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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):FEBRUARY 4, 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
A. ACQUISITION OF THE MATERIAL HANDLING DIVISION OF SOMMER ALLIBERT S.A.
On December 3, 1998, Sommer Allibert S.A. ("Sommer Allibert"), a French
corporation, and Myers Industries, Inc., an Ohio corporation ("Myers" or the
"Company"), entered into an agreement whereby Myers agreed to acquire the
plastic material handling of division of Sommer Allibert, with facilities
throughout Europe and in North America. The acquisition included all of the
interests in Allibert-Contico, LLC, a Missouri limited liability company with
facilities primarily in Springfield, Missouri, part of which are being acquired
pursuant to an agreement with Contico International, Inc. On February 4, 1998,
Myers closed the transactions, following the expiration of the necessary waiting
period for regulatory approval and the satisfaction of other conditions of
closing.
The combined purchase price was approximately $200.0 million including
assumed debt. The acquisition is not expected to have a material effect on
Myers'1999 earnings, and is expected to be accretive thereafter. The acquisition
was financed through a new $250.0 million multi-currency credit facility.
On December 3, 1998, and February 4, 1999, Myers issued a press releases
announcing the acquisition and the closing, a copy of both are included as
Exhibit 99(a) and 99(b) hereto and incorporated by reference herein.
The preceding description of the agreements are qualified in their
entirety by reference to the copies of the agreements included as Exhibits 10(a)
through 10(e) hereto, and which are incorporated by reference herein.
B. NEW CREDIT FACILITY WITH NBD BANK, N.A.
On February 3, 1999 Myers entered into a new $250.0 million
multi-currency credit facility with NBD Bank, N.A., on behalf of itself and as
agent for a syndicate of other lenders. Funds under the multi-currency credit
facility are available for acquisitions, working capital and general corporate
purposes. On February 3, 1999, the Company borrowed approximately $200.0 million
in various currencies to fund the acquisition of the material handling division
of Sommer Allibert S.A., including the assumption and repayment of debt
associated with the acquisition.
Each significant domestic subsidiary of the Company has guaranteed all
obligations of the Company under the new multi-currency credit facility. In
addition, these obligations are to be 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 new multi-currency credit
facility rank senior to substantially all other indebtedness of the Company.
The multi-currency credit facility contains certain customary reporting
covenants and other customary affirmative and negative covenants. The credit
facility also contains customary events of default.
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On February 3, 1999, Myers issued a press release announcing the new
multi-currency credit facility which is attached as Exhibit 99(c) hereto and
incorporated by reference herein.
The preceding description of the new multi-currency credit facility is
qualified in its entirety by reference to the copy of the Loan Agreement dated
as of February 3, 1999 between Myers Industries, Inc. and NBD Bank, as Agent,
included as Exhibit 10(f) and incorporated by reference herein.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of Business Acquired
The financial statements required by this Item will be filed by the
registrant by amendment to this Form 8-K within 60-days.
(b) Pro Forma Financial Information
The pro forma financial information required by this Item will be
filed by the registrant by amendment to this Form 8-K within 60-days.
(c) Exhibits
10(a) Protocole between Myers Industries, Inc. and Allibert Holding,
SA, SEDITEP, SA, Sauvagnat Allibert, SA, Allibert Transport und
Lagertechnik GmbH and Sommer Allibert, SA (English Translation)
(Incorporated by reference from Exhibit 10(a) to the Registrants
Form 8-K filed with the Commission on December 17, 1999)
10(b) Warranty Agreement between Myers Industries, Inc. and Allibert
Holding, SA, SEDITEP, SA, Sauvagnat Allibert, SA, Allibert
Transport und Lagertechnik GmbH and Sommer Allibert, SA,
(English Translation)(Incorporated by reference from Exhibit
10(b) to the Registrants Form 8-K filed with the Commission on
December 17, 1999)
10(c) Option Agreement between Myers Industries, Inc. and Allibert
Equipement US, Inc.(Incorporated by reference from Exhibit 10(c)
to the Registrants Form 8-K filed with the Commission on
December 17, 1999)
10(d) Sale Agreement between Myers Industries, Inc. and Contico
International, Inc.(Incorporated by reference from Exhibit 10(d)
to the Registrants Form 8-K filed with the Commission on
December 17, 1999)
10(e) Amendment No.1 to Sale Agreement between Myers Industries, Inc.
and Contico International, Inc. (Incorporated by reference from
Exhibit 10(e) to the Registrants Form 8-K filed with the
Commission on December 17, 1999)
10(f) Loan Agreement dated as of February 3, 1999 between Myers
Industries, Inc. and NBD Bank
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99(a) Text of Press Release dated December 3, 1998 issued by Myers
Industries, Inc.(Incorporated by reference from Exhibit 99 to
the Registrants Form 8-K filed with the Commission on December
17, 1999)
99(b) Text of Press Release dated February 4, 1999 issued by Myers
Industries, Inc.
