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 1, 1995
CINCINNATI MILACRON INC.
(Exact name of registrant as specified in charter)
Delaware 1-8475 31-1062125
(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification
incorporation) No.)
4701 Marburg Avenue, Cincinnati, Ohio 45209
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (513) 841-8100
NONE
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets
On February 1, 1995 (the "Closing Date") pursuant to
the Stock Purchase Agreement dated as of November 28,
1994 (the "Purchase Agreement"), Cincinnati Milacron
Inc. (the "Registrant"), through its subsidiaries,
acquired the capital stock of Krupp Widia GmbH,
a German corporation ("Widia") from Fried. Krupp AG
Hoesch-Krupp, a German corporation (the "Seller").
(The Registrant acquired 99.92% of Widia's capital
stock and B.T. Foreign Investment Corp. holds the
remainder.) Widia is engaged in the business of manufacturing,
assembling, selling and distributing metal cutting
products including carbide inserts and steel insert
holders, carbide die and wear products, and industrial
magnets. The purchase includes Widia's 51% interest in
Widia (India), Ltd., a public company ("Widia-India").
A copy of the Purchase Agreement is filed herewith as
Exhibit 2.1 and reference is made thereto for the
complete terms and conditions thereof.
The total purchase price, including assumed debt and
liabilities of approximately 33,000,000 DM is
approximately 154,000,000 DM (approximately $99,000,000
using the exchange rate in effect on the Closing Date).
Included in the assumed debt and liabilities is
approximately 19,000,000 DM (approximately $12,000,000)
of debt owed by Widia-India. The Registrant obtained
the purchase price through or in connection with an
amendment to its revolving credit facility with its
existing bank group, which was amended prior to the
Closing Date to increase the Total Revolving Loan
Commitment from $130,000,000 to $200,000,000 and to
allow up to $100,000,000 of such amount to be drawn in
Deutsch Marks (a copy of the Amended and Restated
Revolving Credit Agreement dated as of December 31,
1994 is filed herewith as Exhibit 99.1 and reference is
made thereto for the complete terms and conditions
thereof (including the identity of the parties
thereto)). 125,000,000 DM (approximately $80,000,000)
of the Total Revolving Loan Commitment was drawn in
connection with the acquisition.
No material relationship exists between the Seller and
the Registrant or any of its affiliates, directors or
officers, or any associate of any such directors or
officers.
Widia is one of the world's leading producers of metal
cutting products including carbide inserts and steel
insert holders. Widia is also a leading supplier of
carbide die and wear products and industrial magnets.
The Registrant intends to operate Widia as a wholly-
owned subsidiary of the Registrant and to have Widia
continue to use a majority of its plant, equipment and
other physical property substantially as it did prior
to the Closing Date.
The Press Release of the Registrant dated February 1,
1995, announcing the completion of the acquisition
described above is filed herewith as Exhibit 99.2 and
is incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits
It is impracticable to provide the required financial
statements and pro forma financial information at this
time. The required financial statements and pro forma
financial information will be filed under cover of
Form 8-K/A as soon as practicable, but not later than
April 17, 1995, as required by Item 7(a)(4) of the
General Instructions.
The following Exhibits are included with this Form 8-K.
Exhi-
bit
Number
Description of Exhibit
Sequential
Page
Number
2.1
Stock Purchase Agreement dated as
of November 28, 1994, between
Cincinnati Milacron B.V., a Dutch
corporation, Cincinnati Milacron
Kunststaffmaschinen Europe GmbH, a
German corporation and Fried.
Krupp A.G. Hoesch-Krupp, a German
corporation (Schedules and
Exhibits have been omitted
pursuant to Rule 6.01(b)(2) of
Regulation S-K. Such Schedules
and Exhibits are listed and
described in the Stock Purchase
Agreement. The Registrant hereby
agrees to furnish to the
Securities and Exchange
Commission, upon its request, any
or all of such omitted Schedules
and Exhibits).
99.1
Amended and Restated Revolving
Credit Agreement dated as of
December 31, 1994 among Cincinnati
Milacron Inc., Cincinnati Milacron
Kunststaffmaschinen Europe GmbH,
the lenders listed therein and
Bankers Trust Company, as agent.
99.2
Press release of the Registrant
dated February 1, 1995.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
CINCINNATI MILACRON INC.
Date: February 14, 1995 By: /s/ Ronald D. Brown
Ronald D. Brown
Vice President - Finance<PAGE>
SECURITIES AND EXCHANGE C OMMISSION
Washington, D.C. 20549
EXHIBITS
Volume I
Filed with Form 8-K
Date of Report: February 1, 1995
Current Report Under the Securities
Exchange Act of 1934
CINCINNATI MILACRON INC.
Exhibit 2.1
A.Prot. 1994/178
NOTARIAL DEED
STOCK PURCHASE AGREEMENT
Negotiated at Basel/Switzerland this 28th (twenty-eighth) day of
November 1994 (nineteen hundred and ninety-four).
Before me, the undersigned Notary Public
STEPHAN CUENI
at Basel/Switzerland appeared today:
1. Mrs. Dorothea G. Kettendorf, in-house counsel, born August
1, 1949, German citizen, with business address at
Altendorfer Strasse 103, D-45143 Essen and private domicile
at Walter Hohmann Strasse 17, 45128 Essen identified by her
passport,
acting not in her own name but in the name and on behalf of
Fried. Krupp AG Hoesch-Krupp, a German corporation with head
office at Essen, registered with the Commercial Register at
the Commercial Court of Essen under No. HRB 9633 and
Dortmund under No. HRB 10455, according the attached power
of attorney dated November 25, 1994,
2. Dr. Wolfhard Kuppers, attorney, born July 28, 1961, German
citizen, with business address Trinkausstrasse 7, D-40213
Dusseldorf and private domicile at Herderstrasse 92, D-40237
Dusseldorf, identified by his German identity card
acting not in his own name but in the name and on behalf of
a) Cincinnati Milacron Kunststoffmaschinen Europa GmbH, a
German corporation with head office at Malterdingen,
registered with the Commercial Register at the
Commercial Court of Emmendingen under No. HRB 914,
according to the attached power of attorney dated
November 22, 1994 and according to the attached extract
from the Commercial Register dated November 10, 1994,
and
b) Cincinnati Milacron B.V., a Dutch corporation with head
office at Vlaardingen, registered with the Register of
the Kamer van Koophandel en Fabrieken voor Rotterdam en
de Beneden-Maas under No. 209768, according to the
attached power of attorney dated November 23, 1994 and
the attached extract from the aforementioned Register
dated November 4, 1994. (as far as Mr. Jan van Nooijen
should not have the power to bind the company with his
single signature, Mr. Kuppers is acting as attorney
without power of representation and insofar retaining
the right of obtaining approval)
Both parties asked for notarization in the English language. As
the acting notary speaks English and has satisfied himself that
both parties have command over the English language, the
submission of a certified translation or the assistance of a
sworn interpreter was waived.
The persons appeared asked for the Notarization of the following:
STOCK PURCHASE AGREEMENT
between
Fried. Krupp AG Hoesch-Krupp, a German corporation of Essen and
Dortmund
- hereinafter referred to as "Seller" -
on the one side
and
Cincinnati Milacron Kunststoffmaschinen Europa GmbH, a German
corporation of Malterdingen
and
Cincinnati Milacron B.V., a Dutch corporation of Vlaardingen
- hereinafter collectively referred to as "Buyer"-
on the other side.
<PAGE>
R E C I T A L S
A. Krupp Widia GmbH, a German corporation of D-45143 Essen
(KW), is engaged in the business of manufacturing,
assembling, selling and distributing tools and wear parts of
sintered carbide and other hard materials, of magnets and of
medical engineering. The business of KW is carried out
within KW itself, within subsidiaries of KW and within
subsidiaries or divisions of Seller or other Seller's
subsidiaries which from a functional point of view are
subordinated to KW. Such subsidiaries and divisions of
Seller shall become subsidiaries of KW before Closing.
B. Seller owns all 100 % of the shares of capital stock of KW.
C. Buyer desires to purchase from Seller as set forth in Art.
1.1, and Seller desires to sell to Buyer, essentially all
stock of KW which at the time of Closing shall own the
shares of the subsidiaries defined in Art. 2.2 below
(hereinafter collectively referred to as KW group) - except
for the specific treatment of the shares in Krupp Widia
Nederland B.V. set out in this Agreement - thereby disposing
of its world-wide business regarding tools and wear parts of
sintered carbide and other hard materials and of magnets,
upon the terms and conditions set forth in this Agreement.
Therefore, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties agree as
follows:
Ar ticle 1
SA LE AND PURCHASE OF STOCK
1.1 Shares being sold and assigned
Subject to the terms and conditions of this Agreement,
Seller hereby sells and assigns, at the price and on the
terms set forth herein, shares of KW in an aggregate nominal
value of DM 124,900,000.-- to Buyer as follows.
Buyer hereby accepts this sale and assignment:
- Seller causes KW to assign to Cincinnati Milacron B.V.
upon Closing, but immediately before the assignment set
out below takes effect, all shares in Krupp Widia
Nederland B.V. against payment to KW in the amount of
DM 3,728,000.-- equalling the book value of Krupp
Widia Nederland B.V. on the books of KW
- and Seller assigns to Cincinnati Milacron Kunst-
stoffmaschinen Europa GmbH shares in KW in the nominal
amount of DM 124,900,000.--.
Prior to Closing Seller shall cause the shares in KW to be
divided in such a way as to allow for the transfers
stipulated in this agreement.
It is understood between the parties that at Closing KW will
have acquired the shares of Krupp Widia France S.A., Krupp
Widia U.K. Ltd. and the Widia Division of Krupp Hispania
S.A. which are presently held by Seller or other Krupp
subsidiaries, the Widia Division of Krupp Hispania S.A.
prior to Closing having been formed as a separate legal
entity.
It is further understood between the parties that the
separate assignment of the shares in Krupp Widia Nederland
B.V. is effected for structural reasons and that regarding
any other obligation of either party, and for purposes of
all representations, warranties, covenants and indemnities,
this Agreement shall be read as if no such separate
assignment had taken place.
1.2 Consideration
In full payment for the shares under Art. 1.1 at Closing
Buyer shall deliver, or cause to be delivered, the "Net
Transfer Price" as defined below in immediately available
funds plus interest at the rate of 6 percent p.a. as from
January 1, 1995.
The Net Transfer Price shall be calculated by adding to the
Purchase Price of
DM 149,900,000.--
- the amount received by KW for the sale of its shares of
KruppMedizintechnik GmbH pursuant to Art. 4.2 b) DM
3,000,000.--
- the amount received by KW for the sale of its shares of
HW Hartmetall und Werkzeugtechnik
Beteiligungsgesellschaft mbH pursuant to Art. 4.2c)
DM 50,000.--
and subtracting from such sum
- the amounts due from KW in consideration of achieving
the group structure pursuant to Art. 4.2 a)
- KW France DM 10,480,000.--
- KW U.K. DM 383,000.--
- Div. Hispania
(incl. Herko) DM 3,810,000.--
- the amount of the Forecasted Result of KW for 1994 as
set out in Art. 1.5
DM 25,000,000.--
Leading to a Net Transfer Price of DM 113,277,000.--
1.3 Effective Date
The transactions contemplated herein shall have economic
effect as from December 31, 1994/January 1, 1995 (the
"Effective Date"), and all product sales and other
transactions between the Effective Date and Closing shall be
deemed to be for the account of Buyer as though having
occurred subsequent to Closing.
1.4 Closing
a) The transfer and assignment of the shares ("Closing")
shall be effective not immediately upon signing of this
document, but shall be effective as of the payment of
the Net Transfer Price which will take place at Closing
to occur on the day the following conditions are
fulfilled if such day is the first day of a month or
otherwise the next first day of a month or on any other
day the parties may agree upon, provided that Closing
shall not take place before February 1, 1995:
- The German Federal Cartel Office has approved this
transaction or the transaction is deemed to have
been approved as a result of a failure of the
Federal Cartel Office to object;
- the supervisory board of Seller has approved the
execution of this Agreement;
- the boards of Buyer and their corporate parent
have ratified the execution of this Agreement.
Upon Closing simultaneously the parties shall
- execute the transfer deed necessary for the
separate purchase of Krupp Widia Nederland B.V. as
stipulated in Art. 1.1, essentially along the
lines of Schedule 1.4.1;
- the Buyer shall pay the Net Transfer Price plus
interest in accordance with Art. 1.2;
- the Seller shall transfer to Bankers Trust a share
in KW in the nominal amount of DM 100,000.--
against payment of a consideration in the amount
of DM 100,000.-- essentially along the lines of
Schedule 1.4.2.
b) The parties assume that all governmental approvals
required for countries in which the KW group is active
or marketing its products and all minority shareholders
consents, if any, will have been obtained by May 31,
1995. Should the German Federal Cartel Office not have
approved or not be deemed to have approved the
acquisition of the KW group in total relative to
Germany by that date, then this is agreed to have such
a severe impact that this Agreement is considered to be
null and void. Should, however, other markets
(including India) be affected, then the parties shall
seek to find an alternative solution which accomplishes
the purpose of this Agreement taking into account the
interest of all parties. Should for any reason Closing
not have occured by May 31, 1995, either party may
terminate this Agreement by written notice, provided
however, that no party may terminate which is in a
breach of this Agreement, if such breach caused the de-
lay of Closing. Any such termination shall not
terminate any rights or remedies a party may have
against the other for any breaches of this Agreement.
c) At Closing Seller shall confirm to Buyer in writing
that the transfer and assignment of the shares in KW
provided for herein has taken place.
d) Each party shall without undue delay provide the other
party with a written confirmation after such
approval/ratification by the Boards on its part as set
forth in Art. 1.4 a).
e) Notarial charges, as well as any applicable land
transfer tax and the costs for obtaining governmental
approvals in connection with the implementation of this
Agreement shall be borne by Buyer.
All costs, taxes (including transfer taxes) and
notarial fees, if any, for making Krupp Widia France
S.A., Krupp Widia U.K. Ltd. and the Widia Division of
Krupp Hispania S.A. subsidiaries of KW and any other
transfers set out in Art. 4.2 a), b), c) and e) shall
be borne by Seller.
Each party shall bear the costs and expenses of its own
legal, tax and other advisers.
f) Seller shall procure that as at Closing all members of
the supervisory board of KW nominated by Seller and
being employed by Seller or any of its affiliates shall
resign if and to the extent this is desired by Buyer.
The same principle shall apply if directors or
employees of Seller or any of its affiliates have been
appointed non-executive board members of any other
member of the KW group.
g) If required by Buyer and to the extent legally
possible, Seller shall procure that all auditors which
may have been appointed for any member of the KW group
in respect of years after 1994 will resign no later
than at Closing.
h) Seller shall use its best endeavours to obtain or to
assist Buyer in obtaining all necessary approvals of
governmental authorities and any relevant third parties
in and outside Germany.
1.5 Forecasted Result of the KW Group for 1994
Seller shall by means of an offset against the Purchase
Price assume the forecasted result of the KW group for the
business year 1994 in the amount of a loss of
DM 25,000,000.-- (the "Forecasted Result 1994"), this amount
being the estimated pre tax result plus an additonal loss
figure in the amount of DM 741,000.--. The Forecasted Result
1994 shall not take into account the sale of Krupp Widia
Nederland B.V. to Cincinnati Milacron B.V..
The Forecasted Result 1994 is shown in Schedule 1.5 and has
been calculated with the care of a prudent businessman
knowledgable about the business of KW and in accordance with
the Applicable Accounting Principles as defined in Art. 2.3
on a basis consistent with past practice. The facts and
assumptions upon which the Forecasted Result 1994 has been
based were collected in good faith and, to Seller's best
knowledge, are fair, accurate and complete.
Seller undertakes not to take any action until the Effective
Date that would cause any special charges to be included in
the consolidated balance sheet of the KW group for the
fiscal year 1994 except for those set forth in the Schedule
1.5, whereas the restructuring of the KW group as
contemplated in this agreement shall not be considered to
cause special charges.
Art icle 2
REP RESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties to
Buyer, whereby the phrase "to Seller's best knowledge" shall mean
"to the best knowledge of Seller after reasonable inquiry and to
the best knowledge of the management and executives of the KW
group listed in Schedule 2".
2.1 Organization and Good Standing
a) KW is a corporation duly organized, validly existing
and in good standing under the laws of Germany. KW has
full corporate power and authority to own or lease its
properties and to carry on its business as now being
conducted. KW is duly qualified or licensed to do
business as a foreign corporation in all jurisdictions
in which the present conduct of its business requires
such qualification or licensing.
The above shall apply correspondingly to all other
companies within the KW group.
b) The copies of the Articles of Incorporation (Satzung),
shareholders agreements and Bylaws (Geschaftsordnung)
of KW and any other member of the KW group, each as
currently in effect, delivered to Buyer and listed in
Schedule 2.1, are complete and correct. There are no
voting trust agreements, sub-participation agreements,
silent participation agreements or "Unternehmensver-
trage" within the meaning of Section 291 et seq. AktG,
except for the domination and profit and loss transfer
agreement with Krupp Medizintechnik GmbH which will be
terminated as per Effective Date.
c) Schedule 2.1.2 sets forth the consents of all third
parties and governmental bodies required on the part of
Seller, KW or the other members of the KW group to
consummate the transactions contemplated by this
Agreement. Except to the extent of the required
consents listed on Schedule 2.1.2, this Agreement and
the consummation of the transactions contemplated
hereby do not and will not conflict with the Articles
of Incorporation or Bylaws of KW or any other member of
the KW group or conflict with or result in a default
under (with or without the giving of notice or the
lapse of time) any contract, mortgage, indenture or
agreement of Seller, KW or any other member of the KW
group.
2.2 Title to Shares
Seller has, and will at Closing, have good and marketable
title to all of the shares in KW, free and clear of all
liens, claims, encumbrances and restrictions. Seller has
full and unrestricted legal right, power and authority to
transfer such shares to the Buyer. The shares in the
aggregate nominal amount of DM 125,000,000.-- constitute all
the shares in KW and no other shares have been issued and
are outstanding. All these shares are validly issued, have
been paid in in full and have not been repaid.
As fully described in Schedule 2.2.1, KW will at Closing
hold either directly or indirectly or will enjoy as
beneficial owner (Treugeber) the shares as described below
in the following subsidiaries free and clear of all liens,
claims, encumbrances and restrictions (except as disclosed
in Schedule 2.2.1), all of which are validly issued, fully
paid in and nonassessable and have not been repaid:
Widia Heinlein GmbH, Lichtenau: 100 %
Meturit AG, Zug: 100 %
Krupp Widia Nederland B.V., Woerden: 100 %
Widia Iberica S.A., Vitoria
(former division of Krupp Hispania S.A.): 100 %
Herko Vitoria S.A., Vitoria: 100 %
Krupp Widia U.K. Limited, High Wycombe: 100 %
Krupp Widia S.P.A., Milano: 100 %
Krupp Widia Vertriebsgesellschaft m.b.H.,
Perchtoldsdorf: 100 %
Krupp Widia Svenska AB, Stockholm: 100 %
Krupp Widia S.E. Asia (Pte.) Limited,
Singapore: 100 %
Krupp Widia Korea Limited, Seoul: 100 %
Krupp Widia Japan Limited, Kobe: 100 %
Krupp Widia France S.A., Vernouillet: 100 %
Widia (India) Limited, Bangalore: 51 %
Widaroc India Limited, Bangalore
(shares held by Widia (India) Limited): 100 %
Widaroc India Limited in the process of
being merged upon Widia (India) Limited
without affecting the shareholding of
Meturit AG in Widia (India) Limited
The shares in Meturit AG, Krupp Widia U.K. Limited and Krupp
Widia France S.A. which will be only beneficially held by KW
are set out in Schedule 2.2.2. The trustees identified in
that Schedule can be freely instructed and directed by KW
under appropriate trust agreements.
At Closing there will be no outstanding or authorized
options, warrants, purchase agreements, subscription or pre-
emptive rights, conversion rights, exchange rights or other
contracts or commitments that could require KW or any member
of the KW group to issue, sell or otherwise cause to become
outstanding any of their shares of capital stock.
<PAGE>
2.3 Financial Statements
Buyer has received audited financial statements for KW as
well as audited financial statements for the subsidiaries
enumerated in Art. 2.2 and unaudited consolidated balance
sheets of the KW group all as of December 31, 1992 and 1993,
except for Krupp Widia Svenska AB and the Widia division of
Krupp Hispania S.A. for which unaudited financial statements
were given to Buyer. In addition, Buyer has received un-
audited interim financial statements of the KW group as of
June 30, 1994 and September 30, 1994.
The financial statements for the German companies and the
consolidated balance sheet have been prepared in accordance
with the "Rules for preparing financial statements within
the Krupp group" which rules are in compliance with GOB
(generally accepted accounting principles in Germany)
(collectively referred to as the "Applicable Accounting
Principles"). The year end financial statements for the
foreign subsidiaries satisfy the locally applicable
generally accepted accounting principles. All these
financial statements accurately reflect the net asset
position, financial position and earnings position on the
basis of the Applicable Accounting Principles which shall
have been applied on a basis consistent with past practice
(except as disclosed in Schedule 2.3).
2.4 Taxes
KW and all other companies of the KW group have duly filed
all required tax returns. Up to December 31, 1993, a tax
union referring to corporate tax, municipal trade tax and
turnover tax existed between the Seller and KW. The
Beherrschungs- und Gewinnabfuhrungsvertrag between Seller
and KW has been terminated as of December 31, 1993 so that
the corporation tax union has expired on such date. The
V.A.T. tax union will expire on Closing.
If by a tax inspection or in some other way additional taxes
(including, but not limited to, tax deductions at source -
"Steuerabzugsbetrage" -, supplementary claims -
"Nebenforderungen" - and surcharges - "Zuschlage") or
contributions (including social security contributions) or
other public duties are imposed on KW or any of the
companies of the KW group for the period up to December 31,
1994 such tax demands in excess of provisions in the balance
sheets as at December 31, 1993 shall be fulfilled by the
Seller; Buyer and the respective member of the KW group
shall be indemnified from such imposition. Tax refunds and
refunds for social security contributions for the period
until December 31, 1994 shall be passed on to Seller upon
receipt by KW or any of its subsidiaries unless
corresponding entitlements have been capitalized in the
balance sheets as at December 31, 1993.
Buyer ensures that KW will give the opportunity to Seller or
Seller's advisers, who are subject to professional secrecy,
to participate in all tax inspections for the period up to
December 31, 1994 as appropriate to safeguard Seller's tax
position. Buyer shall also ensure that KW shall inform
Seller of the start of such tax inspections without delay.
If no agreement can be reached on the outcome of a tax
inspection Buyer shall, at the request of Seller, ensure
that KW or the appropriate member of the KW group
respectively appeal against the tax assessment and if
necessary enter into litigation at the direction of Seller.
The costs of such legal recourse shall be borne by Seller.
2.5 Compliance with Laws
To the best of Seller's knowledge, the conduct and operation
by KW or any other company within the KW group of its
business have been and are in conformity in all material
respects with all applicable laws and regulations, and the
management of the respective company has not received any
notice asserting or suggesting a failure, or potential
failure, to comply with or conform to any such law.
Furthermore, to the best of Seller's knowledge, the soil and
the buildings which are owned or used by the KW group in
Germany, Holland, Spain, France and India (but excluding
soil and buildings used and not owned by the KW group in
Essen, Germany) are not polluted or contaminated and do not
contain hazardous substances at a level going beyond what
local laws and regulations permit as at Closing.
2.6 Title to and Condition of Assets
KW and all other companies within the KW group have good and
marketable title to the assets held by it, free and clear of
all liens, pledges, encumbrances, charges, easements,
restrictions or rights or interests or other of any kind,
subject only to reservation of title rights of suppliers and
security interests of banks where the sums payable to such
suppliers or banks have been fully accounted for in the
books of KW or companies of the KW group.
All land, buildings, machinery and equipment, production
technology, know how and industrial property rights used for
the conduct of the business are either held by a company
within the KW group or can be used according to agreements
and such machinery and equipment is in good working
condition and adequate and suitable for the KW group
business, except for ordinary wear and tear.
The major patents and trademarks used by the KW group and
required for the conduct of the business as currently
conducted are listed as of May 1994 in Schedule 2.6. An
updated Schedule 2.6 which shall also include all license
agreements will be submitted by Seller to Buyer without
undue delay after signature and at the latest by December
15, 1994. All these major patents and trademarks are either
owned by and duly registered in favour of KW or will be
owned by and duly registered in favour of KW by Closing.
Except as set forth in Schedule 2.6, none of the members of
the KW group have to Seller's best knowledge infringed upon
the patent or trademark rights of any third parties and to
Seller's best knowledge no company of the KW group has
received any written notifications alleging such
infringement. Except as set forth in Schedule 2.6, to
Seller's best knowledge no third parties are infringing, or
since January 1, 1994 have infringed, upon the patent or
trademark rights of any of the members of the KW group.
The KW group sold under this Agreement includes all of
Seller's direct or indirect business in relation to tools
and wear parts of sintered carbide, of cermets, of ceramics,
of diamond, of cubic boron nitride (cbn) and of other hard
materials with similar properties and in relation to
magnets.
2.7 Contracts, Defaults
All contracts of KW and the other members of the KW group
which are in force at the Effective Date or at Closing have
been entered into on normal commercial terms (i.e. such
terms have been agreed in the interest of KW as if between
parties not being related to each other). All contracts and
commitments which have a total remaining contractual value
as from the Effective Date of more than DM 100,000.00 or the
equivalent in any other currency, have a term beyond
December 31, 1995 and cannot be terminated to expire as at
such date without having to pay a compensation for early
termination, and all contracts and commitments which have a
total remaining contractual value of DM 500,000.00 will be
listed by Seller in Schedule 2.7.1 submitted to Buyer
without undue delay after signature, and at the latest by
December 15, 1994.
KW has received no notice of default, and to Seller's best
knowledge, neither KW nor any other member of the KW group
is in default on any contract, agreement, instrument,
obligation, commitment or understanding of any kind or
nature that could have a material adverse effect on KW or
the respective member of the KW group.
2.8 Conduct of Business since January 1, 1994
In the period of January 1, 1994 until the date of this
Agreement the KW group shall have conducted its business in
accordance with the rules of ordinary course of business as
set out in Section 347 para. 1 HGB (Commercial Code) and shall not
have sold or otherwise disposed of any of its assets except
as in the ordinary course of its business, except as stated
in this Agreement and its Schedules. Except as set forth in
this Agreement or in Schedule 2.8, to the Seller's best
knowledge no member of the KW group has since January 1,
1994 declared or paid any dividend or other distribution to
any of its shareholders outside the KW group or purchased or
redeemed any of its shares. In January 1994 KW has sold its
shares in Krupp Widia Belgium S.A. for no less than its book
value and has also entered into a distribution agreement
with that former subsidiary. Since January 1, 1994, all
transactions, payments and agreements between any of the
companies of the KW group, on the one hand, and Seller or
any of its subsidiaries (other than the companies of the KW
group), on the other hand, have been concluded on an arm's
length basis, except as set forth in Schedule 2.8 or if they
are to the advantage of KW group.
2.9 Restricting Agreements
Neither KW nor any other member of the KW group has entered
into any agreements, undertakings or commitments which would
in any way prevent or restrict KW group in continuing or
further developing its business currently conducted in
Germany or any other country or would prevent or restrict
its ability to compete with other companies, except as
regards Widia (India) Limited as specified in Schedule 2.9
and except as contained in exclusive distributorship or
agency agreements.
Accordingly, inter alia, there are no agreements,
undertakings or commitments which would in any way prevent
or restrict KW group in scaling down or even closing down
existing operations nor have any subsidies been granted that
are included in the assets as at the Effective Date and have
to be given back or repaid in such event.
Seller will continue its purchases of products from the KW
group provided KW group remains competitive in price,
delivery, quality and performance.
2.10 Employment Matters
KW employs not more than approx. 1,400 people, and there is
therefore no legal restraint which would restrict Buyer from
abolishing the fully co-determined supervisory board at KW.
All the employees of the KW group are employed on terms and
conditions customary in the industry. To the best of the
knowledge of the management of KW, the German employees are
not paid according to a tariff which is lower than the
tariff in which they should be registered under the
applicable bargaining agreement.
The main terms and conditions of all contracts with managing
directors of KW and with equivalent key personnel in other
members of the KW group are correctly set out in Schedule
2.10.1, which Schedule the Buyer will keep in strict
confidence.
Since the Effective Date no commitment has been entered into
to increase the salaries, wages or other benefits of
employees, managing directors or other personnel of the KW
group except as in line with increases required under
existing bargaining agreements or increases granted in
normal commercial practice.
The principles of all benefits (other than normal salaries
and wages and the provision of company cars) to employees,
directors or other personnel of the KW group, such as
pensions, are correctly laid down in Schedule 2.10.2; where
certain employees, directors or other personnel are
receiving or have been promised significant benefits in
addition to those they would be entitled to under these
principles, these additional benefits have also been
disclosed in Schedule 2.10.2.
No employee has moved from the Seller or any of its
affiliates to KW nor has an agreement to that effect been
made since July 1, 1993, except as disclosed in Schedule
2.10.3.
The pension commitments of KW and of Widia Heinlein GmbH
have been fully provided for in the financial statements as
at December 31, 1993 in accordance with the Richttafeln 1982
of Dr. Heubeck using an interest rate of 6 % p.a. in accor-
dance with Section 6 a of the German "Einkommensteuergesetz".
There are no pension commitments or other benefits for which
any other company of the KW group is or will be liable,
except as disclosed in Schedule 2.10.4.
2.11 Litigation
Unless otherwise listed in Schedule 2.11, no initiation of
any law suits with a value of DM 100,000 or more,
administrative proceedings or investigations against KW or
any other member of the KW group affecting the business has
been notified to, or to the best knowledge of Seller
threatened to, KW or the respective group member, nor are
any circumstances known to the management of KW that would
make the initiation of any such law suits, administrative
proceedings or investigations appear likely to occur. For
the financial risks associated with the law suits known as
of December 31, 1993 accruals were made in the financial
statement as at December 31, 1993 in accordance with the
Applicable Accounting Principles and previous practice.
In respect of the legal disputes with Schlumberger, the
litigation will be conducted by KW as directed by Seller and
Seller assumes all responsibility herefor including all
costs and expenses, except that KW shall give necessary
support with its own resources without charging any non-out-
of pocket costs therefor, provided such support is
reasonably requested in due course. Any moneys received by
KW from Schlumberger for legal costs and expenses borne by
Seller shall be for the account of Seller. Any moneys pay-
able by KW to Schlumberger shall equally be for the account
of Seller. In view thereof the provision in the balance
sheet of KW as at December 1993 for this case in the amount
of DM 300,000.-- shall be treated as an intercompany
liability of KW to Seller which shall be cleared in
accordance with Art. 8 and which shall not affect the Net
Transfer Price according to Art. 1.2.
2.12 Absence of Material Adverse Changes
Except as set forth in Schedule 2.12 and in this Agreement,
since December 31, 1993, there has been no material adverse
change in the properties, business, assets, operations,
prospects, results of operations or financial condition of
the members of the KW group, taken as a whole.
2.13 U.S. Aspects
As of September 30, 1994, the assets of the KW group located
in the United States ("U.S."), if any, had an aggregate book
and fair market value of less than $ 15,000,000 and the
sales in the U.S. from the operations of the KW group were
less than $ 25,000,000 during the 12 month period ended Sep-
tember 30, 1994.
2.14 Debt
Seller will discontinue the cash clearance system with the
KW group as per the Effective Date. From the Effective Date
to the Closing Date, Seller shall secure for the KW group
financing for working capital, either directly or through
one or more banking institutions, on a short-term basis on
customary banking terms at prevailing market interest rates
for such financing (or at a rate of 6.0 % per annum, if such
financing is provided directly by Seller). Within 15
business days from Closing, Buyer shall assume any such
third-party financing, and shall secure the discharge of
Seller from any continuing obligations with respect to such
financing. Buyer and Seller shall settle all amounts owing
with respect to interim financing provided by Seller or its
affiliates at the latest within 15 business days from
Closing.
Except for trade receivables and liabilities for goods and
services incurred in the ordinary course of business on
normal commercial terms (as described in Art. 2.7), as of
the Effective Date the sum of intercompany receivables,
third party receivables, cash of the KW group and Forecasted
Result 1994 shall be equal to or exceed the sum of inter-
company liabilities and third party liabilities of the KW
group, whereby (i) intercompany receivables and liabilities
shall refer to the relationship between KW group on the one
side and Seller and its affiliates other than the KW group
on the other side and (ii) the intercompany liabilities from
purchase prices for companies and divisions according to
Art. 4.2 a), b) and c), the transfer of accruals for
pensions according to Art. 9, the transfer regarding the
Schlumberger litigation according to Art. 2.11 and the sale
of the real estate according to Art. 4.2 e) shall not be
considered.
The indebtedness of the KW group in India on the Effective
Date is the sole obligation of Widia (India) Limited and/or
Widaroc India Limited and is not guaranteed by, or otherwise
the direct or indirect obligation, of any other company of
the KW group.
2.15 Restructuring
A 1993 & 1994 restructuring of the business of the KW group
has been effected in compliance with the restructuring plan
communicated to Buyer in August 1993. The following
objectives in such plan have been achieved:
- reduction of personnel to 1960 or below of total
employees excluding India,
- no significant reduction in fixed assets other than set
out in the aforementioned restructuring plan and
- no adverse effect on (i) the capabilities and the
facilities of the KW group with respect to research and
development, (ii) the manufacturing capabilities
and/or (iii) the breadth of the product lines.
The KW group companies have entered into all necessary
agreements with, and have received all necessary approvals
of, works councils, governmental bodies, unions and other
competent bodies to allow for the completion of all
personnel reductions contemplated by the 1995 operating plan
of the KW group communicated to Buyer in November 1994; and
none of these agreements has been violated by any of the KW
group companies.
The costs of the 1993 and 1994 restructuring and the
personnel reductions contemplated by the 1995 operating plan
have been adequately reflected or reserved for in the
calculation of the Forecasted Result 1994 to be assumed by
the Seller under Section 1.5.
Article 2a
REPRESENTATIONS AND WARRANTIES OF BUYER
Schedule 2a sets forth the consents of all third parties and
governmental bodies required on the part of Cincinnati Milacron
Inc., the ultimate parent company of Buyer, Cincinnati Milacron
Marketing Company, the parent company of Cincinnati Milacron
Kunststoffmaschinen GmbH or Buyer to consummate the transactions
contemplated by this Agreement. Except to the extent of the
required consents listed on Schedule 2a, this Agreement and the
consummation of the transactions contemplated hereby do not and
will not conflict with the Articles of Incorporation or Bylaws of
Cincinnati Milacron Inc., Cincinnati Milacron Marketing Company
or Buyer or conflict with or result in a default under (with or
without the giving of notice or the lapse of time) in any con-
tract, mortgage, indenture or agreement of Cincinnati Milacron
Inc., Cincinnati Milacron Marketing Company or Buyer.
