidiaries
which are borrowers under the facility. The obligations of the Company under the
facility rank senior to substantially all other indebtedness of the Company. The
facility contains certain customary reporting covenants and other customary
affirmative and negative covenants. The credit facility also contains customary
events of default.
The preceding description of the agreements are qualified in their
entirety by reference to the copies of the agreements attached as Exhibits 10(a)
through 10(c).
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of Business Acquired - Not Applicable
(b) Pro Forma Financial Information - Not Applicable
(c) Exhibits
10(a) Asset Purchase Agreement, dated July 1, 1999, between Myers
Industries, Inc. and Dillen Products, Inc., The Dillen
Products Company, Ltd., North Shore Plastics, Inc. and Red
Creek, Inc.
10(b) First Amendment to Loan Agreement, dated as of August 2, 1999
among Myers Industries, Inc., the Foreign Subsidiary Borrowers
and Bank One, Michigan, as Agent for the Lenders
10(c) Annex 1 to First Amendment Loan Agreement, being the Loan
Agreement, as amended, among Myers Industries, Inc., the
Foreign Subsidiary Borrowers and Bank One, Michigan, as
Agent for the Lenders
99(a) Text of Press Release dated July 2,1999 issued by Myers
Industries, Inc.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MYERS INDUSTRIES, INC.
Dated: August 13, 1999 By: /s/ Gregory J. Stodnick
------------------------
Gregory J. Stodnick, Vice President -
Finance
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MYERS INDUSTRIES, INC.
CURRENT REPORT ON FORM 8-K
INDEX OF EXHIBITS
10(a) Asset Purchase Agreement, dated July 1, 1999, between Myers
Industries, Inc. and Dillen Products, Inc., The Dillen
Products Company, Ltd., North Shore Plastics, Inc. and Red
Creek, Inc.
10(b) First Amendment to Loan Agreement, dated as of August 2, 1999
among Myers Industries, Inc., the Foreign Subsidiary Borrowers
and Bank One, Michigan, as Agent for the Lenders
10(c) Annex 1 to First Amendment Loan Agreement, being the Loan
Agreement, as amended, among Myers Industries, Inc., the
Foreign Subsidiary Borrowers and Bank One, Michigan, as
Agent for the Lenders
99(a) Text of Press Release dated July 2,1999 issued by Myers
Industries, Inc.
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Exhibit 10(a)
ASSET PURCHASE AGREEMENT
- --------------------------------------------------------------------------------
BETWEEN
DILLEN PRODUCTS, INC.,
THE DILLEN PRODUCTS COMPANY, LTD.,
NORTH SHORE PLASTICS, INC.
AND
RED CREEK, INC.,
AS SELLERS,
AND
MYERS INDUSTRIES, INC.,
AS PURCHASER
- --------------------------------------------------------------------------------
DATED AS OF JULY 1, 1999
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TABLE OF CONTENTS
Page
1.0 CERTAIN DEFINITIONS.............................................. 1
2.0 TRANSFER OF ASSETS AND PROPERTIES................................ 2
2.1 Purchased Assets....................................... 2
2.2 Instruments of Transfer................................ 4
3.0 CONSIDERATION AND TERMS.......................................... 4
3.1 Consideration for Purchased Assets..................... 4
3.2 Payment of Consideration............................... 8
3.3 Allocation of Purchase Price........................... 9
3.4 Grossed-up Tax Payments................................ 9
4.0 ASSUMPTION OF LIABILITIES; CONSENTS.............................. 15
4.1 General Limitation on Assumption of Liabilities........ 15
4.2 Assumed Liabilities and Obligations.................... 15
5.0 CLOSING.......................................................... 15
5.1 Time; Location......................................... 15
5.2 Documents.............................................. 15
5.3 Actions By Purchaser................................... 16
6.0 REPRESENTATIONS AND WARRANTIES OF SELLER......................... 16
6.1 Organization, Good Standing, Power..................... 16
6.2 Authorization of Agreement and Enforceability.......... 17
6.3 Effect of Agreement.................................... 17
6.4 Restrictions; Burdensome Agreements.................... 17
6.5 Government and Other Consents.......................... 17
6.6 Financial Statements................................... 17
6.7 Debts, Obligations and Liabilities..................... 18
6.8 Absence of Certain Changes or Events................... 18
6.9 Taxes.................................................. 19
6.10 Title to Properties; Absence of Liens and Encumbrances. 19
6.11 Real Property.......................................... 20
6.12 Machinery and Equipment................................. 20
6.13 Proprietary Rights...................................... 20
6.14 Permits, Licenses....................................... 21
6.15 Compliance with the Law................................. 21
6.16 Litigation.............................................. 21
6.17 Purchase and Sale Obligations........................... 21
6.18 Labor Matters........................................... 21
6.19 Employee Benefits....................................... 22
6.20 Environmental Compliance................................ 22
6.21 Securities.............................................. 23
6.22 Illegal Payments........................................ 23
6.23 Interest in Business.................................... 23
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6.24 Brokers, Finders, Counsel and Agents.................... 23
6.25 Products Liability...................................... 23
6.26 Year 2000 Compliance . ................................. 24
6.27 Software Licenses...................................... 24
7.0 REPRESENTATIONS AND WARRANTIES OF PURCHASER....................... 24
7.1 Organization, Good Standing, Power...................... 24
7.2 Authorization of Agreement and Enforceability........... 24
7.3 Effect of Agreement; Consents........................... 25
7.4 Litigation.............................................. 25
7.5 Information on Purchaser............................... 25
8.0 COVENANTS OF SELLER; CONDITIONS PRECEDENT TO
OBLIGATIONS OF PURCHASER.......................................... 25
8.1 Pre-Closing Affirmative Covenants...................... 25
8.2 Pre-Closing Restrictive Covenants...................... 26
8.3 Pre-Closing Conditions................................. 27
9.0 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER................. 29
9.1 Accuracy of Representations and Warranties.............. 29
9.2 Performance of Agreement................................ 29
9.3 Purchaser's Certificate and Legal Opinion .............. 29
9.4 Secretary's Certificate................................. 29
9.5 Injunction and HSR Approval............................. 29
9.6 Compliance with Agreement.............................. 30
10.0 OBLIGATIONS AFTER THE CLOSING DATE................................ 30
10.1 Covenant Not to Disclose................................ 30
10.2 Covenant Not to Interfere............................... 30
10.3 Covenant Not to Compete................................. 30
10.4 Reasonable Restrictions................................ 31
10.5 Name Change............................................ 31
10.6 Transition of Employees................................. 31
10.7 Further Assurances of Seller............................ 32
10.8 Further Assurance of Purchaser.......................... 32
10.9 Release of Seller and Guarantors From Note..............332
11.0 INDEMNIFICATION................................................... 32
11.1 Indemnification by Seller............................... 32
11.2 Indemnification by Purchaser ........................... 33
11.3 Procedures for Indemnification.......................... 34
11.4 Insurance, Mitigation and Related Matters............... 35
11.5 Limitations ............................................ 35
12.0 TERMINATION........................................................36
12.1 Termination..............................................36
12.2 Return of Documents to Seller............................37
12.3 Limitations on Remedies..................................37
13.0 COVENANT OF PRINCIPAL..............................................37
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13.1 Covenant of Principal....................................37
14.0 GENERAL........................................................... 37
14.1 Expenses................................................ 37
14.2 Publicity............................................... 37
14.3 Survival of Representations and Warranties.............. 37
14.4 Binding Effect; Benefits................................ 38
14.5 Notices................................................. 38
14.6 Entire Agreement........................................ 39
14.7 Counterparts............................................ 39
14.8 Headings................................................ 39
14.9 Construction............................................ 39
14.10 Exhibits and Schedules.................................. 39
14.11 Governing Law .......................................... 39
14.12 Cooperation............................................. 39
14.13 Severability............................................ 39
14.14 Successors and Assigns.................................. 39
14.15 Exclusive Remedies..................................... 39
14.16 Passage of Title and Risk of Loss...................... 40
14.17 Dispute Resolution..................................... 40
14.18 Right of Set Off....................................... 41
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LIST OF SCHEDULES AND EXHIBITS
Schedule 2.1 Excluded Assets
Schedule 2.1.1 Leases
Schedule 2.1.3 List of Contracts
Exhibit 3.1.1 Balance Sheet
Schedule 3.1.2 Additional Consideration
Schedule 3.3 Purchase Price Allocation
Schedule 4.1 Permitted Encumbrances
Schedule 4.2 Assumed Liabilities
Schedule 6.3 Violations and Breach
Schedule 6.4 Restrictions on Entering Agreements
Exhibit 6.6 Financial Statements as of December 31, 1998
Schedule 6.6 Exceptions to Balance Sheet and Financial Statements
Schedule 6.7 Debts, Obligations and Liabilities
Schedule 6.8 Absence of Changes
Schedule 6.9 Taxes
Schedule 6.12 Non-Operational Machinery and Equipment
Schedule 6.13 Proprietary Rights
Schedule 6.14 Permits and Licenses
Schedule 6.16 Litigation and Products Liability
Schedule 6.18 Labor Matters
Schedule 6.20 Compliance with Environmental Laws
Schedule 8.1(b) Permitted Exceptions
Exhibit 8.4 Seller's Certificate
Exhibit 9.3 Purchaser's Certificate
Schedule 10.5.1 Assumed Employment Agreements
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is entered into this 1st day
of July, 1999, by and between MYERS INDUSTRIES, INC., an Ohio corporation
("Purchaser"), and DILLEN PRODUCTS, INC., an Ohio corporation, THE DILLEN
PRODUCTS COMPANY, LTD., an Ohio limited liability company, NORTH SHORE PLASTICS,
INC., an Ohio corporation, and RED CREEK, INC., an Ohio corporation
(collectively "Seller").
R E C I T A L S:
A. Seller is in the business of the design, manufacture, production and
sale of plastic products for the horticulture industry (the "Business") and is
the owner of the assets being purchased hereunder.
B. Seller has agreed to sell and assign to Purchaser the assets upon the
terms and conditions contained herein.
C. Purchaser has agreed to purchase from Seller the assets as specified
herein, and to assume all of the obligations and liabilities of Seller.
NOW, THEREFORE, in consideration of the foregoing and of all the mutual
covenants, representations, and warranties contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1.0 CERTAIN DEFINITIONS
As used herein, the following terms will have the following meanings:
1.1 The term "Affiliate" will mean any company or other entity in which
the designated Party now or hereafter owns or otherwise controls, directly or
indirectly, 50% or more of the voting stock or other indicia of equity. For the
purposes of this definition, stock or other indicia of equity owned or
controlled by the designated Party will be deemed to include all stock or other
indicia of equity owned or controlled, directly or indirectly, by any other
company or other legal entity of which the designated Party owns or controls,
directly or indirectly, 50% or more of the voting stock or other indicia of
equity
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1.2 The term "Encumbrance" will mean any right to, or interest in,
property, which subsists in a third-party and which constitutes a claim, lien,
charge or liability attached to and binding upon the property, including, but
not limited to, a mortgage, judgment lien, mechanic's lien, lease, security
interest, easement, right-of-way, and any accrued and unpaid taxes.
1.3 The term "Knowledge" will mean either (a) with respect to natural
Persons, actual knowledge, based upon due inquiry, of a particular fact, or (b)
with respect to Persons that are not individuals, actual knowledge, based upon
due inquiry, of an individual employed by such Person in a senior managerial
capacity and for whom a significant portion of his or her duties relates to
matters as to which the applicable representation or warranty is made hereunder.
"Person" means an individual or an entity which is not an individual.
2.0 TRANSFER OF ASSETS AND PROPERTIES
2.1 PURCHASED ASSETS. Subject to the terms and conditions of this
Agreement, Seller will convey to Purchaser, free and clear of all Encumbrances
whatsoever (except as expressly provided herein), and Purchaser will purchase
from Seller, the Business as a going concern and as presently conducted by the
Seller, and all the assets, properties and rights owned by Seller constituting
the Business, except for the assets listed on Schedule 2.1 hereto (the
"Purchased Assets") as the same will exist on the Closing Date, wherever
located, including without limitation, the following:
2.1.1 REAL PROPERTY LEASES. The leases covering the real property
and buildings used and occupied by the Business are indentified in
Schedule 2.1.1. True and accurate copies of such Leases (which leases are
being assigned by Seller and assumed by Purchaser) are attached on
Schedule 2.1.1. ("Leases"). Seller owns no real property.
2.1.2 EQUIPMENT, MACHINERY AND OTHER TANGIBLE PERSONAL PROPERTY.
All machinery, equipment, tools, tooling, dies, molds, spare parts,
leasehold improvements, maintenance equipment, computer hardware and
software, telephone systems, trucks, tractors, trailers, automobiles,
supplies, office furniture, and office equipment, together with all other
items of personal property, which are owned by the Business, wherever
located.
2.1.3 CONTRACTS RELATING TO THE BUSINESS. All of the interest (to
the extent assignable) of Seller in all contracts, leases of machinery,
equipment and other personal property, manufacturer's representative and
distributor agreements, sale orders, purchase orders, guarantees,
commitments, instruments and all other agreements entered into in the
ordinary course of the operation of the Business.
All contracts, leases of machinery, equipment and other personal
property, manufacturer's representative agreements, sale orders, purchase
orders, guarantees, commitments, instruments and all other agreements
relating to the operation of the Business which provide for the payment by
the Business, or receipt of payments by the Business, in excess of
$100,000 per year, in the case of supply contracts with the Business's
customers, and all other contracts in excess of $50,000 per year are
described on Schedule 2.1.3 by parties, date, term, amount of payment,
type of good, service obligation or commitment.
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2.1.4 CUSTOMER LISTS, SALES AND MARKETING MATERIALS. All customer
lists and other customer records, sales data, catalogs, brochures,
suppliers' names, mailing lists, art work, photographs, web site(s),
telephone numbers, and advertising material which relate to the Business,
whether in electronic form or otherwise.
2.1.5 PERMITS AND LICENSES. All of Seller's interest in
governmental permits, licenses, notices, approvals, and other governmental
authorizations relating to the Purchased Assets or the Business and
necessary to the ownership or operation thereof to the extent the benefits
thereof are transferable to Purchaser.
2.1.6 TRADE SECRETS. All trade secrets, secret processes and
procedures, know-how, formulae and compositions, engineering, production,
assembly design, installation, other technical drawings and
specifications, working notes and memos, market studies, consultants'
reports, technical and laboratory data, competitive samples, engineering
prototypes, and all similar property of any nature, tangible or
intangible, relating to "Products" (being any of the products manufactured
by the Business in the conduct of the Business prior to the Closing Date).
2.1.7 INTELLECTUAL PROPERTY. All right, title and interest of
Seller in the patents, patent applications, inventions, shop rights,
trademarks, trademark registrations, trade names, service marks, domain
name(s), copyrights, and copyright registrations of the Business, and all
registrations, applications, and licenses relating thereto; and other
intangible rights and the goodwill of the Business symbolized by such
trademarks, devices, marks and trade names, including but not limited to
the names "Dillen Products," "North Shore Plastics," "Red Creek," and
"DEKO COVER."
2.1.8 PROPERTY, PERSONNEL AND ACCOUNTING RECORDS. All records of
Seller relating to the Business, including, but not limited to, property
records, copies of personnel records of Business employees, accounting
records, compliance records, parts lists, manuals, computer programs and
software, patterns, plans, blueprints and drawings, and such other
Business records as Purchaser may reasonably request.
2.1.9 GOODWILL. All right, title and interest of Seller in and to
the goodwill incident to the Business.
2.1.10 INVENTORY. All Inventory of the Business existing at the
Closing Date. The term "Inventory" will mean, collectively, "Raw
Materials" (being any material that is owned by the Business and that will
be incorporated into a Product during the manufacturing, finishing and
packaging process), "Work-In-Process" (being partially completed Products,
not yet ready for sale), "Finished Inventory" (being Products processed
for sale by the Business to customers meeting the applicable
specifications wherever located), supplies, packaging and samples,
including inventory warehoused on a third party's property or held on
consignment.
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2.1.11 ACCOUNTS RECEIVABLE. All trade accounts receivable, notes
receivable, employee advances, sales representative advances and other
miscellaneous receivables associated with the Business on the Closing Date
together with all rights of rescission, replevin, reclamation and stoppage
in transit and rights to returned, reclaimed, or repossessed goods
("Accounts Receivable").
2.1.12 PREPAID EXPENSES. All payments made by Seller for items
which will not be recognized and accounted for as an expense of the
Business until after the Closing Date, and utility or other security
deposits, existing at the Closing Date, for the benefit of the Business
("Prepaid Expenses").
2.1.13 CASH AND OTHER INTANGIBLE ASSETS. All other assets of the
Business, including cash and cash equivalents or similar type investments
(such as certificates of deposit, treasury bills and other marketable
securities), bank accounts and checks received prior to Closing and in the
process of collection, all causes of action, rights of action, contract
rights and warranty and product liability claims against third parties not
in litigation as of the Closing Date, not contained within the categories
described above.
2.2 INSTRUMENTS OF TRANSFER. On the Closing Date or as otherwise agreed,
Seller will deliver, or cause to be delivered, to Purchaser duly executed
instruments of transfer and assignment dated and effective as of the Closing
Date, in a form and in substance reasonably satisfactory to the Purchaser.
3.0 CONSIDERATION AND TERMS
3.1 CONSIDERATION FOR PURCHASED ASSETS.
3.1.1 The aggregate monetary consideration to be paid by Purchaser
to Seller for the Purchased Assets (the "Purchase Price") will consist of:
(a) a cash payment in the amount of $50,000,000
("Consideration"), less any "Post-closing Adjustment"
per Section 3.1.2, which cash payment is allocated among
Seller and among each of the Purchased Assets as listed
on Schedule 3.3;
(b) the cash payment(s) by Purchaser to the Seller for the
"Grossed-up Tax Payments" as defined in Section 3.4;
(c) the "Additional Consideration" as detailed in Section
3.1.3; plus
(d) Purchaser will assume all the liabilities and
obligations of Seller, except to the extent to which the
costs and expenses incurred by Seller in connection with
the negotiations respecting this Agreement and the
transactions contemplated
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hereunder, including costs of finders or investment
bankers, preparation of documents, obtaining any
necessary regulatory approvals and the consummation of
the other transactions contemplated hereby, exceeds the
amount accrued for such expenses on the Balance Sheet,
including without limitation the liabilities listed on
the "Balance Sheet" (being the statement of assets and
liabilities of the Business as of Closing, to be
attached hereto as Exhibit 3.1.1 after Closing),
including (i) the "Payables" (being the accounts payable
associated with the Business and stated on the Balance
Sheet), (ii) the "Accrued Expenses" (being the accrued
expenses associated with the Business and stated on the
Balance Sheet), (iii) all obligations, whether due or to
become due, arising under the contracts assumed by
Purchaser, and (iv) all other liabilities and
obligations of Seller (the "Assumed Liabilities").
3.1.2 A "Post-closing Adjustment" to the Consideration will be made
in the event that as of the Closing Date either: (i) the consolidated
"Shareholder's Equity" of Seller is less than $8,553,286; or (ii) the
consolidated "Working Capital Without Debt" of Seller is less than
$10,457,859 or the consolidated "Debt Obligations"of Seller exceeds
$19,247,104, except that no adjustment is necessary as long as the
consolidated Working Capital Without Debt exceeds $10,457,859 in an amount
equal to or greater than the consolidated Debt Obligations of Seller
exceeds $19,247,104.
The consolidated "Shareholder's Equity" of Seller is determined by
using generally accepted accounting principles ("GAAP") and consistent
with historic practices. The consolidated "Working Capital Without Debt"
of Seller is defined as total "Current Assets" less both "Accounts Payable
- trade" and "Accrued Expenses, etc." (as titled on the consolidated
balance sheet of Seller) for the specified date calculated using GAAP and
consistent with historic practices. The consolidated "Debt Obligations" of
Seller is defined as the "Credit Line," "Current Portion of LTD"
(long-term debt) and "Long-Term Debt"(as titled on the consolidated
balance sheet of Seller) for the specified date calculated using GAAP and
consistent with historic practices.
On or before 45 business days after Closing, Schmitz, Corrigan,
Krause & Co. will prepare the Balance Sheet of Seller as of July 31, 1999
(done on a consolidated compiled basis), which shall include calculations
of the consolidated Shareholder's Equity, Working Capital Without Debt,
and Debt Obligations, as well as any Post-closing Adjustment.
If as of July 31, 1999 (a) the consolidated Shareholder's Equity is
less than $8,553,286; or (b) the consolidated Working Capital Without Debt
is less than $10,457,859 or the consolidated Debt Obligations exceed
$19,247,104 (except that no adjustment under this subpart (b) is necessary
as long as the consolidated Working Capital Without Debt exceeds
$10,457,859 in an amount equal to or greater than the consolidated Debt
Obligations of Seller exceeds $19,247,104); the difference, being the
Post-closing Adjustment, will be deducted from the Withheld Amount (as
defined in Section 3.2.2).
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Purchaser may object in a written notice to Seller describing the
nature of Purchaser's objections within 15 business days after receipt of
the consolidated Balance Sheet of Seller as of July 31, 1999, which will
include the calculations of the consolidated Shareholder's Equity, Working
Capital Without Debt, and Debt Obligations, as well as any Post-closing
Adjustment. If Purchaser does not object within such 15 day period, the
statements and calculations shall be deemed accepted and approved. If
Purchaser raises an objection within the 15 day period, the parties shall
attempt to resolve the matter or matters in dispute.
If such dispute cannot be resolved within 30 days after such
written notice has been received by Seller, then any specific matter in
dispute shall be submitted to PricewaterhouseCoopers LLP, Cleveland, Ohio
office (the individual thereat to be mutually selected by the Purchaser
and Seller) ("PwC"), which firm shall make a final and binding
determination as to such matter or matters. Such accounting firm shall
deliver its determination regarding the matters submitted to it within 60
days, which determination shall be binding and conclusive upon all
Parties. Purchaser shall promptly deliver the Withheld Amount to Seller
after deducting thereform the Post Closing Adjustment, if any, as
determined by such firm. The fees and expenses of such accounting firm
shall be paid one-half by Purchaser and one-half by Seller.
3.1.3 As additional consideration, Purchaser agrees to pay Seller
for the Purchased Assets, an amount ("Additional Consideration")
calculated based upon the then preceding consecutive 12-months of earnings
before interest and taxes realized by the Business during such period
("EBIT"), as calculated below. The EBIT will be determined using GAAP
applied in a manner consistent with the accounting practices used by
Seller before Closing.
It is the intent of the parties for the purpose of the
determination of the EBIT that during the four year period following the
Closing, the Business will be operated in substantially the same manner as
the Business was operated as of the Closing Date, and the Purchaser will
apply operating, performance and financial criteria to the Business
substantially similar to the criteria applied in connection with the
operation of the Business prior to Closing. During the period that
Additional Consideration can be earned, all dealings between the Business
and the Purchaser and/or its Affiliates shall be on terms no less
favorable to the Business than arms length. The calculation of EBIT will
not include (i) any allocation of home office administrative expenses;
(ii) any costs associated with the purchase of assets pursuant to this
Agreement, including, without limitation, related interest expense,
depreciation of any depreciable assets using a higher adjusted cost basis
than that which was used by Seller before Closing, amortization of
covenants not to compete, goodwill or other intangible assets, or (iii)
the amount by which the payment of salaries to and other related expenses
associated with the employment by the Business of persons not previously
employed by the Seller exceeds such payments prior to the Closing, except
for, in the ordinary course of business, employees hired and for raises
provided to all employees with the approval of Mr. Richard A. Bonner, in
his capacity as President of the Dillen Products Division of Purchaser.
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No election to receive the Additional Consideration can be made by
Seller until the lapse of a one year period after Closing. After such one
year period, an election to receive the Additional Consideration can be
made by Seller subject to the following:
(a) If Seller elects to receive the Additional
Consideration after the one year period, the amount
payable to Seller will be EBIT times 7.22, less the
sum of $50,000,000, with the result thereof divided by
five.
(b) Otherwise, if Mr. Richard A. Bonner is involuntarily
terminated from his employment with Purchaser and
Seller elects to receive the Additional Consideration
after the one year period, the amount payable to
Seller will be EBIT times 8.3, less the sum of
$50,000,000, with the result thereof divided by five.
(c) After the lapse of a four year period after Closing,
Purchaser may elect to pay the Additional
Consideration, the amount payable to Seller will be
EBIT times 8.3, less the sum of $50,000,000, with the
result thereof divided by five.
The Additional Consideration will be paid in cash unless otherwise
mutually agreed to by Seller and Purchaser. If mutually agreed to by
Seller and Purchaser, the Additional Consideration may be paid by
Purchaser in cash, debt (at Purchaser's then cost of borrowing funds), in
shares of Purchaser's common stock valued at the closing price of the
shares on the day of election and which shares must be promptly registered
with the applicable securities agencies and listed on the American Stock
Exchange so that Seller may sell such shares without restriction, or any
combination thereof.
After the one year period after Closing lapses, Seller may send a
written notice to Purchaser as its "Seller Election" electing to receive
all and not part of the Additional Consideration. A Seller Election
received by Purchaser on a day other than the last day of a month, for the
purposes of the EBIT calculation, will be treated as though the election
was made for the last day of the preceding month.
Within 30-days after receipt of a Seller Election, Purchaser shall
calculate the EBIT plus the amount of Additional Consideration due Seller,
and shall provide such calculations, as well as the related work papers to
Seller. Seller may object in a written notice to Purchaser describing the
nature of Seller's objections within 15 business days after receipt of the
EBIT and Additional Consideration calculation. If Seller does not object
within such 15 day period, the calculations shall be deemed accepted and
approved. If Seller raises an objection within the 15 day period, the
parties shall attempt to resolve the matter or matters in dispute.
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If such dispute cannot be resolved within 30 days after written
notice has been received by Purchaser, then any specific matter in dispute
shall be submitted to PwC, which firm shall make a final and binding
determination as to such matter or matters. Such accounting firm shall
deliver its determination regarding the matters submitted to it within 60
days, which determination shall be binding and conclusive upon all
Parties. The fees and expenses of such accounting firm shall be paid
one-half by Purchaser and one-half by Seller.
Seller agrees as part of its obligation to indemnify Purchaser
under this Agreement, that as of Closing it shall provide Purchaser with a
security interest in Seller's contractual right to receive the Additional
Consideration. Seller agrees to execute such documents necessary to grant
Purchaser the security interest as well as to allow Purchaser to perfect
its rights on a first priority basis.
Purchaser and Seller agree that the right to receive the Additional
Consideration may only be assigned by a Seller to its shareholders or
members (as applicable), or as otherwise required by law or court order.
Any assignment in contravention to this restriction will be null and void
and shall not be binding upon the Purchaser. Any assignment shall be
subject to the security interest granted to Purchaser above and the
assignee shall execute such security documents reasonably requested by
Purchaser to ensure the security interest and priority granted Purchaser.
Notice of any assignment and execution of the applicable documents must be
provided to Purchaser in writing before such assignment shall be binding
upon Purchaser. If the right to receive the Additional Consideration is
assigned by a Seller, then for the purposes of this Section, such assignee
will be designated as a "Seller" and may make such elections regarding
when to make a Seller Election to receive Additional Consideration, and in
what form of payment the Additional Consideration will be received, except
that an assignee may only make a Seller Election for all and not part of
its Additional Consideration. The calculation of the Additional
Consideration shall be completed as indicated above, except that the
Additional Consideration will be determined based upon the pro rata amount
assigned and held by the assignee.
3.2 PAYMENT OF CONSIDERATION.
3.2.1 On the Closing Date, or as otherwise agreed, Purchaser will
deliver to Seller by wire transfer the sum of $47,500,000.
3.2.2 On or before 60-days after Closing and upon completion of the
consolidated Balance Sheet of Seller as of July 31, 1999 and the
calculations of the consolidated Shareholder's Equity, Working Capital
Without Debt, and Debt Obligations, as well as any Post-closing Adjustment
by the external accountants for Seller, and assuming there are no
Post-closing Adjustments as detailed in Section 3.1.2 or objections raised
by Purchaser, Purchaser will deliver to the Seller the sum of $2,500,000
("Withheld Amount").
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3.2.3 Purchaser will deliver to Seller (unless the right to receive
such payment has been assigned, then to the assignees) the Additional
Consideration, at such time(s) elected by either Seller or Purchaser, at
such time(s) as delineated in Section 3.1.3.
3.2.4 Purchaser will deliver to the "Shareholders" (as defined in
Section 3.2.4(c)) the cash payment(s) for the "Grossed-up Tax Payments,"
at such time(s) as delineated in Section 3.4.
3.2.5 Any wire transfer of funds by Purchaser will be in
immediately available funds and will be sent to Seller's bank, or to such
other bank within the continental United States as Seller may have
designated by notice to Purchaser.
3.2.6 On the Closing Date Purchaser will assume the Assumed
Liabilities effective as of the Closing Date.
3.3 ALLOCATION OF PURCHASE PRICE. The Parties agree that the Purchase
Price will be allocated as reflected in Schedule 3.3, which schedule will be
completed and agreed to within 60-days after Closing. The portion of the
Purchase Price consisting of Additional Consideration and/or Grossed-up Tax
Payments shall be allocated among Seller based on (a) with respect to Additional
Consideration, which Shareholder of which Seller shall have made the Seller
Election which produced such Additional Consideration, and (b) with respect to
the Grossed-up Tax Payments, the Grossed-up Tax Payments directly attributable
to the Shareholders of each Seller.
3.4 GROSSED-UP TAX PAYMENTS.
3.4.1 A Seller's "Grossed-up Tax Payment" is equal to the amount
such that after:
(a) the receipt by such Seller of the Purchase Price
applicable to such Seller;
(b) the payment by such Seller of all costs of sale
applicable to it pursuant to Section 3.1.1(d);
(c) in the case of Dillen Products, Inc., Red Creek, Inc.
and North Shore Plastics, Inc., the payment by such
Seller of all federal and Ohio income (including, for
this purpose, interest under Section 453A of the Code)
and franchise Taxes and all interest and penalties
attributable to such Taxes that arise or are incurred as
a result of the transactions contemplated by this
Agreement; and;
(d) the payment of all Taxes by the Shareholders of such
Seller with respect to the aggregate proceeds received
by such Shareholders (other than proceeds that are
assets that are not being purchased by Purchaser and are
listed on Schedule 2.1) upon the distribution of the
remaining proceeds to the Shareholders of such Seller in
liquidation of such Seller (and for purposes of
determining the amount of such Taxes, the liquidation
proceeds received by Bonner S
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Corporation One, Inc. or by Bonner S Corporation Two,
Inc. shall be distributed by such corporation to the
Bonner ESBT in liquidation of such corporation);
the aggregate amount of each of such Seller's Shareholder's net
proceeds from the transactions contemplated by this Agreement shall
equal:
(e) the excess of the Purchase Price applicable to such
Seller (net of all costs of sale applicable to it)
pursuant to Section 3.1.1(d), over
(f) the aggregate amount of Taxes that such Shareholders
would have paid on the receipt of their respective
shares of such Purchase Price in exchange for the equity
interests in such Seller assuming that the transaction
had been structured as a sale by such Shareholders of
all of their respective equity interests in such Seller
to the Purchaser, provided, that in the case of
computing the amount of Taxes that the Bonner ESBT would
have paid on the receipt of its share of the Purchase
Price applicable to The Dillen Products Company, Ltd. or
to North Shore Plastics, Inc., the computation of Taxes
shall be based on the sale by the Bonner ESBT of all of
its shares in Bonner S Corporation One, Inc. and Bonner
S Corporation Two, Inc, respectively.
It is the intention of the parties that this Section 3.4 be
interpreted and applied consistently with the intention of the
parties that the amount received by each Shareholder, net of all
Taxes, be equal to the amount that such Shareholder would have
received, net of all federal, state and local income taxes, on the
sale of such Shareholder's directly or indirectly owned equity
interests in the Sellers. The parties further agree that all
calculations required under this Section 3.4 shall be made on the
assumption that Dillen Products, Inc., Red Creek, Inc., Bonner S
Corporation One, Inc. and Bonner S Corporation Two, Inc. qualify as
S corporations under Section 1361 of the Code..
3.4.2 For purposes of this Section 3.4:
(a) the term "Seller" shall refer to Dillen Products, Inc.,
The Dillen Products Company, Ltd., North Shore Plastics,
Inc. or Red Creek, Inc., individually;
(b) the term "Sellers" shall refer to Dillen Products, Inc.,
The Dillen Products Company, Ltd., North Shore Plastics,
Inc. and Red Creek, Inc., collectively;
(c) the term "Shareholder" shall refer to the following:
(i) in the case of Dillen Products, Inc., the Bonner
ESBT and Ken Hyslip, Sr.,
(ii) in the case of The Dillen Products Company, Ltd.,
Ken Nicholson, Ken Hyslip, Sr., Craig Hyslip, Ken
Hyslip, Jr., and Rick Hyslip (all of whom
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are members thereof) and the Bonner ESBT (which is
a beneficial owner of an interest in The Dillen
Products Company, Ltd. by reason of its ownership
of all of the outstanding stock in Bonner S
Corporation One, Inc., which is a member of The
Dillen Products Company, Ltd.),
(iii) in the case of Red Creek, Inc., the Bonner ESBT,
and
(iv) in the case of North Shore Plastics, Inc., the
Bonner ESBT (which is a beneficial owner of shares
in North Shore Plastics, Inc. by reason of its
ownership of all of the outstanding stock in
Bonner S Corporation Two, Inc., which is a
shareholder of North Shore Plastics, Inc.), Jill
Bonner and John Bonner;
(d) the term "Bonner ESBT" shall refer to a trust created
by Mr. Richard A. Bonner, that is a shareholder in
Dillen Products, Inc., Red Creek, Inc., Bonner S
Corporation One, Inc. and Bonner S Corporation Two,
Inc., which is treated for federal income tax purposes
as an "electing small business trust" within the
meaning of Section 1361(e)(1) of the Code;
(e) if a final determination is made by the Internal
Revenue Service (the "IRS") that the Bonner ESBT does
not qualify as an "electing small business trust" (as
defined in Section 1361(e)(1) of the Code), then each
reference in this Section 3.4 to the "Bonner ESBT"
shall be deemed to refer instead to "Mr. Richard A.
Bonner;" and
(f) if a determination is made by the Ohio Department of
Taxation or otherwise that Mr. Richard A. Bonner is
subject to tax for Ohio income tax purposes on income
allocable to the Bonner ESBT, then each reference in
this Section 3.4 to the "Bonner ESBT" shall be deemed
to refer instead to "Mr. Richard A. Bonner."
3.4.3 The amount of the Grossed-up Tax Payment applicable to a
Seller shall be determined and paid at the following times:
(a) at Closing, each Seller shall be paid the Grossed-up
Tax Payment applicable to such Seller assuming that
the Purchase Price applicable to such Seller did not
include any Additional Consideration and that the
Post-closing Adjustment will be assumed to equal the
Withheld Amount;
(b) upon the payment to such Seller of its share of the
Withheld Amount in accordance with Sections 3.1.2 and
3.2.2.;
(c) whenever any Seller, or Shareholder of a Seller, shall
be obligated to make a payment of interest described
in Section 453A of the Code;
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(d) whenever any Seller, or Shareholder of a Seller,
receives Additional Consideration;
(e) whenever any Seller, or Shareholder of a Seller,
believes in good faith that it is required to make a
payment of Taxes by reason of the transactions
described in this Agreement; and
(f) as provided in Section 3.4.5.
3.4.4 The following shall apply for purposes of determining the
amount of the Grossed-up Tax Payment due at any particular time:
(a) All determinations required to be made under this
Section 3.4 (including whether a Grossed-up Tax
Payment is required and the amount of such Grossed-up
Tax Payment), shall be made jointly by Schmitz,
Corrigan, Krause & Co. (or any other firm of certified
public accountants selected from time to time by Mr.
Richard A. Bonner) and Arthur Andersen LLP (or any
other firm of certified public accountants selected
from time to time by the Purchaser) (collectively, the
"Firm"), who shall submit its determination and
detailed supporting calculations to the applicable
Seller (or, if applicable, the affected
Shareholder(s)) (the "Taxpayer") and Purchaser within
15 calendar days after such time or times as may be
requested by the Taxpayer. If the Firm determines that
a Grossed-up Tax Payment is required, the Purchaser
shall pay such Taxpayer the required Grossed-up Tax
Payment within ten calendar days after receipt of such
determination and calculations. Any determination by
the Firm as to the amount of the Grossed-up Tax
Payment shall be binding upon the Purchaser and such
Taxpayer. In the event that Schmitz, Corrigan, Krause
& Co. (or any other firm of certified public
accountants selected from time to time by Mr. Richard
A. Bonner) and Arthur Andersen LLP (or any other firm
of certified public accountants selected from time to
time by the Purchaser) are unable to agree as to
whether a Grossed-up Tax Payment is required or on the
amount thereof, then such determinations shall be made
by PwC.
(b) Each Taxpayer shall provide the Firm (or, if
applicable, PwC) access to and copies of any tax
returns, books, records and other documents in the
possession of such Taxpayer reasonably requested by
the Firm (or, if applicable, PwC) and otherwise
cooperate with the Firm (or, if applicable, PwC) in
connection with the preparation and issuance of the
determination contemplated by this Section 3.4.4. The
Firm (or, if applicable, PwC) shall not, without the
prior written consent of the Taxpayer, make available
to Purchaser, portions of the Taxpayer's tax returns,
books, records or other documents, or copies thereof.
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(c) The fees and expenses of the Firm (or, if applicable,
PwC) for its services in connection with the
determinations and calculations contemplated by this
Section 3.4 shall be borne by the Purchaser.
3.4.5 As provided in Section 3.4.3(f), the Purchaser shall also be
required to make Grossed-up Tax Payments with respect to a Taxpayer in
accordance with the following:
(a) Any Taxpayer (as defined in Section 3.4.4(a)) may
notify the Purchaser in writing of the issuance of a
Revenue Agent's Report by the Internal Revenue Service
or other tax authority (a "Claim") that , if
successful, would require the payment by the Purchaser
of a Grossed-up Tax Payment. Such notification shall
be given no later than ten days after such Taxpayer
receives such Claim. Such Taxpayer further agrees to
provide a copy of the Claim to the Purchaser and the
date on which additional Taxes are requested to be
paid (in each case, to the extent known by such
Taxpayer). No Taxpayer shall pay any such Taxes prior
to the earlier of (i) the expiration of the
30-calendar-day period following the date on which
such Taxpayer gives such notice to the Purchaser, and
(ii) the date that any payment or amount with respect
to such Claim is due. If the Purchaser notifies such
Taxpayer in writing at least five business days prior
to the expiration of such period that it desires to
contest such Claim, such Taxpayer agrees to:
(i) provide the Purchaser with any written records
or documents in such Taxpayer's possession
relating to such Claim reasonably requested by
the Purchaser;
(ii) take such actions in connection with contesting
such claim as the Purchaser shall reasonably
request in writing from time to time, including,
without limitation, accepting legal
representation with respect to such claim by an
attorney competent in the subject matter and
reasonably selected by the Purchaser;
(iii) cooperate with the Purchaser in good faith in
order to contest effectively such Claim; and
(iv) permit the Purchaser, if legally permitted to do
so, to participate in any proceedings relating
to such Claim;
provided, however, that the Purchaser shall bear and
pay directly all costs and expenses (including
interest and penalties) incurred in connection with
such contest and shall indemnify and hold such
Taxpayer harmless, on an after-tax basis (taking into
account all federal, state and local income taxes,
interest and penalties), for and against any Taxes
imposed as a result of such representation and payment
of costs and expenses. Without limiting the foregoing
provisions of this Section 3.4.5, the Purchaser shall
control all
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proceedings taken in connection with the contest of
any Claim contemplated by this Section 3.4.5 and, at
its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of
such Claim (provided, however, that such Taxpayer may
participate therein at such Taxpayer's own cost and
expense) and may, at the Purchaser's option, either
direct such Taxpayer to pay the Taxes claimed to be
due and sue for a refund or contest the Claim in any
permissible manner, and such Taxpayer agrees to
prosecute such contest to a determination before any
administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as
the Purchaser shall determine; provided, however, that
if the Purchaser directs such Taxpayer to pay the
Taxes claimed to be due and sue for a refund, the
Purchaser shall advance the amount of such payment to
such Taxpayer on an interest-free basis and shall
indemnify and hold such Taxpayer harmless, on an
after-tax basis (taking into account all federal,
state and local income taxes, interest and penalties),
from any Taxes imposed with respect to such advance;
and provided further, however, that such Taxpayer
shall agree, at the request of the Purchaser, to
extend the statute of limitations relating to payment
of taxes for such Taxpayer's taxable year with respect
to which the contested amount is claimed to be due.
Furthermore, the Purchaser's control of any such
contested Claim shall be limited to issues with
respect to which a Grossed-up Tax Payment may be
payable hereunder and such Taxpayer shall be entitled
to settle or contest, as the case may be, any other
issue raised by the IRS or any other taxing authority.
(b) If, after the receipt by a Taxpayer of any payment
from the Purchaser pursuant to this Section 3.4.5,
such Taxpayer receives any refund with respect to such
payment, such Taxpayer agrees (subject to the
Purchaser's complying with the requirements of Section
3.4.5(a) hereof) to pay within 10 days upon receipt to
the Purchaser the amount of such refund (together with
any interest paid or credited thereon net of any taxes
(taking into account all federal, state and local
income taxes, interest and penalties) imposed with
respect thereto). If, after such Taxpayer's receipt of
a payment from the Purchaser pursuant to Section
3.4.5(a) hereof, a determination is made that such
Taxpayer is not entitled to any refund with respect to
such Claim and the Purchaser does not notify such
Taxpayer in writing of its intent to contest such
denial of refund prior to the expiration of thirty
calendar days after such determination, then such
payment shall be forgiven to the extent of the
Grossed-up Tax Payment required to be paid pursuant to
this Section 3.4, and the amount forgiven shall
offset, to the extent thereof, the amount of such
Grossed-up Tax Payment. Any remainder of an advance
shall be promptly repaid upon demand.
