UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
____________________
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT: AUGUST 14, 1997
COMMISSION FILE NUMBER: 1-8782
GLEASON CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 16-1224655
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1000 University Avenue, Rochester, New York 14692
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (716) 473-1000
____________________
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Item 2. Acquisition of Assets
On July 31, 1997 the Company purchased all of the general
and limited partnership interests of Hermann Pfauter GmbH & Co.
("Pfauter") from its 21 limited partners (its general partner was
owned by the limited partnership) pursuant to an agreement
between the Sellers and Purchasers dated July 23, 1997.
Pfauter, headquartered in Ludwigsburg, Germany, is a leading
designer and manufacturer of machinery for the manufacture of
cylindrical gears, with subsidiary companies for the assembly of
such machines in the U.S. and Italy. Tooling used in the production
of cylindrical gears is produced by Pfauter-Maag Cutting Tools Limited
Partnership ("PMCT"), located in Loves Park, Illinois, 76.12% of
which (including 100% of its managing general partner) was owned by
Pfauter, and was acquired in the purchase of Pfauter.
The remaining 23.88% of partnership interests of PMCT was
also purchased on July 31, 1997, simultaneously with the purchase
of Pfauter, by a wholly owned subsidiary of the Company from PMCT
management personnel, who held limited partnership interests, and
a limited liability company owned by such personnel, which held
the other general partnership interest.
The purchase price pursuant to both agreements was paid in
cash, with $25,074,575 being paid pursuant to the Pfauter
agreement, and $9,700,000 being paid pursuant to the PMCT
agreement.
As a result of the purchases, the Company acquired all of
the assets and liabilities of Pfauter, its machinery assembly
subsidiary companies, and PMCT, including the assumption of
approximately $56 million of bank debt.
The purchases were financed through a new multi-currency
credit agreement dated as of July 31, 1997 between the Company
and its significant subsidiaries, including Pfauter, its machinery
assembly subsidiary companies, and PMCT, and The Chase Manhattan
Bank and nine other banks, providing for term loans, revolving credit
and standby letters of credit totaling up to $170 million.
The Company intends to use the assets acquired in the
purchases in the production of machinery and tooling of the type
produced by Pfauter, its machinery assembly subsidiary
companies and PMCT.
The Company will account for the acquisition under the
purchase accounting method.
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Item 7. Financial Statements and Exhibits
(a) Financial Statements of Business Acquired
The financial statements required by this item
will be filed by amendment as soon as practicable within 60 days
after the date by which this Current Report on Form 8-K is
required to be filed.
(b) Pro forma Financial Information
The pro forma financial information required by
this item will be filed by amendment as soon as practicable
within 60 days after the date by which this Current Report on
Form 8-K is required to be filed.
(c) Exhibits
(2) Plan of Acquisition
(a) Share Purchase Agreement between the limited
partners of Hermann Pfauter GmbH & Co., as Sellers, and GW
Acquisition Corp., Gleason Maschinenfabrik GmbH and Gleason-Hurth
Maschinen und Werkzeuge GmbH, as Purchasers, dated July 23, 1997.
(b) Agreement dated as of June 30, 1997 between
GW Acquisition Corp., as Purchaser, and the limited and general
partners of Pfauter-Maag Cutting Tools Limited Partnership other
than Hermann Pfauter GmbH & Co. and Pfauter Cutting Tools Inc.
(10) Material Contracts
(10) Credit Agreement dated as of July 31, 1997
among Gleason Corporation, and its affiliates named therein, as
Borrowers, The Chase Manhattan Bank as Administrative Agent, and
The Chase Manhattan Bank, Corestates Bank, N.A., The Bank of Nova
Scotia, First Union National Bank, Marine Midland Bank,
Manufacturers and Traders Trust Company, PNC Bank, N.A.,
Sudwestdeutsche Landesbank, Mellon Bank and Banca Monte Dei
Paschi di Siena, SPA, as Lenders.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
GLEASON CORPORATION
Registrant
DATE: August 14, 1997
John J. Perrotti
John J. Perrotti
Vice President-Finance
(Chief Financial Officer)
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Index To Exhibits
Exhibits
(2)(a) Share Purchase Agreement between
the limited partners of Hermann Pfauter
GmbH & Co.,as Sellers, and GW Acquisition
Corp., Gleason Maschinenfabrik GmbH and
Gleason-Hurth Maschinen und Werkzeuge
GmbH, as Purchasers, dated July 23, 1997.
(2)(b) Agreement dated as of June 30, 1997 between
GW Acquisition Corp., as Purchaser, and the
limited and general partners of Pfauter-Maag
Cutting Tools Limited Partnership other than
Hermann Pfauter GmbH and Co. and Pfauter
Cutting Tools Inc.
(10) Credit Agreement dated as of July 31, 1997
among Gleason Corporation, and its affiliates
named therein, as Borrowers, The Chase
Manhattan Bank as Administrative Agent,
and The Chase Manhattan Bank, Corestates
Bank, N.A., The Bank of Nova Scotia, First
Union National Bank, Marine Midland Bank,
Manufacturers and Traders Trust Company,
PNC Bank, N.A., Sudwestdeutsche Landesbank,
Mellon Bank and Banca Monte Dei Paschi di
Siena, SPA, as Lenders.
English Version
SHARE PURCHASE AGREEMENT
between
(1) Sabine La Due, D-70599 Stuttgart, Birkenpilzstr. 9, represented by
Mr Georg Pfauter by virtue of the notarized power of attorney dated
April 30, 1997 (see Exhibit 1)
(2) Herman Pfauter, 284 Ravenscroft Drive, Goleta/Ca. 93117, USA,
represented by Dr. Werner Wellhofer by virtue of the certified power
of attorney, dated December 06, 1997 (see Exhibit 1 a)
(3) Dorothea Konig, Erzbergerstr. 47, D-70191 Stuttgart represented
by Dr. Werner Wellhofer by virtue of the certified power of attorney,
dated July 11, 1997 (see Exhibit 1 b)
(4) Michaela Evans, 225 Longmeadow Drive, Coppell, Texas 75019, USA
represented by Dr. Werner Wellhofer by virtue of the certified
power of attorney, dated December 18, 1997 (see Exhibit 1 c)
(5) Carl Eric Steinbeck, 5157 Verde Valley Lane # 2016, Dallas, Texas
75240, USA, represented by Dr. Werner Wellhofer by virtue of the
certified power of attorney, dated December 23, 1996 (see Exhibit 1 d)
(6) Birgit Self, 3100 St. Ives Court, Plano, Texas 75075, USA, represented
by Dr. Werner Wellhofer by virtue of the certified power of attorney,
dated December 16, 1996 (see Exhibit 1 e)
(7) John Steinbeck, 5201 Plano Parkway, Plano, Texas 75093, USA represented
by Dr. Werner Wellhofer by virtue of the certified power of attorney,
dated December 23, 1996 (see Exhibit 1 f)
(8) Georg Pfauter, Stresemannstr. 25, D-71634 Ludwigsburg
(9) Dr. Ingeborg Reichelt-Pfauter, Im Kirchle 17, D-70806 Kornwestheim
represented by Prof. Dr. Hans Thummel by virtue of the notarized
power of attorney, dated February 25, 1997 (see Exhibit 2)
(10) Sibylle Reichelt, Im Kirchle 17, D-70806 Kornwestheim represented
by Prof. Dr. Hans Thummel by virtue of the notarized power of attorney,
dated February 26, 1997 (see Exhibit 2 a)
(11) Anna-Lisa Pfauter, Elisa-Seniorenstift, Thouretallee 3/App. 15,
D-71638 Ludwigsburg represented by Mrs Cornelia Pfauter by virtue of
the general power of attorney dated 02.07.1996 (see Exhibit 2 b),
who herself is represented by Prof. Dr. Hans Thummel by virtue of the
notarized power of attorney, dated July 18, 1997 (see Exhibit 2 c)
(12) Cornelia Pfauter, Karl-Theodor-Strasse 97, D-80796 Munchen in her
own name, represented by Prof. Dr. Hans Thummel by virtue of notorized
power of attorney dated July 18, 1997 (see Exibit 3) and as executrix
to the estate of Mr Michael Pfauter, deceased on 17.08.1994, by virtue
of the letters testamentary dated 24.02.1995 (see Exhibit 3 a),
in turn represented by Prof. Dr. Hans Thummel by virtue of power of
attorney dated July 18, 1997 (see Exibit 3 b)
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(13) Robert Pfauter, Holtenauerstr. 73, D-24105 Kiel, represented by
Dr. Dieter Reichelt, Im Kirchle 17, D-70806 Kornwestheim;
by virtue of the notarized power of attorney dated January 3,
1997 (see Exhibit 4)
(14) Susanne Haindl, Beltweg 26, D-80805 Munchen
(15) Christina Baumer, Am Blutenanger 47 b, D-80995 Munchen
(16) Charlotte Wiese, Eugen-Nagele-Str. 25, D-71638 Ludwigsburg
(17) Rosmarie Wiese, Eugen-Nagele-Str. 25, D-71638 Ludwigsburg
(18) Annemarie Doherty, Eugen-Nagele-Str. 25, D-71638 Ludwigsburg
(19) Evamarie Albrecht, Stresemann-Str. 52, D-71634 Ludwigsburg
(20) Liselotte Weber, Eugen-Nagele-Str. 17, D-71638 Ludwigsburg
(21) Rose-Marie Gibbons, 16 Horns End Place, Cheney Street Middlesex
HA5 2TL GB-Eastcote, Pinner
(hereinafter, individually or collectively referred to as SELLERS)
and
(1) GW Acquisition Corp.
1209 Orange Street, Willmington, Delaware USA
represented by David Burns, who is entitled to
represent GW Acquisition Corp. alone
(2) Gleason Maschinenfabrik GmbH with its seat in Munich, HRB 116127
represented by its managing director John Kodweis, who is entitled
to represent Gleason Maschinenfabrik GmbH alone
(3) Gleason-Hurth Maschinen und Werkzeuge GmbH with its seat in Munich,
HRB 110558, represented by its managing director John Kodweis, who
is entitled to represent Gleason-Hurth Maschinen und Werkzeuge GmbH
alone
(hereinafter, individually or collectively referred to as PURCHASERS)
-------------------------
dated 23 July 1997
-------------------------
regarding the sale and purchase of 100 % (hundred percent) of the
limited partnership capital of Hermann Pfauter GmbH & Co.
(hereinafter referred to as the AGREEMENT)
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Recitals
(A) Hermann Pfauter GmbH & Co., a limited partnership
organized under the laws of Germany (hereinafter
referred to as the COMPANY) is registered with the
Trade Register at the Ludwigsburg Municipal Court
under number HRA 505. The general partner of the
COMPANY, Hermann Pfauter Verwaltungsgesellschaft
mit beschrankter Haftung, a limited liability
corporation organized under the laws of Germany
(hereinafter referred to as the GMBH), is
registered with the Trade Register at the
Ludwigsburg Municipal Court under the number HRB
244.
(B) The SELLERS and the GMBH respectively participate
as follows in the fixed capital of the COMPANY in
the total amount of DM 20,065,500.--:
(1) As general partner the GMBH with a contribution of DM 65,500.-
(2) As limited partners the SELLERS with the following
registered limited partnership capital contributions (i.e.
sum by which liability is limited as registered in
the Trade Register "Kommanditeinlagen"):
Sabine La Due, DM 193,843.--
Herman Pfauter DM 1,789,733.--
Dorothea Konig DM 699,858.--
Michaela Evans DM 193,452.--
Carl Eric Steinbeck DM 197,346.--
Birgit Self DM 193,453.--
John Steinbeck DM 197,347.--
Georg Pfauter DM 797,165.--
Dr. Ingeborg Reichelt-
Pfauter DM 3,106,973.--
Sibylle Reichelt DM 1,174,686.--
Anna-Lisa Pfauter DM 205,060.--
Cornelia Pfauter DM 2,038,299.--
in her own name and
as executrix to the
estate of Mr Michael
Pfauter, deceased on
17.08.1994
Robert Pfauter DM 2,038,299.--
Susanne Haindl DM 205,060.--
Christina Baumer DM 2,083,984.--
Charlotte Wiese DM 1,946,206.--
Rosmarie Wiese DM 486,552.--
Annemarie Doherty DM 486,552.--
Evamarie Albrecht DM 486,552.--
Liselotte Weber DM 486,552.--
Rose-Marie Gibbons DM 993,028.--
DM 20,000,000.-- DM 20,000,000.--
total amount DM 20,065,500.--
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(3) It is understood that the SELLERS number (17) through number
(20) also act as sub-participants according to sub-participation
agreements with the SELLER number(16).
(C) The registered share capital of the GMBH amounts to DM 65,500.--.
The share capital of the GMBH is entirely held by the COMPANY.
(D) The COMPANY has the following affiliates and participations:
GMBH
Pfauter Italia S.p.A., Bologna, Italy
Pfauter S.R.L., Bologna, Italy
Mecup / Pfauter-Maag Srl., Bologna, Italy (hereinafter collectively
referred to as PFAUTER ITALY)
Pfauter France S.A.R.L., Le Vesinet, France
American Pfauter Management Inc., Rockford, Illinois USA
American Pfauter L.P. ("APL"), Rockford, Illinois USA
Pfauter / Maag Cutting Tools L.P. ("PMCT"), Rockford, Illinois USA
Pfauter Cutting Tools Inc., Rockford, Illinois USA ("PCTI")
German Machine Tool Service-Center Co. Ltd., Tianjin, China
These affiliates and participations are in the following collectively
or generally referred to as the "AFFILIATES". The capitalization and
ownership of these AFFILIATES are set forth in Schedule D.
The AFFILIATES are duly organized, validly existing and in good
standing under the laws of their respective jurisdictions.
Schedule D contains a list of each jurisdiction in which the
COMPANY and each of the AFFILIATES are licensed or qualified to
conduct business. Neither the ownership of the assets nor the
conduct of the business of the COMPANY and/or the AFFILIATES
requires them to be licensed or qualified in any other jurisdiction
in which the COMPANY and/or the AFFILIATES conduct business or
own any assets.
Unless specified in Schedule D neither the COMPANY nor any of the
AFFILIATES own any shares in any corporation or any interest in any
other partnership or other entity.
The COMPANY is not licensed, registered or qualified to conduct business
in any jurisdiction in the United States. The nature of its activities
does not require that it be so licensed or registered or qualified.
(E) Some of the SELLERS have granted sub-participations in their shares to
other individuals. These are stated in Schedule E and will be
terminated on or before the EFFECTIVE DATE with no unsatisfied rights
provided that the PURCHASERS have complied with their payment
obligations pursuant to sections 2.2. and 2.3.
(F) The parties hereto desire that pursuant to the terms and conditions of
this AGREEMENT the limited partners' shares held by the SELLERS in the
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COMPANY (in the following collectively or generally referred to as the
SHARES) shall be sold and assigned to the PURCHASERS.
Now, therefore, the parties agree as follows:
1. Sale and Assignment of SHARES
1.1 The SELLERS number (2),(3),(8) to (13) and (15) to (21) hereby sell
and assign in accordance with the German law of obligations ("mit
schuldrechtlicher Wirkung") with effect from the EFFECTIVE DATE
(as defined in section 6.1 hereof) their SHARES to the PURCHASER
number (1). It is hereby understood, however, that the assignment
within the meaning of the real transfer of the shares ("mit dinglicher
Wirkung") shall only become effective upon the PURCHASER number (1)
being registered in the Ludwigsburg Trade Register as new limited
partner of the COMPANY by way of special legal succession.
PURCHASER number (1) hereby accepts this sale and assignment.