Article 3
DUE DILIGENCE
Commencing upon announcement of the signing of this Agreement,
Seller shall and shall cause all members of the KW group and
their employees to provide Buyer, its officers, employees, agents
and representatives (i) full access to all books, records,
auditors workpapers (provided the auditors agree thereto), files,
agreements and computer databases and information pertaining to
the business of the KW group or their assets and liabilities (as
well as the right to duplicate the same to the extent reasonably
requested by Buyer (subject to the confidentiality undertakings
of Buyer)) and (ii) reasonable access (taking into account the
interest of the KW group) to all the plants, facilities, offices
and other assets of the KW group and all officers, management
personnel, employees, contractors and consultants of the KW
group, in each case as Buyer shall reasonably deem appropriate
for its due diligence review of the KW group business, provided
however that Buyer shall during the month of December 1994 limit
its due diligence (i) to accounting, tax and finance, human
resources, legal matters, India, facilities and environmental
matters and (ii) to the time until December 15, 1994 and that in
the month of January 1995 full due diligence may be performed in
the last three weeks of the month.
Buyer shall notify Seller in writing without undue delay of any
facts discovered by Buyer which Buyer has concluded are
inconsistent with any representation and warranty herein together
with an initial assessment by Buyer of the impact it attributes
to such findings, (no notification being required for findings if
the aggregate amount attributed is less than DM 500,000.--);
provided, however, that any notification shall be made without
prejudice to any rights or remedies Buyer may have under Art. 2,
5 or 7 and failure to notify does not affect such rights and
remedies but shall make the party due to notify fully responsible
for any damages caused by any such failure to notify the
indemnifying party.
Upon Seller's request Buyer and Seller shall meet prior to
Closing in good faith with the objective to agree on the
underlying facts of Buyer's findings and assessment and an
appropriate remedy, if any. Failing such agreement both Buyer and
Seller may rescind this Agreement by giving written notice to the
other, but only if the aggregate value Buyer has attributed to
the impact of its findings exceeds an amount of DM 5,000,000.--.
If Buyer during the course of its due diligence becomes aware of
events or conditions which would have a material adverse effect
on the KW group, Buyer shall without undue delay inform Seller
thereof and Buyer shall have a right to rescind this Agreement by
giving written notice to Seller if no agreement between Seller
and Buyer on a solution is found in good faith discussions until
two days before Closing.
Article 4
OPERATION OF KW PENDING THE CLOSING
Pending the Closing, and except as otherwise consented to or
approved by Buyer in writing:
4.1 Regular Course of Business
Seller shall cause each company of the KW group to operate
its business strictly in the ordinary course of KW's
business and as previously conducted and to use its best
efforts to keep available to Buyer the services of the KW
group's present key employees - in particular Seller shall
not solicit any of such key employees - and to preserve for
Buyer and each company of the KW group the goodwill of its
suppliers, customers and others having business relations
with each company of the KW group. In conformity herewith,
Seller shall cause each company of the KW group to refrain
from doing any of the following without Buyer's prior
written consent:
a) making any changes in employee compensation, bonuses or
benefits, other than customary annual adjustments;
b) creating, assuming, incurring, paying or discharging
any claim, lien, encumbrance or liability other than in
the ordinary course of business;
c) purchasing, selling, assigning, leasing, exchanging or
otherwise disposing of assets of the KW group other
than in the ordinary course of business;
d) entering into, renewing, extending, modifying,
terminating, waiving any right under or incurring any
additional liability under any material contract or
commitment involving more than DM 100,000 and
commencing in or extending into a period after the
Effective Date (other than purchase orders or sales of
inventory in the ordinary course of business);
e) declaring or paying any dividends or other dis-
tributions to any of its shareholders outside the KW
group or purchasing or redeeming any of its shares;
f) making any investment in or loan to Seller or any of
its affiliates or any third party:
g) making any expenditure for, or incurring any
obligations in respect of fixed assets, fixtures and
other capital items (except those expenditures and
obligations occurring in the ordinary course of
business not exceeding DM 100,000 on any individual
item);
h) entering into any consulting agreement including
marketing;
i) entering into licensing or selling agreements on any
inventions, know how or other intellectual property.
4.2 Disposal of Shares in Subsidiaries
a) Seller procures that prior to Closing the KW group will
have been formed according to the structure set out in
the recitals to this Agreement, the costs therefor to
be borne directly by Seller. The claims of Seller or
its affiliates against KW for consideration in respect
of the acquisition of the subsidiaries or divisions of
Seller or Seller's affiliates shall be recorded as an
intercompany liability of KW to Seller as follows:
- KW France DM 10,480,000.--
- KW U.K. DM 383,000.--
- Div. Hispania
(incl. Herko) DM 3,810,000.--
which intercompany liability shall be cleared in
accordance with Art. 8. The aforementioned claims of
Seller or its affiliates shall reduce the Net Transfer
Price according to Art. 1.2.
b) Seller will ascertain that prior to Closing KW shall
have disposed of all its shares in Krupp Medizintechnik
GmbH at a price of DM 3,000,000.-- and of all its
shares in HW Hartmetall- und Werkzeugtechnik
Beteiligungsgesellschaft mbH at a price of
DM 50,000.--. The proceeds of such sales actually
received by KW shall be recorded as an intercompany
liability of Seller to KW which shall be cleared in
accordance with Art. 8. The aforementioned proceeds
received by KW shall increase the Net Transfer Price
according to Art. 1.2. Any costs and negative tax
effects for the KW group and any indemnity,
misrepresentation, price adjustment or other claims
asserted by the purchasers or other third parties (plus
costs related thereto) resulting of such sales shall be
borne directly by Seller.
c) Seller shall procure that prior to Closing KW shall
have disposed of all its shares in Krupp Informatik
GmbH, Krupp Entwicklungszentrum GmbH and Krupp Widia
Corporation. The price for the shares in Krupp
Informatik GmbH and Krupp ntwicklungszentrum GmbH,
collectively, shall be DM 312,000.-- and the price for
the shares in Krupp Widia Corporation shall be
DM 452,000.--. The proceeds of such sale shall be
treated as an intercompany liability of Seller to KW
but shall not affect the Net Transfer Price according
to Art. 1.2. Any costs and negative tax effects, if
any, for the KW group and any indemnity, misrepresenta-
tion, price adjustment or other claims asserted by the
purchaser or any third party (plus costs related
thereto) resulting from such sales shall be borne
directly by Seller.
d) It is known to Buyer that KW is party to a domination
and profit and loss sharing agreement (the Domination
Agreement) with Krupp Medizintechnik GmbH (KMT) by
which KW has undertaken to take over the profits and
losses of KMT at the end of each fiscal year. The
Domination Agreement shall be terminated by mutual
agreement as at December 31, 1994. Buyer will ascertain
that KW divests itself of any rights resulting from the
Domination Agreement including but not limited to the
right to collect a profit of KMT and agrees to take
such steps as may be necessary to secure Seller's right
to any such profit. In turn Seller undertakes to
indemnify and to hold KW harmless against any claim
that may arise against KW and any cost or loss KW may
suffer as a consequence of the existence of the
Domination Agreement or the related tax union.
e) Seller will ascertain that after the Effective Date and
prior to Closing the real estate leaseholds
(Erbbaurechte) including the buildings constituting
hall 10 and 19 located in Essen and shown in Schedule
4.2 e) currently not used and formerly used as two
production sites are sold and transferred to Seller at
book value equalling DM 7,365,000 as of the Effective
Date against effective cash payment.
Article 5
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER
Each and every obligation of Buyer under this Agreement to be
performed on or before Closing shall be subject to the satis-
faction, on or before Closing, of each of the following con-
ditions, unless otherwise waived in writing by Buyer (it being
understood that Closing does not constitute a waiver of any
rights resulting from the absence of such condition):
5.1 Representations and Warranties True
The representations and warranties of Seller contained in
this Agreement and in all agreements referred to herein or
contemplated hereby shall be, in all material respects, true
and complete as of the date of Closing as though such re-
presentations and warranties were made at and as of such
date, except for changes permitted or contemplated by the
terms of this Agreement.
5.2 Performance
Seller shall have performed and complied in all material
respects with all agreements, obligations and conditions
required by this Agreement and in all agreements referred to
herein or contemplated hereby to be performed or complied
with by them or it on or prior to Closing.
Article 6
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
Each and every obligation of Seller under this Agreement to be
performed on or before Closing shall be subject to the
satisfaction, on or before Closing, of each of the following
conditions, unless otherwise waived in writing by Seller (it
being understood that Closing does not constitute a waiver of any
rights resulting from the absence of such condition):
6.1 Representations and Warranties True
The representations and warranties of Buyer contained
in this Agreement and in all agreements referred to
herein or contemplated hereby shall be, in all material
respects, true and complete as of the date when made
and as of Closing as though such representations and
warranties were made at and as of such date, except for
changes permitted or contemplated by the terms of this
Agreement.
6.2 Performance
Buyer shall have performed and complied in all material
respects with all agreements, obligations and conditions
required by this Agreement and all agreements referred to
herein or contemplated hereby to be performed or complied
with by him on or prior to Closing.
Article 7
INDEMNIFICATION AND OTHER REMEDIES
7.1 Survival of Representations and Warranties
The representations and warranties of each party contained
herein shall be true as of the Effective Date and as of the
Closing Date and shall survive until December 31, 1996;
provided that in respect of the representations regarding
taxes and social security contributions the expiry date
shall not be until 6 months after the assessment by the
respective governmental authority has become final and
binding and provided further that in respect of the warranty
under Art. 2.2, the representations and warranties shall not
expire until 10 years after the date of this Agreement and
in respect of the warranty under Art. 2.5, second sentence
the representations and warranties shall not expire until 4
years after the date of this Agreement.
The aforementioned expiry dates are deadlines (Aus-
schlussfristen) within which Buyer making a claim must have
sent a written notification of the claims explaining the
grounds herefor in reasonable detail. All remedies of Buyer
become time-barred 6 months after the deadline until which
the notification letter had to be sent, it being understood
that this 6 months period is stalled with respect to those
claims Seller remedies in accordance with Art. 7.2 until
Seller notifies Buyer in writing that Seller's remedial
action has been completed.
7.2 Notice of claims
Without delay upon discovery of any misrepresentation
contained in any of the Articles of this Agreement Buyer
shall give Seller written notice of such claims and a
statement in reasonable detail of the reasons therefor,
provided, however, that failure to notify Seller shall not
release Seller from its obligations under this Agreement
with respect to such misrepresentation, but Buyer shall be
fully responsible for any damages to Seller caused by any
such failure to so notify Seller as required above. Unless
remedial action has been initiated by Seller within 30 days
following receipt of such claim letter and has been
successful within a reasonable period of time, Buyer shall
be entitled to indemnities as per Art. 7.3.
7.3 Indemnities
a) By the Seller
Seller agrees to indemnify and hold Buyer harmless from and
against any and all claims, demands, losses, costs,
expenses, obligations, liabilities, actions, suits, damages,
including without limitation, interest and penalties,
counsel fees (all such claims, demands, losses, costs,
expenses, etc., being referred to herein collectively as
"Claims") and all amounts paid in settlement of any such
Claims which may be asserted against Buyer or any company of
KW group or which Buyer or any company of KW group shall
incur or suffer, and which arise out of or result from
(i) the breach of any representation, warranty or
agreement of Seller contained herein
(ii) the environmental condition or contamination of
any facility, site, location or business owned,
operated or leased by the KW group prior to the
Closing Date and disposed of by the KW group on or
prior to the Closing;
(iii) any off-site disposal, treatment, storage,
transportation, release or threatened release of
any hazardous or waste materials by the KW group
prior to the Closing; it being understood that
Seller shall cause KW to seal and properly dispose
of all containers etc, for hazardous or waste
materials used by any of the KW group companies
(such disposal to be at sites properly licensed if
required therefor and such sites not to be sites
owned or occupied by any KW group company)
immediately prior to Closing;
(iv) any actual or alleged health or safety claim of
employees or former employees relating to the
production or use of any product or item produced
by the KW group prior to the Closing;
(v) any claims arising from the promotion agreement
dated September 30, 1963 concluded with SAK
Industries Private Company (SAK) or any additional
agreements entered into with SAK or SAK's position
as a shareholder in Widia India Limited and raised
by SAK Industries Private Company against Buyer or
any company of the KW group and resulting from or
alleged to result from the transactions con-
templated by this Agreement or actions or
omissions by Seller or Meturit AG prior to
Closing.
Any compensation in relation to breach of warranties shall
be settled as instructed by Buyer.
b) By the Buyer
Buyer agrees to indemnify and hold Seller harmless from and
against any and all claims, demands, losses, costs,
expenses, obligations, liabilities, actions, suits, damages,
including without limitation, interest and penalties,
counsel fees (all such claims, demands, losses, costs, ex-
penses, etc., being referred to herein collectively as
"Claims") and all amounts paid in settlement of any such
Claims, which may be asserted against Seller or which Seller
shall incur or suffer, and which arise out of or result from
the breach of any representation, warranty or agreement of
Buyer contained herein, or from the operation of KW after
Closing (it being understood that any health or safety claim
of employees or former employees with respect to the
production or use of any product or item produced by the KW
group before the Closing does not arise from the operation
of KW after Closing).
c) Defense of All Claims
Promptly after receipt of notice of the commencement of any
action, or the assertion by any third party of any Claim
with respect to which Buyer or Seller is entitled to
indemnification, the party receiving the notice shall
promptly notify the other party in writing of the
commencement of such action or the assertion of such Claims,
provided however, that failure to so notify shall not
relieve the indemnifying party of its obligation to
indemnify but shall make the other party fully responsible
for any damages caused by any such failure to the
indemnifying party. The indemnifying party, at its option,
may elect to take charge of and control the defense of any
Claim, provided that the indemnifying party shall agree to
pursue the defense of such Claim in good faith by
appropriate actions or proceedings promptly taken or
instituted and diligently pursued and has acknowledged
liability under Art. 7.3 in writing. The indemnifying party
has to give reasonable consideration to the legitimate busi-
ness interest of the other party and their business. If the
indemnifying party elects to assume the defense of any such
action in accordance with the second preceding sentence, the
indemnified party shall be nevertheless entitled to
participate (at its own expense) in said defense. In all
cases, the parties shall at all times reasonably cooperate
with each other in the defense of a Claim and shall make
their respective personnel and relevant records reasonably
available to the other for purposes of defense of a Claim.
7.4 Liability Limitation
In no event, shall one party be responsible to the other for
indirect and consequential damage, except if there is a
breach of Art. 2.2 or 2.8 and except in the cases where KW
should dispose of its technology in breach of Art. 4.1 c) or
should enter into material contracts or commitments outside
its ordinary course of business in breach of Art. 4.1 d).
Neither party shall have an obligation towards the other
under a warranty or related statutory claim unless and until
the aggregate amount of such claims against such party
exceeds DM 1,000,000 or the equivalent in any other
currency, and if so, then the whole amount shall be payable
to the other party.
Except for the warranty in Art. 2.5 and Art. 7.3 (a), the
liability with regard to Contamination is exclusively dealt
with in Art. 7.6.
Neither Seller nor Buyer make any representations or
warranties except for those expressly stated in this
Agreement.
7.5 Previous Disposals of Subsidiaries
Seller shall indemnify KW group against all liabilities and
risks resulting from the disposal of former subsidiaries or
divisions of the KW group where such disposal has occurred
in the past or shall occur according to this Agreement.
Seller shall also indemnify KW group against all guarantees,
letters of comfort or similar parent-company liabilities,
where such liabilities may still exist on top of or in
support of obligations of such former subsidiaries or
divisions.
7.6 Potential Contamination Outside Essen
The parties agree that Buyer shall carry out forthwith a
cursory survey of the production facilities (land and
building) of the KW group in Lichtenau, Holland, Spain,
France and India as soon as possible. If on the basis of
such a preliminary survey Buyer concludes that there is a
risk of pollution, contamination or existence of hazardous
substances at a level going beyond what local laws and
regulations permit as at Closing (hereinafter referred to as
Contamination), then the parties shall jointly retain
appropriate experts to give an opinion on appropriate
cleanup measures and shall assess the costs which are likely
to be incurred by them. The costs of these experts shall be
shared equally between Seller on the one part and Buyer on
the other part.
The aggregate costs, as defined below in this Art. 7.6, in
connection with Contamination of the aforementioned first
four sites concerned and India pro rata to the share of KW
(51 %) shall be shared equally by Seller on the one part and
Buyer or the respective company of the KW group, as the case
may be, on the other part up to a maximum of DM 9,000,000.--
exclusive of V.A.T. or the equivalent in any other currency
Costs in excess of DM 9,000,000.-- are to be borne by Buyer
or the respective company of the KW group, as the case may
be.
The remedies of Buyer in respect of potential Contamination
outside Essen are governed by Art. 7.3 and this Art. 7.6, to
the exclusion of other clauses of this Agreement and
provisions of statutory law. However, should Seller be in
breach of the warranty in the second sentence of Art. 2.5,
Seller shall fully bear the costs for cleaning up
Contamination that in breach of the second sentence of Art.
2.5 was not disclosed and the costs thus to be borne by
Seller shall not be credited under the cost sharing scheme
which will otherwise be applicable under this Art.7.6.
Costs shall mean costs for reinstatement of land, buildings
and water to the prescribed standard in each case or, if
such a provision does not exist, to the minimum standard
acceptable to the authority concerned, but only to the
extent that such Contamination is attributable to an event
which occured prior to Closing. Where this necessitates work
on an installation or building the Costs include expenses
for reinstating the standard of the installation or building
prior to the clean-up work. The term "Cost" refers in each
case to the actual cost of cleaning and reinstatement,
including external costs for the necessary consultants,
including further external legal expertise for such in
conjunction with possible court proceedings and negotiations
with authorities. Where damage is caused by a contaminating
event that occured prior to Closing, the Costs also include
claims that may be made by an employee, some other third
party or an authority against any company of the KW group
and/or Buyer by reason of injury or damage to person or
property.
For the purpose of this Art. 7.6 all costs are to be
disregarded which are reimbursed from insurance companies.
It is further agreed that all decontamination work shall be
carried out by Buyer and/or the respective company of the KW
group only after appropriate consultation with Seller in
order to keep Seller duly informed and give Seller the
opportunity to suggest more efficient or less expensive
methods of reinstatement or to recommend other firms or
experts who may be able to undertake the work at lower cost.
7.7 Potential Contamination in Essen
Seller acknowledges and confirms that neither Buyer nor any
member of the KW group shall have any liability or
responsibility for any contamination at, or the
environmental condition of, the Essen properties and Seller
shall indemnify Buyer and its affiliates (including the KW
group) against any claims with respect to such properties,
provided however, that any contamination caused by Buyer
after Closing shall be for account of Buyer.
7.8 Undetermined Contamination
Should there be contamination which cannot be reasonably
shown to have occurred before or after Closing such
contamination shall be allocated to the time before Closing
and after Closing pro rata temporis of the time Seller
and/or the KW group has used such property before Closing
(percentage to be allocated to time before Closing) and KW
has used such property after Closing (percentage to be
allocated to time after Closing).
Art icle 8
INT ERCOMPANY LIABILITIES
The parties shall procure that as at Closing the following
intercompany liabilities between Seller or its affiliates and the
KW group, except for trade receivables and liabilities for goods
and services incurred in the ordinary course of business, shall
be listed by Seller in a schedule to be produced for Closing and
the balance shall be settled in cash whether due or not.
<TABLE>
Intercompany Liabilities
<CAPTION>
of KW to Seller of Seller to KW
<S> <C> <C>
Net Receivables of KW group 10,600,000.--*
Net Loans to KW from
Seller subsidiaries 7,200,000.--*
Purchase Price for
Krupp Medizintechnik, Art. 4.2 b) 3,000,000.--
HW Hartmetall, Art. 4.2 b) 50,000.--
Krupp Entwicklungszentrum, Art. 4.2 c) 300,000.--
Krupp Informatik, Art. 4.2 c) 12,000.--
Krupp Widia Corp. (USA), Art. 4.2 c) 452,000.--
KW France, Art. 4.2 a) 10,480,000.--
KW U.K., Art. 4.2 a) 383,000.--
Div. Hispania (incl. Herko),
Art. 4.2 a) 3,810,000.--
Transfer Accruals for
Pensions (1983), Art. 9 13,105,000.--*
Schlumberger Litigation, Art. 2.11 300,000.--
*Estimate; actual value to be specified at Closing.
</TABLE>
<PAGE>
The parties undertake to ensure that the settlement of the balance of the
intercompany liabilities will be acknowledged by the Seller and its
affiliates and the companies of the KW group and that all respective
companies will be relieved from the respective liabilities thereby.
All obligations resulting from guarantees, letters of comfort or similar
parent-company liabilities given by Seller in favour of the KW group
described in Schedule 8 (status as of October 31, 1994) or such liabilities
given after October 31, 1994 shall be assumed by Buyer and Buyer shall use
all commercially reasonable efforts (including the offer of a bank
guarantee) to secure that Seller or such Seller's affiliates are relieved
without delay from any and all obligations under such guarantees and the
like.
All obligations resulting from guarantees, letters of comfort or similar
parent-company liabilities given by the KW group in favor of Seller, its
affiliates or any former subsidiary or division of the KW group shall be
assumed by Seller and Seller shall use all commercially reasonable efforts
(including the offer of a bank guarantee) to secure that the KW group
members are released without delay from any and all obligations under such
guarantees and the like.
Article 9
PENSION COMMITMENTS TO CERTAIN PREVIOUS EMPLOYEES
It is known to Buyer that Seller and KW have by mutual consent terminated
the provision in Article IV, 4 c of the agreement on contribution to
capital dated May 25, 1983 with effectiveness as per the Effective Date.
Therefore Seller assumes the current obligations resulting from pension
commitments or assumed pension rights concerning those employees who
already left the company before June 1, 1983. Seller shall hold Buyer and
KW harmless of any claims under such pension obligations.
Buyer agrees that the capitalized values of such pension rights calculated
in accordance with the Richttafel 1982 of Dr. Heubeck using an interest
rate of 6 percent p.a. in accordance with Section 6 a of the German "Einkommen-
steuergesetz" will be transferred to Seller as per the Effective Date by
assuming such amount as an intercompany liability of KW to Seller to be
cleared in accordance with Art. 8 and not affecting the Net Transfer Price
according to Art. 1.2.
Article 10
SERVICES AND UTILITIES, TENANCY AGREEMENT
10.1 Seller or its subsidiaries have rendered EDP and other services
for and delivered electricity, heat and other utilities to KW as
listed in Schedule 10. Seller warrants that these services will
be upheld until Closing. Seller shall procure that KW may
purchase any or all of these services until December 31, 1995,
subject to the right of KW to terminate the obligation to
purchase any or all of these services at one or more earlier
dates by giving 3 months' prior written notice to the end of a
calendar quarter in respect of any service or delivery which it
wishes to be terminated earlier. Seller undertakes (i) to
transfer to KW any software used in rendering the aforementioned
services should KW decide to terminate the services without extra
charge to KW if the software was specifically developed for KW
and (ii) to license to KW to the extent legally permissible and
against a market license fee any other such software.
Seller will ascertain that the services and utilities are made
available to KW under separate agreements until December 31, 1995
if KW so desires and at the same conditions and at the same
quality standards as existed between Seller or its subsidiaries
and KW before Closing, subject to regular price increases as
between Seller and its affiliates, provided however, that if
Buyer and KW are unable to replace such services or utilities
prior to December 31, 1995, and if so requested by Buyer, those
services and utilities shall be extended beyond December 31, 1995
to the extent necessary at market terms and conditions. Seller
has the right to transfer the obligation to deliver these
services or utilities to third parties provided they are
technically reliable. Seller will ascertain that until December
31, 1995 no disadvantages for KW will result out of such trans-
fer.
These provisions do not apply in case Seller or its subsidiaries
are not allowed to render certain services or utilities due to
the fact that KW is no longer a member of the Krupp-group. Seller
will in those cases assist KW in its negotiations with third
parties in order to achieve conditions similar to those between
Seller or its subsidiaries prior to Closing.
10.2 The parties shall agree on the terms of
- an acceptable rental agreement relating to the real estate
located in Essen and shown in Schedule 10.2.1, and
- an acceptable leasehold agreement relating to the real
estate located in Essen and shown in Schedule 10.2.2
to be entered into between KW and Seller.
10.3 A number of employees of KW currently rent their private
accomodation from Seller or one of Seller's affiliates. Seller
shall procure that the sale of shares of KW hereunder will in no
way affect their existing tenancy agreements.
Article 11
INSURANCE
Seller warrants that certain insurable risks of KW group are covered as of
the date hereof through Closing by insurance policies, as shown on Schedule
11. The insurance policy against product liability risks is on an
occurrence basis.
It is known to Buyer that the inclusion of KW in insurance coverage
provided for the whole Krupp group will automatically lapse at Closing in
respect of the fire insurance. In respect of all other insurance policies
which are not exclusively in the name of KW, the parties shall discuss
between the date of this Agreement and Closing upon which terms these
policies can be maintained for a transitional period.
Any payments received from insurance companies by Seller after the
Effective Date in respect of insured risks of the KW group shall be passed
on to KW.
If a major incident which has a critical impact on the ability to continue
the KW business happens at the plant in Essen or at any other
manufacturing facility prior to Closing and the damage inflicted upon KW is
not fully covered by insurance, then Buyer has the right to withdraw from
closing the transaction contemplated hereunder.
Article 12
NAME AND TRADEMARK
The parties agree that Seller will, prior to Closing, as directed by Buyer,
change KW's name in a way that the name part Krupp is deleted. The same
shall apply for all other companies of the KW group. Buyer agrees to
refrain from using the trademark KRUPP with or without the three interlaced
rings and Seller agrees to refrain from using the trademark WIDIA with or
without the three interlaced triangles. Seller warrants that KW or any
company of the KW group as of Closing will not have granted any right to
third parties (not belonging to the KW group) to use the trademark WIDIA
with or without the three interlaced triangles, except as set out in
Schedule 12.
Seller will procure that the name of Krupp Widia (Schweiz) and any other
company that carries the name Widia and is not transferred to Buyer as a
member of the KW group will be changed in a way that the name part Widia is
deleted.
Notwithstanding what is stated above, KW shall have the right to use
existing catalogues, packaging material etc. containing the name part Krupp
within 6 months from Closing, provided that KW shall use stickers - the
wording of which to be mutually agreed - as appropriate to indicate that KW
is no longer a member of the Seller's group. The same shall apply vice-
versa with catalogues of Seller which still list members of the KW group as
if they were members of Seller's group.
Products on stock at the date of Closing may be sold by KW group without
any time limit even though the products may be marked to show that they are
Krupp Widia products and therefore also refer to the name part Krupp.
However, as soon as possible after Closing KW shall take requisite
precautions so that the products manufactured in the future no longer bear
any reference to "Krupp". Should any customer or third party make a claim
against Seller based on the fact that after Closing products have been
marketed and sold which still bear reference to "Krupp", then Buyer shall
procure that Seller will be fully indemnified against all and any such
claims.
After Closing, Seller and its affiliates shall refrain from using the name
Widia.
Article 13
NON-COMPETE UNDERTAKING
13.1 Until December 31, 1998 Seller and its affiliates shall neither
directly nor indirectly develop, manufacture, market, sell,
purchase or otherwise deal with any such products that compete
with the products within the current product range of the KW
group, provided however, that the parties agree that the
activities described on Schedule 13 as and to the extent
presently conducted by the entity described on Schedule 13 shall
not be prohibited by this Agreement.
This non-compete undertaking shall not preclude Seller or any of
Seller's affiliates from acquiring a controlling interest in a
company or a group of companies with a business competitive to
the business of KW group in relation to tools and wear parts of
sintered carbide, of cermets, of ceramics, of diamond, of cubic
boron nitride (cbn) or of other hard materials with similar
properties or in magnets, provided that such competitive business
accounts for less than 10 % of such company's or group's total
sales and the purpose of such acquisition is not to acquire such
competitive business, subject, however, to the following
conditions: If Seller makes such an acquisition, it shall without
delay give written notice thereof to Buyer and submit to Buyer a
written offer binding for 3 months to purchase at the discounted
earnings value of such competitive business and shall during
such 3 month deal exclusively with Buyer. In the event that Buyer
does not accept the offer within the 3 months or is hindered from
consummating the transaction due to antitrust reasons, then this
Art. 13 shall not apply in respect of the anciliary competitive
business thus acquired.
13.2 Until December 31, 1996 Seller and its affiliates shall not
solicit any employees of the KW group without the prior written
consent of Buyer.
Article 14
MISCELLANEOUS PROVISIONS
14.1 Further Assurances
Each party agrees to make its best effort to cause the conditions
herein set forth to be satisfied at or prior to Closing. Each of
the parties agree to execute and deliver any and all further
agreements, documents or instruments necessary to effectuate this
Agreement and the transactions referred to herein or contemplated
hereby or reasonably requested by the other party to perfect or
evidence their rights hereunder. Each party further agrees to
make all reasonable efforts to cooperate with the other in post-
Closing matters that may arise in regard to taxes and the like
and to provide the KW group with the benefits of all contracts or
permits which may be affected by the change of control of the KW
group.
Seller shall use its best efforts to assist and to cause Seller's
independent auditors to assist (and render the audit opinion on
the financial statements described below) Buyer in preparation of
such audited financial statements for the KW group as are neces-
sary to enable Buyer to comply with the reporting requirements of
Form 8-K and Regulation S-X promulgated under the Securities and
Exchange Act of 1934, as amended, in the United States. Buyer
shall be responsible and pay for all fees to Seller's independent
auditors for such assistance; provided, however, that to the
extent that Seller's independent auditors efforts in respect of
the above financial statements are also applicable to the
preparation and certification of the Seller's regular year end
financial statements, such efforts shall be for the account
of and shall be paid by Seller.
14.2 Notices
All notices made pursuant to this Agreement shall be valid only
if made by a person authorised to receive notices as per below by
Buyer or the Seller, as the case may be, and sent by registered
mail, return receipt requested or facsimile, to the parties at
the addresses set forth below, or as set forth in any notice of
change of address given in writing in the manner prescribed
herein to all other parties.
If to Buyer: Cincinnati Milacron Inc.
4701 Marburg Avenue
Cincinnati, Ohio 45209
USA
Attn.: General Counsel
Facsimile No: 001-513-841-7166
If to Seller: Fried. Krupp AG Hoesch-Krupp
Altendorfer Strasse 103
D-45143 Essen
Germany
Attn.: General Counsel
Facsimile No: (011-49-)201-188-2233.
14.3 Choice of Law
This Agreement shall be governed by and construed in accordance
with the substantive laws of Germany.
14.4 Assignment
This Agreement may not be assigned by any party without the prior
written consent of the other party.
14.5 Waiver
No waiver of any term, provision or condition of this Agreement,
whether by conduct or otherwise, in any one or more instances,
shall be deemed to be or be construed as a further or continuing
waiver of any such term, provision or condition or as a waiver of
any other terms, provisions or conditions of this Agreement.
14.6 Severability
The invalidity or unenforceability of any provision of this
Agreement in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction or any
other provision herein. Any invalid or unenforceable provision
shall be replaced by such reasonable provision as comes closest
to what the parties wanted or would have wanted to apply in
accordance with the meaning and purpose of this Agreement if they
had considered such invalidity or unenforceability when entering
into this transaction. This shall also apply to the identifi-
cation of an obligation in terms of amount or time (period or
date). The parties further agree that they will lay down in
writing and in a proper form the rule applicable pursuant to the
aforegoing sentences by formally amending this Agreement.
14.7 Confidentiality
a) The parties shall hold in confidence the information
contained in this Agreement as per the secrecy agreement
previously concluded between them.
b) Seller undertakes to and Seller shall cause its affiliates
to, keep strictly secret all confidential matters, in
particular all business and trade secrets and confidential
know-how, of Seller or its affiliates relating to or trans-
ferred with the operations of the KW group and not to
disclose such matters and secrets to any third party, nor to
cause such disclosure by third parties, nor to abet or
justify such disclosure. Each party shall also keep strictly
secret all confidential information received from the other
party during the negotiations of this Agreement.
14.8 Announcements
Buyer and Seller shall cooperate in the preparation of any
announcements regarding the transaction contemplated by this
Agreement. Except as required by applicable law (in which case
such announcing party shall prior thereto advise the other
party), no party shall issue any announcement regarding the
transactions contemplated hereby without the prior consent
of the other, which consent shall not be unreasonably
withheld.
14.9 Entire Agreement
This Agreement (including all attachments) constitutes the
entire understanding between the parties with respect
to the subject matter hereof, supersede all negotiations,
prior discussions and preliminary agreements. Neither
party gives any warranty or accepts any liability in
addition to those expressly stated in this Agreement.
This Agreement may not be changed except by written
instrument executed by all parties. The headings of this
Agreement are not a part of this Agreement but are
for convenience purposes only.
14.10 Scrap
Seller shall cause KW to secure, that all payments received by KW
from RSR Rohstoff- Stahlhandel und Recycling GmbH under an
Agreement dated September 30, 1994 and related to the sale of
scrap (which was not taken into account in calculating the
Forecasted Result 1994) should be passed on to Seller minus all
payments made by KW resulting from the above referred agreement.
These payments shall not exceed DM 2,000,000.--. Should claims
resulting from the above referred agreement be raised against KW
after KW has passed on the payments received under such
agreement, Seller shall hold KW harmless thereof up to an amount
of DM 2,000,000.--. Art. 7.3 c) shall apply accordingly.
14.11 Arbitration
Any disputes arising out of or in connection with this Agreement
shall be finally settled by arbitration in accordance with the
rules of conciliation and arbitration of the Deutsche Institution
fur Schiedsgerichtsbarkeit e.V. by three arbitrators designated
in conformity with those rules. The arbitrators shall have the
power to rule on their competence and on the validity of the
agreement to submit to arbitration. The arbitration shall be
conducted in English. Judgement upon any award rendered may be
entered in any court for judicial acceptance of the award or an
order of enforcement as the case may be.
The proceedings shall take place and the award shall be given in
Dusseldorf, Germany.
IN WITNESS WHEREOF this Notarial Deed including the schedules hereto has
been read aloud to the persons appeared. The schedules 4.2 e, 10.2.1 and
10.2.2 have been shown to the persons appeared. The persons appeared then
confirmed and approved this Deed and its schedules and signed this Deed.
All this was done in the presence of me, the Notary Public, who also signed
this Deed and affixed my official Seal.
Basel, the 28th (twenty-eighth) day of November 1994 (nineteen hundred and
ninety-four).
Kettendorf
W. Kuppers
St. Cueni, Notary
A.Prot. 1994/178
Exhibit 99.1
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated as of
December 31, 1994
among
CINCINNATI MILACRON INC.,
CINCINNATI MILACRON KUNSTSTOFFMASCHINEN EUROPA GMBH,
THE LENDERS LISTED HEREIN
and
BANKERS TRUST COMPANY,
as Agent
CINCINNATI MILACRON INC.
Amended and Restated Revolving Credit Agreement
dated as of
December 31, 1994
TABLE OF CONTENTS
Section Heading Page
SECTION 1.