99(c) Text of Press Release dated February 3, 1999 issued by Myers
Industries, Inc.
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: February 19, 1999 By: /s/ Gregory J. Stodnick
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Gregory J. Stodnick, Vice President -
Finance
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MYERS INDUSTRIES, INC.
CURRENT REPORT ON FORM 8-K
INDEX OF EXHIBITS
EXHIBIT
10(a) Protocole between Myers Industries, Inc. and Allibert Holding,
SA, SEDITEP, SA, Sauvagnat Allibert, SA, Allibert Transport und
Lagertechnik GmbH and Sommer Allibert, SA (English Translation)
(Incorporated by reference from Exhibit 10(a) to the Registrants
Form 8-K filed with the Commission on December 17, 1999)
10(b) Warranty Agreement between Myers Industries, Inc. and Allibert
Holding, SA, SEDITEP, SA, Sauvagnat Allibert, SA, Allibert
Transport und Lagertechnik GmbH and Sommer Allibert, SA (English
Translation)(Incorporated by reference from Exhibit 10(b) to the
Registrants Form 8-K filed with the Commission on December 17,
1999)
10(c) Option Agreement between Myers Industries, Inc. and Allibert
Equipement US, Inc.(Incorporated by reference from Exhibit 10(c)
to the Registrants Form 8-K filed with the Commission on
December 17, 1999)
10(d) Sale Agreement between Myers Industries, Inc. and Contico
International, Inc.(Incorporated by reference from Exhibit 10(d)
to the Registrants Form 8-K filed with the Commission on
December 17, 1999)
10(e) Amendment No.1 to Sale Agreement between Myers Industries,
Inc. and Contico International, Inc. (Incorporated by reference
from Exhibit 10(e) to the Registrants Form 8-K filed with the
Commission on December 17, 1999)
10(f) Loan Agreement dated as of February 3, 1999 between Myers
Industries, Inc. and NBD Bank
99(a) Text of Press Release dated December 3, 1998 issued by Myers
Industries, Inc.(Incorporated by reference from Exhibit 99 to
the Registrants Form 8-K filed with the Commission on December
17, 1999)
99(b) Text of Press Release dated February 4, 1999 issued by Myers
Industries, Inc.
99(c) Text of Press Release dated February 3, 1999 issued by Myers
Industries, Inc.
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EXHIBIT 10(f)
Loan Agreement dated as of February 3, 1999 between Myers Industries, Inc.
and NBD Bank
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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 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.
"Adjusted Tangible Net Worth" of any Person means, as of any date, (a)
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, less
(b) the net book value of all items of the following character which are
included in the assets of such Person: (i) goodwill, including, without
limitation, the excess of cost over book value of any asset, (ii) organization
or experimental expenses, (iii) unamortized debt discount and expense, (iv)
patents, trademarks, trade names and copyrights, (v) treasury stock, (vi)
franchises, licenses and permits, and (vii) other assets which are deemed
intangible assets under Agreement Accounting Principles.
"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 NBD 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.
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"Aggregate Commitments" means the aggregate amount, stated in U.S.
Dollars, of the Commitments of all Lenders.
"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.
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"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 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.
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"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.
"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)" 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.
"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.
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"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.
"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, Danish Revolving Credit Commitment and Term Loan Commitment and
"Commitments" means the aggregate of all of the Lenders' Commitments.
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"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.
"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.
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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 (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
(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.
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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(b)
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.
"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.
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<PAGE> 10
"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 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
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<PAGE> 11
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.
"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.
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<PAGE> 12
Plus, in each case, the Cost Rate.
"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(b) 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.
"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 NBD'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
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<PAGE> 13
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.
"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.
"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.
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<PAGE> 14
"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.
"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.
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<PAGE> 15
"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
(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
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<PAGE> 16
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) NBD, and (ii) any Lending Installation
of NBD as NBD 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.
"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
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<PAGE> 17
(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.
"Multicurrency Lender" means any Lender which has an Danish Revolving
Credit Commitment, a Euro Revolving Credit Commitment or a U.K. Revolving Credit
Commitment.
"Multicurrency Loans" means any Danish Revolving Credit Loans, Euro
Revolving Credit Loans, U.K. Revolving Credit Loans and any Swing Loans made to
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.
"NBD" means NBD Bank, a Michigan banking corporation.
"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.
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<PAGE> 18
"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 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.
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"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 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, (c) 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, (d) 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 (e) 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.
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<PAGE> 20
"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.
"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 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
19
<PAGE> 21
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.
"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 Danish Revolving Credit
Commitments, the Euro Revolving Credit Commitments, the U.K. Revolving Credit
Commitments and the U.S. Revolving Credit Commitments.