1.2 The SELLERS number (4) to (7) and (14) hereby sell and assign in
accordance with the German law of obligations ("mit schuldrechtlicher
Wirkung") with effect from the EFFECTIVE DATE their SHARES to the
PURCHASER number (2). It is hereby understood, however, that the
assignment within the meaning of the real transfer of the shares
("mit dinglicher Wirkung") shall only become effective upon the
PURCHASER number (2) being registered in the Ludwigsburg Trade
Register as new limited partner of the COMPANY by way of special
legal succession.
PURCHASER number (2) hereby accepts this sale and assignment.
1.3 The SELLER number (1) hereby sells and assigns in accordance with the
German law of obligations ("mit schuldrechtlicher Wirkung") with effect
from the EFFECTIVE DATE its SHARE to the PURCHASER number (3). It is
hereby understood, however, that the assignment within the meaning
of the real transfer of the shares ("mit dinglicher Wirkung") shall
only become effective upon the PURCHASER number (3) being registered
in the Ludwigsburg Trade Register as new limited partner of the
COMPANY by way of special legal succession.
PURCHASER number (3) hereby accepts this sale and assignment.
1.4 The sales and assignments pursuant to sections 1.1, 1.2 and 1.3.
hereof shall include as of the EFFECTIVE DATE all rights and
obligations arising from the SHARES including without limitation
the right to receive profits and the obligation to assume losses
as well as all credit and debit balances on the SELLERS' individual
accounts with the COMPANY. The assignments include all these rights
in the widest sense, insofar as nothing to the contrary is stipulated
elsewhere in this AGREEMENT. It is hereby understood, however,
that the PURCHASERS do not assume any personal obligations of the
SELLERS vis-a-vis third parties, including but not limited to tax
obligations.
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1.5 By waiving the formalities and time-limits for the convening and
holding of a partners' meeting and the adoption of a resolution by
the partners, the SELLERS hereby consent to the abovementioned
assignments. The GMBH has given its relevant consent separately,
which the SELLERS hereby warrant.
2. Purchase Price / Payment
2.1 The total purchase price payable by the PURCHASERS for the SHARES
to the SELLERS shall amount to US $ 26,300,000.-- (in letters:
twenty-six million three hundred thousand US Dollars) less the
following payments, which have been made by the COMPANY or any
of the AFFILIATES, or which any of them is obligated to pay,
(i) $300,000 to David Goodfellow; (ii) US $ 198,000 to Miriam Schaal;
and (iii) the aggregate amount paid by the COMPANY or any AFFILIATE
of fees of attorneys, accountants and other consultants of SELLERS
in connection with the transactions contemplated by this AGREEMENT
which will not include however accountants' fees for the customary
auditing and tax services including but not limited to those
relating to the financial statements of the COMPANY and the
AFFILIATES as of December 31, 1996 and the interim financial
statements of the COMPANY and of the AFFILIATES as of the EFFECTIVE
DATE and furthermore will not include fees for services requested
by PURCHASERS or PURCHASERS' accountants and rendered by the
COMPANY'S and/or the AFFILIATES' accountants and consultants and
(iv) payments after 1 July 1996 to or for the benefit of the SELLERS
or to or for the benefit of persons affiliated to the SELLERS which
are not covered by this AGREEMENT, the Partnership Agreement of the
COMPANY and/or the AFFILIATES, the resolutions of Shareholder
Meetings or the Advisory Board as set forth in Schedule 6.2 and/or
by other contracts, especially pension, employment or consultancy
agreements between the COMPANY and the SELLERS or persons affiliated
to the SELLERS as set forth in the Schedules to this AGREEMENT.
The PURCHASERS shall not be entitled to seek payments from the SELLERS
for the amounts which have reduced the purchase price according to
(i) through (iv) above and will hold the SELLERS harmless from any
claims of the COMPANY and/or the AFFILIATES therefore.
The total purchase price is to be paid as follows:
(a) The purchase price payable by PURCHASER number (1)
for the SHARES stipulated in section 1.1 hereof shall
be 94.10% of the purchase price as stipulated in section
2.1. above. The individual allocation of this partial
purchase price to the SELLERS pursuant to section 1.1
hereof shall be agreed upon separately by these SELLERS
without the participation of PURCHASER number (1).
(b) The purchase price payable by PURCHASER number (2) for
the SHARES stipulated in section 1.2 hereof shall be
4.93% of the purchase price as stipulated in section
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2.1. above. The individual allocation of this partial
purchase price to the SELLERS pursuant to section 1.2
hereof shall be agreed upon separately by these SELLERS
without the participation of PURCHASER number (2).
(c) The purchase price payable by PURCHASER number (3) for the
SHARE stipulated in section 1.3 hereof shall be 0.97% of
the purchase price as stipulated in section 2.1. above. The
individual allocation of this partial purchase price to the
SELLERS shall be agreed upon separately by the SELLERS without
the participation of PURCHASER number (3).
2.2 The purchase price less the HOLDBACK pursuant to section 2.3 hereof
is payable by way of checks guaranteed by Chase Manhattan Bank to be
delivered on the EFFECTIVE DATE. These bank guaranteed checks shall
be payable to and delivered to the SELLERS' representatives designated
in section 11.1 of this AGREEMENT (SELLERS' REPRESENTATIVES). With the
delivery of these checks guaranteed by Chase Manhattan Bank the
PURCHASERS shall have complied with all their obligations with respect
to the payment of the purchase price less the HOLDBACK.
2.3 As security for the obligations of the SELLERS to provide indemnifi-
cation pursuant to section 3 of this AGREEMENT a partial amount of
US $2,000,000 (in letters: two million US Dollars)(HOLDBACK) of the
total purchase price shall be paid by the PURCHASERS in proportion
to the SHARES acquired by each PURCHASER into an escrow account with
the escrow agent (ESCROW AGENT) named in the escrow agreement set forth
in Exhibit I (ESCROW AGREEMENT). The payment shall be made by way
of delivery of checks guaranteed by Chase Manhattan Bank on the
EFFECTIVE DATE to the ESCROW AGENT. The ESCROW AGENT shall administer
this escrow account and make disbursements therefrom in accordance
with the provisions of the ESCROW AGREEMENT, and SELLERS' REPRESEN-
TATIVES and their duly authorized successors pursuant to the ESCROW
AGREEMENT, are hereby authorized by the SELLERS to execute the ESCROW
AGREEMENT on their behalf and to act on their behalf as specified in
the ESCROW AGREEMENT.
The credit balance on the escrow account after deduction of any payments
to which the PURCHASERS are entitled pursuant to section 3 hereof shall
be paid out to the SELLERS (A) 2 (two) years after the EFFECTIVE DATE
or (B) 2 (two) months after PURCHASERS' last notice of claim prior to
the expiration of such two year-period, whichever is later, except to
the extent that (i) amounts have been paid to PURCHASERS or are being
held subject to determination of the amount, if any, to which
PURCHASERS may be entitled, pursuant to agreement of PURCHASERS and
SELLERS' REPRESENTATIVES or a court order or arbitral decision, with
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respect to any claims of the PURCHASERS pursuant to section 3 hereof
or (ii) arbitration is pending between PURCHASERS and SELLERS'
REPRESENTATIVES with respect to any such claims, or (iii) PURCHASERS
and SELLERS' REPRESENTATIVES reach agreement on an extension of such
period. If the PURCHASERS file a petition for arbitration pursuant to
section 11.7. hereof prior to the expiration of such period in order to
preserve their contractual rights hereunder the SELLERS may not invoke
that such a petition is premature, even though the fact or extent of
any breach of warranty or the fact or amount of any damage sustained
by the PURCHASERS has not yet been determined provided that such facts
existed on or before the expiration of such period.
3. Warranties of the SELLERS / Remedies of the PURCHASERS
3.1 Vis-a-vis the PURCHASERS the SELLERS warrant within the meaning of
section 459 subsection 2 of the German Civil Code ("BGB") the following
with effect of the date of this AGREEMENT and the EFFECTIVE DATE. All
references to Schedules in this section 3 are to the Schedules to the
Disclosure Letter dated the date of this AGREEMENT and delivered to the
PURCHASERS by the SELLERS simultaneously with the execution of this
AGREEMENT. On the EFFECTIVE DATE the SELLERS shall provide PURCHASERS
with a further Disclosure Letter confirming that the SCHEDULES
referred to in the aforementioned Disclosure Letter are still valid
as of the EFFECTIVE DATE or if this is not the case set forth therein
any changes and/or deviations therefrom that have occurred since the
date of this AGREEMENT. It is understood, however, that the SELLERS
shall cause the COMPANY and/or the AFFILIATES not to enter into any
transactions outside the ordinary course of business during the period
between the date of this AGREEMENT and the EFFECTIVE DATE without prior
written consent of the PURCHASERS.
3.1.1 The statements in the recitals and in section 1.5 with respect to
the COMPANY, the GMBH and the AFFILIATES are correct. Complete and
correct copies of the COMPANY's Limited Partnership Agreement and the
GMBH's Articles of Association as well as the Articles of Association
and Limited Partnership Agreements of APL and PMCT as presently in
force are set forth in Schedule 3.1.1.
3.1.2 The SELLERS are owners of the SHARES. These are free of encumbrances
of any third party rights and in particular on the EFFECTIVE DATE free
of sub-participation rights as set forth in detail in recital (E) above.
None of the SELLERS is restricted by marital agreements in the
execution of and the fulfilment of the obligations resulting from
this AGREEMENT. The spouses of the SELLERS have so far as required
given their consent in accordance with the provisions of section 1365
of the German Civil Code to the sale and assignment of the SHARES.
The SHARES do not represent all or substantially all of the assets
of any of the SELLERS within the meaning of section 419 of the German
Civil Code. SELLER (13) however cannot provide this warrenty.
Therefore SELLER (12) shall hold harmless the PURCHASERS from any
obligations the PURCHASERS may have under Section 419 German Civil Code.
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There are no other shares or any other rights in the COMPANY, the
GMBH or the AFFILIATES or the SHARES than those specified herein in
this AGREEMENT and its Schedules with the exception of a silent
participation in the COMPANY by Dr. Walter Eggert, the terms of
which are set forth in Schedule 3.1.2.
3.1.3 The SELLERS' power of disposal of the SHARES is not limited.
3.1.4 The share capital of the GMBH has been fully paid in and has not
been repaid in whole or in part in any way. The limited partnership
capital contributions of the SELLERS have also been fully paid in
and, apart from the exceptions set forth in Schedule 3.1.4, have
not been repaid in whole or in part.
3.1.5 The financial statements as of 28 December 1996 of PMCT and the
financial statements as of 31 December 1996 of the COMPANY and the
other AFFILIATES set forth in Schedule 3.1.5 fairly present the
financial position and the results of operations for the COMPANY
and the AFFILIATES with respect to the relevant dates and periods
covered by these financial statements with the exception of those
liabilities of the COMPANY that are set forth in Schedule 3.1.5.a.
These financial statements were prepared on the basis of the
books and records of the COMPANY and the AFFILIATES, respectively,
in accordance with the principles of correct accounting applied
for the COMPANY and, as far as the AFFILIATES are concerned in
accordance with the accounting principles generally accepted in
those countries where the registered offices of the AFFILIATES
are located.
3.1.6 With the exception of the events relating to the COMPANY and the
AFFILIATES set forth in Schedule 3.1.6, none of the following
events has occurred with respect to PMCT after 28 December 1996
and with respect to the COMPANY and the other AFFILIATES after
31 December 1996, unless especially permitted in this AGREEMENT:
(i) payments of dividends or withdrawals ("Entnahmen") or other
transfer of assets in any kind to the SELLERS or other
shareholders of the AFFILIATES;
(ii) transactions outside the ordinary course of business;
(iii) any material changes in the financial conditions, assets,
liabilities or business operations; and to the best knowledge
and belief of the SELLERS no such material changes are likely
to occur;
(iv) substantial amendments, supplements or terminations of material
agreements to which the COMPANY and the AFFILIATES are a party;
(v) the grant of any increase in the compensation of officers or
employees(including any such increase pursuant to any bonus,
pension, profit sharing or other plan) other than customary
increases on a periodic basis or required by agreement or
understanding in the ordinary course of business and in
accordance with past practice.
<PAGE>
3.1.7 With the exception of the normal retentions of title and the
security rights of banks set forth in Schedule 3.1.7, the COMPANY
and the AFFILIATES have good and marketable title to all of their
assets listed in the financial statements pursuant to section 3.1.5
or acquired since the relevant dates of these financial statements
(except assets sold or otherwise disposed of subsequently to such
dates in the ordinary course of business), free and clear of any
rights of third parties.
3.1.8 Schedule 3.1.8 lists all real property owned by the COMPANY, APL
and PMCT and all real property and buildings leased by them. With
the exception of the real property situated in Daimler Street 3/5 in
Ludwigsburg, all real properties and the structures thereon are in
satisfactory condition, consistent with their present use. None of
these plants and structures, or use thereof contravenes or violates
any laws, decrees or orders by a governmental authority in any
material respect.
3.1.9 So far as not otherwise set forth in Schedule 3.1.9
(i) neither the COMPANY nor any of the AFFILIATES are involved in
any court or arbitration proceedings either as plaintiff
or as defendant or any other type of intervening party;
(ii) with the exception of the alleged patent infringement set forth
in Schedule 3.1.20 no circumstances are known from which can be
inferred that the COMPANY or any of the AFFILIATES are threat-
ened with orders, judgments or decrees of any court or other
tribunal ordering or requiring the COMPANY or any of the
AFFILIATES to take any action of any kind with respect to its
business operations or assets.
3.1.10 Within the time and manner prescribed by law or, if it was not the
case, without negative legal consequences, the COMPANY and the
AFFILIATES have filed all federal, state or local tax returns and/or
tax returns of foreign countries, provinces and other governing
bodies having jurisdiction to levy taxes upon them including, without
limitation, withholding tax returns; Schedule 3.1.10 lists for each
of the COMPANY and the AFFILIATES the last tax return for each tax
filed. Copies of these documents have been submitted to the
PURCHASERS prior to the signature of this AGREEMENT. For such
period of time up to the EFFECTIVE DATE for which taxes will become
due, such taxes (i) have been paid in full, (ii) are provided for
in the financial statements of the COMPANY and the AFFILIATES
pursuant to section 3.1.5 or (iii) will be pursuant to the interim
financial statements as of the EFFECTIVE DATE prepared on a
consistent basis unless anything to the contrary is stated in
Schedule 3.1.10.
The COMPANY and APL and PMCT have each been determined to be a
partnership for United States tax purposes and have been consistently
treated as such for all matters of United States taxation since the
time such determination was relevant under United States tax law.
<PAGE>
No audits of federal, state, local or foreign tax returns of the
COMPANY or any of the AFFILIATES are currently in progress, nor is
any audit announced. Schedule 3.1.10 indicates for both the COMPANY
and the AFFILIATES the periods for which tax audits have been carried
out by the respective fiscal authorities and the taxes covered by
such audits.
No taxes other than those paid (i) according to the tax returns
described or listed pursuant to this section 3.1.10 or (ii) provided
for in the financial statements of the COMPANY and the AFFILIATES
pursuant to section 3.1.5 or pursuant to the interim financial
statements as of the EFFECTIVE DATE for the respective period
or (iii) set forth in Schedule 3.1.10 shall be payable by the
COMPANY or the AFFILIATES for any periods prior to the EFFECTIVE DATE.
3.1.11 To SELLERS' best knowledge, the COMPANY and the AFFILIATES are not
violating any laws and regulations applicable to the conduct of their
business, and they are in possession of all official permits material
to the conduct of their business as presently operated.
3.1.12 To SELLERS' best knowledge, the COMPANY, APL and PMCT are insured
against all material risks customary for the business pursuant to
the insurance policies set forth in Schedule 3.1.12 and none of the
insurances will terminate upon the transfer of the SHARES to the
PURCHASERS.