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4.0 ASSUMPTION OF LIABILITIES; CONSENTS
4.1 GENERAL LIMITATION ON ASSUMPTION OF LIABILITIES. Except for "Permitted
Encumbrances" (being those encumbrances listed on Schedule 4.1) and liens for
taxes not yet due and payable and except as otherwise provided in Section 4.2
below, Seller will transfer the Purchased Assets to Purchaser free and clear of
all Encumbrances.
4.2 ASSUMED LIABILITIES AND OBLIGATIONS. As of the Closing Date, Purchaser
will undertake, assume, perform and otherwise pay, satisfy and discharge, and
hold Seller harmless from the Assumed Liabilities, pursuant to an Assignment and
Assumption Agreement ("Assumption Agreement"). The Assumption Agreement will
provide for the assumption by Purchaser of the Assumed Liabilities and the
assignment to Purchaser of Seller's right, title and interest in each of the
Leases, contracts, licenses, employment and related agreements listed on
Schedule 6.8 (Item 1) and other agreements necessary for the conduct of the
Business as listed on Schedule 2.1.3, together with all consents of third
parties that the Seller, through the use of commercially reasonable best
efforts, has been able to obtain which are required to make each such assignment
effective as to such third parties.
5.0 CLOSING
5.1 TIME; LOCATION. Subject to the conditions contained herein, the
closing of the transactions to be effected hereunder (the "Closing") will be
held on the Closing Date at the offices of Brouse McDowell, L.P.A., Akron, Ohio,
or such other place as the Parties will mutually agree.
The term "Closing Date" will mean Monday, August 2, 1999, at 10:00 a.m.,
local time, the date and time when the transfer of the Purchased Assets and the
payment therefor will take place, or such other date and time as the Parties may
mutually agree.
5.2 DOCUMENTS. On the Closing Date, Seller will execute and deliver to
Purchaser the following instruments of transfer and assignment:
5.2.1 A duly executed Right of First Negotiation for the Real
Property, in recordable form.
5.2.2 A duly executed Amendment to Lease Agreement extending the
term of the lease on the 15150 Madison Road, Middlefield, Ohio property to
August 31, 2018, in recordable form.
5.2.3 A general bill of sale, transferring to Purchaser good and
marketable title to all of the tangible personal property included in the
Purchased Assets, subject only to Permitted Encumbrances.
5.2.4 Title to all vehicles included in the Purchased Assets.
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5.2.5 The certificates of Seller described in Sections 8.3(a) and
(b).
5.2.6 The Assumption Agreement.
5.2.7 A legal opinion of Seller's counsel.
5.2.8 The Seller and Mr. Richard A. Bonner shall have entered into
the non-disclosure, non-interference and non-compete agreement described
in Sections 10.1 to 10.3.
5.2.9 Mr. Richard A. Bonner shall execute and deliver to Purchaser
an unconditional guaranty, pursuant to which he personally guarantees the
Seller's performance and payment when due of each of its duties and
obligations arising under this Agreement and the Ancillary Agreements (the
"Guaranty").
5.2.10 The Security Agreement.
5.2.11 Such other documents as will reasonably be required by
Purchaser or its counsel.
5.3 ACTIONS BY PURCHASER. On the Closing Date, Purchaser will pay Seller
the cash portion of the Purchase Price in cash or by wire transfer of
immediately available funds, in accordance with Section 3.1.1(a) and (b), and
will further execute and deliver to Seller the following agreements and
documents:
5.3.1 The Assumption Agreement.
5.3.2 The certificates of Purchaser described in Sections 9.3
and 9.4.
5.3.3 A legal opinion of Purchaser's counsel.
5.3.4 Such other documents as will reasonably be required by Seller
or its counsel.
6.0 REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
6.1 ORGANIZATION, GOOD STANDING, POWER. Each Seller (a) is an entity
organized, validly existing and in good standing under the laws of the State of
Ohio; (b) and is qualified to do business and is in good standing as a foreign
corporation in all jurisdictions in which Seller conducts the Business, except
where the failure so to qualify will not have a material adverse effect on the
Business; and (c) has all requisite corporate power and authority (i) to own,
lease and operate the Business and the Purchased Assets and to carry on the
Business as presently being conducted, (ii) to execute, deliver and perform this
Agreement and the "Ancillary Agreements" (being collectively, the real and
personal property conveyances and assignments, the Assumption Agreement and the
Security Agreement) to which it is a party, and (iii) to consummate the
transactions contemplated thereby.
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6.2 AUTHORIZATION OF AGREEMENT AND ENFORCEABILITY. Each Seller has taken,
or will take prior to Closing, all necessary corporate action to authorize the
execution, delivery and performance of this Agreement, the Ancillary Agreements
to which it is a party, and the consummation of the transactions contemplated
thereby. This Agreement and the Ancillary Agreements to which it is a party have
been or will be duly and validly authorized, executed and delivered by each
Seller and, when so executed and delivered, will constitute the valid and
legally binding obligations of each Seller, enforceable in accordance with their
terms, but subject to bankruptcy, insolvency and other similar laws of general
application affecting the enforcement of creditors' rights and to the
availability of equitable remedies being in the discretion of a court of
competent jurisdiction.
6.3 EFFECT OF AGREEMENT. Except as set forth on Schedule 6.3, the
execution, delivery and performance by Seller of this Agreement and the
Ancillary Agreements to which it is a party and the consummation of the
transactions contemplated thereby will not (a) violate any provision of law,
statute or regulation to which each Seller, the Business, or the Purchased
Assets are subject; or (b) violate any judgment, order, writ or decree of any
court applicable to each Seller, the Business, or the Purchased Assets; (c)
result in the breach of, or conflict with, or constitute a default under, any
commitment, contract, or other agreement to which each Seller is party or by
which the Purchased Assets or the Business are bound; or (d) result in the
creation or imposition of any lien, security interest, charge, or encumbrance
upon the Purchased Assets.
6.4 RESTRICTIONS; BURDENSOME AGREEMENTS. Except as set forth on Schedule
6.4, each Seller is not a party to any contract, commitment, or agreement, nor
is Seller or any of the Purchased Assets subject to or bound or affected by any
charter, bylaw or other corporate restriction, or any order, judgment, decree,
law, statute, ordinance, rule, regulation or other restriction of any kind or
character which would (a) prevent each Seller from entering into this Agreement
or the Ancillary Agreements to which it is a party or from consummating the
transactions contemplated thereby, or (b) have a material adverse effect upon
the Purchased Assets or Business.
6.5 GOVERNMENT AND OTHER CONSENTS. Except as required by the permits and
licenses referred to in Section 6.14 hereof, and except for such filings or
authorizations as have heretofore been made or obtained, no consent,
authorization, or approval of, or filing with any governmental or regulatory
body is required for the execution, delivery and performance by each Seller of
this Agreement or the Ancillary Agreements.
6.6 FINANCIAL STATEMENTS. The balance sheet and the income statement of
Dillen Products, Inc. for the twelve months ended December 31, 1998, have been
audited and prepared in accordance with GAAP and attached hereto as Schedule
6.6(a), are in accordance with the books and records of the Business and reflect
bona fide transactions, and fairly present in all material respects the
financial condition and results of operation of Dillen Products, Inc. as of the
date thereof.
The balance sheet and the income statement of The Dillen Products Company,
Ltd., for the twelve months ended December 31, 1998, have been reviewed and
prepared in accordance with GAAP and attached hereto as Schedule 6.6(b), are in
accordance with the books and records of the Business and reflect bona fide
transactions, and fairly present in all material respects the financial
condition and results of operation of Dillen Products Company, Ltd. as of the
date thereof.
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The consolidated balance sheet of the Business for the four months ended
April 30, 1999, have been compiled and prepared in accordance with GAAP and
attached hereto as Schedule 6.6(c), are in accordance with the books and records
of the Business and reflect bona fide transactions, and fairly present in all
material respects the financial condition and results of operation of the
Business as of the date thereof.
The consolidated income statements of Seller for the four months ended
April 30, 1999, have been compiled and prepared in accordance with GAAP (with
the exception that footnotes have not been presented therewith), and attached
hereto as Schedule 6.6(d), are in accordance with the books and records of the
Business and reflect bona fide transactions, and fairly present in all material
respects the financial condition and results of operation of each Seller and the
Business as of the date thereof.
6.7 DEBTS, OBLIGATIONS AND LIABILITIES. Except (a) as set forth on page
three of the Consolidated Business Review as prepared by the Falls River Group,
LLC and the financial statements attached hereto on Schedules 6.6(a) through
6.6(d) of the Business provided to Purchaser hereunder, (b) as incurred in the
ordinary course of the Business subsequent to December 31, 1998, or (c) as
described in Schedule 6.7, Seller has no debts, obligations, guarantees or other
liabilities (whether absolute, contingent or otherwise), in respect of the
Purchased Assets or the Business which are of a type which would be required to
be accrued for or otherwise reflected in financial statements prepared in
accordance with GAAP, consistently applied, and Seller does not know of, or have
any reasonable ground to know of, any basis for the assertion against Seller in
respect of its conduct of the Business of any such material liability or
obligation.
6.8 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 1998, except
as set forth on Schedule 6.8 hereto, in its conduct of the Business, Seller has
not:
6.8.1 Amended or terminated any contract other than in the ordinary
course of the Business;
6.8.2 Suffered the occurrence of any events which, individually or
in the aggregate, have had, or should reasonably be expected to have, a
material adverse effect upon the Purchased Assets or the Business as now
conducted by Seller;
6.8.3 Incurred any damage or destruction having a material adverse
effect upon the Purchased Assets or the Business by fire, storm, or
similar casualty, whether or not covered by insurance;
6.8.4 Sold, transferred or leased any of the Purchased Assets,
except for transactions in the ordinary course of the Business;
6.8.5 Waived or released any rights with respect to the Purchased
Assets or the Business other than in the ordinary course of the Business;
6.8.6 Except in connection with the carrying out of the
transactions contemplated by this Agreement, entered into any transaction
other than in the ordinary course of the Business;
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6.8.7 Deferred the payment of any expense or liability, or prepaid
any expense or liability, in anticipation of the consummation of the
transactions contemplated hereby;
6.8.8 Incurred any material fixed or contingent obligation or
entered into any agreement, commitment, or other transaction or
arrangement that is not in the ordinary course of the Business.
6.8.9 Subjected to lien, security interest, or any other
Encumbrance (other than Permitted Encumbrances) any of the Purchased
Assets other than in the ordinary course of business.
6.8.10 Materially increased the compensation of Employees, except
following normal review procedures or as reasonably deemed necessary in
the ordinary course of the Business; or
6.8.11 Materially altered its conduct in its relations with
suppliers or customers other than in the ordinary course of the Business.
6.9 TAXES. All federal, state, county, municipal and foreign tax returns,
reports and declarations which are required to be filed prior to the Closing by
or with respect to the Business have been filed or will be filed by it in a
timely manner. Seller has paid all taxes, assessments and other governmental
charges which have become due and are imposed by law upon the Business or any of
its properties, assets, income, receipts, payrolls, transactions, capital, net
worth or franchise. Except for the items listed on Schedule 6.9, no notice of
deficiency or assessment of additional taxes has been received with respect to
the Business. All taxes, assessments and other governmental charges to be paid
with respect to operations of the Business prior to Closing will be paid as the
same will become due and payable.
6.9.1 Except for liens for current Taxes not yet due, there are no
liens for Taxes and no liens for Taxes will attach as a result of the sale
by Seller to Purchaser of the Purchased Assets.
6.9.2 None of the Purchased Assets directly or indirectly secures
any debt, the interest on which is tax-exempt under Section 103 of the
Internal Revenue Code of 1986, as it may be amended from time to time, and
any successor thereto ("Code").
6.9.3 None of the Purchased Assets is "tax-exempt use property"
within the meaning of Section 168(h) of the Code.
The term "Taxes" will mean all taxes, charges, fees, levies or
other assessment imposed by any taxing authority, including, without
limitation, income, gross receipts, excise, withholding, personal
property, real estate, sale, use, ad valorem, license, lease, service,
severance, stamp, transfer, payroll, employment, customs, duties,
alternative, add on minimum, estimated and franchise taxes (including any
interest, penalties or additions attributable to or imposed on or with
respect to any such assessment).
6.10 TITLE TO PROPERTIES; ABSENCE OF LIENS AND ENCUMBRANCES. Seller owns
and has good title to the Purchased Assets, free and clear of all Encumbrances,
other than (a) any lien for Taxes not yet due and payable, and (b) Permitted
Encumbrances.
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6.11 REAL PROPERTY.
6.11.1 The Leases attached on Schedule 2.1.1 correctly identify the
Real Property subject to the Leases.
6.11.2 No portion of the Real Property subject to the Leases is
occupied by Persons other than Seller, and Seller has entered into no
written or oral agreements or other agreements relating to the occupancy
or use of the Real Property other than the Leases. Seller is in all
material respects in compliance with the terms and conditions of the
Leases, each one of which is in full force and effect. No default exists
with the Leases, or is threatened, and no cause exists for such a default.
6.11.3 Seller has received no written notice of, and otherwise has
no Knowledge of, any pending, threatened or contemplated condemnation,
eminent domain or similar proceedings affecting the Real Property or any
part thereof.
6.11.4 Seller has no Knowledge of any facts or conditions that
cause Seller to believe that there are any material defects in the
structural integrity of the Business facilities which have not been
disclosed to Purchaser.
6.11.5 The Real Property is zoned industrial, which permits the
uses of the Real Property, and the operation of the Business facilities as
currently operated. The present uses of the Real Property do not violate
any provision of any applicable building codes, fire regulations, health
regulations or other governmental ordinances, except for such violations
which, individually or in the aggregate, could not reasonably be expected
to have a material adverse effect on the Business.
6.12 MACHINERY AND EQUIPMENT. The Purchased Assets, together with all
items of personal property leased by the Business, include all machinery and
equipment necessary for the operation of the Business as presently operated;
except as set forth on Schedule 6.12 hereto, all material items of such
machinery and equipment taken as a whole is in such condition and state of
repair as is generally acceptable for operation of the Business as presently
operated; Seller has not deferred any repairs or maintenance of such machinery
and equipment in anticipation of its sale of the Purchased Assets; and Seller
has no Knowledge of any material defect in such machinery and equipment.
6.13 PROPRIETARY RIGHTS. Except as listed on Schedule 6.13, no patents,
patent applications, inventions, intellectual property and trade secret assets
used in the Business and no trademarks, trade names or service marks used in the
Business (all of the foregoing collectively referred to as the "Proprietary
Rights") are material to the operation of the Business as presently operated.
Seller's operations in connection with the Business do not to Seller's Knowledge
violate or infringe the proprietary rights of other parties.
6.14 PERMITS, LICENSES. To Seller's Knowledge, Seller has all material
permits, licenses, registrations, orders and approvals of federal, state, or
local government or regulatory bodies that are
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required to own the Purchased Assets and to operate the Business as presently
operated (including without limitation those required under any "Environmental
Law" (as defined below)) (collectively the "Permits"). To Seller's Knowledge,
Seller is in all material respects in compliance with the terms and conditions
of the Permits. Schedule 6.14 hereto sets forth a correct and complete list of
all material Permits, each one of which is in full force and effect. To
Seller's Knowledge, no suspension or cancellation of any of the material
Permits is threatened and no cause exists for such suspension or cancellation.
Any Permits which cannot be transferred are identified on Schedule 6.14.
6.15 COMPLIANCE WITH THE LAW. Except as otherwise described in this
Article 6, to Seller's Knowledge, the Business has been and is being conducted
in all respects in accordance and in compliance with, all applicable laws,
ordinances, rules and regulations of all federal, state, and local governmental
authorities (other than Environmental Laws, as to which Seller's sole
representations and warranties hereunder are set forth in Section 6.20).
6.16 LITIGATION. Except as described in Schedule 6.16 hereto, there is no
claim, action, suit, proceeding, arbitration, investigation or inquiry pending
before any federal, state, municipal, or other court or governmental or
administrative agency, or, to Seller's Knowledge, threatened against the Seller
or the Business or any of the Purchased Assets, or the transactions contemplated
by this Agreement, which should reasonably be expected to have a material
adverse effect upon the Purchased Assets or the Business or the transactions
contemplated by this Agreement. There is not in existence at present any order,
judgment or decree of any court or other tribunal or any agency enjoining or
requiring Seller to take any action of any kind with respect to the Purchased
Assets or the Business, or to which Seller or the Purchased Assets are subject
or bound. Seller is not in default under any order of any federal, state,
municipal or other governmental agency or with respect to any order, writ,
injunction or decree of any court with respect to the Purchased Assets or the
Business.
6.17 PURCHASE AND SALE OBLIGATIONS. As of the Closing Date, all
unfulfilled purchase and sale orders and all other commitments for purchases and
sales made by Seller in connection with the Business will have been made in the
usual and ordinary course of the Business and in accordance with the customary
pricing policies of Seller in connection with the Business.
6.18 LABOR MATTERS. Except as described in Schedule 6.16 or 6.18 hereto,
there are no discrimination or sexual harassment complaints nor any other kind
of labor related disputes against Seller in connection with the Business pending
before or, to Seller's Knowledge, threatened before any federal, state, or local
court or agency, and, no dispute respecting minimum wage or overtime claims has
arisen. The Business has not experienced any general labor disputes or any work
stoppage due to labor disagreements within the past three years.
With respect to the Business and except to the extent set forth in
Schedule 6.18, (a) Seller and the Business are in compliance with all
applicable laws respecting employment and employment practices, terms and
conditions of employment, and wages and hours, and are not engaged in any
unfair labor practice; (b) there is no unfair labor practice charge or
complaint against Seller pending or, to Seller's Knowledge, threatened, before
the National Labor Relations Board; (c) there is no labor strike, request for
representation, slowdown or stoppage actually pending or, to Seller's
Knowledge, threatened against or affecting Seller; and (d) Seller has not
received written notice of
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any demand concerning union representation having been raised within the past
three years and, to Seller's Knowledge, no such representation is threatened,
respecting the Employees. The Business is not now, and has not at any time
within the past three years been, subject to any collective bargaining
agreement.
6.19 EMPLOYEE BENEFITS.
6.19.1 To the best of its Knowledge, Seller has not taken any
action which may result in Purchaser being a party to, or bound by, any
Plan subject to the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all regulations promulgated thereunder
("ERISA"), and, Purchaser will have no liability under any ERISA Plan or
payroll practice/employee arrangement following the consummation of the
transactions contemplated hereby; except that Purchaser will assume as of
Closing the Dillen Products, Inc. Employee Savings 401(k) Plan ("401K
Plan") and Purchaser will be responsible for continuing to provide health
care coverage to those persons who had elected or who were eligible to
elect such coverage up through the Closing Date.
6.19.2 Seller warrants that no ERISA Plan or other employee
arrangement has provided for the payment of retiree benefits in any manner
such that Purchaser would become liable to make such payments. There have
been no failures to provide health care continuation coverage ("COBRA
Coverage") under any welfare benefit plans sponsored by Seller which
Sections 601 through 608 of ERISA require.
6.19.3 Seller represents and warrants to Purchaser that there
currently is no defined contribution retirement plan, other than the 401K
Plan, nor any defined benefit retirement plan maintained by the Seller for
its employees, nor has there been any such plan(s) in existence or
maintained by Seller in the past three years.
6.20 ENVIRONMENTAL COMPLIANCE. Except as described in Schedule 6.20:
(a) There has been no disposal or treatment of hazardous
substances by Seller (or any predecessor in interest or entities acquired,
combined. merged or amalgamated) or any release at, on or under any real
property, or the Real Property, by Seller or to Seller's Knowledge, by any other
person, in violation of any Environmental Law (as defined below) or which would
require investigation, assessment or remedial action under any Environmental
Law; and (ii) none of the sediment, surface or subsurface soil, ground water or
surface water of such real property, or the Real Property, is, or has been,
contaminated by any release.
(b) Seller has not received any (i) notice from any
governmental authority or other third party of any alleged violation with
respect to any Environmental Law; or (ii) notice of any actual, pending or
threatened regulatory action involving Seller or involving any present or
former owner, lessee or operator of any real property, or the Real Property.
(c) There are no (i) incinerators, septic tanks, underground
tanks or cesspools which have been located, on, at or under any real property,
or the Real Property; (ii) all sewage from the
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Real Property is discharged into a public sanitary sewer system; and (iii)
there has been no release by Seller of regulated or hazardous substances into
the environment or into any adjoining or adjacent property.
(d) Seller has obtained all permits, consents and approvals to
conduct the Business and operations in compliance with all applicable
Environmental Laws.
For purposes of this Agreement, the term "Environmental Laws"
shall mean any and all laws, statutes, ordinances, rules, regulations, orders,
agreements or determinations of any governmental authority pertaining to the
operation, emission, discharge or release of pollutants, contaminants, hazardous
substances or wastes into the environment or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the investigation, assessment, clean-up or other remediation thereof.
For purposes of this Agreement, the term "Governmental Authority" includes, but
is not limited to the federal, provincial and municipality and other political
subdivisions in which the properties and Seller are located or which exercises
jurisdiction over any of the properties, and any agency, department, commission,
board, bureau or instrumentality or any of them that exercises jurisdiction over
any of the properties or Seller.
6.21 SECURITIES. No shares of stock or other securities are included in
the Purchased Assets.
6.22 ILLEGAL PAYMENTS. No part of the Business is dependent upon, or
results from, any payments, direct or indirect, in the nature of bribes,
kick-backs, or similar payments to any government or agency thereof or to any
other Person, or in the nature of contributions to any domestic or foreign
political party or candidate, and no illegal payments have been made.
6.23 INTEREST IN BUSINESS. Seller has not granted, and there is not
outstanding, any option, right, agreement or other obligation pursuant to which
any Person could claim a right to acquire, in any way, all or any part of, or
interest in, the Business, other than any which might arise in the ordinary
course of the Business as a result of a sale, or agreement to sell, Product.
6.24 BROKERS, FINDERS, COUNSEL AND AGENTS. Other than the fees and costs
payable by Seller to Falls River Group, LLC, Seller is not directly or
indirectly obligated to pay any fee or commission to anyone as a broker, finder
or in any other similar capacity in connection with this Agreement or the
transactions contemplated hereby. The fees and costs payable under this Section
will be paid by Seller from the Purchase Price received hereunder and they will
not be accrued on the Balance Sheet or Financial Statements.
6.25 PRODUCTS LIABILITY. Except as disclosed on Schedule 6.16, there are
no pending or, to Seller's Knowledge, threatened, claims for personal injury,
property damage or (except for returned products) breach of warranty against
Seller with respect to any products manufactured, processed, sold or distributed
by the Business. There is no reason to expect that significant or extraordinary
product liability claims will be made against Seller after the Closing Date that
relate to such products manufactured, processed, sold or distributed prior to
the Closing Date.
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6.26 YEAR 2000 COMPLIANCE. Except as disclosed on Schedule 6.26, the
assets, products, components, systems, processes, controls or other goods, work
or services of Seller are Year 2000 Compliant. For purposes of this Agreement,
"Year 2000 Compliant" means:
(a) the functions, calculations and computing processes
perform in a consistent manner and without interruptions, regardless of the date
in time on which processes are actually performed, and regardless of the data
input or output, whether before, on, during or after January 1, 2000, and
whether or not the data is affected by leap years;
(b) date data is accepted, calculated, compared, sorted,
extracted, sequenced or otherwise processed, and returned and displayed, in a
consistent manner regardless of the dates used in such data, whether before, on,
during or after January 1, 2000; and
(c) the assets, products, components, systems, processes,
controls or other goods accept and respond to year-date input, and store and
display data in a manner that is unambiguous as to the century in a defined,
predetermined and appropriate manner.
6.27 SOFTWARE LICENSES. Except as disclosed on the Disclosure Schedule,
Seller has a valid license for any and all computer software used in the
business and Seller is in compliance with the terms of each such license.
7.0 REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
7.1 ORGANIZATION, GOOD STANDING, POWER. Purchaser is a corporation
organized, validly existing and in good standing under the laws of Ohio and has
all requisite corporate power and authority, licenses, permits and franchises to
own, lease and operate the Business and the Purchased Assets and to execute,
deliver and perform this Agreement and the Ancillary Agreements to which it is a
party and to consummate the transactions contemplated thereby.
7.2 AUTHORIZATION OF AGREEMENT AND ENFORCEABILITY. Purchaser has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the Ancillary Agreements to which it is a
party and the consummation of the transactions contemplated thereby. This
Agreement and the Ancillary Agreements to which Purchaser is a party have been
duly and validly authorized, executed and delivered by and constitutes the valid
and legally binding obligations of Purchaser, enforceable in accordance with
their terms, but subject to bankruptcy, insolvency and other similar laws of
general application affecting the enforcement of creditors' rights and to the
availability of equitable remedies being in the discretion of a court of
competent jurisdiction.
7.3 EFFECT OF AGREEMENT; CONSENTS. No consent, authorization, approval
or exemption by, or filing with, any governmental or public body or authority is
required, which will not have been obtained by Purchaser on or prior to the
Closing Date, in connection with the execution, delivery and
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performance by Purchaser of this Agreement and the Ancillary Agreements to
which either of them is a party or the taking of any action contemplated
thereby. The execution, delivery and performance of this Agreement and the
Ancillary Agreements to which Purchaser is a party and the consummation of the
transactions contemplated by it thereof will not (with or without the giving
of notice or the lapse of time, or both) (a) violate any judgment, order, writ
or decree of any court applicable to Purchaser, (b) violate any provision of
law, statute or regulation to which Purchaser is subject or (c) result in
breach of, or conflict with, any contract or other agreement if the effect of
such breach or conflict would impair Purchaser's ability to perform its
obligations hereunder.
7.4 LITIGATION. There is no claim, action, suit, proceeding,
arbitration, investigation, or inquiry before any federal, state, municipal, or
other court or governmental or administrative or self-regulatory body or agency,
or any private arbitration tribunal or, to Purchaser's Knowledge, threatened
against Purchaser or any of its respective assets, or the transactions
contemplated by this Agreement, which should reasonably be expected to have an
adverse effect upon the transactions contemplated by this Agreement or
Purchaser's ability to perform its obligations hereunder.
7.5 INFORMATION ON PURCHASER. Except as set forth or disclosed in the
filings made by Purchaser with the Securities and Exchange Commission
("Commission") filed by Purchaser with the Commission prior to the date of this
Agreement, since December 31, 1998 to the date of this Agreement, there has not
been any change in the financial condition, results of operations or business of
Purchaser that either individually or in the aggregate has had a material
adverse effect on Purchaser.
8.0 COVENANTS OF SELLER; CONDITIONS PRECEDENT TO OBLIGATIONS OF
PURCHASER
8.1 PRE-CLOSING AFFIRMATIVE COVENANTS. Seller covenants to the
Purchaser that, between the date of this Agreement and the Closing, Seller will:
(a) Give to Purchaser and its counsel, accountants,
consultants and other representatives reasonable access, during normal business
hours, to such of the properties, books, accounts, contracts and records of
Seller and furnish to Purchaser all such information concerning Seller and the
business as Purchaser reasonably may request.
(b) Except as permitted on Schedule 8.1(b), or required hereby
or as Purchaser may otherwise consent to in writing, operate the business only
in the usual, regular and ordinary manner as such business was conducted prior
to the date hereof and, to the extent consistent with such operation, use its
reasonable best efforts to (i) preserve and keep intact its present business
organization, (ii) keep available the services of the employees of Seller, and
(iii) preserve Seller's relationships with customers, suppliers and others
having business dealings with Seller until the Closing Date.
(c) Maintain the Purchased Assets, whether owned or leased,
including the spare parts inventory, in good repair, order and condition, in
accordance with manufacturer's instructions and Seller's past practices,
reasonable wear and tear excepted.
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(d) Maintain Seller's books and records in the usual, regular
and ordinary manner, in accordance with GAAP and on a basis consistent with
prior years.
(e) Comply in all material respects with all laws and
regulations applicable to Seller and to the conduct of the business.
(f) Perform all the obligations of Seller relating to the
assets and the Business without material default in accordance with the past
practices of Seller.
(g) Obtain in writing as promptly as possible all approvals
and consents required with respect to all material contracts, instruments or
other agreements, without cost or expense to the Purchaser, in order to
effectuate the contemplated transaction, and to deliver to Purchaser copies of
such approvals and consents.
(h) Give to Purchaser prompt written notice of any damage by
fire or other casualty upon the assets or the business.
(i) Advise Purchaser promptly in writing of any fact which
would have been required to be set forth or disclosed in or pursuant to this
Agreement, or which would result in the breach in any material respect by Seller
of any representation or warranty or any covenant or agreement hereunder.
(j) Not publish or disclose and not authorize or give
permission to any of its officers, employees, directors, agents or
representatives or any third party to publish or disclose any trade secrets or
other confidential information or any data or business or financial books,
records, or other information of, or pertaining to, Purchaser, which have been
furnished to Seller by Purchaser or to which Seller, or any of his agents,
attorneys, or accountants have had access during any investigation made in
connection with this Agreement and which is not otherwise available to Seller,
except as required by law.
(k) Not undertake any course of action inconsistent with
satisfaction of the conditions applicable to Seller set forth in this Agreement,
and Seller shall use its reasonable best efforts to do all such acts and take
all such measures as may be necessary to comply with the representations,
agreements, conditions and other provisions of this Agreement.
8.2 PRE-CLOSING RESTRICTIVE COVENANTS. Between the date of this
Agreement and the Closing, Seller will not:
(a) Sell, transfer, assign, lease, encumber or otherwise
dispose of any of the Purchased Assets other than in the ordinary course of
business.
(b) Change the character of the Business.
(c) Incur any material fixed or contingent obligation or enter
into any agreement, commitment, or other transaction or arrangement that is not
in the ordinary course of business.
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(d) Subject to a new lien, security interest, or any other
encumbrance on any of the Purchased Assets, other than in the ordinary course of
business.
(e) Without the written consent of Purchaser, enter into any
transaction, take any action, or by inaction permit any event to occur, which
would result in any of the representations and warranties of the Seller herein
contained not being true and correct in any material respect at and as of the
time immediately after the occurrence of such transaction or event.
(f) Increase the rate of compensation paid, or pay any bonus
to anyone connected with the business, except for (i) merit raises provided to
employees in accordance with Seller's past practice, (ii) bonuses paid to Seller
employees (other than the executives of Seller) in accordance with Seller's past
practice and (iii) contributions to Seller's profit sharing plan in accordance
with Seller's past practice. Seller further agrees not to establish or adopt any
new pension or profit-sharing plan, deferred compensation agreement or employee
benefit arrangement of any kind whatsoever covering or affecting Seller's
employees.
(g) Publicize, advertise, or announce and use its reasonable
best efforts not to permit any of its agents or representatives to publicize,
advertise, or announce, to any third party, except as required pursuant to this
Agreement to obtain the consent of such third party, and except as required in
the interest of the business, the entering into of this Agreement, the terms of
this Agreement, or the transactions contemplated hereby.
(h) Directly or indirectly solicit or engage in discussions or
negotiations with, or provide any non-public information to or otherwise
cooperate with, any other person who seeks to acquire, or expresses an interest
in acquiring, all or any substantial part of the business, or for the purpose of
effecting a transaction inconsistent with the Purchaser's acquisition of the
business.
(i) Except in the ordinary course of business, cancel, release
or relinquish any debts of or claims against others held by Seller, and no
rights relating to the Business shall be waived.
(j) Other than in the ordinary course of business, Seller will
not terminate or modify any lease, contract, governmental license, permit or
other authorization or agreement affecting Seller, the Business or the Purchased
Assets or the operation thereof, subject however to Section 5.2.2.
8.3 PRE-CLOSING CONDITIONS. The obligations of Purchaser hereunder are
subject to the fulfillment at the Closing Date of each of the following
conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. Except as
affected by transactions contemplated hereby and except any representations or
warranties which were expressly stated as being made as of a specified date, the
representations and warranties of Seller contained in this Agreement and any
Ancillary Agreements to which it is a party are true in all material respects on
and as of the Closing Date.
(b) PERFORMANCE OF AGREEMENTS. Seller will have performed in
all material respects all obligations and agreements and complied in all
respects with all covenants and
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conditions contained in this Agreement and in each Schedule or Exhibit
attached hereto to be performed or complied with on its part at or prior to
the Closing Date, including but not limited to providing the documents listed
under Section 5.2.
(c) ABSENCE OF MATERIAL DAMAGE TO PURCHASED ASSETS. As of the
Closing Date there will have been no occurrence of any event that, individually
or in the aggregate, has had, or should reasonably be expected to have, a
material adverse effect upon the Purchased Assets or the Business taken as a
whole, specifically including, but not limited to, the financial condition and
operating results, or any damage or destruction to any of the Purchased Assets
by fire, storm, or other like or unlike casualty, whether or not covered by
insurance.
(d) SELLER'S CERTIFICATE AND LEGAL OPINION. Purchaser will
have received a certificate from Seller, dated as of the Closing Date,
reasonably satisfactory in form and substance to Purchaser and its counsel,
certifying as to the fulfillment of all matters specified in Section 8.3(a) and
Section 8.3(b) hereof. Purchaser will also have received an opinion of Seller's
legal counsel, dated as of the Closing Date, reasonably satisfactory in form and
substance to Purchaser and its counsel.
(e) SECRETARY'S CERTIFICATE. Purchaser will have received a
certificate, dated the Closing Date, of the Secretary of each Seller with
respect to (a) the resolutions adopted by the Board of Directors of each Seller
and the shareholders of each Seller approving this Agreement and the Ancillary
Agreements to which Purchaser is a party, and the other transactions
contemplated hereby, (b) the incumbency and specimen signature of each officer
or representative of each Seller executing this Agreement and the Ancillary
Agreements to which each Seller is a party, and (c) such other certificates as
may reasonably be requested, including but not limited to those regarding good
standing and tax compliance.
(f) INJUNCTION AND HSR APPROVAL. On the Closing Date, there
will be no injunction, writ, preliminary restraining order or any order of any
nature in effect issued by a court of competent jurisdiction directing that the
transactions provided for herein, or any of them, not be consummated as herein
provided, and that Purchaser and Seller have received approval, early
termination or the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended ("HSR Act") has expired.
(g) PAY EMPLOYEES TO CLOSING DATE. Each Seller shall have paid
or accrued all wages, salaries and other sums, including but not limited to the
amounts due under the Dillen Plans (as defined in Section 10.6.2) due Employees
through the close of business on July 31, 1999 and shall have listed these
amounts on the Balance Sheet.
(h) COMPLIANCE WITH AGREEMENT. Seller shall have not
undertaken any course of action inconsistent with satisfaction of the conditions
applicable to it set forth in this Agreement; and Seller will have used its best
efforts to do all such acts and take all such measures as may be necessary to
comply with the representations, agreements, conditions and other provisions of
this Agreement.
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9.0 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
The obligations of Seller are subject to the fulfillment at the Closing
Date of each of the following conditions:
9.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Except as affected by
transactions contemplated hereby and except any representations or warranties
which were made as of a specified date, the representations and warranties of
Purchaser contained in this Agreement and any Ancillary Agreements to which it
is a party will be true in all material respects on and as of the Closing Date.
9.2 PERFORMANCE OF AGREEMENT. Purchaser will have performed in all
material respects all obligations and agreements and complied in all respects
with all covenants and conditions contained in this Agreement to be performed or
complied with on its part at or prior to the Closing Date.
9.3 PURCHASER'S CERTIFICATE AND LEGAL OPINION. Seller will have
received a certificate from Purchaser, dated as of the Closing Date, reasonably
satisfactory in form and substance to Seller and its counsel, certifying as to
the fulfillment of the matters specified in Section 9.1 and Section 9.2 hereof.
Seller will have received an opinion of Buyer's legal counsel, dated as of the
Closing Date, reasonably satisfactory in form and substance to Seller and its
counsel, in the form attached hereto as Exhibit 9.3.
9.4 SECRETARY'S CERTIFICATE. Seller will have received a certificate,
dated the Closing Date, of a Secretary of Purchaser with respect to (a) the
resolutions adopted by the Board of Directors of Purchaser approving this
Agreement and the Ancillary Agreements to which Purchaser is a party, and the
other transactions contemplated hereby, (b) the incumbency and specimen
signature of each officer or representative of Purchaser executing this
Agreement and the Ancillary Agreements to which Purchaser is a party, and (c)
such other certificates as may be requested, including but not limited to those
regarding good standing and tax compliance.
9.5 INJUNCTION AND HSR APPROVAL. On the Closing Date, there will be no
injunction, writ, preliminary restraining order or any order of any nature in
effect issued by a court of competent jurisdiction directing that the
transactions provided for herein, or any of them, not be consummated as herein
provided and that Purchaser and Seller have received approval, early
termination or the waiting period under the HSR Act has expired.
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9.6 COMPLIANCE WITH AGREEMENT. Purchaser shall have not undertaken any
course of action inconsistent with satisfaction of the conditions applicable to
it set forth in this Agreement; and Purchaser will have used its best efforts to
do all such acts and take all such measures as may be necessary to comply with
the representations, agreements, conditions and other provisions of this
Agreement.
10.0 OBLIGATIONS AFTER THE CLOSING DATE
10.1 COVENANT NOT TO DISCLOSE. Each Seller and Mr. Richard A. Bonner
(collectively "Sellers") hereby covenant and agree that, except as may be
required by law, rule or regulation, they will not at any time reveal, divulge
or make known to any Person (other than Purchaser) and Sellers will not use for
their own purposes any information that relates to the Business, including, but
not limited to, customer lists or other customer information, trade secrets or
formulae, marketing plans or proposals, financial information, or any data,
written material, records or documents used by or relating to the Business which
are of a confidential nature (collectively, the "Confidential Information").
Confidential Information includes any such information whether or not such
information was developed, devised or otherwise created in whole or in part by
the efforts of Sellers, but will not include such information which is a matter
of public knowledge, unless it is of general public knowledge as a result of the
unauthorized disclosure by Sellers.
10.2 COVENANT NOT TO INTERFERE. Sellers, except for Mr. Richard A.
Bonner, hereby covenant and agree that, unless this Agreement is terminated, for
a period of five years after the Closing Date, they will not, whether for their
own account or for the account of any other Person, knowingly initiate
discussions with any person who is an employee of the Purchaser for the purpose
of persuading such employee to terminate his or her employment with the
Purchaser (except with the written permission of the employer or as otherwise
specifically contemplated by this Agreement).
Mr. Richard A. Bonner agrees that, unless this Agreement is terminated,
for a period of five years after he no longer has employee status with Purchaser
for any reason, he will not, whether for his own account or for the account of
any other Person, knowingly initiate discussions with any person who is an
employee of the Purchaser for the purpose of persuading such employee to
terminate his or her employment with the Purchaser (except with the written
permission of the employer or as otherwise specifically contemplated by this
Agreement).
10.3 COVENANT NOT TO COMPETE. The Sellers, except for Mr. Richard A.
Bonner, agree that, unless this Agreement is terminated, for a period of five
years after the Closing Date and in the geographic area in which the Company
is currently doing business, neither they nor their Affiliates will engage,
directly or indirectly, whether as a principal, partner, joint venturer,
shareholder, or agent, in any enterprise which produces products or provides
services of the same type as those which the Business produces as of the
Closing Date, provided, however, that nothing herein will prohibit the
ownership by Sellers of securities of any entity traded on any national
exchange.
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Mr. Richard A. Bonner agrees that, unless this Agreement is terminated,
for a period of five years after he no longer has employee status with Purchaser
for any reason, neither he nor his Affiliates will engage, directly or
indirectly, whether as a principal, partner, joint venturer, shareholder, or
agent, in any enterprise which produces products or provides services of the
same type as those which the Business produces products or provides services as
of the date he ceases to be employed for any reason and in the geographic area
in which the Company is currently doing business, provided, however, that
nothing herein will prohibit the ownership by him of securities of any entity
traded on any national exchange. Further, this Section 10.3 shall not prohibit
Mr. Richard A. Bonner from owning an interest in the entities which lease real
property to the Purchaser provided such entities do not engage in competition
with Purchaser as prohibited under the terms of this Section.
10.4 REASONABLE RESTRICTIONS. Sellers acknowledge that the restrictions
set forth in Sections 10.1 through 10.3 are reasonable and necessary to protect
the Purchaser's interests. Sellers agree that, in the event that any part of
Sections 10.1 through 10.3 shall be held unenforceable or invalid, the remaining
parts thereof shall nevertheless continue to be valid and enforceable as though
the invalid portions had not been a part hereof. In the event that the
geographic area, time period of restriction, activity or subject established in
accordance with Sections 10.1 through 10.3 shall be deemed to exceed the maximum
area, period of restriction, activity or subject which a court of competent
jurisdiction deems enforceable, said area, periods of restriction, activities or
subjects shall, for the purposes of Sections 10.1 through 10.3, be reduced to
the extent necessary to render them enforceable
10.5 NAME CHANGE. Seller agrees to cease using the corporate name
"Dillen Products," "Red Creek," "North Shore Plastics," and "Dillen" as of
Closing and agrees to change the corporate names within seven business days
after Closing.