1.1 Definitions . . . . . . . . . . . . . . . . . 1
1.2 Accounting Principles . . . . . . . . . . . . 28
1.3 Other Definitional Provisions . . . . . . . . 28
1.4 Effective Date. . . . . . . . . . . . . . . . 29
SECTION 2. AMOUNT AND TERMS OF LOANS . . . . . . . . . . 29
2.1 The Revolving Loans . . . . . . . . . . . . . 29
2.2 Minimum Amount of Each Borrowing. . . . . . . 31
2.3 Notice of Borrowing . . . . . . . . . . . . . 31
2.4 Disbursement of Funds . . . . . . . . . . . . 32
2.5 Notes . . . . . . . . . . . . . . . . . . . . 33
2.6 Conversion or Continuation of Revolving
Loans . . . . . . . . . . . . . . . . . . . 34
2.7 Pro Rata Borrowings and Issuances . . . . . . 36
2.8 Interest. . . . . . . . . . . . . . . . . . . 36
2.9 Interest Periods. . . . . . . . . . . . . . . 38
2.10 Increased Costs, Illegality, etc. . . . . . . 39
2.11 Compensation. . . . . . . . . . . . . . . . . 43
2.12 Proceeds of Revolving Loans . . . . . . . . . 44
2.13 Fees and Commissions. . . . . . . . . . . . . 44
2.14 Letters of Credit . . . . . . . . . . . . . . 45
2.15 Replacement Lender. . . . . . . . . . . . . . 54
2.16 Certain Computations. . . . . . . . . . . . . 55
2.17 Change of Lending Office. . . . . . . . . . . 55
SECTION 3. REDUCTIONS IN COMMITMENTS;
PREPAYMENTS AND PAYMENTS . . . 55
3.1 Voluntary Reductions in Total Revolving Loan Commitment 55
3.2 Voluntary Prepayments. . 56
3.3 Mandatory Prepayments. . 56
3.4 Method and Place of Payment. . 57
3.5 Net Payments . 58
SECTION 4. CONDITIONS TO REVOLVING LOANS AND
LETTERS OF CREDIT. . 59
4.1 Conditions to All Revolving Loans. 59
4.2 Conditions to All Letters of Credit. . . 60
4.3 Special Conditions to Borrowing by
the German Borrower . . . 61
SECTION 5. AFFIRMATIVE COVENANTS . . 61
5.1 Furnish Financial Statements and
Information, etc. . 61
5.2 Inspection . . 62
5.3 Taxes, Charges, etc. . . 62
5.4 Corporate Existence, etc . . . 62
5.5 Notice of Default. . 63
5.6 Consolidated Tangible Net Worth. . 63
5.7 ERISA. . . 63
5.8 Insurance. . . 64
5.9 Maintenance of Property. 64
5.10 Compliance with Laws, etc. . . 64
5.11 Consolidated Total Indebtedness to
Capitalization. . . 65
5.12 Environmental Events . . 65
5.13 Post Effective Date Documents. . . 65
SECTION 6. NEGATIVE COVENANTS. 66
6.1 Liens. . . 66
6.2 Restrictions on Fundamental Changes. . . 68
6.3 Interest Coverage Ratio. 69
6.4 Fixed Charge Coverage Ratio. . 69
6.5 ERISA. . . 69
6.6 Sale or Discount of Receivables. . 70
6.7 Amendments or Waivers of Charter or
By-laws or of Certain Documents
Relating to Certain Indebtedness;
Refinancing of Indebtedness . 70
6.8 Sale-leaseback Transactions. . 70
6.9 No Further Negative Pledges. . 71
6.10 Restricted Payments. . . 71
6.11 Investments; Joint Ventures. . 71
6.12 Sale, Transfer, etc. of Assets . . 72
6.13 Acquisitions . 72
SECTION 7. EVENTS OF DEFAULT . 72
7.1 Failure To Make Payments When Due. 73
7.2 Breach of Certain Covenants. . 73
7.3 Breach of Warranty . 73
7.4 Default in Other Agreements. . 73
7.5 Judgments. . . 73
7.6 Other Defaults Under Agreement or Loan
Documents . . . 74
7.7 Bankruptcy; Appointment of Receiver,
Dissolution, etc. . 74
7.8 Unfunded ERISA Liabilities . . 74
7.9 Change in Control. . 75
SECTION 8. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS . . 77
8.1 Financial Information; Undisclosed
Liabilities . . 77
8.2 Adverse Changes. . . 77
8.3 Litigation . . 78
8.4 Authorization, etc.. . . 78
8.5 Corporate Status . . 79
8.6 Title; Insurance . . 79
8.7 Taxes, etc.. . 80
8.8 ERISA. . . 80
8.9 Margin Regulations . 80
8.10 Disclosure . . 81
8.11 Patents, Trademarks, etc.. . . 81
8.12 Environmental Matters. . 82
SECTION 9. AGENT . . 83
9.1 Appointment. . 83
9.2 Nature of Duties . . 84
9.3 Rights, Exculpation, etc . . . 84
9.4 Reliance . 85
9.5 Indemnification. . . 85
9.6 The Agent, Individually. 86
9.7 Holders of Notes . . 86
9.8 Resignation by the Agent . . . 86
9.9 Removal. . 87
SECTION 10. CONDITIONS PRECEDENT. . . 87
10.1 Conditions to Effectiveness. . 87
SECTION 11. MISCELLANEOUS . 89
11.1 Exercise of Rights . 89
11.2 Amendment and Waiver . . 89
11.3 Expenses and Indemnification . 90
11.4 Successors and Assigns; Participations
and Assignments . . 91
11.5 Notices, Requests, Demands . . 95
11.6 Determination of Dollar Equivalent . . . 95
11.7 Survival of Representations and
Warranties. . . 95
11.8 Governing Law. 96
11.9 Counterparts . 96
11.10 Set-Off . 96
11.11 Proration of Excess Payments. 97
11.12 Submission to Jurisdiction; Venue;
Waiver of Jury Trial. . . 97
11.13 Survival. 98
11.14 Lender's Representation and Certain
Agreements. . . 99
11.15 Headings. 100
11.16 Change in Accounting Principles . . 101
11.17 Defaulting Lender . 101
11.18 Confidentiality . . 102
11.19 Judgment Currency . 103
Schedule 2.1 - Lenders' Revolving Loan Commitment and Pro
Rata Share
Schedule 2.14(k) - Certain Letters of Credit
Schedule 6.1 - Liens
Schedule 6.11 - Investments
Schedule 8.2 - Adverse Changes
Schedule 8.3 - Litigation
Schedule 8.4(b) - Consents
Schedule 8.4(c) - Governmental Consents
Schedule 8.6(b) - Insurance
Schedule 8.12(e) - Environmental Listings
EXHIBITS
EXHIBIT A-1 - Form of Dollar Revolving Note
EXHIBIT A-2 - Form of Deutsche Mark Revolving Note
EXHIBIT B-1 - Form of Notice of Borrowing
EXHIBIT B-2 - Form of Notice of Conversion/Continuation
EXHIBIT B-3 - Form of Request for Issuance
EXHIBIT C - Form of Letter Relating to Service of Process
EXHIBIT D-1 - Form of Opinion of Cravath, Swaine & Moore
EXHIBIT D-2 - Form of Opinion of Wayne F. Taylor
EXHIBIT D-3 - Form of Opinion of German Counsel
EXHIBIT E - Form of Opinion of Cahill Gordon & Reindel
EXHIBIT F - Form of Transfer Supplement
EXHIBIT G - Form of Effective Date Officers' Certificate
EXHIBIT H - Form of Compliance Certificate
EXHIBIT I - Form of Lender Certificate
EXHIBIT J - Form of Company Guaranty<PAGE>
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated
December 31, 1994 (the "Agreement") among CINCINNATI MILACRON INC.,
a Delaware corporation (the "Borrower" and the "Company"),
CINCINNATI MILACRON KUNSTSTOFFMASCHINEN EUROPA GMBH, a German
corporation (the "German Borrower" and, collectively with the
Company, the "Borrowers"), the LENDERS listed on Schedule 2.1
hereto (each, a "Lender" and collectively, the "Lenders") and
BANKERS TRUST COMPANY, as the agent for the Lenders (in such
capacity, the "Agent"). All capitalized terms used herein and not
otherwise defined shall have the meaning specified in Section 1.1.
R E C I T A L S :
WHEREAS, the Company has agreed, pursuant to a certain
Stock Purchase Agreement dated as of November 28, 1994 between
Fried. Krupp AG Hoesch-Krupp and the Company, to acquire the stock
of Krupp Widia GmbH, a German corporation;
WHEREAS, the Company has requested that the Agent and the
Lenders amend and restate the Existing Credit Agreement to provide
for, among other things, an increase in the amount of the
Commitments, a provision for each of the Lenders to make Alternate
Currency Loans to the German Borrower, and the modification of
certain covenants;
WHEREAS, the Company will own, directly or indirectly,
all of the outstanding shares of capital stock of the German
Borrower;
WHEREAS, the Lenders desire that the Company guarantee
the obligations of the German Borrower owing to the Lenders
hereunder;
WHEREAS, the Company, the Lenders and the Agent desire to
amend and restate the Existing Credit Agreement in connection
therewith and to reflect certain other agreed upon changes, all
upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants herein contained, the Company, the German
Borrower, the Lenders and the Agent hereto agree as follows:
SECTION 1.
1.1 Definitions. As used herein the following terms
shall have the meanings herein specified:
"Acquisition" shall mean the acquisition by the Company
of at least 99% of all of the outstanding capital stock of Widia
pursuant to the terms and conditions of the Stock Purchase
Agreement.
"Acquisition Date" shall mean the date of consummation of
the Acquisition.
"Affiliate" shall mean, with respect to any Person, any
other Person directly or indirectly controlling, controlled by or
under common control with that Person. For the purposes of this
definition, "control" (including with correlative meanings, the
terms "controlling", "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.
"Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Agent's Office" shall mean the office of the Agent
located at 130 Liberty Street, New York, New York 10006, or such
other office in New York as the Agent may hereafter designate in
writing as such to the other parties hereto.
"Agreement" shall mean this Amended and Restated
Revolving Credit Agreement, as the same may after its execution be
amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
"Alternate Currency" shall mean Deutsche Marks.
"Alternate Currency Equivalent" shall mean the Deutsche
Mark Equivalent.
"Alternate Currency Loan" shall mean any Alternate
Currency Revolving Loan.
"Alternate Currency Revolving Loan" shall mean a Deutsche
Mark Revolving Loan.
"Alternative Currency Sublimit" shall have the meaning
provided in Section 2.1(b).
"Applicable" shall mean, with respect to Regulation D
being applicable to any determination of the Deutsche Mark Euro
Rate, that Regulation D reserves would be applicable to the
Deutsche Mark Revolving Loan as to which such interest rate would
apply (including by giving effect to the assumption that a Lender
had funded such Deutsche Mark Revolving Loan through the purchase
of a Deutsche Mark deposit by a Subsidiary or Affiliate of such
Lender in the London interbank market and the transfer thereof to
such Lender from such Subsidiary or Affiliate).
"Applicable Borrowing Margin" shall mean:
(a) with respect to Eurodollar Loans and Alternate
Currency Loans, if the ratio of Consolidated Total
Indebtedness to the sum of (i) Consolidated Total Indebtedness
plus (ii) Consolidated Tangible Net Worth, as evidenced by the
Compliance Certificate of the Company from the preceding
quarter and upon receipt of such Compliance Certificate the
relevant applicable Borrowing Margin will be given effect, is
(x) greater than or equal to 65.0%, 1.25% per annum, (y) is
less than 65.0% but greater than or equal to 60.0%, 1.00% per
annum, (z) is less than 60.0% but greater than or equal to
50.0%, .925% per annum, (xx) is less than 50.0% but greater
than or equal to 45.0%, .75% per annum, (yy) is less than
45.0% but greater than or equal to 40.0%, .40% per annum and
(zz) is less than 40.0%, .35% per annum; and
(b) with respect to Fixed CD Rate Loans, if the ratio of
Consolidated Total Indebtedness to the sum of (i) Consolidated
Total Indebtedness plus (ii) Consolidated Tangible Net Worth,
as evidenced by the Compliance Certificate of the Company from
the preceding quarter and upon receipt of such Compliance
Certificate will the relevant applicable Borrowing Margin be
given effect, is (x) greater than or equal to 65.0%, 1.375%
per annum, (y) is less than 65.0% but greater than or equal to
60.0%, 1.125% per annum, (z) is less than 60.0% but greater
than or equal to 50.0%, 1.05% per annum, (xx) is less than
50.0% but greater than or equal to 45.0%, .875% per annum,
(yy) is less than 45.0% but greater than or equal to 40.0%,
.525% per annum and (zz) is less than 40.0%, .475% per annum."
"Applicable Currency" shall mean Dollars and each
Available Alternate Currency.
"Applicable Fee Percentage" shall mean, with respect to
the Facility Fee as defined in Section 2.13, if the ratio of
Consolidated Total Indebtedness to the sum of (i) Consolidated
Total Indebtedness plus (ii) Consolidated Tangible Net Worth, as
evidenced by the compliance certificate of the Company from the
preceding quarter and upon receipt of such Compliance Certificate
the relevant Applicable Fee Percentage will be given effect, is (x)
greater than or equal to 65.0%, .50% per annum, (y) is less than
65.0% but greater than or equal to 60.0%, .50% per annum, (z) is
less than 60.0% but greater than or equal to 50.0%, .45% per annum,
(xx) is less than 50.0% but greater than or equal to 45.0%, .375%
per annum, (yy) is less than 45.0% but greater than or equal to
40.0%, .25% per annum and (zz) is less than 40.0%, .20% per annum."
"Authorized Officer" shall mean, in the case of the
Company, any of the President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, any Vice-President, the
Secretary or the General Counsel or, in case of the German
Borrower, any of its Managing Directors or any other officer of the
Borrower or German Borrower, as the case may be, who is designated
in writing to the Agent and the Issuing Lender by any of the
foregoing officers of such Borrowers as being authorized to give
such notices under this Agreement.
"Available Alternate Currency" shall mean the Alternate
Currency except to the extent that the Agent has given notice to
the Company and the German Borrower pursuant to Section 2.10(a)
(which notice has not been rescinded by the Agent) that the
Alternate Currency is no longer available.
"Average Life" shall mean, as of the date of
determination, with respect to any Indebtedness, the quotient
obtained by dividing (a) the sum of the product of (i) the number
of days from such date to the date of each successive scheduled
principal or redemption payment of such Indebtedness multiplied by
(ii) the amount of such principal or redemption payment by (b) the
sum of all such principal or redemption payments, and then by
(c) 365.25.
"Bankruptcy Code" shall mean Title 11 of the United
States Code entitled "Bankruptcy," as amended from time to time,
and any successor statute.
"Base Rate" shall mean at any time the higher of (i) the
Federal Funds Rate plus 1/2 of 1% and (ii) the Prime Lending Rate.
"Base Rate Loan" or "Base Rate Loans" shall mean any
Dollar Revolving Loan or Dollar Revolving Loans during any period
during which such Dollar Revolving Loan or Dollar Revolving Loans
are bearing interest at the rates provided for in Section 2.8(a).
"Borrower" shall mean Cincinnati Milacron Inc., a
Delaware corporation.
"Borrowing" shall mean and include the incurrence
pursuant to a Notice of Borrowing and to the Loan Facility of one
Type of Revolving Loan from all the Lenders on a given date, having
the same Interest Period; provided, however, that Revolving Loans
of a different Type extended pursuant to Section 2.10(b) shall be
considered part of the related Borrowing.
"BTCo" shall mean Bankers Trust Company.
"Business Day" shall mean (i) for all purposes other than
as covered by clause (ii) below, any day except Saturday, Sunday
and any day which shall be in New York City a legal holiday or a
day on which banking institutions are authorized or required by law
or other government action to close and (ii) with respect to all
notices and determinations in connection with, and payments of
principal and interest on, Fixed Rate Loans, any day which is a
Business Day described in clause (i) above and which is also a day
for trading by and between banks in the London interbank Eurodollar
market and which shall not be a legal holiday or a day on which
banking institutions are authorized or required by law or other
government action to close in the city where the applicable Payment
Office of the Agent is located including, but not limited to,
German banking holidays, including but not limited to those in
Frankfurt, in respect of such Fixed Rate Loan.
"Buyer" shall mean CMKE, the entity acquiring Widia.
"Capital Lease" shall mean, as applied to any Person, any
lease of any property (whether real, personal or mixed) by that
Person as lessee which, in accordance with GAAP, is or should be
accounted for as a capital lease on the balance sheet of such
Person.
"Capitalized Lease Obligations" of any Person shall mean
all obligations under Capital Leases of such Person or any of its
Subsidiaries in each case taken at the amount thereof accounted for
as liabilities in accordance with GAAP.
"Cash" shall mean money, currency or a credit balance
denominated in Dollars in a Deposit Account.
"Cash Equivalents" shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than three years
from the date of acquisition, (ii) marketable direct obligations
issued by any State of the United States of America or any local
government or other political subdivision thereof rated (at the
time of acquisition of such security) at least AA by S&P or the
equivalent thereof by Moody's having maturities of not more than
one year from the date of acquisition, (iii) U.S. dollar
denominated time deposits, certificates of deposit and bankers'
acceptances of (x) any Lender or (y) any domestic financial
institution having a short-term commercial paper rating (at the
time of acquisition of such security) by S&P of at least A-1 or the
equivalent thereof or by Moody's of at least P-1 or the equivalent
thereof (any such Lender or financial institution, an "Approved
Bank"), in each case with maturities of not more than one year from
the date of acquisition, (iv) commercial paper and variable or
fixed rate notes issued by any Approved Bank or by the parent
company of any Approved Bank and commercial paper and variable rate
notes issued by, or guaranteed by, any industrial or financial
company with a short-term commercial paper rating (at the time of
acquisition of such security) 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 (at the time of acquisition of such security)
of at least AA or the equivalent thereof by S&P or the equivalent
thereof by Moody's and in each case maturing within one year after
the date of acquisition and (v) repurchase agreements with any bank
or any primary dealer maturing within one year from the date of
acquisition that are fully collateralized by investment instruments
that would otherwise be Cash Equivalents; provided that the terms
of such repurchase agreements comply with the guidelines set forth
in the Federal Financial Institutions Examination Council
Supervisory Policy -- Repurchase Agreements of Depository
Institutions With Securities Dealers and Others, as adopted by the
Comptroller of the Currency on October 31, 1985.
"CD Office" shall mean the office of each Lender set
forth opposite its name on the signature page of this Agreement
under such heading, or if no such office is set forth opposite its
name, then its Domestic Office, or such other office as such Lender
may specify from time to time.
"CERCLA" shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, as
amended from time to time.
"Certain Existing Indebtedness" shall mean the
$10,800,000 aggregate principal amount of 12% Sinking Fund
Debentures of the Company due 2010 and the $115,000,000 aggregate
principal amount of 8 3/8% Notes of the Company due 2004.
"Certificate of Deposit Rate" shall mean, with respect to
each Interest Period for a Fixed CD Rate Loan, the average (rounded
upward to the next whole multiple of 1/100 of 1%) of the consensus
bid rates determined by the Agent for the bid rates per annum, at
approximately 10:00 a.m. (New York time) on the first day of such
Interest Period, of two or more New York certificate of deposit
dealers of recognized standing selected by the Agent for the
purchase at face value from the Agent in New York of its
certificates of deposit in an aggregate amount approximately
comparable to the Fixed CD Rate Loan to which such Interest Period
is applicable and with a maturity equal to such Interest Period.
"Closing Date" shall mean December 31, 1994.
"CMKE" shall mean Cincinnati Milacron Kunststoffmaschinen
Europa GmbH, a German corporation and a wholly-owned Subsidiary of
the Company.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time and any successor statute thereto.
Section references to the Code are to the Code as in effect at the
date of this Agreement and any subsequent provisions of the Code
amendatory thereof, supplemental thereto or substituted therefor.
"Commitment" shall mean, with respect to each Lender, the
amount specified opposite such Lender's name on Schedule 2.1
hereto, as the same may be reduced from time to time pursuant to
Section 3.1 hereof.
"Company" shall have the meaning provided in the preamble
of this Agreement.
"Company Guarantee" shall have the meaning provided in
Section 10.1(a)9.
"Compliance Certificate" means a certificate
substantially in the form annexed hereto as Exhibit H delivered to
the Lenders by the Company pursuant to Section 5.1(d)(ii).
"Consolidated Capital Expenditures" shall mean, for any
period, the aggregate of all expenditures (whether paid in cash or
accrued as a liability and including expenditures for maintenance
and repairs which should in accordance with GAAP be capitalized on
the balance sheet of the Company and all obligations with respect
to Capital Leases and all capitalized interest) by the Company and
its Consolidated Subsidiaries during that period, which, in
conformity with GAAP, are included or required to be included in
"additions to property, plant or equipment" or similar items
reflected in the consolidated statement of cash flows of the
Company.
"Consolidated Net Income" of the Company for any period
shall mean the net earnings of the Company and its Consolidated
Subsidiaries determined on a consolidated basis for such period,
after all proper charges, including charges for depreciation,
depletion, obsolescence, amortization, interest on indebtedness and
all taxes, including taxes in respect of income.
"Consolidated Subsidiary" shall mean, with respect to the
Company, each Subsidiary of the Company the accounts of which are
consolidated in the financial statements referred to in Section 8.1
or 5.1.
"Consolidated Tangible Net Worth" shall mean, as at any
date at which the amount thereof shall be determined, the amount by
which the sum of (a) the par value (or value stated on the books of
the corporation) of the capital stock of all classes (other than
preferred stock redeemable at the option of the holder thereof) of
the Company, and (b) the amount of the consolidated surplus,
capital or earned, of the Company and its Consolidated
Subsidiaries, exceeds the sum of (x) the amount of any write-up in
the book value of any assets of the Company and its Consolidated
Subsidiaries resulting from the revaluation thereof or any write-up
in excess of the cost of assets acquired, and (y) the aggregate of
all amounts appearing on the asset side of the consolidated
balance sheet of the Company for goodwill, patents, patent rights,
trademarks, trade names, copyrights, franchises, bond discounts,
underwriting expenses, treasury stock, organizational expenses, and
other similar items, if any, all determined in accordance with GAAP
applied on a consistent basis. Notwithstanding any provision of
this Agreement, (i) goodwill (as defined by GAAP) associated with
the Acquisition of Widia, in an amount not to exceed $35,000,000,
shall be added back into and considered a part of Consolidated
Tangible Net Worth and (ii) foreign currency translation gains (or
losses) shall not be deemed to increase (or decrease) Consolidated
Tangible Net Worth pursuant to Statement of Financial Accounting
Standards No. 52 of the Financial Accounting Standards Board or
otherwise.
"Consolidated Total Indebtedness" shall mean the
aggregate of all Total Indebtedness of the Company and its
Consolidated Subsidiaries determined on a consolidated basis.
"Contingent Obligations" shall mean, as to any Person,
without duplication, any obligation of such person guaranteeing or
intended to guarantee any Indebtedness, leases, dividends or other
obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person,
whether or not contingent, (a) to purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or
payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation
or (d) otherwise to assure or hold harmless the owner of such
primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the maximum
amount that such Person may be obligated to expend pursuant to the
terms of such Contingent Obligation or, if such Contingent
Obligation is not so limited, the stated or determinable amount of
the primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such
person in good faith.
"Contractual Obligation" shall mean, as applied to any
Person, any provision of any security issued by that Person or of
any loan or credit agreement, indenture, mortgage, lease or other
instrument or agreement.
"Current Assets" shall mean, with respect to any Person
as at any date of determination, the total assets of such Person
that may properly be classified on the balance sheet of such Person
as current assets in conformity with GAAP.
"Current Liabilities" shall mean, with respect to any
Person as at any date of determination, the total liabilities of
such Person that may properly be classified on the balance sheet of
such Person as current liabilities in conformity with GAAP.
"Default" shall mean any event, act or condition which
with notice or lapse of time or both would constitute an Event of
Default if that condition or event were not cured or removed within
any applicable grace or cure period.
"Defaulting Lender" shall mean (i) any Lender that fails
in its obligation to fund any Revolving Loan pursuant to Section
2.1 and such failure continues for five Business Days; (ii) any
Lender as to which any event of the type described in Section 7.7
occurs (with all references in such Section to the Borrower instead
being to such Lender); (iii) any Lender as to which any
Governmental Authority (including, without limitation, the OTS,
RTC, FDIC, OCC or Federal Reserve Board) directly or indirectly
seizes, takes possession of or undertakes, authorizes or orders
similar action with respect to, or authorizes, or orders the
liquidation, dissolution, winding up, sale, transfer or other
disposition of, or takes steps or institutes proceedings or
otherwise proceeds to liquidate, dissolve, wind up, sell, transfer
or otherwise dispose of, such Lender or all or any part of such
Lender's property or appoints or authorizes or orders the
appointment of a receiver, liquidator, sequestrator, trustee,
custodian, conservator or other officer or entity having similar
powers over such Lender or over all or any part of such Lender's
property; or (iv) any Lender that fails in its obligation to make
available to an Issuing Lender such Lender's participation in any
unreimbursed amount of any drawing under any Letter of Credit as
provided in Section 2.14(a) and such failure continues for five
Business Days.
"Deposit Account" shall mean a demand, time, savings,
passbook or like account denominated in Dollars with a bank,
savings and loan association, credit union or like organization,
other than an account evidenced by a negotiable certificate of
deposit.
"Deutsche Mark Equivalent" shall mean, at any time for
the determination thereof, the amount of Deutsche Marks which could
be purchased with the amount of Dollars involved in such
computation at the spot exchange rate therefor as quoted by BTCo as
of 11:00 a.m. (London time) on the date two Business Days prior to
the date of any determination thereof for purchase on such date.
"Deutsche Mark Euro Rate" shall mean (a) (i) the rate per
annum that appears on page 3750/3740 of the Dow Jones Telerate
Screen (or any successor page) for Deutsche Mark deposits with
maturities comparable to the Interest Period applicable to the
Deutsche Mark Loans subject to the respective Borrowing, determined
as of 11:00 A.M. (London time) on the date which is three Business
Days prior to the commencement of such Interest Period or, if such
a rate does not appear on page 3750/3740 of the Dow Jones Telerate
Screen (or any successor page), (ii) the offered quotation to
first-class banks in the London interbank Eurodollar market by BTCo
for Deutsche Mark deposits of amounts in immediately available
funds comparable to the outstanding principal amount of the
Deutsche Mark Loan of BTCo with maturities comparable to the
Interest Period applicable to such Deutsche Mark Loan commencing
two Business Days thereafter as of 11:00 a.m. (London time) on the
date which is two Business Days prior to the commencement of such
Interest Period, in either case divided (and rounded off to the
nearest 1/16 of 1%) by (b) a percentage equal to 100% minus the
then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special
or other reserves required by applicable law) applicable to any
member bank of the Federal Reserve System in respect of
Eurocurrency funding or liabilities as defined in Regulation D (or
any successor category of liabilities under Regulation D) to the
extent Applicable; provided, in the event that the Agent has made
any determination pursuant to Section 2.10(a)(i) in respect of
Deutsche Mark Loans, the Deutsche Mark Euro Rate determined
pursuant to clause (a) of this definition shall instead be the
rate determined by BTCo as the all-in cost of funds for BTCo to
fund such Deutsche Mark Loan with maturities comparable to the
Interest Period applicable thereto.
"Deutsche Mark Loan" shall mean a Deutsche Mark Revolving
Loan.
"Deutsche Mark Revolving Loan" shall have the meaning
provided in Section 2.1(b).
"Deutsche Mark Revolving Note" shall have the meaning
provided in Section 2.5(a).
"Deutsche Marks" shall mean freely transferable lawful
money of Germany.
"Dividends" shall mean any dividends declared or paid on
the shares of capital stock of the Company (other than stock
dividends), any cash distribution to the stockholders of the
Company or any funds set aside for any such purpose and the excess
of the cost of redemption or purchase by the Company of any of its
shares of capital stock of any class over any cash proceeds from
the sale of other shares of the Company's capital stock of any
class used for the purpose of such redemption or purchase.
"Dollar Equivalent" shall mean, at any time for the
determination thereof, the amount of Dollars which could be
purchased with the amount of Deutsche Marks involved in such
computation at the spot exchange rate therefor as quoted by BTCo as
of 11:00 a.m. (London time) on the date two Business Days prior to
the date of any determination thereof for purchase on such date.
"Dollar Loan" shall mean each Dollar Revolving Loan.
"Dollar Revolving Loan" shall have the meaning provided
in Section 2.1(b).
"Dollar Revolving Note" shall have the meaning provided
in Section 2.5(a).
"Dollars" and the symbol "$" shall each mean freely
transferable lawful money of the United States.
"Domestic Office" shall mean the office of each Lender
set forth opposite its name on the signature pages of this
Agreement under such heading, or if only one office is set forth
opposite its name, then such office.
"Domestic Subsidiary" shall mean a Subsidiary whose
jurisdiction of incorporation is within the United States that is
not a Foreign Subsidiary.
"EBIT" of the Company for any rolling four quarter period
(taken as one accounting period) shall mean the following: the
Consolidated Net Income of the Company for such period, before
interest expense and interest income and provision for taxes and
without giving effect to any extraordinary nonrecurring cash gains
or losses for such period; provided, that for purposes of
calculating EBIT of the Company for any period ending on or after
the first anniversary of the Acquisition Date, EBIT of Widia shall
be measured from and after the Acquisition Date; provided, further,
that for purposes of calculating EBIT of the Company for any
rolling four quarter period that includes the third fiscal quarter
of 1993, a non-recurring charge relating to the Company's blown
film business shall be excluded from the determination of
Consolidated Net Income of the Company for the relevant period, but
only to the extent that such non-recurring charge did not exceed
$18,000,000; provided, further, that for purposes of calculating
EBIT of the Company for any rolling four quarter period that
includes the fourth fiscal quarter of 1993, a non-recurring
restructuring charge taken in the fourth fiscal quarter of 1993
relating to the Company's machine tool business and disposal of the
blown film systems business shall be excluded from the
determination of Consolidated Net Income of the Company for the
relevant period, but only to the extent that such non-recurring
charge did not exceed $51,800,000; and provided, further, that for
purposes of calculating EBIT of the Company for any rolling four
quarters period that includes the fourth fiscal quarter of 1994 or
any fiscal quarter of 1995, the restructuring charges taken in
fiscal 1994 or 1995 relating to the consolidation of certain
Valenite and Widia operations shall be excluded from the
determination of Consolidated Net Income of the Company for the
relevant period, but only to the extent such non-recurring charges
do not exceed $25,000,000.
"Effective Date" is defined in Section 1.4 hereof.
"Eligible Assignee" shall have the meaning assigned to
such term in Section 11.4(c).
"Eligible Transferee" shall mean and include a commercial
bank, financial institution or other accredited investor" (as
defined in Regulation D of the Securities Act).
"Environmental Laws" shall mean the common law and all
Federal, state, local and foreign laws or regulations, guidance or
standards codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder now or hereafter in
effect, including, without limitation, CERCLA, RCRA, FWPCA, FCAA
and TSCA, relating to pollution or protection of human health and
the environment, including, without limitation, laws relating to
(i) emissions, discharges, releases or threatened releases of and
exposure to pollutants, constituents, hazardous or toxic substances
or wastes, including, without limitation, asbestos or asbestos
containing material, petroleum, including crude oil or any fraction
thereof, or any petroleum product (collectively referred to as
"Hazardous Materials") into the environment (including, without
limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or (ii) relating to the manufacture,
processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of Hazardous Materials, and (iii)
underground storage tanks, as defined by any law regulating
Hazardous Materials, and emissions, discharges, releases or
threatened releases therefrom.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time. Section
references to ERISA are to ERISA, as in effect at the date of this
Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean any person (as defined in
Section 3(9) of ERISA) that is a member of any group of persons
described in Section 414(b) or (c) of the Code of which the Company
is a member; provided, however, that for purposes of those
provisions of Sections 5.7, 6.5, 7.8 and 8.8 hereof relating to
Section 412 of the Code or Section 302 of ERISA, the term "ERISA
Affiliate" shall also mean any such person that is a member of any
group of persons described in Section 414(m) or (o) of the Code of
which the Company is a member.
"Eurodollar Loan" or "Eurodollar Loans" shall mean any
Revolving Loan or Revolving Loans during any period during which
such Revolving Loan or Revolving Loans are maintained in
Eurodollars or otherwise are bearing interest at the rates provided
for in Section 2.8(b).
"Eurodollar Office" shall mean the office of each Lender
set forth opposite its name on the signature pages of
this Agreement under such heading, or if only one office is set
forth opposite its name, then such office, or such other office as
such Lender may specify from time to time.
"Eurodollar Rate" shall mean (a) the offered quotation to
first-class banks in the Interbank Eurodollar market by BTCo for
Dollar deposits of amounts in immediately available funds
comparable to the outstanding principal amount of the Eurodollar
Loan of BTCo with maturities comparable to the Interest Period
applicable to such Eurodollar Loan commencing two Business Days
thereafter as of 10:00 a.m. (New York time) on the date which is
two Business Days prior to the commencement of such Interest
Period, divided (and rounded off to the nearest 1/16 of 1%) by (b)
a percentage equal to 100% minus the then stated maximum rate of
all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves
required by applicable law) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency funding or
liabilities as defined in Regulation D (or any successor category
of liabilities under Regulation D).
"Event of Default" shall mean each of the Events of
Default provided in Section 7.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder.
"Existing Credit Agreement" shall mean the credit
agreement as amended and restated as of July 20, 1993 by and among
the Borrower, the banks listed in Schedule 2.1 thereto and BTCo as
Agent and as amended, modified and supplemented in accordance with
the terms thereof prior to the Effective Date.
"Facility Fee" shall have the meaning assigned to such
term in Section 2.13.
"Fair Market Value" shall mean, in respect of any
property of the Company and its Subsidiaries, the fair market value
thereof, determined in the good faith judgment of the chief
financial officer of the Company on the basis of an assumed arms-
length sale of such property to an independent Person not
affiliated with the Company or its Subsidiaries, assuming neither
party is under any compulsion to buy or sell and that each has
knowledge of all relevant facts and circumstances.
"FCAA" shall mean the Federal Clean Air Act, as amended.
"FDIC" shall mean the Federal Deposit Insurance
Corporation and any successor entity.
"Federal Funds Rate" shall mean on any one day the
weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers as published as of such day by the Federal
Reserve Lender of New York; provided that if such day is not a
Business Day, the Federal Funds Rate shall be measured as of the
immediately preceding Business Day.
"Fees" shall mean the fees and commissions payable
pursuant to Sections 2.13 and 2.14(f)(1)(ii), (2) and (3).
"Final Maturity Date" means July 20, 1996 unless such
date is extended for one year; provided, however, that the Company
gives the Agent written notice no later than July 20, 1995 of its
desire to extend the Final Maturity Date, which extension shall be
subject to the consent of each Lender (other than a Defaulting
Lender).