3.1.13 Schedule 3.1.13 contains a complete list of all employees and managing
directors of the COMPANY and the AFFILIATES including their position,
salary, termination period, entrance date and other particularities.
Schedule 3.1.13 further contains a complete list of all shop
agreements ("Betriebsvereinbarungen"), collective bargaining
agreements ("Tarifvertrage") and comparable rules and regulations
applicable to the COMPANY and the AFFILIATES, including without
limitation "employee benefit plans" as defined in Section 3 (3) of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA") with respect to the AFFILIATES located in the United
States, and all contributions required by law for such benefit
plans have been timely made, and there are no funding deficiencies
for current benefit plans or any liabilities for plans that have
been terminated or otherwise wound up. There have been no violations
of ERISA reporting requirements and nothing has occurred with
respect to the operation of any AFFILIATE United States plan that
would cause the loss of qualification or the imposition of any penalty,
tax, or other liability.
Schedule 3.1.13 further includes a complete list of all pension claims
("Pensionsverpflichtungen und Anwartschaften") related to the employees
and managing director of the COMPANY and the AFFILIATES, and Schedule
3.1.13.a separately sets forth a complete list of all pension claims
of any SELLERS or former limited partners and other persons related to
SELLERS or former limited partners as well as the consultancy agreement
with Herman Pfauter, dated October 10, 1984 (see Schedule 3.1.13 b),
including the terms and amounts of each such claim.
<PAGE>
Except as set forth in Schedule 3.1.13
(i) no unfair labour practice complaint is pending against the
COMPANY or any of the AFFILIATES before any governmental
agency or other judicial or administrative forum, and no
labour strike or other labour trouble affecting the COMPANY
or the AFFILIATES is pending;
(ii) no organisation or representation question ("Fragen
hinsichtlich der Zusammensetzung des Betriebsrats")is
pending in respect of any employees of the COMPANY or the
AFFILIATES; and
(iii) there is no shop agreement, collective bargaining agreement
or similar contract or arrangement with regard to pension
rights or profit or turnover participation of employees or
similar benefits.
3.1.14 Except as set forth in Schedule 3.1.14 the following is true for the
COMPANY, APL, PMCT and PFAUTER ITALY for all periods of time prior
to the EFFECTIVE DATE:
(i) no releases of environmentally hazardous substances have
occurred except pursuant to an environmental permit or
otherwise authorised by applicable environmental laws or
regulations;
(ii) no measures have to be taken in order to comply with obli-
gations under environmental aspects stipulated by laws,
decrees or orders by the competent governmental authorities
nor have any such measures not been fully performed and
completed;
(iii) there are no pending or threatened claims relating to environ-
mental aspects and, to the best knowledge of the SELLERS,
there are also no facts or circumstances which reasonably
could be expected to form the basis of one or more of such
claims;
(iv) no underground storage tanks (USTs) are currently located at
any of the premises, and all prior USTs were properly
removed, and any contaminated soil or ground water properly
remediated in accordance with all applicable environmental
laws, decrees and orders of governmental authorities;
(v) no asbestos, radon, PCBs or equipment or material containing
asbestos, radon or PCBs that are required under current law
to be removed or remediated is currently located at any of
the premises;
(vi) There are no environmental conditions at any of the premises
or any other facts, circumstances or conditions which
reasonably could be expected to substantially restrict
<PAGE>
or prevent the ownership, occupancy, use or transferability
of any of the premises within present use.
(vii) all of the premises have been operated in compliance with
all applicable environmental laws, decrees and orders by
governmental authorities;
(viii) all environmental permits required for the operation of the
premises have been obtained, are in effect, are being complied
with in all respects, upon their present terms with no
modifications or required approvals from governmental
authorities.
3.1.15 Schedule 3.1.15 lists the names and addresses of every bank and
other financial institution in which the COMPANY, APL and PMCT
maintain an account (whether a check, savings or other account),
lock box or safe deposit box, and the account numbers and names
of persons having signing authority or other access thereto.
3.1.16 To SELLERS' best knowledge the fixed assets of the COMPANY, APL
and PMCT are in satisfactory operating condition subject to
ordinary wear and tear, with the exception of the buildings on
the real property situated in Daimler Street 3/5 in Ludwigsburg.
3.1.17 To SELLERS' best knowledge Schedule 3.1.17 contains a list of the
ten largest customers of the COMPANY as well as of APL and PMCT.
To SELLERS' best knowledge none of such customers has given notice
terminating, cancelling or threatening to terminate or cancel any
contract or relationship with the COMPANY or the named AFFILIATES,
and the SELLERS are not aware of any material deterioration of any
such relationship. Reference is made to the termination of the
exclusive dealer agreement with the firm Kanzaki with effect
from 31.12.1996.
3.1.18 Except as set forth in Schedule 3.1.18, to SELLERS' best knowledge
none of the COMPANY's or AFFILIATES' principal suppliers has for
the past two fiscal years given notice terminating, cancelling or
threatening to terminate or cancel any contract or relationship
with the COMPANY or the named AFFILIATES; and the SELLERS are not
aware of any material deterioration of any such relationship.
3.1.19 Except as set forth Schedule 3.1.19 no product liability claims
are pending or to SELLERS' best knowledge threatened to be initiated
against the COMPANY, APL, PMCT or PFAUTER ITALY.
3.1.20 The COMPANY, APL and PMCT are owners or licensees of all intellectual
property rights including intellectual property rights set forth in
Schedule 3.1.20 and of the know-how required to conduct their
business. Except as set forth in Schedule 3.1.20, no proceedings
because of infringement of rights are pending or threatened to be
initiated. Schedule 3.1.20 lists all patents, patent applications,
trademarks and licenses of any intellectual property owned or
<PAGE>
licensed by or to the COMPANY, APL or PMCT except of ordinary hard
and software standard licences.
3.1.21 To SELLERS' best knowledge, except as set forth in Schedule 3.1.21
all contracts or agreements to which the COMPANY, APL or PMCT
are a party have been performed by the COMPANY, APL or PMCT pursuant
to the respective contractual terms and conditions, unless the
non-performance of obligations was justified and with respect to
none of the contracts or agreements any contractual violations,
non-performances or late performances have occurred or have been
announced or are reasonably to be expected on the part of the
COMPANY, APL or PMCT or on the part of the respective contract
partner.
Except as set forth in Schedule 3.1.21 or any other provision of
or Schedule to this AGREEMENT, neither the COMPANY nor the
AFFILIATES are party to any agreement, contract, lease or licence
(i) which involves payment by it or them subsequent to the date
of this AGREEMENT or the EFFECTIVE DATE of more than US
$200,000 (in letters two hundred thousand US Dollars)in any
12-month period; or
(ii) which has a remaining term of more than 12 (twelve) months
and cannot on or any time after the first anniversary of the
EFFECTIVE DATE be terminated by it on 90 (ninety) or fewer
days notice without material penalty to it; or
(iii) relating to the lease of any material personal property; or
(iv) restricting their ability to engage in any material line of
business.
3.1.22 Schedule 3.1.22 lists all loans, loan engagements, credit and
overdraft facilities, promissory notes or other evidence of
indebtedness relating to the borrowing or lending of money,
guarantees of indebtedness or other obligations of third parties,
mortgages, pledges, grants of security interest in or pledges
of assets, derivative transactions or securities of any kind
to which the COMPANY or any of the AFFILIATES is a party including
any amount outstanding and owed by the COMPANY and/or any of the
AFFILIATES.
3.1.23 Neither the COMPANY nor any of the AFFILIATES has any material
liabilities or obligations which are not reflected in the
financial statements pursuant to section 3.1.5 hereof or a
Schedule except liabilities or obligations incurred in the ordinary
course of business after the relevant date of those financial
statements disclosure of which are not required by section 3.
3.1.24 To SELLERS' best knowledge with regard to all accounts receivable
reflected in the financial statements of the COMPANY, APL and
PMCT pursuant to section 3.1.5 of this AGREEMENT and those which
have arisen in the ordinary course of business of the COMPANY, APL
and PMCT since the relevant date of the financial statements there
<PAGE>
are no reasons for possible loss of any claims in excess of the
usual bad debt reserve.
3.1.25 The value at which the inventory of the COMPANY, APL and PMCT is
shown in the financial statements pursuant to section 3.1.5 reflects
the inventory valuation policy utilized by the COMPANY, APL and PMCT
and is in accordance with the principles of correct accounting as
consistently applied.
The COMPANY, APL or PMCT do not hold any items of inventory on
consignment except as set forth in Schedule 3.1.25.
3.1.26 The SELLERS have disclosed any information which they must consider
as being relevant for the decision of the PURCHASERS to enter into
this AGREEMENT at all or at the terms and conditions provided for
herein.
3.1.27 Whenever the term "best knowledge" is used in connection with any
of the SELLERS' foregoing warranties in this section 3.1 such
term shall not be limited to the knowledge of the SELLERS of certain
circumstances relating to a specific warranty but shall include
the knowledge of the GMBH the COMPANY and, where applicable, the
AFFILIATES, as well as that of their managing directors and senior
executives.
3.1.28 With the exception of the representations and warranties mentioned
in sections 3.1.1 through 3.1.27 above the SELLERS give no further
representations and warranties.
3.2 With regard to the PURCHASERS' claims in case of breach of warranties
by the SELLERS the following shall apply:
3.2.1 If any of the SELLERS' warranties in section 3.1 hereof is totally
or partially incorrect the PURCHASERS shall promptly upon becoming
aware thereof notify the SELLERS' REPRESENTATIVES of such incorrect-
ness and request to be placed in the position that they would have
been in, had the warranty been correct. If, after a period of 6
(six) weeks after receipt of such notification the SELLERS have not
done so, they shall be jointly and severally liable vis-a-vis the
PURCHASERS for any damages incurred by the PURCHASERS, the COMPANY
or any of the AFFILIATES, as a result of such total or partial
incorrectness. The PURCHASERS shall be entitled to be reimbursed
from the HOLDBACK by the amount of and restricted to damages
resulting from such incorrectness. However the PURCHASERS are not
entitled to be reimbursed from the HOLDBACK to the extent the
PURCHASERS, for the purpose of preserving customer relationships,
intentionally fail to make a good faith reasonable effort to resolve
claims vis-a-vis third parties, the fulfillment of which would
reasonably be expected to eliminate or reduce warranty claims against
the SELLERS; provided, however, in no event shall good faith
reasonable efforts require PURCHASERS to threaten or commence
litigation against a third party. However PURCHASERS' failure to
litigate will not limit the right of SELLERS in an arbitration
proceeding pursuant to section 3.2.5. to attempt to establish that
the claim was a valid one. The above claims of the PURCHASERS do
<PAGE>
not require fault on the part of the SELLERS. Any claims by the
PURCHASERS for incorrect warranties or for defects ("Fehler")
other than those provided in section 3 hereof and the ESCROW
AGREEMENT shall be excluded.
3.2.2 The PURCHASERS shall only be entitled to indemnification pursuant
to section 3.2.1 hereof if the total damages suffered or incurred
by the PURCHASERS exceed US $ 300,000.00 (in letters: three hundred
thousand US Dollars), and shall in that event be entitled to
indemnification for all such damages, limited however to section
3.2.3.
3.2.3 The aggregate amount for which the PURCHASERS will be entitled to
indemnification for damages suffered or incurred as a result of
breaches of warranties pursuant to section 3.2.1 hereof shall not
exceed the amount of US $ 2,000,000.00 (in letters: two million US
Dollars), i.e. the total amount of the HOLDBACK.
3.2.4 The limitations of sections 3.2.1 through 3.2.3 above are not
applicable to incorrectnesses regarding the ownership of the
SHARES and the shares in the AFFILIATES as shown in Schedule D.
Insofar, general German Law shall apply.
Furthermore, sections 3.2.1 through 3.2.3 above shall not apply
to withdrawals made by any of the SELLERS contrary to the provisions
in sections 3.1.6 (i) and/or 6.2. Such inadmissible withdrawals
shall be fully repaid by the respective SELLER(S) to the COMPANY
and/or the AFFILIATE(S) in question. Any further claims by the
PURCHASERS with regard to such inadmissible withdrawals shall be
excluded and the PURCHASERS shall hold the SELLERS harmless from
any such further claims by the COMPANY and/or the AFFILIATES.
3.2.5 Any claims of the PURCHASERS based on incorrect warranties, (i) the
validity of which has not been acknowledged by SELLERS'REPRESENTATIVES
or (ii) which have not been asserted within a period of either (A) 2
(two) years after the EFFECTIVE DATE or (B) 2 (two) months'after
PURCHASERS' last notice of claim prior to the expiration of such
2-year period, whichever is later, by initiating arbitration
proceedings pursuant to section 11.7 hereof, shall be excluded.
3.3 SELLERS hereby release, with effect from the EFFECTIVE DATE any
management personnel of the COMPANY or any of the AFFILIATES who
are retained as management personnel by any of them or the PURCHASERS
following the EFFECTIVE DATE from any claims they, or any of them may
have against such management personnel, except for intentional
misbehaviour of such management personnel. The SELLERS however
warrant with effect to the EFFECTIVE DATE that they have no
knowledge of such intentional misbehaviour.
4. Warranties and Obligations of the PURCHASERS / Remedies of
the SELLERS
<PAGE>
4.1 The PURCHASERS warrant to the SELLERS within the meaning of section
459 subsection 2 of the German Civil Code as follows:
4.1.1 Each of the PURCHASERS is organized and validly existing under the
laws of the country or state of its respective registered offices.
The PURCHASERS and their representatives have all the requisite power
and authority to enter into this AGREEMENT.
4.1.2 None of the PURCHASERS is a party to, subject to or bound by any
agreement or judgment or decree of any court or governmental authority
which would prevent the execution or performance of this AGREEMENT by
the PURCHASERS or the acceptance of the sale and assignment of
the SHARES pursuant to the terms of this AGREEMENT.
4.1.3 With the exception of the representations and warranties mentioned
in sections 4.1.1, 4.1.2 above and 4.3.4 below the PURCHASERS give
no further representations and warranties.
4.2 If any of the PURCHASERS' warranties in section 4.1 hereof is totally
or partially incorrect the SELLERS shall promptly notify the
PURCHASERS of such incorrectness and request from the PURCHASERS
to be placed in the position that they would have been in, had the
warranty been correct. If after a period of 6 (six) weeks after
receipt at such notification the PURCHASERS have not done so, they
shall be jointly and severally liable for any damages incurred by
the SELLERS as a result of such total or partial incorrectness,
subject to the same limitations and procedures except that
relating to the HOLDBACK specified with respect to indemnification
by SELLERS of PURCHASERS in section 3.2.1 - 3.2.4 hereof.
4.3 The PURCHASERS assume the following obligations vis-a-vis the SELLERS:
4.3.1 The PURCHASERS shall keep the SELLERS' REPRESENTATIVES informed
without undue delay of all material developments regarding all
judicial and extra-judicial disputes which arise or continue after
the EFFECTIVE DATE so far as these affect the PURCHASERS' claims vis-
a-vis the SELLERS pursuant to section 3 of this AGREEMENT.
4.3.2 If the PURCHASERS notify the SELLERS' REPRESENTATIVES that they have
decided not to defend or prosecute a dispute pursuant to section
4.3.1 the SELLERS' REPRESENTATIVES may assume the defence or
prosecution of such dispute. The reasonable costs arising out of
such defence or prosecution shall be paid out of the HOLDBACK if
the defence or prosecution fails. If the defence or prosecution
is successful the PURCHASERS shall pay reasonable costs of such
defence or prosecution which are not otherwise reimbursed not
however to exeed 50% of (i) the recovery against a third party
or (ii) the amount claimed by an unsuccessful third party.