10.6 TRANSITION OF EMPLOYEES.
10.6.1 EMPLOYEES; ASSUMPTION OF EMPLOYMENT CONTRACTS.
Purchaser will, on the Closing Date, offer employment to all of the
Persons employed by the Business on the Closing Date on the same terms
and conditions to which they are then employed by the Seller, and
Purchaser will assume the employment contracts listed on Schedule
10.5.1.
10.6.2 EMPLOYEE BENEFITS GENERALLY. Immediately after Closing,
all Persons employed by Purchaser will have the benefits previously
provided under the 401K Plan, the the Dillen Products Life Insurance
Plan with Anthem and the Dillen Products, Inc. Group Health Plan with
Anthem (collectively the "Dillen Plans"). After Closing, Purchaser
shall have the unilateral right to change such benefits at any time and
from time to time to conform such benefits to those provided generally
to the employees of Purchaser.
10.6.3 POST-RETIREMENT HEALTH COVERAGE. Seller has no
post-retirement health coverage plans or agreements. Neither the
Purchaser nor any of its Affiliates will be liable for the payment of
any health expenses incurred by individuals who retired from the
Seller's employment on or before the Closing Date.
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10.6.4 DISABILITY BENEFITS. Seller has no liability for the
payment of long-term or short-term disability benefits to employees or
individuals who terminated employment with the Seller on or before the
Closing Date.
10.6.5 COOPERATION. The Purchaser and the Seller agree to
cooperate in collecting and providing such information as may be
required by either in order to discharge their respective obligations
under this Section 10.6.
10.7 FURTHER ASSURANCES OF SELLER. After the Closing Date, Seller will,
at the request of Purchaser, execute, acknowledge and deliver to Purchaser, all
such further assignments, conveyances, endorsements, deeds, special powers of
attorney, consents and other documents, and take such other action as Purchaser
may reasonably request (a) to transfer to and vest in Purchaser, and protect its
rights, title and interest in, all the Purchased Assets, and (b) otherwise to
consummate the transactions contemplated by this Agreement. In addition, from
and after the Closing Date, Seller will afford to Purchaser and its attorneys,
accountants and other representatives access, during normal business hours, to
such books of account and other financial records relating to the Business as
may reasonably be required in connection with the preparation of financial
information or tax returns of Purchaser.
10.8 FURTHER ASSURANCE OF PURCHASER. From and after the Closing Date,
Purchaser will afford to Seller and its attorneys, accountants and other
representatives access, during normal business hours, to such books of account
and other financial records relating to the Business as may reasonably be
required in connection with the preparation or audit of financial information or
tax returns of Seller for periods concluding on or prior to the Closing Date.
Purchaser will cooperate in all reasonable respects with Seller with respect to
its former interest in the Business and in connection with claims and litigation
asserted by or against third parties, including, but not limited to, making
employees available to assist with, or provide information in connection with,
claims and litigation, provided, that Seller reimburses Purchaser for the
reasonable costs incurred by Purchaser in connection therewith. Purchaser will
maintain the records obtained by it under Section 2.1.9 for a period of six
years after the Closing Date.
10.9 RELEASE OF SELLER AND GUARANTORS FROM NOTE. Prior to Closing,
Seller shall take all action necessary and appropriate to obtain the full and
unconditional release of the Seller and the guarantors from all of their
respective obligations to KeyBank, N.A.("Bank") as reflected on Schedule 2.1.3
("KeyBank Loans"). At Closing, Purchaser agrees as part of its agreement to
assume the KeyBank Loans, to execute such documents requested by Bank to release
Seller and the guarantors from the KeyBank Loans.
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11.0 INDEMNIFICATION
11.1 INDEMNIFICATION BY SELLER. Seller covenants and agrees with
Purchaser that it will pay and perform, and will indemnify Purchaser, its
directors and officers, all Persons controlled by, controlling or under common
control with Purchaser, and each of their successors and assigns (individually,
a "Purchaser Indemnified Party"), and hold them harmless from, against and in
respect of any and all costs, losses, claims, liabilities, fines, penalties,
damages and expenses (including interest which may be imposed in connection
therewith and court costs and reasonable fees and disbursements of counsel, but
after taking into account any insurance proceeds received by Purchaser with
respect thereto and any net tax benefits to Purchaser resulting therefrom)
(collectively, "Seller's Indemnified Liabilities") resulting from, arising out
of, or incurred by any Purchaser Indemnified Party, after the Closing Date, in
connection with:
11.1.1 Any breach of any of the covenants, representations or
warranties made by Seller in this Agreement or the Ancillary
Agreements.
(a) Claims for indemnification with respect to
breach of the warranties set forth in Section 6.1
(Organization, Good Standing, Power); Section 6.2
(Authorization of Agreement and Enforceability); Section 6.3
(Effect of Agreement); Section 6.10 (Title to Personal
Property); and in the General Bill of Sale, may be made by the
Purchaser at any time after the Closing Date.
(b) Claims for indemnification with respect to
breach of the warranties in Section 6.9 (Taxes) and Section
6.18 (Labor Matters), must be made by the Purchaser prior to
the expiration of the statute of limitations applicable to the
matter that gives rise to the claim.
(c) Claims for indemnification with respect to the
breach of any of the other warranties set forth in Article 6,
and claims for indemnification or claims for all other debts,
obligations, liabilities of, or claims against, Seller of any
kind, including those arising out of or relating to the
operation of the Business prior to the Closing Date, must be
made by Purchaser on or before the second anniversary of the
Closing Date, except to the extent they are covered under
paragraphs (a) and (b) above, and then pursuant to the periods
indicated therein.
11.2 INDEMNIFICATION BY PURCHASER. Purchaser covenants and agrees with
Seller that it will pay and perform, and will indemnify Seller, its directors,
officers or managers, all Persons controlled by, controlling or under common
control with Seller, and each of their successors and assigns (individually, a
"Seller Indemnified Party"), and hold them harmless from, against and in respect
of any and all costs, losses, claims, liabilities, fines, penalties, damages and
expenses (including interest which may be imposed in connection therewith and
court costs and reasonable fees and disbursements of counsel, but after taking
into account any insurance proceeds received by Seller with respect thereto and
any net tax benefits to Seller resulting therefrom) (collectively, "Purchaser's
Indemnified Liabilities") resulting from, arising out of, or incurred by any
Seller Indemnified Party, after the Closing Date, in connection with:
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11.2.1 Any breach of any of the representations, warranties or
covenants made by Purchaser in Article 7 hereof or elsewhere in this
Agreement or Ancillary Agreements.
(a) Claims for indemnification with respect to
breach of the warranties set forth in Section 7.1
(Organization, Good Standing, Power); Section 7.2
(Authorization of Agreement and Enforceability); and Section
7.3 (Effect of Agreement) may be made by the Seller at any
time after the Closing Date.
(b) Claims for indemnification with respect to any
attempt (whether or not successful) by any Person to cause or
to require Seller to pay or to discharge any Assumed Liability
or any other debt, obligation, liability or commitment of
Purchaser (except with regard to any liability for which
Seller has been expressly released or with regard to the
Leases) may be made by the Seller during any period prior to
the discharge in full of the underlying Assumed Liability,
debt, obligation, liability or commitment.
(c) Claims for indemnification with respect to (i)
the breach of any of the other warranties set forth in Article
7, (ii) failure or default by Purchaser in respect of any of
the covenants or agreements made by Purchaser in this
Agreement or Ancillary Agreements (including without
limitation obligations or liabilities arising out of or in
connection with Purchaser's ownership of the Purchased Assets
or the operation of the Business after the Closing), or the
existence of which would constitute a breach of any
representation, warranty, covenant or agreement contained in
this Agreement must be made by the Seller on or before the
second anniversary of the Closing Date.
11.3 PROCEDURES FOR INDEMNIFICATION.
11.3.1 Each Indemnified Party will promptly give notice
hereunder to the indemnifying party ("Notice of Claim") after obtaining
written notice of any claim as to which recovery may be sought against
the indemnifying party, and, if such indemnity will arise from the
claim of a third party, will permit the indemnifying party to assume
the defense of any such claim and any litigation or other proceeding
resulting from such claim; provided, however, that Purchaser (or any
Purchaser Indemnified Party) will not be required to permit Seller to
assume the defense of any claim or litigation which, if not first paid,
discharged or otherwise complied with, would result in an interruption
or disruption of the conduct of the business of Purchaser or any
material part thereof.
Notwithstanding the foregoing, the right to indemnification
hereunder will not be affected by any failure of an Indemnified Party
to give such notice. The notice required hereunder will specify the
basis for the claim for indemnification and the "Indemnified
Liabilities" (collectively, Seller's Indemnified Liabilities and
Purchaser's Indemnified Liabilities) arising therefrom to the extent
ascertainable at the time of the notice. Failure by an indemnifying
party to notify an Indemnified Party of its election to defend any
such claim or action by a third party within 21-days after notice
thereof will have been given to the
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indemnifying party will be deemed a waiver by the indemnifying party
of its right to defend such claim or action if the Indemnified
Party's ability to defend such claim or action would be prejudiced by
the indemnifying party's assumption of the defense after such time.
11.3.2 The indemnifying party will not, in the defense of such
claim or any litigation resulting therefrom, consent to entry of any
judgment (other than a judgment of dismissal on the merits without
costs) or enter into any settlement, except with the written consent of
the Indemnified Party (which will not be unreasonably withheld) if such
settlement involves the entry of injunctive relief binding upon the
Indemnified Party or its assets or requiring the Indemnified Party to
make any payment not indemnified hereunder.
11.3.3 If the indemnifying party will not assume the defense
of any such claim by a third party, or litigation resulting therefrom,
after receipt of notice from the Indemnified Party, the Indemnified
Party may defend against such claim or litigation in such manner as it
deems appropriate.
11.3.4 If the indemnifying party will notify the Indemnified
Party that it disputes any claim made by the Indemnified Party, then
the Parties hereto will endeavor to settle and compromise such claim,
and if unable to agree on any settlement or compromise, such claim for
indemnification will be settled by appropriate mediation and then
arbitration, as delineated in Section 14.18, and any liability
established by reason of such settlement, compromise, mediation or
arbitration, will be deemed to be finally determined; provided,
however, that the indemnifying party must notify the Indemnified Party
of the disputed claim within 180 days of the receipt by the
indemnifying party of the notice required by Section 11.3.1 hereof. Any
claim that is finally determined in the manner set forth above will be
paid promptly by the indemnifying party in cash.
11.3.5 The Party seeking indemnification pursuant to this
Article 11 will bear the burden of proof as to each and every element
of such indemnification claim.
11.4 INSURANCE, MITIGATION AND RELATED MATTERS.
11.4.1 The Indemnified Party will use its reasonable efforts
to make insurance claims relating to any claim for which it is seeking
indemnification pursuant to this Section 11 provided that the
Indemnified Party will not be obligated to make such an insurance claim
if the Indemnified Party in its reasonable judgment believes the cost
of pursuing such an insurance claim together with any corresponding
increase in insurance premiums or other chargebacks to the Indemnified
Party, as the case may be, would exceed the value of the claim for
which the Indemnified Party is seeking indemnification. The
indemnifying party will be subrogated to all rights of the Indemnified
Party in respect of any loss borne by the indemnifying party.
11.4.2 Each person entitled to indemnification hereunder
will take all reasonable steps to mitigate all losses, costs,
expenses and damages after becoming aware of any event
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which could reasonably be expected to give rise to any losses, costs,
expenses and damages that are indemnifiable or recoverable hereunder
or in connection herewith.
11.5 LIMITATIONS. The indemnification provided for in this Article 11
is subject to the following limitations:
11.5.1 Neither Seller nor Purchaser shall be obligated to pay
any amounts for indemnification under this Article 11, except in
respect of those claims based upon, arising out of or otherwise in
respect of Organization, Good Standing, Power, Authorization of
Agreement and Enforceability, Effect of Agreement, Title to Personal
Property and under the General Bill of Sale, or for fraud, as
applicable to the appropriate party, hereof (collectively, the "Basket
Exclusions"), until the aggregate amount for which indemnification has
been claimed by Seller or Purchaser, as the case may be, exclusive of
the Basket Exclusions, equals $250,000 (the "Basket Amount"), whereupon
the Seller or Purchaser, as applicable, shall be obligated to pay in
full all amounts in excess of such Basket Amount due pursuant to this
Article 11, provided however, that in no event shall Seller or
Purchaser be required to pay or be liable under this Article 11 for any
losses, except as indicated in Section 11.5.2 below, if, and to the
extent that, as a result thereof the aggregate of all such
indemnification payments, as the case may be, with respect to losses
shall have exceeded an amount equal to the total amount of
Consideration paid by Purchaser under this Agreement.
11.5.2 The Seller or Purchaser, as applicable, shall be
obligated to pay the Basket Exclusions without regard to the individual
or aggregate amounts thereof and without regard to whether the
aggregate of all other indemnification payments shall have exceeded, in
the aggregate, the Basket Amount.
12.0 TERMINATION
12.1 TERMINATION.
This Agreement may be terminated:
(A) BY SELLER OR PURCHASER.
(i) If the Closing has not taken place on or before
December 31,1999; provided, however, that no party then in breach of
any obligations hereunder shall have the right to terminate;
(ii) After a suspension of all provisions of this
Agreement for 90 days from the Closing Date, if any bona fide action
or proceeding shall be pending against either Party on the Closing
Date that could result in an unfavorable judgment, decree, or order
that would prevent or make unlawful the performance of this Agreement
and such action or proceeding has not been cured; or
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(iii) If any agency of the federal or of any state
government shall have objected at or before the Closing Date to this
acquisition or to any other action required by or in connection with
this Agreement.
(B) BY PURCHASER. By Purchaser, if, on the Closing Date, any of the
conditions set forth in Section 8.3 hereof have not been met or have not been
waived by Purchaser in writing, or Purchaser reasonably determines that
compliance with any request for additional information or changes to the
transaction required by the Federal Trade Commission or the Department of
Justice pursuant to the HSR Act would have a material adverse effect on
Purchaser.
(C) BY SELLER. By Seller, if, on the Closing Date, any of the
conditions set forth in Sections 9.1 through 9.6 hereof have not been met or
have not been waived by Seller in writing.
12.2 RETURN OF DOCUMENTS TO SELLER. If this Agreement is terminated for
any reason pursuant to this Article 12, each party shall return to the other
party all documents and copies thereof which shall have been furnished to it.
12.3 LIMITATIONS ON REMEDIES. If this Agreement is terminated as
provided in this Article 12, this Agreement shall forthwith become wholly void
and of no further force or effect and there shall be no liability on the part of
Purchaser, Seller or their respective officers or directors, except that the
provisions of Sections 14.5, 14.6, 14.11 and 14.17 shall remain in full force
and effect.
13.0 COVENANT OF PRINCIPAL
13.1 COVENANT OF PRINCIPAL. In order to induce Purchaser to enter into
this Agreement and to consummate the transactions contemplated in this
Agreement, Mr. Richard A. Bonner agrees that as of the Closing, he shall be
personally and jointly and severally liable for the full and punctual
performance of each and every one of the obligations, covenants and duties of
the Seller arising under or pursuant to this Agreement and the Ancillary
Agreements, and shall provide Purchaser with the Guaranty.
14.0 GENERAL
14.1 EXPENSES. If this Agreement is terminated as provided in Article
12, each of the Parties will pay all costs and expenses incurred or to be
incurred by it in connection with the negotiations respecting this Agreement and
the transactions contemplated hereunder, including costs of finders or
investment bankers, preparation of documents, obtaining any necessary regulatory
approvals and the consummation of the other transactions contemplated hereby,
otherwise the costs and expenses will be allocated pursuant to Section 3.1.1(d).
14.2 PUBLICITY. All notices and other publicity concerning the
transactions contemplated by this Agreement will be jointly planned and
coordinated by and between Purchaser and Seller.
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14.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Subject to Article 11,
the covenants, agreements, representations and warranties of the Parties
contained herein, or in any certificate or other writing, Exhibit or Schedule
delivered, will survive the Closing Date.
14.4 BINDING EFFECT; BENEFITS. This Agreement will inure to the benefit
of the Parties hereto, and will be binding upon the Parties hereto and their
respective successors and assigns. Nothing in this Agreement is intended to
confer on any Person, any rights or remedies under this Agreement.
14.5 NOTICES. All notices and other communications which any Party to
this Agreement may give hereunder will be in writing and will be deemed to have
been duly given by delivering the same to the Party by a reputable courier
service which requires a signature upon delivery, by mailing the same by
registered or certified first class mail, postage prepaid, return receipt
requested, or by telecopier with receipt confirmation (followed by a first class
mailing of the same) to the Party to whom the same is so given or made. For
purposes of this Section 14.5, providing copies to third parties is a matter of
courtesy and shall not be deemed as part of the notice requirement.
14.5.1 IF TO SELLER, TO:
Mr. Richard A. Bonner
c/o Jerry Petersen
Petersen & Ibold
401 South Street
Chardon, Ohio 44024
With a copy to:
Jerry Petersen
Petersen & Ibold
401 South Street
Chardon, Ohio 44024
Jeffrey M. Folkman
Hahn Loeser & Parks LLP
3300 BP Tower
200 Public Square
Cleveland, Ohio 44114
Kerry C. Dustin
Falls River Group, LLC
30100 Chagrin Blvd.
Cleveland, Ohio 44124
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14.5.2 IF TO PURCHASER, TO:
Myers Industries, Inc. With a copy to:
Attn: Gregory J. Stodnick Kevin C. O'Neil
Vice President - Finance Brouse McDowell L.P.A.
1293 S. Main Street 500 First National Tower
Akron, Ohio 44301 Akron, Ohio 44308
or to such other address as such Party will have specified by notice to
the other Party hereto.
14.6 ENTIRE AGREEMENT. This Agreement (including the Exhibits and
Schedules hereto) and the documents delivered pursuant hereto constitute the
entire agreement and understanding between the Parties and supersede all prior
agreements, oral and written, between the Parties, but not including the
Confidentiality Agreement dated March 14, 1999 and any other agreements executed
between the Parties of even date herewith or hereafter. No change, amendment,
termination or attempted waiver of any of the provisions hereof will be binding
upon any Party unless said act is in writing signed by a senior officer of the
Party to be bound or their respective successors in interest
14.7 COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which will be deemed an original and all of which
together will constitute but one and the same instrument.
14.8 HEADINGS. The article, section and other headings contained in
this Agreement are for reference purposes only and will not be deemed to be a
part of this Agreement or to affect the meaning or interpretation of this
Agreement.
14.9 CONSTRUCTION. Within this Agreement, the singular will include the
plural and the plural will include the singular, and any gender will include all
other genders, all as the meaning and the context of this Agreement will
require.
14.10 EXHIBITS AND SCHEDULES. All Exhibits and Schedules hereto have
been delivered by the Parties to each other previously or simultaneously
herewith.
14.11 GOVERNING LAW. This Agreement will be construed in accordance
with, and governed by, the laws of the State of Ohio.
14.12 COOPERATION. The Parties hereto will cooperate fully at their own
expense, except as otherwise provided in this Agreement, with each other and
their respective counsel and accountants in connection with all steps to be
taken as part of their obligations under this Agreement.
14.13 SEVERABILITY. If any term, covenant, condition, or provision of
this Agreement or the application thereof to any circumstance will be invalid or
unenforceable to any extent, the remaining terms, covenants, conditions and
provisions of this Agreement will not be affected thereby and each remaining
term, covenant, condition, and provision of this Agreement will be valid and
will be enforceable to the fullest extent permitted by law. If any provision of
this Agreement is so broad as to be unenforceable, such provision will be
interpreted to be only as broad as is enforceable.
14.14 SUCCESSORS AND ASSIGNS. The covenants, agreements, and conditions
contained herein or granted hereby will be binding upon and will inure to the
benefit of the Parties and their respective successors and permitted assigns.
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14.15 EXCLUSIVE REMEDIES. The rights and remedies herein provided in
this Agreement and the Ancillary Agreements are cumulative and shall be the
exclusive remedies of the parties hereto with respect to claims for monetary
damages related to the matters addressed therein and with respect to the
transactions contemplated hereby.
14.16 PASSAGE OF TITLE AND RISK OF LOSS. Legal title, equitable title
and risk of loss with respect to the Purchased Assets will not pass to Purchaser
until such assets are transferred to Buyer at the Closing.
14.17 DISPUTE RESOLUTION. Except where the Parties have designated a
specific procedure in this Agreement utilizing accountants to resolve a matter,
all disputes under this Agreement shall be resolved as follows:
(a) COOPERATION. The parties agree to cooperate with each
other to attempt to settle all disputes arising under this Agreement without
resort to mediation or arbitration.
(b) MEDIATION. If the parties are unsuccessful in resolving a
dispute to their mutual satisfaction within twenty (20) days from the date that
notice of the dispute is given by one party to the other, either party may
submit the dispute to mediation to Private Judicial Services, Inc. in Cleveland,
Ohio. Neither party may initiate arbitration proceedings until mediation is
completed as determined by the mediator.
(c) ARBITRATION. All disputes or portions thereof which are
not resolved through cooperation and mediation, shall be settled by arbitration
conducted in accordance with the rules and regulations of the American
Arbitration Association, as then in effect except as provided herein. The
parties to such arbitration shall be entitled to conduct discovery and take
depositions.
Unless the parties agree otherwise, any arbitration shall be
held in Cuyahoga County, Ohio, before three independent arbitrators appointed by
the Parties, one arbitrator shall be selected by one party or faction and one
arbitrator shall be selected by the other party or faction. The two arbitrators
shall select a third arbitrator to arbitrate the dispute. If either party or
faction party does not timely select an arbitrator, the arbitrator selected by
the other party or faction shall arbitrate the dispute.
Costs and fees of the arbitrators shall be borne by the
non-prevailing party, unless the arbitrators determine otherwise. The award of
the arbitrators, which may include equitable relief, shall be final and judgment
may be entered upon it in accordance with applicable law in any court having
jurisdiction thereof. Any demand for arbitration shall be in writing and must be
made within a reasonable time after the claim, dispute or other matter in
question has arisen, except as otherwise expressly provided in this Agreement.
In no event shall the demand for arbitration be made after the date that
institution of legal or equitable proceedings based upon such claim, dispute or
other matter would be barred by the applicable statute of limitations or the
date specified in this Agreement, whichever is earlier.
(d) If a dispute arises among the Parties as a result of which
an action is commenced to interpret or enforce any of the terms of this
Agreement, or if there is a breach of any of the terms of this Agreement, the
losing or defaulting Party will pay to the prevailing Party reasonable
40
<PAGE> 46
out-of-pocket attorneys' fees, costs and expenses incurred in connection with
the prosecution or defense of such action, unless the arbitrators determine
otherwise.
14.18 RIGHT OF SET OFF. In the event of a breach by Seller of its
indemnification obligations under Article 11 of this Agreement, Purchaser is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all amounts at any time held by
Purchaser on behalf of Seller or Mr. Richard A. Bonner and any and all
indebtedness at any time owing by Purchaser to Seller or Mr. Richard A. Bonner
against any and all of the obligations of Seller or Mr. Richard A. Bonner now or
hereafter existing under this Agreement or any Ancillary Agreement.
* * *
41
<PAGE> 47
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed
in their respective names by an officer thereof duly authorized on the date
first above written.
MYERS INDUSTRIES, INC.
By: /s/ GREGORY J. STODNICK
--------------------------------
Gregory J. Stodnick, Vice
President - Finance
42
<PAGE> 48
DILLEN PRODUCTS, INC.
By: /s/ RICHARD A. BONNER
-----------------------------
Its: President
----------------------------
THE DILLEN PRODUCTS COMPANY, LTD.
By: /s/ RICHARD A. BONNER
----------------------------
Its: Managing Partner
----------------------------
NORTH SHORE PLASTICS, INC
By: /s/ RICHARD A. BONNER
----------------------------
Its: President
----------------------------
RED CREEK, INC.
By: /s/ RICHARD A. BONNER
----------------------------
Its: President
----------------------------
AS TO SECTIONS 10.1 THROUGH 10.3, SECTION 13.1 AND 14.18 ONLY:
/s/ RICHARD A. BONNER
- -----------------------------
Mr. Richard A. Bonner
43
<PAGE> 1
Exhibit 10(b)
FIRST AMENDMENT TO LOAN AGREEMENT
---------------------------------
THIS FIRST AMENDMENT TO LOAN AGREEMENT, dated as of August 2, 1999
(this "Amendment"), is among MYERS INDUSTRIES, INC., an Ohio corporation (the
"Company"), the foreign subsidiary borrowers party hereto (the "Foreign
Subsidiary Borrowers", and together with the Company, the "Borrowers", the
lenders party hereto (collectively, the "Lenders") and BANK ONE, MICHIGAN,
formerly known as NBD Bank, a Michigan banking corporation, as agent for the
Lenders (in such capacity, the "Agent").
RECITALS
--------
A. The Borrowers, the Agent and the Lenders are parties to a Loan
Agreement dated as of February 3, 1999 (as now and hereafter amended, the
"Loan Agreement").
B. The Borrowers desire to amend the Loan Agreement, and the Agent
and the Lenders are willing to do so in accordance with the terms hereof.
TERMS
-----
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set forth
----------
in Article III hereof, the Loan Agreement shall be amended as follows:
1.1 The text (exclusive of exhibits and schedules) of the Loan
Agreement is amended to read in its entirety as shown on Annex I attached
hereto.
1.2 Schedules 1.1(a), 1.1(b) and 6.14 and the Pricing Schedule on
Exhibit A to the Loan Agreement are replaced with Schedules 1.1(a), 1.1(b)and
6.14 and the Pricing Schedule attached as Exhibit A hereto, respectively.
ARTICLE II. REPRESENTATIONS. Each Borrower represents and warrants to
---------------
the Agent and the Lenders that:
2.1 The execution, delivery and performance of this Amendment is
within its powers, has been duly authorized and is not in contravention of any
statute, law or regulation known to it or of any terms of its Articles of
Incorporation or By-laws, or of any material agreement or undertaking to which
it is a party or by which it is bound.
2.2 This Amendment is the legal, valid and binding obligation of each
Borrower enforceable against each in accordance with the terms hereof.
2.3 After giving effect to the amendments contained herein, the
representations and warranties contained in Article V of the Loan Agreement
are true on and as of the date hereof with the same force and effect as if
made on and as of the date hereof.
<PAGE> 2
2.4 No Default or Unmatured Default exists or has occurred and is
continuing on the date hereof.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall not
---------------------------
become effective until each of the following conditions is satisfied:
3.1 The Borrowers and the Lenders shall have signed this Amendment.
3.2 The Borrowers and the Guarantors shall have delivered such
resolutions, officer's certificates and legal opinions as the Agent may
reasonably request.
3.3 The Company shall have delivered all of the Dillen Acquisition
Documents to the Agent, which shall be in form and substance satisfactory to
the Agent.
3.4 The Company shall have delivered to the Agent such other
documents and satisfied such other conditions, if any, as reasonably requested
by the Agent.
ARTICLE IV. MISCELLANEOUS.
-------------
4.1 The Company agrees to pay the Agent on the First Amendment
Effective Date, for the benefit of the appropriate Lender, the fees set forth
in a separate fee letter dated the date hereof.
4.2 References in the Loan Agreement or in any other Loan Document to
the Loan Agreement shall be deemed to be references to the Loan Agreement as
amended hereby and as further amended from time to time.
4.3 Except as expressly amended hereby, the Company and each
Guarantor agree that the Loan Agreement and all other Loan Documents are
ratified and confirmed, as amended hereby, and shall remain in full force and
effect in accordance with their terms and that they are not aware of any set
off, counterclaim, defense or other claim or dispute with respect to any of
the foregoing.
4.4 Terms used but not defined herein shall have the respective
meanings ascribed thereto in the Loan Agreement. This Amendment may be signed
upon any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument, and telecopied signatures
shall be effective as originals.
-2-
<PAGE> 3
IN WITNESS WHEREOF, the parties signing this Amendment have
caused this Amendment to be executed and delivered as of the day and year
first above written.
MYERS INDUSTRIES, INC
By:___________________________
Print Name:___________________
Title:________________________
-3-
<PAGE> 4
FOREIGN SUBSIDIARY BORROWERS:
MYERS AE, SA
By:_________________________________
Print Name:_________________________
Title:______________________________
MYELin International Finance, SA
By:_________________________________
Print Name:_________________________
Title:______________________________
-4-
<PAGE> 5
BANK ONE, MICHIGAN, as Agent and as a
Lender
By:__________________________________
Print Name:__________________________
Title:_______________________________
FIRST CHICAGO NBD BANK, CANADA, as the
Affiliate designated by Bank One, Michigan
to make Multicurrency Loans to the Canadian
Borrower on its behalf
By:___________________________________
Print Name:___________________________
Title:________________________________
-5-
<PAGE> 6
SOCIETE GENERALE NEW YORK BRANCH
By:___________________________________
Print Name:___________________________
Title:________________________________
-6-
<PAGE> 7
KEYBANK NATIONAL ASSOCIATION
By:_________________________________
Print Name:_________________________
Title:______________________________
-7-
<PAGE> 8
THE CHASE MANHATTAN BANK
By:_________________________________
Print Name:_________________________
Title:______________________________
-8-
<PAGE> 9
MELLON BANK, N.A.
By:_______________________________
Print Name:_______________________
Title:____________________________
-9-
<PAGE> 10
NATIONAL CITY BANK
By:_______________________________
Print Name:_______________________
Title:____________________________
-10-
<PAGE> 11
STAR BANK, N.A.
By:______________________________
Print Name:______________________
Title:___________________________
-11-
<PAGE> 12
HARRIS TRUST AND SAVINGS BANK
By:________________________________
Print Name:________________________
Title:_____________________________
-12-
<PAGE> 13
FIRSTMERIT BANK, N.A.
By:________________________________
Print Name:________________________
Title:_____________________________
-13-
<PAGE> 14
FIFTH THIRD NATIONAL BANK
By:_______________________________
Print Name:_______________________
Title:____________________________
-14-
<PAGE> 15
DEN DANSKE BANK
By:_______________________________
Print Name:_______________________
Title:____________________________
-15-
<PAGE> 16
COMERICA BANK
By:________________________________
Print Name:________________________
Title:_____________________________
-16-
<PAGE> 17
CONSENT AND AGREEMENT
As of the date and year first above written, each of the undersigned
hereby:
(a) fully consents to the terms and provisions of the above Amendment
and the consummation of the transactions contemplated hereby and agrees to all
terms and provisions of the above Amendment applicable to it;
(b) agrees that each Guaranty and all other agreements executed by
any of the undersigned in connection with the Credit Agreement or otherwise in
favor of the Agent or the Banks (collectively, the "Security Documents") are
hereby ratified and confirmed and shall remain in full force and effect, and
each of the undersigned acknowledges that it has no setoff, counterclaim or
defense with respect to any Security Document; and
(c) acknowledges that its consent and agreement hereto is a condition
to the Banks' obligation under this Amendment and it is in its interest and to
its financial benefit to execute this consent and agreement.
BUCKHORN, INC.
By: ___________________________________
Its: ______________________________
AMERI-KART CORP.
By: ___________________________________
Its: ______________________________
BUCKHORN RUBBER PRODUCTS, INC.
By: ___________________________________
Its: ______________________________
PATCH RUBBER COMPANY
By: ___________________________________
Its: ______________________________
-17-
<PAGE> 1
Exhibit 10(c)
ANNEX I
THIS LOAN AGREEMENT (this "Agreement"), dated as of February 3, 1999,
among MYERS INDUSTRIES, INC, an Ohio corporation (the "COMPANY"), the FOREIGN
SUBSIDIARY BORROWERS (as hereinafter defined) from time to time parties hereto
(together with the Company, the "BORROWERS"), the lenders from time to time
parties hereto (the "LENDERS"), and BANK ONE, MICHIGAN, formerly known as NBD
Bank, a Michigan banking corporation, as Agent.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
-----------
1.1 DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings:
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any Person 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 Voting Stock of
any Person.
"ADVANCE" means a borrowing hereunder (or conversion or continuation
thereof) consisting of the aggregate amount of the several Loans or Facility
Letters of Credit of the same Type and, in the case of Eurocurrency Loans, in
the same Agreed Currency and for the same Interest Period, made by the Lenders
on the same Borrowing Date (or converted or continued by the Lenders on the
same date of conversion or continuation).
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if the controlling
Person owns 10% or more of any class of Voting Stock of the controlled Person
or possesses, directly or indirectly, the power to direct or cause the
direction of the management or policies of the controlled Person, whether
through ownership of Capital Stock, by contract or otherwise.
"AGENT" means Bank One in its capacity as contractual representative
of the Lenders pursuant to Article XI, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article XI.
"AGGREGATE COMMITMENTS" means the aggregate amount, stated in U.S.
Dollars, of the Commitments of all Lenders.
"AGGREGATE CANADIAN REVOLVING CREDIT COMMITMENTS" means the aggregate
amount, stated in Dollars, of the Canadian Revolving Credit Commitments of all
of the Canadian Revolving Credit Lenders.
<PAGE> 2
"AGGREGATE CANADIAN REVOLVING CREDIT OUTSTANDINGS" means as at any
date of determination with respect to any Canadian Revolving Credit Lender,
the sum of the aggregate unpaid principal amount of such Lender's Canadian
Revolving Credit Loans on such date and the amount of such Lender's Pro Rata
Share of the Canadian Facility Letter of Credit Obligations and Swing Loans to
the Canadian Borrower on such date, both stated in Dollars.
"AGGREGATE DANISH REVOLVING CREDIT COMMITMENTS" means the aggregate
amount, stated in Danish Krone, of the Danish Revolving Credit Commitments of
all of the Danish Revolving Credit Lenders.
"AGGREGATE DANISH REVOLVING CREDIT OUTSTANDINGS" means as at any date
of determination with respect to any Danish Revolving Credit Lender, the sum
of the aggregate unpaid principal amount of such Lender's Danish Revolving
Credit Loans on such date and the amount of such Lender's Pro Rata Share of
the Danish Facility Letter of Credit Obligations and Swing Loans to the Danish
Borrower on such date, both stated in Danish Krone.
"AGGREGATE EURO REVOLVING CREDIT COMMITMENTS" means the aggregate
amount, stated in Euro, of the Euro Revolving Credit Commitments of all of the
Euro Revolving Credit Lenders.
"AGGREGATE EURO REVOLVING CREDIT OUTSTANDINGS" means as at any date
of determination with respect to any Euro Revolving Credit Lender, the sum of
the aggregate unpaid principal amount of such Lender's Euro Revolving Credit
Loans on such date and the amount of such Lender's Pro Rata Share of the Euro
Facility Letter of Credit Obligations and Swing Loans to the Euro Borrowers on
such date, both stated in Euro.
"AGGREGATE U.K. REVOLVING CREDIT COMMITMENTS" means the aggregate
amount, stated in British Pounds Sterling, of the U.K. Revolving Credit
Commitments of all of the U.K. Revolving Credit Lenders.
"AGGREGATE U.K. REVOLVING CREDIT OUTSTANDINGS" means at any date of
determination with respect to any U.K. Revolving Credit Lender, the sum of the
aggregate unpaid principal amount of such Lender's U.K. Revolving Credit Loans
on such date and the amount of such Lender's Pro Rata Share of the U.K.
Facility Letter of Credit Obligations and Swing Loans to the U.K. Borrower on
such date, both stated in British Pounds Sterling.
"AGGREGATE REVOLVING CREDIT COMMITMENTS" means, on any date of
determination, the U.S. Dollar Equivalent on such date of the aggregate amount
of the Revolving Credit Commitments of all of the Revolving Credit Lenders.
"AGGREGATE REVOLVING CREDIT OUTSTANDINGS" means as at any date of
determination with respect to any Revolving Credit Lender, the sum of the U.
S. Dollar Equivalent on such date of the aggregate unpaid principal amount of
such Lender's Revolving Credit Loans on such date and the U. S. Dollar
Equivalent on such date of the amount of such Lender's Pro Rata Share of the
Facility Letter of Credit Obligations and Swing Loans on such date.
"AGGREGATE TERM LOAN COMMITMENTS" means the aggregate amount, stated
in U.S. Dollars, of Term Loan Commitments of all the Term Loan Lenders, as
reduced from time to time pursuant to principal payments on the Term Loan.
2
<PAGE> 3
"AGGREGATE TERM LOAN OUTSTANDINGS" means as at any date of
determination with respect to any Lender, the sum of the aggregate unpaid
principal amount, stated in U.S. Dollars, of such Lender's portion of the Term
Loan on such date.
"AGGREGATE TOTAL OUTSTANDINGS" means as at any date of determination
with respect to any Lender, the U.S. Dollar Equivalent of an amount equal to
the sum of (a) the Aggregate Revolving Credit Outstandings of such Lender on
such date and (b) the Aggregate Term Loan Outstandings of such Lender on such
date.
"AGGREGATE U.S. REVOLVING CREDIT COMMITMENTS" means the aggregate
amount in U.S. Dollars of the U.S. Revolving Credit Commitments of all of the
Revolving Credit Lenders.
"AGGREGATE U.S. REVOLVING CREDIT OUTSTANDINGS" means as at any date
of determination with respect to any Revolving Credit Lender, the sum of the
aggregate unpaid principal amount of such Lender's U.S. Revolving Credit Loans
on such date and the amount of such Lender's Pro Rata Share of the U.S.
Facility Letter of Credit Obligations and Swing Loans to the Company on such
date, both stated in U.S. Dollars.
"AGREED CURRENCIES" means (i) Dollars, (ii) so long as such
currencies remain Eligible Currencies, Danish Krone, British Pounds Sterling,
Canadian Dollars and the Euro, and (iii) any other Eligible Currency which the
Borrowers request the Agent to include as an Agreed Currency hereunder and
which is acceptable to all of the Lenders and the Agent.
"AGREEMENT" means this loan agreement, as it may be amended or
modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect on the Effective Date in the United States, applied in
a manner consistent with the audited consolidated financial statements of the
Company and its Subsidiaries for the fiscal year ending December 31, 1997;
PROVIDED, HOWEVER, that, if generally accepted accounting principles in the
United States of America shall require the Company to adopt other principles,
then the financial statements required to be delivered hereunder may be
prepared on the basis of such other principles but when delivered shall also
be accompanied by a reconciliation, satisfactory in scope and detail to the
Agent, to permit the review of such financial statements as if they were
prepared in accordance with Agreement Accounting Principles.
"AGREEMENT CURRENCY" is defined in Section 16.6.
"ALLIBERT" means, collectively, the materials handling division of
Sommers Allibert, S.A., a societe anonyme organized and existing under the
laws of France, Allibert Contico LLC, and all other assets to be acquired by
the Company pursuant to the Allibert Acquisition Documents.
"ALLIBERT ACQUISITION" means the Acquisition to be completed pursuant
to the Allibert Acquisition Documents.
"ALLIBERT ACQUISITION DOCUMENTS" means the agreements dated on
November 2, 1998 and December 5, 1998 between the Company and those companies
listed in the agreements, together with all agreements, documents and
instruments executed in connection therewith or otherwise pursuant thereto.
3
<PAGE> 4
"ALTERNATE BASE RATE" means, for any day, a rate of interest per
annum equal to the higher of (a) the Prime Rate for such day or (b) the sum of
the Federal Funds Effective Rate for such day plus 1/2% per annum.
"APPLICABLE MARGIN" means the amounts set forth in the Pricing
Schedule on Exhibit A hereto.
"ARRANGER" means First Chicago Capital Markets, Inc. a Delaware
corporation, and its successors.
"ARTICLE" means an article of this Agreement unless another document
is specifically referenced.
"ASSIGNMENT" is defined in Section 13.3.1.
"AUTHORIZED OFFICER" means, with respect to any Borrower, any of the
chief executive officer, the chief financial officer or the treasurer of such
Borrower or any Person designated by any of the foregoing in writing to the
Agent from time to time to act on behalf of such Borrower, in each case,
acting singly.
"AVAILABLE FOREIGN CURRENCIES" means the Agreed Currencies other than
Dollars.
"BANK ONE" means Bank One, Michigan, formerly known as NBD Bank, a
Michigan banking corporation.
"BORROWERS" is defined in the preamble hereto.
"BORROWING DATE" means any Business Day specified in a notice
pursuant to Section 2.3, 2.7, 2.15 or 2.16 as a date on which a Borrower
requests the Lenders to make Loans hereunder or, with respect to the issuance
of any Facility Letter of Credit, the date the applicable Issuer issues such
Facility Letter of Credit.
"BRITISH POUNDS STERLING" or "(POUND)" [symbol British Pounds
Sterling] means the lawful currency of the United Kingdom of Great Britain and
Northern Ireland.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or
rate selection of Eurocurrency Advances, a day (other than a Saturday or
Sunday) on which banks generally are open in Detroit, Chicago, London and New
York for the conduct of substantially all of their commercial lending
activities and on which dealings in Dollars and the other Agreed Currencies
are carried on in the London interbank market (and, if the Advances which are
the subject of such borrowing, payment or rate selection are denominated in
Euro, a day upon which such clearing system as is determined by the Agent to
be suitable for clearing or settlement of the Euro is open for business), and
(ii) for all other purposes, a day (other than a Saturday or Sunday) on which
banks generally are open in Detroit, Chicago, London and New York for the
conduct of substantially all of their commercial lending activities.
"CANADIAN BORROWER" means any Foreign Subsidiary Borrower from time
to time designated on Schedule 1.1(b) as the "Canadian Borrower".
"CANADIAN DOLLAR" and "C$" means the lawful currency of the Dominion
of Canada.
"CANADIAN FACILITY LETTER OF CREDIT" means any Letter of Credit for
the account of the Canadian Borrower.