"Fixed CD Rate" shall mean with respect to each Interest
Period in respect of a Fixed CD Rate Loan the sum (rounded upward
to the next whole multiple of 1/100 of 1%) of (A) the Certificate
of Deposit Rate for the Interest Period in respect of a Fixed CD
Rate Loan plus (B) the then daily net annual assessment rate as
estimated by the Agent on the first day of such Interest Period for
determining the current annual assessment payable by the Agent to
the FDIC for insuring a negotiable certificate of deposit of at
least $100,000 with a maturity equal to such Interest Period of any
member bank of the Federal Reserve System.
"Fixed CD Rate Loan" or "Fixed CD Rate Loans" shall mean
any Revolving Loan or Revolving Loans during any period during
which such Revolving Loan or Revolving Loans are bearing
interest at the rates provided for in Section 2.7(c).
"Fixed Charges" of a Person for any period shall mean,
without duplication, the sum of (i) Interest Expense plus (ii)
Dividends.
"Fixed Rate" shall mean and include the Fixed CD Rate,
the Eurodollar Rate and the Deutsche Mark Euro Rate.
"Fixed Rate Loan" shall mean any Fixed CD Rate Loan, any
Eurodollar Loan and any Deutsche Mark Loan.
"Foreign Subsidiary" shall mean any Subsidiary of the
Company, wherever incorporated, which operates and owns or leases
assets principally outside the United States.
"Funding Date" shall mean the date of the funding of a
Revolving Loan.
"FWPCA" shall mean the Federal Water Pollution Control
Act, as amended.
"GAAP" shall mean generally accepted accounting
principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by
such accounting profession, which are applicable to the
circumstances as of the date of determination.
"German Borrower" shall mean CMKE.
"Government Acts" shall have the meaning assigned to such
term in Section 2.14.
"Governmental Authority" shall mean any federal, state,
local, foreign or other governmental or administrative (including
self-regulatory) body, instrumentality, department or agency or any
court, tribunal, administrative hearing body, arbitration panel,
commission, or other similar dispute-resolving panel or body
including, without limitation, those governing the regulation and
protection of the environment.
"Indebtedness" of any Person shall mean, without
duplication, (i) all indebtedness of such Person for borrowed
money, (ii) the deferred purchase price of assets or services which
in accordance with GAAP would be shown on the liability side of the
balance sheet of such Person, (iii) the face amount of all letters
of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of
a second Person secured by any Lien on any property owned by such
first Person, whether or not such Indebtedness has been assumed by
such first Person, (v) all Capitalized Lease Obligations of such
Person, (vi) all obligations of such Person to pay a specified
purchase price for goods or services whether or not delivered or
accepted, i.e., take-or-pay and similar obligations and (vii) all
Contingent Obligations of such Person; provided that Indebtedness
shall not include trade payables, accrued expenses, accrued
dividends and accrued income taxes, in each case arising in the
ordinary course of business.
"Interest Determination Date" shall mean, with respect to
any Fixed Rate Loan, the second Business Day prior to the
commencement of any Interest Period relating to such Fixed Rate
Loan.
"Interest Expense" of the Company for any period shall
mean the total interest expense, whether paid in cash or accrued as
a liability, less any interest income of the Company and its
Consolidated Subsidiaries for such period determined in accordance
with GAAP; provided that Interest Expense shall be deemed to be $1
if the above calculation would otherwise result in zero or a
negative number.
"Interest Payment Date" shall mean, with respect to any
Fixed Rate Loan, the last day of the Interest Period applicable
thereto; provided that in the case of any Eurodollar Loan or
Alternate Currency Loan having an Interest Period of six months or
any Fixed CD Rate Loan having an Interest Period of 180 days,
"Interest Payment Date" shall also include each Interest Period
Anniversary Date for such Interest Period.
"Interest Period" with respect to any Revolving Loan
shall mean the interest period applicable thereto, as determined
pursuant to Section 2.9.
"Interest Period Anniversary Date" shall mean, for any
Interest Period applicable to a Eurodollar Loan or Alternate
Currency Loan that is six months and for any Interest Period
applicable to a Fixed CD Rate Loan that is 180 days, the
three-month anniversary or 90-day anniversary, respectively, of
the commencement of that Interest Period with respect to such
Eurodollar Loan or Alternate Currency Loan or Fixed CD Rate Loan.
"Investment" shall mean, as applied to any Person, any
direct or indirect purchase or other acquisition by that Person of,
or a beneficial interest in, stock or other Securities of any other
Person or any direct or indirect loan, advance or capital
contribution by that Person to any other Person, including all
indebtedness and accounts receivable from that other Person that
are not current assets or did not arise from sales to that other
Person in the ordinary course of business, or any payment in
respect of a Contingent Obligation in respect of an obligation of
any other Person. The amount of any Investment shall be the
original cost of such Investment plus the cost of all additions
thereto, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such
Investment; provided, however, that Investments made with or in
exchange for intangible assets of the Company or its Subsidiaries
(or the portion of the value of such Investment that is reasonably
attributable to the value of any such intangible assets) shall be
deemed to be valued at $1.00 for purposes of Section 6.11.
"Issuing Lender" shall mean the Lender that agrees to
issue a Letter of Credit, determined as provided in Section 2.14.
"Joint Venture" shall mean, as to any Person, a joint
venture, partnership or other similar arrangements, whether in
corporate, partnership or other legal form in which such Person has
a 50% or less voting and/or equity interest and which is not a
Subsidiary of such Person.
"Lender" shall have the meaning provided in the preamble
of this Agreement.
"Letter of Credit" or "Letters of Credit" means any
standby letter or letters of credit or similar instrument (which
shall be denominated in Dollars) issued or to be issued by an
Issuing Lender for the account of the Company pursuant to
Section 2.14 for the purpose of supporting (i) workers'
compensation liabilities of the Company, (ii) the obligations of
third party insurers of the Company arising by virtue of the laws
of any jurisdiction requiring third party insurers to obtain such
letters of credit, (iii) obligations with respect to Capital Leases
or Operating Leases of the Company, or (iv) performance, payment,
deposit or surety obligations of the Company if required by law or
governmental rule or regulation or in accordance with custom and
practice in the industry in which the Company and its Subsidiaries
are engaged.
"Letter of Credit Participation" has the meaning assigned
to that term in Section 2.14(a).
"Letters of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount that is,
or, with respect to any Letter of Credit that by its terms provides
for increases over time in the maximum amount available to be drawn
thereunder, may become at any given time, available under all
Letters of Credit then outstanding plus (ii) the aggregate amount
of all drawings under Letters of Credit honored by all Issuing
Lenders and not theretofore reimbursed by the Company; provided,
however, the Letters of Credit Usage of an Issuing Lender shall be
deemed to be only such portion of the Letters of Credit Usage of
such Issuing Lender that is not subject to participation pursuant
to Section 2.14(a).
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security interest or
agreement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any
lease having substantially the same effect as any of the
foregoing).
"Loan" shall have the meaning assigned to such term in
Section 2.1(a).
"Loan Documents" shall mean this Agreement, the Company
Guarantee, the Notes and the Letters of Credit.
"Loan Facility" shall mean the credit facility evidenced
by the Total Revolving Loan Commitment.
"Long Term Debt Issue" shall mean the most senior
outstanding issue of Indebtedness having a remaining life to Stated
Maturity of more than one year.
"Margin Stock" shall have the meaning provided in 12
C.F.R. Section 221.3(v) or in any successor provision thereto.
"Material Adverse Effect" shall mean (i) any material
adverse change with respect to the business, operations, assets,
liabilities (contingent or otherwise), condition (financial or
otherwise) or prospects of the Company and its Subsidiaries, taken
as a whole or (ii) any fact or circumstance (net of available
insurance coverage from financially sound insurers), including any
pending or threatened litigation or proceeding, arising as to which
singly or in the aggregate there is a reasonable likelihood of
(x) a material adverse change described in clause (i) occurring or
(y) the Company failing to perform in any material respect its
respective material Obligations hereunder or under any of the other
Loan Documents or the Lenders and the Agent becoming unable to
enforce in any material respect their rights taken as a whole
purported to be granted hereunder and under the other Loan
Documents.
"Moody's" shall mean Moody's Investors Service, Inc., or
any successor to its rating business.
"Multiemployer Plan" shall mean a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA with respect to which the
Company or any of its ERISA Affiliates is or has, within any of the
preceding six years, been required to contribute.
"Note" or "Notes" shall mean one or more of the Revolving
Notes.
"Notes Receivable" shall mean promissory notes evidencing
the obligations of purchasers of inventory consisting of equipment
of the Company originally representing that portion of the purchase
price of such inventory not paid to the Company in cash at the time
of purchase.
"Notice of Borrowing" shall have the meaning assigned to
such term in Section 2.3.
"Notice of Conversion/Continuation" shall have the
meaning assigned to such term in Section 2.6.
"Notice Office" shall mean the office of the Agent
located at 130 Liberty Street, Commercial Loan Division, l4th
Floor, New York, New York 10006, Attention: Frank Russo, or such
other office as the Agent may hereafter designate in writing as
such to the other parties hereto.
"Obligations" shall mean all obligations of every nature
of the Company and the German Borrower, as the case may be, from
time to time owed to the Agent and the Lenders or any of them under
any of the Loan Documents.
"OCC" shall mean the Office of the Comptroller of the
Currency and any successor agency or other entity.
"Officers' Certificate" shall mean, as applied to any
corporation, a certificate executed on behalf of such corporation
by its Chairman of the Board (if an officer), its Chief Executive
Officer or its President or one of its Vice Presidents and by its
Chief Financial Officer or its Treasurer or any Assistant
Treasurer; provided that every Officers' Certificate with respect
to compliance with a condition precedent to the making of any
Revolving Loan hereunder shall include (i) a statement that the
officers making or giving such Officers' Certificate have read such
condition and any definitions or other provisions contained in this
Agreement relating thereto, (ii) a statement that, in the opinion
of the signers, they have made or have caused to be made such
examination or investigation as is necessary to enable them to
express an informed opinion as to whether or not such condition has
been satisfied, and (iii) a statement as to whether, in the opinion
of the signers, such condition has been satisfied.
"Operating Lease" of any Person shall mean any lease
(including, without limitation, leases which may be terminated by
the lessee at any time) of any property (whether real, personal or
mixed) by such Person as Lessee which is not a Capital Lease.
"Original Dollar Equivalent" shall mean, in respect of
any Alternate Currency Revolving Loan, the Dollar Equivalent
thereof at the time of the incurrence of such Alternate Currency
Revolving Loan.
"OTS" shall mean the Office of Thrift Supervision and any
of its successors or assigns.
"Payment Office" shall mean (i) in respect of Dollar
Loans, Letters of Credit, Fees and, except as provided in clause
(ii) of this definition, all other amounts owing under this
Agreement, the office of the Agent located at 130 Liberty Street,
New York, New York 10006, ABA Number: 021-001-003, Account Name:
Commercial Loan Division, Account Number: 99401268, Attention:
Frank Russo, Reference: Cincinnati Milacron Inc., (ii) in respect
of Deutsche Mark Loans, the Agent's account located at Bankers
Trust Company, Frankfurt Germany Favor Bankers Trust Company New
York, Account 70000036 for [BLZ (Bank Code Number)].
"PBGC" shall mean the Pension Benefit Guaranty
Corporation established pursuant to Section 4002 of ERISA, or any
successor thereto.
"Permitted Liens" shall mean those Liens permitted
pursuant to Section 6.1.
"Person" shall mean and include any person, firm,
corporation, association, trust or other enterprise or any
governmental or political subdivision or agency, department or
instrumentality thereof including the Borrower, any Lender or the
Agent.
"Plan" shall mean any employee plan that is subject to
the provisions of Title IV of ERISA and that is maintained by or
contributed to, or at any time during the five calendar years
preceding the date of this Agreement was maintained or contributed
to, by the Company or any of its ERISA Affiliates, other than a
Multiemployer Plan.
"Prime Lending Rate" shall mean the rate that the Agent
announces from time to time at its principal office as its prime
lending rate for domestic commercial loans; any change of interest
resulting from a change in the Prime Lending Rate shall be
effective on the effective date of each change therein. The Prime
Lending Rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer. The
Agent may make commercial or other loans at rates of interest at,
above or below the Prime Lending Rate.
"Pro Rata Share" shall mean, with respect to each of the
Commitments of, or Obligations owed to, each Lender, the percentage
designated by dividing such Lender's Commitment or Obligation by
all of the Lenders' Commitments or all such Obligations owed to
such Lenders, as such Pro Rata Share may change from time to time
as a result of assignments made pursuant to Section 11.4 and as a
result of Section 11.16; with respect to any obligations or amounts
owing or potentially owing by any Lender, Pro Rata Share means the
percentage designated by dividing the sum of such Lender's
Revolving Loan Commitment by the Total Revolving Loan Commitment as
such Pro Rata Share may change from time to time as a result of
assignments made pursuant to Section 11.4 and as a result of
Section 11.16.
"RCRA" shall mean the Resource, Conservation and Recovery
Act, as amended from time to time, and any successor statute.
"Receivables Purchase Agreement" shall mean the Amended
and Restated Receivables Purchase Agreement, as amended, dated as
of March 18, 1994 among the Borrower, Cincinnati Milacron Marketing
Company, Cincinnati Milacron Commercial Corp., Valenite Inc.,
Clipper Receivables Corporation, State Street Boston Capital
Corporation and PNC Bank, National Association or as the same may
be amended to include the sale of the Borrower's subsidiaries'
domestic receivables, as the same may be amended, supplemented or
modified from time to time in accordance with its terms and
Section 6.7 hereof.
"Reference Lender" shall mean BTCo and any one or more
other Lenders that may be designated from time to time by BTCo.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in
effect or any successor to all or a portion thereof establishing
reserve requirements.
"Reportable Event" shall mean an event described in
Section 4043(b) of ERISA with respect to a Plan as to which the 30-
day notice requirement has not been waived by regulation by the
PBGC (provided, however, that a failure to meet the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA,
including, without limitation, the failure to make on or before its
due date a required installment under Section 412(m) of the Code or
Section 302(e) of ERISA, shall be a reportable event regardless of
the issuance of any waivers in connection with Section 412(d) of
the Code).
"Request for Issuance" shall mean a request substantially
in the form of Exhibit B-3 annexed hereto with respect to a
proposed issuance of a Letter of Credit.
"Requisite Lenders" shall mean Lenders whose Commitments
aggregate at least 66-2/3% of the Total Revolving Loan Commitment.
"Restricted Payment", with respect to any specified
Indebtedness or equity Security, shall mean, whether in cash,
additional securities or property of any kind, any prepayment of
principal of, or premium, if any, or interest on, or any similar
redemption, purchase, retirement, defeasance, sinking fund or
similar payment (other than, in the case of Certain Existing
Indebtedness only, any of the foregoing in respect of mandatory
scheduled payment obligations or any payment at the regularly
scheduled final maturity thereof).
"Revolving Loan" shall have the meaning assigned to such
term in Section 2.1(a).
"Revolving Loan Commitment" shall have the meaning
assigned to such term in Section 2.1(a).
"Revolving Note or Notes" means one or more of the Dollar
Revolving Notes or the Deutsche Mark Revolving Notes or any
combination thereof and substantially in the forms of Exhibit A-1
and Exhibit A-2 annexed hereto, respectively.
"RTC" shall mean the Resolution Trust Corporation and any
successor entity.
"S&P" shall mean Standard & Poor's Corporation or any
successor to its rating business.
"Sale-leaseback" shall mean any Capital Lease of the
Company or any of its Subsidiaries whereby the Company or any of
its Subsidiaries, directly or indirectly, becomes or remains liable
as lessee or as guarantor or other surety, of any property (whether
real or personal or mixed) whether now owned or hereafter acquired,
(i) that the Company or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other
than the Company), or (ii) that the Company or any of its
Subsidiaries intends to use for substantially the same purpose as
any other property that has been or is to be sold or transferred by
the Company or any of its Subsidiaries to any person (other than
the Company) in connection with such lease.
"Sale-leaseback Agreement" shall mean any Sale-leaseback
agreement entered into prior to the Effective Date by the Company
or any of its Subsidiaries and any replacement thereof, in each
case as the same may be amended, amended and restated, supplemented
or modified from time to time in accordance with its terms and
Section 6.7 hereof.
"Securities" shall mean any stock, shares, voting trust
certificates, bonds, debentures, options, warrants, notes, or
other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly
known as "securities" or any certificates of interest, shares or
participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to, purchase
or acquire, any of the foregoing.
"Securities Act" shall mean the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder.
"Seller" shall mean Fried. Krupp AG Hoesch-Krupp, a
German corporation.
"Significant Subsidiary" shall mean, at any time, in the
case of the Company each Subsidiary of the Company now existing or
hereafter acquired or formed by the Company which (x)(i) accounted
for more than $100,000,000 in revenues of the Company or
(ii) $5,000,000 of EBIT of the Company, in each case on the date of
the most recent consolidated financials of the Company delivered to
the Lenders pursuant to Section 5.1, (y) was was the owner of more
than $10,000,000 of the consolidated total assets of Company during
the twelve-month period ending on the date of the most recent
consolidated balance sheet of the Company delivered to the Lenders
pursuant to Section 5.1 or (z) is the German Borrower; provided,
however, that any special purpose Subsidiary of the Company formed
or used in connection with the transactions contemplated by the
Receivables Purchase Agreement (or any similar "bankruptcy remote"
subsidiary) shall be deemed not to be a Significant Subsidiary.
"Stated Maturity" means, with respect to any
Indebtedness, the date specified therein as the fixed date on which
the then outstanding principal amount of such Indebtedness is due
and payable, including (if applicable) pursuant to any mandatory
redemption provision.
"Stock" shall have the meaning provided in 12 C.F.R. Section
221.3(1) or any successor provision thereto.
"Stock Purchase Agreement" shall mean the Widia Stock
Purchase Agreement dated as of November 28, 1994 between the Seller
and the Company, which provided for the Acquisition, as such
agreement may be amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof and thereof.
"Subsidiary" of any Person means (i) a corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors
of such corporation (irrespective of whether or not at the time
stock of any class or classes of such corporation shall have or
might have voting power by reason of the happening of any
contingency) is at the time owned or controlled by such Person,
directly or indirectly through Subsidiaries, and (ii) any
partnership, association, joint venture or other entity in which
such Person, directly or indirectly through Subsidiaries, has more
than a 50% equity interest at the time. A wholly-owned Subsidiary
of any Person shall mean (i) any Domestic Subsidiary, with "99%"
being substituted for "50%" in the prior sentence each time it
appears and (ii) any Foreign Subsidiary, with "95%" being
substituted for "50%" in the prior sentence each time it appears.
Notwithstanding the foregoing, for purposes of this Agreement, The
Factory Power Company, an Ohio corporation which is 82.2%-owned by
the Company, shall be deemed a wholly-owned Subsidiary of the
Company.
"Subsidiary Borrower" shall mean the German Borrower.
"Taxes" shall have the meaning assigned to such term in
Section 3.5.
"Total Indebtedness" shall mean, for any Person, the sum
of (i) short term debt, (ii) the current portion of long term debt,
(iii) long term debt, (iv) rental obligations under Capital Leases,
(v) all contingent obligations in support of indebtedness and (vi)
outstanding letters of credit, which in the case of clauses (i)-
(vi) are required to be set forth on the balance sheet (including
the notes thereto) as debt of such Person as determined in
accordance with GAAP.
"Total Modified Revolving Commitment" shall mean the
Total Revolving Loan Commitment then in effect plus, in the event
that any Alternate Currency Revolving Loans are outstanding at such
time, the amount (not to exceed 10%) by which the Dollar Equivalent
of the principal amount of such Alternate Currency Revolving Loan
has increased from the Original Dollar Equivalent thereof;
provided, however, that at no time shall the Total Modified
Revolving Commitment exceed the Total Revolving Loan Commitment.
"Total Revolving Loan Commitment" shall have the meaning
assigned to such term in Section 2.1(a).
"Treasury Regulations" shall mean the Regulations
promulgated by the Secretary of the Treasury from time to time
pursuant to the Code.
"TSCA" shall mean the Toxic Substances Control Act.
"Type" shall mean the type of Revolving Loan determined
with regard to the interest option applicable thereto, i.e.,
whether a Base Rate Loan, a Fixed CD Rate Loan, a Eurodollar Loan
or a Deutsche Mark Loan.
"UCC" shall mean the Uniform Commercial Code, as in
effect in each applicable jurisdiction.
"Unfunded Current Liability" of any Plan shall mean an
amount equal to the "amount of unfunded benefit liabilities" for
such Plan, as defined in Section 4001(a)(18) of ERISA.
"Valenite" shall mean Valenite Inc., a Delaware
corporation and a wholly-owned Subsidiary of the Company.
"Widia" shall mean Krupp Widia GmbH (and successor
companies), a German corporation.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex, telecopier
device, telegraph or cable.
The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, schedule, exhibit and like
references are to this Agreement unless otherwise specified.
1.2 Accounting Principles. Except as otherwise
specifically provided herein, all statements (other than the
financial statements to be provided pursuant to Section 5.1) to be
prepared and determinations to be made under this Agreement,
including (without limitation) those pursuant to Sections 5, 6 and
8 shall be prepared and made in accordance with GAAP applied on a
basis consistent with the accounting principles reflected in the
consolidated financial statements of the Borrower and its
Subsidiaries for the fiscal quarter ended March 27, 1993 referred
to in Section 8.1. All accounting terms not otherwise defined
herein shall have the meanings assigned to them in conformity with
GAAP.
1.3 Other Definitional Provisions. References to
"Sections," "clauses" or "subclauses" shall be to Sections, clauses
and subclauses, respectively, of this Agreement unless otherwise
specifically provided. Any of the terms defined in Section 1.1
may, unless the context otherwise requires, be used in the singular
or the plural depending on the reference.
1.4 Effective Date. This Agreement shall become
effective on the date (the "Effective Date") on which (i) each
party hereto shall have returned an executed copy hereof to the
Agent at the address designated on its signature page hereto or, in
the case of the Lenders, shall have given the Agent written notice
(actually received) at such office or such other office as the
Agent may designate that the same has been signed and sent by it to
the Agent, (ii) each of the conditions specified in Section 10.1
will have been satisfied or waived by the Requisite Lenders and
(iii) the Agent shall have given the Company and each Lender notice
that the foregoing has occurred.
SECTION 2. Amount and Terms of Loans.
2.1 The Revolving Loans. (a) Subject to the terms and
conditions of this Agreement, and in reliance upon the
representations and warranties of the Borrowers set forth herein
and in the other Loan Documents, each Lender hereby severally
agrees to lend to the Company or to the German Borrower, as the
case may be, at any time and from time to time, during the period
from and including the Closing Date to but excluding the date that
is one day before the Final Maturity Date, its Pro Rata Share of
the Total Revolving Loan Commitment, by making loans to the Company
or to the German Borrower, as the case may be (each, a "Loan" or
"Revolving Loan"), to be used for the purposes identified in
Section 2.12. Each Lender's commitment to make Revolving Loans to
the Borrowers pursuant to this Section 2.1 is herein called its
"Revolving Loan Commitment" and such commitments of all Lenders in
the aggregate are herein called the "Total Revolving Loan
Commitment." The initial amount of each Lender's Revolving Loan
Commitment is set forth opposite its name on Schedule 2.1 annexed
hereto and the initial amount of the Total Revolving Loan
Commitment is $200,000,000. The amount of the Total Revolving Loan
Commitment shall be reduced by the amount of all reductions thereof
made pursuant to Section 3.1 through the date of determination.
At any time the Total Revolving Loan Commitment is reduced pursuant
to the terms of this Agreement, each Lender's Revolving Loan
Commitment shall be reduced by an amount equal to its Pro Rata
Share of such reduction. Each Lender's Revolving Loan Commitment
shall expire on the Final Maturity Date and all Revolving Loans and
all other amounts owed hereunder with respect to the Revolving
Loans shall be paid in full no later than that date. No Revolving
Loans may be borrowed by the Company or the German Borrower, as the
case may be, if the sum of (i) the aggregate principal amount of
Revolving Loans then outstanding, after giving effect to the making
of all Revolving Loans then requested by all outstanding but
unfunded Notices of Borrowing, plus (ii) the then outstanding
Letters of Credit Usage, after giving effect to the issuance of all
Letters of Credit subject to outstanding Requests for Issuance,
would exceed the Total Revolving Loan Commitment then in effect.
In no event shall the sum of (i) the aggregate principal amount of
the Revolving Loans from any Lender outstanding at any time plus
(ii) such Lender's Pro Rata Share of the then outstanding Letters
of Credit Usage exceed such Lender's Revolving Loan Commitment then
in effect.
Subject to Sections 2.10 and 11.16, all Revolving Loans
under this Agreement shall be made by the Lenders simultaneously
and proportionately to their Pro Rata Shares, it being understood
that no Lender shall be responsible for any default by any other
Lender in that other Lender's obligation to make Revolving Loans
hereunder nor shall the Revolving Loan Commitment of any Lender be
increased or decreased as a result of the default by any other
Lender in that other Lender's obligation to make Revolving Loans
hereunder.
(b) Each Revolving Loan (i) shall, in the case of
Revolving Loans made to the Company, be made and maintained in
Dollars (each a "Dollar Revolving Loan" and, collectively, the
"Dollar Revolving Loans"), which Dollar Revolving Loans shall, at
the option of the Company, be either Base Rate Loans, Fixed CD Rate
Loans or Eurodollar Loans, provided that all Dollar Revolving Loans
made as part of the same Borrowing shall, unless otherwise
specifically provided herein, be of the same Type, (ii) shall, in
the case of Revolving Loans made to the German Borrower, be made
and maintained in Deutsche Marks (each a "Deutsche Mark Revolving
Loan" and, collectively, the "Deutsche Mark Revolving Loans"),
(iii) may be repaid and reborrowed in accordance with the
provisions hereof, and (iv) shall not exceed for any Lender at the
time of the making of any such Revolving Loans, that aggregate
principal amount (or the Dollar Equivalent of each outstanding
Deutsche Mark Revolving Loan) which, when added to the sum of
(I) the aggregate principal amount of all other Dollar Revolving
Loans then outstanding from such Lender (or the Dollar Equivalent
of each Deutsche Mark Revolving Loan then outstanding) and (II) the
product of (A) such Lender's Pro Rata Share of the Total Revolving
Loan Commitment and (B) the aggregate amount of all Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are repaid
with the proceeds of, and simultaneously with the incurrence of,
the respective Dollar Revolving Loans) at such time, equals the
Revolving Loan Commitment of such Lender at such time; provided,
however, that no Deutsche Mark Revolving Loan shall be made if the
Dollar Equivalent thereof, when added to the Dollar Equivalent of
all other outstanding Deutsche Mark Revolving Loans, would exceed
$100,000,000 (the "Alternate Currency Sublimit").
(c) Deutsche Mark Loans shall be made by the Lenders
only to the German Borrower and, further, the German Borrower may
only incur Deutsche Mark Loans pursuant to this Section 2.1.
2.2 Minimum Amount of Each Borrowing. Each Borrowing of
Revolving Loans shall be in an integral multiple of $500,000 and,
if a Base Rate Loan, shall be in a minimum amount of $1,000,000
and, if a Fixed CD Rate Loan or a Eurodollar Loan, shall be in a
minimum amount of $5,000,000 (or the respective Alternate Currency
Equivalent thereof in the case of a Borrowing of Alternate Currency
Revolving Loans).
2.3 Notice of Borrowing. (a) Whenever the Company or
the German Borrower, as the case may be, desires to incur Revolving
Loans hereunder, it shall give the Agent at its Notice Office at
least one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of each Base Rate Loan, at least two
Business Days' prior written notice (or telephonic notice confirmed
in writing) in the case of each Fixed CD Rate Loan to be made
hereunder, at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each Eurodollar
Loan and at least five Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each Alternate
Currency Loan to be made hereunder, provided that any such notice
shall be deemed to have been given on a certain day only if given
before 11:00 A.M. (New York time) on such day. Each such written
notice or written confirmation of telephonic notice (each a "Notice
of Borrowing") shall be written in English, irrevocable and shall
be given by the Company or the German Borrower, as the case may be,
in the form of Exhibit B-1, appropriately completed to specify
(i) the name of such Borrower, (ii) the date of such incurrence
(which shall be a Business Day), (iii) that the Loans being made
shall constitute Revolving Loans and the Applicable Currency for
such Revolving Loans, (iv) the aggregate principal amount of the
Loans to be made (stated in the Applicable Currency), (v) in the
case of Dollar Loans, whether such Dollar Loans being made are to
be initially maintained as Base Rate Loans, Fixed CD Rate Loans or
Eurodollar Loans and (vi) in the case of Fixed Rate Loans, the
initial Interest Period to be applicable thereto. The Agent shall
promptly give each Lender notice of such proposed incurrence, of
such Lender's proportionate share thereof and of the other matters
required by the immediately preceding sentence to be specified in
the Notice of Borrowing.
(b) Without in any way limiting the obligation of any
Borrower to confirm in writing any telephonic notice of any
incurrence of Revolving Loans, the Agent may act without liability
upon the basis of telephonic notice of such incurrence, believed by
the Agent in good faith to be from an Authorized Officer of such
Borrower prior to receipt of written confirmation. In each such
case, each Borrower hereby waives the right to dispute the Agent's
record of the terms of such telephonic notice of such incurrence of
Loans absent manifest error.
(c) Notwithstanding any other provision to the contrary
in the Loan Documents, (i) an Authorized Officer of the Company may
request the advance of a Revolving Loan to the German Borrower in
the same manner as may an Authorized Officer of the German Borrower
and (ii) no Revolving Loan shall be advanced to the German Borrower
without the prior written consent of an Authorized Officer of the
Company.
2.4 Disbursement of Funds. (a) No later than 12:00
Noon (local time in the city in which the proceeds of such
Revolving Loans are to be made available in accordance with the
terms hereof) on the date specified in each Notice of Borrowing,
each Lender with a Commitment will make available its Pro Rata
Share of each Borrowing of Revolving Loans requested to be made on
such date, in Dollars or in the relevant Alternate Currency, as the
case may be, and in immediately available funds at the appropriate
Payment Office of the Agent. All such amounts shall be made
available in immediately available funds at the appropriate Payment
Office of the Agent, and the Agent will make available to the
Company or the German Borrower, as the case may be, at such Payment
Office, in Dollars or the relevant Alternate Currency, as the case
may be, and in immediately available funds, the aggregate of the
amounts so made available by the Lenders (prior to 1:00 P.M. (local
time in the city in which the proceeds of such Revolving Loans are
to be made available in accordance with the terms hereof) on such
day), to the extent of funds actually received by the Agent.
(b) Unless the Agent shall have been notified by any
Lender prior to the date of Borrowing that such Lender does not
intend to make available to the Agent such Lender's portion of any
Borrowing to be made on such date, the Agent may assume that such
Lender has made such amount available to the Agent on such date of
Borrowing and the Agent may, in reliance upon such assumption, make
available to the relevant Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Agent by
such Lender, the Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Agent's
demand therefor, the Agent shall promptly notify the Company or the
German Borrower, as the case may be, and the Company or the German
Borrower, as the case may be, shall immediately pay such
corresponding amount to the Agent. The Agent shall also be
entitled to recover on demand from such Lender or the Company or
the German Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to such
Borrower until the date such corresponding amount is recovered by
the Agent, at a rate per annum equal to (i) if recovered from such
Lender, at the overnight Federal Funds Rate and (ii) if recovered
from the Company or the German Borrower, as the case may be, the
rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 2.8. Nothing in this Section 2.4
shall be deemed to relieve any Lender from its obligation to make
Revolving Loans hereunder or to prejudice any rights which the
Company or the German Borrower, as the case may be, may have
against any Lender as a result of any failure by such Lender to
make Revolving Loans hereunder.
2.5 Notes. (a) The Company's and the German Borrower's
obligation to pay the principal of, and interest on, the Loans made
by each Lender to either the Company or the German Borrower shall
be evidenced (i) if for Dollar Revolving Loans, by a promissory
note duly executed and delivered by the Company substantially in
the form of Exhibit A-1 with blanks appropriately completed in
conformity herewith (each a "Dollar Revolving Note" and,
collectively, the "Dollar Revolving Notes") and (ii) if for
Deutsche Mark Revolving Loans, by a promissory note duly executed
and delivered by the German Borrower substantially in the form of
Exhibit A-2 with blanks appropriately completed in conformity
herewith (each a "Deutsche Mark Revolving Note" and, collectively,
the "Deutsche Mark Revolving Notes").
(b) The Dollar Revolving Note issued by the Company to
each Lender shall (i) be executed by the Company, (ii) be payable
to the order of such Lender and be dated the Effective Date,
(iii) be in a stated principal amount equal to the Revolving
Commitment of such Lender and be payable in Dollars and in the
principal amount of the outstanding Dollar Revolving Loans
evidenced thereby from time to time, (iv) mature on the Final
Maturity Date, (v) bear interest as provided in the appropriate
clause of Section 2.8 in respect of the Base Rate Loans, Fixed CD
Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to mandatory prepayments as provided in Section 3.3
and (vii) be entitled to the benefits of this Agreement.
(c) The Deutsche Mark Revolving Note issued by the
German Borrower to each Lender shall (i) be executed by the German
Borrower, (ii) be payable to the order of such Lender and be dated
the Effective Date, (iii) be payable in Deutsche Marks and in the
principal amount of the outstanding Deutsche Mark Revolving Loans
evidenced thereby from time to time, (iv) mature on the Final
Maturity Date, (v) bear interest as provided in the appropriate
clause of Section 2.8 in respect of the Deutsche Mark Revolving
Loans evidenced thereby, (vi) be subject to mandatory prepayments
as provided in Section 3.3 and (vii) be entitled to the benefits of
this Agreement.
(d) Each Lender will note on its internal records the
amount of each Revolving Loan made by it and each payment in
respect thereof and will prior to any transfer of any of its Notes
endorse on the reverse side thereof the outstanding principal
amount of Loans evidenced thereby. Failure to make any such
notation shall not affect the Borrower's or German Borrower's, as
the case may be, obligations in respect of such Loans.
(e) Each Lender shall have the right to request that one
or more of the Notes to be delivered to it be in registered form
for U.S. Federal income taxes, in which case such Notes shall be
made payable to such Lender or its registered assigns.
2.6 Conversion or Continuation of Revolving Loans.
Provided that no Default or Event of Default is then in existence,
the Company shall have the option (i) to convert (pro rata with
respect to each Lender) at any time all or any part of its
outstanding Dollar Revolving Loans equal to $5,000,000 ($1,000,000
in the case of conversion into Base Rate Loans and Fixed CD Rate
Loans) and integral multiples of $1,000,000 in excess of that
amount from Dollar Revolving Loans of one Type to Dollar Revolving
Loans of another Type or (ii) upon the expiration of any Interest
Period applicable to a Fixed CD Rate Loan or Eurodollar Loan, to
continue all or any portion of such Fixed CD Rate Loan or
Eurodollar Loan equal to $5,000,000 in the case of any Eurodollar
Loan ($1,000,000 in the case of any Fixed CD Rate Loan) and
integral multiples of $1,000,000 in excess of that amount as a
Fixed CD Rate Loan or Eurodollar Loan of the same Type, and the
succeeding Interest Period(s) of such continued Revolving Loan
shall commence on the last day of the Interest Period of the Dollar
Revolving Loan to be continued; provided, however, that a Fixed CD
Rate Loan or Eurodollar Loan may only be converted into a Dollar
Revolving Loan of another Type on the expiration date of the
Interest Period applicable thereto.