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<PAGE> 22
"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).
"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
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<PAGE> 23
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 2.1.5.
"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(b)
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.
22
<PAGE> 24
"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 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(b) 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.
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<PAGE> 25
"Year 2000 Program" is defined in Section 5.28.
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
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<PAGE> 26
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
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 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.
(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
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<PAGE> 27
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 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:
<TABLE>
<CAPTION>
Payment Date Principal Installment
- ------------ ---------------------
<S> <C>
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
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
</TABLE>
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.
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<PAGE> 28
(f) 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.
(g) 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.
(h) 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(f) and (g), 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.
2.3 Procedures for Revolving Credit Borrowing. (a) The Company may
borrow under the U.S. 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
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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, and each borrowing by the U.K. Borrower
shall be in British Pounds Sterling. 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 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 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, and the Aggregate U.S. Revolving Credit Commitments
may not be reduced below the Aggregate U.S. Revolving Credit
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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.
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, and (iv) 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.
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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,
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
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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 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
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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 NBD for each payment of principal, interest and fees as
it becomes due hereunder.
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 or U.K. 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
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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 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.
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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, and (iv) (pound)1,000,000
in the case of Facility Letters of Credit for the account of the U.K. 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 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
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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:
(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;
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(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 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
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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. 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
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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.
(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.
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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 and (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. 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
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
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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.
(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.
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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 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
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(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 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
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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 survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
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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 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.
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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
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articles of incorporation, code of regulations or by-laws or the provisions of
any indenture, instrument or 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
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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 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
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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.
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.
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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.
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.
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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 (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
Dollar Equivalent of $210,000,000.
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.
(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
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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.
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.
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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:
(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.
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(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) 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.
(vii) 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
Adjusted Tangible Net Worth of the Company immediately after the merger would be
equal to or greater than its Consolidated Adjusted Tangible 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.
(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.
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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) 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
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:
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(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 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 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).
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(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) 2.75 to 1.0 at any time on or before June 30, 2000 or (b) 2.25 to 1.0
at any time thereafter.
6.20 Adjusted Tangible Net Worth. The Company shall maintain at all
times a Consolidated Adjusted Tangible Net Worth of the Company and its
Subsidiaries at least equal to the sum of (a) the greater of 80% of the pro
forma Adjusted Tangible Net Worth as of the Effective Date or $51,000,000 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 quarter the amount added for such fiscal quarter shall be
zero and shall not reduce the amount added for any other fiscal quarter, plus
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.
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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.
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.
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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 "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
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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.
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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 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, or (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, 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 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, 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.
(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
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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
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.
8.3 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.
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.
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(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, 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.
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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 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.
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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 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
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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.
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
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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. NBD 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
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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 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
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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 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
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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 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;
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(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;
(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.
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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 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: /s/Stephen E. Myers
----------------------------
Print Name: Stephen E. Myers
---------------------
Title: Pres. and CEO
---------------------
1293 South Main Street
Akron, Ohio 44307
Attention: Stephen Myers
81
<PAGE> 83
FOREIGN SUBSIDIARY BORROWERS:
MYERS AE, SA
By: /s/Gregory J. Stodnick
----------------------
Print Name: Gregory J. Stodnick, Power of Attorney
--------------------------------------
1293 South Main Street
Akron, Ohio 44307
Attention: Mark A. Watkins
MYELin International Finance, SA
By: /s/Gregory J. Stodnick
------------------------------------------
Print Name: Gregory J. Stodnick, Power of Attorney
--------------------------------------
1293 South Main Street
Akron, Ohio 44307
Attention: Mark A. Watkins
82
<PAGE> 84
NBD BANK, as Agent and as a Lender
By: /s/Paul R. De Melo
------------------------------
Print Name: Paul R. De Melo
----------------------
Title: Vice Pres.
---------------------------
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Paul De Melo
83
<PAGE> 85
SOCIETE GENERALE NEW YORK BRANCH
By: /s/Cynthia Colucci
------------------------------
Print Name: Cynthia Colucci
----------------------
Title: Vice Pres.
---------------------------
1221 Avenue of the Americas
New York, New York 10020
Attention: Cynthia Colucci
84
<PAGE> 86
KEYBANK NATIONAL ASSOCIATION
By: /s/J.T. Taylor
------------------------------
Print Name: J.T. Taylor
----------------------
Title: Vice Pres.
---------------------------
127 Public Square
Cleveland, Ohio 44114
Attention: J.T. Taylor
85
<PAGE> 87
THE CHASE MANHATTAN BANK
By: /s/Henry W. Centa
------------------------------
Print Name: Henry W. Centa
----------------------
Title: Vice Pres.