4
<PAGE> 5
"CANADIAN FACILITY LETTER OF CREDIT OBLIGATIONS" means Facility
Letter of Credit Obligations with respect to Canadian Facility Letters of
Credit.
"CANADIAN REVOLVING CREDIT COMMITMENT" means, as to any Lender at any
time, its obligation to make Revolving Credit Loans to the Canadian Borrower
under Section 2.1.5 in an aggregate Equivalent Amount not to exceed at any
time outstanding the Dollar amount set forth opposite such Lender's name in
Schedule 1.1(b) under the heading "Canadian Revolving Credit Commitment" or as
otherwise established pursuant to Section 13.3, as such amount may be reduced
from time to time pursuant to Sections 2.4, 13.3 and the other applicable
provisions hereof.
"CANADIAN REVOLVING CREDIT LENDER" means any Lender with the Canadian
Revolving Credit Commitment.
"CANADIAN REVOLVING CREDIT LOANS" means Revolving Credit Loans made
to the Canadian Borrower pursuant to Section 2.1.5.
"CAPITAL STOCK" means (i) in the case of any corporation, all capital
stock and any securities exchangeable for or convertible into capital stock
and any warrants, rights or other options to purchase or otherwise acquire
capital stock or such securities or any other form of equity securities, (ii)
in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of,
the issuing Person.
"CAPITALIZED LEASE" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"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
Agreement Accounting Principles.
"CASH EQUIVALENTS" means (i) securities issued directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than one year from the date of acquisition, (ii) Dollar denominated time
deposits, certificates of deposit and bankers' acceptances of (x) any Lender
or (y) any bank whose short-term commercial paper rating from S&P is at least
A-1 or the equivalent thereof or from Moody's is at least P-1 or the
equivalent thereof (any such bank, an "Approved Lender"), in each case with
maturities of not more than 90 days from the date of acquisition, (iii)
commercial paper issued by any Lender or Approved Lender or by the parent
company of any Lender or Approved Lender and commercial paper issued by, or
guaranteed by, any industrial or financial company with a short-term
commercial paper rating of at least A-1 or the equivalent thereof by S&P or at
least P-1 or the equivalent thereof by Moody's, or guaranteed by any
industrial company with a long term unsecured debt rating of at least A or A2,
or the equivalent of each thereof, from S&P or Moody's, as the case may be,
and in each case maturing within 90 days after the date of acquisition, (iv)
foreign Investments denominated in an Eligible Currency that are of similar
type of, and that have a rating comparable to, any of the Investments referred
to in the preceding clauses (i) through (iii) above, and (v) investments in
money market funds substantially all the assets of which are comprised of
securities of the types described in clauses (i) through (iv) above.
5
<PAGE> 6
"CHANGE OF CONTROL" means (i) a majority of the members of the Board
of Directors of Company shall not be Continuing Directors; or (ii) any Person
including a "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended) which includes such Person, shall
purchase or otherwise acquire, directly or indirectly, beneficial ownership of
Voting Stock of Company and, as a result of such purchase or acquisition, any
such Person (together with its Affiliates), shall directly or indirectly
beneficially own in the aggregate Voting Stock representing more than 20% of
the combined voting power of Company's Voting Stock.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"COLLATERAL" means, collectively, the "Collateral" under and as
defined in, and any other assets upon which a Lien has been granted by, the
Pledge Agreements, the Guaranties or any other Collateral Document.
"COLLATERAL DOCUMENTS" means, collectively, the Guaranties, the
Pledge Agreements, and all other agreements or documents granting or
perfecting a Lien or guaranteeing the Obligations in favor of the Agent for
the benefit of the Lenders at any time, as any of the foregoing may be amended
or modified from time to time.
"COMMITMENT" means, for each Lender, such Lender's U.S. Revolving
Credit Commitment, Euro Revolving Credit Commitment, U.K. Revolving Credit
Commitment, Canadian Revolving Credit Commitment, Danish Revolving Credit
Commitment and Term Loan Commitment and "Commitments" means the aggregate of
all of the Lenders' Commitments.
"COMPANY" is defined in the preamble hereto.
"CONDEMNATION" is defined in Section 7.8.
"CONTINGENT OBLIGATION" of a Person means any agreement, undertaking
or arrangement by which such Person assumes, guaranties, endorses,
contingently agrees to purchase or provide funds for the payment of, or
otherwise becomes or is contingently liable upon, the obligation or liability
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 or take-or-pay contract. The amount of any
Contingent Obligation shall be equal to the amount of the obligation that is
so guarantied or supported that is actually outstanding or otherwise due and
payable from time to time, if a fixed and determinable amount or if there is
no fixed or determinable amount, either (x) if a maximum amount is guaranteed,
the maximum amount or (y) if there is no maximum amount the amount of the
obligation that is so guarantied or supported.
"CONTINUING DIRECTORS" means individuals who at the beginning of any
period of two consecutive calendar years constituted the board of directors of
the Company, together with any new directors whose election by such board of
directors or whose nomination for election was approved by a vote of at least
two-thirds of the members of such board of directors then still in office who
either were members of such board of directors at the beginning of such period
or whose election or nomination for election was previously so approved.
"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 or any of its Subsidiaries,
are treated as a single employer under Section 414 of the Code.
6
<PAGE> 7
"CONVERSION/CONTINUATION NOTICE" is defined in Section 2.7.1.
"COST RATE" means
1. The cost of compliance with existing requirements of the Bank of
England and/or the Financial Services Authority (or any authority
which replaces all or any of their functions) in respect of Advances
denominated in sterling will be calculated by the Agent in relation
to each Advance on the basis of rates supplied by the Agent by
reference to the circumstances existing on the first day of each
Interest Period in respect of such Advance and, if any such Interest
Period exceeds three months, at three calendar monthly intervals from
the first day of such Interest Period during its duration in
accordance with the following formula:
AB +C(B-D) + E x 0.01 per cent per annum
---------------------
100 - (A+C)
Where:
A. is the percentage of eligible liabilities (assuming these to
be in excess of any stated minimum) which the Agent is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B. is the percentage rate per annum at which sterling deposits
are offered by the Agent in accordance with its normal
practice, for a period equal to (a) the relevant Interest
Period (or, as the case may be, remainder of such Interest
Period) in respect of the relevant Advance of (b) three
months, whichever is the shorter, to a leading bank in the
London Interbank Market at or about 11:00 a.m. in a sum
approximately equal to the amount of such Advance.
C. is the percentage of eligible liabilities which the Agent is
required from time to time to maintain as interest bearing
special deposits with the Bank of England.
D. is the percentage rate per annum payable by the Bank of
England to the Agent on interest bearing special deposits.
E. is the rate payable by the Agent to the Financial Services
authority pursuant to the Fees Regulations (but, for this
purpose, the figure at paragraph [2.02b]/[2.03b] of the Fees
Regulations shall be deemed to be zero) and expressed in
pounds per [British Pounds Sterling] (pound)1,000,000 of the
Fee Base of the Agent.
2. For the purposes of this definition:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" shall bear the
meanings ascribed to them from time to time under or
pursuant to the Bank of England Act 1998 or (as appropriate)
by the Bank of England;
(b) "FEE REGULATIONS" shall mean the Banking Supervision (Fees)
Regulations 1998 or such other regulations as may be in
force from time to time in respect of the payment of fees
for banking supervision; and
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<PAGE> 8
(c) "FEE BASE" shall bear the meaning ascribed to it, and shall
be calculated in accordance with, the Fees Regulations.
3. The percentages used in A and C above shall be those required to be
maintained on the first day of the relevant period as determined in
accordance with B above.
4. In application of the above formula, A, B, C and D will be included in
the formula as figures and not as percentages e.g. if A is 0.5 per cent
and B is 12 per cent, AB will be calculated as 0.5 x 12 and not as 0.5
per cent x 12 per cent.
5. Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
6. A negative result obtained by subtracting D from B shall be taken as
zero.
7. The resulting figures shall be rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-thirty second of one
percent per annum.
8. Additional amounts calculated in accordance with this definition are
payable on the last day of the Interest Period to which they relate.
9. The determination of the Associated Costs Rate by the Agent in relation
to any period shall, in the absence of manifest error, be conclusive and
binding on all of the parties hereto.
10. The Agent may from time to time, after consultation with the Company and
the Lenders, determine and notify to all parties any amendments or
variations which are required to be made to the formula set out above in
order to comply with any requirement s from time to time imposed by the
Bank of England or the Financial Services Authority (or any other
authority which replaces all or any of their functions) in relation to
Advances denominated in sterling (including any requirements relating to
sterling primary liquidity) and, any such determination shall, in the
absence of manifest error, be conclusive and binding on all the parties
hereto.
"DANISH BORROWER" means any Foreign Subsidiary Borrower from time to
time designated on Schedule 1.1(b) as the "Danish Borrower".
"DANISH KRONE" and "DKK" means the lawful currency of the Kingdom of
Denmark.
"DANISH FACILITY LETTER OF CREDIT" means any Letter of Credit for the
account of the Danish Borrower.
"DANISH FACILITY LETTER OF CREDIT OBLIGATIONS" means Facility Letter of
Credit Obligations with respect to Danish Facility Letters of Credit.
"DANISH REVOLVING CREDIT COMMITMENT" means, as to any Lender at any
time, its obligation to make Revolving Credit Loans to the Danish Borrower under
Section 2.1.2 in an aggregate amount not to exceed at any time outstanding the
Danish Krone amount set forth opposite such Lender's name in Schedule 1.1(a)
under the heading "Danish Revolving Credit Commitment" or as otherwise
established pursuant to Section 13.3, as such amount may be reduced from time to
time pursuant to Sections 2.4, 13.3 and the other applicable provisions hereof.
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<PAGE> 9
"DANISH REVOLVING CREDIT LENDER" means any Lender with the Danish
Revolving Credit Commitment.
"DANISH REVOLVING CREDIT LOANS" means Revolving Credit Loans made to
the Danish Borrower pursuant to Section 2.1.2.
"DEFAULT" means an event described in Article VII.
"DEFAULTING LENDER" means any Lender that (a) on any Borrowing Date
fails to make available to the Agent such Lender's Loans required to be made
to a Borrower on such Borrowing Date or (b) shall not have made a payment to
the Issuer pursuant to Section 2.15.5 or the Agent pursuant to Section 2.16.
Once a Lender becomes a Defaulting Lender, such Lender shall continue as a
Defaulting Lender until such time as such Defaulting Lender makes available to
the Agent the amount of such Defaulting Lender's Loans and/or to an Issuer
such payments requested by an Issuer together with all other amounts required
to be paid to the Agent and/or the Issuers pursuant to this Agreement.
"DESIGNATED FINANCIAL OFFICER" means, with respect to any Borrower,
its chief financial officer or treasurer.
"DILLEN" means, [The Dillen Companies - to be further defined] and
all other assets to be acquired by the Company pursuant to the Dillen
Acquisition Documents.
"DILLEN ACQUISITION" means the Acquisition to be completed pursuant to
the Dillen Acquisition Documents.
"DILLEN ACQUISITION DOCUMENTS" means the [purchase agreement dated on
________, 1999] between the Company and _________________, together with all
agreements, documents and instruments executed in connection therewith or
otherwise pursuant thereto.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder thereof, in whole or in part.
"DOLLARS", "U.S. DOLLARS" and "$" means dollars in lawful currency of
the United States of America.
"DOMESTIC SUBSIDIARY" means each present and future Subsidiary of the
Company which is not a Foreign Subsidiary.
"EBIT" means, for any period, the sum of (a) the consolidated net
income (or loss) of the Company and its Subsidiaries for such period
determined in conformity with Agreement Accounting Principles, PLUS (b) to the
extent deducted in determining such net income, income taxes, Interest
Expense, and non recurring charges incurred in 1998 in an aggregate amount not
to exceed $5,000,000 and incurred in connection with Acquisitions, MINUS (c)
to the extent included in determining such net income, each of the following,
without duplication: (i) the income of any Person (other than a Wholly-Owned
Subsidiary of the Company) in which any Person other than the Company or any
of its Subsidiaries has a joint interest or a partnership interest or other
ownership interest, except to the extent of the amount of dividends or other
distributions actually paid to the Company or any of its Subsidiaries by such
Person during such period, (ii) the income of any Person accrued prior to the
date it becomes a Subsidiary of the Company or is merged
9
<PAGE> 10
into or consolidated with the Company or any of its Subsidiaries or that
Person's assets are acquired by the Company or any of its Subsidiaries, (iii)
gains from the sale, exchange, transfer or other disposition of property or
assets not in the ordinary course of business of the Company and its
Subsidiaries, and related tax effects in accordance with Agreement Accounting
Principles, (iv) any other extraordinary or non-recurring gains or other income
not from the continuing operations of the Company or its Subsidiaries, and
related tax effects in accordance with Agreement Accounting Principles and (v)
the income of any Subsidiary of the Company to the extent that the declaration
or payment of dividends or similar distributions by that Subsidiary of that
income is not at the time permitted by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary.
"EBITDA" means, for any period, EBIT for such period plus, to the
extent deducted in determining such EBIT, depreciation and amortization expense.
"EFFECTIVE DATE" means the date on which the conditions precedent set
forth in Sections 4.1 and 4.2 are satisfied.
"ELIGIBLE CURRENCY" means any currency other than Dollars (i) that is
readily available, (ii) that is freely traded, (iii) in which deposits are
customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which an Equivalent Amount may be readily calculated. If, after the
designation by the Lenders of any currency as an Agreed Currency, (x) currency
control or other exchange regulations are imposed in the country in which such
currency is issued with the result that different types of such currency are
introduced, (y) such currency is, in the determination of the Agent, no longer
readily available or freely traded or (z) in the determination of the Agent,
an Equivalent Amount of such currency is not readily calculable, the Agent
shall promptly notify the Lenders and the Company, and such currency shall no
longer be an Agreed Currency until such time as all of the Lenders agree to
reinstate such currency as an Agreed Currency and promptly, but in any event
within five Business Days of receipt of such notice from the Agent, the
Borrower shall repay all Loans in such affected currency or convert such Loans
into Loans in Dollars or another Agreed Currency, subject to the other terms
set forth in Article II.
"ENVIRONMENTAL LAWS" means, with respect to the Company or any of its
Subsidiaries, any and all federal, state, local and foreign statutes, laws,
judicial decisions, regulations, ordinances, rules, judgments, orders,
decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (a) the
protection of the environment, (b) the effect of the environment on human
health, (c) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or
(d) the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof, in each
case, applicable to such Borrower or Guarantor or their respective Property.
"EQUIVALENT AMOUNT" of any currency with respect to any amount of
Dollars at any date means the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Agent for such other currency at 11:00 a.m.,
London time, on the date on or as of which such amount is to be determined.
"ERISA" means the Employee Retirement Income Security Act of l974, as
amended from time to time, and any rule or regulation issued thereunder.
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<PAGE> 11
"EURO" and/or "EUR" means the euro referred to in Council Regulation
(EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European
Union, or, if different, the then lawful currency of the member states of the
European Union that participate in the third stage of Economic and Monetary
Union.
"EUROCURRENCY ADVANCE" means a Multicurrency Advance which bears
interest at the Eurocurrency Rate.
"EURO BORROWER" means any one or more Foreign Subsidiary Borrowers
from time to time designated on Schedule 1.1(b) as a "Euro Borrower".
"EUROCURRENCY" means any Agreed Currency.
"EUROCURRENCY REFERENCE RATE" means, with respect to each Interest
Period for a Multicurrency Loan:
(a) the rate per annum quoted at or about 11:00 a.m. (London
time) on the Quotation Date for such period on that page of
the Telerate Screen which displays British Bankers
Association Interest Settlement Rates for deposits in the
relevant Available Foreign Currency for such period or, if
such page or service shall cease to be available, such other
page or such other service (as the case may be) for the
purpose of displaying British Bankers Association Interest
Settlement Rates for such currency as the Agent, in its
discretion, shall select.
(b) If no such rate is displayed for the relevant currency and
the relevant period and there is no Available Foreign
Currency alternative service on which two or more such
quotations for the Available Foreign Currency are displayed,
"Eurocurrency Reference Rate" will be the rate at which
deposits in the Available Foreign Currency of that amount
are offered by the Agent for that period to prime banks in
the London inter bank market at or about 11:00 a.m. (London
time) on the Quotation Date for such period.
Plus, in each case, the Cost Rate; provided, however, in the case of
Multicurrency Loans to the Canadian Borrower, the Eurocurrency
Reference Rate shall mean the cost of funds in such currency for such
Multicurrency Loans as determined by the Canadian Revolving Credit
Lenders.
"EURO FACILITY LETTER OF CREDIT" means any Letter of Credit for the
account of a Euro Borrower.
"EURO FACILITY LETTER OF CREDIT OBLIGATIONS" means Facility Letter of
Credit Obligations with respect to Euro Facility Letters of Credit.
"EURO REVOLVING CREDIT COMMITMENT" means, as to any Lender at any
time, its obligation to make Revolving Credit Loans to the Euro Borrowers
under Section 2.1.3 in an aggregate amount not to exceed at any time
outstanding the Euro amount set forth opposite such Lender's name in Schedule
1.1(a) under the heading "Euro Revolving Credit Commitment" or as otherwise
established pursuant to Section 13.3, as such amount may be reduced from time
to time pursuant to Section 2.4, 13.3 and the other applicable provisions
hereof.
"EURO REVOLVING CREDIT LENDER" means any Lender which has a Euro
Revolving Credit Commitment.
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<PAGE> 12
"EURO REVOLVING CREDIT LOANS" means Revolving Credit Loans made to
the Euro Borrowers under Section 2.1.3.
"EUROCURRENCY LOAN" means a Multicurrency Loan which bears interest
at the Eurocurrency Rate.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Loan for
the relevant Interest Period, the sum of (a) the quotient of (i) the
Eurocurrency Reference Rate applicable to such Interest Period, divided by
(ii) one minus the Reserve Requirement (expressed as a decimal) applicable to
such Interest Period, plus (b) the Applicable Margin.
"EURODOLLAR ADVANCE" means an Advance which bears interest at a
Eurodollar Rate.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Loan for
the relevant Interest Period, the rate determined by the Agent to be the rate
at which the Agent offers to place deposits in Dollars with first-class banks
in the London interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, in the
approximate amount of Bank One's relevant Eurodollar Loan and having a
maturity approximately equal to such Interest Period.
"EURODOLLAR LOAN" means a Loan which bears interest at a Eurodollar
Rate.
"EURODOLLAR RATE" means, with respect to a Eurodollar Loan for the
relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar
Base Rate applicable to such Interest Period, divided by (ii) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest
Period, plus (b) the Applicable Margin. The Eurodollar Rate shall be rounded
to the next higher multiple of 1/16 of 1% if the rate is not such a multiple.
"EXCHANGE RATE" means with respect to any non-U.S. Dollar currency on
any date, the rate at which such currency may be exchanged into U.S. Dollars,
as set forth on such date on the relevant Reuters currency page at or about
11:00 a.m., Detroit time. In the event that such rate does not appear on any
Reuters currency page, the "Exchange Rate" with respect to such non-U.S.
Dollar currency shall be determined by reference to such other publicly
available service for displaying exchange rates as may be agreed upon by the
Agent and the Company or, in the absence of such agreement, such "Exchange
Rate" shall instead be the Agent's spot rate of exchange in the interbank
market where its foreign currency exchange operations in respect of such
non-U.S. Dollar currency are then being conducted, at or about 10:00 a.m.,
local time, on such date for the purchase of U.S. Dollars with such non-U.S.
Dollar currency, for delivery three Business Days later; PROVIDED, that if at
the time of any such determination, no such spot rate can reasonably be
quoted, the Agent may use any reasonable method as it deems applicable to
determine such rate, and such determination shall be conclusive absent
manifest error.
"FACILITY LETTER OF CREDIT" means a Letter of Credit issued by an
Issuer pursuant to Section 2.15.
"FACILITY LETTER OF CREDIT OBLIGATIONS" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of a
Borrower with respect to the Facility Letters of Credit, including the sum of
(a) Reimbursement Obligations and, without duplication, (b) the aggregate
undrawn face amount of the outstanding Facility Letters of Credit.
"FACILITY TERMINATION DATE" means the earlier to occur of (a)
February 1, 2005 or (b) the date on which the Revolving Credit Commitments are
terminated pursuant to Article VIII.
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<PAGE> 13
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published for such day (or, if such day
is not a Business Day, for the immediately preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations at approximately
10:00 a.m. (Detroit time) on such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by the
Agent in its sole discretion or, when used in connection with any Advance
denominated in any Eligible Currency, "Federal Funds Effective Rate" means the
correlative rate of interest with respect to such Eligible Currency as
determined by the Agent in its sole discretion for such day.
"FINANCIAL CONTRACT" of a Person means (a) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics or (b) any Rate Hedging Agreement.
"FIRST AMENDMENT" shall mean the First Amendment to this Agreement
dated as of July __, 1999.
"FIRST AMENDMENT EFFECTIVE DATE" shall mean the date the First
Amendment is effective.
"FIXED RATE" means the Eurodollar Rate or the Eurocurrency Rate.
"FIXED RATE ADVANCE" means an Advance which bears interest at a Fixed
Rate.
"FIXED RATE LOAN" means a Loan which bears interest at a Fixed Rate.
"FLOATING RATE" means, for any day, a rate per annum (based on a year
of 365 or 366 days as appropriate) equal to the sum of (a) the Applicable
Margin plus (b) the Alternate Base Rate for such day, in each case changing
when and as the Alternate Base Rate changes.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan which bears interest at the
Floating Rate.
"FOREIGN SUBSIDIARY" means each Subsidiary organized under the laws
of a jurisdiction outside of the United States.
"FOREIGN SUBSIDIARY BORROWER" means each Foreign Subsidiary listed as
a Foreign Subsidiary Borrower in Schedule 1.1(b) as amended from time to time
in accordance with Section 8.2.2.
"FOREIGN SUBSIDIARY OPINION" means with respect to any Foreign
Subsidiary Borrower, a legal opinion of counsel to such Foreign Subsidiary
Borrower addressed to the Agent and the Lenders concluding that such Foreign
Subsidiary Borrower and the Loan Documents to which it is a party
substantially comply with the matters listed on Exhibit B, with such
assumptions, qualifications and deviations therefrom as the Agent shall
approve.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state,
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
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<PAGE> 14
"GUARANTOR" means (a) with respect to the Obligations of the Foreign
Subsidiary Borrowers, the Company, each present and future Domestic Subsidiary
of the Company and each Subsidiary of such Foreign Subsidiary Borrower (unless
such Foreign Subsidiary Borrower is prohibited from doing so by law) required
to execute a Guaranty pursuant hereto and (b) with respect to the Company,
each present and future Domestic Subsidiary of the Company required to execute
a Guaranty pursuant hereto and any other Person executing a Guaranty at any
time.
"GUARANTY" means, with respect to the Company, the guarantee
contained in Article IX and, with respect to any other Guarantor, each
guaranty agreement in substantially the form of Exhibit C hereto duly executed
and delivered by each such Guarantor to the Agent, including any amendment,
modification, renewal or replacement of such guaranty agreement.
"INDEBTEDNESS" of a Person means, without duplication, such Person's
(a) obligations for borrowed money or similar obligations, (b) obligations
representing the deferred purchase price of Property or services (other than
accounts payable and/or accrued expenses arising in the ordinary course of
such Person's business payable in accordance with customary practices), (c)
obligations, whether or not assumed, secured by Liens on property now or
hereafter owned or acquired by such Person, (d) obligations which are
evidenced by notes, acceptances, or other instruments (other than Financial
Contracts), to the extent of the amounts actually borrowed, due, payable or
drawn, as the case may be, (e) Capitalized Lease Obligations, (f) all
obligations in respect of Letters of Credit, whether drawn or undrawn,
contingent or otherwise, (g) any other obligation for borrowed money or other
financial accommodation which in accordance with Agreement Accounting
Principles would be shown as a liability on the consolidated balance sheet of
such Person, (h) all other indebtedness, obligations and liabilities incurred
in connection with any asset securitizations, regardless of whether such
indebtedness, obligations or other liabilities are recourse or non recourse to
such Person and regardless of whether such indebtedness, obligations or other
liabilities are required to be shown as a liability on the consolidated
balance sheet of such Person in accordance with Agreement Accounting
Principles, and (i) Contingent Obligations with respect to any of the
foregoing.
"INTEREST COVERAGE RATIO" means, as of the end of any fiscal quarter,
the ratio of (a) EBIT to (b) Interest Expense, in each case calculated for the
four consecutive fiscal quarters then ending, on a consolidated basis for the
Company and its Subsidiaries in accordance with Agreement Accounting
Principles.
"INTEREST EXPENSE" means, with respect to any period, the aggregate
of all interest expense reported by the Company and its Subsidiaries in
accordance with Agreement Accounting Principles during such period, net of any
cash interest income received by the Company and its Subsidiaries during such
period from Investments. As used in this definition, the term "interest" shall
include, without limitation, all interest, fees and costs payable with respect
to the obligations under this Agreement (other than fees and costs which may
be capitalized as transaction costs in accordance with Agreement Accounting
Principles), any discount in respect of sales of accounts receivable and/or
related contract rights and the interest portion of Capitalized Lease payments
during such period, all as determined in accordance with Agreement Accounting
Principles.
"INTEREST PERIOD" means with respect to any Eurodollar Loan or
Multicurrency Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan or Multicurrency Loan and ending one, two, three, or six months
thereafter, as selected by the relevant Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with
respect thereto; and
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<PAGE> 15
(b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurodollar Loan
or Multicurrency Loan and ending one, two, three or six months
thereafter, as selected by the relevant Borrower by irrevocable
notice to the Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect thereto;
PROVIDED that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a
Eurodollar Loan or Multicurrency Loan would otherwise end on
a day that is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest
Period into another calendar month in which event such
Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period applicable to a Eurodollar
Loan or Multicurrency Loan that would otherwise extend
beyond, with respect to any Term Loan, the Maturity Date,
or, with respect to any other Loan, the Facility Termination
Date, shall end on the Maturity Date or the Facility
Termination Date, as the case may be; and
(iii) any Interest Period pertaining to a
Eurodollar Loan or Multicurrency Loan that begins on the
last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of a calendar month.
"INVESTMENT" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable and/or accrued expenses arising in the ordinary course of business
payable in accordance with customary practices and loans to employees in the
ordinary course of business) or contribution of capital by such Person;
stocks, bonds, mutual funds, partnership interests, notes, debentures or other
securities owned by such Person; any deposit accounts and certificates of
deposit owned by such Person; and structured notes, derivative financial
instruments and other similar instruments or contracts owned by such Person
(other than Financial Contracts).
"ISSUERS" or "ISSUER" means (i) Bank One, and (ii) any Lending
Installation of Bank One as Bank One may determine to be the issuer for any
Facility Letter of Credit.
"JOINDER AGREEMENT" means the Joinder Agreement to be entered into by
each Foreign Subsidiary Borrower subsequent to the date hereof pursuant to
Section 8.2.2, substantially in the form of Exhibit D hereto.
"JUDGMENT CURRENCY" is defined in Section 16.6.
"LENDERS" means the lending institutions listed on the signature
pages of this Agreement and their respective successors and, to the extent
permitted by Section 13.3, assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or Affiliate of such Lender or the Agent, as
the case may be.
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<PAGE> 16
"LETTER OF CREDIT" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"LETTER OF CREDIT COLLATERAL ACCOUNT" is defined in Section 2.15.7.
"LEVERAGE RATIO" means, as of any date, the ratio of (a) Total Debt
at such date to (b) EBITDA, as calculated for the four most recently ended
consecutive fiscal quarters of the Company.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, fixed or floating charge, assignment, deposit arrangement,
encumbrance or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, the interest of a vendor or lessor under any conditional sale,
Capitalized Lease or other title retention agreement).
"LOAN" means, with respect to a Lender, such Lender's Revolving
Credit Loans and portion of the Term Loan, and, with respect to the Agent,
Swing Loans.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Collateral
Documents, any Rate Hedging Agreements with any Lenders or their Affiliates
and the other agreements, certificates and other documents contemplated hereby
or executed or delivered pursuant hereto by any Borrower or any Guarantor at
any time with or in favor of the Agent or any Lender.
"LONDON BANKING DAY" means any day on which banks in London are open
for general banking business, including dealings in foreign currency and
exchange.
"MARGIN STOCK" means margin stock as defined in Regulations T, U or
X.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business, Property, prospects, condition (financial or otherwise) or results
of operations of the Company and its Subsidiaries taken as a whole, (ii) the
ability of any Borrower or Guarantor to pay the Obligations under the Loan
Documents, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Agent or the Lenders thereunder.
"MATURITY DATE" means the earlier to occur of (a) December 31, 2004
or (b) the date on which the maturity of the Term Loan is accelerated pursuant
to Article VIII.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTICURRENCY ADVANCE" means a borrowing hereunder (or continuation
or a conversion thereof) consisting of the several Multicurrency Loans made on
the same Borrowing Date (or date of conversion or continuation) by the Lenders
to a Borrower of the same Type, in the same Agreed Currency and for the same
Interest Period.
"MULTICURRENCY FACILITY LETTER OF CREDIT" means any Facility Letter
of Credit for the account of a Foreign Subsidiary Borrower.
"MULTICURRENCY FACILITY LETTER OF CREDIT OBLIGATIONS" means Facility
Letter of Credit Obligations with respect to Multicurrency Facility Letters of
Credit.
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"MULTICURRENCY LENDER" means any Lender which has a Canadian Revolving
Credit Commitment, a Danish Revolving Credit Commitment, a Euro Revolving Credit
Commitment or a U.K. Revolving Credit Commitment.
"MULTICURRENCY LOANS" means any Canadian Revolving Credit Loans, Danish
Revolving Credit Loans, Euro Revolving Credit Loans, U.K. Revolving Credit Loans
and any Swing Loans made to the Canadian Borrower, the Danish Borrower, the Euro
Borrowers or the U.K. Borrower.
"MULTIEMPLOYER PLAN" means a plan defined in Section 4001(a)(3) of
ERISA to which the Company or any member of the Controlled Group has an
obligation to contribute.
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a
Euro unit) of each member state of the European Union that participates in the
third stage of Economic and Monetary Union.
"NET CASH PROCEEDS" means, without duplication (a) in connection with
any sale or other disposition of any asset or any settlement by, or receipt of
payment in respect of, any property insurance claim or condemnation award, the
cash proceeds (including any cash payments received by way of deferred payment
of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such
sale, settlement or payment, net of reasonable and documented attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied to
the repayment of Indebtedness secured by a Lien expressly permitted hereunder
on any asset which is the subject of such sale, insurance claim or
condemnation award (other than any Lien in favor of the Agent for the benefit
of the Agent and the Lenders) and other customary fees actually incurred in
connection therewith and net of taxes paid or reasonably estimated to be
payable as a result thereof and (b) in connection with any issuance or sale of
any equity securities or debt securities or instruments or the incurrence of
loans, the cash proceeds received from such issuance or incurrence, net of
investment banking fees, reasonable and documented attorneys' fees,
accountants' fees, underwriting discounts and commissions and other reasonable
and customary fees and expenses actually incurred in connection therewith.
"NET WORTH" of any Person means, as of any date, the amount of any
capital stock, paid in capital and similar equity accounts plus (or minus in
the case of a deficit) the capital surplus and retained earnings of such
Person, but excluding the amount of any foreign currency translation
adjustment account shown as a capital account of such Person, all as
determined in accordance with Agreement Accounting Principles.
"NON-EXCLUDED TAXES" is defined in Section 3.6.1.
"NOTES" means the collective reference to the Revolving Credit Notes
and the Term Notes.
"NOTICE OF ASSIGNMENT" is defined in Section 13.3.2.
"OBLIGATIONS" means collectively, the unpaid principal of and interest
on the Loans, all obligations and liabilities pursuant to the Facility Letters
of Credit, all Rate Hedging Obligations and all other obligations and
liabilities of each Borrower and each Guarantor to the Agent or the Lenders
(including Affiliates of such Lenders in the case of Rate Hedging obligations)
under this Agreement and the other Loan Documents (including, without
limitation, interest accruing at the then applicable rate provided in this
Agreement or any other applicable Loan Document after the maturity of the Loans
and interest accruing at the then applicable rate provided in this Agreement or
any other applicable Loan
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Document after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to any Borrower or
any Guarantor, as the case may be, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, the other Loan Documents or any other document made, delivered or
given in connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all reasonable fees and disbursements
of counsel to the Agent or to the Lenders that are required to be paid by any
Borrower or any Guarantor pursuant to the terms of this Agreement or any other
Loan Document).
"OBLIGOR" means any Person which is obligated to make payments for
the provision of goods and services pursuant to a Contract.
"PARTICIPANTS" is defined in Section 13.2.1.
"PAYMENT DATE" means the last Business Day of each March, June,
September and December occurring after the Effective Date, commencing March
31, 1999.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERSON" means any natural person, corporation, firm, joint venture,
limited liability company, partnership, association, enterprise, company or
other entity or organization, or any government or political subdivision or
any agency, department or instrumentality thereof.
"PLAN" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code as to which the Company or any member of the Controlled Group
has any obligation to contribute to on or after the Effective Date.
"PLEDGE AGREEMENT" means each pledge agreement in substantially the
form of Exhibit E hereto (with such changes therein as may be determined by
the Agent to be necessary to conform to any legal requirements), duly executed
and delivered by any Borrower or Guarantor to the Agent, as collateral agent
thereunder, including any amendment, modification, renewal or replacement of
such pledge agreement.
"PRIME RATE" means the per annum rate announced or established by the
Agent from time to time as its "prime rate" (it being acknowledged that such
announced rate may not necessarily be the lowest rate charged by the Agent to
any of its customers) or the corporate base rate of interest announced or
established by any Affiliate of the Agent or, when used in connection with any
Advance denominated in any Eligible Currency, "Prime Rate" means the
correlative floating rate of interest customarily applicable to similar
extensions of credit to corporate borrowers denominated in such currency in
the country of issue, as determined by the Agent, which Prime Rate shall
change simultaneously with any change in such announced or established rates.
"PRO RATA SHARE" means, for each Lender, the ratio of such Lender's
Commitment (calculated using the U.S. Dollar Equivalent thereof) to the
Aggregate Commitment (calculated using the U.S. Dollar Equivalent thereof),
PROVIDED that (a) with respect to U.S. Revolving Credit Loans, U.S. Facility
Letters of Credit, Swing Loans made to the Company and facility fees with
respect to the U.S. Revolving Credit Commitment, Pro Rata Share means, for
each Lender, the ratio such Lender's U.S. Revolving Credit Commitment bears to
the Aggregate U.S. Revolving Credit Commitments, (b) with respect to Canadian
Revolving Credit Loans, Canadian Facility Letters of Credit, Swing Loans made
to the Canadian Borrower
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and facility fees with respect to the Canadian Revolving Credit Commitment, Pro
Rata Share means, for each Lender, the ratio such Lender's Canadian Revolving
Credit Commitment bears to the Aggregate Canadian Revolving Credit Commitments,
(c) with respect to Danish Revolving Credit Loans, Danish Facility Letters of
Credit, Swing Loans made to the Danish Borrower and facility fees with respect
to the Danish Revolving Credit Commitment, Pro Rata Share means, for each
Lender, the ratio such Lender's Danish Revolving Credit Commitment bears to the
Aggregate Danish Revolving Credit Commitments, (d) with respect to Euro
Revolving Credit Loans, Euro Facility Letters of Credit, Swing Loans made to the
Euro Borrowers and facility fees with respect to the Euro Revolving Credit
Commitment, Pro Rata Share means, for each Lender, the ratio such Lender's Euro
Revolving Credit Commitment bears to the Aggregate Euro Revolving Credit
Commitments, (e) with respect to U.K. Revolving Credit Loans, U.K. Facility
Letters of Credit, Swing Loans made to the U.K. Borrower and facility fees with
respect to the U.K. Revolving Credit Commitment, Pro Rata Share means, for each
Lender, the ratio such Lender's U.K. Revolving Credit Commitment bears to the
Aggregate U.K. Revolving Credit Commitments, and (f) with respect to the Term
Loan, Pro Rata Share means, for each Lender, the ratio such Lender's Term Loan
Commitment bears to the Aggregate Term Loan Commitment. If at any time the
Commitments have been terminated, the amount of any Commitment for the purposes
of this definition of "Pro Rata Share" only shall be deemed equal to the amount
of such Commitment immediately prior to its termination.
"PROPERTY" of a Person means any and all property, whether real,
personal, movable, immovable, tangible, intangible, or mixed, of such Person,
or other assets owned, leased or operated by such Person.
"PURCHASERS" is defined in Section 13.3.1.
"QUOTATION DATE" in relation to any period for which a Eurocurrency
Reference Rate is to be determined hereunder, means the date on which
quotations would ordinarily be given by prime Lenders in the London inter-bank
market for deposits in the Available Foreign Currency in relation to which
such rate is to be determined for delivery on the first day of that period,
provided that, if, for such period, quotations would ordinarily be given on
more than one date, the Quotation Date for that period shall be the last of
those dates.
"RATE HEDGING AGREEMENT" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements,
forward currency exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options, puts and warrants.
"RATE HEDGING OBLIGATIONS" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions
and modifications thereof and substitutions therefor), under (a) any and all
Rate Hedging Agreements, and (b) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Hedging Agreement.
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor
thereto or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of the
Federal Reserve System.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors.
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"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors.
"REIMBURSEMENT OBLIGATIONS" means, at any time, the aggregate of the
obligations of the Borrowers to the Lenders and the Issuers in respect of all
unreimbursed payments or disbursements made by the Issuers and the Lenders
under or in respect of the Facility Letters of Credit.
"REPORTABLE EVENT" means a reportable event as defined in Section
4043 of ERISA and the regulations issued under such section with respect to a
Plan, excluding, however, such events as to which the PBGC by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified within
30 days of the occurrence of such event, PROVIDED, however, that a failure to
meet the minimum funding standard of Section 412 of the Code and of Section
302 of ERISA shall be a Reportable Event regardless of the issuance of any
such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
"REQUIRED CANADIAN REVOLVING CREDIT LENDERS" means (a) at any time
prior to the termination of the Canadian Revolving Credit Commitments,
Canadian Revolving Credit Lenders holding not less than 51% of the aggregate
Canadian Revolving Credit Commitments of all Canadian Revolving Credit Lenders
and (b) at any time after the termination of the Canadian Revolving Credit
Commitments, Canadian Revolving Credit Lenders whose aggregate Canadian
Revolving Credit Loans and Pro Rata Shares of Canadian Facility Letters of
Credit aggregate at least 51% date of the Aggregate Canadian Revolving Credit
Loans of all Canadian Revolving Credit Lenders and all Canadian Facility
Letters of Credit.
"REQUIRED DANISH REVOLVING CREDIT LENDERS" means (a) at any time
prior to the termination of the Danish Revolving Credit Commitments, Danish
Revolving Credit Lenders holding not less than 51% of the aggregate Danish
Revolving Credit Commitments of all Danish Revolving Credit Lenders and (b) at
any time after the termination of the Danish Revolving Credit Commitments,
Danish Revolving Credit Lenders whose aggregate Danish Revolving Credit Loans
and Pro Rata Shares of Danish Facility Letters of Credit aggregate at least
51% date of the Aggregate Danish Revolving Credit Loans of all Danish
Revolving Credit Lenders and all Danish Facility Letters of Credit.
"REQUIRED EURO REVOLVING CREDIT LENDERS" means (a) at any time prior
to the termination of the Euro Revolving Credit Commitments, Euro Revolving
Credit Lenders holding not less than 51% of the aggregate Euro Revolving
Credit Commitments of all Euro Revolving Credit Lenders and (b) at any time
after the termination of the Euro Revolving Credit Commitments, Euro Revolving
Credit Lenders whose aggregate Euro Revolving Credit Loans and Pro Rata Shares
of Euro Facility Letters of Credit aggregate at least 51% date of the
Aggregate Euro Revolving Credit Loans of all Euro Revolving Credit Lenders and
all Euro Facility Letters of Credit.
"REQUIRED LENDERS" means (a) at any time prior to the termination of
the Commitments, Lenders holding not less than 51% of the U. S. Dollar
Equivalent of the aggregate Commitments of all Lenders; and (b) at any time
after the termination of the Commitments, Lenders whose Aggregate Total
Outstandings aggregate at least 51% of the Aggregate Total Outstandings of all
Lenders.
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"REQUIRED U.K. REVOLVING CREDIT LENDERS" means (a) at any time prior to
the termination of the U.K. Revolving Credit Commitments, U.K. Revolving Credit
Lenders holding not less than 51% of the aggregate U.K. Revolving Credit
Commitments of all U.K. Revolving Credit Lenders and (b) at any time after the
termination of the U.K. Revolving Credit Commitments, U.K. Revolving Credit
Lenders whose aggregate U.K. Revolving Credit Loans and Pro Rata Shares of U.K.
Facility Letters of Credit aggregate at least 51% date of the Aggregate U.K.
Revolving Credit Loans of all U.K. Revolving Credit Lenders and all U.K.
Facility Letters of Credit.
"REQUIRED U.S. REVOLVING CREDIT LENDERS" means (a) at any time prior to
the termination of the U.S. Revolving Credit Commitments, U.S. Revolving Credit
Lenders holding not less than 51% of the aggregate U.S. Revolving Credit
Commitments of all U.S. Revolving Credit Lenders and (b) at any time after the
termination of the U.S. Revolving Credit Commitments, U.S. Revolving Credit
Lenders whose aggregate U.S. Revolving Credit Loans and Pro Rata Shares of U.S.