The Company shall deliver a Notice of Conversion/
Continuation to the Agent, substantially in the form of Exhibit B-2
annexed hereto, no later than 12:00 Noon (New York time) at least
three Business Days in advance of the proposed
conversion/continuation date in the case of a conversion to, or a
continuation of, a Eurodollar Loan and two Business Days in advance
of the proposed conversion/continuation date in the case of a
conversion to, or a continuation of, a Fixed CD Rate Loan. The
Agent shall give each Lender notice as promptly as practicable of
any such proposed conversion or continuation affecting any of its
Dollar Revolving Loans. A Notice of Conversion/Continuation shall,
in the case of a conversion to, or continuation of, a Fixed CD Rate
Loan or Eurodollar Loan, be irrevocable and shall specify (i) the
proposed conversion/continuation date (which shall be a Business
Day), (ii) the amount of the Dollar Revolving Loan to be
converted/continued, (iii) (A) whether the Dollar Revolving Loan to
be converted/continued is a Base Rate Loan, Fixed CD Rate Loan or
a Eurodollar Loan and (B) whether the Dollar Revolving Loan into
which such Dollar Revolving Loan is converted/continued is to be a
Base Rate Loan, Fixed CD Rate Loan or a Eurodollar Loan, and
(iv) in the case of a conversion to, or a continuation of, a Fixed
CD Loan or Eurodollar Loan, the requested Interest Period. In lieu
of delivering the above-described Notice of
Conversion/Continuation, the Company may give the Agent telephonic
notice by the required time of any proposed conversion/continuation
under this Section 2.6; provided that such notice shall be promptly
confirmed in writing by delivery of a Notice of
Conversion/Continuation to the Agent on or before the proposed
conversion/continuation date. If the Company has failed to timely
deliver a Notice of Conversion/Continuation or give such telephonic
notice with respect to a Fixed CD Rate Loan or Eurodollar Loan the
Company shall be deemed to have delivered to the Agent a Notice of
Conversion/Continuation to convert such Fixed CD Rate Loan or
Eurodollar Loan, into a Base Rate Loan.
Except as provided in Section 2.10, a Notice of
Conversion/Continuation pursuant to this Section 2.6 (or telephonic
notice in lieu thereof) shall be irrevocable on and after the date
of delivery thereof to the Agent, and the Company shall be bound to
convert or continue in accordance therewith.
2.7 Pro Rata Borrowings and Issuances. All Revolving
Loans under this Agreement shall be made by the Lenders
simultaneously and in such amount as necessary so that after giving
effect thereto, to the extent possible, the outstanding Revolving
Loans of each Lender shall be such Lender's Pro Rata Share thereof.
It is understood that no Lender shall be responsible for any
default by any other Lender in its obligation to make Revolving
Loans hereunder or participate in the issuance of each Letter of
Credit as provided for by Section 2.14(a) nor shall the Commitment
of any Lender be increased as a result of the default by any other
Lender in its obligation to make Revolving Loans hereunder or
participate in the issuance of each Letter of Credit as provided
for by Section 2.14(a) and that each Lender shall be obligated to
make the Revolving Loans provided to be made by it hereunder or
participate in the issuance of each Letter of Credit as provided
for by Section 2.14(a), regardless of the failure of any other
Lender to fulfill its Commitment hereunder or pursuant to Section
2.14(a).
2.8 Interest. (a) The Company agrees to pay interest
in respect of the unpaid principal amount of each Base Rate Loan
incurred by the Company from the date the proceeds thereof are made
available to the Company until maturity thereof (whether by
acceleration or otherwise) at a rate per annum which shall be equal
to the Base Rate. Such interest rates shall be adjusted
automatically on and as of the effective date of any change in the
Base Rate.
(b) The Company agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan incurred by the
Company from the date the proceeds thereof are made available to
the Company until maturity thereof (whether by acceleration or
otherwise) at a rate per annum which shall, during each Interest
Period applicable thereto, be the relevant Eurodollar Rate plus the
Applicable Borrowing Margin.
(c) The Company agrees to pay interest in respect of the
unpaid principal amount of each Fixed CD Rate Loan incurred by the
Company from the date the proceeds thereof are made available to
the Company until maturity thereof (whether by acceleration or
otherwise) at a rate per annum which shall, during each Interest
Period applicable thereto, be the relevant Fixed CD Rate plus the
Applicable Borrowing Margin.
(d) The German Borrower agrees to pay interest in
respect of the unpaid principal amount of each Deutsche Mark Loan
from the date the proceeds thereof are made available to the German
Borrower until the maturity (whether by acceleration or otherwise)
of such Deutsche Mark Loan at a rate per annum which shall, during
each Interest Period applicable thereto, be equal to the sum of the
Deutsche Mark Euro Rate plus the Applicable Borrowing Margin for
such Interest Period.
(e) Overdue principal and, to the extent permitted by
law, overdue interest in respect of each Revolving Loan shall bear
interest at a rate per annum equal to the greater of (i) 2% in
excess of the rate of interest then payable in respect of such
Revolving Loan and (ii) 1-1/4% per annum in excess of the Base Rate
in effect from time to time.
(f) Interest on each Loan shall accrue from and
including the date of any Borrowing to but excluding the date of
any repayment thereof and shall be payable (x) on the last day of
each April, July, October and January of each year, commencing
January 31, 1995, in the case of Base Rate Loans and on each
Interest Payment Date applicable thereto, in the case of Fixed Rate
Loans and (y) in all cases, on any prepayment (on the amount
prepaid), at maturity (whether by acceleration or otherwise) and,
after such maturity, on demand.
(g) All computations of interest hereunder in respect of
Revolving Loans shall be made on the basis of the actual number of
days elapsed in a 360-day year comprised of twelve 30-day months.
(h) Upon each Interest Determination Date, the Agent
shall determine the respective interest rate for each Interest
Period applicable to the Fixed Rate Loans for which such
determination is being made and shall promptly notify the Company
or the German Borrower, as the case may be, and the Lenders
thereof. Each such determination shall, absent manifest error, be
final and conclusive and binding on all parties hereto.
2.9 Interest Periods. (a) At the time it gives any
Notice of Borrowing as provided for in Section 2.3 or Notice of
Conversion/Continuation as provided for in Section 2.6 in respect
of the making of, continuation of or conversion into, any Fixed CD
Rate Loan or Eurodollar Loan (in the case of the initial Interest
Period applicable thereto) or on the second Business Day, in the
case of any Fixed CD Rate Loan, and on the third Business Day, in
the case of any Eurodollar Loan, and on the Fifth Business Day in
the case of Alternate Currency Loans prior to the expiration of an
Interest Period applicable to such Fixed Rate Loan (in the case of
any subsequent Interest Period), the Company or the German
Borrower, as the case may be, shall have the right to elect, by
giving the Agent notice thereof, the interest period (each an
"Interest Period") applicable to such Revolving Loan. If the Agent
shall not have received timely notice of a designation of an
Interest Period as herein provided upon the expiration of an
Interest Period with respect to a Fixed Rate Loan, the Company or
the German Borrower, as the case may be, shall be deemed to have
elected (x) if Fixed CD Rate Loans or Eurodollar Loans, to convert
such Fixed CD Rate Loans or Eurodollar Loans to which such expiring
Interest Period is applicable into Base Rate Loans and (y) if
Alternate Currency Loans, to select a one-month Interest Period for
such Alternate Currency Loans, in either case effective on the last
day of such current Interest Period.
(b) The determination of Interest Periods with respect
to all Fixed Rate Loans shall be subject to the following
provisions:
(i) each Interest Period shall at the option of the
Borrower (x) in the case of a Fixed CD Rate Loan, be either a
30, 60, 90 or 180-day period, and (y) in the case of a
Eurodollar Loan, be either a one, two, three or six-month
period;
(ii) each Interest Period shall at the option of the
German Borrower in the case of an Alternate Currency Loan be
either a one, two, three or six month period;
(iii) all Fixed Rate Loans comprising a Borrowing shall at
all times have the same Interest Period except as otherwise
required by Section 2.10(b);
(iv) the initial Interest Period for any Fixed Rate Loan
shall commence on the date of Borrowing of such Revolving Loan
(including the date of any conversion thereof into a Dollar
Revolving Loan of a different Type Dollar Loan) and each
Interest Period occurring thereafter in respect of such
Revolving Loan shall commence on the day on which the next
preceding Interest Period applicable thereto expires;
(v) if any Interest Period would otherwise expire on a
day that is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided, however,
that if any Interest Period for a Eurodollar Loan or Alternate
Currency Loan (other than a Eurodollar Loan made pursuant to
Section 2.10(b)) would otherwise expire on a day that is not
a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest
Period shall expire on the next preceding Business Day;
(vi) any Interest Period in respect of a Eurodollar Loan
or Alternate Currency 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, subject to subsection (vii)
below, end on the last Business Day of a calendar month;
(vii) the Interest Period for a Revolving Loan that is
converted pursuant to Section 2.10(b) shall commence on the
date of such conversion and shall expire on the date on which
the Interest Periods for the Revolving Loans of the other
Lenders that were not converted expire;
(viii) no Interest Period shall extend beyond the Final
Maturity Date; and
(ix) there shall be no more than 15 Interest Periods
outstanding at any time.
2.10 Increased Costs, Illegality, etc. (a) In the
event that any Lender shall have determined (which determination
shall, absent manifest error, be final and conclusive and binding
upon all parties hereto but, with respect to clauses (i) and (iv)
below, may be made only by the Agent):
(i) on any Interest Determination Date that, by reason
of any changes arising after the date of this Agreement
affecting the London interbank market, adequate and fair means
do not exist for ascertaining the applicable interest rate on
the basis provided for in the definition of the respective
Eurodollar Rate or Deutsche Mark Euro Rate; or
(ii) at any time, that such Lender shall incur increased
costs or reductions in the amounts received or receivable
hereunder with respect to any Eurodollar Loan or Deutsche Mark
Loan because of (x) any change since the date of this
Agreement in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having
the force of law) or in the interpretation or administration
thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request,
such as, for example, but not limited to: (A) a change in the
basis of taxation of payment to any Lender of the principal of
or interest on such Eurodollar Loan or Deutsche Mark Loan or
any other amounts payable hereunder (except for changes in the
rate of tax on, or determined by reference to, the net income
or profits of such Lender, pursuant to the laws of the
jurisdiction in which such Lender is organized or in which
such Lender's principal office or applicable lending office is
located or any subdivision thereof or therein), or (B) a
change in official reserve requirements (except to the extent
covered by Section 2.10(d) in respect of Alternate Currency
Loans or included in the computation of the respective
Eurodollar Rate or Deutsche Mark Euro Rate) or any special
deposit, assessment or similar requirement against assets of,
deposits with or for the account of, or credit extended by,
any Lender (or its applicable lending office) and/or (y)
other circumstances since the date of this Agreement affecting
such Lender or the London interbank market or the position of
such Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan or Deutsche Mark Loan has been made (x)
unlawful by any law or governmental rule, regulation or order,
(y) impossible by compliance by any Lender in good faith with
any governmental request (whether or not having force of law)
or (z) impracticable as a result of a contingency occurring
after the Effective Date which materially and adversely
affects the London interbank market; or
(iv) at any time that any Alternate Currency is not
available in sufficient amounts, as determined in good faith
by the Agent, to fund any Borrowing of Alternate Currency
Revolving Loans;
then, and in any such event, such Lender (or the Agent, in the case
of clause (i) or (iv) above) shall promptly give notice (by
telephone confirmed in writing) to the Company and the German
Borrower, as the case may be, and, except in the case of clause (i)
or (iv) above, to the Agent of such determination (which notice the
Agent shall promptly transmit to each of the other Lenders).
Thereafter (w) in the case of clause (i) above, (A) in the event
that Eurodollar Loans are so affected, Eurodollar Loans shall no
longer be available until such time as the Agent notifies the
Company and the Lenders that the circumstances giving rise to such
notice by the Agent no longer exist, and any Notice of Borrowing or
Notice of Conversion given by the Company with respect to
Eurodollar Loans which have not yet been incurred (including by way
of conversion/continuation) shall be deemed rescinded by the
Company and (B) in the event that any Alternate Currency Loan is so
affected, the interest rate for such Alternate Currency Loan shall
be determined on the basis provided in the proviso to the
definition of the respective Fixed Rate applicable to such
Alternate Currency Loan, (x) in the case of clause (ii) above, the
Company or the German Borrower, as the case may be, shall pay to
such Lender, upon written demand therefor, such additional amounts
(in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its reasonable
discretion shall determine) as shall be required to compensate such
Lender for such increased costs or reductions in amounts received
or receivable hereunder (a written notice as to the additional
amounts owed to such Lender, showing the basis for the calculation
thereof, submitted to the Company or the German Borrower, as the
case may be, by such Lender in good faith shall, absent manifest
error, be final and conclusive and binding on all the parties
hereto), (y) in the case of clause (iii) above, the Company or the
German Borrower, as the case may be, shall take one of the actions
specified in Section 2.10(b) as promptly as possible and, in any
event, within the time period required by law and (z) in the case
of clause (iv) above, Alternate Currency Revolving Loans in the
affected Alternate Currency shall no longer be available until such
time as the Agent notifies the Company, the German Borrower and the
Lenders that the circumstances giving rise to such notice by the
Agent no longer exists, and any Notice of Borrowing given by the
German Borrower with respect to such Alternate Currency Revolving
Loans which have not yet been incurred shall be deemed rescinded by
the German Borrower. Each of the Agent and each Lender agrees that
if it gives notice to the Company or the German Borrower of any of
the events described in clause (i), (iii) or (iv) above, it shall
promptly notify the Company and the German Borrower and, in the
case of any such Lender, the Agent, if such event ceases to exist.
If any such event described in clause (iii) above ceases to exist
as to a Lender, the obligations of such Lender to make Eurodollar
Loans or Deutsche Mark Loans and to convert Base Rate Loans into
Eurodollar Loans on the terms and conditions contained herein shall
be reinstated.
(b) At any time that any Eurodollar Loan or Deutsche
Mark Loan is affected by the circumstances described in Section
2.10(a)(ii) or (iii), the Company or the German Borrower, as the
case may be, may (and in the case of a Eurodollar Loan or Deutsche
Mark Loan affected by the circumstances described in Section
2.10(a)(iii) shall) either (x) if the affected Eurodollar Loan or
Deutsche Mark Loan is then being made initially or pursuant to a
conversion, cancel the respective Borrowing by giving the Agent
telephonic notice (confirmed in writing) on the same date that such
Borrower was notified by the affected Lender or the Agent pursuant
to Section 2.10(a)(ii) or (iii) or (y) if the affected Fixed Rate
Loan is then outstanding, upon at least three Business Days'
written notice to the Agent and the affected Lender, (A) in the
case of a Eurodollar Loan, require the affected Lender to convert
such Eurodollar Loan into a Base Rate Loan and (B) in the case of
any Alternate Currency Loan, repay such Alternate Currency Loan in
full, provided that, if more than one Lender is affected at any
time, then all affected Lenders must be treated the same pursuant
to this Section 2.10(b).
(c) If any Lender determines that after the Effective
Date the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or
request (whether or not having the force of law) concerning capital
adequacy, or any change in interpretation or administration thereof
by any governmental authority, central bank or comparable agency,
will have the effect of increasing the amount of capital required
to be maintained by such Lender or any corporation controlling such
Lender based on the existence of such Lender's Commitments
hereunder or its obligations hereunder, then the Company and the
German Borrower jointly and severally agree to pay to such Lender,
upon its written demand therefor, such additional amounts as shall
be required to compensate such Lender or such other corporation for
the increased cost to such Lender or such other corporation or the
reduction in the rate of return to such Lender or such other
corporation as a result of such increase of capital. In
determining such additional amounts, each Lender will act
reasonably and in good faith and will use averaging and attribution
methods which are reasonable, provided that such Lender's
reasonable good faith determination of compensation owing under
this Section 2.10(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto. Each Lender,
upon determining that any additional amounts will be payable
pursuant to this Section 2.10(c), will give prompt written notice
thereof to the Company and the German Borrower, which notice shall
show the basis for calculation of such additional amounts.
(d) In the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto) at any time that such Lender is
required to maintain reserves (including, without limitation, any
marginal, emergency, supplemental, special or other reserves
required by applicable law) which have been established by any
Federal, state, local or foreign court or governmental agency,
authority, instrumentality or regulatory body with jurisdiction
over such Lender (including any branch, Affiliate or funding office
thereof) in respect of any Alternate Currency Loans or any category
of liabilities which includes deposits by reference to which the
interest rate on any Alternate Currency Loan is determined or any
category of extensions of credit or other assets which includes
loans by a non-United States office of any Lender to non-United
States residents, then, unless such reserves are included in the
calculation of the interest rate applicable to such Alternate
Currency Loans or in Section 2.10(a)(ii), such Lender shall
promptly notify the Company and the German Borrower in writing
specifying the additional amounts required to indemnify such Lender
against the cost of maintaining such reserves (such written notice
to provide in reasonable detail a computation of such additional
amounts) and the German Borrower shall pay to such Lender such
specified amounts as additional interest at the time that the
German Borrower is otherwise required to pay interest in respect of
such Alternate Currency Loan or, if later, on written demand
therefor by such Lender.
2.11 Compensation. The Company and the German Borrower,
as the case may be, shall compensate each Lender, upon its written
request (which request shall set forth the basis for requesting
such amounts), for all reasonable losses, expenses and liabilities
(including, without limitation, any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its Fixed Rate
Loans to the extent not recovered by such Lender in connection with
the re-employment of such funds), which such Lender may sustain
(including, without limitation, in the case of payments made
pursuant to Sections 3.2 and 3.3): (i) if for any reason (other
than a default by such Lender) a Borrowing of Fixed Rate Loans or
conversion from Fixed CD Rate Loans or Eurodollar Loans or into
Fixed CD Rate Loans or Eurodollar Loans does not occur on a date
specified therefor in a Notice of Borrowing or Notice of
Conversion/Continuation (whether or not withdrawn or deemed
withdrawn pursuant to Section 2.10(a)), (ii) if any repayment
(including any repayment pursuant to Section 2.4(b) or Section
2.10(b)) or conversion of any of its Fixed CD Rate Loans or
Eurodollar Loans or Deutsche Mark Loans occurs on a date that is
not the last day of an Interest Period applicable thereto, (iii) if
any prepayment of any of its Fixed Rate Loans is not made on any
date specified in a notice of prepayment given by the Company or
the German Borrower, or (iv) as a consequence of (x) any other
default by the Company or the German Borrower to repay its Fixed
Rate Loans when required by the terms of this Agreement or the Note
of such Lender or (y) an election made by the Company or the German
Borrower pursuant to Section 2.10(b).
2.12 Proceeds of Revolving Loans. The Borrowers shall
use the proceeds of any Revolving Loan made hereunder for general
corporate purposes (including to finance acquisitions not
prohibited by Section 6.13) of the Borrowers and their respective
Subsidiaries.
2.13 Fees and Commissions. The Company agrees to pay to
the Agent, for pro rata distribution to the Lenders, to the extent
not previously paid, a facility fee (the "Facility Fee") accruing
from and including the day before the Effective Date at the rate
set forth in the Existing Credit Agreement and from and including
the Effective Date to and including the Final Maturity Date (or, in
the case of each Lender, such earlier date as each such Lender's
Commitment shall have been terminated) computed at a rate per annum
equal to the Applicable Fee Percentage multiplied by the daily
average of the Total Revolving Loan Commitments under the Loan
Facility, regardless of usage, on the basis of the actual number of
days elapsed in a 360-day year comprised of twelve 30-day months.
The Facility Fee shall be payable quarterly in arrears on each
January 31, April 30, July 31 and October 31, commencing on the
first such date to occur after the Effective Date. The Company
agrees to pay to the Agent certain fees in such amount at times
previously agreed upon in writing.
2.14 Letters of Credit.
(a) Letters of Credit. Subject to the terms and
conditions of this Agreement and in reliance upon the
representations and warranties of the Company set forth herein and
in the other Loan Documents, in addition to requesting that the
Lenders make Revolving Loans pursuant to Section 2.1, the Company
may request, in accordance with the provisions of this Section
2.14(a), that one or more Issuing Lenders issue Letters of Credit
for the account of the Company or its Subsidiaries; provided that
(i) the Company shall not request that any Lender issue any Letter
of Credit if, after giving effect to such issuance the sum of (a)
the then outstanding Letters of Credit Usage, after giving effect
to the issuance of all Letters of Credit subject to outstanding
Requests for Issuance plus (b) the aggregate principal amount of
Revolving Loans then outstanding, after giving effect to the making
of all Revolving Loans then requested by all outstanding but
unfunded Notices of Borrowing, would exceed the Total Revolving
Loan Commitment then in effect, (ii) in no event shall any Issuing
Lender issue (x) any Letter of Credit having an expiration date
later than the Final Maturity Date or (y) any Letter of Credit (I)
as to which a drawing can be made in a location other than in the
United States of America, (II) which is denominated in a currency
other than Dollars, (III) which is governed other than by the
Uniform Customs & Practice for Documentary Letters of Credit,
federal law or the law of one of the states of the United States
(including without limitation, any applicable insurance
regulations), and (iii) the Company shall not request that any
Issuing Lender issue and no Issuing Lender shall issue any Letter
of Credit if, after giving effect to such issuance, the then
outstanding Letters of Credit Usage in respect of all Letters of
Credit would exceed $20,000,000. Notwithstanding clause (x) in the
preceding sentence, an Issuing Lender may issue any Letter of
Credit (i) having an expiration date later than the Final Maturity
Date or (ii) having an expiration date prior to the Final Maturity
Date, but containing a provision to the effect that such Letter of
Credit in the case of this clause (ii) will automatically be
extended for a single period not to exceed the initial period of
such Letter of Credit, (a) so long as in the case of Letters of
Credit referred to in either clauses (i) or (ii) above the
expiration date for any such Letter of Credit is no more than 18
months beyond the Final Maturity Date and (b) at the time any such
Letter of Credit is issued or extended, as the case may be, the
Borrower shall cash collateralize such Letter of Credit in an
amount equal to 102% of the face amount of such Letter of Credit.
The issuance of any Letter of Credit in accordance with the
provisions of this Section 2.14 shall be given effect in the
calculation of the Letters of Credit Usage and shall require the
satisfaction of each condition set forth in Section 4.2.
Immediately upon the issuance of each Letter of Credit,
each Lender other than the Issuing Lender or Lenders shall be
deemed to, and hereby agrees to, have irrevocably purchased from
the Issuing Lender a participation (such participation of each
Lender in each Letter of Credit being hereinafter referred to as
its "Letter of Credit Participation") in such Letter of Credit and
any drawings thereunder in an amount equal to such Lender's Pro
Rata Share of the maximum amount which is or at any time may become
available to be drawn thereunder.
Each Letter of Credit may provide that the Issuing Lender
may (but shall not be required to) pay the beneficiary thereof upon
the occurrence of an Event of Default and the acceleration of the
maturity of the Revolving Loans or, if payment is not then due to
the beneficiary, provide for the deposit of funds in an account to
secure payment to the beneficiary and that any funds so deposited
shall be paid to the beneficiary of the Letter of Credit if
conditions to such payment are satisfied or returned to the Issuing
Lender for distribution to the Lenders (or, if all Obligations
shall have been indefeasibly paid in full, to the Company) if no
payment to the beneficiary has been made and the final date
available for drawings under the Letter of Credit has passed.
Each payment or deposit of funds by an Issuing Lender as provided
in this paragraph shall be treated for all purposes of this
Agreement as a drawing duly honored by such Issuing Lender under
the related Letter of Credit.
(b) Request for Issuance. Whenever the Company desires
the issuance of a Letter of Credit, it shall deliver to the Issuing
Lender a Request for Issuance in the form of Exhibit B-3 annexed
hereto no later than 1:00 P.M. (New York time) at least five
Business Days, or such shorter period as may be agreed to by any
Issuing Lender in any particular instance, in advance of the
proposed date of issuance. Such Issuing Lender shall immediately
notify the Agent of such Request for Issuance. The Request for
Issuance with respect to any Letter of Credit shall specify (i) the
proposed date of issuance (which shall be a business day under the
laws of the jurisdiction of the Issuing Lender) of such Letter of
Credit, (ii) the face amount of such Letter of Credit, (iii) the
expiration date of such Letter of Credit and (iv) the name and
address of the beneficiary of such Letter of Credit. As soon as
practicable after delivery of such Request for Issuance, the
Issuing Lender for such Letter of Credit shall be determined as
provided in Section 2.14(c). Prior to the date of issuance, the
Company shall specify a precise description of the documents and
the verbatim text of any certificate to be presented by the
beneficiary of such Letter of Credit which, if presented by such
beneficiary on or before the expiration date of the Letter of
Credit, would require the Issuing Lender to make payment under the
Letter of Credit; provided that the Issuing Lender, in its sole
judgment, may require changes in any such documents and
certificates; and provided, further, that no Letter of Credit shall
require payment against a conforming draft to be made thereunder
earlier than 1:00 P.M. in the time zone of the Issuing Lender on
the Business Day (which shall be a business day under the laws of
the jurisdiction of the Issuing Lender) next succeeding the
Business Day (which shall be a business day under the laws of the
jurisdiction of the Issuing Lender) that such draft is presented.
In determining whether to pay under any Letter of Credit, the
Issuing Lender shall be responsible only to determine that the
documents and certificates required to be delivered under that
Letter of Credit have been delivered and that they comply on their
face with the requirements of that Letter of Credit.
(c) Determination of Issuing Lender.
(1) The Company may request any Lender to issue a Letter
of Credit, it being expressly understood that no Lender will have
any obligation to issue any Letter of Credit. The Lender that
elects to issue a Letter of Credit shall be the Issuing Lender with
respect thereto.
(2) Each Issuing Lender that elects to issue or amend a
Letter of Credit shall immediately give written notice to each
Lender and the Agent of such issuance and/or amendment accompanied
by a copy of such issuance and/or amendment.
(3) Each Issuing Lender shall keep each Lender and the
Agent advised of the status of each Letter of Credit issued by it
and will provide to each Lender and the Agent a calculation
quarterly of all fees owed to them with respect to any Letter of
Credit issued by such Issuing Lender.
(d) Payment of Amounts Drawn Under Letters of Credit.
In the event of a drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall notify the Company
and the Agent reasonably promptly following the receipt of the
drawing but in any event at or before 10:00 A.M. on the date on
which the Issuing Lender intends to honor the drawing. The Company
shall reimburse the Issuing Lender on the day which such drawing is
honored in an amount in immediately available funds equal to the
drawing amount. It being further provided that, anything contained
in this Agreement to the contrary notwithstanding, (i) unless the
Company shall have notified the Agent and the Issuing Lender prior
to 11:00 A.M. (New York Time) on the drawing payment date that the
Company intends to reimburse the Issuing Lender for the amount of
the payment with funds other than the proceeds of Revolving Loans,
the Company shall be deemed to have given a timely Notice of
Borrowing to the Agent requesting Lenders to make Revolving Loans
that are Base Rate Loans on the drawing payment date in an amount
equal to the payment amount, and (ii) subject to the satisfaction
or waiver of the conditions specified in Section 4.1, the Lenders
shall, on the drawing payment date, make Base Rate Revolving Loans
equal to the payment amount. The proceeds of such Loans shall be
applied directly by the Agent to reimburse the Issuing Lender for
the amount of the payment. If for any reason, proceeds of
Revolving Loans are not received by the Issuing Lender, on such
date in amount equal to the payment amount, the Company shall
reimburse the Issuing Lender, on the Business Day (which shall be
a business day under the laws of the jurisdiction of the Issuing
Lender) immediately following the drawing payment date, in
immediately available funds the amount which equals the excess of
the payment amount over the amount of Revolving Loans, if any, so
received, plus interest on such amount at the rate set forth in
Section 2.14(f)(1)(i).
(e) Payment by Lenders. In the event that the Company
shall fail to reimburse an Issuing Lender as provided in Section
2.14(d) in an amount equal to the amount of any drawing honored by
such Issuing Lender under a Letter of Credit issued by it, such
Issuing Lender shall promptly notify the Agent and the Agent shall
promptly notify each Lender of the unreimbursed amount of such
drawing so honored and of such Lender's respective participation
therein. Each Lender shall make available to the Agent an amount
equal to its Pro Rata Share of the aggregate participation in such
Letter of Credit in immediately available funds, at the office of
the Agent specified in such notice, not later than 1:00 P.M. (New
York time) on the Business Day (which shall be a business day under
the laws of the jurisdiction of such Issuing Lender) after the date
notified by the Agent. In the event that any Lender fails to make
available to the Agent the amount of such Lender's participation in
such Letter of Credit as provided in this Section 2.14(e), an
Issuing Lender shall be entitled to recover such amount on demand
from such Lender together with interest at the customary rate set
by the Agent for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. Each Issuing Lender
shall distribute to each Lender which has paid all amounts payable
by it under this Section 2.14(e) with respect to any Letter of
Credit issued by such Issuing Lender such Lender's Pro Rata Share
of all payments received by such Issuing Lender from the Company in
reimbursement of drawings honored by such Issuing Lender under such
Letter of Credit when such payments are received. Nothing in this
Section 2.14(e) shall be deemed to relieve any Lender from its
obligation to pay all amounts payable by it under this Section
2.14(e) with respect to any Letter of Credit issued by an Issuing
Lender or to prejudice any rights that the Company, the Agent, the
Issuing Lender or any other Lender may have against a Lender as a
result of any default by such Lender hereunder.
(f) Compensation.
(1) The Company agrees to pay the following amount with
respect to all Letters of Credit:
(i) with respect to drawings made under any Letter of
Credit, interest, payable on demand, on the amount paid by
such Issuing Lender in respect of each such drawing from and
including the drawing payment date through the date such
amount is reimbursed by the Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant
to Section 2.14(d)) if the ratio of Consolidated Total
Indebtedness to the sum of (i) Consolidated Total Indebtedness
plus (ii) Consolidated Tangible Net Worth is (x) greater than
or equal to 65.0%, 1.75% per annum, (y) is less than 65.0% but
greater than or equal to 60.0%, 1.50% per annum, (z) is less
than 60.0% but greater than or equal to 50.0%, 1.375% per
annum, (xx) is less than 50.0% but greater than or equal to
45.0%, 1.125% per annum, (yy) is less than 45.0% but greater
than or equal to 40.0%, .65% per annum and (zz) is less than
40.0%, .55% per annum; provided that amounts reimbursed after
1:00 p.m. (New York time) on any date shall be deemed to be
reimbursed on the next succeeding Business Day); and
(ii) with respect to the issuance, amendment or transfer
of each Letter of Credit and each payment of a drawing made
thereunder, documentary and processing charges in accordance
with such Issuing Lender's standard schedule for such charges
in effect at the time of such issuance, amendment, transfer or
payment, as the case may be.
(2) The Company agrees to pay to the Issuing Lender for
distribution to each Lender in respect of all Letters of Credit
outstanding such Lender's Pro Rata Share of a commission equal to
the Applicable Borrowing Margin with respect to Eurodollar Loans
multiplied by the average maximum amount available from time to
time to be drawn under such outstanding Letters of Credit, in
respect of the quarterly period through the last day of each
January, April, July and October and payable on the first Business
Day following each such last day of the aforesaid months and
calculated on the basis of a 360-day year and the actual number of
days elapsed. Upon the happening and during the continuance of an
Event of Default described in Section 7.1, the commission referred
to in the preceding sentence shall be the Applicable Borrowing
Margin with respect to Eurodollar Loans plus 2%.
(3) The Company agrees to pay to each Issuing Lender in
respect to all Letters of Credit outstanding issued by each such
Issuing Lender a facing fee at such time and in the amount or
amounts agreed to by the Company and such Issuing Lender.
Amounts payable under this Section 2.14(f) shall be paid
to the Issuing Lender. Subject to the provisions of Section 11.16,
the Issuing Lender shall distribute to each Lender its Pro Rata
Share of such amount. Amounts payable under clauses (1)(ii) and
(3) of this Section 2.14(f) shall be paid directly to the Issuing
Lender.
(g) Obligations Absolute. The obligation of the Company
to reimburse each Issuing Lender for drawings made under the
Letters of Credit issued by it and the obligations of the Lenders
under Section 2.14(d) shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including, without limitation,
the following circumstances:
(1) any lack of validity or enforceability of any Letter
of Credit;
(2) the existence of any claim, setoff, defense or other
right that the Company or any Affiliate of the Company or any
other Person may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Person for whom any
such beneficiary or transferee may be acting), such Issuing
Lender, any Lender or any other Person, whether in connection
with this Agreement, the transactions contemplated herein or
any unrelated transaction;
(3) any draft, demand, certificate or any other document
presented under any 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;
(4) payment by such Issuing Lender under any Letter of
Credit against presentation of a demand, draft or certificate
or other document that does not comply with the terms of such
Letter of Credit;
(5) any other circumstances or happening whatsoever that
is similar to any of the foregoing; or
(6) the fact that an Event of Default or Default shall
have occurred and be continuing.
(h) Additional Payments. If by reason of (i) any change
in applicable law, regulation, rule, decree or regulatory
requirement or any change in the interpretation or application by
any judicial or regulatory authority of any law, regulation, rule,
decree or regulatory requirement (except for changes in the rate of
tax on, or determined by reference to, the net income or profits of
such Lender or its Applicable Lending Office imposed by the
jurisdiction in which it is organized or in which its principal
office or Applicable Lending Office is located) or (ii) compliance
by any Issuing Lender or any Lender with any direction, request or
requirement (whether or not having the force of law) of any
governmental or monetary authority including, without limitation,
Regulation D:
(A) such Issuing Lender or any Lender shall be subject
to any tax, levy, charge or withholding of any nature or to
any variation thereof or to any penalty or interest with
respect to the maintenance or fulfillment of its obligations
under this Section 2.14, whether directly or by such being
imposed on or suffered by such Issuing Lender or any Lender;
(B) any reserve, deposit or similar requirement is or
shall be applicable, imposed or modified in respect of any
Letter of Credit issued by such Issuing Lender or
participations therein purchased by any Lender; or
(C) there shall be imposed on such Issuing Lender or any
Lender any other condition regarding this Section 2.14, any
Letter of Credit or any participation therein;
and the result of the foregoing is to directly or indirectly
increase the cost to such Issuing Lender or any Lender of issuing,
making or maintaining any Letter of Credit or of purchasing or
maintaining any participation therein, or to reduce the amount
receivable in respect thereof by such Issuing Lender or any Lender,
then and in any such case such Issuing Lender or such Lender may,
at any time within a reasonable period after the additional cost is
incurred or the amount received is reduced, notify the Company and
the Company shall pay on demand such amounts as such Issuing Lender
or such Lender may specify to be necessary to compensate such
Issuing Lender or such Lender on a net after-tax basis for such
additional cost or reduced receipt, together with interest on such
amount from the date demanded until payment in full thereof at a
rate per annum equal at all times to the rate applicable to Base
Rate Loans then in effect. A certificate in reasonable detail as
to the amount of such increased cost or reduced receipt, submitted
to the Company and the Agent by that Issuing Lender or any Lender,
as the case may be, shall, except for manifest error, be final,
conclusive and binding for all purposes.