4.3.3. Although the SELLERS shall be responsible for the filing of their
tax returns with respect to the SHARES which relate to the assessment
<PAGE>
periods up to the EFFECTIVE DATE, the PURCHASERS shall assist the
SELLERS in the preparation of these tax returns if and to the
extent that material and information relating hereto is available at
the COMPANY or any of its AFFILIATES. The SELLERS shall be entitled
to decide on the contents of the declaration to be submitted to the
relevant tax authorities for the uniform and separate profit
allocation ("einheitliche und gesonderte Gewinnfeststellung") for
1996 of the COMPANY and/or the AFFILIATES, with the exception of
the reporting related to the redemption of certain PMCT-Partnership
interests in May of 1996, which shall be decided jointly by the
parties hereto.
The contents of such declarations for 1997 up through the EFFECTIVE
DATE shall be jointly decided by the parties hereto, with the
exception of elections under US Internal Revenue Code section 754,
which shall be at the PURCHASERS' discretion.
4.3.4 The PURCHASERS will guarantee payment of the COMPANY'S obligations
with respect to the pension claims of SELLERS or former limited
partners and other persons related to SELLERS or former limited
partners set forth in Schedule 3.1.13.a and the claims of SELLER
number 2 according to his consultancy agreement in Schedule 3.1.13 b.
5. Anti-Trust law
5.1 The parties hereto have jointly filed a pre-merger notification to
the Federal Cartel Office ("Bundeskartellamt") which is presently
being reviewed there.
5.2 The parties undertake to take all necessary measures and steps
vis-a-vis the Federal Cartel Office to obtain as soon as possible
the approval for the assignment of the SHARES to the PURCHASERS.
For this purpose the parties shall exchange all information relating
to the pre-merger notification and comply promptly with all inquiries
and requests of the Federal Cartel Office. They shall keep each other
apprised of the status of the proceedings at the Federal Cartel Office.
6. Effective Date / Allocation of Results
6.1 The EFFECTIVE DATE within the meaning of this AGREEMENT shall be the
last day of the month of the fulfilment, or waiver by the PURCHASERS of
all conditions precedent pursuant to section 9 hereof except of
section 9.1.6. and 9.1.7, which requires mutual waiver of the
contracting parties, or another earlier date the parties hereto
may mutual agree. On the EFFECTIVE DATE the management of the GMBH,
the COMPANY and the AFFILIATES shall pass to the PURCHASERS and
their business shall be conducted on PURCHASERS' account.
6.2 The SELLERS shall be entitled to the results of the COMPANY for
the fiscal year 1996 and the period between 01 January 1997 and the
EFFECTIVE DATE. For the latter period interim financial statements
<PAGE>
shall be jointly prepared by the parties hereto in order to ascertain
the results of the COMPANY's operations.
Notwithstanding the foregoing the SELLERS, however, shall only be
entitled to withdrawals ("Entnahmen") for the fiscal year 1996 and
the period between 01 January 1997 and the EFFECTIVE DATE to the
extent that such withdrawals are admissible under the COMPANY's
Limited Partnership Agreement (Schedule 3.1.1) and/or resolutions
by the COMPANYS' shareholders or Advisory Board in accordance
with the Limited Partnership Agreement prior to 01 July 1996 as set
forth in detail in Schedule 6.2. Furthermore, payments and
withdrawals to SELLERS or former limited partners and other persons
related to SELLERS or former limited partners with regard to
pension, employment or consultancy agreements as set forth in
Schedule 6.2 a. or in any other Schedule to this AGREEMENT shall
also be admissible. Payment of such aforementioned withdrawals and
payments may also be claimed after the EFFECTIVE DATE. However,
SELLERS shall not be entitled to any withdrawals, and no such
withdrawals shall be made, whether before or after the EFFECTIVE
DATE, with respect to any taxes which may be payable as a result of
the sale of the SHARES pursuant to the AGREEMENT or gifts or other
transfers of such Limited Partnership interests by present or former
limited partners which have taken place after June 1, 1996. No other
withdrawals or payments irrespective of their legal nature shall be
due from the COMPANY or any of its AFFILIATES to the SELLERS. However,
any withdrawals or payments that were actually made by or for the
benefit of the SELLERS or former limited partners and other persons
related to SELLERS or former limited partners for periods before
January 1, 1996 shall remain unaffected.
The COMPANY, and its successor, shall be entitled to any refund of
US-taxes paid by any SELLER or his or her transferor whether directly
or indirectly, for which such SELLER or transferor received a tax
withdrawal from the COMPANY or any AFFILIATE for any period or
periods beginning 01 January 1996 and ending on or prior to the
EFFECTIVE DATE. Each SELLER shall promptly provide the COMPANY or
its successor, with copies of any tax filings for which such refunds
are claimed, and a certificate of an accountant specifying the portion
of such refund applicable to a withdrawal from the COMPANY or its
successor, and promptly notify the COMPANY, or its successor, of
receipt of any such refund, and pay to the COMPANY, or its successor,
the portion thereof applicable to a withdrawal, and will cooperate
with the COMPANY, and its successor, as reasonably requested by it
to effect, or enable it to effect, such refunds.
7. Replacement of Officers
7.1 The members of the Advisory Board of the COMPANY and the relevant
bodies of the AFFILIATES shall resign from their offices with
effect from the EFFECTIVE DATE. Their remuneration for the current
fiscal year 1997 shall be reduced proportionally.
<PAGE>
7.2 Those managing directors of the GMBH and the AFFILIATES whose
resignations are requested by PURCHASERS not later than the date
of this AGREEMENT or 10 (ten) days prior to the EFFECTIVE DATE,
whichever is later, shall also resign from their offices with effect
from the EFFECTIVE DATE.
Their employment contracts, which otherwise remain in force, will be
adjusted in separate negotiations.
Post contractual rights and obligations such as pension rights remain
unaffected, provided that they are disclosed in the AGREEMENT in
Schedule 7.2.
8. Registration in the Trade Register
On the EFFECTIVE DATE the parties hereto shall validly and irrevocably
apply for all registrations in the Trade Register required as a result
of this AGREEMENT.
9. Conditions Precedent
9.1 The validity of this AGREEMENT shall be subject to satisfaction, or
waiver by PURCHASERS or by both contracting parties pursuant to
section 6.1. of the following conditions precedent:
9.1.1 Final and conclusive approval of the transaction pursuant hereto by
the Federal Cartel Office;
9.1.2 Resignation of all members of the Advisory Board and members of the
relevant bodies of the AFFILIATES pursuant to section 7.1 hereof;
9.1.3 Resignation of the managing directors requested by PURCHASERS
pursuant to section 7.2 hereof;
9.1.4 PURCHASER number (1), Gleason Corp. or any other company affiliated
to Gleason Corp., shall have purchased for US-$ 9.7 mio. on or
before the EFFECTIVE DATE the 23.8% of partnership interests of PMCT
that the COMPANY does not presently own. PURCHASERS shall cause
PURCHASER number (1) and/or Gleason Corp. and/or any other company
affiliated to Gleason Corp. to use reasonable good faith efforts to
purchase such interest on terms acceptable to it.
9.1.5 The COMPANY shall have sold all shares of ENGRENASA owned by it or
any of the AFFILIATES, without any claims, cost to or recourse against
the COMPANY or the AFFILIATES, so that neither it nor any of them,
nor from and after the EFFECTIVE DATE the PURCHASERS, shall have any
obligations or liabilities whatsoever, contingent or otherwise, to or
with respect to ENGRENASA. SELLERS shall furnish PURCHASERS on
the EFFECTIVE DATE documentation in form and substance satisfactory
to them evidencing such sale and indemnification of them and the
COMPANY against any liabilities relating to ENGRENASA.
<PAGE>
9.1.6 The ESCROW AGREEMENT shall have been executed by PURCHASERS, SELLERS'
REPRESENTATIVES and the ESCROW AGENT.
9.1.7 Checks guaranteed by Chase Manhattan Bank handed over to SELLERS'
REPRESENTATIVES pursuant to section 2.2 and to the ESCROW AGENT
pursuant to section 2.3.
9.1.8 SELLERS shall have submitted to PURCHASERS duly signed and certified
applications for registrations pursuant to section 8.
9.1.9 Submission of evidence satisfactory to the PURCHASERS by those
SELLERS that have granted sub-participations in their SHARES pursuant to
recital (E) that those sub-participations have been terminated with
no unsatisfied rights.
9.2 Should any of the forementioned conditions precedent not be fulfilled,
or be waived by the PURCHASERS, by (for the time being) 30 July 1997
then each party hereto shall be entitled, subject to the provisions
relating to costs pursuant to section 10 hereof, to cancel this
AGREEMENT by written notice to the other party.
10. Costs
10.1 The transfer costs of this AGREEMENT, i.e., notarial and Trade
Register fees, publication costs and filing fees under the Hart-Scott-
Rodino Act and of the Federal Cartel Office (but excluding the fees
of any advisors) or any real estate transfer tax ("Grunderwerbsteuer")
that become due as a result of this AGREEMENT shall be paid by the
PURCHASERS.
10.2 SELLERS and PURCHASERS, respectively, shall bear their own legal,
accounting and consulting fees and any other costs incurred by them
in connection with negotiations and conclusion of this AGREEMENT.
Notwithstanding the foregoing provision the PURCHASERS shall not be
entitled to seek payments from the SELLERS for the amounts which
have reduced the purchase price according to section 2.1 (iii) and
will hold the SELLERS harmless from any claims of the COMPANY and/or
the AFFILIATES therefore.
11. Concluding Provisions
11.1 All notices and other communications required or permitted hereunder
shall be made in writing to the following representatives of the
parties hereto:
For the SELLERS nos. (9)-(13): For the SELLERS nos. (1)-(8)
and nos. (14)-(21):
Prof. Dr. Hans Thummel Dr. Werner Wellhofer
Thummel, Schutze & Partner Fiedler & Forster
Landhausstrasse 90 Brienner Strasse 12
70190 Stuttgart 80333 Munchen
<PAGE>
For the PURCHASERS: with copy to:
Gleason Corporation Nixon, Hargrave, Devans &
Doyle LLP
President Clinton Square
P.O. Box 22970 P.O. Box 1051
1000 University Avenue Rochester, NY, 14603
Rochester, NY 14692
or to such other addresses as any of the foregoing may have designated
in writing.
11.2 Unless specifically provided for in other provisions hereof, the
parties hereto shall cooperate in good faith in order to consummate
this AGREEMENT and take all actions and render all statements that
are necessary herefore.
11.3 This AGREEMENT including all Exhibits and Schedules mentioned herein
supersedes any other written and/or oral agreement that may have
been made or entered into by the PURCHASERS and the SELLERS prior to
the execution of this AGREEMENT relating to the matters contemplated
herein. This AGREEMENT and such Exhibits and Schedules constitute the
entire agreement by and between the parties hereto and such Exhibits
and Schedules shall constitute an integrating part of this AGREEMENT.
Any amendment to this AGREEMENT must be made in writing and signed by
the parties, or their authorized representatives in order to be
valid. This requirement shall also apply to the waiver of this written
form requirement.
11.4 This AGREEMENT including all Exhibits and Schedules mentioned herein
finally sets forth all claims, rights and obligations of the parties
hereto with respect to the subject matter hereof. It is understood
that neither party shall have any claims against the other party
unless specified herein for whatever legal nature including but not
limited to claims for damages or rescission of this AGREEMENT.
11.5 The parties hereto shall treat any confidential information disclosed
in the course of the negotiations of this AGREEMENT as confidential
whereby the term "confidential information" shall cover all facts
and circumstances which are not publicly known, in particular trade
and business secrets.
The parties shall not disclose the terms of this AGREEMENT, in
particular the purchase price stipulated herein to any third party
that is not entitled to receive such information. Such disclosure
may however be made to sub-participants in the SELLERS' SHARES, any
direct or indirect shareholder of the PURCHASERS or to any third
party providing any financing to or investment in the PURCHASERS or
their affiliates and related parties, or to any professional advisors.
<PAGE>
The parties will endeavour to jointly agree on press releases
relating to this AGREEMENT. The PURCHASERS shall have the right to
release and file any information required by law.
The confidentiality agreement dated 20 September 1996 between the
COMPANY and Gleason Corporation shall remain in full force and
effect until the EFFECTIVE DATE.
11.6 If any provision of this AGREEMENT is or becomes invalid this shall
not affect the validity of the other provisions of this AGREEMENT.
The parties hereto shall replace the invalid provision by such valid
regulation which comes closest to the economic purpose of the invalid
provision. The same shall apply to any gaps in this AGREEMENT
necessary to carry out the intentions of the parties hereto.
11.7 This AGREEMENT shall be governed by the laws of the Federal Republic
of Germany. All disputes arising in connection with this AGREEMENT
shall be finally settled by arbitration under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce
with a tribunal of three arbitrators, and conducted in the English
language in London pursuant to the Arbitration Agreement between the
parties hereto set forth in Exhibit II. In as far as the above Rules
do not provide procedural regulations the German Code of Civil
Procedure shall apply.
11.8 This AGREEMENT shall be binding on and inure to the benefit of the
parties hereto, their successors and assigns.
12. Contractual language
This Agreement has been prepared in both English and German versions
and the parties have agreed on the translations and have signed
both versions. If, however, it is determined that there is any
inconsistency between the English version and the German version,
the German version will prevail.
/s/ Sabine La Due /s/ David J. Burns
Sabine La Due GW Acquistion Corp., represented
by David Burns, who is entitled to
represent GW Acquisition Corp. alone
<PAGE>
/s/ Werner Wellhofer /s/ John B. Kodweis
Herman Pfauter Gleason Maschinenfabrik GmbH,
represented by its managing director
John Kodweis, who is entitled to
represent Gleason Maschinenfabrik
GmbH alone
/s/ Dorothea Konig /s/ John B. Kodweis
Dorothea Konig Gleason-Hurth Maschinen und
Werkzeuge GmbH, represented
by its managing director John Kodweis,
who is entitled to represent Gleason-
Hurth Maschinen und Werkzeuge
GmbH alone
/s/ Werner Wellhofer
Michaela Evans
/s/ Werner Wellhofer
Carl Eric Steinbeck
/s/ Werner Wellhofer
Birgit Self
/s/ Werner Wellhofer
John Steinbeck
/s/ Georg Pfauter
Georg Pfauter
/s/ Hans Thummel
Dr. Ingeborg Reichelt-Pfauter
/s/ Hans Thummel
Sibylle Reichelt
/s/ Hans Thummel
Anna-Lisa Pfauter
/s/ Hans Thummel
Cornelia Pfauter
/s/ Dieter Reichelt
Robert Pfauter
/s/ Susanne Haindl
Susanne Haindl
/s/ Christina Baumer
Christina Baumer
/s/ Charlotte Wiese
Charlotte Wiese
/s/ Rosmarie Wiese
Rosmarie Wiese
/s/ Annemarie Doherty
Annemarie Doherty
/s/ Evamarie Albrecht
Evamarie Albrecht
<PAGE>
/a/ Liselotte Weber
Liselotte Weber
/s/ Rose-Marie Gibbons
Rose-Marie Gibbons
Signatures of contracting parties
Gleason Corporation, University Road 1000, Rochester, N.Y. agrees that
effective from the EFFECTIVE DATE it will guarantee payment on first
demand of the COMPANYS', the PURCHASERS' or their respective successors'
or assigns' obligations pursuant to section 4.3.4. of the above AGREEMENT
that the COMPANY, the PURCHASERS or their respective successors or
assigns have failed to fulfill within a period of two weeks following the
date on which they were due, if SELLERS demand to Gleason Corporation
so states.
Rochester, 23 July 1997
/s/ David J. Burns
Gleason Corp.