Facility Letters of Credit aggregate at least 51% date of the Aggregate U.S.
Revolving Credit Loans of all U.S. Revolving Credit Lenders and all U.S.
Facility Letters of Credit.
"REQUIRED TERM LOAN LENDERS" means Term Loan Lenders holding not less
than 51% of the aggregate amount of the Term Loan made by all Term Loan
Lenders.
"REQUIREMENT OF LAW" means as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its Property or to which such Person
or any of its Property is subject.
"RESERVE REQUIREMENT" means, with respect to an Interest Period for
Eurodollar Loans or Eurocurrency Loans, the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other reserves),
assessments or similar requirements under any regulations of the Board of
Governors of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto dealing with reserve requirements prescribed
for eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D).
"REVOLVING CREDIT ADVANCE" means a borrowing hereunder (or
continuation or conversion thereof) consisting of the several Revolving Credit
Loans made on the same Borrowing Date (or date of conversion or continuation)
by the Lenders to a Borrower of the same Type and in the case of Fixed Rate
Advances, for the same Interest Period.
"REVOLVING CREDIT COMMITMENTS" means the Canadian Revolving Credit
Commitments, the Danish Revolving Credit Commitments, the Euro Revolving
Credit Commitments, the U.K. Revolving Credit Commitments and the U.S.
Revolving Credit Commitments.
"REVOLVING CREDIT COMMITTED PERCENTAGE" means as to any Lender at any
time, the percentage which the U.S. Dollar Equivalent of such Lender's
Revolving Credit Commitments then constitutes of the aggregate U.S. Dollar
Equivalent of the Revolving Credit Commitments of all Lenders (or, if the
Revolving Credit Commitments have terminated or expired, the percentage which
(a) the U.S. Dollar Equivalent of the Aggregate Revolving Credit Outstandings
of such Lender at such time then constitutes of (b) the U.S. Dollar Equivalent
of the Aggregate Revolving Credit Outstandings of all Revolving Credit Lenders
at such time).
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"REVOLVING CREDIT LENDERS" means those Lenders which have a Revolving
Credit Commitment or, if such Commitments shall have been terminated, have
outstanding Revolving Credit Loans or Facility Letter of Credit Obligations.
"REVOLVING CREDIT LOANS" means, with respect to a Lender, such
Lender's loans made pursuant to Section 2.1.
"REVOLVING CREDIT NOTE" is defined in Section 2.2.3.
"S&P" means Standard & Poor's Rating Services, a division of The McGraw
Hill Companies, Inc.
"SALE AND LEASEBACK TRANSACTION" means any sale or other transfer of
property by any Person with the intent to lease or use such Property as lessee
or in any other capacity.
"SECTION" means a numbered section of this Agreement, unless another
document is specifically referenced.
"SIGNIFICANT SUBSIDIARY" means each present or future subsidiary of
the Company which would constitute a "significant subsidiary" within the
meaning of Rule 1-02 of Regulation S-X as currently in effect promulgated by
the Securities and Exchange Commission.
"SINGLE EMPLOYER PLAN" means a Plan which is maintained by the
Company or any member of the Controlled Group for employees of the Company or
any member of the Controlled Group.
"SUBSIDIARY" of a Person means (a) any corporation more than 50% of
the outstanding securities having ordinary voting power of which shall at the
time be owned or controlled, directly or indirectly, by such Person or by one
or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (b) any partnership, limited liability company, association,
joint venture or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time be so owned
or controlled. Unless otherwise expressly provided, all references herein to a
"Subsidiary" means a Subsidiary of the Company.
"SUBSTANTIAL PORTION" means, with respect to the Property of the
Company and its Subsidiaries, Property which (a) represents more than 10% of
the consolidated assets of the Company and its Subsidiaries as would be shown
in the consolidated financial statements of the Company and its Subsidiaries
as at the beginning of the twelve-month period ending with the month in which
such determination is made, (b) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Company and
its Subsidiaries as reflected in the financial statements referred to in
clause (a) above, (c) represents more than 25% of the consolidated assets of
the Company and its Subsidiaries as would be shown in the consolidated
financial statements of the Company and its Subsidiaries as of the Effective
Date or (d) is responsible for more than 25% of the consolidated net sales or
of the consolidated net income of the Company and its Subsidiaries as
reflected in the financial statements referred to in clause (c) above.
"SWING LOANS" is defined in Section 2.16.
"TERM LOAN" means, with respect to a Lender, such Lender's portion of
the loan made pursuant to Section 2.1.6.
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"TERM LOAN COMMITMENT" means as to any Lender at any time, its
obligation to make the Term Loan to the Company in an aggregate amount not to
exceed at any time outstanding the amount set forth opposite such Lender's
name in Schedule 1.1(b) under the heading "Term Loan Commitment" or as
otherwise established pursuant to Section 13.3, as such amount may be reduced
from time to time pursuant to Section 2.4, 13.3 and the other applicable
provisions hereof.
"TERM LOAN LENDERS" means those Lenders which have a Term Loan
Commitment or, if such Commitments have been terminated, have an outstanding
Term Loan.
"TERM LOAN NOTE" is defined in Section 2.2.3.
"TOTAL DEBT" as of any date, means all of the following for the
Company and its Subsidiaries on a consolidated basis and without duplication:
(i) all debt for borrowed money and similar monetary obligations evidenced by
bonds, notes, debentures, Capitalized Lease Obligations or otherwise,
including without limitation obligations in respect of the deferred purchase
price of properties or assets, in each case whether director indirect; (ii)
all liabilities secured by any Lien existing on property owned or acquired
subject thereto, whether or not the liability secured thereby shall have been
assumed; (iii) all reimbursement obligations under outstanding letters of
credit in respect of drafts which (A) may be presented or (B) have been
presented and have not yet been paid and are not included in clause (i) above;
and (iv) all guarantees and other Contingent Obligation relating to
indebtedness or liabilities of the type described in the foregoing clauses
(i), (ii) or (iii).
"TRANSFEREE" is defined in Section 13.4.
"TYPE" means, with respect to any Advance, its nature as a Floating
Rate Advance, Multicurrency Loan or Eurodollar Advance.
"U.K. BORROWER" means any Foreign Subsidiary Borrower from time to time
designated on Schedule 1.1(b) as the "U.K. Borrower".
"U.K. FACILITY LETTER OF CREDIT" means any Letter of Credit for the
account of the U.K. Borrower.
"U.K. FACILITY LETTER OF CREDIT OBLIGATIONS" means Facility Letter of
Credit Obligations with respect to U.K. Facility Letters of Credit.
"U.K. REVOLVING CREDIT COMMITMENT" means, as to any Lender at any
time, its obligation to make Revolving Credit Loans to the U.K. Borrower under
Section 2.1.4 in an aggregate amount not to exceed at any time outstanding the
Deutschemark amount set forth opposite such Lender's name in Schedule 1.1(a)
under the heading "U.K. Revolving Credit Commitment" or as otherwise
established pursuant to Section 13.3, as such amount may be reduced from time
to time pursuant to Sections 2.4, 13.3 and the other applicable provisions
hereof.
"U.K. REVOLVING CREDIT LENDER" means any Lender which has a U.K.
Revolving Credit Commitment.
"U.K. REVOLVING CREDIT LOANS" means Revolving Credit Loans made to the
U.K. Borrower under Section 2.1.4.
"UNFUNDED LIABILITIES" means the amount (if any) by which the
actuarial present value of all benefit liabilities under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to
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such benefit liabilities, all determined as of the then most recent valuation
date for such Plans using FASB actuarial assumptions for single employer plan
terminations.
"UNMATURED DEFAULT" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"U.S. DOLLAR EQUIVALENT" means, on any date with respect to an amount
denominated in any currency other than U.S. Dollars, the equivalent in U.S.
Dollars of such amount determined at the Exchange Rate on the date of
determination of such equivalent.
"U.S. FACILITY LETTER OF CREDIT" means any Letter of Credit for the
account of the Company.
"U.S. FACILITY LETTER OF CREDIT OBLIGATIONS" means Facility Letter of
Credit Obligations with respect to U.S. Facility Letters of Credit.
"U.S. REVOLVING CREDIT COMMITMENT" means, as to any Lender at any time,
its obligation to make Revolving Credit Loans to the Company in Dollars in an
aggregate amount not to exceed at any time outstanding the U.S. Dollar amount
set forth opposite such Lender's name in Schedule 1.1(a) under the heading "U.S.
Revolving Credit Commitment" or as otherwise established pursuant to Section
13.3, as such amount may be reduced from time to time pursuant to Sections 2.4,
13.3 and the other applicable provisions hereof.
"U.S. REVOLVING CREDIT LENDER" means any Lender which has a U.S.
Revolving Credit Commitment.
"U.S. REVOLVING CREDIT LOANS" means Revolving Credit Loans made to the
Company pursuant to Section 2.1.1.
"VOTING STOCK" of a Person means all classes of Capital Stock of such
Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers,
trustees or similar persons thereof.
"WHOLLY-OWNED SUBSIDIARY" of a Person means any other Person of which
100% of the outstanding Voting Stock of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person.
"YEAR 2000 ISSUES" means anticipated costs, problems and
uncertainties associated with the inability of certain computer applications
to effectively handle data including dates on and after January 1, 2000, as
such inability affects the business, operations and financial condition of the
Borrower and its Subsidiaries and of the Borrower's and its Subsidiaries'
material customers, suppliers and vendors.
"YEAR 2000 PROGRAM" is defined in Section 5.28.
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1.2 RULES OF CONSTRUCTION. All terms defined in Section 1.1 shall
include both the singular and the plural forms thereof and shall be construed
accordingly. Use of the terms "HEREIN", "HEREOF", and "hereunder" shall be
deemed references to this Agreement in its entirety and not to the Section or
clause in which such term appears. References to "SECTIONS" and "SUBSECTIONS"
shall be to Sections and subsections, respectively, of this Agreement unless
otherwise specifically provided. Notwithstanding anything herein, in any
financial statements of the Company or in Agreement Accounting Principles to
the contrary, for purposes of calculating the Applicable Margin and of
calculating and determining compliance with the financial covenants in
Sections 6.19, 6.20 and 6.21, including defined terms used therein, any
Acquisitions made by the Company or any of its Subsidiaries, including through
mergers or consolidations and including the incurrence of all Indebtedness
related thereto and any other related financial transactions, during the
period for which such financial covenants were calculated shall be deemed to
have occurred on the first day of the relevant period for which such financial
covenants and the Applicable Margin were calculated on a pro forma basis
acceptable to the Agent.
ARTICLE II
THE CREDITS
-----------
2.1 COMMITMENTS.
2.1.1 From and including the Effective Date and prior to the Facility
Termination Date, each U.S. Revolving Credit Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make U.S. Revolving
Credit Loans to the Company from time to time so long as after giving effect
thereto and to any concurrent repayment of Loans the Aggregate U.S. Revolving
Credit Outstandings of each U.S. Revolving Credit Lender are equal to or less
than its U.S. Revolving Credit Commitment. Subject to the terms of this
Agreement, the Company may borrow, repay and reborrow U.S. Revolving Credit
Loans at any time prior to the Facility Termination Date. The U.S. Revolving
Credit Loans may be Floating Rate Loans or Eurodollar Loans, or a combination
thereof selected in accordance with Sections 2.3 and 2.7. The U.S. Revolving
Credit Commitments to lend hereunder shall expire on the Facility Termination
Date.
2.1.2 From and including the Effective Date and prior to the Facility
Termination Date, each Danish Revolving Credit Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make Danish Revolving
Credit Loans to the Danish Borrower from time to time so long as after giving
effect thereto and to any concurrent repayment of Loans the Aggregate Danish
Revolving Credit Outstandings of each Danish Revolving Credit Lender are equal
to or less than its Danish Revolving Credit Commitment. Subject to the terms
of this Agreement, the Danish Borrower may borrow, repay and reborrow Danish
Revolving Credit Loans at any time prior to the Facility Termination Date. The
Danish Revolving Credit Loans will be Eurocurrency Loans as selected in
accordance with Sections 2.3 and 2.7. The Danish Revolving Credit Commitments
to lend hereunder shall expire on the Facility Termination Date.
2.1.3 From and including the Effective Date and prior to the Facility
Termination Date, each Euro Revolving Credit Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make Euro Revolving
Credit Loans to the Euro Borrowers from time to time so long as after giving
effect thereto and to any concurrent repayment of Loans the Aggregate Euro
Revolving Credit Outstandings of each Euro Revolving Credit Lender are equal
to or less than its Euro Revolving Credit Commitment. Subject to the terms of
this Agreement, each Euro Borrower may borrow, repay and reborrow Euro
Revolving Credit Loans at any time prior to the Facility Termination Date. The
Euro
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Revolving Credit Loans will be Eurocurrency Loans as selected in accordance
with Sections 2.3 and 2.7. The Euro Revolving Credit Commitments to lend
hereunder shall expire on the Facility Termination Date.
2.1.4 From and including the Effective Date of this Agreement and
prior to the Facility Termination Date, each U.K. Revolving Credit Lender
severally agrees, on the terms and conditions set forth in this Agreement, to
make U.K. Revolving Credit Loans to the U.K. Borrower from time to time so
long as after giving effect thereto and to any concurrent repayment of Loans
the Aggregate U.K. Revolving Credit Outstandings of each U.K. Revolving Credit
Lender are equal to or less than its U.K. Revolving Credit Commitment. Subject
to the terms of this Agreement, the U.K. Borrower may borrow, repay and
reborrow U.K. Revolving Credit Loans at any time prior to the Facility
Termination Date. The U.K. Revolving Credit Loans will be Eurocurrency Loans
as selected in accordance with Sections 2.3 and 2.7. The U.K. Revolving Credit
Commitments to lend hereunder shall expire on the Facility Termination Date.
2.1.5 From and including the First Amendment Effective Date and prior
to the Facility Termination Date, each Canadian Revolving Credit Lender
severally agrees, on the terms and conditions set forth in this Agreement, to
make Canadian Revolving Credit Loans to the Canadian Borrower from time to
time so long as after giving effect thereto and to any concurrent repayment of
Loans the Aggregate Canadian Revolving Credit Outstandings of each Canadian
Revolving Credit Lender are equal to or less than its Canadian Revolving
Credit Commitment. Subject to the terms of this Agreement, the Canadian
Borrower may borrow, repay and reborrow Canadian Revolving Credit Loans at any
time prior to the Facility Termination Date. The Canadian Revolving Credit
Loans will be Eurocurrency Loans as selected in accordance with Sections 2.3
and 2.7. The Canadian Revolving Credit Commitments to lend hereunder shall
expire on the Facility Termination Date.
2.1.6 Each Term Loan Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make the Term Loan to the Company
on the Effective Date in an amount equal to the Term Loan Commitment of such
Lender. The Term Loan, or any portion thereof, may be Floating Rate Loans or
Eurodollar Loans, or a combination thereof, with the initial selection in
accordance with procedures acceptable to the Agent and any subsequent
selections in accordance with Section 2.7.
2.2 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
2.2.1 (a) The Company hereby unconditionally promises to pay to the
Agent for the account of each U.S. Revolving Credit Lender in U.S. Dollars the
then unpaid principal amount of each U.S. Revolving Credit Loan of such Lender
on the Facility Termination Date and on such other dates and in such other
amounts as may be required from time to time pursuant to this Agreement. The
Company hereby further agrees to pay to the Agent for the account of each U.S.
Revolving Credit Lender interest in U.S. Dollars on the unpaid principal
amount of the U.S. Revolving Credit Loans from time to time outstanding until
payment thereof in full at the rates per annum, and on the dates, set forth in
Section 2.8.
(b) The Danish Borrower hereby unconditionally promises to
pay to the Agent for the account of each Danish Revolving Credit Lender in
Danish Krone the then unpaid principal amount of each Danish Revolving Credit
Loan of such Lender on the Facility Termination Date and on such other dates
and in such other amounts as may be required from time to time pursuant to
this Agreement. The Danish Borrower hereby further agrees to pay to the Agent
for the account of each Danish Revolving Credit Lender interest in Danish
Krone on the unpaid principal amount of the Danish Revolving Credit Loans from
time to time outstanding until payment thereof in full at the rates per annum,
and on the dates, set forth in Section 2.8.
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(c) Each Euro Borrower hereby unconditionally promises to
pay to the Agent for the account of each Euro Revolving Credit Lender in Euro
the then unpaid principal amount of each Euro Revolving Credit Loan of such
Lender made to such Euro Borrower on the Facility Termination Date and on such
other dates and in such other amounts as may be required from time to time
pursuant to this Agreement. Each Euro Borrower hereby further agrees to pay to
the Agent for the account of each Euro Revolving Credit Lender interest in
Euro on the unpaid principal amount of the Euro Revolving Credit Loans of such
Euro Borrower from time to time outstanding until payment thereof in full at
the rates per annum, and on the dates, set forth in Section 2.8.
(d) The U.K. Borrower hereby unconditionally promises to pay
to the Agent for the account of each U.K. Revolving Credit Lender in British
Pounds Sterling the then unpaid principal amount of each U.K. Revolving Credit
Loan of such Lender on the Facility Termination Date and on such other dates
and in such other amounts as may be required from time to time pursuant to
this Agreement. The U.K. Borrower hereby further agrees to pay to the Agent
for the account of each U.K. Revolving Credit Lender interest in British
Pounds Sterling on the unpaid principal amount of the U.K. Revolving Credit
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in Section 2.8.
(e) The Canadian Borrower hereby unconditionally promises to
pay to the Agent for the account of each Canadian Revolving Credit Lender in
the currency in which such Loan was made the then unpaid principal amount of
each Canadian Revolving Credit Loan of such Lender on the Facility Termination
Date and on such other dates and in such other amounts as may be required from
time to time pursuant to this Agreement. The Canadian Borrower hereby further
agrees to pay to the Agent for the account of each Canadian Revolving Credit
Lender interest in the currency in which such Loan was made on the unpaid
principal amount of the Canadian Revolving Credit Loans from time to time
outstanding until payment thereof in full at the rates per annum, and on the
dates, set forth in Section 2.8.
(f) The Company hereby unconditionally promises to pay to
the Agent for the pro rata account of each Term Loan Lender in U.S. Dollars
the unpaid principal amount of the Term Loan of such Lender in twenty three
quarterly principal payments as follows:
Payment Date Principal Installment
- ------------ ---------------------
June 30, 1999 $500,000
September 30, 1999 $500,000
December 31, 1999 $500,000
March 31, 2000 $2,000,000
June 30, 2000 $2,000,000
September 30, 2000 $2,000,000
December 31, 2000 $2,000,000
March 31, 2001 $3,000,000
June 30, 2001 $3,000,000
September 30, 2001 $3,000,000
December 31, 2001 $3,000,000
March 31, 2002 $3,000,000
June 30, 2002 $3,000,000
September 30, 2002 $3,000,000
December 31, 2002 $3,000,000
March 31, 2003 $4,000,000
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June 30, 2003 $4,000,000
September 30, 2003 $4,000,000
December 31, 2003 $4,000,000
March 31, 2004 $6,250,000
June 30, 2004 $6,250,000
September 30, 2004 $6,500,000
December 31, 2004 $6,500,000
On the Maturity Date the Term Loan shall be paid in full. The Company
further agrees to pay to the Agent for the account of each Term Loan Lender
interest in U.S. Dollars on the unpaid principal amount of the Term Loan from
time to time outstanding until payment thereof in full at the rates per annum,
and on the dates, set forth in Section 2.8.
(g) In addition to all other payments of the Loans required
hereunder, the Borrowers shall prepay the Loans by an amount equal to 50% of
all Net Cash Proceeds of any Indebtedness for borrowed money, asset
securtizations or similar obligations incurred at any time after the Effective
Date, other than indebtedness permitted by Section 6.10 (exclusive of clause
(v) of Section 6.10). Such mandatory prepayments shall be applied to the Term
Loan first, and shall be applied to installments of the Term Loan in the
inverse order of maturities until paid in full, and thereafter any such
payments shall be applied pro rata to the Revolving Credit Advances.
(h) In addition to all payments of the Loans required
hereunder, the Borrowers shall prepay the Loans by an amount equal to 100% of
the Net Cash Proceeds in excess of $15,000,000 in aggregate amount after the
Effective Date from the issuance or other sale of any Capital Stock of the
Company or any of its Subsidiaries. Such mandatory prepayments on the Loans
shall be applied to the Term Loan first, and shall be applied to installments
of the Term Loan in the inverse order of maturities until paid in full, and
thereafter any such payments shall be applied pro rata on the Revolving Credit
Advances.
(i) The Borrowers shall give the Agent at least three
Business Days' irrevocable written notice of each prepayment that the
Borrowers expect to make pursuant Sections 2.2.1(g) and (h), in each case
specifying the amount of such prepayment and a brief description of the event
or events which cause such prepayment to be made.
2.2.2 The books and records of the Agent and of each Lender shall, to
the extent permitted by applicable law, be PRIMA FACIE evidence of the
existence and amounts of the obligations of the Borrowers therein recorded;
PROVIDED, HOWEVER, that the failure of any Lender or the Agent to maintain any
such books and records or any error therein, shall not in any manner affect
the obligation of the Borrowers to repay (with applicable interest) the Loans
made to such Borrowers by such Lender in accordance with the terms of this
Agreement.
2.2.3 The Borrowers agree that, upon the request to the Agent by any
Lender, the relevant Borrowers will execute and deliver to such Lender (a)
promissory notes of each Borrower evidencing the Revolving Credit Loans of
such Revolving Credit Lender, substantially in the form of Exhibit F-1 with
appropriate insertions as to date, currency and principal amount (each, a
"REVOLVING CREDIT NOTE"), and (b) promissory notes of the Company evidencing
the Term Loan of such Term Loan Lender, substantially in the form of Exhibit
F-2 with appropriate insertions as to date and principal amount (each, a "TERM
LOAN NOTE"); PROVIDED, that the delivery of such Notes shall not be a
condition precedent to the Effective Date.
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2.3 PROCEDURES FOR REVOLVING CREDIT BORROWING. (a) The Company may
borrow under the U.S. Revolving Credit Commitments, the Canadian Borrower may
borrow under the Canadian Revolving Credit Commitments, the Danish Borrower
may borrow under the Danish Revolving Credit Commitments, each Euro Borrower
may borrow under the Euro Revolving Credit Commitments and the U.K. Borrower
may borrow under the U.K. Revolving Credit Commitments, in each case from time
to time prior to the Facility Termination Date on any Business Day.
(b) The Company shall give the Agent irrevocable notice
(which notice must be received by the Agent prior to 10:00 a.m., Detroit time)
(i) three Business Days prior to the requested Borrowing Date, if all or any
part of the requested Revolving Credit Loans are to be initially Eurodollar
Loans, or (ii) one Business Day prior to the requested Borrowing Date
otherwise, specifying in each case (w) the amount to be borrowed, (x) the
requested Borrowing Date, (y) whether the borrowing is to be of Eurodollar
Loans, Floating Rate Loans or a combination thereof and (z) if the borrowing
is to be entirely or partly of Eurodollar Loans, the amount of such Type of
Loan and the length of the initial Interest Periods therefor. Each borrowing
under the U.S. Revolving Credit Commitments shall be in an amount equal to (A)
in the case of Floating Rate Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if the then aggregate available U.S.
Revolving Credit Commitments are less than $5,000,000, such lesser amount) and
(B) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from the
Company, the Agent shall promptly notify each Revolving Credit Lender thereof.
Not later than 11:00 a.m., Detroit time on each requested Borrowing Date each
Revolving Credit Lender shall make an amount equal to its Pro Rata Share of
the principal amount of the Revolving Credit Loans requested to be made on
such Borrowing Date available to the Agent at its Detroit office specified in
Section 14.1 in U.S. Dollars and in immediately available funds. The Agent
shall on such date credit the account of the Company on the books of such
office with the aggregate of the amounts made available to the Agent by the
Revolving Credit Lenders and in like funds as received by the Agent.
(c) Each Foreign Subsidiary Borrower shall give the Agent
irrevocable notice (which notice must be received by the Agent prior to 10:00
a.m., London time three Business Days prior to the requested Borrowing Date)
specifying in each case (i) the amount to be borrowed, (ii) the requested
Borrowing Date and (iii) the length of the initial Interest Period therefor.
Each borrowing by the Danish Borrower shall be in Danish Krone, each borrowing
by a Euro Borrower shall be in Euro, each borrowing by the U.K. Borrower shall
be in British Pounds Sterling and each borrowing by the Canadian Borrower
shall be in Dollars or Canadian Dollars. Each borrowing by any Foreign
Subsidiary Borrower shall be in an amount equal to an amount in the relevant
Available Foreign Currency which is 5,000,000 units or a whole multiple of
1,000,000 units in excess thereof or such other amounts as may be agreed upon
among the Company and the Agent. Upon receipt of any such notice from any such
Borrower, the Agent shall promptly notify the relevant Revolving Credit
Lenders with respect to such Borrower. Not later than 2:00 p.m., local time of
the Agent's funding office for such Borrower, on the requested Borrowing Date,
each such Revolving Credit Lender shall make an amount equal to its Pro Rata
Share of the principal amount of such Revolving Loans requested to be made on
such Borrowing Date available to the Agent at the Agent's funding office for
such Borrower specified by the Agent from time to time by notice to such
Revolving Credit Lenders and in immediately available or other same day funds
customarily used for settlement in the relevant Available Foreign Currency.
The amounts made available by each such Revolving Credit Lender will then be
made available to the relevant Borrower at the funding office for such
Borrower and in like funds as received by the Agent.
2.4 TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS. The
Danish Borrower may permanently reduce the Danish Revolving Credit
Commitments, in whole or in part, ratably among the Danish Revolving Credit
Lenders in integral multiples of DKK5,000,000, any Euro Borrower may
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permanently reduce the Euro Revolving Credit Commitments, in whole or in part,
ratably among the Euro Revolving Credit Lenders in integral multiples of
EUR5,000,000, the U.K. Borrower may permanently reduce the U.K. Revolving
Credit Commitments, in whole or in part, ratably among the U.K. Revolving
Credit Lenders in integral multiples of (pound)5,000,000, the Canadian
Borrower may permanently reduce the Canadian Revolving Credit Commitments, in
whole or in part, ratably among the Canadian Revolving Credit Lenders in
integral multiples of $5,000,000 and the Company may permanently reduce the
U.S. Revolving Credit Commitments, in whole or in part, ratably among the U.S.
Revolving Credit Lenders in integral multiples of $5,000,000, in each case
upon at least three Business Days' irrevocable written notice to the Agent,
and which notice shall specify the amount of any such reduction, PROVIDED,
however, that the Aggregate Danish Revolving Credit Commitments may not be
reduced below the Aggregate Danish Revolving Credit Outstandings of all
Lenders, the Aggregate Euro Revolving Credit Commitments may not be reduced
below the Aggregate Euro Revolving Credit Outstandings of all Lenders, the
Aggregate U.K. Revolving Credit Commitments may not be reduced below the
Aggregate U.K. Revolving Credit Outstandings of all Lenders, the Aggregate
Canadian Revolving Credit Commitments may not be reduced below the Aggregate
Canadian Revolving Credit Outstandings of all Lenders and the Aggregate U.S.
Revolving Credit Commitments may not be reduced below the Aggregate U.S.
Revolving Credit Outstandings of all Lenders. In addition, all accrued
facility fees shall be payable on the effective date of any termination of the
Revolving Credit Commitments.
2.5 FACILITY AND AGENT FEES. (a) Each Borrower agrees to pay to the
Agent for the account of each Lender a facility fee at the rate per annum set
forth in the Pricing Schedule on Exhibit A attached hereto, on the average
daily amount of each Revolving Credit Commitment of such Lender to such
Borrower, whether used or unused, from and including the Effective Date to but
excluding the Facility Termination Date in the case of the Revolving Credit
Commitments, payable on each Payment Date hereafter and on the Facility
Termination Date. The facility fee payable in respect to each Revolving Credit
Commitment shall be payable in the currency in which such Revolving Credit
Commitment is denominated.
(b) The Company agrees to pay to the Agent for its own account,
such other fees as agreed to in writing between the Company and the Agent.
2.6 OPTIONAL AND MANDATORY PRINCIPAL PAYMENTS ON ALL LOANS.
2.6.1 The Company may at any time and from time to time prepay
Floating Rate Loans, in whole or in part, without penalty or premium, upon at
least one Business Day's irrevocable notice to the Agent, specifying the date
and amount of prepayment. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein. Partial
prepayment of Floating Rate Loans shall be in a minimum aggregate amount of
$1,000,000 or any integral multiple of $1,000,000 in excess thereof.
2.6.2 Each Borrower may at any time and from time to time prepay,
without premium or penalty (but together with payment of any amount payable
pursuant to Section 3.4), its Eurodollar Loans and its Multicurrency Loans in
whole or in part, upon at least three Business Days' irrevocable notice to the
Agent specifying the date and amount of prepayment. Partial payments of
Eurodollar Loans shall be in a minimum aggregate amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof. Partial prepayments of
Multicurrency Loans shall be in an aggregate principal amount in the relevant
Available Foreign Currency of 5,000,000 units or any integral multiple of
1,000,000 units in excess thereof, or such lesser principal amount as may
equal the outstanding Multicurrency Loans or such lesser amount as may be
agreed to by the Agent.
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2.6.3 (i) If the Aggregate Danish Revolving Credit Outstandings
exceed the Aggregate Danish Revolving Credit Commitments at any time the
Danish Borrower shall promptly prepay the Aggregate Danish Revolving Credit
Outstandings in the amount of such excess, (ii) if the Aggregate Euro
Revolving Credit Outstandings exceed the Aggregate Euro Revolving Credit
Commitments at any time the Euro Borrowers shall promptly prepay the Aggregate
Euro Revolving Credit Outstandings in the amount of such excess, (iii) if the
Aggregate U.K. Revolving Credit Outstandings exceed the Aggregate U.K.
Revolving Credit Commitments at any time the U.K. Borrower shall promptly
prepay the Aggregate U.K. Revolving Credit Outstandings in the amount of such
excess, (iv) if the Aggregate Canadian Revolving Credit Outstandings exceed
the Aggregate Canadian Revolving Credit Commitments at any time the Canadian
Borrower shall promptly prepay the Aggregate Canadian Revolving Credit
Outstandings in the amount of such excess, and (v) if the Aggregate U.S.
Revolving Credit Outstandings exceed the Aggregate U.S. Revolving Credit
Commitments at any time the Company shall promptly prepay the Aggregate U.S.
Revolving Credit Outstandings in the amount of such excess.
2.6.4 Each prepayment pursuant to this Section 2.6 and each
conversion pursuant to Section 2.7 shall be accompanied by accrued and unpaid
interest on the amount prepaid to the date of prepayment and any amounts
payable under Section 3.4 in connection with such payment.
2.6.5 Prepayments pursuant to this Section 2.6 shall be applied as
follows: (a) in the case of prepayments made by the Company, first to prepay
Floating Rate Loans and second to prepay Eurodollar Loans then outstanding in
such order as the Company may direct and (b) in the case of prepayments made
by a Borrower of Multicurrency Loans, to prepay Multicurrency Loans made to
such Borrower in such order as the Company may direct, provided that all
prepayments on any Loans to a Borrower shall be applied pro rata to the Loans
owing by such Borrower.
2.6.6 All amounts prepaid, other than prepayment of the Term Loan,
may be reborrowed and successively repaid and reborrowed, subject to the other
terms and conditions in this Agreement. All prepayments of the Term Loan will
be applied to the maturities thereof in inverse order.
2.7. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES.
2.7.1 ADVANCES. Floating Rate Advances shall continue as Floating
Rate Advances unless and until such Floating Rate Advances are converted into
Eurodollar Advances. Each Eurodollar Advance shall continue as a Eurodollar
Advance until the end of the then applicable Interest Period therefor, at
which time such Eurodollar Advance shall be automatically converted into a
Floating Rate Advance unless the Company shall have given the Agent a
Conversion/Continuation Notice requesting that, at the end of such Interest
Period, such Eurodollar Advance either continue as a Eurodollar Advance for
the same or another Interest Period or be converted into a Floating Rate
Advance. Subject to the terms hereof, the Company may elect from time to time
to convert all or any part of a Revolving Credit Advance or Term Loan of any
Type to the Company into any other Type or Types of Advance; PROVIDED that any
conversion of any Eurodollar Advance shall be made on, and only on, the last
day of the Interest Period applicable thereto. The Company shall give the
Agent irrevocable notice (a "Conversion/Continuation Notice") of each
conversion of an Advance or continuation of a Eurodollar Advance not later
than 10:00 a.m. (Detroit time) at least one Business Day, in the case of a
conversion into a Floating Rate Advance, or three Business Days, in the case
of a conversion into or continuation of a Eurodollar Advance, prior to the
date of the requested conversion or continuation, specifying:
the requested date, which shall be a Business Day, of such conversion or
continuation,
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the aggregate amount and Type of the Revolving Credit Advance or Term Loan
which is to be converted or continued, and
the amounts and Type(s) of Revolving Credit Advance(s) or Term Loan into which
such Advance is to be converted or continued and, in the case of a conversion
into or continuation of a Eurodollar Advance, the duration of the Interest
Period applicable thereto.
2.7.2 MULTICURRENCY ADVANCES. Any Multicurrency Advances may be
continued as such upon the expiration of the then current Interest Period with
respect thereto by the relevant Borrower giving the Agent at least three
Business Days' prior irrevocable notice of such election and specifying the
duration of the Interest Period applicable thereto, PROVIDED, that if the
relevant Borrower shall fail to give such notice, such Multicurrency Advance
shall be automatically continued for an Interest Period of one month provided
that such continuation would not extend the Interest Period beyond the
Facility Termination Date.
2.8 INTEREST RATES, INTEREST PAYMENT DATES; INTEREST AND FEE BASIS.
(a) Each Floating Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from and including the date such Loan is made or
is converted from a Fixed Rate Loan into a Floating Rate Loan pursuant to
Section 2.7 to but excluding the date it becomes due or is converted into a
Fixed Rate Loan pursuant to Section 2.7 hereof, at a rate per annum equal to
the Floating Rate for such day. Each Eurodollar Loan shall bear interest for
each day during each Interest Period with respect thereto at a rate per annum
equal to the Eurodollar Rate determined for such Interest Period. Each
Multicurrency Loan to any Foreign Subsidiary Borrower (other than a Swing
Loan) shall bear interest for each day during each Interest Period with
respect thereto at a rate per annum equal to the applicable Eurocurrency Rate
determined for such Interest Period or at such other interest rate as agreed
to by all Lenders with a Commitment to such Foreign Subsidiary Borrower.
(b) Interest accrued on each Floating Rate Advance shall be payable
on each Payment Date, commencing with the first such date to occur after the
Effective Date and at maturity. Interest accrued on each Fixed Rate Advance
shall be payable on the last day of its applicable Interest Period, on any
date on which the Fixed Rate Advance is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Fixed Rate Advance
having an Interest Period longer than three months shall also be payable on
the last day of each three-month interval during such Interest Period.
(c) Interest shall be payable for the day an Advance is made but not
for the day of any payment on the amount paid if payment is received prior to
noon (local time) at the place of payment. If any payment of principal of or
interest on an Advance shall become due on a day which is not a Business Day,
except as otherwise provided in the definition of Interest Period, such
payment shall be made on the next succeeding Business Day and, in the case of
a principal payment, such extension of time shall be included in computing
interest in connection with such payment.
(d) All interest and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day)
occurring during the period such interest or fee is payable over a year
comprised of 360 days, except for interest on Loans denominated in British
Pounds Sterling which shall be calculated for actual days elapsed on the basis
of a 365 day year or unless otherwise specified herein.
(e) Changes in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect simultaneously with
each change in the Alternate Base Rate. Each Fixed Rate Advance shall bear
interest on the outstanding principal amount thereof from and including the
first
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day of the Interest Period applicable thereto to (but not including) the last
day of such Interest Period at the interest rate determined as applicable to
such Fixed Rate Advance. No Interest Period may end after, with respect to any
Term Loan, the Maturity Date, or, with respect to any Revolving Credit Loan,
the Facility Termination Date.
2.9 RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in this Agreement, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrowers (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of
the Lenders to changes in interest rates), declare that no Advance may be made
as, converted into or continued (after the expiration of the then current
Interest Period) as a Fixed Rate Advance, provided that, notwithstanding the
foregoing, any outstanding Eurocurrency Advance may be continued for an
Interest Period not to exceed one month after such notice to the Borrowers by
the Required Lenders. Upon and during the continuance of any Default, the
Required Lenders may, at their option, by notice to the Company (which notice
may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 8.2 requiring unanimous consent of the Lenders as to
changes and interest rates) declare that (i) each Fixed Rate Advance shall
bear interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period (with the Applicable Margin
automatically adjusted to the highest amount provided in the definition of
"Applicable Margin", notwithstanding where the Applicable Margin would
otherwise be set) plus 2% per annum, and (ii) each Floating Rate Advance and
any other amount due under this Agreement shall bear interest at a rate per
annum equal to the Floating Rate otherwise applicable to Floating Rate Loans
(with the Applicable Margin automatically adjusted to the highest amount
provided in the definition of "Applicable Margin", notwithstanding where the
Applicable Margin would otherwise be set) plus 2% per annum, provided that,
upon and during the continuance of any acceleration for any reason of any of
the Obligations, the interest rate set forth in clauses (i) and (ii) shall be
applicable to all Advances without any election or action on the part of the
Agent or any Lender.
2.10 PRO RATA PAYMENT, METHOD OF PAYMENT.
2.10.1 Each borrowing of Loans by the Company from the Revolving
Credit Lenders shall be made pro rata according to the Pro Rata Shares of such
Lenders in effect on the date of such borrowing. Each payment by the Company
on account of any facility fee shall be allocated by the Agent among the
Lenders in accordance with their respective Pro Rata Shares. Any reduction of
the U.S. Revolving Credit Commitments of the U.S. Revolving Credit Lenders
shall be allocated by the Agent among the U.S. Revolving Credit Lenders pro
rata according to the Pro Rata Shares of the U.S. Revolving Credit Lenders
with respect thereto. Except as otherwise provided in this Agreement, each
optional prepayment by the Company on account of principal or interest on its
Revolving Credit Loans and the Term Loan shall be allocated by the Agent pro
rata according to the respective outstanding principal amounts thereof. All
payments (including prepayments) to be made by the Company hereunder in
respect of amounts denominated in Dollars, whether on account of principal,
interest, fees or otherwise, shall be made, without setoff, deduction, or
counterclaim, in immediately available funds to the Agent at the Agent's
address specified pursuant to Article XIV, or at any other Lending
Installation of the Agent specified in writing by the Agent to the Company, by
12:00 P.M. (Detroit time) on the date when due. Each payment delivered to the
Agent for the account of any Lender shall be delivered promptly by the Agent
to such Lender in the same type of funds that the Agent received at its
address specified pursuant to Article XIV or at any Lending Installation
specified in a notice received by the Agent from such Lender. The Agent is
hereby authorized to charge the account of the Company maintained with Bank
One for each payment of principal, interest and fees as it becomes due
hereunder.
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2.10.2 Each borrowing of Multicurrency Loans by any Foreign Subsidiary
Borrower in any Available Foreign Currency shall be allocated by the Agent pro
rata according to the Pro Rata Shares of the Multicurrency Lenders with
respect to such Borrower in effect on the date of such Loan. Each payment by
any Foreign Subsidiary Borrower on account of any facility fee shall be
allocated by the Agent among the Lenders to such Foreign Subsidiary Borrower
in accordance with their respective Pro Rata Shares. Any reduction of any of
the Danish Revolving Credit Commitments, Euro Revolving Credit Commitments,
U.K. Revolving Credit Commitments or Canadian Revolving Credit Commitments
shall be allocated by the Agent pro rata according to the Pro Rata Shares of
the Multicurrency Lenders with respect thereto. Except as provided in Section
2.6, each payment (including each prepayment) by a Foreign Subsidiary Borrower
on account of principal of and interest on Multicurrency Loans shall be
allocated by the Agent pro rata according to the respective principal amounts
of the Multicurrency Loans then due and owing by such Borrower to each
Multicurrency Lender that made such Multicurrency Loans. All payments
(including prepayments) to be made by a Borrower on account of Multicurrency
Loans, whether on account of principal, interest, fees or otherwise, shall be
made without setoff, deduction, or counterclaim in the currency of such
Multicurrency Loan (in same day or other funds customarily used in the
settlement of obligations in such currency) to the Agent for the account of
the Multicurrency Lenders that made such Loans, at the payment office for such
Multicurrency Loans specified from time to time by the Agent by notice to the
Borrowers prior to 12:00 p.m. local time at such payment office on the due
date thereof. The Agent shall distribute such payment to the Multicurrency
Lenders entitled to receive the same promptly upon receipt in like funds as
received. The Agent shall distribute such payment to the Multicurrency Lenders
entitled to receive the same promptly upon receipt in like funds as received.
In the case of any payment of facility fees by Euro Borrowers under Section
2.5 and any prepayments required of Euro Borrowers under Section 2.6.3, the
Company shall designate which Euro Borrowers shall pay such amounts and,
absence such determination or if any Default has occurred and is continuing,
the Agent shall determine which Euro Borrower or Euro Borrowers shall make
such payments, provided that it is acknowledged that each Euro Borrower is
liable, without duplication, for the full amount of facility fees payable
under Section 2.5 and is obligated to make any required prepayments under
Section 2.6.3. to the extent such Euro Borrower has any aggregate Euro
Revolving Credit Outstandings.