(i) Indemnification; Nature of Issuing Lender's Duties.
In addition to amounts payable as elsewhere provided in this
Section 2.14 (but in the case of Section 2.14(h), only in
accordance therewith), without duplication, the Company hereby
agrees to protect, indemnify, pay and save each Issuing Lender
harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
attorneys' fees and expenses) which such Issuing Lender may incur
or be subject to as a consequence, direct or indirect, of (i) the
issuance of the Letters of Credit or (ii) the failure of such
Issuing Lender to honor a drawing under any Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or Governmental
Authority (all such acts or omissions herein called "Governmental
Acts").
As between the Company and each Issuing Lender, the
Company assumes all risks of the acts and omissions of, or misuse
of the Letters of Credit issued by such Issuing Lender by, the
respective beneficiaries of such Letters of Credit. In furtherance
and not in limitation of the foregoing, such Issuing Lender shall
not be responsible: (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by
any party in connection with the application for and issuance of
such Letters of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent
or forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
such Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be invalid
or ineffective for any reason; (iii) for failure of the beneficiary
of any such Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they are in cipher; (v) for errors in
interpretation of technical terms; (vi) for any loss or delays in
the transmission or otherwise of any document required in order to
make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) for the misapplication by the beneficiary of any
such Letter of Credit of the proceeds of any drawing under such
Letter of Credit; and (viii) for any consequences arising from
causes beyond the control of such Issuing Lender, including,
without limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of any of such Issuing
Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or
omitted by any Issuing Lender or in connection with the Letters of
Credit issued by it or the related certificates, if taken or
omitted in good faith, shall not put such Issuing Lender under any
resulting liability to the Company.
Notwithstanding anything to the contrary contained in
this Section 2.14(i), the Company shall have no obligation to
indemnify any Issuing Lender in respect of any liability incurred
by such Issuing Lender arising solely out of the gross negligence
or willful misconduct of such Issuing Lender.
(j) Computation of Interest. Interest payable pursuant
to this Section 2.14 shall be computed on the basis of a 360-day
year and the actual number of days elapsed in the period during
which it accrues.
(k) Outstanding Letters of Credit. The stand-by letters
of credit issued by Morgan Guaranty Trust Company of New York and
Nationsbank of North Carolina, N.A. listed on Schedule 2.14(k)
which were outstanding as of the Effective Date, shall, for all
purposes of this Agreement, be deemed to have been issued under and
in accordance with this Section 2.14 and shall, for all purposes of
this Agreement, be Letters of Credit.
2.15 Replacement Lender. In the event the Company or
the German Borrower, as the case may be, becomes obligated to pay
any additional material amounts to any Lender pursuant to Section
2.10, 2.14(h) or 3.5 (which amounts are generally not due or
payable to all Lenders generally under such Sections) or such
Lender is not able to make Eurodollar Loans or Deutsche Mark Loans
pursuant to Section 2.10, as a result of any event or condition
described in any of such Sections, then, unless such Lender has
theretofore taken steps to remove or cure, and has removed or
cured, the conditions creating the cause of such obligation to pay
such additional amounts, the Company may designate a substitute
lender reasonably acceptable to the Agent (such lender herein
called a "Replacement Lender") to purchase such Lender's rights and
obligations with respect to its entire Pro Rata Share hereunder,
without recourse to or warranty by, or expense to, such Lender for
a purchase price equal to the outstanding principal amount payable
to such Lender with respect to its Pro Rata Share hereunder, plus
any accrued and unpaid interest and accrued and unpaid fees in
respect of such Lender's Pro Rata Share and on other terms
reasonably satisfactory to the Agent. Upon such purchase by the
Replacement Lender and payment of all other amounts owing to the
Lender being replaced hereunder, such Lender shall no longer be a
party hereto or have any rights or obligations hereunder, and the
Replacement Lender shall succeed to the rights and obligations of
such Lender with respect to its Pro Rata Share hereunder; provided
that the rights of such replaced Lender pursuant to Sections 2.10,
2.14(h), 3.5 and 11.3, and the rights and obligations of such
Lender pursuant to Section 11.3, shall survive any substitution
described in this Section 2.15.
2.16 Certain Computations. All interest, fees and other
amounts accruing under the Existing Credit Agreement on or prior
to, or determined in respect of any day accruing on or prior to the
Effective Date shall be computed and determined as provided in the
Existing Credit Agreement before giving effect to this Agreement.
2.17 Change of Lending Office.
(a) No Lender may designate another lending office for
any Loans or Letters of Credit which would have the effect of
causing any event giving rise to the operation of Sec-
tion 2.10(a)(ii) or (iii), Section 2.10(c), Section 2.10(d),
Section 2.14(h) or Section 3.5 with respect to such Lender without
the prior written consent of the Borrowers.
(b) Each Lender agrees that on the occurrence of any
event giving rise to the operation of Section 2.10(a)(ii) or (iii),
Section 2.10(c), Section 2.10(d), Section 2.14(h) or Section 3.5
with respect to such Lender, it will, if requested by the Company,
use reasonable efforts (subject to overall policy considerations of
such Lender) to designate another lending office for any Loans or
Letters of Credit affected by such event, provided that such
designation is made on such terms that such Lender and its lending
office suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequence of the event giving rise to
the operation of such Section.
(c) Nothing in this Section 2.17 shall affect or
postpone any of the obligations of the Company or the German
Borrower or the right of any Lender provided in Sections 2.10,
2.14(h) or 3.5.
SECTION 3. Reductions in Commitments;
Prepayments and Payments._
3.1 Voluntary Reductions in Total Revolving Loan
Commitment. The Company shall have the right, at any time and from
time to time upon at least three Business Days' prior written
notice to the Agent at its Notice Office (which notice the Agent
shall promptly endeavor to notify each Lender), without premium or
penalty, to reduce the Available Commitments in whole or in part in
integral multiples of $5,000,000 or integral multiples of
$1,000,000 above such amount; provided that (a) all such reductions
shall apply proportionately to the Available Commitment of each
Lender, as the case may be, and (b) any such reduction shall be
permanent.
3.2 Voluntary Prepayments. The Company and the German
Borrower shall have the right to prepay any Borrowing of any
Revolving Loans, at any time, in whole or in part, without premium
or penalty, pursuant to this Section 3.2 on the following terms and
conditions: (i) the Company or the German Borrower, as the case
may be, shall give the Agent at its Payment Office at least three
Business Days' prior written notice or telephone notice (confirmed
in writing) of its intent to prepay such Revolving Loans, the
amount of such prepayment and the specific Borrowing to be prepaid,
which notice the Agent shall promptly transmit to each of the
Lenders; (ii) each prepayment shall be in an integral multiple of
$500,000 and, with respect to the voluntary prepayment of Base Rate
Loans, in a minimum principal amount of $1,000,000 (or the
Alternate Currency Equivalent thereof in the case of Alternate
Currency Loans) or, with respect to the voluntary prepayment of
Fixed Rate Loans, in a minimum principal amount of $5,000,000 (or,
if less, with respect to any of the Revolving Loans referred to
above, the amount then remaining outstanding in respect of such
Borrowing); (iii) the Company or the German Borrower, as the case
may be, shall not have the right to make a partial prepayment of
any Fixed Rate Loan if the principal amount outstanding of the
Fixed Rate Loans made as part of the Borrowing to which such
prepayment relates after such partial prepayment shall be less
than $5,000,000 (or the Alternate Currency Equivalent thereof in
the case of Alternate Currency Loans); and (iv) at the time of any
prepayment, the Company or the German Borrower, as the case may be,
shall pay all interest accrued on the principal amount of such
prepayment.
3.3 Mandatory Prepayments.
(a) The Company or the German Borrower, as the case may
be, shall make prepayments of Revolving Loans to the extent
necessary so that the sum of (i) the outstanding principal amount
of Revolving Loans (including the Dollar Equivalent thereof in the
case of outstanding Alternate Currency Revolving Loans) at any
time, after giving effect to the making of all Revolving Loans then
requested by all outstanding but unfunded Notices of Borrowing,
plus (ii) the then outstanding Letters of Credit Usage, after
giving effect to the issuance of all Letters of Credit subject to
outstanding Requests for Issuance does not exceed the Total
Modified Revolving Commitment then in effect (after giving effect
to all reductions made pursuant to Section 3.1). Such prepayment
shall be paid within two Business Days of receiving written notice
from the Agent of the excess over the Total Modified Revolving
Commitment as then in effect. Prepayments in an amount equal to
such excess are to be allocated among Dollar Revolving Loans first
and then Deutsche Mark Revolving Loans.
Any mandatory prepayment shall be applied first to Base
Rate Loans to the full extent thereof, second to Fixed CD Rate
Loans to the full extent thereof, third to Eurodollar Loans to the
full extent thereof and fourth to Deutsche Mark Loans, as
determined by the Agent.
(b) If, after giving effect to the repayment of all
Revolving Loans, the outstanding Letters of Credit Usage exceeds
the Total Revolving Loan Commitment then in effect, the Company
shall be required to cash collateralize in Dollars outstanding
Letters of Credit in an amount such that, after giving effect
thereto, the aggregate Letters of Credit Usage not supported by
cash collateral is equal to or less than the Total Revolving Loan
Commitment then in effect.
3.4 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or
any Note shall be made to the Agent for the account of the Lender
or Lenders entitled thereto no later than 12:00 Noon (local time in
the city in which such payments are to be made) on the date when
due and shall be made in (i) Dollars in immediately available funds
at the appropriate Payment Office of the Agent in respect of Dollar
Loans and Letters of Credit if such payment is made in respect of
any obligation of the Company under this Agreement except as
otherwise provided in the immediately following clause (ii) and
(ii) the appropriate Alternate Currency in immediately available
funds at the appropriate Payment Office of the Agent if such
payment is made in respect of principal of or interest on any
Alternate Currency Loan and otherwise in Dollars in immediately
available funds at the Payment Office of the Agent described in
clause (i) above in respect of any obligation in respect of an
Alternate Currency Loan. The principal of and interest on each
Alternate Currency Loan shall be paid only in the applicable
Alternate Currency. Whenever any payment to be made hereunder or
under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal,
interest shall be payable at the applicable rate during such
extension.
3.5 Net Payments. Except as provided below, all
payments made by the Company or the German Borrower hereunder or
under any of the Loan Documents will be made without setoff,
counterclaim or other defense. All such payments will be made free
and clear of, and without deduction or withholding for, any present
or future taxes, levies, imposts, duties, fees, assessments or
other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority
thereof or therein (but excluding, except as provided below,
(a) any withholding taxes or backup withholding taxes imposed by
the United States or any political subdivision thereof as a result
of the failure of the Lender to comply with the provisions of
Section 11.13, (b) any backup withholding tax imposed as a result
of a failure to provide proper certification or a notice by the
Internal Revenue Service regarding a failure to report all
dividends and interest payments and (c) any tax imposed on or
measured by the net income of a Lender pursuant to the laws of the
jurisdiction (or any political subdivision or taxing authority
thereof or therein) in which such Lender is organized or in which
the principal office or Applicable Lending Office of such Lender is
located and all interest, penalties or similar liabilities with
respect thereto) (collectively, "Taxes"). The Company and the
German Borrower, as the case may be, shall also reimburse each
Lender, upon the written request of such Lender, for taxes imposed
on or measured by the net income of such Lender pursuant to the
laws of the jurisdiction (or any political subdivision or taxing
authority thereof or therein) in which the Lender is organized or
in which the principal office or Applicable Lending Office of such
Lender is located as such Lender shall determine are payable by
such Lender in respect of amounts paid to or on behalf of such
Lender pursuant to this Section 3.5. If any Taxes are so levied or
imposed, the Company and the German Borrower agree to pay the full
amount of such Taxes and such additional amounts as may be
necessary so that every payment of all amounts due hereunder or
under any of the Loan Documents, after withholding or deduction for
or on account of any Taxes, will not be less than the amount
provided for herein or in such Loan Documents. The Company and the
German Borrower will furnish to the Agent within 45 days after the
date the payment of any Taxes is due pursuant to applicable law
certified copies of tax receipts evidencing such payment by the
Company or the German Borrower, as the case may be. The Company
and the German Borrower, as the case may be, will indemnify and
hold harmless each Lender, and reimburse such Lender upon its
written request, for the amount of any Taxes so levied or imposed
and paid by such Lender.
SECTION 4. Conditions to Revolving Loans and Letters
of Credit._______________________________
4.1 Conditions to All Revolving Loans. The obligations
of the Lenders to make any and all Revolving Loans are subject to
the prior or concurrent satisfaction or waiver of each of the
following conditions precedent:
(a) Required Documentation. The Agent shall have
received in accordance with the provisions of Section 2.3
before the applicable Funding Date an originally executed
Notice of Borrowing, signed by the chief executive officer,
the chief financial officer, the treasurer, assistant
treasurer or Authorized Officer of the Company or the German
Borrower, as the case may be, requesting a Revolving Loan to
be made on any such Funding Date (the furnishing by the
Company or the German Borrower of each such Notice of
Borrowing shall be deemed to constitute a representation and
warranty of the Company or the German Borrower, as the case
may be, to the effect that the conditions set forth in
Section 4.1(b) are satisfied as of the date of delivery and
will be satisfied on the relevant Funding Date).
(b) As of that Funding Date:
(i) Representations and Warranties. The
representations and warranties contained herein shall be
true, correct and accurate in all material respects on
and as of that Funding Date to the same extent as though
made on and as of that date, except that with respect to
Revolving Loans made after the Effective Date the
representations and warranties need not be true and
correct to the extent that changes in the facts and
conditions on which such representations and warranties
are based are required or permitted under this Agreement
or such changes arise out of events not prohibited by the
covenants set forth in Sections 5 and 6.
(ii) No Default. No event shall have occurred and
be continuing or would result from the consummation of
the borrowing contemplated by such Notice of Borrowing or
the application of the proceeds thereof that would
constitute (a) an Event of Default, or (b) a Default.
(iii) Agreements and Conditions. The Company and the
German Borrower shall have performed in all material
respects all agreements and satisfied all conditions that
this Agreement and each other Loan Document provides
shall be performed by each of them on or before such
Funding Date.
(iv) Compliance with Laws. No order, judgment or
decree of any court, arbitrator or Governmental Authority
shall purport to enjoin or restrain any Lender from
making that Revolving Loan. The making of the Revolving
Loans requested on such Funding Date shall not violate
Regulation G, T, U, or X of the Federal Reserve Board.
(c) As of the first Funding Date after the Effective
Date there shall not exist any judgment order, injunction,
decree or other restraint or a hearing seeking injunctive or
other relief pending or noticed with respect to the making of
the Revolving Loans or the issuance of any Notes or Letters of
Credit or the other transactions contemplated by any of the
Loan Documents.
4.2 Conditions to All Letters of Credit. The right of
the Company to obtain the issuance of any Letter of Credit that the
relevant Issuing Lender determines to issue in its sole discretion
hereunder is subject to prior or concurrent satisfaction of all of
the following conditions:
(a) Required Documentation. On or prior to the date of
issuance of a Letter of Credit, the Agent shall have received
in accordance with the provisions of Section 2.14(b) a Request
for Issuance with respect to such Letter of Credit (the
furnishing by the Company of each such Request for Issuance
shall be deemed to constitute a representation and warranty of
the Company to the effect that the conditions set forth in
Section 4.1(b) are satisfied as of the date of delivery and
will be satisfied on the relevant date of issuance), all other
information specified in Section 2.14(b), and such other
documents as the Issuing Lender may reasonably require in
connection with the issuance of such Letter of Credit.
(b) Conditions. On the date of issuance of each such
Letter of Credit, all conditions precedent described in
Section 4.1(b) shall be satisfied to the same extent as though
the issuance of such Letter of Credit were the making of a
Revolving Loan and the date of issuance of such Letter of
Credit were a Funding Date. On or prior to the date of
issuance of the initial Letter of Credit, unless previously
satisfied in connection with the making of the initial
Revolving Loan, each of the conditions set forth in
Section 4.1 shall have been satisfied or waived.
4.3 Special Conditions to Borrowing by the German
Borrower. The Agent and the Lenders shall not be required to
advance the proceeds of a Revolving Loan to, or for the benefit of,
the German Borrower prior to the Acquisition Date.
SECTION 5. Affirmative Covenants.
The Company covenants and agrees that, so long as any of
the Commitments hereunder shall be in effect and until payment in
full of all of the Revolving Loans and Notes and unreimbursed
drawings, if any, under any Letters of Credit and the cancellation
or expiration of all outstanding Letters of Credit, the Company
agrees that it will perform all covenants in this Section 5:
5.1 Furnish Financial Statements and Information, etc.
The Company shall furnish to each Lender: (a) within 90 days after
the close of each of the fiscal years of the Company, audit reports
of independent certified public accountants, including consolidated
balance sheets of the Company and its Consolidated Subsidiaries as
of the end of such period and related consolidated statements of
earnings and statements of cash flow, each in comparative form for
such year and the preceding year; (b) within 60 days after the
close of each of the first three quarters of the fiscal years of
the Company, similar unaudited consolidated balance sheets of the
Company and its Consolidated Subsidiaries as of the last day of
such quarter, and related consolidated statements of earnings and
statements of cash flows for such quarter, likewise in reasonable
detail and in comparative form for the corresponding quarterly
period in the preceding fiscal year, all of which shall be
prepared, and certified, by the Treasurer, the Controller or the
Chief Financial Officer, of the Company; (c) as soon as available,
copies of all proxy statements and other information and reports,
if any, filed by the Company with the Securities and Exchange
Commission (or any governmental agency substituted therefor); (d)
within 60 days after the close of each of the first three fiscal
quarters of the Company, and within 90 days after the close of the
fourth fiscal quarter of the Company, of each of the fiscal years
of the Company, (i) a statement, certified by the Treasurer, the
Controller, the Chief Financial Officer or other Authorized Officer
of the Company to the effect that a review of the activities of the
Company and all Subsidiaries of the Company during the period
covered by such statement has been made and that such officer
obtained no knowledge of any Default or Event of Default or, if any
Default or Event of Default does exist, specifying the nature and
extent thereof and (ii) a Compliance Certificate in the form of
Exhibit H hereto demonstrating in reasonable detail compliance with
the restrictions set forth in Sections 5.6, 5.11, 6.1(h), 6.3, 6.4,
6.8(b)(ii) and clause (v) of 6.11; and (e) such other information
as any Lender may from time to time reasonably request; all
financial statements of the Company furnished pursuant to this
Section 5.1 shall be prepared on a consolidated basis in accordance
with GAAP.
5.2 Inspection. The Company shall permit, and cause
each of its Significant Subsidiaries to permit, the duly authorized
representatives of any Lender at all reasonable times to examine
the books and records of the Company and any of its Significant
Subsidiaries, and take memoranda and extracts therefrom.
5.3 Taxes, Charges, etc. The Company shall duly pay and
discharge, or cause to be paid and discharged, when due, all taxes,
assessments and other governmental charges imposed upon it or any
of its Subsidiaries and its and their properties or assets, or any
part thereof or upon the income therefrom, as well as all claims
(including, without limitation, claims for labor, materials or
supplies) which if unpaid might by law become a lien or charge upon
any property of the Company or any of its Significant Subsidiaries,
except each of such items as are being appropriately contested in
good faith by appropriate proceedings promptly instituted and
diligently conducted and as to which such reserve or other
appropriate provision, if any, as shall be required in conformity
with GAAP shall have been made therefor by the Company or any such
Subsidiary.
5.4 Corporate Existence, etc. Except as permitted by
Section 6.2, the Company shall maintain, and cause its Significant
Subsidiaries to maintain, their respective corporate existence and
their respective material rights, franchises, licenses and patents,
if any, and cause each of its Significant Subsidiaries to comply in
all material respects with all valid and applicable statutes, rules
and regulations.
5.5 Notice of Default. The Company shall immediately,
upon the Chief Executive Officer, Chief Financial Officer,
Treasurer, Controller or General Counsel of the Company becoming
aware of the occurrence of any Default or Event of Default, give
oral notice, promptly confirmed in writing, to each Lender of the
occurrence of such Default or Event of Default.
5.6 Consolidated Tangible Net Worth. The Company shall
maintain, at all times, Consolidated Tangible Net Worth of at least
$105,000,000 plus an amount equal to 50% of Consolidated Net Income
earned by the Company and its Subsidiaries from and after
December 31, 1993 through the date of the most recent consolidated
balance sheet furnished by the Company pursuant to Section 5.1(a)
or 5.1(b) plus 100% of the net proceeds of any issuance of shares
of capital stock of the Company (or rights, warrants or options to
subscribe for such capital stock).
5.7 ERISA. As soon as possible and, in any event,
within 10 days after the Company or any ERISA Affiliate knows or
has reason to know of any of the following, the Company will
deliver to each of the Lenders a certificate of the Chief Financial
Officer of the Company setting forth details as to such occurrence
and such action, if any, which the Company or such ERISA Affiliate
is required or proposes to take, together with any notices required
or proposed to be given to or filed with or by the Company, the
ERISA Affiliate, the PBGC, a Plan participant or the plan
administrator with respect thereto: that a Reportable Event has
occurred; that an accumulated funding deficiency has been incurred
or an application may be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding
standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code
with respect to a Plan; that a Multiemployer Plan has been or may
be terminated, reorganized, partitioned or declared insolvent under
Title IV of ERISA; that a Plan has an Unfunded Current Liability
giving rise to a lien under ERISA or the Code; that proceedings
have been or are reasonably likely to be instituted to terminate a
Plan under Section 4041(c) or Section 4042 of ERISA; that a
proceeding has been instituted pursuant to Section 515 of ERISA to
collect a material delinquent contribution to a Multiemployer Plan;
the adoption of an amendment to any Plan that, pursuant to Section
401(a)(29) of the Code or Section 307 of ERISA, would result in a
loss of tax-exempt status of the trust of which such Plan is a part
if the Company or an ERISA Affiliate fails to timely provide
security to the Plan in accordance with the provisions of said
Sections; or that the Company or any ERISA Affiliate will or is
reasonably likely to incur any material liability (including any
contingent or secondary liability) to or on account of the
termination of or withdrawal from a Plan or Multiemployer Plan
under Section 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA.
5.8 Insurance. The Company shall maintain or cause to
be maintained, and cause each of its Subsidiaries to maintain or
cause to be maintained, with financially sound and reputable
insurance companies, insurance with respect to its properties and
business (including, without limitation, all buildings, machinery,
plants, equipment, fixtures and inventories of raw materials, goods
in process and completed goods) against loss or damage of the kind
customarily insured against by corporations of established
reputation engaged in the same or similar businesses and similarly
situated, of such types and in such amounts as are customarily
carried under similar circumstances by such other corporations;
provided, however, that the Company and any of its Subsidiaries may
maintain self-insurance in connection with the above insurance
requirements to the extent, and only to the extent, reasonably
prudent and not to exceed at any time 25% of the Fair Market Value
of the Company's assets on a consolidated basis.
5.9 Maintenance of Property. The Company shall in all
material respects maintain, preserve and keep, and cause each of
its Significant Subsidiaries to maintain, preserve and keep, all
property material to their respective businesses in good repair,
working order and condition (ordinary wear and tear excepted) and
from time to time make all needful and proper repairs, renewals,
replacements, additions, betterments and improvements thereto in
accordance with industry standards.
5.10 Compliance with Laws, etc. The Company shall
comply, and cause each of its Subsidiaries to comply, with all
applicable laws, statutes, rules, permits, licenses, franchises,
regulations and orders of, and all applicable restrictions imposed
by, all governmental bodies, domestic or foreign, including,
without limitation, Environmental Laws, in respect of the conduct
of its business and the use, ownership or occupancy of its
property, except such noncompliances as would not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
5.11 Consolidated Total Indebtedness to Capitalization.
The Company shall maintain, at all times, a ratio of Consolidated
Total Indebtedness to the sum of (i) Consolidated Total
Indebtedness plus (ii) Consolidated Tangible Net Worth not to
exceed (x) 70% during the period ending July 20, 1996, and (y)
57.5% upon the issuance of shares of the capital stock of the
Company after the Effective Date (other than shares of stock issued
upon the exercise of stock options to subscribe to such capital
stock granted to employees of the Company or any of its
Subsidiaries).
5.12 Environmental Events. The Company will promptly
give notice to the Lenders upon becoming aware of any of the
following events which could reasonably be expected to result in a
material liability to the Company or any of its Subsidiaries:
(a) any violation of any Environmental Law, (b) any inquiry,
proceeding, investigation or other action relating to any
Environmental Law, including a request for information or a notice
of any actual or purported potential environmental liability from
any Person, and (c) the discovery of the release of any Hazardous
Materials at, on, under or from any of the Company's or its
Subsidiaries' real property or any facility or equipment thereat in
excess of reportable or allowable standards or levels under any
Environmental Law, or in a manner and/or amount reasonably likely
to result in material liability under any Environmental Law.
In the event of the presence of any Hazardous Material on
any of the Company's or its Subsidiaries' real property which is in
violation of or which results in liability under any Environmental
Law, or any event, condition, circumstance, thing or fact which
results in liability under any Environmental Law, the Company shall
expeditiously take all reasonable steps to correct any such
violation or respond to such circumstances, conditions or things
which would give rise to such liability, in compliance with
Environmental Laws (it being understood that such steps shall not
be required to be taken while the Company is contesting, in good
faith before the appropriate Governmental Authority, its obligation
to take such steps), and reasonably mitigate attendant health and
environmental risks.
5.13 Post Effective Date Documents. The Company will
promptly, and in any event within ten (10) Business Days after The
Effective Date, provide the Agent with all of the schedules to this
Agreement; provided such schedule shall be satisfactory to the
Agent in its sole discretion, provided, further, nothing in such
schedules would result in an effect that would reasonably be
expected to result in a Material Adverse Effect.
SECTION 6. Negative Covenants.
The Company covenants and agrees that, so long as any of
the Commitments hereunder shall be in effect and until payment in
full of all of the Revolving Loans and Notes and unreimbursed
drawings, if any, under any Letters of Credit and the cancellation
or expiration of all outstanding Letters of Credit, the Company
agrees that it will perform all covenants in this Section 6:
6.1 Liens. The Company shall not, and shall not permit
its Domestic Subsidiaries or the German Borrower or any of the
German Borrower's Subsidiaries to, contract, create, incur, assume
or suffer to exist any Lien upon or with respect to any of its or
their assets or property (real or personal, tangible or intangible)
now or hereafter owned, or of or upon the income or profits
thereof, except:
(a) Liens existing on the Effective Date to the extent
disclosed on Schedule 6.1 hereto and any extension, renewal
or replacement thereof that does not extend to any assets or
property other than the assets or property originally pledged
and that does not increase the indebtedness secured thereby;
(b) deposits or pledges in connection with or to secure
payment of worker's compensation, unemployment insurance or in
connection with the good faith contest of any tax lien;
(c) any Subsidiary may create Liens in favor of the
Company or another Subsidiary to secure borrowings from the
Company or another Subsidiary;
(d) Liens securing the performance of any contract,
undertaking or obligation or Liens for partial, progress,
advance or other payments pursuant to any contract or
provision of any statute, in any such case not incurred,
created or assumed directly or indirectly in connection with
the borrowing of money, the obtaining of advances or credits
or the securing of any indebtedness (including rental
obligations required to be capitalized) of, or guaranteed by,
the Company which by its terms or at the option of the debtor
may mature more than 12 months from the date the Lien is
granted, and if made and continuing in the ordinary course of
business;
(e) the Company or any of its Subsidiaries may acquire
property subject to a Lien (whether or not assumed) or, in
connection with the acquisition of property hereafter
acquired, may, within 180 days of the date such property is
acquired, subject such property to a Lien, or may assume
indebtedness secured by a Lien covering the same, in each case
up to an amount not to exceed the lesser of (i) 100% of the
cost thereof to the Company or such Subsidiary and (ii) the
fair value thereof, and the Company or any of its Subsidiaries
may acquire a Subsidiary which, at the time of such
acquisition, has a Lien existing on its property; provided
that the Indebtedness secured by such Lien does not exceed the
fair value of the assets subject to such Lien;
(f) encumbrances consisting of zoning restrictions,
easements, rights of way, survey exceptions, leases and
subleases and other similar restrictions on the use of real
property, or minor irregularities in titles thereto, which do
not materially impair the use of such property in the
operation of the business of the Company or any of its
Subsidiaries;
(g) the Company and any of its Subsidiaries may incur
(i) Liens arising under or in connection with the Receivables
Purchase Agreement; provided that such Liens do not extend to
any assets beyond those contemplated by the Receivables
Purchase Agreement or (ii) similar Liens incurred in similar
financing arrangements (to the extent otherwise permitted
hereunder);
(h) the Company and any of its Subsidiaries may incur
Liens in connection with Sale-leaseback transactions made in
compliance with Section 6.8; provided that such Liens do not
extend to any assets other than the assets subject to the
applicable Sale-leaseback transaction;
(i) the Company and its Subsidiaries may incur Liens
(a) in connection with the issuance of letters of credit (and
reimbursement obligations relating thereto) other than the
Letters of Credit; provided that the aggregate face amount of
all such letters of credit at any one time outstanding shall
not exceed $15,000,000; and provided, further, that the value
of the property subject to Liens permitted by this clause (a)
shall not exceed the aggregate face amount of letters of
credit then outstanding and (b) on Notes Receivable incurred
in connection with the sale or financing of Notes Receivable;
provided, however, that at no time shall the purchasers of
such Notes Receivable have recourse to the Company and its
Subsidiaries in respect of the amounts outstanding on such
Notes Receivable in an amount in excess of $15,000,000 in the
aggregate as provided for in Section 6.2(iv);
(j) Liens arising out of Capitalized Leases or Operating
Leases; and
(k) other encumbrances to secure Indebtedness in the
aggregate for the Company and all of its Subsidiaries not in
excess of 5% of the Company's Consolidated Tangible Net Worth
at any time.
6.2 Restrictions on Fundamental Changes. Neither the
Company nor any of its Significant Subsidiaries shall wind up,
liquidate or dissolve its respective affairs or enter into any
transaction or series of related transactions of merger or
consolidation or convey, sell, lease or otherwise dispose of (or
agree to do any of the foregoing at any future time) its property
or assets in one transaction or a series of related transactions in
an aggregate amount equal to or greater than 10% of the total
consolidated assets of the Company (whether now owned or hereafter
acquired), except that (i) any Subsidiary of the Company may merge
into the Company; provided that the Company shall at all times be
the continuing corporation; (ii) any Subsidiary may merge into or
consolidate with another wholly-owned Subsidiary of the Company;
(iii) the Company may merge or consolidate with any Person;
provided that (a) the Company shall at all times be the continuing
or surviving corporation and (b) no Default or Event of Default
shall have occurred and be continuing or shall occur as a result of
such merger or consolidation; and (iv) the Company may sell Notes
Receivable; provided that at no time shall the purchasers of such
Notes Receivable have recourse to the Company in respect of amounts
outstanding on such Notes Receivable in an amount in excess of
$15,000,000 in the aggregate. Nothing set forth in this Section
6.2 shall prohibit the Company from reincorporating itself under
the laws of another state (by way of merger, dissolution or
otherwise); provided that no Default or Event of Default shall have
occurred and be continuing or shall occur as a result of such
reincorporation and provided, further, that such reincorporation
would not reasonably be expected to have a Material Adverse Effect.
6.3 Interest Coverage Ratio. The Company shall not
permit at any time the ratio of (i) EBIT of the Company to
(ii) Interest Expense of the Company to be less than 2.50 to 1.0.
6.4 Fixed Charge Coverage Ratio. The Company shall not
permit at any time the ratio of (i) (a) EBIT of the Company plus
(b) depreciation expense of the Company and its Consolidated
Subsidiaries plus (c) amortization expense of the Company and its
Consolidated Subsidiaries minus (d) Consolidated Capital
Expenditures minus (e) any amounts expended by the Company and its
Consolidated Subsidiaries to redeem or purchase indebtedness
(including current maturities of long-term indebtedness but
excluding in all cases redemptions or repurchases funded from other
sources such as permitted refinancings or the issuance of
Securities and also excluding redemptions and purchases of
indebtedness for money borrowed or Capital Leases related to the
plants of the Company or its affiliates located at Fountain Inn and
Greenwood, South Carolina in an aggregate amount not to exceed
$18,000,000); (in the case of each of clauses (b)-(e) only
expenditures actually made and expenses charged against earnings
when determining EBIT during the applicable four-quarter period
shall be included) to (ii) Fixed Charges of the Company and its
Consolidated Subsidiaries to be less than 1.50 to 1.
6.5 ERISA. The Company shall not, and shall cause its
ERISA Affiliates not to:
(i) engage in any transaction in connection with which
the Company or any of its ERISA Affiliates could be reasonably
expected to be subject to either a civil penalty assessed
pursuant to Section 502(i) of ERISA or a tax imposed by
Section 4975 of the Code in excess of $500,000;
(ii) fail to make full payment when due of all amounts
which, under the provisions of any Plan or under ERISA and the
Code, the Company or any of its ERISA Affiliates is required
to pay as contributions thereto, except where the failure to
make such payment would not give rise to a lien under Section
412 of the Code or Section 302 of ERISA; or
(iii) fail to make any payments to any Multiemployer Plan
that the Company or any of its ERISA Affiliates is required to
make under any agreement relating to such Multiemployer Plan,
or any law pertaining thereto, in excess of $500,000.
As used in Section 6.5(ii), the term "accumulated funding
deficiency" has the meaning specified in Section 302 of ERISA and
Section 412 of the Code.
6.6 Sale or Discount of Receivables. The Company and
its Subsidiaries (other than Foreign Subsidiaries (except the
German Borrower)) shall not sell with or without recourse, or
discount or otherwise sell for less than the face value thereof,
notes or receivables except in the ordinary course of business in
accordance with past collection practices; provided, however, that
the Company and its Subsidiaries shall be allowed to, directly or
indirectly, sell receivables (i) as contemplated by the Receivables
Purchase Agreement and (ii) with respect to which foreign Persons
are the account debtors to the extent proceeds of such sales (net
of taxes and expenses) do not exceed $15,000,000.
6.7 Amendments or Waivers of Charter or By-laws or of
Certain Documents Relating to Certain Indebtedness; Refinancing of
Indebtedness. The Company shall not make or agree to make any
(i) amendment to, or waiver of any of its rights under, any of the
Certain Existing Indebtedness, the Receivables Purchase Agreement
or the Sale-leaseback Agreement without obtaining the prior written
consent of Requisite Lenders to such amendment or waiver if such
amendment or other change would reasonably be expected to (a) have
a material adverse effect on the Lenders or on the Company's
ability to perform any of its obligations under any of the Loan
Documents or (b) materially increase the existing, or add a
material amount of new, financial or other material obligations of
the Company or (ii) amendment to or other change to its certificate
of incorporation or by-laws.