<PAGE>
<PAGE>
Exhibits and Schedules to Agreement
The following exhibits and schedules to the Agreement are not filed
herewith, but the Company will furnish supplementally a copy of any such
omitted exhibit or schedule to the Commission upon request:
Exhibits 1,1 a, b, c, d, e and f - Powers of attorney
Exhibits 2, 2 a, b and c - Powers of attorney
Exhibits 3, 3 a, and b - Powers of attorney
Exhibit 4 - Power of attorney
Exhibit I - Escrow Agreement
Exhibit II - Arbitration Agreement
Schedule D - Jurisdictions in which licensed or qualified to do
business, and entities in which own any interest
Schedule E - Sub-participations
Schedules to Disclosure Letter:
Schedule 3.1.1 - Affiliate corporate documents
Schedule 3.1.2 - Silent participation
Schedule 3.1.4 - Payment of limited partnership contributions
Schedule 3.1.5 - Financial statements
Schedule 3.1.6 - Withdrawals, transactions outside the ordinary course,
material changes
Schedule 3.1.7 - Rights of third parties
Schedule 3.1.8 - Real property
Schedule 3.1.9 - Legal proceedings
Schedule 3.1.10 - Tax
Schedule 3.1.12 - Insurance policies
Schedule 3.1.13 - Employee, pension, labor and consultancy matters
Schedule 3.1.14 - Environmental
Schedule 3.1.15 - Bank accounts, powers of attorney
Schedule 3.1.17 - Largest customers
Schedule 3.1.18 - Notices by principal suppliers
Schedule 3.1.19 - Product liability claims
Schedule 3.1.20 - Intellectual property
Schedule 3.1.21 - Defaults; major contracts
Schedule 3.1.22 - Loans and agreements
PURCHASE AGREEMENT
AGREEMENT dated as of June 30, 1997 by and between
GW ACQUISITION CORP., a Delaware corporation with its
principal office at 1209 Orange Street, Wilmington,
Delaware ("Purchaser") and DAVID W. GOODFELLOW, BRIAN W.
CLUFF, HANS GRASS, ROBERT P. PHILLIPS, BARRY W. PACKARD,
JERRY D. KNOY and ROGER HACKMAN, all residents of
Illinois (sometimes referred to herein collectively as
"Individual Sellers") and DWG L.L.C., an Illinois limited
liability company ("DWG"). (The Individual Sellers and
DWG are sometimes referred to herein collectively as
"Sellers".)
RECITALS
PFAUTER/MAAG CUTTING TOOLS Limited Partnership is
an Illinois limited partnership with offices at 1351
Windsor Road, Loves Park, Illinois 61111 ("PMCT"). PMCT
has two general partners: (i) Pfauter Cutting Tools,
Inc. an Illinois corporation with offices at 1351 Windsor
Road, Loves Park, Illinois 61111 ("PCTI"), all of the
issued and outstanding stock of which is owned by Hermann
Pfauter GmbH & Co., a German limited partnership
("Pfauter"), PCTI being the Managing General Partner and
owning 1/67th of the outstanding partnership interests of
PMCT; and (ii) DWG which owns 7/67ths of the outstanding
partnership interests of PMCT. The remaining 59/67ths
outstanding partnership interests of PMCT are owned as
follows: (i) 50/67ths by Pfauter; and (ii) 9/67ths by
the Individual Sellers collectively; Sellers collectively
owning 16/67ths, or approximately 23.88%, of the
outstanding partnership interests of PMCT.
Pursuant to an agreement between Purchaser and
Gleason Maschinenfabrik GmbH ("GMG") and Gleason-Hurth
Maschinen und Werkzeuge Gmbh ("GHM"), affiliates of
Purchaser, as purchasers, and all the limited partners of
Pfauter, Purchaser, GMG and GHM have agreed to purchase
all of the limited partnership interests of Pfauter
("Pfauter Agreement"). It is a condition of the
obligations of Purchaser and GMG and GHM to consummate
the acquisition of the Pfauter partnership interests
pursuant to the Pfauter Agreement that Purchaser purchase
all of the partnership interests of Sellers in PMCT
pursuant to this Agreement, consummation of the purchases
under the Pfauter Agreement and this Agreement to occur
simultaneously, and Sellers wish to sell, and Purchaser
wishes to purchase, all of their partnership interests in
PMCT, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing,
and the representations, warranties and covenants
contained herein, the parties, intending to be legally
bound hereby, agree as follows:
<PAGE>
1. Sale and Purchase
1.1 Sellers shall sell, assign, transfer and deliver to
Purchaser, and Purchaser shall purchase from
Sellers, on the Closing Date, as hereinafter
defined, all of Sellers' respective partnership
interests in PMCT, both general and limited, and
Purchaser shall as of the Closing Date be entitled
to all rights, and subject to all obligations,
arising from such partnership interests, including
without limitation the right to receive profits and
the obligation to assume losses, as well as all
balances on Sellers' individual accounts with PMCT,
but Purchaser will not assume any obligations of
Sellers with respect to third parties, including,
but not limited to, tax obligations, except for non-
tax obligations of PMCT for which DWG is liable in
its capacity as a general partner of PMCT.
2. Consideration
2.1 The total purchase price payable by Purchaser to
Sellers for such partnership interests in PMCT
shall be Nine Million Seven Hundred Thousand
Dollars ($9,700,000).
2.1.1 The purchase price shall be allocated among Sellers
as indicated in column 3 of Schedule 3.1.2 to this
Agreement.
2.2 The purchase price is payable by way of bank-
guaranteed check to be delivered on the Closing
Date. Said bank guaranteed check shall be payable
to and delivered to the Sellers' Representative
designated in Section 11.1 of this Agreement
("Sellers' Representative"). With the delivery of
such bank guaranteed check Purchaser shall have
complied with all its obligations with respect to
the payment of the purchase price.
2.3 From the purchase price paid to them, each of the
Sellers will on the Closing Date pay in full any
and all loans to it or him from, or guaranteed by,
PMCT, including, without limitation, those listed
on Schedule 3.1 22.a.
3. Representations and Warranties of the Seller/Remedies
of Purchaser
3.1 Sellers jointly and severally (except for 3.1.2 and
3.1.3 which are made severally) represent and
warrant to Purchaser as follows (All references to
Schedules in this Section 3 are to the Schedules to
the Disclosure Letter dated the date of this
Agreement and delivered to Purchaser by the Sellers
simultaneously with the execution of this Agreement
which, to the extent specifically referenced on
such Schedules, will be deemed to include and
incorporate by reference matters regarding PMCT
disclosed in the corresponding Schedules to the
Disclosure Letter delivered to Purchaser and GMG by
the limited partners of Pfauter pursuant to the
Pfauter Agreement):
3.1.1 The statements in the recitals with respect to PMCT
are correct. PMCT is a duly organized validly
existing limited partnership under the laws of
Illinois with full power to own its properties and
conduct its business. It is not licensed to do
business in any other jurisdiction and the location
<PAGE>
of its assets and nature of its activities does not
require that it be licensed in any such
jurisdiction. Complete and correct copies of
PMCT's Limited Partnership Agreement as presently
in force are set forth in Schedule 3.1.1. PMCT
owns sixty percent (60%) of the issued and
outstanding quotas of Mecup S.r.l., a limited
liability company duly organized and validly
existing under the laws of Italy ("Mecup").
3.1.2 The Sellers respectively own the partnership shares
of PMCT in the amounts indicated on Schedule 3.1.2
to this Agreement, free and clear of any liens or
encumbrances or any third party rights, except for
the pledge of DWG's partnership interest to PMCT as
security for the loan from PMCT to DWG referenced
in Schedule 3.1.22.a.
3.1.3 The Sellers' power of disposal of their respective
partnership interests in PMCT is not limited in any
way except for the requirement of consent hereto by
PCTI as Managing General Partner of the partnership
pursuant to the PMCT Partnership Agreement, and by
PMCT as the holder of a pledge of the DWG
partnership interest.
3.1.4 The partnership capital contributions of the
Sellers in PMCT have been fully paid in and, apart
from any exceptions set forth in Schedule 3.1.4,
have not been repaid in whole or in part.
3.1.5 The financial statements as of December 28, 1996 of
PMCT and as of December 31, 1996 of Mecup set forth
in Schedule 3.1.5, when taken as a part of the
audited consolidated financial statements of
Pfauter for the year ended December 31, 1996 (the
"Pfauter Statements"), fairly present the financial
position and the results of operations for PMCT and
Mecup, when taken as a part of the Pfauter
Statements, with respect to that date and the
periods covered by those financial statements, with
the exception of those liabilities that are set
forth in Schedule 3.1.5. a. Said financial
statements of PMCT were prepared on the basis of
the books and records of PMCT and, when taken as
part of the Pfauter Statements, were prepared in
accordance with generally accepted accounting
principles in the United States.
3.1.6 Neither PMCT nor Mecup has paid, or incurred any
obligation to pay, and they will not pay or incur
any obligation to pay, any legal, accounting or
consulting fees or any other costs of the Sellers
in connection with the transactions contemplated by
this Agreement. With the exception of the events
set forth in Schedule 3.1.6, none of the following
events has occurred with respect to PMCT or Mecup
since December 28, 1996:
(i) payments of dividends or withdrawals or other
transfer of assets of any kind to the Sellers or
other partners;
(ii) transactions outside the ordinary course
of business;
(iii) any material changes in the financial
condition, assets, liabilities or business
operations; and to the best knowledge and belief
of the Sellers no such material changes are
likely to occur;
<PAGE>
(iv) substantial amendments, supplements or
terminations of material agreements to which it
is a party;
(v) the grant of any increase in the compensation
of officers or employees (including any such
increase pursuant to any bonus, pension, profit
sharing or other plan) other than customary
increases on a periodic basis or required by
agreement or understanding in the ordinary
course of business and in accordance with past
practice.
3.1.7 With the exception of the normal retentions of
title and the security rights of banks set forth in
Schedule 3.1.7, PMCT and Mecup each has good and
marketable title to all of its assets listed in the
financial statements pursuant to Section 3.1.5 or
acquired since the relevant dates of such financial
statements (except assets sold or otherwise
disposed of subsequently to such dates in the
ordinary course of business), free and clear of any
rights of third parties.
3.1.8 Schedule 3.1.8 lists all real property owned by
PMCT and all real property and buildings leased by
it. All real properties and the structures thereon
are in satisfactory condition, consistent with
their present use. None of these plants and
structures, or use thereof, contravenes or violates
any laws, decrees or orders by a governmental
authority in any material respect.
3.1.9 Except as otherwise set forth in Schedule 3.1.9:
(i) Neither PMCT nor Mecup is involved in any
court or arbitration proceedings either as
plaintiff or as defendant or any other type of
intervening party;
(ii) No circumstances are known from which can
be inferred that PMCT or Mecup is threatened
with orders, judgments or decrees of any court
or other tribunal ordering or requiring it to
take any action of any kind with respect to its
business operations or assets.
3.1.10 Within the time and manner prescribed by law or, if
it was not the case, without negative legal
consequences, PMCT and Mecup has each filed all
federal, state or local tax returns and/or tax
returns of foreign countries, provinces and other
governing bodies having jurisdiction to levy taxes
upon it including, without limitation, withholding
tax returns; Schedule 3.1.10 lists the last such
tax return for each tax filed. Copies of these
documents have been submitted to Purchaser prior to
the signature of this Agreement. For such period of
time up to the Closing Date for which taxes will
become due, such taxes (i) have been paid in full,
(ii) are provided for or (iii) will be provided for
in the interim financial statements of PMCT and
Mecup as of the Closing Date prepared on a
consistent basis unless anything to the contrary is
stated in Schedule 3.1.10.
PMCT has been determined to be a partnership for
United States tax purposes and has been
<PAGE>
consistently treated as such for all matters of
United States taxation since the time such
determination was relevant under United States tax
law.
No audits of federal, state, local or foreign tax
returns of PMCT or Mecup are currently in progress,
nor is any such audit announced. Schedule 3.1.10
indicates the periods for which tax audits have
been carried out by the respective fiscal
authorities and the taxes covered by such audits.
No taxes other than those paid (i) according to the
tax returns described or listed pursuant to this
Section 3.1.10 or (ii) provided for in the
financial statements of PMCT or Mecup pursuant to
Section 3.1.5 or in the interim financial
statements as of the Closing Date for the
respective period or (iii) set forth in Schedule
3.1.10 shall be payable by PMCT or Mecup for any
periods prior to the Closing Date.
3.1.11 To Sellers' best knowledge, neither PMCT nor
Mecup is violating any laws and regulations
applicable to the conduct of its business, and it
is in possession of all official permits material
to the conduct of its business as presently
operated.
3.1.12 To Sellers' best knowledge, PMCT is insured
against all material risks customary for the
business pursuant to the insurance policies set
forth in Schedule 3.1.12 and none of such insurance
will terminate upon the transfer of the Sellers'
partnership interests in PMCT to Purchaser.
3.1.13 Schedule 3.1.13 contains a complete list of all
officers and employees of PMCT and Mecup including
their position, salary, termination period,
entrance date and other particularities.
Schedule 3.1.13 further contains a complete list
of all shop agreements, collective bargaining
agreements and comparable rules and regulations
applicable to PMCT or Mecup, including without
limitation "employee benefit plans" as defined in
Section 3 (3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and all
contributions required by law for such benefit
plans have been timely made, and there are no
funding deficiencies for current benefit plans or
any liabilities for plans that have been terminated
or otherwise wound up. There have been no
violations of ERISA reporting requirements and
nothing has occurred with respect to the operation
of any plan that would cause the loss of
qualification or the imposition of any penalty,
tax, or other liability.
Schedule 3.1.13 further includes a complete list of
all pension claims of employees, officers and
directors of PMCT or Mecup, and Schedule 3.1.13.a
separately sets forth a complete list of all
pension claims of any Seller, including the terms
and amounts of each such claim.
Except as set forth in Schedule 3.1.13
(i) no unfair labor practice complaint is
pending against PMCT or Mecup before any
governmental agency or other judicial or
administrative forum, and no labor strike or
other labor trouble affecting PMCT or Mecup is
pending;
<PAGE>
<PAGE>
(ii) no organization or representation question
is pending in respect of any employees of PMCT
or Mecup; and
(iii) there is no shop agreement, collective
bargaining agreement or similar contract or
arrangement with regard to pension rights or
profit or turnover participation of employees or
similar benefits.
3.1.14 Except as set forth in Schedule 3.1.14 the
following is true for PMCT and Mecup for all
periods of time prior to the Closing Date:
(i) no releases of environmentally hazardous
substances have occurred except pursuant to an
environmental permit or otherwise authorized by
applicable environmental laws or regulations;
(ii) no measures have to be taken in order to
comply with obligations under environmental
aspects stipulated by laws, decrees or orders by
the competent governmental authorities nor have
any such measures not been fully performed and
completed;
(iii) there are no pending or threatened claims
relating to environmental aspects and, to the
best knowledge of the Sellers, there are also no
facts or circumstances which reasonably could be
expected to form the basis of one or more of
such claims;
(iv) no underground storage tanks (USTs) are
currently located at any of the premises, and
all prior USTs were properly removed, and any
contaminated soil or ground water properly
remediated in accordance with all applicable
environmental laws, decrees and orders of
governmental authorities;
(v) no asbestos, radon, PCBs or equipment or
material containing asbestos, radon or PCBs that
are required under current law to be removed or
remediated is currently located at any of the
premises;
(vi) there are no environmental conditions at
any of the premises or any other facts,
circumstances or conditions which reasonably
could be expected to substantially restrict or
prevent the ownership, occupancy, use or
transferability of any of the premises within
present use;
(vii) all of the premises have been operated in
compliance with all applicable environmental
laws, decrees and orders by governmental
authorities;
(viii) all environmental permits required for
the operation of the premises have been
obtained, are in effect, and are being complied
with in all respects, upon their present terms
with no modifications or required approvals from
governmental authorities.