2.11 TELEPHONIC NOTICES. Each Borrower hereby authorizes the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by
any Person or Persons the Agent or any Lender reasonably and in good faith
believes to be an Authorized Officer. Each Borrower agrees to deliver promptly
to the Agent a written confirmation, if such confirmation is requested by the
Agent or any Lender, of each telephonic notice signed by an Authorized
Officer. If the written confirmation differs in any material respect from the
action taken by the Agent and the Lenders, the records of the Agent and the
Lenders shall govern absent manifest error.
2.12 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Revolving Credit Commitment reduction
notice, Multicurrency Commitment reduction notice, Borrowing notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder.
The Agent will notify each Lender of the interest rate applicable to each
Fixed Rate Advance promptly upon determination of such interest rate and will
give each Lender prompt notice of each change in the Alternate Base Rate.
2.13 LENDING INSTALLATIONS. Each Lender may make and book its Loans
at any Lending Installation(s) selected by such Lender and may change its
Lending Installation(s) from time to time. All terms of this Agreement shall
apply to any such Lending Installation(s) and the Notes, if any, shall be
deemed held by each Lender for the benefit of such Lending Installation(s).
Each Lender may, by written
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or telex notice to the Agent and the applicable Borrower, designate one or more
Lending Installations which are to make and book Loans and for whose account
Loan payments are to be made.
2.14 NON-RECEIPT OF FUNDS BY THE AGENT. Unless a Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it
is scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan or (b) in the case of a Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption.
If such Lender or Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers
such amount at a rate per annum equal to (i) in the case of payment by a
Lender, the Federal Funds Effective Rate for the first five days and the
interest rate applicable to the relevant Loan for each day thereafter or (ii)
in the case of payment by a Borrower, the interest rate applicable to the
relevant Loan.
2.15 FACILITY LETTERS OF CREDIT.
2.15.1 OBLIGATION TO ISSUE. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of the
Borrowers herein set forth, the Issuers hereby agree to issue for the account
of a Borrower through such of the Issuer's Lending Installations or Affiliates
as the Issuer may determine, one or more Facility Letters of Credit in
accordance with this Section 2.15, from time to time during the period,
commencing on the Effective Date and ending five Business Days prior to the
Facility Termination Date.
2.15.2 CONDITIONS FOR ISSUANCE. In addition to being subject to the
satisfaction of the conditions contained in Sections 4.1 and 4.2, the
obligation of an Issuer to issue any Facility Letter of Credit is subject to
the satisfaction in full of the following conditions:
(a) the aggregate maximum amount then available for drawing under
Facility Letters of Credit issued by the Issuers, after giving effect to the
Facility Letter of Credit requested hereunder, shall not exceed any limit
imposed by law or regulation upon the Issuer;
(b) the requested Facility Letter of Credit has an expiration date at
least five Business Days prior to the Facility Termination Date;
(c) after giving effect to the Facility Letter of Credit requested
hereunder, the aggregate maximum amount then available for drawing under
Facility Letters of Credit issued by the Issuers, shall not exceed (i)
$20,000,000 in the case of Facility Letters of Credit for the account of the
Company, (ii) DKK10,000,000 in the case of Facility Letters of Credit for the
account of the Danish Borrower, (iii) EUR1,000,000 in the case of Facility
Letters of Credit for the account of a Euro Borrower, (iv) (pound)1,000,000 in
the case of Facility Letters of Credit for the account of the U.K. Borrower
and (v) the Equivalent Amount of $1,000,000 in the case of Facility Letters of
Credit for the account of the Canadian Borrower, and no prepayment would be
required under this Agreement and no provision of this Agreement would be
breached;
(d) the applicable Borrower shall have delivered to the applicable
Issuer at such times and in such manner as such Issuer may reasonably
prescribe such documents and materials as may be required
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pursuant to the terms of the proposed Letter of Credit and the proposed Letter
of Credit shall be reasonably satisfactory to such Issuer as to form and
content; and
(e) as of the date of issuance, no order, judgment or decree of any
Court, arbitrator or governmental authority shall purport by its terms to
enjoin or restrain such Issuer from issuing the Facility Letter of Credit and
no law, rule or regulation applicable to such Issuer and no request or
directive (whether or not having the force of law) from any governmental
authority with jurisdiction over such Issuer shall prohibit or request that
such Issuer refrain from the issuance of Letters of Credit generally or the
issuance of that Facility Letter of Credit.
2.15.3 PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT. (a) The
applicable Borrower shall give one of the Issuers and the Agent five Business
Days' prior written notice of any requested issuance of a Facility Letter of
Credit under this Agreement (except that, in lieu of such written notice, a
Borrower may give an Issuer (i) notice of such request by tested telex or
other tested arrangement satisfactory to such Issuer or (ii) telephonic notice
of such request if confirmed in writing by delivery to such Issuer (A)
immediately (x) of a telecopy of the written notice required hereunder which
has been signed by an Authorized Officer of such Borrower or (y) of a telex
containing all information required to be contained in such written notice and
(B) promptly (but in no event later than the requested time of issuance) of a
copy of the written notice required hereunder containing the original
signature of an Authorized Officer of such Borrower); such notice shall be
irrevocable and shall specify the stated amount and Available Foreign Currency
or U.S. Dollars of the Facility Letter of Credit requested, (which requested
currency shall be limited to the currency in which such Borrower may obtain
Loans under this Agreement), the effective date (which day shall be a Business
Day) of issuance of such requested Facility Letter of Credit, the date on
which such requested Facility Letter of Credit is to expire (which date shall
be a Business Day and shall in no event be later than the fifth day prior to
Facility Termination Date), the purpose for which such Facility Letter of
Credit is to be issued, and the Person for whose benefit the requested
Facility Letter of Credit is to be issued. The Agent shall give notice to each
applicable Revolving Credit Lender of the issuance of each Facility Letter of
Credit reasonably promptly after such Facility Letter of Credit is issued. At
the time such request is made, the requesting Borrower shall also provide the
applicable Issuer with a copy of the form of the Facility Letter of Credit it
is requesting be issued. Such notice, to be effective, must be received by
such Issuer not later than 2:00 p.m. (local time) or the time agreed upon by
such Issuer and such Borrower on the last Business Day on which notice can be
given under this Section 2.15.3.
(b) Subject to the terms and conditions of this Section 2.15.3 and
provided that the applicable conditions set forth in Sections 4.1 and 4.2
hereof have been satisfied, the Issuer shall, on the requested date, issue a
Facility Letter of Credit on behalf of the applicable Borrower in accordance
with such Issuer's usual and customary business practices.
(c) The Issuers shall not extend or amend any Facility Letter of
Credit unless the requirements of this Section 2.15 are met as though a new
Facility Letter of Credit was being requested and issued.
2.15.4 REIMBURSEMENT OBLIGATIONS. (a) Each Borrower agrees to pay to
the Issuer the amount of all Reimbursement Obligations, interest and other
amounts payable to the Issuer under or in connection with any Facility Letter
of Credit issued on behalf of such Borrower immediately when due, irrespective
of any claim, set-off, defense or other right which the Borrower, the Company
or any Subsidiary may have at any time against the Issuer or any other Person,
under all circumstances, including without limitation, any of the following
circumstances:
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(i) any lack of validity or enforceability of this Agreement or any of
the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which
any Borrower or any Subsidiary may have at any time against a beneficiary
named in a Facility Letter of Credit or any transferee of any Facility Letter
of Credit (or any Person for whom any such transferee may be acting), any
Issuer, any Lender, or any other Person, whether in connection with this
Agreement, any Facility Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transactions between
any Borrower or any Subsidiary and the beneficiary named in any Facility
Letter of Credit);
(iii) any draft, certificate or any other document presented under
the Facility Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any
draw under a Facility Letter of Credit. Such Borrower shall reimburse the
applicable Issuer for drawings under a Facility Letter of Credit issued by it
on behalf of such Borrower promptly after the payment by the Issuer. Any
Reimbursement Obligation with respect to any Facility Letter of Credit shall
bear interest from the date of the relevant drawings under the pertinent
Facility Letter of Credit at (i) in the case of such Obligations denominated
in U.S. Dollars, the interest rate for Floating Rate Loans or (ii) in the case
of such Obligations denominated in an Available Foreign Currency, at the
correlative floating rate of interest customarily applicable to similar
extensions of credit to corporate borrowers denominated in such currency in
the country of issue of such currency, as determined by the Agent. In addition
to its other rights, the Issuers shall also have all rights for
indemnification and reimbursement as each Lender is entitled under this
Agreement.
2.15.5 PARTICIPATION. (a) Immediately upon issuance by an Issuer of
any Facility Letter of Credit in accordance with the procedures set forth in
Section 2.15.3, (i) with respect to each U.S. Facility Letter of Credit, each
Revolving Credit Lender shall be deemed to have irrevocably and
unconditionally purchased and received from such Issuer, without recourse or
warranty, an undivided interest and participation equal to its Pro Rata Share
of such U.S. Facility Letter of Credit (including, without limitation, all
obligations of the applicable Borrower with respect thereto) and any security
therefor or guaranty pertaining thereto and (ii) with respect to each
Multicurrency Facility Letter of Credit, each Multicurrency Lender with
respect to the Borrower for the account of which such Multicurrency Facility
Letter of Credit is issued shall be deemed to have irrevocably and
unconditionally purchased and received from such Issuer, without recourse or
warranty, an undivided interest and participation equal to its Pro Rata Share
in such Multicurrency Facility Letter of Credit (including, without
limitation, all obligations of the applicable Borrower with respect thereto),
any security therefor or guaranty pertaining thereto; PROVIDED, that a Letter
of Credit issued by an Issuer shall not be deemed to be a Facility Letter of
Credit for purposes of this Section 2.15.5 if such Issuer shall have received
written notice from any Revolving Credit Lender on or before one Business Day
prior to the date of its issuance of such Letter of Credit that one or more of
the conditions contained in Sections 4.1 or 4.2 are not then satisfied, and,
in the event an Issuer receives such a notice, it shall have no further
obligation to issue any Letter of Credit
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until such notice is withdrawn by that Revolving Credit Lender or such
condition has been effectively waived in accordance with the provisions of this
Agreement.
(b) In the event that an Issuer makes any payment under any Facility
Letter of Credit and the applicable Borrower shall not have repaid such amount
to the Issuer pursuant to Section 2.15.4, the Issuer shall promptly notify the
Agent and each Revolving Credit Lender participating in such Letter of Credit
of such failure, and each Revolving Credit Lender participating in such Letter
of Credit shall promptly and unconditionally pay to the Agent for the account
of such Issuer the amount of such Lender's Pro Rata Share of the unreimbursed
amount of any such payment in such currency. If any Revolving Credit Lender
participating in such Facility Letter of Credit fails to make available to
such Issuer any amounts due to such Issuer pursuant to this Section 2.15.5(b),
such Issuer shall be entitled to recover such amount, together with interest
thereon (i) in the case of amounts denominated in U.S. Dollars, at the Federal
Funds Effective Rate, for the first three Business Days after such Lender
receives such notice and thereafter, at the Floating Rate, or (ii) in the case
of amounts denominated in an Available Foreign Currency, at a local cost of
funds rate for obligations in such currency as determined by the Agent for the
first three Business Days after such Lender receives such notice, and
thereafter at the floating rate of interest correlative to the Floating Rate
customarily applicable to similar extensions of credit to corporate borrowers
denominated in such currency in the country of issue of such currency, as
determined by the Agent, in either case payable (i) on demand, (ii) by setoff
against any payments made to such Issuer for the account of such Lender or
(iii) by payment to such Issuer by the Agent of amounts otherwise payable to
such Lender under this Agreement. The failure of any Revolving Credit Lender
to make available to the Agent its Pro Rata Share of the unreimbursed amount
of any such payment shall not relieve any other Revolving Credit Lender of its
obligation hereunder to make available to the Agent its Pro Rata Share of the
unreimbursed amount of any payment on the date such payment is to be made, but
no Revolving Credit Lender shall be responsible for the failure of any other
Revolving Credit Lender to make available to the Agent its Pro Rata Share of
the unreimbursed amount of any payment on the date such payment is to be made.
(c) Whenever the Issuer receives a payment on account of a
Reimbursement Obligation, including any interest thereon, it shall promptly
pay to each Revolving Credit Lender which has funded its participating
interest therein, in like funds as received an amount equal to such Lender's
Pro Rata Share thereof.
(d) The obligations of a Revolving Credit Lender to make payments to
the Agent with respect to a Facility Letter of Credit shall be absolute,
unconditional and irrevocable, not subject to any counterclaim, set-off,
qualification or exception whatsoever and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances.
(e) In the event any payment by a Borrower received by the Agent with
respect to a Facility Letter of Credit and distributed by the Agent to the
Lenders on account of their participations is thereafter set aside, avoided or
recovered from the Agent in connection with any receivership, liquidation,
reorganization or bankruptcy proceeding, each Revolving Credit Lender which
received such distribution shall, upon demand by the Agent, contribute such
Lender's Pro Rata Share of the amount set aside, avoided or recovered together
with interest at the rate required to be paid by the Agent upon the amount
required to be repaid by it.
2.15.6 COMPENSATION FOR FACILITY LETTERS OF CREDIT. The Issuer of a
Facility Letter of Credit shall have the right to receive from the Borrower
which requested issuance of such Facility Letter of Credit, solely for the
account of such Issuer, a fronting fee in an amount equal to 0.125% per annum
as well as the Issuer's reasonable and customary costs of issuing and
servicing the Facility Letters of Credit.
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In addition, such Borrower shall pay to the Agent for the account of each
Revolving Credit Lender participating in such Facility Letter of Credit a
non-refundable fee at a per annum rate in the amount shown on the Pricing
Schedule on Exhibit A applied to the face amount of the Facility Letter of
Credit, payable quarterly in advance to all Revolving Credit Lenders
participating in such Facility Letter of Credit (including the Issuers) ratably
from the date such Facility Letter of Credit is issued until its stated expiry
date.
2.15.7 LETTER OF CREDIT COLLATERAL ACCOUNT. Each Borrower hereby
agrees that it will, until the final expiration date of any Facility Letter of
Credit and thereafter as long as any amount is payable to the Lenders in
respect of any Facility Letter of Credit, maintain a special collateral
account (the "Letter of Credit Collateral Account") at the Agent's office at
the address specified pursuant to Article XIV, in the name of such Borrower
but under the sole dominion and control of the Agent, for the benefit of the
Lenders and in which such Borrower shall have no interest other than as set
forth in Section 8.1. The Agent will invest any funds on deposit from time to
time in the Letter of Credit Collateral Account in certificates of deposit of
the Agent having a maturity not exceeding 30 days. Nothing in this Section
2.15.7 shall either obligate the Agent to require any Borrower to deposit any
funds in the Letter of Credit Collateral Account or limit the right of the
Agent to release any funds held in the Letter of Credit Collateral Account
other than as required by Section 8.1, and the Borrower's obligations to
deposit funds in the Letter of Credit Collateral Account are limited to the
circumstances required by Section 8.1 after the occurrence of a Default and
during the continuance thereof.
2.15.8 NATURE OF OBLIGATIONS. (a) As among the Borrowers, the Issuers
and the Revolving Credit Lenders, each Borrower assumes all risks of the acts
and omissions of, or misuse of the Facility Letters of Credit by, the
respective beneficiaries of the Facility Letters of Credit requested by it. In
furtherance and not in limitation of the foregoing, the Issuers and the
Revolving Credit Lenders shall not be responsible for (i) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted
by any party in connection with the application for and issuance of any
Facility Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Facility Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason; (iii) failure of the beneficiary
of a Facility Letter of Credit to comply fully with conditions required in
order to draw upon such Facility Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise; (v) errors in interpretation of
technical terms; (vi) misapplication by the beneficiary of a Facility Letter
of Credit of the proceeds of any drawing under such Facility Letter of Credit;
or (vii) any consequences arising from causes beyond the control of the
Issuers or the Revolving Credit Lenders. In addition to amounts payable as
elsewhere provided in this Section 2.15, such Borrower hereby agrees to
protect, indemnify, pay and save the Agent, each Issuer and each Lender
harmless from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees)
arising from the claims of third parties against the Agent or such Issuer in
respect of any Facility Letter of Credit requested by such Borrower.
(b) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
Issuers or any Revolving Credit Lender under or in connection with the
Facility Letters of Credit or any related certificates, if taken or omitted in
good faith, shall not put such Issuer or such Lender under any resulting
liability to any Borrower or relieve any Borrower of any of its obligations
hereunder to the Issuers, the Agent or any Revolving Credit Lender.
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(c) Notwithstanding anything to the contrary contained in this
Section 2.15.8, a Borrower shall not have any obligation to indemnify the
Agent an Issuer and each Lender under this Section 2.15 in respect of any
liability incurred by each arising primarily out of the willful misconduct of
such Issuer, as determined by a court of competent jurisdiction, or out of the
wrongful dishonor by such Issuer of a proper demand for payment made under the
Facility Letters of Credit issued by such Issuer as determined by a court of
competent jurisdiction, unless such dishonor was made at the request of such
Borrower in writing, or out of the wrongful honor by such Issuer of a demand
for payment made under the Facility Letters of Credit issued by such Issuer
which demand for payment does not comply with the conditions required in order
to draw upon such Facility Letter of Credit as determined by a court of
competent jurisdiction, unless such dishonor was made at the request of such
Borrower in writing.
Section 2.16. SWING LOANS.
(a) MAKING OF SWING LOANS. The Agent may elect in its sole discretion
to make revolving loans (the "SWING LOANS") to any Borrower solely for the
Agent's own account, from time to time prior to the Facility Termination Date
up to an aggregate principal amount at any one time outstanding not to exceed
(i) in the case of Swing Loans to the Company, the lesser of $10,000,000 or
the unused amount of the Aggregate U.S. Revolving Credit Commitments, (ii) in
the case of Swing Loans to the Danish Borrower, the lesser of DKK10,000,000 or
the unused amount of the Aggregate Danish Revolving Credit Commitments, (iii)
in the case of Swing Loans to a Euro Borrower, the lesser of EUR5,000,000 or
the unused amount of the Aggregate Euro Revolving Credit Commitments, (iv) in
the case of Swing Loans to the U.K. Borrower, the lesser of (pound)5,000,000
or the unused amount of the Aggregate U.K. Revolving Credit Commitments and
(v) in the case of Swing Loans to the Canadian Borrower, the lesser of the
Equivalent Amount of $5,000,000 or the unused amount of the Aggregate Canadian
Revolving Credit Commitments,. The Agent may make Swing Loans (subject to the
conditions precedent set forth in Article IV), PROVIDED that the Agent has
received a request in writing or via telephone from an Authorized Officer of
such Borrower for funding of a Swing Loan no later than such time required by
the Agent, on the Business Day on which such Swing Loan is requested to be
made. The Agent shall not make any Swing Loan in the period commencing one
Business Day after the Agent becomes aware that one or more of the conditions
precedent contained in Section 4.2 are not satisfied and ending upon the
satisfaction or waiver of such condition(s). Each outstanding Swing Loan shall
be payable on the Business Day following demand therefor, with interest at the
rate agreed to between the Agent and such Borrower accrued thereon, shall be
secured as part of the Obligations by the Collateral and shall otherwise be
subject to all the terms and conditions applicable to Loans, except that all
interest thereon shall be payable to the Agent solely for its own account.
(b) SWING LOAN BORROWING REQUESTS. Each Borrower agrees to deliver
promptly to the Agent a written confirmation of each telephonic notice for
Swing Loans signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Agent, the
records of the Agent shall govern, absent manifest error.
(c) REPAYMENT OF SWING LOANS. At any time after making a Swing Loan,
the Agent may request such Borrower to, and upon request by the Agent such
Borrower shall, promptly request an Advance from all Revolving Credit Lenders
to such Borrower and apply the proceeds of such Advance to the repayment of
any Swing Loan owing by such Borrower not later than the Business Day
following the Agent's request. Notwithstanding the foregoing, upon the earlier
to occur of (a) three Business Days after demand is made by the Agent, and (b)
the Facility Termination Date, each Revolving Credit Lender to such Borrower
(other than the Agent) shall irrevocably and unconditionally purchase from the
Agent, without recourse or warranty, an undivided interest and participation
in such Swing Loan in an amount equal to such Lender's Pro Rata Share of such
Swing Loan and promptly pay such amount to the Agent in immediately available
funds (or, in the case of participations in Swing Loans denominated in an
Available Foreign
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Currency, same day funds). Such payment shall be made by the other Lenders
whether or not a Default is then continuing or any other condition precedent
set forth in Section 4.2 is then met and whether or not such Borrower has then
requested an Advance in such amount. If any Lender fails to make available to
the Agent, any amounts due to the Agent from such Lender pursuant to this
Section, the Agent shall be entitled to recover such amount, together with
interest thereon at the Federal Funds Effective Rate or such other local cost
of funds rate determined by the Agent with respect to any Swing Loan
denominated in any Available Foreign Currency for the first three Business Days
after such Lender receives notice of such required purchase and thereafter, at
the rate applicable to such Loan, payable (i) on demand, (ii) by setoff against
any payments made to the Agent for the account of such Lender or (iii) by
payment to the Agent by the Agent of amounts otherwise payable to such Lender
under this Agreement. The failure of any Lender to make available to the Agent
its Pro Rata Share of any unpaid Swing Loan shall not relieve any other Lender
of its obligation hereunder to make available to the Agent its Pro Rata Share
of any unpaid Swing Loan on the date such payment is to be made, but no Lender
shall be responsible for the failure of any other Lender to make available to
the Agent its Pro Rata Share of any unpaid Swing Loan.
2.17 APPLICATION OF PAYMENTS WITH RESPECT TO DEFAULTING LENDERS. No
payments of principal, interest or fees delivered to the Agent for the account
of any Defaulting Lender shall be delivered by the Agent to such Defaulting
Lender. Instead, such payments shall, for so long as such Defaulting Lender
shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby
authorized and directed by all parties hereto to hold such funds in escrow and
apply such funds as follows:
(i) FIRST, if applicable to any payments due to an Issuer pursuant to
Section 2.15.5 or the Agent under Section 2.16; and
(ii) SECOND, to Loans required to be made by such Defaulting Lender
on any Borrowing Date to the extent such Defaulting Lender fails to make such
Loans.
Notwithstanding the foregoing, upon the termination of the Commitments and the
payment and performance of all of the Obligations (other than those owing to a
Defaulting Lender), any funds then held in escrow by the Agent pursuant to the
preceding sentence shall be distributed to each Defaulting Lender, PRO RATA in
proportion to amounts that would be due to each Defaulting Lender but for the
fact that it is a Defaulting Lender.
2.18 COLLATERAL SECURITY; FURTHER ASSISTANCE.
(a) As security for the payment of the Obligations, the Company shall
execute and deliver, or cause to be executed and delivered, to the Lenders and
the Agent Loan Documents granting the following: first priority liens and
security interests, pursuant to Pledge Agreements, on 65% of the present and
future Capital Stock of certain present and future Foreign Subsidiaries and
Guaranties of certain present and future Domestic Subsidiaries such that, at
all times, the Domestic Subsidiaries which are not Guarantors and the Foreign
Subsidiaries that do not have 65% of their Capital Stock pledged pursuant to
Pledge Agreements do not, if considered in the aggregate as a single
Subsidiary, constitute a Significant Subsidiary. In connection with the
delivery of any such Guaranties and Pledge Agreement, the Company shall
provide such other documentation to the Agent, including, without limitation,
one or more opinions of counsel satisfactory to the Agent, corporate documents
and resolutions, which in the reasonable opinion of the Agent is necessary or
advisable in connection therewith.
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(b) Each of the Borrowers agrees that it will execute and deliver,
and cause each Guarantor to execute and deliver, promptly upon the request of
the Agent, such additional Collateral Documents and other agreements,
documents and instruments, each in form and substance satisfactory to the
Agent, sufficient to grant to the Agent, for the benefit of the relevant
Lenders and the Agent, the liens and security interests contemplated by this
Agreement and the Collateral Documents.
ARTICLE III
CHANGE IN CIRCUMSTANCES, TAXES
------------------------------
3.1 YIELD PROTECTION. If after the date hereof any law or any
governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any change or
modification thereof, or any interpretation thereof, or the compliance of any
Lender therewith,
(a) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from
payments due from any Borrower or changes the basis of
taxation of payments to any Lender in respect of its Loans
or other amounts due it hereunder (excluding income taxes
and franchise taxes (imposed in lieu of income taxes)
imposed on the Agent or any Lender as a result of a
present or former connection between the Agent or such
Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing
authority thereof or therein, other than any such
connection arising solely from the Agent or such Lender
having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or
any other Loan Document), or
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Fixed Rate Advances), or
(c) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining loans or
reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with loans,
or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference
to the amount of loans held or interest received by it, by
an amount deemed material by such Lender,
then, within 15 days of demand by such Lender, the affected Borrower shall pay
such Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender determines is attributable to making,
funding and maintaining its Loans or its Commitments.
3.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines
that the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change, then, within 15 days of
demand by such Lender, the Company shall pay such Lender the amount necessary
to compensate for any
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shortfall in the rate of return on the portion of such increased capital which
such Lender determines is attributable to this Agreement, its Loans or its
obligation to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "Change" means (a) any change after the date
of this Agreement in the Risk-Based Capital Guidelines or (b) any adoption of
or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in
the United States on the date of this Agreement, including transition rules,
and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted
prior to the date of this Agreement.
3.3 AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines that
maintenance of its Eurodollar Loans or Multicurrency Loans at a suitable
Lending Installation would violate any applicable law, rule, regulation, or
directive, whether or not having the force of law, or if the Required U.S.
Lenders with respect to Eurodollar Loans or the majority (by amount) of
Multicurrency Lenders with respect to any Multicurrency Loan to any Foreign
Subsidiary Borrower determine that (i) deposits of a currency, type and
maturity appropriate to match fund Eurodollar or Eurocurrency Loans are not
available or (ii) the interest rate applicable to a Eurocurrency Loan or
Eurodollar Loan does not accurately reflect the cost of making or maintaining
such Loans, then the Agent shall suspend the availability of the affected Type
of Loans and require any Loans of the affected Type to be repaid at the end of
the Interest Period for the affected Loan. Notwithstanding the satisfaction of
all conditions referred to in Article II and Article IV with respect to any
Advance in any Agreed Currency other than Dollars, if there shall occur on or
prior to the date of such Advance any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which would in the reasonable opinion of the Agent or the
Required Lenders make it impracticable for the Eurocurrency Loans comprising
such Advance to be denominated in the Agreed Currency specified by a borrower,
then the Agent shall forthwith give notice thereof to such Borrower and the
Lenders, and such Loans shall not be made.
3.4 FUNDING INDEMNIFICATION. If any payment of a Fixed Rate Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Fixed Rate
Advance is not made on the date specified by a Borrower for any reason other
than default by the Lenders, such Borrower will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without
limitation, any loss or cost in liquidating or employing deposits acquired to
fund or maintain the Fixed Rate Advance.
3.5 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Rate Loans and Multicurrency Rate
Loans to reduce any liability of a Borrower to such Lender under Sections 3.1
and 3.2 or to avoid the unavailability of a Type of Advance under Section 3.3,
so long as such designation is not disadvantageous to such Lender in any
material respect. Each Lender shall deliver a written statement of such Lender
to the applicable Borrower (with a copy to the Agent) as to the amount due, if
any, under Section 3.1, 3.2 or 3.4. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such
amount and shall state that amounts determined in accordance with such
procedures are being charged by such Lender to other borrowers with credit
facilities similar to this Agreement and credit characteristics comparable to
the Company as determined
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by such Lender and shall be final, conclusive and binding on the Borrowers in
the absence of manifest error. Determination of amounts payable under such
sections in connection with a Eurodollar Rate Loans and Multicurrency Rate
Loans shall be calculated as though each Lender funded such Loans through the
purchase of a deposit of the type and maturity corresponding to the deposit
used as a reference in determining the interest rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein, the
amount specified in the written statement of any Lender shall be payable on
demand after receipt by the applicable Borrower of such written statement. The
obligations of the Borrowers under Sections 3.1, 3.2, 3.4 and 3.6 shall survive
payment of the Obligations and termination of this Agreement. The Borrowers
shall have no obligation to compensate any Lender with respect to amounts
provided in Sections 3.1, 3.2, 3.4 or 3.6 with respect to any period prior to
the date which is 120 days prior to the date such Lender delivers its written
statement hereunder requesting compensation.
3.6 TAXES.
3.6.1 All payments of principal and interest made by the Borrowers
under this Agreement and any Note, if any, and all Reimbursement Obligations
with respect to Facility Letters of Credit shall be made free and clear of,
and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding income taxes and
franchise taxes (imposed in lieu of income taxes) imposed on the Agent or any
Lender as a result of a present or former connection between the Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Agent or such Lender having
executed, delivered or performed its obligations or received a payment under,
or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any
amounts payable to the Agent, any Issuer or any Lender hereunder or under any
Note or Facility Letter of Credit, the amounts so payable to the Agent, such
Issuer or such Lender shall be increased to the extent necessary to yield to
the Agent or such Lender (after payment of all Non-Excluded Taxes) interest or
any such other amounts payable hereunder at the rates and in the amounts
specified in this Agreement PROVIDED, HOWEVER, that (i) with respect to any
Loan or Facility Letter of Credit in U.S. Dollars to the Company, the Company
shall not be required to increase any such amounts payable to any Lender that
is not organized under the laws of the United States of America or a state
thereof if such Lender fails to comply with the requirements of Section 3.6.2,
(ii) with respect to any Loan or Facility Letter of Credit in any Available
Foreign Currency, a Borrower shall not be required to increase any such
amounts payable to any Lender if such Lender fails to comply with the
requirements of Section 3.6.3 and (iii) with respect to any Multicurrency Loan
or any Multicurrency Facility Letter of Credit, the Foreign Subsidiary
Borrower shall not be required to increase any such amounts payable to any
Lender or the Agent to the extent such Lender could avoid the payment of such
amount by changing its Lending Installation, provided that any such change in
any Lending Installation shall not be required if such Lender cannot change
its Lending Installation for any reason or such Lender has determined that it
is disadvantageous to it to do so. Whenever any Non-Excluded Taxes are payable
by a Borrower, as promptly as possible thereafter such Borrower shall send to
the Agent for its own account or for the account of such Lender, as the case
may be, a certified copy of an original official receipt received by such
Borrower showing payment thereof. If a Borrower fails to pay any Non-Excluded
Taxes when due to the appropriate taxing authority or fails to remit to the
Agent the required receipts or other required documentary evidence, such
Borrower shall indemnify the Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Agent or any Lender as a
result of any such failure. The agreements in this Section shall
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survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
3.6.2 Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(a) at least five Business Days before the date of the
initial payment to be made by the Company under this Agreement to
such Lender, deliver to the Company and the Agent (A) two duly
completed copies of United States Internal Revenue Service Form 1001
or 4224, or successor applicable form, as the case may be, certifying
that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes
and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is entitled
to an exemption from United States backup withholding tax;
(b) deliver to the Company and the Agent two further copies
of any such form or certification at least five Business Days before
the date that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Agent and the
Company;
(c) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Company or the Agent; and
(d) file amendments to such forms as and when required; and
each Lender (or Transferee) that is incorporated or organized under
the laws of the United States of America or a State thereof shall
provide two properly completed and duly executed copies of Form W-9,
or successor applicable form, at the times specified for delivery of
forms under this Section 3.6.2 unless an event (including, without
limitation, any change in treaty, law or regulation) has occurred
after the date such Person becomes a Lender hereunder which renders
all such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such form with respect to it and
such Lender so advises the Company and the Agent; PROVIDED, however,
that the Company may rely upon such forms provided to the Company for
all periods prior to the occurrence of such event. Each Person that
shall become a Lender or a Participant pursuant to Section 13.2
shall, upon the effectiveness of the related transfer, be required to
provide all of the forms, certifications and statements required
pursuant to this Section, PROVIDED that in the case of such
Participant, the obligations of such Participant pursuant to this
Section 3.6.2 shall be determined as if such Participant were a
Lender, except that such Participant shall furnish all such required
forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.6.3 Each Lender that is not incorporated or organized under the
laws of the jurisdiction (a) under the laws of which a Foreign Subsidiary
Borrower is incorporated or organized, or (b) in which such Foreign Subsidiary
Borrower is located, and, in either case, is a Lender to such Foreign
Subsidiary Borrower shall, upon request by such Foreign Subsidiary Borrower,
within a reasonable period of time after such request, deliver to such Foreign
Subsidiary Borrower or the applicable governmental or taxing authority, as the
case may be, any form or certificate required in order that any payment by
such Foreign Subsidiary Borrower under this Agreement or any Notes to such
Lender may be made free and clear of, and without deduction or withholding for
or on account of any Non-Excluded Tax (or to allow any such deduction or
withholding to be at a reduced rate) imposed on such payment under the laws of
the jurisdiction under which such Foreign Subsidiary Borrower is incorporated
or organized, PROVIDED that
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such Lender is legally entitled to complete, execute and deliver such form or
certificate and such completion, execution or submission would not prejudice
the legal position of such Lender.
3.6.4 Each Lender agrees to use reasonable efforts to avoid or to
minimize any amounts which might otherwise be payable pursuant to this Section
3.6, PROVIDED that such effort shall not impose on any such Lender any
additional costs or legal or regulatory burdens deemed by such Lender in its
reasonable judgment to be material. In the event that any Lender determines
that any event or circumstance that will lead to a claim by it under this
Section 3.6 has occurred or will occur, such Lender will use its best efforts
to so notify the Company in writing, PROVIDED that any failure to provide such
notice shall in no way impair the rights of any Lender to demand and receive
compensation under this Section 3.6.
3.7 SUBSTITUTION OF LENDER. If (a) the obligation of any Lender to
make or maintain Eurodollar Loans has been suspended pursuant to Section 3.3
when not all Lenders' obligations to do so have been suspended, (b) any Lender
has demanded compensation under Sections 3.1 or 3.2 when all Lenders have not
done so or (c) any Lender is a Defaulting Lender, the Company shall have the
right, if no Default then exists, to replace such Lender (a "Replaced Lender")
with one or more other lenders (collectively, the "Replacement Lender")
acceptable to the Agent, PROVIDED that (i) at the time of any replacement
pursuant to this Section 3.7, the Replacement Lender shall enter into one or
more Assignments pursuant to which the Replacement Lender shall acquire the
Commitments and outstanding Loans and other obligations of the Replaced Lender
and, in connection therewith, shall pay to the Replaced Lender in respect
thereof an amount equal to the sum of (A) the amount of principal of, and all
accrued interest on, all outstanding Loans of the Replaced Lender, (B) the
amount of all accrued, but theretofore unpaid, fees owing to the Replaced
Lender hereunder and (C) the amount which would be payable by the Borrowers to
the Replaced Lender pursuant to Section 3.4, if any, if the Borrowers prepaid
at the time of such replacement all of the Loans of such Replaced Lender
outstanding at such time and (ii) all obligations of the Borrowers then owing
to the Replaced Lender (other than those specifically described in clause (i)
above in respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the respective
Assignments, the payment of amounts referred to in clauses (i) and (ii) above
and, if so requested by the Replacement Lender, delivery to the Replacement
Lender of the appropriate Note or Notes executed by the Borrowers, the
Replacement Lender shall become a Lender hereunder and the Replaced Lender
shall cease to constitute a Lender hereunder. The provisions of this Agreement
(including without limitation Sections 3.4 and 10.7) shall continue to govern
the rights and obligations of a Replaced Lender with respect to any Loans made
or any other actions taken by such lender while it was a Lender. Nothing
herein shall release any Defaulting Lender from any obligation it may have to
any Borrower, the Agent, Issuer or any other Lender.
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1 CLOSING CONDITIONS. On the date hereof, the Borrowers shall
furnish, or shall cause to be furnished, to the Agent, with sufficient copies
for the Lenders, each of the following:
(a) Copies of the articles of incorporation or similar
organizational documents of each Borrower and, at
or promptly after the date hereof, each Guarantor,
together with all amendments thereto, and a
certificate of good standing or similar
governmental evidence of corporate existence, all
certified by the Secretary or an Assistant
Secretary of each Borrower and each Guarantor.
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(b) Copies, certified by the Secretary or an Assistant
Secretary or other duly authorized representative
of each Borrower and each Guarantor, of its by-laws
and of its Board of Directors' resolutions (and
resolutions of other bodies, if any are deemed
necessary by counsel for any Lender) authorizing
the execution of the Loan Documents.
(c) An incumbency certificate, executed by the
Secretary or an Assistant Secretary of each
Borrower and each Guarantor, which shall identify
by name and title and bear the signature of the
officers of such Borrower or such Guarantor
authorized to sign the applicable Loan Documents
and to make borrowings hereunder, upon which
certificate the Agent and the Lenders shall be
entitled to rely until informed of any change in
writing by such Borrower or such Guarantor.
(d) A certificate, signed by any Designated Financial
Officer of each Borrower, stating that on the
Effective Date no Default or Unmatured Default has
occurred and is continuing which has not been
waived.
(e) A written opinion of the Borrowers' and Guarantors'
counsel, addressed to the Lenders in substantially
the form of Exhibit G hereto.
(f) Written money transfer instructions, in
substantially the form of Exhibit H hereto,
addressed to the Agent and signed by an Authorized
Officer, together with such other related money
transfer authorizations as the Agent may have
reasonably requested.
(g) The Collateral Documents duly executed on behalf of
the Borrowers and the Guarantors, as the case may
be, granting to the Lenders and the Agent the
collateral and security intended to be provided
pursuant to Section 2.18, together with:
(i) At or promptly after the date hereof,
recordation, filing and other action (including payment of
any applicable taxes or fees) in such jurisdictions as the
Lenders or the Agent may deem necessary or appropriate with
respect to the Collateral Documents or the Agent thereunder,
together with record searches in such offices as the Lenders
or the Agent may request;
(ii) Stock certificates representing all of the
outstanding shares of Capital Stock to be pledged thereunder
and stock powers duly executed in blank; and
(iii) Information satisfactory to the Agent and the
Required Lenders regarding the Borrower's Year 2000 Program.
(h) Copies of all governmental and nongovernmental
consents, approvals, authorizations, declarations,
registrations or filings required on the part of
any Borrower or any Guarantor in connection with
the execution, delivery and performance of the Loan
Documents or the transactions contemplated hereby
or thereby or as a condition to the legality,
validity or enforceability of the Loan Documents,
certified as true and correct in full force and
effect as of the
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Effective Date by a duly authorized officer of the
Borrowers, or if none is required, a certificate of
such officer to that effect.
(i) The Guaranty executed by all of the Guarantors.
(j) Payment of all fees owing by the Borrowers and the
Guarantors as of the Effective Date.
(k) Satisfactory results of all due diligence required
by the Agent or the Required Lenders, including a
review of all contingent liabilities, a review of
contracts and insurance, a review of all
litigation, and environmental matters and other due
diligence.
(l) Executed payoff letters in form satisfactory to the
Agent with respect to all indebtedness other than
indebtedness permitted hereunder and providing for
the release of any Liens other than Liens permitted
hereunder.
(m) Copies of the unqualified audited consolidated
financial statements of the Company and its
Subsidiaries for the fiscal year ended December 31,
1997 and copies of the internally prepared
consolidated financial statements of the Company
and its Subsidiaries for the fiscal quarter ended
September 30, 1998, together with prospective
financial statements for the Company and its
Subsidiaries, in each case in form and substance
satisfactory to the Agent.
(n) Since December 31, 1997, evidence reasonably
satisfactory to the Agent that there has been no
change in the business, property, prospects,
condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries
which could reasonably be expected to have a
Material Adverse Effect.
(o) The satisfactory completion of the Allibert
Acquisition and all due diligence with respect to
the Company, its Subsidiaries, Allibert and the
Allibert Acquisition, including but not limited to,
the satisfactory review of all Allibert Acquisition
Documents, all terms, conditions and provisions of
the Allibert Acquisition, all final projections, all
pro forma and prospective financial statements, all
sources and uses statements, pro forma covenant
compliance projections and certificates, the
organizational structure of the Company and its
Subsidiaries after the Allibert Acquisition, all
environmental matters relating to Allibert, and the
form and structure, including the financial, legal,
accounting, tax and all other aspects of the
Allibert Acquisition, all of which shall be
satisfactory to the Agent and its counsel.
(p) Such other agreements and documents, and the
satisfaction of such other conditions as may be
required by the Agent, including without limitation
a subrogation and contribution agreement executed
by the Borrowers and the Guarantors, such funding
instructions, sources and uses certificate and
other certificates required by the Agent and such
evidence of the perfection and priority of all
liens and security interests as required by the
Agent.
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4.2 EACH ADVANCE. The Lenders shall not be required to make any Loans
nor shall any Issuer be required to issue any Letter of Credit, unless on the
applicable Borrowing Date, both before and after giving effect on a pro forma
basis to such Loan or Letter of Credit:
(a) There exists no Default or Unmatured Default.
(b) The representations and warranties contained in Article V are
true and correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall be true and correct on and as
of such earlier date.
(c) All legal matters incident to the making of such Loans or the
issuance of such Facility Letter of Credit shall be satisfactory to the Agent
and its counsel.
(d) If such Loan is an initial Loan to a Foreign Subsidiary Borrower,
the Agent shall have received a Foreign Subsidiary Opinion in respect of such
Foreign Subsidiary Borrower and such other documents requested by the Agent.
Each Borrowing notice with respect to each borrowing by a Borrower
hereunder or each request for an issuance of a Facility Letter of Credit shall
constitute a representation and warranty by the Company and such Borrower that
the conditions contained in Sections 4.2(a), (b) and (c) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Company and the Foreign Subsidiary Borrowers (insofar as
the representations and warranties set forth below relate to such Foreign
Subsidiary Borrower) represents and warrants to the Lenders that:
5.1 CORPORATE EXISTENCE AND STANDING. Each of the Company and its
Subsidiaries is a corporation, partnership, limited liability company or other
organization, duly organized and validly existing under the laws of its
jurisdiction of organization and has all requisite corporate, partnership,
company or similar authority to conduct its business as presently conducted.