6.8 Sale-leaseback Transactions. Neither the Company
nor any of its Subsidiaries shall become or remain liable as lessee
or as guarantor or other surety with respect to any Capital Lease
of the Company or any of its Subsidiaries of any property (whether
real or personal or mixed), whether now owned or hereafter
acquired, (a) which the Company or such Subsidiary, as the case may
be, has sold or transferred after the Effective Date or is to sell
or transfer after the Amendment and Restatement Effective Date to
any other Person other than to the Company or a wholly-owned
Subsidiary of the Company, as the case may be, or (b) which the
Company or such Subsidiary, as the case may be, intends to use for
substantially the same purpose as any other property which after
the Effective Date has been or is to be sold or transferred by the
Company or a wholly-owned Subsidiary of Company, as the case may
be, to any Person in connection with such lease; provided that the
Company and its Subsidiaries may engage in (i) the Sale-leaseback
transactions contemplated by the Sale-leaseback Agreement and
(ii) Sale-leaseback transactions with respect to assets acquired
not more than 270 days prior to the consummation of such
transactions, but only to the extent in the case of clause (ii)
that the proceeds from such Sale-leaseback transactions (net of
taxes and expenses) shall not exceed $25,000,000 in the aggregate.
6.9 No Further Negative Pledges. Except with respect to
specific property encumbered to secure payment of particular
Indebtedness, neither the Company nor any of its Subsidiaries shall
enter into or assume any agreement prohibiting the creation or
assumption of any Lien upon its respective properties or assets,
whether now owned or hereafter acquired.
6.10 Restricted Payments. The Company and its
Subsidiaries shall not, directly or indirectly, declare, order, pay
or make, or set apart any sum for any Restricted Payments with
respect to Certain Existing Indebtedness out of the proceeds of any
Indebtedness ("Refinancing Indebtedness") except the Company and
its Subsidiaries may make such Restricted Payments so long as the
Refinancing Indebtedness (w) has a Stated Maturity not less than
the Stated Maturity of the Certain Existing Indebtedness to be
refinanced, (x) has an Average Life not less than the Average Life
of the Certain Existing Indebtedness to be refinanced, (y) has an
aggregate principal amount not less than the aggregate principal
amount of the Certain Existing Indebtedness to be refinanced and
(z) contains terms no more onerous, in the aggregate and on
balance, to the Company than the terms of the Indebtedness to be
refinanced.
6.11 Investments; Joint Ventures. The Company will not,
directly or indirectly, make any Investment in any Person except:
(i) Investments in Cash and Cash Equivalents;
(ii) Investments in existence on the Effective Date which
to the extent exceeding $50,000 on such date are described in
Schedule 6.11 annexed hereto;
(iii) Investments in any Person that is or after giving
effect to such Investment will be a wholly-owned Subsidiary
and Investments by any Subsidiary in the Company or any other
Subsidiary of the Company;
(iv) Investments made by or in respect of any employee
benefit plan or any other employee benefits (including,
without limitation, life insurance) granted in the ordinary
course of business; and
(v) other Investments not to exceed at any point in time
$15,000,000 in the aggregate.
6.12 Sale, Transfer, etc. of Assets. The Company shall
and shall cause its Domestic Subsidiaries to not sell, convey,
transfer or otherwise dispose of any material assets to any Foreign
Subsidiary of the Company other than in the ordinary course of
business consistent with past business practices of the Company and
its Subsidiaries.
6.13 Acquisitions. Neither the Company nor any of its
Subsidiaries shall acquire (other than pursuant to the Acquisition)
from any Person or group of related Persons in a single transaction
or a series of related transactions for a consideration (whether
cash, securities, property, evidence of indebtedness or otherwise)
having a fair market value individually or in the aggregate of
$15,000,000 or more any asset or assets, real or personal, tangible
or intangible (other than inventory or accounts receivable acquired
in the ordinary course of business, Cash, Cash Equivalents, or any
assets the consideration for which constitutes a Consolidated
Capital Expenditure); provided, however, that the acquisition after
the Effective Date of any business or line of business or all or
substantially all of the assets of any Person shall not be treated
as a Consolidated Capital Expenditure for purposes of this Section 6.13.
SECTION 7. Events of Default.
If any of the following conditions or events ("Events of
Default") shall occur and be continuing:
7.1 Failure To Make Payments When Due. (i) Failure to
pay any installment of principal of any Revolving Loan when due,
whether at stated maturity, by acceleration, by notice of
prepayment or otherwise; or failure to reimburse an Issuing Lender
for any drawing under any Letter of Credit pursuant to Section 2.14
or (ii) failure to pay within five (5) days after the due date any
interest on any Revolving Loan or interest on any reimbursement
obligation with respect to any Letter of Credit or any Fees or
other amounts owing under this Agreement or any of the other Loan
Documents; or
7.2 Breach of Certain Covenants. Failure to observe or
perform any covenant or condition required to be kept or performed
by the Company pursuant to (i) Section 5.4, 5.5, 5.6, 5.11 or 6
herein or (ii) Section 10 and such failure continues for a period
of five Business Days after receipt of notice by the Company from
the Agent, of such failure; or
7.3 Breach of Warranty. Any representation or warranty
made herein, in the Existing Credit Agreement, in any other Loan
Document (as defined herein and in the Existing Credit Agreement)
or any writing delivered pursuant hereto or thereto or in
connection herewith or therewith shall prove to have been incorrect
in any material respect when made; or
7.4 Default in Other Agreements. An event of default
shall occur under the provisions of any instrument evidencing
outstanding indebtedness for borrowed money in a principal amount
in excess of $5,000,000, either direct or indirect, of the Company
or any of its Subsidiaries the holder or holders of which are
Persons other than the Company or any of its Subsidiaries, but only
in such cases where the effect of such event of default is to
permit the holder or holders of such instrument, or a trustee or
agent on behalf of such holder or holders, to cause the outstanding
indebtedness evidenced by such instrument to become due prior to
its stated maturity; or any obligation of the Company or any
Subsidiary for the payment of such indebtedness shall become or be
declared to be due and payable prior to its stated maturity, or
shall not be paid when due; or
7.5 Judgments. A judgment or judgments for the payment
of money in excess of the sum of $5,000,000 in the aggregate shall
be entered against the Company or any of its Subsidiaries, and such
judgment or judgments shall remain unsatisfied or unstayed for a
period of 30 days; or
7.6 Other Defaults Under Agreement or Loan Documents.
The Company or the German Borrower shall default in any material
respect in the performance of or compliance with any term contained
in this Agreement or the other Loan Documents other than those
referred to above in Section 7.1 or 7.2 and such default shall not
have been remedied or waived within 30 days of such default; or
7.7 Bankruptcy; Appointment of Receiver, Dissolution,
etc. The Company or any of its Significant Subsidiaries shall
commence a voluntary case concerning itself under the Bankruptcy
Code; or an involuntary case is commenced against the Company or
any of its Significant Subsidiaries, and the petition is not
controverted within 10 days, or is not dismissed within 60 days,
after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of the Company or any of its
Significant Subsidiaries; or the Company or any of its Significant
Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the
Company or any of its Significant Subsidiaries; or there is
commenced against the Company or any of its Significant
Subsidiaries any such proceeding which remains undismissed for a
period of 60 days; or the Company or any of its Significant
Subsidiaries is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is
entered; or the Company or any of its Significant Subsidiaries
suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or the Company or any of its
Subsidiaries makes a general assignment for the benefit of
creditors; or any corporate action is taken by the Company or any
of its Subsidiaries for the purpose of effecting any of the
foregoing; or
7.8 Unfunded ERISA Liabilities. Any Plan shall fail to
maintain the minimum funding standard required for any plan year or
part thereof or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the
Code; any Plan having an Unfunded Current Liability in excess of
$5,000,000 is, shall have been or is likely to be terminated or the
subject of termination proceedings under ERISA; the aggregate
amount of the Unfunded Current Liability under all Plans (excluding
each Plan with an Unfunded Current Liability of zero or less) is in
excess of $10,000,000; or the Company or any ERISA Affiliate has
incurred or is likely to incur a liability to or on account of a
Plan or a Multiemployer Plan under Section 515, 4062, 4063, 4064,
4069, 4201 or 4204 of ERISA, and there shall result from any such
event or events the imposition of a Lien upon the assets of the
Company or any ERISA Affiliate, the granting of a security interest
by the Company or an ERISA Affiliate, or a liability or a material
risk of incurring a liability to the PBGC or the Internal Revenue
Service or a Plan or a penalty under Section 4971 of the Code,
which liability, in the opinion of the Requisite Lenders, will have
a material adverse effect upon the business, operations, condition
(financial or otherwise) or prospects of the Company; or
7.9 Change in Control. Any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended) (but excluding any Excluded Person (as
defined in the next sentence)) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the
Securities Exchange Commission under such Act) of issued and
outstanding shares of capital stock of the Company entitled
(without regard to the occurrence of any contingency) to vote for
the election of members of the board of directors of the Company
having a then present right to exercise 20% or more of the voting
power for the election of members of the board of directors of the
Company attached to all such outstanding shares of capital stock of
the Company. For purposes of this Section, "Excluded Persons"
shall mean (i) any employee stock ownership plan or other employee
benefit plan and (ii) each officer and director of the Company as
of the date of this Agreement and members of the extended families
of such officers and directors;
THEN (i) upon the occurrence of any Event of Default
described in the foregoing subsection 7.7, each of (x) the unpaid
principal amount of and accrued interest on the Revolving Loans and
(y) an amount equal to the maximum amount which may at any time be
drawn under all Letters of Credit then outstanding (whether or not
any beneficiary under any Letter of Credit shall have presented, or
shall be entitled at such time to present, the drafts of other
documents required to draw under such Letter of Credit) shall
automatically become immediately due and payable, without
presentment, demand, protest or other requirements of any kind, all
of which are hereby expressly waived by the Company and the German
Borrower, and the obligation of each Lender to make any Revolving
Loan and the obligation of any Issuing Lender to issue any Letter
of Credit hereunder shall thereupon terminate, and (ii) upon the
occurrence of any other Event of Default, the Requisite Lenders
may, by written notice to the Company and the German Borrower,
declare all of the Revolving Loans and an amount equal to the
amounts described in clauses (x) and (y) above to be, and the same
shall forthwith become, due and payable, together with accrued
interest thereon, and the obligation of each Lender to make any
Revolving Loan and the obligation of any Issuing Lender to issue
any Letter of Credit hereunder shall thereupon terminate; provided
that the foregoing shall not affect in any way the obligations of
the Lenders to purchase from the Issuing Lenders participations in
the unreimbursed amount of any drawings under any Letters of Credit
as provided in Section 2.14(e). So long as any Letter of Credit
shall remain outstanding, any amounts described in clause (y) above
with respect to any such Letter of Credit, when received by the
Agent, shall be held by the Agent as cash collateral for the
obligation of the Company to reimburse the respective Issuing
Lender in the event of any drawing under such Letter of Credit, and
upon any drawing under any outstanding Letter of Credit in respect
of which the Agent holds any amounts described in clause (y)
above, the Agent shall apply such amounts held by the Agent to
reimburse the Issuing Lender for the amount of such drawing. In
the event any Letter of Credit in respect of which the Agent holds
any amounts described in clause (y) above is cancelled or expires
or in the event of any reduction in the maximum amount available at
any time for drawing under such Letter of Credit ("Maximum
Available Amount"), the Agent shall apply the amount then so held
designated to reimburse the Issuing Lender for any drawings under
such Letter of Credit less the Maximum Available Amount immediately
after such cancellation, expiration or reduction, if any, first to
the cash collateralization of any outstanding Letter of Credit in
respect of which the Company has failed to pay all or a portion of
the amounts described in clause (y) above, as the case may be,
second, to the payment in full of the outstanding Obligations, and
third, to the extent of any excess, to the Company. Nevertheless,
if at any time within 60 days after acceleration of the maturity of
any Revolving Loan the Company or the German Borrower shall pay all
arrears of interest and all payments on account of the principal
which shall have become due otherwise than by acceleration (with
interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement or the
Notes) and all Events of Default and Defaults (other than non-
payment of principal of and accrued interest on the Revolving Loans
and the Notes, and payments of amounts referred to in clause (y)
above, in each case due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 11.2,
then the Requisite Lenders by written notice to the Company and the
German Borrower may rescind and annul the acceleration and its
consequences; and the Agent shall return to the Company any amounts
held by the Agent as cash collateral in respect of amounts
described in clause (y) above; but such action shall not affect any
subsequent Event of Default or Default or impair any right
consequent thereon.
8. Representations, Warranties and
Agreements.
In order to induce the Lenders to enter into this
Agreement and to make the Revolving Loans and to issue the Letters
of Credit provided for herein, the Company makes the following
representations and warranties to, and covenants with, the Lenders
as of the Effective Date, all of which shall survive the execution
and delivery of this Agreement and the Notes, the making of the
Revolving Loans and the issuance of Letters of Credit:
8.1 Financial Information; Undisclosed Liabilities. The
Company has furnished to each Lender (i) a copy of its Annual
Report on Form 10-K for the fiscal year ended , 1993 and
a copy of its Quarterly Report on Form 10-Q for the quarterly
period ended March 26, 1994, June 18, 1994 and October 8, 1994 and
(ii) its audited consolidated balance sheet as at January 1, 1994
and its unaudited consolidated balance sheet as at October 8, 1994,
and the related consolidated statement of earnings and statement of
cash flows of the Company and its Consolidated Subsidiaries, if
any, for the fiscal year or nine months period, as the case may be,
then ended, accompanied in the case of the audited consolidated
balance sheet as at January 1, 1994 by the report on examination
thereof by Ernst & Young; said statements fairly present the
consolidated financial condition of the Company and its
Consolidated Subsidiaries and the results of their operations for
the respective periods then ended.
8.2 Adverse Changes. Except as set forth in
Schedule 8.2 hereto or in the documents furnished pursuant to
Section 8.1 herein, the net changes in circumstances affecting the
Company and/or the German Borrower have not resulted in a
cumulative effect since January 1, 1994 that would reasonably be
expected to result in a Material Adverse Effect; provided, however,
that none of the non-recurring charge nor the non-recurring
restructuring charge referred to in the definition of "EBIT"
herein, provided such charges do not exceed $18,000,000,
$51,800,000 and $25,000,000, respectively, shall individually, or
when aggregated with other changes in circumstances, constitute a
Material Adverse Effect.
8.3 Litigation. Except as set forth in Schedule 8.3
hereto, there is no action, suit, proceeding, litigation or
governmental investigation pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its
Subsidiaries which, in the reasonable opinion of the Company, is
expected to have a Material Adverse Effect.
8.4 Authorization, etc.
(a) Authorization. The execution, delivery and per-
formance of this Agreement, the issuance, delivery and payment of
the Notes, the issuance of the Letters of Credit, and the other
transactions contemplated hereby or thereby or related hereto or
thereto have each been duly authorized by all necessary corporate
action by the Company and the German Borrower, as the case may be.
(b) No Conflict. The execution, delivery and
performance by the Company and the German Borrower of this
Agreement, the issuance, delivery and performance of the Notes by
the Company and the German Borrower, the issuance of the Letters of
Credit, and the other transactions contemplated hereby or thereby
or related hereto or thereto do not and will not (i) violate (x)
any provision of law applicable to the Company or the German
Borrower, or (y) any order, judgment or decree of any court or
other agency of government binding, or purporting to be binding, on
the Company or the German Borrower or being applicable to, or
purporting to be applicable to, any of its assets, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under any Contractual Obligation of
either the Company or the German Borrower, (iii) result in or
require the creation or imposition of any Lien upon any of their
respective properties or assets, or (iv) require any approval of
stockholders or any approval or consent of any Person under any
Contractual Obligation of either the Company or the German
Borrower, except for (x) such approvals or consents that will be
obtained on or before the Effective Date, disclosed in Schedule
8.4(b) hereto or the absence of which, singly or in the aggregate,
would not have a Material Adverse Effect or (y) such violations
(other than any violation of the Certificate of Incorporation or
By-laws of the Company or the German Borrower), conflicts,
breaches, Liens and defaults set forth in Schedule 8.4(b) hereto or
that would not have, singly or in the aggregate, a Material Adverse
Effect.
(c) Government Consents. Except as set forth in
Schedule 8.4(c) hereto, the execution, delivery and performance by
the Company and the German Borrower of this Agreement, the
application of the proceeds of the Loans, the issuance, delivery
and performance by the Company and the German Borrower of the
Notes, the issuance of the Letters of Credit and the other
transactions contemplated hereby or thereby or related hereto or
thereto do not and will not require any registration with, consent
or approval of, any Governmental Authority.
(d) Binding Obligation. This Agreement is, and the
Notes, when executed and delivered by the Company and the German
Borrower will be, the legally valid and binding obligations of each
of them as the case may be, enforceable against each of them as the
case may be in accordance with their respective terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
8.5 Corporate Status. The Company and its Subsidiaries
and the German Borrower are each a duly organized and validly
existing corporation in good standing under the laws of the
jurisdiction where they are incorporated and are licensed or
qualified as a foreign corporation and in good standing in all
jurisdictions where the nature of its business or the ownership or
leasing of property makes such licensing or qualification
necessary, except where the absence of any such license,
qualification or good standing does not result in a Material
Adverse Effect.
8.6 Title; Insurance. (a) The Company and its
Subsidiaries (including the German Borrower) have good title to
their respective properties, subject only to the Liens permitted by
Section 6.1 hereof.
(b) Schedule 8.6(b) hereto sets forth in reasonable
detail the insurance program of the Company as of the Effective
Date, including limit, terms, conditions and deductibles and types
of insurance carried by the Company. All insurance policies are
outstanding and in force, and all premiums due with respect to such
policies have been paid.
8.7 Taxes, etc. All material taxes, assessments, fees
and other governmental charges (other than those presently payable
without penalty or interest) upon the Company and any of its
Subsidiaries (including the German Borrower) or upon any property
of any thereof, which are due and payable, have been paid. Except
as set forth in Schedule 8.3 hereto, no material claims are being
asserted in writing (in a Form 5701, 30 day letter or other
official written communications by the relevant governmental
entity) with respect to any past due taxes, assessments, fees or
other governmental charges against the Company or any of its
Subsidiaries (including the German Borrower) (other than any such
claims which are being contested in good faith and for which an
adequate reserve, in the reasonable judgment of the Company, has
been established on the books of the Company and its Consolidated
Subsidiaries).
8.8 ERISA. Each Plan is in substantial compliance with
ERISA and the Code; no Plan or Multiemployer Plan is insolvent or
in reorganization; the present value of the accrued benefits under
each Plan did not as of the date of the most recently completed
annual actuarial valuation applicable thereto, exceed by more than
$500,000 the fair market value of the assets of such Plan,
determined in accordance with Section 412 of the Code; no Plan has
an accumulated or waived funding deficiency or permitted decreases
in its funding standard account within the meaning of Section 412
of the Code; neither the Company nor any ERISA Affiliate has
incurred any material liability to or on account of a Plan or a
Multiemployer Plan pursuant to Section 515, 4062, 4063, 4064, 4069,
4201 or 4204 of ERISA or expects to incur any material liability
under any of the foregoing Sections on account of the termination
of participation in or contributions to any such Plan or
Multiemployer Plan; no proceedings have been instituted to
terminate any Plan under Section 4041(c) or Section 4042 of ERISA;
no condition exists that presents a material risk to the Company or
any ERISA Affiliate of incurring a liability to or on account of a
Plan or Multiemployer Plan pursuant to the foregoing provisions of
ERISA and the Code; no lien imposed under the Code or ERISA on the
assets of the Company or any ERISA Affiliate exists or is likely to
arise on account of any Plan; and the Company and its ERISA
Affiliates may terminate contributions to any other employee
benefit plans maintained by them without incurring any material
liability to any person interested therein.
8.9 Margin Regulations. The proceeds of the Revolving
Loans made to the Company and the German Borrower may be used for
general corporate purposes, which may include the purchasing or
carrying of Margin Stock (provided that the Company and the German
Borrower give each of the Lenders prior written or telephonic
notice confirmed in writing of such intended use); and no part of
the proceeds of any such Revolving Loans to the Company and the
German Borrower will be used to purchase or carry any Margin Stock
in violation of Regulation G, T, U or X of the Board of Governors
of the Federal Reserve System. Neither the Company nor the German
Borrower is engaged, principally or as one of its important
activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock (within the meaning of
Regulation U of said Board of Governors). As of the date of this
Agreement, after utilizing the full amount of the Total Revolving
Loan Commitment to purchase Margin Stock on such date, no more than
25% of the value of the assets of the Company and its Subsidiaries
that are subject to the provisions of Section 6.1 or Section 6.9 or
the German Borrower and its Subsidiaries that are so subject would
constitute Margin Stock.
8.10 Disclosure. The representations, warranties and
disclosures contained in this Agreement, or any other document,
certificate or written statement furnished to the Lenders by or on
behalf of any such Person for use in connection with the
transactions contemplated by this Agreement and in the Company's
filings made under the Securities Exchange Act of 1934, as amended,
taken as a whole and to the extent not updated or superseded in
later documents, certificates or written statements furnished to
the Lenders or in later filings under the Securities Exchange Act
of 1934, as amended, do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements contained herein or therein not misleading
at such time and in light of the circumstances under which such
information was furnished.
8.11 Patents, Trademarks, etc. The Company and its
Significant Subsidiaries own, or are licensed or permitted to use,
all patents, trademarks, trade names, copyrights, licenses,
technology, know-how, processes, service marks and rights with
respect to any of the foregoing used in and necessary or material
to the conduct of their respective businesses as currently
conducted. To the best of the Company's knowledge, the use of such
patents, trademarks, trade names, copyrights, licenses, technology,
know-how, processes and rights by the Company and its Significant
Subsidiaries does not infringe on the rights of any Person, except
for such infringement which would not reasonably be expected to
result in a Material Adverse Effect. The rights of the Company and
each of its Significant Subsidiaries to so sell, franchise or
license under such patents, trademarks, trade names, copyrights,
technology, know-how and processes owned by them and then being
used may be transferred in connection with any sale of assets and
goodwill or stock of the related business by the Company or such
Subsidiaries.
8.12 Environmental Matters. (a) The Company and each
of its Significant Subsidiaries have obtained all permits, licenses
and other authorizations relating to or used in connection with the
ownership and operation of its respective business and its
respective real properties that are required under the
Environmental Laws and are in compliance with all terms and
conditions of such required permits, licenses and authorizations,
except where failure to so obtain or to so comply would not
reasonably be expected to result in a Material Adverse Effect.
(b) The Company and, to the knowledge of the Company,
each of its Significant Subsidiaries are in compliance with all
Environmental Laws, including, without limitation, all limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in the
Environmental Laws except where non-compliance would not reasonably
be expected to result in a Material Adverse Effect.
(c) There is no civil, criminal or administrative
action, suit, demand, claim, hearing, notice of violation or
deficiency, investigation, proceeding, notice or demand letter
pending or, to the knowledge of the Company, threatened against the
Company or any of its Significant Subsidiaries under the
Environmental Laws which could reasonably be expected to result in
a fine, penalty or other cost or expense in excess of $5,000,000.
(d) To the Company's knowledge, there are no past or
present events, conditions, circumstances, activities, practices,
incidents, actions or plans which may interfere with or prevent
compliance in all material respects by the Company or any of its
Significant Subsidiaries with the Environmental Laws, or which may
give rise to any common law or legal liability, including, without
limitation, liability under CERCLA, or similar state, local or
foreign laws, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing or notice of violation, study or
investigation, based on or related to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling, or the emission, discharge, release or threatened release
into the environment, of any Hazardous Material which could
reasonably be expected to result in a fine, penalty or other cost
or expense in excess of $5,000,000.
(e) Except as set forth in Schedule 8.12(e) hereto,
there is, to the Company's knowledge, no real property ever owned,
operated, used or controlled by the Company or any of its
Significant Subsidiaries listed or proposed for listing on the
National Priorities List or the Comprehensive Environmental
Response, Compensation, and Liability Information System, both
promulgated under CERCLA, or on any comparable state or local list,
and neither the Company nor any of its Significant Subsidiaries has
received any notification of potential or actual liability or
request for information under CERCLA or any comparable state or
local law.
(f) Except in compliance with the Environmental Laws,
(i) no real property ever owned, operated, used or controlled by
the Company or any of its Significant Subsidiaries has been used
for the handling, processing, generation, treatment, storage or
disposal of any Hazardous Materials, and no underground storage
tank or other underground storage receptacle, or related piping, is
located on such properties; (ii) there have been no releases (i.e.,
any past or present releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping) of Hazardous Materials by the Company or any
of its Significant Subsidiaries or any of their respective
predecessors in interest at, on, under, from or into any of the
real property owned, operated or controlled by them; and
(iii) there are no polychlorinated biphenyls or asbestos located
in, at, on or under any facility or real property owned, operated
or controlled by the Company or any of its Significant
Subsidiaries, in any case set forth in clauses (i)-(iii) above, in
such amounts, conditions or concentrations that could reasonably be
expected to require removal or remedial or corrective action, or to
result in liability under the Environmental Laws in excess of
$5,000,000.
9. Agent.
9.1 Appointment. The Lenders hereby appoint BTCo as
Agent hereunder and under the Loan Documents and each Lender hereby
authorizes the Agent to act as herein or therein specified, and
each Lender hereby irrevocably authorizes, and each holder of any
Note by the acceptance of such Note shall be deemed irrevocably to
authorize, the Agent to take such action on its behalf under the
provisions of this Agreement, the Notes, and any other instruments,
documents and agreements referred to herein or therein and to
exercise such powers hereunder and thereunder as are specifically
delegated to the Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Agent may
perform any of its duties hereunder, or under the Loan Documents,
by or through its agents or employees.
9.2 Nature of Duties. The Agent shall not have any
duties or responsibilities except those expressly set forth in this
Agreement. The duties of the Agent shall be mechanical and
administrative in nature. The Agent shall not have by reason of
this Agreement a fiduciary relationship in respect of any Lender.
Nothing in this Agreement or any of the Loan Documents, expressed
or implied, is intended to or shall be so construed as to impose
upon the Agent any obligations in respect of this Agreement or any
of the Loan Documents except as expressly set forth herein or
therein. Each Lender shall make its own independent investigation
of the financial condition and affairs of the Company and its
Subsidiaries as well as that of the German Borrower in connection
with the making and the continuance of the Revolving Loans
hereunder and shall make its own appraisal of the creditworthiness
of the Company and its Subsidiaries as well as that of the German
Borrower; and the Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide any Lender
with any credit or other information with respect thereto, whether
coming into its possession before the making of the Revolving Loans
or at any time or times thereafter.
9.3 Rights, Exculpation, etc. The Agent and any of the
officers, directors, employees or agents of the Agent shall not be
liable to any Lender for any action taken or omitted by them
hereunder or under any of the Loan Documents, or in connection
herewith or therewith, unless caused by its gross negligence or
willful misconduct. The Agent shall not be responsible to any
Lender for any recitals, statements, representations or warranties
herein or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, or sufficiency of this Agreement or
any of the other Loan Documents or the financial condition of the
Company and its Subsidiaries or of the German Borrower. The Agent
shall not be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or
conditions of this Agreement or any of the other Loan Documents or
the financial condition of the Company or any of its Subsidiaries
or of the German Borrower, or the existence or possible existence
of any Default or Event of Default. The Agent may at any time
request instructions from the Lenders with respect to any actions
or approvals which by the terms of this Agreement or any of the
other Loan Documents the Agent is permitted or required to take or
to grant, and if such instructions are requested, the Agent shall
be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from any action or
withholding any approval under this Agreement or any of the other
Loan Documents until it shall have received such instructions from
the Requisite Lenders. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Agent as a
result of the Agent acting or refraining from acting hereunder or
under any of the other Loan Documents in accordance with the
instructions of the Requisite Lenders.
9.4 Reliance. The Agent shall be entitled to rely upon
any written notice, statement, certificate, order or other document
or any telephone message believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person, and,
with respect to all legal matters pertaining to this Agreement or
any of the other Loan Documents and its duties hereunder or
thereunder, upon advice of counsel selected by it.
9.5 Indemnification. To the extent that the Agent is
not reimbursed and indemnified by the Company or the German
Borrower, the Lenders will reimburse and indemnify the Agent for
and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Agent, acting pursuant
hereto, in any way relating to or arising out of this Agreement or
any of the other Loan Documents or any action taken or omitted by
the Agent under this Agreement or any of the other Loan Documents,
in proportion to their respective Commitments hereunder; provided,
however, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from
the gross negligence or willful misconduct of the Agent. The
obligations of the Lenders under this Section 9.5 shall survive the
payment in full of the Notes and the termination of this Agreement
and any other Loan Document.
9.6 The Agent, Individually. With respect to its
Commitment hereunder, the Revolving Loans made by it and any Notes
issued to or held by it, the Agent shall have and may exercise the
same rights and powers hereunder and is subject to the same
obligations and liabilities as and to the extent set forth herein
for any other Lender or holder of a Note. The terms "Lenders",
"Requisite Lenders" or "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Agent in its individual capacity as a Lender, one of the Requisite
Lenders or a noteholder. The Agent may accept deposits from, lend
money to, and generally engage in any kind of banking, trust or
other business with the Company or the German Borrower or any of
their Subsidiaries as if they were not acting pursuant hereto.
9.7 Holders of Notes. The Agent may deem and treat the
named payee (or any subsequent holder, transferee, assignee or
payee of which the Agent has received written notice) of any Note
as the owner thereof for all purposes hereof unless and until a
written notice of the assignment or transfer thereof shall have
been received by the Agent. Any request, authority or consent of
any Person, who at the time of making such request or of giving
such authority or consent is the named payee (or any subsequent
holder, transferee, assignee or payee of which such Agent has
received written notice) of any Note, shall be conclusive and
binding on any subsequent holder, transferee, assignee or payee of
such Note or of any Note or Notes issued in exchange therefor.
9.8 Resignation by the Agent. The Agent may resign from
the performance of all of its functions and duties hereunder at any
time by giving 15 Business Days' prior written notice to the
Company and the Lenders. Such resignation shall take effect upon
the expiration of such 15 Business Day period or upon the earlier
appointment of a successor. Upon any such resignation, the
Requisite Lenders shall appoint a successor Agent who shall be
satisfactory to the Company and shall be an incorporated bank or
trust company. In the event no such successor shall have been so
appointed, then any notification, demand or other communication
required or permitted to be given by the Agent on behalf of the
Lenders to the Company hereunder shall be sufficiently given if
given by the Requisite Lenders, and any notification, demand, other
communication, document, statement or other paper or payment
required to be made, given or furnished by the Company to the Agent
for distribution to the Lenders shall be sufficiently made, given
or furnished if made, given or furnished by the Company directly to
each Lender entitled thereto and, in the case of payments, in the
amount to which each such Lender is entitled. All powers
specifically delegated to the Agent by the terms hereof may be
exercised by the Requisite Lenders.
9.9 Removal. The Agent may be removed from the
performance of all its functions and duties hereunder at any time
with or without cause by an instrument delivered in writing to the
Company and signed by the Requisite Lenders. Upon any such
removal, the Requisite Lenders shall appoint a successor Agent who
shall be satisfactory to the Company and shall be an incorporated
bank or trust company. In the event no such successor shall have
been so appointed, then any notification, demand or other
communication required or permitted to be given by the Agent on
behalf of the Lenders to the Company hereunder shall be
sufficiently given if given by the Requisite Lenders, and any
notification, demand, other communication, document, statement or
other paper or payment required to be made, given or furnished by
the Company to the Agent for distribution to the Lenders shall be
sufficiently made, given or furnished if made, given or furnished
by the Company directly to each Lender entitled thereto and, in the
case of payments, in the amount to which each such Lender is
entitled. All powers specifically delegated to the Agent by the
terms hereof may be exercised by the Requisite Lenders.
10. Conditions Precedent.
10.1 Conditions to Effectiveness. The effectiveness of
this Agreement is subject to the prior or concurrent satisfaction
of the following conditions by the Company and the German Borrower,
as the case may be:
(a) Closing Documents. The Company and the German
Borrower shall have delivered to the Lenders (or to the Agent
for the Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the
following (each, unless otherwise noted, dated the Effective
Date):
1. Board Resolutions. Resolutions of the
Company's Board of Directors in form and substance
satisfactory to the Agent approving and authorizing
(i) the execution, delivery and performance by it of the
Loan Documents and any other documents, instruments and
certificates as are contemplated hereby and thereby, and
(ii) the other transactions contemplated hereby,
certified as of the Effective Date by an appropriate
respective corporate officer as being true and complete
and in full force and effect without modification or
amendment.
2. Signature and Incumbency Certificates.
Signature and incumbency certificates of the officers of
the Company and a Signature Certificate from the board of
management of the officers of the German Borrower
executing any of the Loan Documents.
3. By-Laws. Copies of the By-laws of the Company.
4. German Corporate Documents. A recently issued
certified copy of the German Borrower's entry in the
commercial register of Emmendingen Lower District Court.
5. Notes. The Notes duly executed by the Company
and the German Borrower in accordance with the terms
hereof drawn to the order of the applicable Lender and
with appropriate insertions.
6. Opinions. Originally executed copies of one or
more written opinions of (i) Cravath, Swaine & Moore,
counsel for the Company, in the form of Exhibit D-1
hereto and, (ii) Wayne F. Taylor, general counsel for the
Company, in the form of Exhibit D-2 hereto, and
(iii) from Hengeler Mueller Weitzel Wirtz, special German
counsel to the German Borrower, in the form of Exhibit D-
3 hereto, each of which opinions shall be dated as of the
Effective Date, and shall cover such other matters and
include such changes as shall be reasonably requested or
approved by the Agent.
7. Opinion. Originally executed copies of the
favorably written opinion of Cahill Gordon & Reindel,
special counsel to the Agent and Lenders, substantially
in the form of Exhibit E.
8. Officers' Certificate. Originally executed
Officers' Certificate of the Company in the form of
Exhibit G hereto stating that all conditions set forth in
Sections 4.1(b)(i), 4.1(b)(ii) and 4.1(b)(iii), have been
satisfied, in each case, without taking into account
whether any circumstance or event which must be
satisfactory to any Person (other than the Company) is in
fact satisfactory to such Person.
9. Guarantee. On the Effective Date the Company
shall have duly authorized, executed and delivered a
guarantee agreement pursuant to which the Company
guarantees the obligations of the German Borrower owing
to the Lenders, in substantially the form of Exhibit J
hereto (as modified, supplemented or amended from time to
time, the "Company Guarantee") in accordance with the
terms hereof and thereof.
(b) Corporate Proceedings. All corporate and other
proceedings taken or to be taken by the Company and the German
Borrower in connection with the transactions contemplated by
each of the Loan Documents on or prior to the Effective Date
and all documents incidental thereto not previously found
acceptable by the Requisite Lenders shall be reasonably
satisfactory in form and substance to such Lenders, and such
Lenders shall have received from the Company and the German
Borrower all such counterpart originals or certified copies of
such documents as such Lenders may reasonably request.
11. Miscellaneous.
11.1 Exercise of Rights. Neither the failure nor delay
on the part of any of the Lenders or any holder of a Note to
exercise any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege under this Agreement
preclude any other or further exercise thereof, or the exercise of
any other right, power or privilege. The rights and remedies
herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Lenders and the holders of the Notes
would otherwise have. No notice to or demand on the Company or the
German Borrower in any case shall entitle either the Company or the
German Borrower to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the right of the
Lenders and the holders of the Notes to any other or further action
in any circumstances without notice or demand.