<PAGE>
3.1.15 Schedule 3.1.15 lists the names and addresses of
every bank and other financial institution in which
PMCT maintains an account (whether a checking,
savings or other account), lock box or safe deposit
box, and the account numbers and names of persons
having signing authority or other access thereto.
3.1.16 To Sellers' best knowledge the fixed assets of
PMCT are in satisfactory operating condition
subject to ordinary wear and tear.
3.1.17 To Sellers' best knowledge Schedule 3.1.17
contains a list of the ten largest customers of
PMCT.
To Sellers' best knowledge none of such customers
has given notice terminating, cancelling or
threatening to terminate or cancel any contract or
relationship with PMCT, and the Sellers are not
aware of any material deterioration of any such
relationship.
3.1.18 Except as set forth in Schedule 3.1.18, to
Sellers' best knowledge none of PMCT's principal
suppliers has for the past two fiscal years given
notice terminating, cancelling or threatening to
terminate or cancel any contract or relationship
with PMCT; and the Sellers are not aware of any
material deterioration of any such relationship.
3.1.19 No product liability claims are pending or to
Sellers' best knowledge threatened to be initiated
against PMCT or Mecup.
3.1.20 PMCT is owner or licensee of all intellectual
property rights including intellectual property
rights set forth in Schedule 3.1.20 and of the know-
how required to conduct its business. Except as
set forth in Schedule 3.1.20, no proceedings
because of infringement of rights are pending or
threatened to be initiated. Schedule 3.1.20 lists
all patents, patent applications, trademarks and
licenses of any intellectual property owned or
licensed by or to PMCT except ordinary hardware and
software standard licenses.
3.1.21 To Sellers' best knowledge, except as set forth
in Schedule 3.1.21 all contracts or agreements to
which PMCT is a party have been performed by PMCT
pursuant to the respective contractual terms and
conditions, unless the non-performance of
obligations was justified and with respect to none
of the contracts or agreements any contractual
violations, non-performances or late performances
have occurred or have been announced or are
reasonably to be expected on the part of PMCT or on
the part of the respective contract partner.
Except as set forth in Schedule 3.1.21 or any other
provision of or Schedule to this Agreement, neither
PMCT nor Mecup is party to any agreement, contract,
lease or license
(i) which involves payment by it subsequent to
the date of this Agreement or the Closing Date
of more than Two Hundred Thousand Dollars
($200,000) in any 12-month period; or
<PAGE>
(ii) which has a remaining term of more than
twelve (12) months and cannot on or any time
after the first anniversary of the Closing Date
be terminated by it on ninety (90) or fewer
days notice without material penalty to it; or
(iii) relating to the lease of any material
personal property; or
(iv) restricting its ability to engage in any
material line of business.
3.1.22 Schedule 3.1.22 lists all loans, loan
engagements, credit and overdraft facilities,
promissory notes or other evidence of indebtedness
relating to the borrowing or lending of money,
guarantees of indebtedness or other obligations of
third parties, mortgages, pledges, grants of
security interest in or pledges of assets,
derivative transactions or securities of any kind
to which PMCT or Mecup is a party including any
amount outstanding and owed by it.
Schedule 3.1.22.a lists all such loans, promissory
notes or other evidence of indebtedness owed by any
of Sellers to PMCT or Mecup, or to anyone else and
guaranteed by PMCT or Mecup, all of which will be
paid by Sellers on the Closing Date.
3.1.23 Neither PMCT nor Mecup has any material
liabilities or obligations which are not reflected
in the financial statements pursuant to Section
3.1.5 hereof or a Schedule except liabilities or
obligations incurred in the ordinary course of
business after the relevant date of the financial
statements disclosure of which are not required by
Section 3.
3.1.24 To Sellers' best knowledge with regard to all
accounts receivable reflected in the financial
statements of PMCT pursuant to Section 3.1.5 of
this Agreement and those which have arisen in the
ordinary course of business of PMCT since
December 31, 1996, there are no reasons for
possible loss of any claims in excess of the usual
bad debt reserve.
3.1.25 The value at which the inventory of PMCT is
shown in the financial statements pursuant to
Section 3.1.5 reflects the inventory valuation
policy utilized by PMCT and is in accordance with
generally accepted accounting principles in the
United States consistently applied.
PMCT does not hold any items of inventory on
consignment.
3.1.26 The Sellers have disclosed any information which
they must consider as being relevant for the
decision of Purchaser to enter into this Agreement
at all or at the terms and conditions provided for
herein.
3.1.27 Whenever the term "best knowledge" is used in
connection with any of the Sellers' foregoing
warranties in this Section 3.1 such term shall not
be limited to the knowledge of the Sellers of
certain circumstances relating to a specific
warranty but shall include the knowledge of PMCT,
as well as that of its directors and senior
executives.
<PAGE>
3.1.28 With the exception of the representations and
warranties set forth in Sections 3.1.1 through
3.1.27 above, the Sellers make no representations
and warranties.
3.2 With regard to Purchaser's claims in case of
misrepresentations and breach of warranties by the
Sellers the following shall apply:
3.2.1 SELLERS' representations and warranties shall,
notwithstanding any investigation by Purchaser,
survive the Closing. If any of the Sellers'
representations and warranties in Section 3.1
hereof is totally or partially incorrect, Purchaser
shall promptly upon becoming aware thereof notify
the Sellers' Representative of such incorrectness
and request to be placed in the position that it
would have been in, had the representation and
warranty been correct. If, after a period of six
(6) weeks after receipt of such notification the
Sellers have not done so, they shall be jointly and
severally liable for any damages (which shall
include any losses, liabilities, obligations, costs
and expenses, including reasonable attorneys' fees)
incurred by the Purchaser as a result of such total
or partial incorrectness, it being understood and
agreed that Sellers' aggregate liability to
Purchaser for any misrepresentations and breaches
of warranties (except those in Sections 3.1.2
through 3.1.4) pursuant to Section 3.2.1 hereof
shall be limited to 23.88% of the total amount of
damages incurred by Purchaser (including
Purchaser's costs, expenses and reasonable
attorneys' fees), with Purchaser having a right to
proceed against the Sellers under the Pfauter
Agreement for the remaining 76.12% of the total
further provided, that with respect to claims by
the Purchaser based on misrepresentations or
incorrect warranties relating to MECUP, Sellers'
aggregate liability pursuant to Section 3.2.1 shall
be limited to 14.33% (i.e., 23.88% of 60%) of the
total amount of damages incurred by the Purchaser
(including Purchaser's costs, expenses and
reasonable attorneys' fees). However the Purchaser
is not entitled to be reimbursed to the extent the
Purchaser, for the purpose of preserving customer
relationships, intentionally fails to make a good
faith reasonable effort to resolve claims vis-a-vis
third parties, the fulfillment of which would
reasonably be expected to eliminate or reduce
claims against the Sellers for misrepresentations
and breaches of warranty; provided, however, in no
event shall good faith reasonable efforts require
Purchaser to threaten or commence litigation
against a third party. However Purchaser's failure
to litigate will not limit the right of Sellers in
a proceeding pursuant to Section 3.2.4 to attempt
to establish that the claim was a valid one. The
above claims of the Purchaser do not require fault
on the part of the Sellers. Any claims by the
Purchaser for misrepresentations and breaches of
warranty other than those provided in Section 3
hereof shall be excluded.
3.2.2 Purchaser shall be entitled to indemnification
pursuant to Section 3.2.1 hereof only if the total
damages suffered or incurred by it exceed One
Hundred Thousand Dollars ($100,000) (except that
for breaches of the representations and warranties
contained in Sections 3.1.2, 3.1.3 and 3.1.4, it
will be entitled to indemnification without regard
<PAGE>
to whether that figure is exceeded), and shall in
that event be entitled to indemnification for all
such damages, limited, however, to Section 3.2.3
and 3.2.4.
3.2.3 The aggregate amount for which Purchaser will be
entitled to indemnification for damages suffered or
incurred as a result of misrepresentsions and
breaches of warranties pursuant to Section 3.2.1
hereof shall not exceed Seven Hundred Fifty
Thousand Dollars ($750,000). As used in the
preceding sentence, "aggregate" shall be deemed to
mean the aggregate of all damages for breaches of
warranties (including Purchaser's costs, expenses
and reasonable attorneys' fees referred to in
Section 3.2.1 above) recoverable against all of the
Sellers together.
3.2.4 Any claims by the Purchaser based on
misrepresentations and breaches of warranties,
(i) the validity of which has not been acknowledged
by Sellers' Representative or (ii) which has not
been asserted within a period of either (A) two
(2) years after the Closing Date or (B) two (2)
months after Purchaser's last notice of claim prior
to the expiration of such two-year period,
whichever is later, by initiating litigation shall
be excluded.
3.2.5 The limitations of Sections 3.2.1 through 3.2.3
above are not applicable to incorrectness regarding
the warranties in Sections 3.1.2 through 3.1.4.
4. Warranties and Obligations of the Purchaser /
Remedies of the Sellers
4.1 Purchaser represents and warrants to the Sellers as
follows:
4.1.1 Purchaser is a corporation duly organized and
validly existing under the laws of the State of
Delaware. The Purchaser and its representatives
have all the requisite power and authority to enter
into this Agreement.
4.1.2 Purchaser is not a party to, subject to or bound by
any agreement or judgment or decree of any court or
governmental authority which would prevent the
execution or performance of this Agreement by
Purchaser or the acceptance of the sale and
assignment of the PMCT partnership interests
pursuant to the terms of this Agreement.
4.1.3 With the exception of the representations and
warranties set forth in Sections 4.1.1 and 4.1.2,
Purchaser makes no representations and warranties.
4.2 If any of Purchaser's representations and
warranties in Section 4.1 hereof are totally or
partially incorrect, the Sellers shall promptly
notify Purchaser of such incorrectness and
Purchaser shall indemnify Sellers for any damages
incurred by the Sellers as a result of such total
or partial incorrectness, subject to the same
limitations and procedures specified with respect
to indemnification by Sellers of Purchaser in
Sections 3.2.1 through 3.2.4.
4.3 Purchaser assumes the following obligations vis-a-
vis the Seller:
4.3.1 Purchaser shall keep Sellers' Representative
informed without undue delay of all material
<PAGE>
developments regarding all judicial and extra-
judicial disputes which arise or continue after the
Closing Date so far as these affect Purchaser's
claims vis-a-vis the Sellers pursuant to Section 3
of this Agreement.
4.3.2 If Purchaser notifies Sellers' Representative that
it has decided not to defend or prosecute a claim
pursuant to Section 4.3.1, the Sellers'
Representative may assume the defense or
prosecution of such dispute, in conjunction, if
they wish to participate, with Sellers'
Representatives under the Pfauter Agreement. The
costs of such defense or prosecution shall be paid
by Sellers, or shared proportionately by them with
Sellers' Representatives designated in the Pfauter
Agreement ("Pfauter Sellers' Representatives") if
they participate in such defense or prosecution.
If the defense or prosecution is successful,
Purchaser shall, provided Sellers' Representative
and the Pfauter Sellers' Representatives use the
same attorney, pay the reasonable costs of such
defense or prosecution which are not otherwise
reimbursed; not, however, to exceed 50% of (i) the
recovery against a third party or (ii) the amount
claimed by an unsuccessful third party.
4.3.3 Although the Sellers shall be responsible for the
filing of their tax returns with respect to their
PMCT partnership interests which relate to the
assessment period between December 29, 1996 and the
Closing Date, Purchaser shall assist the Sellers in
the preparation of these tax returns if and to the
extent that material and information relating
hereto is available at PMCT. The reporting related
to the redemption of certain PMCT-Partnership
interests in May of 1996 shall be decided jointly
by the parties hereto. In addition,
notwithstanding Section 9.2(b) of the PMCT Limited
Partnership Agreement, the parties agree that the
Sellers' distributive share of PMCT's items of
income, gain, loss and deductions for 1997 for U.S.
federal income tax purposes shall be calculated
based on the results of an ordinary internal
closing of the books of PMCT as of the close of
business on the Closing Date and not through any
proration of such items for the entire taxable
year.
<PAGE>
5. Non-Compete; Confidentiality
5.1 Each of the Individual Sellers severally agrees
that he will comply with any noncompetition
covenant and confidentiality covenant contained in
his employment agreement set forth in
Exhibit 9.1.1.
6. Closing Date / Allocation of Results
6.1 The Closing shall occur on the Closing Date which
shall be the first day of the month following the
fulfilment, or waiver by Purchaser, of all
conditions precedent pursuant to Section 9 hereof,
or such other date as Purchaser and Sellers'
Representative shall agree.
6.2 The Sellers shall be entitled to the share of the
results for the year ended December 28, 1996 and
the period between December 29, 1996 and the
Closing Date to which they are entitled by reason
of the partnership interests in PMCT owned by them.
For the latter period interim financial statements
shall be jointly prepared by the parties hereto,
and those to the Pfauter Agreement in a manner
consistent with prior periods, in order to
ascertain the results of PMCT's operations.
Notwithstanding the foregoing the Sellers, however,
shall only be entitled to distributions for the
year ended December 28, 1996 and the period between
December 29, 1996 and the Closing Date to the
extent that such distributions are permitted under
PMCT's Limited Partnership Agreement (Schedule
3.1.1), which it is agreed for the period
commencing March 31, 1997 and ending on the Closing
Date shall be sixty-five percent (65%) of their
share of PMCT's income as reflected in the interim
financial statements for such period specified in
Section 3.1.10. Payment of such distributions
shall be made within thirty (30) business days
after the Closing Date. No other distributions or
payments irrespective of their legal nature shall
be due from PMCT to the Sellers, except as provided
in Section 6.3.
6.3 In addition to such distributions described in
Section 6.2 above, Purchaser agrees to cause PMCT
to pay, (i) within five (5) business days of the
Closing Date, bonuses to the employees of American
Pfauter L.P. named in Schedule 6.3 in the amounts
set forth on Schedule 6.3 and (ii) within five (5)
business days of the Closing Date, bonuses to the
employees of PMCT named in Schedule 6.3 in seventy
five percent (75%) of the amounts determined in
accordance with Schedule 6.3, with the remaining
twenty five percent (25%) to be paid within thirty
(30) business days of the Closing Date; in each
case paid in respect of the period from January 1,
1997 through the Closing Date.
7. Intentionally left blank
<PAGE>
8. Closing
8.1 At the Closing
8.1.1 Sellers shall deliver to Purchaser:
8.1.1.1 The certificate specified in Section 9.2.1.
8.1.1.2 Assignments of the PMCT partnership interest of
each Seller.
8.1.1.3 Resolutions of PCTI consenting to such
assignments.
8.1.1.4 Resolutions of DWG approving this Agreement.
8.1.2 Purchaser shall deliver to Sellers' Representative
the checks specified in Section 2.2.
8.1.3 Sellers shall pay in full all indebtedness
specified in Section 2.3.
9. Conditions Precedent
9.1 The obligation of the parties to consummate the
Closing shall be subject to satisfaction, or waiver
by them, on or prior to the Closing Date of the
following conditions:
9.1.1 Purchaser and the Individual Sellers shall have
entered into employment agreements in the forms
attached as Exhibit 9.1.1.
9.1.2 The closing of the Pfauter Agreement shall occur
simultaneously with the closing of this Agreement.
9.2 The obligation of Purchaser to consummate the
Closing shall be subject to satisfaction, or waiver
by Purchaser, on or prior to the Closing Date, of
the following conditions:
9.2.1 The representations and warranties contained in
Section 3.1 shall be true in all material respects
on the Closing Date, except for changes
contemplated by this Agreement, and Sellers shall
deliver to Purchaser a certificate to that effect
signed on their behalf by Sellers' Representative.
9.2.2 The consents to the sale to Purchaser of Sellers
partnership interests specified in Section 3.1.3
shall have been obtained.