5.2 AUTHORIZATION AND VALIDITY. Each Borrower has the corporate or
other power and authority and legal right to execute and deliver the Loan
Documents and to perform its obligations thereunder. The execution and
delivery by each of the Borrowers of the Loan Documents and the performance of
their obligations thereunder have been duly authorized by proper corporate
proceedings, and the Loan Documents to which they are a party constitute
legal, valid and binding obligations of the Borrowers enforceable against the
Borrowers in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
5.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by the Borrowers of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Company or any of its Subsidiaries or the
Company's or any Subsidiary's articles of incorporation, code of regulations
or by-laws or the provisions of any indenture, instrument or
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agreement to which the Company or any of its Subsidiaries is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in the creation or imposition of any
Lien (other than any Lien permitted by Section 6.14) in, of or on the Property
of the Company or a Subsidiary pursuant to the terms of any such indenture,
instrument or agreement. Other than those which have been obtained, no order,
consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect of
any governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents.
5.4 FINANCIAL STATEMENTS. All financial statements of the Company and
its Subsidiaries heretofore delivered to the Lenders were prepared in
accordance with generally accepted accounting principles in effect on the date
such statements were prepared and fairly present in all material respects the
consolidated financial condition and operations of the Company and its
Subsidiaries.
5.5 MATERIAL ADVERSE CHANGE. Since December 31, 1997, there has been
no change in the business, Property, prospects, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect.
5.6 TAXES. The Company and its Subsidiaries have filed all United
States federal tax returns and all other material tax returns which are
required to be filed by any Governmental Authority and have paid all taxes
shown as due pursuant to said returns or pursuant to any assessment received
by the Company or any of its Subsidiaries by any Governmental Authority,
except such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided in accordance with Agreement
Accounting Principles and as to which no Lien (other than as permitted by
Section 6.14) exists. No tax liens have been filed and no claims are being
asserted with respect to any such taxes, other than as permitted by Section
6.14. The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of any taxes or other governmental charges are
adequate.
5.7 LITIGATION AND CONTINGENT OBLIGATIONS. Except as set forth on
Schedule 5.7 hereto, there is no litigation, arbitration or proceeding pending
or, to the knowledge of any of the Company's executive officers, any
governmental investigation or inquiry pending or any litigation, arbitration,
governmental investigation, proceeding or inquiry threatened against or
affecting the Company or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect or which seeks to prevent, enjoin
or delay the making of the Loans or Advances. Other than any liability
incident to such litigation, arbitration or proceedings listed on Schedule
5.7, the Company and its Subsidiaries have no material contingent obligations
not provided for or disclosed in the financial statements referred to in
Section 5.4.
5.8 SUBSIDIARIES. Schedule 5.8 hereto contains an accurate list of
all Subsidiaries of the Company as of the date of this Agreement, setting
forth their respective jurisdictions of incorporation or organization and the
percentage of their respective capital stock owned by the Company or other
Subsidiaries. All of the issued and outstanding shares of Capital Stock of
such Subsidiaries held by the Company have been duly authorized and issued and
are fully paid and non-assessable.
5.9 ERISA. Each member of the Controlled Group has fulfilled its
material obligations under the minimum funding standards of ERISA and the Code
with respect to each Plan. Each member of the Controlled Group is in material
compliance with the applicable provisions of ERISA and the Code with respect
to each Plan except where such non compliance would not have a Material
Adverse Effect. Each Plan complies in all material respects with all
applicable requirements of law and regulations, no
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Reportable Event which has or may result in any material liability has occurred
with respect to any Plan, and no steps have been taken to reorganize or
terminate any Single Employer Plan. No member of the Controlled Group has (i)
sought a waiver of the minimum funding standard under Section 412 of the Code
in respect of any Plan, (ii) failed to make any contribution or payment to any
Single Employer Plan or Multiemployer Plan, or made any amendment to any Plan,
which has resulted or could result in the imposition of a Lien or the posting
of a bond or other security under ERISA or the Code or (iii) incurred any
material, actual liability under Title IV of ERISA other than a liability to
the PBGC for premiums under Section 4007 of ERISA.
5.10 ACCURACY OF INFORMATION. No information, exhibit or report
furnished by the Company or any of its Subsidiaries in writing to the Agent or
to any Lender in connection with the negotiation of the Loan Documents
contained any material misstatement of fact or omitted to state a material
fact or any fact necessary to make the statements contained therein not
misleading in light of the circumstances in which made, as of the date
thereof.
5.11 REGULATIONS T, U AND X. Neither the Company nor any of its
Subsidiaries extends or maintains, in the ordinary course of business, credit
for the purpose, whether immediate, incidental, or ultimate, of buying or
carrying margin stock (within the meaning of Regulations T, U or X of the
Board of Governors of the Federal Reserve System), and no part of the proceeds
of any Advance will be used for the purpose, whether immediate, incidental, or
ultimate, of buying or carrying any such margin stock or maintaining or
extending credit to others for such purpose. Any Capital Stock being acquired
in connection with the Allibert Acquisition is not "margin stock" within the
meaning of Regulations T, U or X of the Board of Governors of the Federal
Reserve System and is not "marginable OTC stock" or "foreign margin stock"
within the meaning of Regulation T of the Board of Governors of the Federal
Reserve System. After applying the proceeds of each Advance, such margin stock
will not constitute more than 25% of the value of the assets (either of the
Company alone or of the Company and its Subsidiaries on a consolidated basis)
that are subject to any provisions of any Loan Document that may cause the
Advances to be deemed secured, directly or indirectly, by such margin stock.
The Company and its Subsidiaries are in compliance with Section 6.2.
5.12 MATERIAL AGREEMENTS. Neither the Company nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary is 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 (including any
agreement or instrument evidencing or governing Indebtedness), which default
could reasonably be expected to have a Material Adverse Effect.
5.13 COMPLIANCE WITH LAWS. The Company and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property if failure to comply
could reasonably be expected to have a Material Adverse Effect.
5.14 PLAN ASSETS; PROHIBITED TRANSACTIONS. The Company and its
Subsidiaries have not engaged in any prohibited transaction within the meaning
of Section 406 of ERISA or Section 4975 of the Code which could result in any
material liability; and neither the execution of this Agreement nor the making
of Loans (assuming that the Lenders do not fund any of the Loans with any
"plan assets" as defined above) hereunder give rise to a non-exempt prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975 of the
Code.
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5.15 ENVIRONMENTAL MATTERS. In the ordinary course of its business,
the officers of the Company consider the effect of Environmental Laws on the
business of the Company and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Company
and its Subsidiaries due to Environmental Laws. On the basis of this
consideration, the Company has reasonably concluded that Environmental Laws
cannot reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment,
which non-compliance or remedial action could reasonably be expected to have a
Material Adverse Effect.
5.16 INVESTMENT COMPANY ACT. No Borrower is an "investment company"
or a company "controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
5.17 PUBLIC UTILITY HOLDING COMPANY ACT. No Borrower is a "holding
company" or a "subsidiary company" of a "holding company", or an "affiliate"
of a "holding company" or of a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
5.18 FOREIGN SUBSIDIARY BORROWERS. (a) Except as described on Schedule
5.8, each Foreign Subsidiary Borrower is a direct or indirect Wholly-Owned
Subsidiary of the Company (excluding director qualifying shares); and
(b) Each Foreign Subsidiary Borrower will have, upon becoming a party
hereto, all right and authority to enter into this Agreement and each other
Loan Document to which it is a party, and to perform all of its obligations
under this and each other Loan Document to which it is a party; all of the
foregoing actions will have been taken prior to any request for Loans by such
Borrower, duly authorized by all necessary action on the part of such
Borrower, and when such Foreign Subsidiary Borrower becomes a party hereto,
this Agreement and each other Loan Document to which it is a party will
constitute valid and binding obligations of such Borrower enforceable in
accordance with their respective terms except as such terms may be limited by
the application of bankruptcy, moratorium, insolvency and similar laws
affecting the rights of creditors generally and by general principles of
equity.
5.19 INSURANCE. The Company maintains fire and extended coverage
insurance on its and each Domestic Subsidiary's equipment and inventory
containing a lender's loss payable, additional insured and mortgagee clause in
favor of the Agent and providing that said insurance will not be terminated
except after at least 30 days' written notice from the insurance company to
the Agent. The certificate signed by the President or Chief Financial Officer
of the Company, that attests to the existence and adequacy of (as comparable
to insurance customarily maintained by similar companies in the Company's line
of business), and summarizes, the Property and casualty insurance program
carried by the Company and that has been furnished by the Company to the Agent
and the Lenders, is complete and accurate. This summary includes the insurer's
or insurers' name(s), policy number(s), expiration date(s), amount(s) of
coverage, type(s) of coverage, exclusion(s), and deductibles. This summary
also includes similar information, and describes any reserves, relating to any
self-insurance program that is in effect.
5.20 OWNERSHIP OF PROPERTIES. On the Effective Date, the Company and
its Subsidiaries will have good title, free of all Liens (other than as
permitted by Section 6.14), to all Property and assets reflected in the
financial statements as owned by it.
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5.21 SOLVENCY. (i) Immediately after the consummation of the
transactions to occur on the Effective Date and immediately following the
making of each Loan, if any, made on the Effective Date and after giving
effect to the application of the proceeds of such Loans, (a) the fair value of
the assets of the Company and its Subsidiaries on a consolidated basis, at a
fair valuation, will exceed the debts and liabilities, subordinated,
contingent or otherwise, of the Company and its Subsidiaries on a consolidated
basis; (b) the present fair saleable value of the Property of the Company and
its Subsidiaries on a consolidated basis will be greater than the amount that
will be required to pay the probable liability of the Company and its
Subsidiaries on a consolidated basis on their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Company and its Subsidiaries on a
consolidated basis will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) the Company and its Subsidiaries on a
consolidated basis will not have unreasonable small capital with which to
conduct the business in which they are engaged as such businesses are now
conducted and are proposed to be conducted after the Effective Date.
5.22 COLLATERAL DOCUMENTS. Except as set forth on Schedule 6.14, the
Collateral Documents grant a first priority, perfected and enforceable lien
and security interest on all Collateral subject to the Collateral Documents,
which lien and security interest is not void or voidable.
5.23 LABOR CONTROVERSIES. There are no labor controversies pending
or, to the best of the Company's knowledge, threatened against the Company or
any Subsidiary, which could have a Material Adverse Effect.
5.24 BURDENSOME OBLIGATIONS. The Company does not presently
anticipate that future expenditures needed to meet the provisions of federal
or state statutes, orders, rules or regulations will be so burdensome as to
cause a Material Adverse Effect.
5.25 INTELLECTUAL PROPERTY. Set forth on SCHEDULE 5.27 is a complete
and accurate list of all patents, trademarks, trade names, service marks and
copyrights, and licenses (other than those licenses implicit in purchase
orders and supply agreements of customers and suppliers) thereof, of the
Company and each of its Subsidiaries showing as of the Effective Date the
jurisdiction in which registered, the registration number and the date of
registration. Each of the Company and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, service marks, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted (the "INTELLECTUAL PROPERTY") except for those the failure to own or
license which could not be reasonably be expected to have a Material Adverse
Effect. No claim has been asserted and is pending by any Person challenging or
questioning the use by the Company or any of its Subsidiaries of any such
Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Company or any of its Subsidiaries know of
any valid basis for any such claim. To the knowledge of the Company, the use
of such Intellectual Property by the Company and each of its Subsidiaries does
not infringe on the rights of any Person, and, to the knowledge of the
Company, no such Intellectual Property of the Company and its Subsidiaries has
been infringed, misappropriated or diluted by any other Person except for such
claims, infringements, misappropriation and dilution that, in the aggregate,
could not have a Material Adverse Effect.
5.26 YEAR 2000. The Borrower has made a full and complete assessment
of the Year 2000 Issues and has a realistic and achievable program for
remediating the Year 2000 Issues on a timely basis
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(the "Year 2000 Program"). Based on such assessment and on the Year 2000
Program the Borrowers do not reasonably anticipate that Year 2000 Issues will
have a Material Adverse Effect.
5.27 ALLIBERT ACQUISITION. On the Effective Date, the Company will
complete the Allibert Acquisition in accordance with the Allibert Acquisition
Documents and in accordance with all laws and regulations and all other
Requirements of Law, and will acquire, free and clear of all Liens, good and
marketable title to all assets being acquired pursuant to the Allibert
Acquisition and the Allibert Acquisition Documents. Complete and correct
copies of all Allibert Acquisition Documents have been delivered to the Agent
on or before the Effective Date, and the Company has satisfied all conditions
precedent to completing the Allibert Acquisition. The aggregate consideration
paid or payable in connection with the Allibert Acquisition, including without
limitation any Indebtedness assumed in connection therewith or other
guarantees or other liabilities incurred in connection therewith, will not
exceed the Equivalent Amount of $210,000,000.
5.28 DILLEN ACQUISITION. On the First Amendment Effective Date, the
Company will complete the Dillen Acquisition in accordance with the Dillen
Acquisition Documents and in accordance with all laws and regulations and all
other Requirements of Law, and will acquire, free and clear of all Liens other
than Liens described on Schedule 6.14 hereto, good and marketable title to all
assets being acquired pursuant to the Dillen Acquisition and the Dillen
Acquisition Documents. Complete and correct copies of all Dillen Acquisition
Documents have been delivered to the Agent on or before the Effective Date,
and the Company has satisfied all conditions precedent to completing the
Dillen Acquisition. The aggregate consideration paid or payable in connection
with the Dillen Acquisition, including without limitation any Indebtedness
assumed in connection therewith or other guarantees or other liabilities
incurred in connection therewith, will not exceed the Equivalent Amount of
$______________.
ARTICLE VI
COVENANTS
---------
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 FINANCIAL REPORTING. The Company will maintain, for itself and
each Subsidiary, a system of accounting enabling it to provide consolidated
financial statements for the Company and each Subsidiary in accordance with
Agreement Accounting Principles and furnish to the Lenders:
(i) Within 90 days after the close of each of its fiscal
years, an unqualified (except for qualifications relating to changes
in accounting principles or practices reflecting changes in generally
accepted accounting principles and required or approved by the
Company's independent certified public accountants) audit report
certified by nationally recognized independent certified public
accountants certifying that the Company's consolidated financial
statements are fairly stated in all material respects, in accordance
with Agreement Accounting Principles for itself and the Subsidiaries,
including balance sheets as of the end of such period, related income
statements, and statements of cash flows, 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 Unmatured Default, or
if, in the opinion of such accountants, any Default or Unmatured
Default shall exist, stating the nature and status thereof.
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(ii) Within 45 days after the close of the first three
quarterly periods of each of its fiscal years, for itself and the
Subsidiaries, consolidated unaudited balance sheets as at the close
of each such period and related income statement and a statement of
cash flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by a Designated Financial
Officer of the Company.
(iii) Together with the financial statements required under
Sections 6.1(i) and (ii) a compliance certificate in substantially
the form of Exhibit I hereto signed by a Designated Financial Officer
of the Company showing the calculations necessary to determine
compliance with this Agreement and stating that no Default or
Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(iv) As soon as possible and in any event within 5 days
after (x) receipt by the Company, and (y) a determination is made by
the Company concerning a Material Adverse Effect with respect
thereto, a copy of (a) any notice or claim to the effect, that the
Company or any of its Subsidiaries is or may be liable to any Person
as a result of the release by the Company, any of its Subsidiaries,
or any other Person of any toxic or hazardous waste or substance into
the environment, (b) any notice alleging any violation of any
federal, state or local environmental, health or safety law or
regulation by the Company or any of its Subsidiaries, and (c) any
notice of occurrence of any Reportable Event, which, in each case,
could reasonably be expected to have a Material Adverse Effect.
(v) Promptly after the sending or filing thereof, copies of
all reports, proxy statements and financial statements which the
Company or any of its Subsidiaries sends to or files with any of
their respective security holders or any securities exchange or the
Securities and Exchange Commission or any successor agency thereof
pertaining to the Company or any of its Subsidiaries as the issuer of
securities:
(vi) Promptly and in any event within 10 Business Days after
receipt, a copy of any management letter or comparable analysis
prepared by the auditors for the Company or any of its Subsidiaries;
(vii) Within 90 days before the end of each fiscal year of
the Company, a budget and forecast prepared by the Company for the
following fiscal year in detail satisfactory to the Agent;
(viii) Promptly, such other information respecting the
business, properties, operations or condition, financial or
otherwise, of the Company or any of their respective Subsidiaries as
any Lender or the Agent may from time to time reasonably request.
6.2 USE OF PROCEEDS. The Borrowers will use the initial Advances as
described on Schedule 6.2. The Company will, and will cause each Subsidiary
to, use the proceeds of all other Advances, for working capital or general
corporate purposes and to repay outstanding Advances. None of the proceeds of
any of the Advances made under this Agreement will be used, whether directly
or indirectly, in violation of any applicable law or regulation, including
without limitation Regulations T, U or X, or to purchase or carry any Margin
Stock.
6.3 NOTICE OF DEFAULT. The Company will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence
of any Default or Unmatured Default and of any other development, financial or
otherwise (including, without limitation, developments with respect to Year
2000 Issues), which could reasonably be expected to have a Material Adverse
Effect.
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6.4 CONDUCT OF BUSINESS. The Company will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
fields of enterprise as it is presently conducted and to do all things
necessary to remain duly incorporated, validly existing and in good standing
in its jurisdiction of organization (subject to Section 6.11) and maintain all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted, except in any such case where such failure would not
reasonably be expected to have a Material Adverse Effect.
6.5 TAXES. The Company will, and will cause each Subsidiary to,
timely file, complete and correct United States federal and applicable
foreign, state and local tax returns required by law and pay when due all
taxes, assessments and governmental charges and levies upon it or its income,
profits or Property, except those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside in accordance with Agreement Accounting Principles and those which
the failure to file or pay would not reasonably be expected to have a Material
Adverse Effect.
6.6 INSURANCE. The Company will, and will cause each Subsidiary to,
maintain in full force and effect insurance with responsible and reputable
insurance companies or associations in such amounts, on such terms and
covering such risks, including fire and other risks insured against by
extended coverage, as is usually carried by companies engaged in similar
businesses and owning similar properties similarly situated and maintain in
full force and effect public liability insurance, insurance against claims for
personal injury or death or property damage occurring in connection with any
of its activities or any of any properties owned, occupied or controlled by
it, in such amount as it shall reasonably deem necessary, and maintain such
other insurance as may be required by law or as may be requested by the Agent,
provided that it is acknowledged that the Company and its Subsidiaries may
continue to self insure in connection with health insurance and workers
compensation consistent with their past practices.
6.7 COMPLIANCE WITH LAWS. The Company will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject except
for such noncompliance as would not reasonably be expected to have a Material
Adverse Effect.
6.8 MAINTENANCE OF PROPERTIES. The Company will, and will cause each
Subsidiary to, do all things reasonably necessary to maintain, preserve,
protect and keep its material Property in good repair, working order and
condition (ordinary wear and tear excepted), and make all reasonably necessary
and proper repairs, renewals and replacements.
6.9 INSPECTION. The Company will, and will cause each Subsidiary to,
permit the Agent and the Lenders, directly or by their respective
representatives and agents, to inspect (at no cost to any Borrower and subject
to confidentiality requirements of Section 10.12) any of the Property,
corporate books and financial records of the Company and each Subsidiary, to
examine and make copies of the books of accounts and other financial records
of the Company and each Subsidiary, and to discuss the affairs, finances and
accounts of the Company and each Subsidiary with, and to be advised as to the
same by, their respective officers or reasonable prior notice at such
reasonable times and intervals as the Agent or any Lender, as the case may be,
may designate.
6.10 INDEBTEDNESS. The Company will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness (including
without limitation Contingent Obligations), except:
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(i) The Loans, the Facility Letters of Credit and the
other Obligations.
(ii) Indebtedness of the Company or any Domestic
Subsidiary which is a Guarantor owing to the
Company or any of its Subsidiaries.
(iii) Contingent Obligations with respect to the
endorsement of instruments for deposit or
collection in the ordinary course of business.
(iv) Indebtedness of the Borrowers under Rate Hedging
Agreements.
(v) Unsecured long term indebtedness of the Company
incurred at one time in aggregate principal amount
not to exceed $100,000,000 pursuant to a private or
public placement of debt, provided that the
maturities, pricing, defaults, covenants and other
terms and provisions of such Indebtedness are
satisfactory to the Required Lenders.
(vi) Indebtedness in aggregate outstanding amount not to
exceed $5,000,000, as reduced from time to time,
assumed in connection with the Dillen Acquisition.
(vii) Other Indebtedness; PROVIDED that, at the time of
the creation, incurrence or assumption of such
other Indebtedness and after giving effect thereto,
no Default or Unmatured Default exists and the
aggregate amount of all such other Indebtedness of
the Company and its Subsidiaries does not exceed an
amount equal to $35,000,000.
(viii) Any refunding or refinancing of any Indebtedness
referred to in clauses (ii) through (vi) above,
PROVIDED that any such refunding or refinancing of
such Indebtedness does not increase the principal
amount thereof, shorten the maturities thereof or
make any of the other terms or provisions thereof
materially more onerous on the Company or any of
its Subsidiaries.
6.11 MERGER. The Company will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that (A) a
Subsidiary may merge into the Company or a Wholly-Owned Subsidiary, (B) if any
such merger involves the Company, the Company shall be the surviving
corporation, and (C) if any such merger involves the Company, the Consolidated
Net Worth of the Company immediately after the merger would be equal to or
greater than its Consolidated Net Worth immediately preceding such merger.
6.12 SALE OF ASSETS. The Company will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property, to any other
Person (other than the Company or any Guarantor), except:
(i) Sales of inventory in the ordinary course of business.
(ii) Sales or other dispositions in the ordinary course of
business of fixed assets for the purpose of replacing such fixed
assets, provided that such fixed assets are replaced within 180 days
of such sale or other disposition with other fixed assets which have
a fair market value not materially less than the fixed assets sold or
otherwise disposed of.
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(iii) Other leases, sales (including sale leasebacks) or
other dispositions of its Property that, together with all other
Property of the Company and its Subsidiaries previously leased, sold
or disposed of (other than as provided in clauses (i) through (ii)
above) as permitted by this Section during the twelve-month period
ending with the month prior to the month in which any such lease,
sale or other disposition occurs, do not constitute a Substantial
Portion of the Property of the Company and its Subsidiaries.
Notwithstanding anything in this Section 6.12 to the contrary, (a) no such
leases, sales or other dispositions of property may be made (other than
pursuant to clause (i) above) if any Default or Unmatured Default has occurred
and is continuing, and (b) all leases, sales and other dispositions of
Property at any time shall be for not less than the fair market value of such
Property as determined in good faith by the Company and at least 75% of the
consideration therefor received by the Company or such Subsidiary shall be in
the form of cash.
6.13 INVESTMENTS AND ACQUISITIONS. The Company will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries which are not Wholly-Owned Subsidiaries), or commitments
therefor, or to create any Subsidiary or to become or remain a partner in any
partnership or joint venture, or make any Acquisition of any Person, except:
(i) the Company or any of its Subsidiaries may invest in
cash and Cash Equivalents.
(ii) the Company and its Subsidiaries may acquire and
hold receivables owing to them in the ordinary course of business
and payable or dishargeable in accordance with customary trade
terms.
(iii) loans and advances to employees for
business-related travel expenses, moving expenses and other similar
expenses, in each case incurred in the ordinary course of business
and consistent with past practices.
(iv) Existing Investments in Subsidiaries and other
Investments in existence on the Effective Date and described in
Schedule 6.13 hereto.
(v) Loans and advances by the Company or any of its
Subsidiaries to the Company or to any Guarantor.
(vi) The Dillen Acquisition, in accordance with the terms
of this Agreement.
(vii) Other Investments and Acquisitions in any fiscal
year, provided that the sum of (x) the aggregate amount of such
Investments in such fiscal year, plus (y) the aggregate amount of
consideration paid or payable for such Acquisitions in such fiscal
year and (z) all dividends, redemptions and distributions permitted
by Section 6.16 hereof in such fiscal year, do not exceed in the
aggregate an amount equal to the sum of $25,000,000 plus the
difference, if positive, of $25,000,000 minus such other
Investments, Acquisitions and dividends, redemptions and
distributions in the fiscal year prior to such fiscal year.
Notwithstanding anything herein to the contrary, neither the Company nor any
of its Subsidiaries shall make any Acquisition unless (A) the target of such
Acquisition is in the same line of business as the Company, provided that up
to $10,000,000 in the aggregate may be paid by the Company or any of its
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Subsidiaries in connection with Acquisitions pursuant to which the target is
not in the same line of business as the Company, (B) the Board of Directors
(or similar governing body) and the management of the target of such
Acquisition has approved such Acquisition and (c) no Default or Unmatured
Default would exist after giving effect to such Acquisition on a pro forma
basis acceptable to the Agent.
6.14 LIENS. The Company will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of
the Company or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings and for which
adequate reserves in accordance with Agreement Accounting Principles
shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more than
90 days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves shall have
been set aside on its books.
(iii) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the Company
or the Subsidiaries.
(v) Liens existing on the First Amendment Effective Date and
described in Schedule 6.14 hereto.
(vi) Liens in favor of the Company or any Lien granted by
any Subsidiary in favor of a Guarantor.
(vii) Liens in favor of the Agent, securing the Obligations,
granted pursuant to any Collateral Document.
(viii) Liens, whether pursuant to purchase money loans or
Capitalized Leases, and including those listed on Schedule 6.14,
securing aggregate Indebtedness of not more than $10,000,000, either
(A) placed upon equipment or machinery used in the ordinary course of
business of the Company or any Subsidiary at the time of (or within
20 days after) the acquisition thereof by the Company or any such
Subsidiary to secure Indebtedness incurred to pay all or a portion of
the purchase price thereof, PROVIDED that the Lien encumbering the
equipment or machinery so acquired does not encumber any other assets
of the Company or any such Subsidiary; or (B) existing on property or
other assets at the time acquired by the Company or any Subsidiary or
on assets of a Person at the time such Person first becomes a
Subsidiary of the Company, provided that (v) any such Liens were not
created at the time of or in contemplation of the acquisition of such
assets or Person by the Company or any of its Subsidiaries, (w) in
the case of any such acquisition of a Person, any such lien attaches
only to the property and assets of such Person, (x) in the case of
any such acquisition of property or assets by the Company or any
Subsidiary, any such Lien attaches only to the property and assets so
acquired and not to any
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other property or assets of the Company or any Subsidiary, (y) the
Indebtedness secured by any such Lien does not exceed 100% of the fair
market value of the property and assets to which such lien attaches,
determined at the time of the acquisition of such property or assets
or the time at which such Person becomes a Subsidiary of the Company
(except in the circumstances described in this clause (B) above to the
extent such Liens constituted customary purchase money liens at the
time of incurrence and were entered into in the ordinary course of
business).
(ix) Any extension, renewal or replacement (or successive
extension, renewal, or replacement) in whole or in part, of any Lien
referred to in the foregoing clauses (i) through (viii) inclusive;
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 all
or a part of the property which secured the Lien so extended, renewed
or replaced (plus improvements on such property).
6.15 AFFILIATES. Except as described on Schedule 6.15, the Company
will not, and will not permit any Subsidiary to, enter into any transaction
(including, without limitation, the purchase or sale of any Property or
service) with, or make any payment or transfer to, any Affiliate except in the
ordinary course of business and pursuant to the reasonable requirements of the
Company's or such Subsidiary's business and upon fair and reasonable terms
(taken as a whole) no less favorable to the Company or such Subsidiary than
the Company or such Subsidiary would obtain in a comparable arms-length
transaction.
6.16 DIVIDENDS. The Company will not, nor will it permit any
Subsidiary to, declare or pay any dividends or make any distributions on its
Capital Stock (other than dividends payable in its own Capital Stock which is
common stock) or redeem, repurchase or otherwise acquire or retire any of its
Capital Stock at any time outstanding, except that (a) any Subsidiary may
declare and pay dividends or make distributions to the Company or to a
Wholly-Owned Subsidiary and (b) provided that no Default or Unmatured Default
exists or would be caused thereby, the Company may make such other dividends,
redemptions or distributions in any fiscal year which, when aggregated with
all Investments made in such fiscal year pursuant to Section 6.13(vi), do not
exceed in the aggregate an amount equal to 25% of the consolidated net income
of the Company and its Subsidiaries for such fiscal year. The Company will not
issue any Disqualified Stock.
6.17 AMENDMENTS OF AND PAYMENTS ON INDEBTEDNESS. The Company will
not, and will not permit any Subsidiary to, make any amendment or modification
to the indenture, note or other agreement evidencing or governing any
Indebtedness, or directly or indirectly voluntarily prepay, defease or in
substance defease, purchase, redeem, retire or otherwise acquire, any
Indebtedness.
6.18 FINANCIAL CONTRACTS. The Company will not, and will not permit
any Subsidiary to, enter into any Financial Contract for purposes of financial
speculation.
6.19 LEVERAGE RATIO. The Company shall not permit its Leverage Ratio
to exceed (a) 3.0 to 1.0 at any time on or before December 30, 2000, (b) 2.75
to 1.0 at any time from and including December 31, 2000 to and including
December 30, 2001, or (c) 2.25 to 1.0 at any time thereafter.
6.20 NET WORTH. The Company shall maintain at all times a
Consolidated Net Worth of the Company and its Subsidiaries at least equal to
the sum of (a) $195,000,000, plus (b) 50% of the consolidated net income of
the Company and its Subsidiaries, added as of the last day of each fiscal year
of the Company commencing with the fiscal year ending December 31, 1999,
PROVIDED that if such net income is negative in any fiscal year the amount
added for such fiscal year shall be zero and shall not
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reduce the amount added for any other fiscal year, plus (c) 100% of the Net
Cash Proceeds received by the Company from the issuance or other sale of its
Capital Stock.
6.21 INTEREST COVERAGE RATIO. The Company shall not permit its
Interest Coverage Ratio to be less than 3.50 to 1.0 as of the last day of any
fiscal quarter.
6.22 YEAR 2000. The Company will take and will cause each of its
Subsidiaries to take all such actions as are reasonably necessary to
successfully implement the Year 2000 program and to assure that Year 2000
Issues will not have a Material Adverse Effect. At the request of the Agent or
any Lender, the Company will provide a description of the Year 2000 Program,
together with any updates or progress reports with respect thereto.
6.23 NEGATIVE PLEDGE LIMITATION. The Company will not, and will not
permit any of its Subsidiaries to, enter into any agreement with any Person
other than the Lenders pursuant hereto which prohibits or limits the ability
of the Company or any Subsidiary to create, incur, assume or suffer to exist
any lien upon any of its assets, rights, revenues or property, real, personal
or mixed, tangible or intangible, whether now owned or hereafter acquired.
6.24 ADDITIONAL COVENANTS. If at any time a Borrower shall enter into
or be a party to any instrument or agreement with respect to any Indebtedness
which in the aggregate, together with any related Indebtedness, exceeds
$1,000,000, including all such instruments or agreements in existence as of
the date hereof and all such instruments or agreements entered into after the
date hereof, relating to or amending any terms or conditions applicable to any
of such Indebtedness which includes financing or similar covenants not
substantially provided for in this Agreement or more favorable to the lender
or lenders thereunder than those provided for in this Agreement, then such
financial or similar covenants are hereby incorporated by reference into this
Agreement to the same extent as if set forth fully herein, and no subsequent
amendment, waiver, termination or modification thereof shall affect any such
financial or similar covenants incorporated herein.
ARTICLE VII
DEFAULTS
--------
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made, including without limitation
those deemed made pursuant to Section 4.2, by or on behalf of the Company or
its Subsidiaries to the Lenders or the Agent in any Loan Document, in
connection with any Loan or Facility Letter of Credit, or in any certificate
or information delivered in writing in connection with any Loan Document or in
any certificate or information delivered in writing in connection with any
Loan Document shall be false in any material respect on the date as of which
made.
7.2 Nonpayment of principal of any Loan when due, or nonpayment of
interest on any Loan or of any facility fee within three Business Days after
written notice from the Agent that the same has become due, or nonpayment of
any other obligations under any of the Loan Documents within five days after
written notice from the Agent that the same has become due.
7.3 The breach by any Borrower of any of the terms or provisions in
Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16,
6.17, 6.18, 6.19, 6.20 or 6.21.
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7.4 The breach by any Borrower or Guarantor (other than a breach
which constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the terms
or provisions of this Agreement or any other Loan Document which is not
remedied within 30 days after written notice from the Agent.
7.5 Failure of the Company or any of its Subsidiaries to pay when due
any Indebtedness or Rate Hedging Obligations aggregating in excess of
$5,000,000 ("Material Indebtedness"); or the default by the Company or any of
its Subsidiaries in the performance of any term, provision or condition
contained in any agreement under which any such Material Indebtedness was
created or is governed, or any other event shall occur or condition exist, the
effect of which is to cause, or to permit the holder or holders of such
Material Indebtedness to cause, such Material Indebtedness to become due prior
to its stated maturity; or any Material Indebtedness of the Company or any of
its Subsidiaries shall be declared to be due and payable or required to be
prepaid or repurchased (other than by a regularly scheduled payment) prior to
the stated maturity thereof; or the Company or any of its Subsidiaries shall
not pay, or admit in writing its inability to pay, its debts generally as they
become due.
7.6 The Company or any of its Subsidiaries, shall (i) have an order
for relief entered with respect to it under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, (ii) make an assignment for the benefit
of creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar
official for it or any Substantial Portion of its Property, (iv) institute any
proceeding seeking an order for relief under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to adjudicate it a bankrupt or
insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts or seeking similar
relief under any law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency or reorganization or relief of debtors or similar
proceeding or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate,
company or other action to authorize or effect any of the foregoing actions
set forth in this Section 7.6 or (vi) fail to contest in good faith any
appointment or proceeding described in Section 7.7.
7.7 Without its application, approval or consent, a receiver,
trustee, examiner, liquidator or similar official shall be appointed for the
Company or any of its Subsidiaries or any Substantial Portion of their
respective Property, or a proceeding described in Section 7.6(iv) shall be
instituted against the Company or any of its Subsidiaries and such appointment
continues undischarged or such proceeding continues undismissed or unstayed
for a period of 60 consecutive days.
7.8 Any court, government or governmental agency shall without
appropriate compensation condemn, seize or otherwise appropriate, or take
custody or control of (each a "Condemnation"), all or any portion of the
Property of the Company or any of its Subsidiaries which, when taken together
with all other Property of the Company and its Subsidiaries so condemned,
seized, appropriated, or taken custody or control of, during the twelve-month
period ending with the month in which any such Condemnation occurs,
constitutes a Substantial Portion and is reasonably likely to have a Material
Adverse Effect.
7.9 The Company or any of its Subsidiaries shall fail within 90 days
to pay, bond or otherwise discharge any judgment or order for the payment of
money in excess of $5,000,000 in aggregate amount for the Company and its
Subsidiaries, which is not stayed on appeal.
7.10 Any member of the Controlled Group shall fail to pay when due an
amount or amounts aggregating in excess of $5,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate
a Single Employer Plan with Unfunded Liabilities in excess of $5,000,000 (a
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"Material Plan") shall be filed under Section 4041(c) of ERISA by any member
of the Controlled Group, any plan administrator or any combination of the
foregoing; or PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed to administer any
Material Plan; 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; or there shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of ERISA, with respect to,
one or more Multiemployer Plans which causes one or more members of the
Controlled Group to incur a current payment obligation in excess of $5,000,000
in aggregate amount for the Controlled Group.
7.11 The Company or any of its Subsidiaries shall be the subject of
any proceeding or investigation pertaining to the release by the Company or
any of its Subsidiaries, or any other Person of any toxic or hazardous waste
or substance into the environment, or any violation of any applicable foreign,
federal, state or local environmental, health or safety law or regulation,
which, in either case, could reasonably be expected to have a Material Adverse
Effect.
7.12 The occurrence of any Change of Control.
7.13. The occurrence of any "default", as defined in any Collateral
Document, or the breach of any of the terms or provisions of any Collateral
Document, which default or breach continues beyond any period of grace therein
provided.
7.14. Any Collateral Document shall for any reason fail to create a
valid and perfected first priority security interest in any collateral
purported to be covered thereby, except as permitted by the terms of any
Collateral Document, or any Collateral Document shall fail to remain in full
force or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Collateral Document.
7.15 Any Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or assert the invalidity or
unenforceability of any Guaranty by any Guarantor, or any Guarantor shall fail
to comply with any of the terms or provisions of any Guaranty to which it is a
party, or any Guarantor denies that it has any further liability under any
Guaranty to which it is a party, or gives notice to such effect.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
8.1 ACCELERATION. (a) If any Default described in Section 7.6 or 7.7
occurs, (i) the obligations of the Lenders to make Loans hereunder and the
obligations of the Issuers to issue Facility Letters of Credit shall
automatically terminate and the Obligations shall immediately become due and
payable without presentment, demand, protest or notice of any kind, all of
which the Borrowers hereby expressly waive and without any election or action
on the part of the Agent or any Lender and (ii) each Borrower will be and
become thereby unconditionally obligated, without the need for demand or the
necessity of any act or evidence, to deliver to the Agent, at its address
specified pursuant to Article XIV, for deposit into the Letter of Credit
Collateral Account, an amount (the "Collateral Shortfall Amount") equal to the
excess, if any, of
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(A) 100% of the sum of the aggregate maximum amount remaining
available to be drawn under the Facility Letters of Credit requested by such
Borrower (assuming compliance with all conditions for drawing thereunder)
issued by an Issuer and outstanding as of such time, OVER
(B) the amount on deposit for such Borrower in the Letter of Credit
Collateral Account at such time that is free and clear of all rights and
claims of third parties (other than the Agent and the Lenders) and that has
not been applied by the Lenders against the Obligations of such Borrower.
(b) If any Default occurs and is continuing (other than a Default
described in Section 7.6 or 7.7), (i) the Required Lenders may terminate or
suspend the obligations of the Lenders to make Loans and the obligation of the
Issuers to issue Facility Letters of Credit hereunder, or declare the
Obligations to be due and payable, or both, whereupon (if so declared) the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrowers hereby
expressly waive and (ii) the Required Lenders may, upon notice delivered to
the Borrowers with outstanding Facility Letters of Credit and in addition to
the continuing right to demand payment of all amounts payable under this
Agreement, make demand on each such Borrower to deliver (and each such
Borrower will, forthwith upon demand by the Required Lenders and without
necessity of further act or evidence, be and become thereby unconditionally
obligated to deliver), to the Agent, at its address specified pursuant to
Article XIV, for deposit into the Letter of Credit Collateral Account an
amount equal to the Collateral Shortfall Amount payable by such Borrower.
(c) If at any time while any Default is continuing, the Agent
determines that the Collateral Shortfall Amount at such time is greater than
zero, the Agent may make demand on the Borrowers with outstanding Facility
Letters of Credit to deliver (and each such Borrower will, forthwith upon
demand by the Agent and without necessity of further act or evidence, be and
become thereby unconditionally obligated to deliver), to the Agent as
additional funds to be deposited and held in the Letter of Credit Collateral
Account an amount equal to such Collateral Shortfall Amount payable by such
Borrower at such time.
(d) The Agent may at any time or from time to time after funds are
deposited in the Letter of Credit Collateral Account, apply such funds to the
payment of the Obligations of the relevant Borrowers and any other amounts as
shall from time to time have become due and payable by the relevant Borrowers
to the Lenders under the Loan Documents.
(e) Neither the Borrowers nor any Person claiming on behalf of or
through the Borrowers shall have any right to withdraw any of the funds held
in the Letter of Credit Collateral Account. After all of the Obligations have
been indefeasibly paid in full, any funds remaining in the Letter of Credit
Collateral Account shall be returned by the Agent to the applicable
Borrower(s) or paid to whoever may be legally entitled thereto at such time.
(f) The Agent shall exercise reasonable care in the custody and
preservation of any funds held in the Letter of Credit Collateral Account and
shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Agent accords its own
property, it being understood that the Agent shall not have any responsibility
for taking any necessary steps to preserve rights against any Persons with
respect to any such funds.
8.2 AMENDMENTS.
8.2.1 Subject to the provisions of this Article VIII, the Required
Lenders (or the Agent with the consent in writing of the Required Lenders) and
the Borrowers may enter into agreements
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supplemental hereto for the purpose of adding or modifying any provisions to
the Loan Documents or changing in any manner the rights of the Lenders or the
Borrowers hereunder or waiving any Default hereunder; PROVIDED, HOWEVER, no
such supplemental agreement shall, (i) without the consent of the Required U.S.