11.2 Amendment and Waiver. With the prior written
consent of the Requisite Lenders, the Company and the German
Borrower any provision of this Agreement and the other Loan
Documents may be amended, waived, supplemented, restated,
discharged or terminated; except that the written consent of the
Company and the German Borrower and all of the Lenders shall be
required to amend, waive, supplement, restate, discharge or
terminate any of the following: the amount of the Commitment of
each of the Lenders, the Company Guarantee, Sections 11.3, 11.10,
11.11 and this Section 11.2, the definition of Requisite Lenders,
the waiver of the payment of interest on any interest payment date
or any such change that would extend the Final Maturity Date, alter
any of the Mandatory Repayment provisions contained in Section 3.3
or change the definition of Alternate Currency or Dollars or reduce
the applicable principal amount, face amount, interest rate, fee
or currency of borrowing or incurrence or repayment with respect to
any Revolving Loan or Letter of Credit hereunder.
11.3 Expenses and Indemnification. The Borrowers agree
to pay all reasonable out-of-pocket expenses (x) of the Agent
incurred in connection with the development, preparation,
execution, delivery, enforcement, assignment, participation and
administration of this Agreement, and the other Loan Documents and
any and all amendments, supplements or waivers hereto or thereto
and the Notes and the making and repayment of the Revolving Loans
and the issuance of Letters of Credit and the payment of interest,
including, without limitation, the reasonable fees and expenses of
Cahill Gordon & Reindel, special counsel for the Lenders and the
Agent and of Peltzer & Riesenkampff, special German counsel for the
Lenders and Agent in each case reasonably promptly upon being
furnished an invoice and (y) of each Lender incurred in connection
with the enforcement of any of the foregoing, including, without
limitation, the reasonable fees and expenses of any counsel for any
of the Lenders and the Agent. In addition, the Company agrees to
pay, and to save the Agent and the Lenders harmless from all
liability for, any stamp or other documentary taxes that may be
payable in connection with the Company's or the German Borrower's
execution, delivery or performance of this Agreement, its
borrowings hereunder, or its issuance of the Notes or of any other
instruments or documents provided for herein or delivered or to be
delivered by either of them hereunder or any other Loan Document or
in connection herewith or thereunder. All obligations provided for
in this Section 11.3 shall survive any termination of this
Agreement. The Company agrees to indemnify, defend and hold the
Agent and each of the Lenders harmless from and against any and all
liability (including, without limitation, excise tax, interest,
penalties and all reasonable attorneys' fees) to which the Agent or
any of the Lenders may become subject insofar as such excise tax or
liability arises out of or is based upon a suit or proceeding or
governmental action brought or taken in connection with the use of
the proceeds of the Revolving Loans made to the Borrower, whether
the Agent or such Lender is a party thereto or is otherwise
required to respond thereto; provided that the Company shall not be
liable hereunder with respect to claims directly arising out of (i)
any settlement made without its consent, which consent will not
unreasonably be withheld or delayed, (ii) any proceeding brought
against the Agent or such Lender by a security holder of the Agent
or such Lender based upon rights afforded such security holder
solely in its capacity as such, and (iii) the gross negligence or
willful misconduct of the Agent or such Lender.
The foregoing indemnity set forth in this Section 11.3
shall include, without limitation, indemnification by the Company
to each Indemnitee for any and all expenses and costs (including,
without limitation, remedial, removal, response, abatement, clean-
up, investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and including the
costs of investigating or defending any claim and whether or not
such claim is ultimately defeated, and whether the conditions
creating such claim arose before, during or after ownership,
operation, possession or control of the business, property or
facilities of the Company or any of its Subsidiaries, or before, on
or after the date hereof, and including any amounts paid incidental
to any compromise or settlement by the Indemnitees or any
Indemnitee to the holders of any such claim), lawsuits,
liabilities, obligations, actions, judgments, disbursements,
encumbrances, liens, damages (including, without limitation,
damages for contamination or destruction of natural resources),
penalties and fines of any nature (including, without limitation,
in all cases the reasonable fees and disbursements of counsel in
connection therewith) incurred, suffered or sustained by that
Indemnitee based upon, arising under or relating to Environmental
Laws, based on, arising out of or relating to, in whole or in part,
the exercise and/or enforcement of any rights or remedies by any
Indemnitee under this Agreement, any other Loan Document or any
related documents and including, but not limited to, taking title
to, owning, possessing, operating, controlling, managing or taking
any action in respect of any real property.
11.4 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure
to the benefit of the Agent, the Company, the German Borrower, the
Lenders, and, to the extent permitted hereunder, all future holders
of the Notes and their respective successors and assigns, except
that neither the Company nor the German Borrower may assign or
transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may at any time sell to one or more
commercial banks, insurance companies, savings and loan
associations, savings banks or other financial institutions,
pension funds or mutual funds or other entities ("Participants")
participating interests in its Revolving Loan Commitment,
Revolving Loans and Letters of Credit, or any other interest of
such Lender hereunder or thereunder (in respect of any such Lender,
its "Credit Exposure"); provided, however, that such Lender shall
remain fully liable for its entire Credit Exposure without regard
to any such participation and no Participant shall be in privity
with either the Company or the German Borrower or acquire any right
vis-a-vis either the Company or the German Borrower except as
expressly set forth in this paragraph. The Borrowers agree that if
amounts outstanding under this Agreement or the Notes are due or
unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in respect
of its participating interest in amounts owing under this Agreement
and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under
this Agreement or any Note; provided that such right of set-off
shall be subject to the obligation of such Participant to share
with Lenders, and Lenders agree to share with such Participant, as
provided in Section 11.11 hereof. The Company and the German
Borrower each also agree that each Participant shall be entitled to
the benefits of Section 2.10 hereof with respect to its
participation in the Revolving Loans outstanding from time to time;
provided that no Participant shall be entitled to receive any
greater payment under such Section than the relevant Lender would
have been entitled to receive with respect to the relevant
Revolving Loans. Each Lender agrees that any agreement between
such Lender and any such Participant in respect of such
participating interest shall not restrict such Lender's right to
agree to any amendment, supplement or modification to this
Agreement or any of the Loan Documents except to extend the final
maturity of any Note other than in accordance with the definition
of "Final Maturity Date" as in effect on the date hereof or reduce
the rate or extend the time of payment of interest thereon or
reduce the principal amount thereof or reduce the fees payable
pursuant to Section 2.13 or clauses (1)(i) or (2) of Section
2.14(f).
(c) With the prior written consent of the Agent, any
Lender ("Assignor") may at any time assign to any Lender or any
affiliate thereof, and to one or more Eligible Assignees
("Assignees"), all or any part of its Credit Exposure pursuant to
a Transfer Supplement substantially in the form of Exhibit F
hereto, executed by such Purchasing Lender, such Assignor, the
Agent and, in the event such assignment is of an interest in a
Letter of Credit Participation, the Issuing Lender; provided that
unless such assignment is to a Lender, all such assignments shall
be in aggregate minimum amounts of $3,000,000 and shall be made
only with the prior written consent of the Company, such consent
not to be unreasonably withheld; and provided, further, that no
Lender may assign any Revolving Loan or Letter of Credit
Participation without a corresponding assignment of such Lender's
Revolving Loan Commitment. Upon (i) such execution of such
Transfer Supplement, (ii) delivery of an executed copy thereof to
the Company and the German Borrower, (iii) payment by such Assignee
to such Assignor of an amount equal to the purchase price agreed
between such Assignor and such Assignee, and (iv) payment by such
Assignee or Assignor (as they shall mutually agree) to the Agent of
a non-refundable fee of $2,500 to cover administrative and other
expenses which may be incurred in connection with such assignment,
such Assignee shall for all purposes be a Lender party to this
Agreement and shall have all the rights and obligations of a Lender
under this Agreement to the same extent as if it were an original
party hereto and thereto with the Pro Rata Share of the applicable
Commitment(s) set forth in such Transfer Supplement or such
counterpart, and subject to the preceding sentence no further
consent or action by the Borrower, Lenders or the Agent shall be
required. As used in this Section 11.4(c), "Eligible Assignee"
means (a) the Agent; (b) any Affiliate of any Lender otherwise
meeting the requirements of (c), (d), (e) or (f) of this subclause
(c); (c) a commercial bank, savings and loan association or savings
bank organized under the laws of the United States, or any State
thereof; (d) a commercial bank organized under the laws of any
other country that is a member of the OECD or a political
subdivision of any such country, so long as such bank is acting
through a branch or agency located in the United States; (e) a
finance company, pension fund, mutual fund, insurance company, or
other financial institution (whether a corporation, partnership,
trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans providing for revolving
credit in the ordinary course of its business and meets the
definition of "accredited investor" as defined in Regulation D
under the Securities Act of 1933, as amended; and (f) any other
Person approved by the Agent and the Borrower, such approval not to
be unreasonably withheld.
Such Transfer Supplement or such counterpart shall be
deemed to amend this Agreement to the extent, and only to the
extent, necessary to reflect the addition of such Assignee and the
resulting adjustment of Pro Rata Shares arising from the purchase
by such Purchasing Lender of all or a portion of the rights and
obligations of such Assignor under this Agreement, the Commitments
and the Notes. Upon the consummation of any transfer to an
Assignee pursuant to this Section 11.4(c), the Assignor, the
Agent, the Company and the German Borrower shall make appropriate
arrangements so that, if required, a replacement Note is issued to
such Assignor and a new Note or, as appropriate, a replacement
Note, issued to such Assignee, in each case in principal amounts
reflecting their Pro Rata Shares or, as appropriate, their
outstanding Revolving Loans, as adjusted pursuant to such Transfer
Supplement.
(d) The Company and the German Borrower authorize each
Lender to disclose to any Participant or Assignee (each, a
"Transferee") and any prospective Transferee any and all financial
information in such Lender's possession concerning the Company and
the German Borrower and any of their respective Subsidiaries which
has been delivered to such Lender by or on behalf of the Company or
the German Borrower pursuant to this Agreement or which has been
delivered to such Lender by the Company or the German Borrower in
connection with such Lender's credit evaluation of the Company and
the German Borrower prior to entering into this Agreement; provided
that if such information is confidential information as
contemplated by Section 11.18, such Lender may so disclose such
information only if such Transferee or Prospective Transferee
previously agrees in writing to be bound by the terms of
Section 11.18.
(e) Except pursuant to an assignment but only to the
extent set forth in the Transfer Supplement related to such
assignment, no Lender shall, as between the Company and the German
Borrower and the Lender, be relieved of any of its obligations
hereunder as a result of any sale, transfer or negotiation of, or
granting of participations in, all or any part of its Credit
Exposure.
(f) Each Eligible Assignee organized under the laws of
any jurisdiction other than the United States or any State thereof
(including the District of Columbia) shall make the representations
and certifications and provide the relevant forms, as if it were a
Lender, on or before the Settlement Date (as defined in the
Transfer Supplement) and thereafter as required by Section 11.14
with respect to such assignment.
(g) Nothing in this Agreement shall prevent or prohibit
any Lender from pledging its Loans and Notes hereunder to a
Federal Reserve Bank in support of borrowings made by such Lender
from such Federal Reserve Bank.
11.5 Notices, Requests, Demands. All notices, requests,
demands or other communications to or upon the respective parties
hereto shall be deemed to have been given or made five days after
deposit in the mails, postage prepaid, or, in the case of telex or
telegraphic notice, when delivered to the telex or telegraph
company, or in the case of telex or telecopier notice sent over a
telex or a telecopier machine owned or operated by a party hereto,
when sent, addressed to the Company, the German Borrower, the Agent
or the Lenders, as the case may be, at their respective addresses
shown opposite their signatures hereto or at such other address as
any of the parties hereto may hereafter specify in writing to the
others, except that any communication with respect to a change of
address shall be deemed to be given or made when received by the
party to whom such communication was sent. No other method of
giving notice is hereby precluded.
11.6 Determination of Dollar Equivalent. For purposes
of this Agreement, the Dollar Equivalent of Deutsche Mark Loans
shall be calculated on the second Business Day of each week. The
Dollar Equivalent for Deutsche Mark Loans shall remain in effect
until the same is recalculated by BTCo as provided above and notice
of such recalculation is received by the Company and the German
Borrower, it being understood that until such notice is received,
the Dollar Equivalent shall be that Dollar Equivalent as last
reported to the Company and the German Borrower by BTCo. BTCo
shall promptly notify the Company and the German Borrower and the
Lenders of each determination of the Dollar Equivalent for Deutsche
Mark Loans.
11.7 Survival of Representations and Warranties. All
representations and warranties contained herein or otherwise made
in writing by the Company or the German Borrower in connection
herewith shall survive the execution and delivery of this
Agreement, the Notes and each of the Loan Documents.
11.8 Governing Law. This Agreement and the rights and
obligations of the parties under this Agreement and under the Notes
shall be governed by and construed and interpreted in accordance
with the internal laws of the State of New York without regard to
principles of conflict of laws.
11.9 Counterparts. This Agreement may be executed in
any number of counterparts, and by the different parties hereto on
the same or separate counterparts, each of which shall be deemed to
be an original instrument but all such counterparts taken together
shall constitute but one and the same instrument. Complete
counterparts of this Agreement shall be lodged with the Company and
the Agent.
11.10 Set-Off. In addition to any rights now or
hereafter granted under applicable law (including, but not limited
to, Section 151 of the New York Debtor and Creditor Law) and not by
way of limitation of any such rights, upon the occurrence of an
Event of Default, each Lender is hereby authorized at any time or
from time to time, without notice to the Company or to any other
Person, any such notice being hereby expressly waived, to set-off
and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by
such Lender to or for the credit or the account of the Company
against and on account of the obligations and liabilities of the
Company to such Lender under this Agreement and the Notes,
including, without limitation, all claims of any nature or
description arising out of or connected with this Agreement and/or
any of the Notes and/or any of the other Loan Documents,
irrespective of whether or not such Lender shall have made any
demand hereunder and although said obligations, liabilities or
claims, or any of them, shall be contingent or unmatured and
irrespective of the currency in which such claims are made and
further each Lender is hereby authorized at any time or from time
to time, without notice to the Company or the German Borrower or to
any other Person, any such notice being hereby expressly waived, to
set-off and to appropriate and apply any and all deposits (general
or special) and any other indebtedness at any time held or owing by
such Lender to or for the credit or the account of either the
Company or the German Borrower against and on account of the
obligations and liabilities of the German Borrower to such Lender
under this Agreement and the Notes, including, without limitation,
all claims of any nature or description arising out of or connected
with this Agreement and/or any of the Notes and/or any of the other
Loan Documents, irrespective of whether or not such Lender shall
have made any demand hereunder and although said obligations,
liabilities or claims, or any of them, shall be contingent or
unmatured and irrespective of the currency in which such claims are
made. Each Lender agrees to give either the Company or the German
Borrower or both, as the case may be, notice after the exercise of
its right of set-off as provided above; provided that the failure
to give such notice shall not result in any liability on the part
of any Lender or any such holder or otherwise limit the rights of
any Lender or any such holder under this Section 11.10.
11.11 Proration of Excess Payments. The Lenders agree
among themselves that, with respect to all amounts received by them
that are applicable to the payment of principal of or interest on
the Notes, equitable adjustment will be made so that, in effect,
all such amounts will be shared ratably among the Lenders on the
basis of the amounts then owed each of them in respect of such
obligation, whether received by voluntary payment, by realization
upon security, by the exercise of the right of set-off or bankers'
lien, by counterclaim or cross action, under or pursuant to this
Agreement, the Notes, any other Loan Document or otherwise. Each
Lender agrees that if it should receive any payment on its Notes of
a sum or sums in excess of its pro rata portion, then it shall
purchase for cash from the other Lenders an interest in the Notes
of such Lenders in such amount as shall result in a ratable
participation by each of the Lenders in the aggregate unpaid amount
of all outstanding Notes then held by all of the Lenders. If all
or any portion of such excess payment is thereafter recovered from
such Lender, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without
interest.
11.12 Submission to Jurisdiction; Venue; Waiver of Jury
Trial. (a) Any legal action or proceeding against either the
Company or the German Borrower with respect to this Agreement or
any other Loan Document may be brought in the courts of the State
of New York or of the United States for the Southern District of
New York, and, by execution and delivery of this Agreement, each of
the Company and the German Borrower hereby irrevocably accepts for
itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each of
the Company and the German Borrower hereby irrevocably designates,
appoints and empowers CT Corporation System, with offices on the
date hereof at 1633 Broadway, New York, New York 10019, as its
designee, appointee and agent to receive for and on their behalf,
and in respect of its property, service of any and all legal
process, summons, notices and documents that may be served in any
such action or proceeding. If for any reason such designee,
appointee and agent shall cease to be available to act as such,
each of the Company and the German Borrower agrees to designate a
new designee, appointee and agent in New York City on the terms and
for the purposes of this provision satisfactory to the Agent. Each
of the Company and the German Borrower further irrevocably
consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to the
Company or the German Borrower, as the case may be, at the address
set forth opposite its respective signatures below, such service to
become effective 30 days after such mailing. Nothing herein shall
affect the right of the Agent, any Lender or the holder of any Note
to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against either the
Company or the German Borrower in any other jurisdiction.
(b) Each of the Company and the German Borrower hereby
irrevocably waives any objection which it may now or hereafter have
to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or
any other Loan Document brought in the courts referred to in clause
(a) above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient
forum.
(c) Each of the Company and the German Borrower and each
of the Lenders hereby irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or related to any of
the Loan Documents or the actions of any Lender in the negotiation,
administration, performance or enforcement thereof.
11.13 Survival. All indemnities set forth herein
including, without limitation, in Sections 2.10, 2.11, 2.14, 9.5
and 11.3 shall survive the execution and delivery of this Agreement
and the Notes and each of the other Loan Documents and the
indemnities set forth in Sections 2.14, 9.5 and 11.3 shall survive
the making and repayment of the Revolving Loans and the issuance
and expiration or termination of the Letters of Credit.
11.14 Lender's Representation and Certain Agreements.
Each Lender represents that, as of the date hereof, either (i) it
is a corporation or other entity organized in or under the laws of
the United States or any State thereof or (ii) (A) in the case of
a Borrowing by the Company it is entitled to complete exemption
from United States withholding tax imposed on or with respect to
any payments, including fees, to be made to it pursuant to any of
the Loan Documents (x) under an applicable provision of a tax
convention to which the United States is a party or (y) because it
is acting through a branch, agency or office in the United States
and any payment to be received by it hereunder is effectively
connected with a trade or business in the United States or (B) in
the case of a Borrowing by the German Borrower, that it is entitled
to a full exemption from any Taxes in relation to which additional
payments may be required pursuant to Section 3.5. Each Lender
agrees to provide to the Company and the Agent on the Effective
Date (to the extent not previously provided), in the case of each
Lender that is an original signatory hereto, and within 10 days of
the date of the assignment pursuant to which it became a Lender in
the case of any assignee Lender, and at such other times as
required by United States law or as the Company or the Agent shall
reasonably request, (i) if the Lender is a corporation or other
entity organized in or under the laws of the United States or any
State thereof it shall deliver a certificate substantially in the
form of Exhibit I or Form W-9 (or any successor form thereof) and
(ii) if the Lender is not a corporation or other entity organized
in or under the laws of the United States or any State thereof it
shall deliver two accurate and complete original signed copies of
either (x) Internal Revenue Service Form 4224 (or successor form)
certifying that all payments to be made to it hereunder will be
effectively connected to a United States trade or business (the
"Form 4224 Certification") or (y) Internal Revenue Service Form
1001 (or successor form) certifying that it is entitled to the
benefits of a provision of a tax convention to which the United
States is a party which completely exempts from United States
withholding tax all payments to be made to it hereunder (the "Form
1001 Certification"). In addition, each Lender agrees that if it
previously filed a Form 1001 Certification it will deliver to the
Company and the Agent a new Form 1001 Certification prior to the
first payment date falling in the third year following the previous
filing of such certification; and if it previously filed a Form
4224 Certification it will deliver to the Company and the Agent a
new Form 4224 Certification prior to the first payment date
occurring in each of its subsequent taxable years. Each Lender
also agrees to deliver to the Company and the Agent such other or
supplemental forms as may at any time be required as a result of
changes in applicable law or regulation in order to confirm or
maintain in effect its entitlement to exemption from United States
withholding tax on any payments hereunder; provided that the
circumstances of the Lender at the relevant time and applicable
laws permit it to do so. If a Lender determines, as a result of
any change in either (i) applicable law, regulation or treaty, or
in any official interpretation or application thereof, or (ii) its
circumstances that it is unable to submit any form or certificate
that it is obligated to submit pursuant to this Section 11.14, or
that it is required to withdraw or cancel any such form or
certificate previously submitted, it shall promptly notify the
Company and the Agent of such fact and such Lender will not be
considered to have failed to comply with the provisions of this
Section 11.14. If a Lender fails to submit the certificate set
forth in the form of Exhibit I hereto or Form W-9 (or successor
form) (in the case of a Lender organized under the laws of the
United States or any State thereof) or fails to submit either a
Form 1001 Certification or a Form 4224 Certification (in the case
of a Lender organized under the laws of a jurisdiction outside the
United States) in each such case satisfactory to the Agent and the
Company indicating that all payments to be made to such Lender
hereunder are not subject to United States withholding or backup
withholding tax, the Company or the Agent shall withhold taxes from
such payments at the applicable statutory rate. Each Lender agrees
to indemnify and hold the Company, the German Borrower and the
Agent harmless from any United States taxes, penalties, interest
and other expenses, costs and losses incurred or payable by them as
a result of either (i) its failure to submit any form or
certificate that it is required to provide pursuant to this Section
11.14 or (ii) their reliance on any such form or certificate which
it has provided to them pursuant to this Section 11.14. However,
the Lender will not indemnify the Company, the German Borrower and
the Agent if it determines, as a result of any change in either (i)
applicable law, regulation or treaty, or in any official
interpretation or application thereof, or (ii) its circumstances
(but only those not within its control), that it is unable to
submit any form or certificate that it is obligated to submit
pursuant to this Section 11.14.
11.15 Headings. The descriptive headings of the various
provisions of this Agreement are inserted for convenience of
reference only and shall not be deemed to effect the meaning or
construction of any of the provisions hereof.
11.16 Change in Accounting Principles. If any
preparation of the financial statements referred to in Section 5.1
or 8.1 hereafter occasioned by the promulgation of rules,
regulations, pronouncements and opinions by or required by the
Financial Accounting Standards Board or the American Institute of
Certified Public Accountants (or successors thereto or agencies
with similar functions) result in a change in any results,
amounts, calculations, ratios, standards or terms found in
Section 2, 5 or 6 from those which would be derived or be
applicable absent such changes, the Company may reflect such
changes in the financial statements required to be delivered
pursuant to Section 5.1, but calculations of financial covenants
shall be made without giving effect to any such changes. Upon the
request of the Company or the Agent the parties hereto agree to
enter into negotiations in order to amend the financial covenants
and other terms of this Agreement if there occur any changes in
GAAP that have a material effect on the financial statements of the
Company, so as to equitably reflect such changes with the desired
result that the criteria for evaluating the Company's financial
condition and such other terms shall be the same in all material
respects after such changes as if the changes had not been made.
11.17 Defaulting Lender. (a) Upon any Lender becoming
a Defaulting Lender, (i) the Agent or, in the case of clause (iv)
of the definition of "Defaulting Lender", the Issuing Lender of any
relevant Letter of Credit shall endeavor to promptly notify each
other Lender of the amount owed or potentially owed, as the case
may be, by such Defaulting Lender and (ii) the Total Revolving Loan
Commitment shall be reduced by an amount equal to the unutilized
portion of such Defaulting Lender's Pro Rata Share thereof then in
effect (the "Unutilized Portion"); provided, however, that, with
the prior written consent of the Agent, the Company and the German
Borrower may request a non-defaulting Lender to, whereupon such
non-defaulting Lender may (in its sole discretion and without the
consent of any other Lender), by promptly notifying the Company and
the German Borrower and the Agent, increase its Revolving Loan
Commitment in an amount equal to the Unutilized Portion, in which
case, upon receipt by the Company and the German Borrower and the
Agent of such notice, (x) the Revolving Loan Commitment of such
non-defaulting Lender shall be so increased and (y) the amount of
the Total Revolving Loan Commitment then in effect shall be equal
to the amount of the Total Revolving Loan Commitment in effect
immediately prior to the time such Defaulting Lender became a
Defaulting Lender and (iii) the Pro Rata Share of such Defaulting
Lender shall be reduced to zero.
(b) No Defaulting Lender shall be entitled to be an
Issuing Lender hereunder or to receive any fees accrued on and
after the date such Lender became a Defaulting Lender.
(c) Notwithstanding anything contained herein to the
contrary, no Defaulting Lender shall be entitled to receive any
payments hereunder on account of any Revolving Loans, Notes or
Letters of Credit until all amounts that are due and payable with
respect to any Revolving Loans or Letters of Credit as to which
such Defaulting Lender is not a Lender or a participant shall have
been paid in full.
(d) Nothing in this Section 11.17 shall be deemed to
release any Defaulting Lender from fulfilling its obligations under
this Agreement or otherwise or to prejudice the rights which the
Company or the German Borrower or any other Lender or the Agent may
have against any such Defaulting Lender. Each non-defaulting
Lender, upon funding any amount that would otherwise have been
funded or required to have been by a Defaulting Lender, shall have
a direct claim and right of action against such Defaulting Lender
for any and all such amounts funded by such non-defaulting Lender
and any expenses (including reasonable fees and expenses of counsel
and allocated costs of internal counsel) arising out of or in
connection with any such funding or enforcing its rights under this
Section 11.17.
11.18 Confidentiality. Subject to Section 11.4(d),
Lenders shall hold all non-public information obtained pursuant to
the requirements of this Agreement which has been identified as
such by the Company in accordance with their customary procedures
for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event,
subject to Section 11.4(d), may make disclosure in connection with
the contemplated transfer of all or any part of their Credit
Exposure or participation therein or as required or requested by
any Governmental Authority or representative thereof or pursuant to
legal process; provided that, unless specifically prohibited by
applicable law or court order, each Lender shall endeavor to notify
the Company of any request by any governmental agency or
representative thereof (other than any such request in connection
with an examination of the financial condition of such Lender by
such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information; and provided,
further, that in no event shall any Lender be obligated or required
to return any materials furnished by either the Company or the
German Borrower.
11.19 Judgment Currency. (a) The Borrowers'
obligations hereunder and under the other Loan Documents to make
payments in the Applicable Currency (the "Obligation Currency")
shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any
currency other than the Obligation Currency, except to the extent
that such tender or recovery results in the effective receipt by
the Agent or the respective Lender of the full amount of the
Obligation Currency expressed to be payable to the Agent or such
Lender under this Agreement or the other Loan Documents. If for
the purpose of obtaining or enforcing judgment against either the
Company or the German Borrower, as the case may be, in any court or
in any jurisdiction, it becomes necessary to convert into or from
any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency")
an amount due in the Obligation Currency, the conversion shall be
made at the Deutsche Mark Equivalent or the Dollar Equivalent
thereof, as the case may be, and, in the case of other currencies,
the rate of exchange (as quoted by the Agent or if the Agent does
not quote a rate of exchange on such currency, by a known dealer in
such currency designated by the Agent) determined, in each case, as
of the day immediately preceding the day on which the judgment is
given (such Business Day being hereinafter referred to as the
"Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange
prevailing between the Judgment Currency Conversion Date and the
date of actual payment of the amount due, the Company and the
German Borrower covenant and agree to pay, or cause to be paid,
such additional amounts, if any (but in any event not a lesser
amount) as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount
of Judgment Currency stipulated in the judgment or judicial award
at the rate or exchange prevailing on the Judgment Currency
Conversion Date.
(c) For purposes of determining the Deutsche Mark
Equivalent or the Dollar Equivalent or any other rate of exchange
for this Section, such amounts shall include any premium and costs
payable in connection with the purchase of the Obligation Currency.
IN WITNESS WHEREOF, each of the parties hereto has caused
a counterpart of this Agreement to be duly executed and delivered
as of the date first above written.
CINCINNATI MILACRON INC.
By:
Title:
Notice Address:
Cincinnati Milacron Inc.
4701 Marburg Avenue
Cincinnati, Ohio 45209
Attention: Treasurer
Telephone: (513) 841-8577
Telecopier: (513) 841-7166
CINCINNATI MILACRON KUNSTSTOFF-
MASCHINEN EUROPA GmbH,
By:
Title:
Notice Address:
Attention:
Telephone:
Telecopier:
BANKERS TRUST COMPANY,
individually and as
Agent
By:
Title:
Notice Address and Payment Office:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attention: Edward G. Benedict
Telephone: (212) 250-3708
Telecopier: (212) 250-7026
CREDIT LYONNAIS CHICAGO BRANCH
By:
Title:
Notice Address and Payment Office:
227 West Monroe Street
Chicago, Illinois 60606
Attention: Mary Ann Klemm
Telephone: (312) 641-0500
Telecopier: (312) 641-5027
MIDLAND BANK, plc NEW YORK BRANCH
By:
Title:
Notice Address and Payment Office:
140 Broadway, 4th Floor
New York, New York 10005
Attention: Patricia Apelian
Telephone: (212) 658-2710
Telecopier: (212) 658-2580
PNC BANK, OHIO, N.A.
By:
Title:
Notice Address and Payment Office:
PNC Bank, Ohio, N.A.
PNC Center
P.O. Box 1198
Cincinnati, Ohio 45201
Attention: Richard J. Hendrix
Telephone: (513) 651-8688
Telecopier: (513) 651-8952
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: __________________________
Title: _______________________
Notice Address and Payment Office:
Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, New York 10260
Attention: John Mikolay
Telephone: (212) 648-6988
Telecopier: (212) 648-5022
NATIONSBANK OF NORTH CAROLINA,
N.A.
By:
Title:
Notice Address and Payment Office:
NationsBank of North Carolina,
N.A.
NationsBank Plaza
NC1-002-06-01
Charlotte, North Carolina 28255
Attention: Gary Spivey
Telephone: (704) 386-8382
Telecopier: (704) 386-8694
<PAGE>
NBD BANK, N.A.
By:
Title:
Notice Address and Payment Office:
NBD Bank, N.A.
611 Woodward
Detroit, Michigan 48226
Attention: Gary Wilson
Telephone: (313) 225-1381
Telecopier: (313) 225-1671
SOCIETY NATIONAL BANK
By:
Title:
Notice Address and Payment Office:
Society National Bank
525 Vine at 6th
Cincinnati, Ohio 45202
Attention: Cathie Andress
Telephone: (513) 762-8210
Telecopier: (513) 762-8222
<PAGE>
STAR BANK, N.A.
By:
Title:
Notice Address and Payment Office:
Star Bank
425 Walnut St. Location 8160
Cincinnati, Ohio 45201-1038
Attention: Michael Vea
Telephone: (513) 287-8313
Telecopier: (513) 632-2068
Schedule 2.1
Lenders' Revolving Loan Commitment and Pro Rata Share
Revolving
Loan
Lender Commitment Pro Rata Share
Bankers Trust Company $ 23,076,925 11.5384620%
Credit Lyonnais 23,076,925 11.5384620
Chicago Branch
Midland Bank plc, 23,076,925 11.5384620
New York Branch
Morgan Guaranty Trust 23,076,925 11.5384620
Company of New York
NationsBank of North 23,076,925 11.5384620
Carolina, N.A.
NBD Bank, N.A. 23,076,925 11.5384620
PNC Bank, Ohio, N.A. 23,076,925 11.5384620
Society National Bank 23,076,925 11.5384620
Star Bank, N.A. __15,384,600 _7.692304_
$200,000,000 100%
Exhibit 99.2
Final Draft: 1-31-95
For Release Immediately (February 1, 1995)
News Source Albert Beaupre
(513) 841-7241
MILACRON COMPLETES PURCHASE OF KRUPP'S WIDIA OPERATIONS
CINCINNATI, OHIO, February 1, 1995...Cincinnati Milacron Inc.
(NYSE:CMZ) said today that it has completed the acquisition of
Krupp Widia GmbH from Fried. Krupp AG Hoesch-Krupp. A major
European cutting tool maker, Widia had sales of approximately
$240 million in 1994, primarily in Europe, with about 15% in the
rapidly growing market in India. Widia's 51% ownership of Widia
(India) Ltd., a public company, is included in the purchase.
Widia is one of the world's leading producers of metalcutting
products including carbide inserts and steel insert holders.
Widia is also a leading supplier of carbide die and wear products
and industrial magnets. Its key production facilities and market
position in Germany and other Western European countries give
Milacron a sizeable presence in the European market for
industrial consumable products, complementing the strong position
of Milacron's Valenite cutting tool subsidiary in the U.S.
Milacron said it paid DM 121 million (about US $78 million) in
cash while assuming certain debt and liabilities totalling
approximately DM 33 million (about US $21 million). Included in
the non-cash portion is DM 19 million (about US $12 million) of
debt owed by the Indian subsidiary. Financing was provided by
the company's existing bank group and available cash. More
permanent financing will be structured eventually, Milacron said,
which could include new equity or other alternatives.
"Milacron is now a premier global player in the market for
industrial consumable products," said Daniel J. Meyer, chairman
and chief executive officer. "With Widia, our overall balance
and mix are improved. About 40% of our sales will be industrial
products, and almost half of our revenues will come from outside
the United States."
Meyer noted that industrial consumable products traditionally
have had higher margins, better cash flow and milder cycles than
the company's capital goods businesses. "With Widia, our sales
should top $1.5 billion in 1995," he said. "Further, the
increase in foreign sales provides a factor that is
contercyclical to the ups and downs of our domestic markets."
Widia is expected to contribute solid profits in 1996, Meyer
said, "and, in the meantime, its operating earnings should cover
additional interest costs."
Alan L. Shaffer, Milacron's group vice president of industrial
products, to whom the Widia operations will report, pointed to
the excellent complementary fit with the Valenite operations.
"Widia is a leading European tool maker, while Valenite has a
comparable position in the North American market," he said. "And
Widia is the market leader in India, while Valenite has good
strength in Asia, including Japan."
One example of the close meshing of product lines, Shaffer said,
is tooling for automobile engine manufacturing. "Valenite is
well known for head and block tooling, while Widia is a leader in
tooling for cam and crank shafts."
Krupp Widia GmbH, headquartered in Essen, Germany, has a
worldwide reputation for quality, reliability and performance.
Production facilities are located in Essen and Lichtenau,
Germany; Dreux, France; Vitoria, Spain; Hardenberg, The
Netherlands; and Bangalore, India. Approximately 2,000 are
employed in Europe, with the Indian company employing an
additional 1,500.
Cincinnati Milacron, with sales in 1994 of more than $1 billion,
is a world leader in manufacturing technologies for metalworking
and plastic processing industries. Among its products are
plastics machinery, machine tools, computer controls,
metalcutting tools, metalworking fluids and grinding wheels.
With key manufacturing facilities in both the U.S. and Europe,
the company employs some 12,000 worldwide, including Widia's
workers. Shares are traded on the New York Stock Exchange under
the symbol CMZ.