9.3 The obligation of the Sellers to consummate the
Closing shall be subject to satisfaction, or waiver
by the Sellers, on or prior to the Closing date of
the following conditions:
9.3.1 Pfauter shall have delivered releases to Sellers
reasonably satisfactory to them, releasing them
from any claims arising out of the acquisition by
DWG from Maag Cutting Tools, Inc. as of May 1996 of
its partnership interest in PMCT.
<PAGE>
9.4 Should any of the forementioned conditions
precedent not be fulfilled, or be waived by
Purchaser and/or Sellers, as the case may be, by
July 31, 1997 then each party hereto shall be
entitled, subject to the provisions relating to
costs pursuant to Section 10 hereof , to cancel
this Agreement by written notice to the other
party.
10. Costs
10.1 The transfer costs of this Agreement, i.e.,
publication costs and transfer filing fees (but
excluding the fees of any advisors) or any real
estate transfer tax that become due as a result of
this Agreement shall be paid by Purchaser.
10.2 Sellers and Purchaser, respectively, shall bear
their own legal, accounting and consulting fees and
any other costs incurred by them in connection with
this Agreement.
11. Concluding Provisions
11.1 All notices and other communications required or
permitted hereunder shall be made in writing to the
following representatives of the parties hereto:
For the Sellers:
David W. Goodfellow
Pfauter-Maag Cutting Tools
1351 Windsor Road
Loves Park, Illinois 61111
For the Purchaser:
with copy to:
Ralph E. Harper Julian W. Atwater
Gleason Corporation Nixon, Hargrave, Devans &
P.O. Box 22970 Doyle llp
1000 University Avenue Clinton Square
Rochester, NY 14692 P.O. Box 1051
Rochester, NY, 14603
or to such other addresses as any of the foregoing
may have designated.
11.2 Unless specifically provided for in other
provisions hereof, the parties hereto shall
cooperate in good faith in order to consummate this
Agreement and take all actions and render all
statements that are necessary therefor.
11.3 This Agreement including all Exhibits and Schedules
<PAGE>
mentioned herein supersedes any other written
and/or oral agreement that may have been made or
entered into by the Purchaser and the Sellers prior
to the execution of this Agreement relating to the
matters contemplated herein. The Exhibits and
Schedules consitute an integral part of this
Agreement, and this Agreement and such Exhibits and
Schedules constitutes the entire agreement by and
between the parties hereto. Any amendment to this
Agreement must be made in writing and signed by the
parties, or their authorized representatives in
order to be valid. This requirement shall also
apply to the waiver of this written form
requirement.
11.4 The parties hereto shall treat any confidential
information disclosed in the course of the
negotiations of this Agreement as confidential
whereby the term "confidential information" shall
cover all facts and circumstances which are not
publicly known, in particular trade and business
secrets.
The parties shall not disclose the terms of this
Agreement, in particular the purchase price
stipulated herein to any third party that is not
entitled to receive such information. Such
disclosure may however be made to any direct or
indirect shareholder of Purchaser or to any third
party providing any financing to or investment in
the Purchaser or their affiliates and related
parties, or to any professional advisors.
Purchaser shall have the right to release and file
any information required by law.
The confidentiality agreement dated September 20,
1996 between Pfauter and Gleason Corporation shall
remain in full force and effect until the Closing
Date.
11.5 If any provision of this Agreement is or becomes
invalid, this shall not affect the validity of the
other provisions of this Agreement. The parties
hereto shall replace the invalid provision by such
valid provision which comes closest to its economic
purpose. The same shall apply to any gaps in this
Agreement necessary to carry out the intentions of
the parties hereto.
11.6 This Agreement shall be governed by the laws of New
York without regard to its principles of conflict
of laws.
11.7 This Agreement shall be binding on and inure to the
benefit of the parties hereto, their successors and
assigns.
<PAGE>
GW ACQUISITION CORP.
By /s/ David J. Burns
Name David J. Burns
Its President
SELLERS:
/s/ David w. Goodfellow
David W. Goodfellow
/s/ Brian W. Cluff
Brian W. Cluff
/s/ Hans Grass
Hans Grass
/s/ Robert P. Phillips
Robert P. Phillips
/s/ Barry W. Packard
Barry W. Packard
/s/ Jerry D. Knoy
Jerry D. Knoy
/s/ Roger Hackman
Roger Hackman
DWG L.L.C.
By /s/ David W. Goodfellow
Name David W. Goodfellow
Its Sole Manager
<PAGE>
<PAGE>
Exhibits and Schedules to Agreement
The following exhibits and schedules to the Agreement are not filed
herwith, but the Company will furnish supplementally a copy of any such
omitted exhibit or schedule to the Commission upon request:
Schedule 3.1.1 PMCT's Limited Partnership Agreement as
presently in force
Schedule 3.1.2 Sellers' percentage ownership of PMCT
Schedule 3.1.5 PMCT financial statements
Schedule 3.1.5a Other liabilities
Schedule 3.1.6 Transactions outside the ordinary course of
business
Schedule 3.1.7 Security interests
Schedule 3.1.8 Real property
Schedule 3.1.9(i) Legal proceedings
Schedule 3.1.10 Tax status
Schedule 3.1.12 Insurance summaries
Schedule 3.1.13 Employment benefit plans and employee and
pensio information
Schedule 3.1.13(i) Legal proceedings
Schedule 3.1.14 Environmental matters
Schedule 3.1.15 Bank accounts, boxes and signatories
Schedule 3.1.16 Fixed asset operating condition
Schedule 3.1.17 Largest customers
Schedule 3.1.20 Intellectual property
Schedule 3.1.21 Major contracts and leases
Schedule 3.1.22 Loan and other credit arrangements
Schedule 3.1.23 Undisclosed liabilities
Schedule 3.1.22 Loan and other credit arrangements
Schedule 3.1.23 Undisclosed liabilities
Schedule 6.3 Bonuses
Exhibit 9.1.1 Employment Agreements
CREDIT AGREEMENT
dated as of July 31, 1997
among
GLEASON CORPORATION
THE GLEASON WORKS
GLEASON INTERNATIONAL MARKETING CORPORATION
GW ACQUISITION CORP.
GLEASON GERMANY (HOLDINGS) GMBH
GLEASON MASCHINENFABRIK GMBH
GLEASON-HURTH MASCHINEN UND WERKZEUGE GMBH
HERMANN PFAUTER GMBH & CO.
GLEASON WORKS (HOLDINGS) LIMITED
GLEASON WORKS LIMITED
PFAUTER-MAAG CUTTING TOOLS LIMITED PARTNERSHIP
and
AMERICAN PFAUTER, L.P.
as Borrowers
with
The Lenders signatory hereto
and
THE CHASE MANHATTAN BANK
as Administrative Agent
and
Corestates Bank, N.A.
The Bank of Nova Scotia
First Union National Bank
as Co-Agents
<PAGE>
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Definitions 10
SECTION 1.01. Defined Terms 10
SECTION 1.02. Classification of Loans and Borrowings 29
SECTION 1.03. Terms Generally 29
SECTION 1.04. Accounting Terms; GAAP 29
SECTION 1.05. Currency Equivalents; Currency Fluctuations. 30
ARTICLE II
The Credits 30
SECTION 2.01. Commitments 30
SECTION 2.02. Loans and Borrowings 31
SECTION 2.03. Requests for Term and Revolving Borrowings 32
SECTION 2.04. Competitive Bid Procedure 33
SECTION 2.05. Swingline Loans 36
SECTION 2.06. Letters of Credit 37
(a) General 37
(b) Notice of Issuance, Amendment, Renewal, Extension;
Certain Conditions 37
(c) Expiration Date 38
(d) Participations 38
(e) Reimbursement 38
(f) Obligations Absolute 39
(g) Disbursement Procedures 40
(h) Interim Interest 40
(i) Replacement of the Issuing Bank 41
(j) Cash Collateralization on Default 41
(k) Cash Collateralization for Bank Guarantees 42
(l) Existing Letters of Credit 42
SECTION 2.07. Funding of Borrowings 42
SECTION 2.08. Interest Elections 43
<PAGE>
SECTION 2.09. Termination and Reduction of Commitments 45
SECTION 2.10. Repayment of Loans; Evidence of Debt 45
SECTION 2.11. Prepayment of Loans 46
SECTION 2.12 Fees 49
SECTION 2.13. Interest 50
SECTION 2.14. Alternate Rate of Interest 51
SECTION 2.15. Increased Costs 52
SECTION 2.16. Break Funding Payments 54
SECTION 2.17. Taxes 54
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs 56
SECTION 2.19. Mitigation Obligations; Replacement of Lenders 57
SECTION 2.20. European Economic and Monetary Union 58
ARTICLE III
Representations, Warranties and Covenants of Borrower 59
SECTION 3.01. Existence, Ownership and Legal Power 59
SECTION 3.02. Right to Act 60
SECTION 3.03. Approval by Necessary Organizational Action 60
SECTION 3.04. Financial Statements. 61
SECTION 3.05. Litigation; Regulatory Compliance. 61
SECTION 3.06. Plan Compliance 62
SECTION 3.07. Title and Freedom from Liens 62
SECTION 3.08. Absence of Default 63
SECTION 3.09. Existing Debts 63
SECTION 3.10. Margin Stock 63
<PAGE>
SECTION 3.11. Compliance with Conditions Precedent 63
SECTION 3.12. Interdependent Relationship 63
SECTION 3.13. Environmental Matters 63
SECTION 3.14. Taxes 64
SECTION 3.15. Disclosure 64
SECTION 3.16. Acquisition 64
SECTION 3.17. Labor Matters 65
SECTION 3.18. Solvency 65
SECTION 3.19. Investment and Holding Company Status 66
SECTION 3.20. Existing Letters of Credit 66
SECTION 3.21. Gleason Germany (Holdings) GmbH and Gleason
Maschinenfabrik GmbH 66
ARTICLE IV
Conditions 66
SECTION 4.01. Effective Date 66
SECTION 4.02. Each Credit Event 71
ARTICLE V
Affirmative and Negative Covenants 71
SECTION 5.01. Punctual Payment 71
SECTION 5.02. Financial Information 71
SECTION 5.03. Inspection of Borrowers' Property and Records 73
SECTION 5.04. Preservation of Borrowers'Existence
and Business 73
SECTION 5.05. Payment of Debts and Obligations 73
SECTION 5.06. Insurance Coverage 74
<PAGE>
SECTION 5.07. Litigation 74
SECTION 5.08. ERISA Compliance 74
SECTION 5.09. FLSA Compliance 74
SECTION 5.10. Compliance with All Laws, Etc 74
SECTION 5.11. Mergers, Acquisitions, Bulk Sales and
Reorganization 74
SECTION 5.12. Subsidiaries 75
SECTION 5.13. Maintenance of Properties 76
SECTION 5.14. Notice to Lenders and Administrative Agent
of Default 76
SECTION 5.15. Consolidated Funded Indebtedness to
Consolidated Net Worth 76
SECTION 5.16. Consolidated Funded Indebtedness to EBITDA 76
SECTION 5.17. Interest Coverage 76
SECTION 5.18. Restrictions on Use of Proceeds 77
SECTION 5.19. Indebtedness 77
SECTION 5.20. Liens 78
SECTION 5.21. Investments, Loans, Advances, Guarantees and
Acquisitions 78
SECTION 5.22. Hedging Agreements 79
SECTION 5.23. Restricted Payments 79
SECTION 5.24. Transactions with Affiliates 79
SECTION 5.25. Restrictive Agreements 79
ARTICLE VI
Guaranty 80
ARTICLE VII
Events of Default 82
<PAGE>
ARTICLE VIII
The Administrative Agent 85
ARTICLE IX
Miscellaneous 88
SECTION 9.01. Notices 88
SECTION 9.02. Waivers; Amendments 89
SECTION 9.03. Expenses; Indemnity; Damage Waiver 89
SECTION 9.04. Successors and Assigns 91
SECTION 9.05. Survival 93
SECTION 9.06. Counterparts; Integration; Effectiveness 94
SECTION 9.07. Severability 94
SECTION 9.08. Right of Setoff 94
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process 94
SECTION 9.10. WAIVER OF JURY TRIAL 95
SECTION 9.11. Headings 95
SECTION 9.12. Confidentiality 95
SECTION 9.13. Interest Rate Limitation 96
SECTION 9.14. Judgment Currency. 96
SECTION 9.15. Gleason Germany (Holdings) GmbH and Gleason
Maschinenfabrik GmbH. 97
SECTION 9.16 Pfauter Italia SPA 97
SCHEDULE 1.01A
[FORM OF]
Assignment and Acceptance 112
<PAGE>
SCHEDULE 1.01B
Calculation of the MLA Cost 116
SCHEDULE 2.01
Commitments 118
SCHEDULE 3.01
Borrower and Subsidiaries Existence and
Qualification 121
SCHEDULE 3.07
Mortgages, Liens, Security Interests or
Encumbrances 122
SCHEDULE 3.09
Existing Debts 123
SCHEDULE 3.16
Pfauter Share Purchase Agreement 124
SCHEDULE 3.16 A
Pfauter-Maag Acquisition Agreement 125
SCHEDULE 3.16(c)
Diagram of Pfauter Acquisition 126
SCHEDULE 3.17
Labor Matters: Strikes, Lockouts, or Slowdowns 127
SCHEDULE 3.20
Existing Letters of Credit 128
SCHEDULE 4.01(b)
Opinion of Counsel For Primary Borrower 129
SCHEDULE 4.01 (b-1)
<PAGE>
Opinion of Allen & Overy regarding Gleason
Works (Holdings) Limited and Gleason Works
Limited 130
SCHEDULE 4.01 (b-2)
Opinion of Counsel for Gleason Germany
(Holdings) GmbH, Gleason Maschinenfabrik GmbH,
Gleason-Hurth Maschinen und Werkzeuge GmbH and
Hermann Pfauter GmbH & Co. 131
SCHEDULE 4.01 (b-3)
Opinion of Illionis Counsel 132
SCHEDULE 4.01(i)
Mortgage of Shares of Gleason Works (Holdings)
Limited 133
SCHEDULE 4.01(j)
Mortgage of Shares of Gleason Works Limited 134
SCHEDULE 4.01(k)
Pledge Agreement for Shares of Gleason Germany
(Holdings) GmbH 135
SCHEDULE 4.01(l)
Pledge Agreement for Shares of Gleason
Maschinenfabrik GmbH and Gleason-Hurth Maschinen
und Werkzeuge GmbH 136
SCHEDULE 4.01(m)
Pledge Agreement for Partnership Interests in
Hermann Pfauter GmbH & Co. 137
SCHEDULE 4.01(r)
Indebtedness to be Repaid 138
SCHEDULE 5.19(a)
Indebtedness by Reason of the Acquisition 139
SCHEDULE 5.21
Investments 140
SCHEDULE 5.25
Restrictive Agreements 141
<PAGE>
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of July 31, 1997, is among
GLEASON CORPORATION, a Delaware corporation with its principal
office located at 1000 University Avenue, Rochester, Monroe
County, New York 14692 (the "Primary Borrower"), THE GLEASON
WORKS, a New York corporation with its principal office located
at 1000 University Avenue, Rochester, Monroe County, New York
14692 (an "Affiliate Borrower"), GLEASON INTERNATIONAL MARKETING
CORPORATION, a Delaware corporation with its principal office
located at 1000 University Avenue, Rochester, New York 14692 (an
"Affiliate Borrower"), GW ACQUISITION CORP., a Delaware
corporation with it principal office located at 1000 University
Avenue, Rochester, Monroe County, New York 14692 (an "Affiliate
Borrower"), GLEASON GERMANY (HOLDINGS) GmbH, a corporation
organized under the laws of the Federal Republic of Germany with
its principal office located in Munich, Germany (an "Affiliate
Borrower"), GLEASON MASCHINENFABRIK GmbH, a corporation organized
under the laws of the Federal Republic of Germany with its
principal office located in Ludwigsburg, Germany (an "Affiliate
Borrower"), GLEASON-HURTH MASCHINEN UND WERKZEUGE GmbH, a
corporation organized under the laws of the Federal Republic of
Germany with its principal office located in Munich, Germany (an
"Affiliate Borrower"), HERMANN PFAUTER GmbH & CO., a limited
partnership organized under the laws of the Federal Republic of
Germany with its principal office located in Ludwigsburg,
Germany, GLEASON WORKS (HOLDINGS) LIMITED (Registered No.