Revolving Credit Lenders, allow the Company to obtain a U.S. Revolving Credit
Loan or U.S. Facility Letter of Credit if it would otherwise be unable to do so
absent such supplemental agreement, (ii) without the consent of the Required
Danish Revolving Credit Lenders, allow the Danish Borrower to obtain an Danish
Revolving Credit Loan or Danish Facility Letter of Credit if it would otherwise
be unable to do so absent such supplemental agreement, (iii) without the
consent of the Required Euro Revolving Credit Lenders, allow any Euro Borrower
to obtain a Euro Revolving Credit Loan or Euro Facility Letter of Credit if it
would otherwise be unable to do so absent such supplemental agreement, (iv)
without the consent of the Required U.K. Revolving Credit Lenders, allow the
U.K. Borrower to obtain a U.K. Revolving Credit Loan or U.K. Facility Letter of
Credit if it would otherwise be unable to do so absent such supplemental
agreement, or (v) without the consent of the Required Canadian Revolving Credit
Lenders, allow the Canadian Borrower to obtain an Canadian Revolving Credit
Loan or Canadian Facility Letter of Credit if it would otherwise be unable to
do so absent such supplemental agreement,, and PROVIDED FURTHER, that no such
supplemental agreement shall, without the consent of each Lender:
(a) Extend the final maturity of any Loan, Note or Reimbursement
Obligation or postpone any regularly scheduled payment of principal of any
Loan or forgive all or any portion of the principal amount thereof, or reduce
the rate or extend the time of payment of interest or fees thereon.
(b) Reduce the percentage specified in the definition of Required
Lenders, Required Canadian Revolving Credit Lenders, Required Danish Revolving
Credit Lenders, Required Euro Revolving Credit Lenders, Required U.K.
Revolving Credit Lenders, Required U.S. Revolving Credit Lenders or Required
Term Loan Lenders.
(c) Extend the Facility Termination Date or the Maturity Date, or
reduce the amount or extend the payment date for, the mandatory payments
required under Section 2.6, or increase the amount of any Commitment of any
Lender hereunder or the Aggregate Commitments other than as allowed hereunder,
or permit any Borrower to assign its rights under this Agreement.
(d) Amend this Section 8.2.1.
(e) Release any Borrower or any Guarantor which is the Company or a
Significant Subsidiary or, except as provided in this Agreement or the
Collateral Documents, release all or any material amount of the Collateral.
8.2.2 In addition to amendments effected pursuant to the foregoing,
Schedule 1.1(b) may be amended as follows:
(i) Schedule 1.1(b) will be automatically amended to add
Subsidiaries of the Company as additional Foreign Subsidiary
Borrowers upon (A) execution and delivery by the Company, any such
Foreign Subsidiary Borrower and the Agent, of a Joinder Agreement
providing for any such Subsidiary to become a Foreign Subsidiary
Borrower, (B) delivery to the Agent of (a) a Foreign Subsidiary
Opinion in respect of such additional Foreign Subsidiary Borrower and
(b) such other documents with respect thereto as the Agent shall
reasonably request and (c) the written approval of the Agent in its
sole discretion.
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(ii) Schedule 1.1(b) will be automatically amended to remove
any Subsidiary as a Foreign Subsidiary Borrower upon (A) written
notice by the Company to the Agent to such effect and (B) repayment
in full of all outstanding Loans and all other obligations pursuant
to any Loan Document of such Foreign Subsidiary Borrower.
(iii) It is acknowledged and agreed that not more than one
Canadian Borrower, one Danish Borrower and one U.K. Borrower may
exist at any one time. There may be more than one Euro Borrower,
provided that there may not be a number thereof more than allowed by
the Agent.
8.2.3 No modification or waiver of any provision of this Agreement
relating to the Agent shall be effective without the written consent of the
Agent. No modification or waiver of any provision of this Agreement relating
to the Issuer shall be effective without the written consent of the Issuer.
The Agent may waive payment of the fee required under Section 13.3.2 without
obtaining the consent of any other party to this Agreement. Notwithstanding
anything herein to the contrary, any Defaulting Lender shall not be entitled
to vote (whether to consent or to withhold its consent) with respect to any
amendment, modification, termination or waiver and, for purposes of
determining the Required Lenders and the Required Revolving Credit Lenders,
the Commitments and the Loans of such Defaulting Lender shall be disregarded
and the Agent shall have the ability, but not the obligation, to replace any
such Defaulting Lender with another lender or lenders.
8.2.4. New lenders ("New Lenders") may become Lenders hereunder and
existing Lenders may increase their Commitments hereunder by executing an
assumption agreement and other agreements and documents in form and substance
acceptable to the Company and the Agent, provided that (i) the Company and the
Agent consent thereto and (ii) without the prior written consent of all of the
Lenders, the Aggregate Commitments may not be increased by more than an
Equivalent Amount equal to $25,000,000 in excess of the Aggregate Commitments
in effect after giving effect to the First Amendment. Notwithstanding anything
in this Agreement to the contrary, the Borrowers and the Agent may amend this
Agreement and the Loan Documents without the consent of the existing Lenders
in connection with adding any such New Lenders or increasing the Commitments
of any Existing Lenders which have agreed to such increase to add facilities
hereunder in other Eligible Currencies agreed to by the New Lenders or any
existing Lender increasing its Commitment and to make all amendments necessary
to add any such facilities.
8.3 PRESERVATION OF RIGHTS. No delay or omission of the Lenders or
the Agent to exercise any right under the Loan Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a Default
or the inability of the Borrowers to satisfy the conditions precedent to such
Loan shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise
thereof or the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent and the
Lenders until the Obligations have been paid in full.
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ARTICLE IX
GUARANTEE
---------
9.1 GUARANTEE. (a) The Company hereby unconditionally and irrevocably
guarantees to the Agent and the Lenders and their respective successors,
endorsees, transferees and assigns, the prompt and complete payment and
performance by the Foreign Subsidiary Borrowers when due (whether at the
stated maturity, by acceleration or otherwise) of the Obligations owing by
such Foreign Subsidiary Borrowers.
(b) The Company further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which are paid or incurred by the Agent, or any Lender in enforcing,
or obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, the Company under this Section. This
Section shall remain in full force and effect until the Obligations are paid
in full and the Commitments are terminated, notwithstanding that from time to
time prior thereto the Borrowers may be free from any Obligations.
(c) No payment or payments made by any Borrower or any other Person
or received or collected by the Agent or any Lender from any Borrower or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application, at any time or from time to time, in reduction
of or in payment of the Obligations shall be deemed to modify, reduce, release
or otherwise affect the liability of the Company hereunder which shall,
notwithstanding any such payment or payments, remain liable hereunder for the
Obligations until the Obligations are paid in full and the Commitments are
terminated.
(d) The Company agrees that whenever, at any time, or from time to
time, it shall make any payment to the Agent or any Lender on account of its
liability under this Section, it will notify the Agent and such Lender in
writing that such payment is made under this Section for such purpose.
9.2 NO SUBROGATION. Notwithstanding any payment or payments made by
the Company hereunder, or any set-off or application of funds of the Company
by the Agent or any Lender, the Company shall not be entitled to be subrogated
to any of the rights of the Agent or any Lender against the Borrowers or
against any collateral security or guarantee or right of offset held by the
Agent or any Lender for the payment of the Obligations, nor shall the Company
seek or be entitled to seek any contribution or reimbursement from the
Borrowers in respect of payments made by the Company hereunder, until all
amounts owing to the Agent and the Lenders by the Borrowers on account of the
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to the Company on account of such subrogation rights at any time
when all of the Obligations shall not have been paid in full, such amount
shall be held by the Company in trust for the Agent and the Lenders,
segregated from other funds of the Company, and shall, forthwith upon receipt
by the Company, be turned over to the Agent in the exact form received by the
Company (duly endorsed by the Company to the Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order
as Agent may determine. The provisions of this paragraph shall survive the
termination of this Agreement and the payment in full of the Obligations and
the termination of the Commitments.
9.3 AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS; WAIVER OF
RIGHTS. The Company shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Company,
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and without notice to or further assent by the Company, any demand for payment
of any of the Obligations made by the Agent or the Required Lenders may be
rescinded by the Agent or the Required Lenders, and any of the Obligations
continued, and the Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Agent or the Required Lenders, and any Loan
Documents and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in
part, in accordance with the provisions thereof as the Agent (or the Required
Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the Agent
or any Lender for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. None of the Agent or any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by
it as security for the Obligations or for this Agreement or any property
subject thereto. When making any demand hereunder against the Company, the
Agent or any Lender may, but shall be under no obligation to, make a similar
demand on any other Borrower or any other guarantor, and any failure by the
Agent or any Lender to make any such demand or to collect any payments from any
other Borrower or any such other guarantor or any release of the Borrowers or
such other guarantor shall not relieve the Company of its obligations or
liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Agent or any Lender against
the Company. For the purposes hereof "demand" shall include the commencement
and continuance of any legal proceedings.
9.4 GUARANTEE ABSOLUTE AND UNCONDITIONAL. The Company waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Agent or any Lender upon
this Agreement or acceptance of this Agreement; the Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon this
Agreement; and all dealings among the Borrowers, on the one hand, and the
Agent and the Lenders, on the other, shall likewise be conclusively presumed
to have been had or consummated in reliance upon this Agreement. The Company
waives diligence, presentment, protest, demand for payment and notice of
default or nonpayment to or upon the Foreign Subsidiary Borrowers and the
Company with respect to the Obligations. This Article IX shall be construed as
a continuing, absolute and unconditional guarantee of payment without regard
to (a) the validity, regularity or enforceability of this Agreement, any other
Loan Document, any of the Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance by any Borrower)
which may at any time be available to or be asserted by any Borrower against
the Agent or any Lender, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of any Borrower) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrowers for
the Obligations, or of the Company under this Section 9.4, in bankruptcy or in
any other instance (other than a defense of payment or performance by the
Borrowers). When pursuing its rights and remedies hereunder against the
Company, the Agent and any Lender may, but shall be under no obligation to,
pursue such rights and remedies as it may have against any Borrower or any
other Person or against any collateral security or guarantee for the
Obligations or any right of offset with respect thereto, and any failure by
the Agent or any Lender to pursue such other rights or remedies or to collect
any payments from the Borrowers or any such other Person or to realize upon
any such collateral security or guarantee or to exercise any such right of
offset, or any release of the Borrowers or any such other Person or of any
such collateral security, guarantee or right of offset, shall not relieve the
Company of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Agent or any Lender against the Company. This Article IX shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon the Company and its successors and assigns, and shall inure to the
benefit of
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the Agent and the Lenders, and their respective successors, indorsees,
transferees and assigns, until all the Obligations and the obligations of the
Company under this Agreement shall have been satisfied by payment in full and
the Commitments shall be terminated, notwithstanding that from time to time
during the term of this Agreement the Borrowers may be free from any
Obligations.
9.5 REINSTATEMENT. This Article IX shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored
or returned by the Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Borrower or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
Trustee or similar officer for, any Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
9.6 PAYMENTS. The Company hereby agrees that all payments required to
be made by it hereunder will be made to the Agent without set-off or
counterclaim in accordance with the terms of the Obligations, including,
without limitation, in the currency in which payment is due.
ARTICLE X
GENERAL PROVISIONS
------------------
10.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties
of the Borrowers Lenders, and Issuers contained in this Agreement shall
survive delivery of the Loan Documents and the making of the Loans herein
contemplated.
10.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
a Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3 TAXES. Any taxes (excluding income taxes and franchise taxes
(imposed in lieu of income taxes), imposed on the Agent or any Lender as a
result of a present or former connection between the Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document)) or other similar
assessments or charges made by any governmental or revenue authority in
respect of the Loan Documents shall be paid by the Company, together with
interest and penalties, if any.
10.4 HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
10.5 ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Agent and the Lenders and supersede
all prior agreements and understandings among the Borrowers, the Agent and the
Lenders relating to the subject matter thereof other than any fee letters
among any Borrowers and either of the Agent or Arranger and any other
agreements of any of the Borrowers with the Agent which survive the execution
of the Loan Documents.
10.6 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to
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perform any of its obligations hereunder shall not relieve any other Lender
from any of its obligations hereunder. This Agreement shall not be construed so
as to confer any right or benefit upon any Person other than the parties to
this Agreement and their respective successors and assigns.
10.7 EXPENSES; INDEMNIFICATION. (i) The Borrowers shall reimburse the
Agent and the Arranger for any reasonable costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges
of attorneys for the Agent, which attorneys may be employees of the Agent)
paid or incurred by the Agent or the Arranger in connection with the
preparation, negotiation, execution, delivery, syndication, review, amendment,
modification, and administration (including, without limitation, preparation
of the reports described below) of the Loan Documents. The Borrowers also
agree to reimburse the Agent, the Arranger and the Lenders for any reasonable
costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Agent, the Arranger and
the Lenders, which attorneys may be employees of the Agent, the Arranger or
the Lenders) paid or incurred by the Agent, the Arranger or any Lender in
connection with the collection and enforcement of the Loan Documents. The
Borrowers acknowledge and agree that from time to time the Agent may prepare
and may distribute to the Lenders (but shall have no obligation or duty to
prepare or to distribute to the Lenders) certain audit reports (the "Reports")
pertaining to any Borrower's and Guarantors' assets for internal use by the
Agent from information furnished to it by or on behalf of the Borrowers, after
the Agent has exercised its rights of inspection pursuant to this Agreement;
provided that, if any Lender requests copies of any future similar Reports
which the Agent has prepared, then the Agent will provide such reports to such
Lender provided that such Lender has executed an indemnity agreement
acceptable to the Agent. The Borrowers further acknowledge and agree that the
Agent or any of its agents or representatives may conduct comprehensive field
audits of its books, records, properties and assets and of the books, records
properties and assets of each Subsidiary of the Company, including without
limitation all Collateral subject to the Collateral Documents, at the
Borrowers' expense, provided that prior to the occurrence of a Default no more
than one such comprehensive field audits shall be conducted in any fiscal
year.
(ii) The Borrowers hereby further agree to indemnify the
Agent, the Arranger and each Lender, and their respective directors, officers
and employees against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all expenses of
litigation or preparation therefor whether or not the Agent, the Arranger or
any Lender is a party thereto) which any of them may pay or incur at any time
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan or Facility Letters of Credit
hereunder except to the extent that they are determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrowers under this Section 10.7
shall survive the termination of this Agreement.
10.8 NUMBERS OF DOCUMENTS. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
10.9 ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles. For purposes of Article VI (including any baskets or limitations
expressed in U.S. Dollars therein) of this Agreement, any Indebtedness,
Investment or other amount made or incurred in any currency other than U.S.
Dollars shall be deemed to be the U.S. Dollar Equivalent thereof.
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10.10 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.
10.11 NONLIABILITY OF LENDERS. The relationship between the Borrowers
and the Lenders and the Agent shall be solely that of borrower and lender.
Neither the Agent nor any Lender shall have any fiduciary responsibilities to
any Borrower. Neither the Agent nor any Lender undertakes any responsibility
to any Borrower to review or inform any Borrower of any matter in connection
with any phase of such Borrower's business or operations. Each Borrower agrees
that neither the Agent nor any Lender shall have liability to any Borrower
(whether sounding in tort, contract or otherwise) for losses suffered by any
Borrower in connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined by a court of competent jurisdiction in a final and
non-appealable order that such losses resulted from the gross negligence or
willful misconduct of, or violation of applicable laws or any of the Loan
Documents by, the party from which recovery is sought. Neither the Agent nor
any Lender shall have any liability with respect to, and each Borrower hereby
waives, releases and agrees not to sue for, any special, indirect or
consequential damages suffered by the Borrowers in connection with, arising
out of, or in any way related to the Loan Documents or the transactions
contemplated thereby.
10.12 CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from any Borrower pursuant to this Agreement
in confidence, and will not disclose or use for any purpose other than its
credit evaluation under this Agreement such confidential information, except
for disclosure: (i) to any Transferee or prospective Transferee to the extent
provided in Section 13.4; (ii) to legal counsel, accountants and other
professional advisors to that Lender to the extent necessary to advise that
Lender concerning its rights or obligations in respect of this Agreement;
PROVIDED that such professional advisor agrees to hold any confidential
information which it may receive in confidence and not to disclose or use such
confidential information for any purpose other than advising that Lender with
respect to its rights and obligations under this Agreement; (iii) to
regulatory officials to the extent required by applicable law, rule,
regulations, order, policy or directive (whether or not any such policy or
directive has the force of law); and (iv) pursuant to any order of any court,
arbitrator or Governmental Authority of competent jurisdiction (or as
otherwise required by law); PROVIDED, however, that the Lender (or other
Person given confidential information by such Lender) shall provide the
Company with prompt notice of any such required disclosure so that the Company
may seek a protective order or other appropriate remedy, and in the event that
such protective order or other remedy is not obtained, such Lender (or such
other Person) will furnish only that portion of the confidential information
which is legally required.
10.13 NONRELIANCE. Each Lender hereby represents that it is not
relying on or looking to any Margin Stock for the repayment of the Loans
provided for herein.
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ARTICLE XI
THE AGENT
---------
11.1 APPOINTMENT; NATURE OF RELATIONSHIP. Bank One is hereby
appointed by the Lenders as the Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Agent to act as
the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Agent agrees
to act as such contractual representative upon the express conditions
contained in this Article XI. Notwithstanding the use of the defined term
"Agent," it is expressly understood and agreed that the Agent shall not have
any fiduciary responsibilities to any Lender by reason of this Agreement or
any other Loan Document and that the Agent is merely acting as the contractual
representative of the Lenders with only those duties as are expressly set
forth in this Agreement and the other Loan Documents. In its capacity as the
Lenders' contractual representative, the Agent (i) does not hereby assume any
fiduciary duties to any of the Lenders, (ii) is a "representative" of the
Lenders within the meaning of Section 9-105 of the Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of which
are limited to those expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders hereby agrees to assert no claim against the
Agent on any agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Lender hereby waives.
11.2 POWERS. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall not have any implied duties to the Lenders, or any obligation
to the Lenders to take any action thereunder except any action specifically
provided by the Loan Documents to be taken by the Agent.
11.3 GENERAL IMMUNITY. Neither Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrowers, the Lenders or
any Lender for (a) any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a
final non-appealable judgment by a court of competent jurisdiction to have
arisen from the gross negligence or willful misconduct of such Person; or (b)
any determination by the Agent that compliance with any law or any
governmental or quasi-governmental rule, regulation, order, policy, guideline
or directive (whether or not having the force of law) requires the Advances
and Commitments hereunder to be classified as being part of a "highly
leveraged transaction".
11.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the Agent
nor any of its directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into, or verify (i) any statement,
warranty or representation made in connection with any Loan Document or any
borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish information
directly to each Lender; (iii) the satisfaction of any condition specified in
Article IV; (iv) the validity, enforceability, effectiveness, sufficiency or
genuineness of any Loan Document or any other instrument or writing furnished
in connection therewith; (v) the value, sufficiency, creation, perfection or
priority of any Lien in any collateral security; (vi) the existence or
possible existence of any Default or Unmatured Default; or (vii) the financial
condition of any Borrower or Guarantor or any of their respective
Subsidiaries. The Agent shall not have any duty to disclose to the Lenders
information that is not required to be furnished by the Borrowers to the Agent
at the time, but is voluntarily furnished by the Borrowers to the Agent
(either in its capacity as the Agent or in its individual capacity).
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11.5 ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed
by the Required Lenders (or all Lenders if required under Section 8.2.1), and
such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders and on all holders of the Obligations.
The Lenders hereby acknowledge that the Agent shall not be under any duty to
take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement or any other Loan Document unless it shall be
requested in writing to do so by the Required Lenders. The Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.
11.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the
Lenders and all matters pertaining to the Agent's duties hereunder and under
any other Loan Document.
11.7 RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper Person or Persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which
counsel may be employees of the Agent.
11.8 AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify (to the extent not reimbursed by a Borrower and
without limiting the obligation of any Borrower to do so) the Agent ratably in
proportion to the U.S. Dollar Equivalent of their respective Commitments (or,
if the Commitments have been terminated, in proportion to the U.S. Dollar
Equivalent of their respective Commitments immediately prior to such
termination) (i) for any amounts not reimbursed by the Company for which the
Agent is entitled to reimbursement by the Company or the other Borrowers under
the Loan Documents, (ii) for any other expenses incurred by the Agent on
behalf of the Lenders, in connection with the preparation, execution,
delivery, administration and enforcement of the Loan Documents (including,
without limitation, for any expenses incurred by the Agent in connection with
any dispute between the Agent and any Lender or between two or more of the
Lenders) and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of the Loan Documents
or any other document delivered in connection therewith or the transactions
contemplated thereby (including, without limitation, for any such amounts
incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or
the enforcement of any of the terms thereof or of any such other documents,
PROVIDED that no Lender shall be liable for any of the foregoing to the extent
any of the foregoing is found in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Agent. The obligations of the Lenders under this Section
11.8 shall survive payment of the Obligations and termination of this
Agreement.
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11.9 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or a
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default". In the event
that the Agent receives such a notice, the Agent shall give prompt notice
thereof to the Lenders.
11.10 RIGHTS AS A LENDER. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not an
Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent is
a Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of trust, debt, equity or
other transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with the Company or any of its Subsidiaries in which the
Company or such Subsidiary is not restricted hereby from engaging with any
other Person.
11.11 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrowers and
such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement and the other
Loan Documents. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent, the Arranger or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents.
11.12 SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Company, such resignation to be
effective upon the appointment of a successor Agent or, if no such successor
Agent has been appointed, forty-five days after the retiring Agent gives
notice of its intention to resign. The Agent may be removed at any time with
or without cause by written notice received by the Agent from the Required
Lenders, such removal to be effective on the date specified by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint, on behalf of the Borrowers and the Lenders, a successor
Agent to the Agent. If no such successor Agent shall have been so appointed by
the Required Lenders within thirty days after such resigning Agent's giving
notice of its intention to resign, then such resigning Agent may appoint, on
behalf of the Company and the Lenders, a successor Agent for itself. If the
Agent has resigned or been removed and no successor Agent has been appointed,
the Lenders may perform all the duties of the Agent hereunder and the Company
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as an Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder
and under the Loan Documents. After the effectiveness of the resignation or
removal of an Agent, the provisions of this Article XI shall continue in
effect for the benefit of the Agent in respect of any actions taken or omitted
to be taken by it while it was acting as an Agent hereunder and under the
other Loan Documents.
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11.13 COLLATERAL MANAGEMENT. The Agent is hereby authorized on behalf
of all the Lenders, without the necessity of any further consent from any
Lender, from time to time prior to a Default, to take any action with respect
to the Collateral or the Collateral Documents which may be necessary (i) to
perfect and maintain perfected the security interest in and liens upon the
Collateral granted pursuant to the Collateral Documents; and (ii) to release
portions of the Collateral from the security interests and liens imposed by
the Collateral Documents in connection with any dispositions of such portions
of the Collateral permitted by this Agreement. In the event that the Company
desires to sell or otherwise dispose of any assets and such sale or
disposition is permitted by this Agreement, the Agent shall, upon timely
notice from the Company and the payment to the Agent of the Net Cash Proceeds
of such sale or disposition to the extent required under this Agreement,
release such portions of the Collateral from the security interests and liens
imposed by the Collateral Documents as may be specified by the Company in
order for the Company or its Subsidiaries to consummate such proposed sale or
disposition, PROVIDED that at or prior to the time of such proposed sale or
disposition no Default or Unmatured Default shall have occurred and be
continuing, including, without limitation, any Unmatured Default or Default
that would arise upon consummation of such sale or disposition. For purposes
of the preceding sentence, the Company shall give timely notice to the Agent
of such sale or disposition, not less than ten Business Days prior to the date
of such proposed sale or disposition. If such sale or disposition would cause
a prepayment under this Agreement, the Company shall furnish to the Agent an
Officers' Certificate setting forth in reasonable detail the circumstances of
such proposed sale or disposition (including a description of the Collateral
to be sold or otherwise disposed of, the consideration (if any) to be received
and such information as may be required regarding compliance with the relevant
provisions of this Agreement, including the amount of any required prepayment
hereunder and (if relevant) the approval of the price of such sale as to the
fair market value). The Lenders hereby empower and authorize the Agent to
execute and deliver to the Borrowers on their behalf the Collateral Documents
and all related financing statements and any financing statements, agreements,
documents or instructions as shall be necessary or appropriate to effect the
purposes of the Collateral Documents. The Lenders hereby empower and authorize
the Agent to execute and deliver to the Borrowers on their behalf any
agreements, documents or instruments as shall be necessary or appropriate to
effect any releases of Collateral which shall be permitted by the terms hereof
or of any other Loan Document or which shall otherwise have been approved by
the Required Lenders (or, if required by the terms of Section 8.2, all of the
Lenders) in writing.
11.14 RIGHT TO INDEMNITY. The Agent shall be fully justified in
failing or refusing to take any action hereunder unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
11.15 DELEGATION TO AFFILIATES. The Borrowers and the Lenders agree
that the Agent may delegate any of its duties under this Agreement to any of
its Affiliates. Any such Affiliate (and such Affiliate's directors, officers,
agents and employees) which performs duties in connection with this Agreement
shall be entitled to the same benefits of the indemnification, waiver, and
other protective provisions to which the Agent is entitled under Articles X
and XI.
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ARTICLE XII
SETOFF; ADJUSTMENTS AMONG LENDERS
---------------------------------
12.1 SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or
not collected or available) and any other Indebtedness at any time held or
owing by any Lender to or for the credit or account of any Borrower may be
offset and applied toward the payment of the Obligations owing to such Lender
by such Borrower.
12.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Obligations owing from a Borrower (other than
payments received pursuant to Section 3.1, 3.2, 3.4, 3.6 or 10.7) in a greater
proportion than that received by any other Lender on its Obligations owing
from such Borrower, such Lender agrees, promptly upon demand, to purchase a
portion of the Advances to such Borrower held by the other Lenders so that
after such purchase each Lender will hold its ratable proportion of Advances
to such Borrower. If any Lender, whether in connection with setoff or amounts
which might be subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts which may be subject to setoff,
such Lender agrees, promptly upon demand, to take such action necessary such
that all Lenders share in the benefits of such collateral ratably in
proportion to their Aggregate Total Outstandings (in accordance with the
formula set forth in the next sentence). In addition to the equalization
accomplished by the first two sentences of this Section 12.2, if any Lender
receives the proceeds of any Collateral upon and during the continuance of any
Default, including without limitation in connection with any enforcement of
remedies hereunder, in a greater proportion (based on the ratio of such
Lender's Aggregate Total Outstandings (as calculated in Dollars based on the
U.S. Dollar Equivalent of such amount on the date of acceleration of the
Obligations pursuant to Section 8.1) to the sum of the Aggregate Total
Outstandings of all Lenders (as calculated in Dollars based on the U.S. Dollar
Equivalent of such amount on the date of acceleration of the Obligations
pursuant to Section 8.1)) than that received by any other Lender, such Lender
and all other Lenders agree to purchase participation interests in other
Lenders' Aggregate Total Outstandings and/or take such other reasonable
actions and make such other equitable adjustments among the Lenders as
reasonably agreed to by the Lenders, to ensure that each Lender receives its
proportionate share (based on its U.S. Dollar Equivalent share of the
Aggregate Total Outstandings of all Lenders) of all such proceeds of
Collateral. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
13.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (i) the
Borrowers shall not have the right to assign their rights or obligations under
the Loan Documents and (ii) any assignment by any Lender must be made in
compliance with Section 13.3. Notwithstanding clause (ii) of this Section, any
Lender may at any time, without the consent of the Borrowers or the Agent,
assign all or any portion of its rights under this Agreement, and the Loan
Documents to a Federal Reserve Bank; PROVIDED, however, that no such
assignment to a Federal Reserve Bank shall release the transferor Lender from
its obligations hereunder. The Agent may treat the payee of any Loan Document
as the owner thereof for all purposes hereof unless and until such payee
complies with Section 13.3 in the case of an assignment thereof or, in the
case of any other transfer, a
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written notice of the transfer is filed with the Agent. Any assignee or
transferee of any of the Advances or a Note agrees by acceptance thereof to be
bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the owner of any of the Advances or a
holder of any Note, shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in exchange
therefor.
13.2 PARTICIPATIONS.
13.2.1 PERMITTED PARTICIPANTS; EFFECT. Subject to Section 13.4, any
Lender may, in the ordinary course of its business and in accordance with
applicable law, at any time sell to one or more banks or other entities
("Participants") participating interests in any Obligations owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender under the Loan Documents. In the event of any
such sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of any
such Obligations or Note for all purposes under the Loan Documents, all
amounts payable by the Borrowers under this Agreement shall be determined as
if such Lender had not sold such participating interests (including without
limitation payments with respect to Non-Excluded Taxes), and the Borrowers and
the Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan Documents.
13.2.2 VOTING RIGHTS. Except in the case of a participation to an
Affiliate of such Lender, each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver
of any provision of the Loan Documents other than any amendment, modification
or waiver with respect to any Obligations or Commitment in which such
Participant has an interest which would require the consent of all Lenders
under Section 8.2.1.
13.2.3 BENEFIT OF SETOFF. The Borrowers agree that each Participant
shall be deemed to have the right of setoff provided in Section 12.1 in
respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under the Loan Documents, PROVIDED that
each Lender shall retain the right of setoff provided in Section 12.1 with
respect to the amount of participating interests sold to each Participant. The
Lenders agree to share with each Participant, and each Participant, by
exercising the right of setoff provided in Section 12.1, agrees to share with
each Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 12.2 as if each
Participant were a Lender.
13.3 ASSIGNMENTS.
13.3.1 PERMITTED ASSIGNMENTS. Subject to Section 13.4, any Lender
may, in the ordinary course of its business and in accordance with applicable
law, at any time assign to one or more banks, finance companies, insurance
companies or other financial institutions or funds that are engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary course
of its business or any other entity ("Purchasers") all or any part of its
rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit J hereto (an "Assignment") or in such
other form as may be agreed to by the parties thereto. The consent of the
Agent, any Issuer and the Company shall be required prior to an assignment
becoming effective, provided that the consent of the Company shall not be
unreasonably withheld or delayed and shall not be required upon and during the
continuance of any Default or if such assignment is to another Lender or to an
Affiliate of a Lender. No such assignment
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may be made to a manufacturing company or any of its Affiliates which is a
direct competitor of the Company, unless a Default has occurred under Section
7.6. Each such assignment shall be in an amount not less than the lesser of (i)
$10,000,000 (or its equivalent in the relevant Available Foreign Currency), or
(ii) the remaining amount of the assigning Lender's Commitment (calculated as
at the date of such assignment).
13.3.2 EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent of a
notice of assignment, substantially in the form attached as Exhibit J to
Exhibit K hereto (a "Notice of Assignment"), together with any consents
required by Section 13.3.1, and (ii) payment of a $3,500 fee to the Agent for
processing such assignment (provided that such fee shall not be required if
such assignment is to an existing Lender or an Affiliate thereof), and such
assignment shall become effective on the effective date specified in such
Notice of Assignment. The Notice of Assignment shall contain a representation
by the Purchaser to the effect that none of the consideration used to make the
purchase of the Commitment and Loans under the applicable assignment agreement
are "plan assets" as defined under ERISA and that the rights and interests of
the Purchaser in and under the Loan Documents will not be "plan assets" under
ERISA. On and after the effective date of such assignment, such Purchaser
shall for all purposes be a Lender party to this Agreement and any other Loan
Document executed by the Lenders and shall have all the rights and obligations
of a Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by the Company, the
Lenders or the Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitments and Advances assigned
to such Purchaser. Upon the consummation of any assignment to a Purchaser
pursuant to this Section 13.3.2, the transferor Lender, the Agent and the
Company shall make appropriate arrangements so that replacement Notes, if
applicable, are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted
pursuant to such assignment.
13.4 DISSEMINATION OF INFORMATION. Each Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of the Company and its
Subsidiaries, PROVIDED that each Transferee and prospective Transferee agrees
to be bound by Section 10.12.
13.5 TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof (in the case of
a Transferee which is a Lender to the Company), or of the jurisdiction in
which a Foreign Subsidiary Borrower is located (in the case of a Trustee which
is a Lender to such Foreign Subsidiary Borrower), the transferor Lender shall
cause such Transferee, concurrently with the effectiveness of such transfer,
to comply with the provisions of Section 3.6.
ARTICLE XIV
NOTICES
-------
14.1 NOTICES. Except as otherwise permitted by Article II with
respect to borrowing notices, all notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of a Borrower or the Agent, at its address or facsimile number set forth
on the signature pages hereof, (y) in the case of any Lender, at its address
or facsimile number set forth in Schedule 1.1(a) hereto or on the signature
pages hereto or otherwise established pursuant to an Assignment or (z) in the
case of any party, such other address or facsimile number as such party may
hereafter specify for the purpose by notice to
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the Agent and the Borrowers. Each such notice, request or other communication
shall be effective (i) if given by facsimile transmission, when transmitted to
the facsimile number specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (iii)
if given by any other means, when delivered at the address specified in this
Section; PROVIDED that notices to the Agent under Article II shall not be
effective until received.
14.2 CHANGE OF ADDRESS. Any Borrower, the Agent and any Lender may
each change the address for service of notice upon it by a notice in writing
to the other parties hereto.
ARTICLE XV
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrowers, the
Agent and the Lenders and each party has notified the Agent by telex or
telephone, that it has taken such action.
ARTICLE XVI
CHOICE OF LAW, CONSENT TO JURISDICTION,
---------------------------------------
WAIVER OF JURY TRIAL, JUDGMENT CURRENCY
---------------------------------------
16.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
MICHIGAN.
16.2 WAIVER OF JURY TRIAL. EACH BORROWER, THE AGENT AND EACH LENDER
HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
16.3 SUBMISSION TO JURISDICTION; WAIVERS. (a) Each Borrower hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any
legal action or proceeding relating to this Agreement and
the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of any
United States federal or Michigan state court sitting in
Detroit, Michigan and appellate courts from any thereof;
(ii) consents that any such action or proceeding
may be brought in such courts and waives any objection that
it may now or hereafter have to the venue of any such action
or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
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(iii) agrees that service of process in any such
action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the
Company or such Foreign Subsidiary Borrower, as the case may
be, at the address specified in Section 14.1, or at such
other address of which the Agent shall have been notified
pursuant thereto;
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner
permitted by law or shall limit the right to sue in any
other jurisdiction; and
(v) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal
action or proceeding referred to in this subsection any
special, exemplary, punitive or consequential damages.
(b) Each Foreign Subsidiary Borrower hereby irrevocably
appoints the Company as its agent for service of process in any
proceeding referred to in Section 16.3(i) and agrees that service of
process in any such proceeding may be made by mailing or delivering a
copy thereof to it care of Company at its address for notices set
forth in Section 14.1.
16.4 ACKNOWLEDGMENTS. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) none of the Agent or any Lender has any fiduciary
relationship with or duty to such Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents,
and the relationship between the Agent and the Lenders, on the one
hand, and the Borrowers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrowers and the
Lenders.
16.5 POWER OF ATTORNEY. Each Foreign Subsidiary Borrower hereby
grants to the Company an irrevocable power of attorney to act as its
attorney-in-fact with regard to matters relating to this Agreement and each
other Loan Document, including, without limitation, execution and delivery of
any amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of
process in connection herewith or therewith. Each Foreign Subsidiary Borrower
hereby explicitly acknowledges that the Agent and each Lender have executed
and delivered this Agreement and each other Loan Document to which it is a
party, and has performed its obligations under this Agreement and each other
Loan Document to which it is a party, in reliance upon the irrevocable grant
of such power of attorney pursuant to this subsection. The power of attorney
granted by each Foreign Subsidiary Borrower hereunder is coupled with an
interest.
16.6 JUDGMENT. (a) If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, under applicable law that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Agent
could purchase the first currency with
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such other currency in the city in which it normally conducts its foreign
exchange operation for the first currency on the Business Day preceding the day
on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from it
to any Lender hereunder shall, notwithstanding any judgment in a currency (the
"JUDGMENT CURRENCY") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "AGREEMENT
CURRENCY"), be discharged only to the extent that on the Business Day
following receipt by such Lender of any sum adjudged to be so due in the
Judgment Currency such Lender may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency; if the amount of
Agreement Currency so purchased is less than the sum originally due to such
Lender in the Agreement Currency, such Borrower agrees notwithstanding any
such judgment to indemnify such Lender against such loss, and if the amount of
the Agreement Currency so purchased exceeds the sum originally due to any
Lender, such Lender agrees to remit to such Borrower such excess.
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IN WITNESS WHEREOF, the Borrowers, the Lenders and the Agent have
executed this Agreement as of the date first above written.
MYERS INDUSTRIES, INC
By:_______________________________
Print Name:_______________________
Title:____________________________
1293 South Main Street
Akron, Ohio 44307
Attention: Stephen Myers
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FOREIGN SUBSIDIARY BORROWERS:
MYERS AE, SA
By:____________________________
Print Name:____________________
Title:_________________________
1293 South Main Street
Akron, Ohio 44307
Attention: Stephen Myers
MYELin International Finance, SA
By:_____________________________
Print Name:_____________________
Title:__________________________
1293 South Main Street
Akron, Ohio 44307
Attention: Stephen Myers
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BANK ONE, MICHIGAN, formerly known as
NBD Bank, as Agent and as a Lender
By:__________________________________
Print Name:__________________________
Title:_______________________________
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Paul Demelo
FIRST CHICAGO NBD BANK, CANADA, as
the Affiliate designated by Bank One,
Michigan to make Multicurrency Loans
to the Canadian Borrower on its behalf
By:___________________________________
Print Name:___________________________
Title:________________________________
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SOCIETE GENERALE NEW YORK BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
1221 Avenue of the Americas
New York, New York 10020
Attention: Cynthia Colucci
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KEYBANK NATIONAL ASSOCIATION
By:_________________________________
Print Name:_________________________
Title:______________________________
127 Public Square
Cleveland, Ohio 44114
Attention: J.T. Taylor
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THE CHASE MANHATTAN BANK
By:________________________________
Print Name:________________________
Title:_____________________________
250 W. Huron, 5th Floor
Cleveland, Ohio 44113
Attention: Hank Centa
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MELLON BANK, N.A.
By:__________________________________
Print Name:__________________________
Title:_______________________________
Two Mellon Bank Center, Room 230
Pittsburgh, PA 15259
Attention: Debra McAllonis
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NATIONAL CITY BANK
By:________________________________
Print Name:________________________
Title:_____________________________
1 Cascade Plaza, 3rd Floor
Akron, Ohio 44308
Attention: Peter W. Richer
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STAR BANK, N.A.
By:_________________________________
Print Name:_________________________
Title:______________________________
156 South Main, 2nd Floor
Akron, Ohio 44308
Attention: Phil Deetwyler
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HARRIS TRUST AND SAVINGS BANK
By:_________________________________
Print Name:_________________________
Title:______________________________
111 West Monroe, 10th Floor W.
Chicago, Illinois 60603
Attention: Kwang Son
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FIRST MERIT BANK, N.A.
By:______________________________
Print Name:______________________
Title:___________________________
106 South Main Street
Akron, Ohio 44308
Attention: Steve Mysko
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FIFTH THIRD NATIONAL BANK
By:_______________________________
Print Name:_______________________
Title:____________________________
1404 E. Ninth, 3rd Floor
Cleveland, Ohio 44114
Attention: Roy Lanctot
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DEN DANSKE BANK
By:_________________________________
Print Name:_________________________
Title:______________________________
200 Park Avenue, 4th Floor East Bldg.
New York, New York 10017
Attention: Dan Lenzo
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COMERICA BANK
By:______________________________
Print Name:______________________
Title:___________________________
500 Woodward Avenue, MC3268
Detroit, MI 48226
Attention: Jeff Judge
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EXHIBIT 99(a)
Myers Industries Grows Horticultural Container
Business With Addition of Dillen Products Companies
AKRON, Ohio--July 2, 1999--Myers Industries, Inc. (AMEX:MYE) has agreed to
purchase for cash and assumption of liabilities the assets and operations of the
Dillen Products Companies of Middlefield, Ohio. Dillen is a leading manufacturer
and distributor of plastic horticultural containers in North America and had
1998 net sales of approximately $40 million. The acquisition is expected to
close later this summer, but is subject to regulatory approval and normal
conditions of closing.
"Dillen is highly regarded in the horticultural container industry and
complements our existing business in the lawn and garden segment," said Stephen
E. Myers, president and chief executive officer of Myers Industries. "Dillen
also has strong distribution channels within the grower and retailer segments of
the horticultural market."
Dillen was founded in 1984 by Richard Bonner, president, and it quickly advanced
to become a major supplier of plastic planters and trays to the grower segment
of the horticultural market. Dillen's product line today includes proprietary
pots, trays, bowls, saucers, and decorative planters; the company is also North
America's largest producer of hanging baskets. Products are made at the
company's manufacturing and warehousing facilities in Middlefield, Ohio,
utilizing injection molding and thermoforming processes. The product range
serves the needs of growers of flowers, trees, shrubs, and other plants at
greenhouses and nurseries, as well as retail garden centers and mass
merchandisers around the country.
Commenting on the agreement, Mr. Bonner said, "The acquisition will strengthen
Dillen's ability to meet customer demands for products and service. Myers
provides the resources to maximize the potential of the Dillen brand in this
growth market."
The addition of Dillen enhances Myers' presence in the container niche of the
greenhouse, nursery, and retail segments of the horticultural market. "The
matchup of our product lines raises new marketing prospects," Mr. Myers said.
"Together, we will have greater capabilities and a broader selection of products
to offer growers, retailers, and consumers."
Myers Industries, Inc., headquartered in Akron, Ohio, is a global manufacturer
of polymer and metal products for industrial, agricultural, automotive,
commercial, and consumer markets. The Company is also the largest wholesale
distributor of tools, equipment, and supplies for the tire service and
automotive underbody repair industry in the United States.
Safe Harbor Statement: Statements in this press release may include forward
looking statements that involve a number of risks and uncertainties that could
cause actual results to materially differ from those discussed. For this
purpose, any statement that is not a statement of historical fact may be deemed
to be a forward-looking statement.
Contact:
Myers Industries, Inc.
Gregory J. Stodnick, 330/253-5592
Web: http://www.myersind.com