---------------------------
250 W. Huron, 5th Floor
Cleveland, Ohio 44113
Attention: Hank Centa
86
<PAGE> 88
MELLON BANK, N.A.
By: /s/Debra L. McAllonis
------------------------------
Print Name: Debra L. McAllonis
----------------------
Title: Vice Pres.
---------------------------
Two Mellon Bank Center, Room 230
Pittsburgh, PA 15259
Attention: Debra McAllonis
87
<PAGE> 89
NATIONAL CITY BANK
By: /s/Peter W. Richer
------------------------------
Print Name: Peter W. Richer
----------------------
Title: Corp. Banking Officer
---------------------------
1 Cascade Plaza, 3rd Floor
Akron, Ohio 44308
Attention: Peter W. Richer
88
<PAGE> 90
STAR BANK, N.A.
By: /s/Philip M. Daetwyler
------------------------------
Print Name: Philip M. Daetwyler
----------------------
Title: Region Pres.
---------------------------
156 South Main, 2nd Floor
Akron, Ohio 44308
Attention: Phil Daetwyler
89
<PAGE> 91
HARRIS TRUST AND SAVINGS BANK
By: /s/Kwang S. Son
------------------------------
Print Name: Kwang S. Son
----------------------
Title: Asst. Vice Pres.
---------------------------
111 West Monroe, 10th Floor W.
Chicago, Illinois 60603
Attention: Kwang Son
90
<PAGE> 92
FIRSTMERIT BANK, N.A.
By: /s/Stephen F. Mysko
------------------------------
Print Name: Stephen F. Mysko
----------------------
Title: Vice Pres.
---------------------------
106 South Main Street
Akron, Ohio 44308
Attention: Steve Mysko
91
<PAGE> 93
FIFTH THIRD NATIONAL BANK
By: /s/Roy C. Lanctot
------------------------------
Print Name: Roy C. Lanctot
----------------------
Title: Vice Pres.
---------------------------
1404 E. Ninth, 3rd Floor
Cleveland, Ohio 44114
Attention: Roy Lanctot
92
<PAGE> 94
DEN DANSKE BANK
By: /s/Peter L. Hargraves
---------------------------------
Print Name: Peter L. Hargraves
-------------------------
Title: Vice Pres.
------------------------------
By: /s/John A. O'Neil
---------------------------------
Print Name: John O'Neil
------------------------
Title: Vice Pres.
-----------------------------
200 Park Avenue, 4th Floor East Bldg.
New York, New York 10017
Attention: Dan Lenzo
93
<PAGE> 95
COMERICA BANK
By: /s/Jeffrey J. Judge
------------------------------
Print Name: Jeffrey J. Judge
----------------------
Title: Vice Pres.
---------------------------
500 Woodward Avenue, MC3268
Detroit, MI 48226
Attention: Jeff Judge
94
<PAGE> 1
EXHIBIT 99(b)
Myers Industries Completes French Acquisition
AKRON, Ohio--Feb. 4, 1999--Myers Industries, Inc. (AMEX:MYE) today announced it
has completed the acquisition of Allibert Equipment, the plastic material
handling division of Sommer Allibert, a publicly traded French company.
"We establish an immediate and significant international presence for our
Company with this acquisition," said Stephen E. Myers, president and CEO. "The
purchase provides us with excellent competitive tools for sustainable long-term
growth."
Jean Paul Lesage, managing director of Allibert Equipment, will continue to lead
Myers' new European operations.
Myers Industries, Inc. is a manufacturer of polymer and metal products for
industrial, commercial, and consumer markets, and the largest wholesale
distributor of tools, equipment, and supplies for the tire service and
automotive underbody repair industry in the United States.
Contact:
Myers Industries, Inc.
Gregory J. Stodnick, 330/253-5592
Vice President, Finance
<PAGE> 1
EXHIBIT 99(c)
Myers Industries, Inc. Obtains $250 Million Line of Credit
AKRON, Ohio--Feb. 3, 1999--Myers Industries, Inc. (AMEX:MYE) today announced it
has closed on a $250 million multi-currency revolving credit and term loan
facility arranged by First Chicago Capital Markets, Inc.
The funds will be used for acquisitions and general corporate purposes.
"The credit facility gives us greater latitude to increase Myers Industries'
value and pursue opportunities for expansion as they may occur," said Stephen E.
Myers, president and CEO. "We are pleased to have received these financing
agreements and see them as an indication of confidence in the long-term strength
of Myers Industries' business."
Myers Industries, Inc. is a manufacturer of polymer and metal products for
industrial, commercial, and consumer markets, and the largest wholesale
distributor of tools, equipment, and supplies for the tire service and
automotive underbody repair industry in the United States.
Contact:
Myers Industries, Inc., Akron
Gregory J. Stodnick, 330/253-5592