2985193), a corporation incorporated under the laws of England
and Wales with its principal office located in Plymouth, England
(an "Affiliate Borrower"), GLEASON WORKS LIMITED (Registered No.
623520), a corporation incorporated under the laws of England and
Wales with its principal office located in Plymouth, England (an
"Affiliate Borrower"), PFAUTER- MAAG CUTTING TOOLS LIMITED
PARTNERSHIP, a limited partnership organized under the laws of
Illinois, with its principal office located at 1351 Windsor Road,
Loves Park, Illinois 61111 (an "Affiliate Borrower"), and
AMERICAN PFAUTER L.P., a limited partnership, organized under the
laws of Delaware, with its principal office located at 1351
Windsor Road, Loves Park, Illinois 61111 (an "Affiliate
Borrower") (the Primary Borrower and the Affiliate Borrowers
being hereinafter collectively referred to as the "Borrowers"),
the Lenders signatory to this Agreement (the "Lenders" and each a
"Lender"), and THE CHASE MANHATTAN BANK, a New York banking
corporation with its principal office located at 270 Park Avenue,
New York, New York 10017 and having a regional office at One
Chase Square, Rochester, New York 14643, as administrative agent
for the Lenders (in such capacity, the "Administrative Agent").
Lenders, Borrowers and the Administrative Agent hereby agree
as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement,
the following terms have the meanings specified below:
<PAGE>
"ABR", when used in reference to any Loan or Borrowing
denominated in Dollars, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.
"Acquisition", means the acquisition by GW Acquisition
Corp., Gleason-Hurth Maschinen und Werkzeuge GmbH and Gleason
Maschinenfabrik GmbH (each a Subsidiary) of 100% of the limited
partnership capital of Hermann Pfauter GmbH & Co., pursuant to
the Pfauter Share Purchase Agreement and the acquisition by GW
Acquisition Corp. of the minority interest in Pfauter-Maag
Cutting Tools Limited Partnership not held by Hermann Pfauter
GmbH & Co. pursuant to the Pfauter-Maag Acquisition Agreement.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period, (b) multiplied by the
Statutory Reserve Rate, if any, and (c) plus, for Loans
denominated in Pounds Sterling, the MLA Cost, to the extent it is
not reflected in the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in
its capacity as administrative agent for the Lenders hereunder;
and such term shall not refer to any Lenders that may be
designated as "Co-Agents".
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person,
another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
"Affiliate Borrower" has the meaning set forth in the
introductory paragraph of this Agreement, and includes such other
entity as may become an "Affiliate Borrower" pursuant to Section
9.16.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day,
and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Percentage" means, with respect to any Lender,
the percentage of the total Revolving Credit Commitments
represented by such Lender's Revolving Credit Commitment. If any
of the Revolving Credit Commitments have terminated, reduced or
expired, the Applicable Percentages shall be based upon the
Revolving Credit Commitments in effect on the date of
determination, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any
Eurocurrency Revolving Loan or Eurocurrency Term Loan, or with
respect to the facility and Letter of Credit fees payable
hereunder, as the case may be, the applicable rate per annum,
<PAGE>
expressed as basis points, set forth below after the caption
"Eurocurrency Revolving Spread", "Eurocurrency Term Spread",
"Letter of Credit Fee Rate", or "Facility Fee Rate", as the case
may be, based upon the Leverage Ratio as in effect on such day.
The Leverage Ratio shall be determined and adjusted on the date
(each a "Ratio Calculation Date") five Business Days after the
date by which the Primary Borrower is required to provide the
Financial Officer's certificate in accordance with the provisions
of Section 5.02(h); provided that the initial Applicable Rate
shall be based on Tier III until the first Ratio Calculation Date
subsequent to March 31, 1998 and, thereafter, the Applicable Rate
shall be determined by the then current Leverage Ratio; and
provided further that if the Primary Borrower fails to provide
the Financial Officer's certificate required by Section 5.02(h)
on or before any Ratio Calculation Date subsequent to March 31,
1998, the Applicable Rate shall be based on Tier V from such
Ratio Calculation Date until such time that an appropriate
Financial Officer's certificate is provided, whereupon the
Applicable Rate shall be determined by the then current Leverage
Ratio. Subject to the preceding sentence, each determination of
the Applicable Rate shall be effective from one Ratio Calculation
Date until the next Ratio Calculation Date. Any adjustment in
the Applicable Rate shall be applicable to all existing Loans and
Letters of Credit as well as any new Loans made or Letters of
Credit issued.
<TABLE>
<CAPTION>
Tier I II III IV V
<S> <C> <C> <C> <C> <C>
Leverage <1.00 >1.00<1.50 >1.50<1.75 >1.75<2.00 >2.00
Ratio - - - -
Facility Fee 12.5 12.5 15.0 17.5 20.0
Rate
Eurocurrency 18.75 25.0 35.0 45.0 55.0
Revolving
Spread
Eurocurrency 31.25 37.5 50.0 62.5 75.0
Term Spread
Letter of 18.75 25.0 35.0 45.0 55.0
Credit Fee
Rate
</TABLE>
< means less than or equal to
-
> means greater than
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Schedule
1.01A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the Maturity
Date and the date of termination of the Revolving Credit
Commitments.
"Bank Guarantee" means a Guarantee in the form customarily
issued by banks in the Federal Republic of Germany or in the
Republic of Italy, as the case may be, which meets the generally
accepted definition of a letter of credit.
<PAGE>
"Board" means the Board of Governors of the Federal Reserve
System of the U.S..
"Borrower" and "Borrowers" have the meanings set forth in
the introductory paragraph of this Agreement, and where the
context requires, the term "Borrower" shall refer to the Person
that borrowed a particular Borrowing; and such term includes such
other entity as may become a "Borrower" pursuant to Section 9.16.
"Borrowers' Affiliates" means any Subsidiary and any other
Person, now existing or formed hereafter, Controlled by the
Primary Borrower.
"Borrowing" means (a) Revolving Loans or Term Loans of the
same Type, made, converted or continued on the same date and, in
the case of Eurocurrency Loans, as to which a single Interest
Period is in effect, (b) a Competitive Loan or group of
Competitive Loans of the same Type made on the same date and as
to which a single Interest Period is in effect or a Swingline
Loan.
"Borrowing Request" means a request by a Borrower for either
a Term Borrowing or a Revolving Borrowing in accordance with
Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday
or other day on which commercial banks in New York City are
authorized or required by law to remain closed; provided that,
(a) when used in connection with a Eurocurrency Loan, the term
"Business Day" shall also exclude any day on which banks are not
open for dealings in Dollar and Foreign Currency deposits in the
London interbank market, and (b) when used in connection with
either funding under Section 2.07(a), or a payment of a Borrowing
denominated in a Foreign Currency other than Pounds Sterling, the
term "Business Day" shall also exclude any day in which banks are
not open in the principal financial center of the country of such
Currency for dealings in deposits of such Currency.
"Calculation Date" means the last Business Day of each
calendar month.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as capital leases
on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person
or group (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof) other than by members
of the family of James Gleason and by the Gleason Foundation, of
shares representing more than 25% of the aggregate ordinary
voting power represented by the issued and outstanding capital
stock of the Primary Borrower; or (b) occupation of a majority of
the seats (other than vacant seats) on the board of directors of
the Primary Borrower by Persons who were neither (i) nominated by
the board of directors of the Primary Borrower nor (ii) appointed
by directors so nominated.
<PAGE>
"Change in Law" means (a) the adoption of any law, rule or
regulation by any Governmental Authority after the date of this
Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by
any Lender or the Issuing Bank (or, for purposes of Section
2.15(b), by any lending office of such Lender or by such Lender's
or the Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law)
of any Governmental Authority made or issued after the date of
this Agreement. "Change in Law" shall include implementation of
Monetary Union.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such
Borrowing, are Revolving Loans, Competitive Loans, Swingline
Loans or Term Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitments" means, with respect to each Lender, such
Lender's Revolving Credit Commitment and its Term Loan
Commitment. The initial aggregate amount of the Commitments is
$170,000,000.00 and the initial Commitments of each Lender
signatory to this Agreement are set forth in Schedule 2.01.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any
Competitive Bid, the Margin or the Fixed Rate, as applicable,
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower
for Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section
2.04.
"Competitive Loan Exposure" means, with respect to any
Lender at any time, the aggregate principal amount at such time
of such Lender's Competitive Loans denominated in Dollars and the
U.S. Dollar Equivalent of such Lender's Competitive Loans
denominated in Foreign Currencies.
"Consolidated Funded Indebtedness" means all Funded
Indebtedness of the Primary Borrower and its Consolidated
Subsidiaries after eliminating inter-company items, including any
Indebtedness outstanding pursuant to and under this Agreement.
"Consolidated Interest Expense" means for any period for
which such amount is being determined, the interest expense of
the Primary Borrower and the Consolidated Subsidiaries for such
period determined on a consolidated basis in accordance with
GAAP, including (i) the amortization of debt discounts to the
extent included in interest expense in accordance with GAAP, (ii)
the amortization of all fees (including fees with respect to
Hedging Agreements) payable in connection with the incurrence of
Indebtedness to the extent included in interest expense in
accordance with GAAP and (iii) the portion of any rents payable
<PAGE>
under Capital Lease Obligations allocable to interest expense in
accordance with GAAP.
"Consolidated Net Income" means the net income of the
Primary Borrower and its Consolidated Subsidiaries, after taxes
and after extraordinary items as determined on a consolidated
basis.
"Consolidated Net Worth" means the total of shareholders'
equity of the Primary Borrower and its Consolidated Subsidiaries
as it appears on the consolidated balance sheet of the Primary
Borrower.
"Consolidated Subsidiaries" means Subsidiaries whose
accounts are consolidated with the accounts of the Primary
Borrower in the Primary Borrower's consolidated financial
statements prepared in accordance with GAAP.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
"Currency" means either Dollars or a Foreign Currency.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both
would, unless cured or waived, become an Event of Default.
"Dollars" or "$" refers to lawful money of the U.S..
"EBITDA" means the sum of the following items measured for
the twelve (12) month period ending on the last day of each
Fiscal Quarter:
(i) Consolidated Net Income calculated after
eliminating extraordinary gains or losses and
unusual items, to the extent included in the
determination of Consolidated Net Income, plus
(ii) depreciation, amortization, and all other non-
cash charges, plus
(iii) income taxes to the extent they reduce
Consolidated Net Income, plus
(iv) Consolidated Interest Expense.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance
with Section 9.02).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources,
the management, release or threatened release of any Hazardous
Material or to health and safety matters.
<PAGE>
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of
the Primary Borrower or any Subsidiary directly or indirectly
resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials,(c) exposure to
any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the
foregoing.
"Equity Issuance" means the issuance by the Primary Borrower
of any equity interest and the issuance by any Subsidiary of any
equity interest to any person other than a Borrower or a
Guarantor.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) that, together with a Borrower, is treated as a
single employer under Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of
the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (a) any "reportable event", as defined
in Section 4043 of ERISA or the regulations issued thereunder
with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any
Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the
incurrence by the Primary Borrower or any of its ERISA Affiliates
of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Primary Borrower
or any ERISA Affiliate from the PBGC or a plan administrator of
any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by the Primary Borrower or any of its ERISA Affiliates
of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Primary Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Primary
Borrower or any ERISA Affiliate of any notice, concerning the
imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate (or, in the case of a
Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in
Article VII.
"Exchange Rate" means, with respect to any currency other
than Dollars on any date, the rate at which such currency may be
<PAGE>
exchanged into Dollars, as set forth on such date on the
applicable Reuters currency page. In the event that such rate
does not appear on the applicable Reuters currency page, the
Exchange Rate with respect to such currency shall be determined
by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the
Administrative Agent and the Primary Borrower or, in the absence
of such agreement, such Exchange Rate shall instead be the
Administrative Agent's spot rate of exchange in the London
interbank market or other market where the Administrative Agent's
foreign currency exchange operations in respect of such currency
are then being conducted, at or about 10:00 a.m., local time, on
such date for the purchase of Dollars with such currency for
delivery two Business Days later; provided, however, that if at
the time of any such determination, for any reason, no such spot
rate is being quoted, the Administrative Agent may use any
reasonable method it deems appropriate to determine such rate,
and such determination shall be conclusive absent manifest error.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any
payment to be made by or on account of any obligation of any
Borrower hereunder, (a) income or franchise taxes imposed on (or
measured by) its net income by the U.S., or by the jurisdiction
under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender, in
which its applicable lending office is located, (b) any branch
profits taxes imposed by the U.S. or any similar tax imposed by
any other jurisdiction in which any Borrower is located and (c)
in the case of a Foreign Lender (other than an assignee pursuant
to a request by any Borrower under Section 2.19(b)), any
withholding tax that is imposed by the U.S. on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a
party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with
Section 2.17(e) or Section 2.17(f), except to the extent that
such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new lending office (or assignment),
to receive additional amounts from any Borrower with respect to
such withholding tax pursuant to Section 2.17(a).
"Facility Obligations" means any and all amounts owed by any
Borrower to any Lender under this Agreement or under any other
Loan Document, including the principal and interest owed on any
Loan, reimbursement obligations related to LC Disbursements, all
fees and all expenses.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the
Primary Borrower.
"Fiscal Quarter" means each fiscal quarter-year period of
the Primary Borrower.
<PAGE>
"Fiscal Year" means the fiscal year of the Primary Borrower,
which is a twelve (12) month period commencing January 1 and
ending on December 31 in each calendar year.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Eurocurrency Competitive Loan), the fixed rate of
interest per annum specified by the Lender making such
Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest
at a Fixed Rate.
"Foreign Currency" means each of Deutsche Marks, Italian
Lire and Pounds Sterling, and when used in reference to a Loan or
Borrowing, refers to a Loan or Borrowing denominated in a Foreign
Currency.
"Foreign Lender" means any Lender that is organized or
incorporated under the laws of a jurisdiction other than that in
which the Borrower of one or more Loans from such Lender is
located. For purposes of this definition, the U.S., each State
thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"Funded Indebtedness" means any outstanding indebtedness of
a Person for borrowed money, including all Indebtedness of the
Primary Borrower and its Subsidiaries to the Lenders and other
financial institutions, domestic or foreign, including all
secured and unsecured notes payable, all industrial revenue
bonds, all Capital Lease Obligations and other similar debt
obligations and the current maturities thereof, but excluding all
trade accounts payable, customer advances, accrued expenses,
income and other taxes payable, deferred income and other taxes
and accrued pension liabilities.
"GAAP" means generally accepted accounting principles in the
U.S..
"Governmental Authority" means the government of the U.S.,
any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to
government, including any governing body of the European Union.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
and including any obligation of the guarantor, direct or
indirect, (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of
the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued
to support such Indebtedness or obligation of the primary
obligor; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of
business.
<PAGE>
"Guaranteed Obligations" has the meaning set forth in
Article VI.
"Guarantor" means a Person liable pursuant to a Guarantee of
any of the Facility Obligations, and includes each Initial
Guarantor.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances,
wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate
or commodity price hedging arrangement.
"Indebtedness" means and includes in respect of any Person,
without duplication, (a) all items which in accordance with GAAP
consistently applied would be included on the liability side of a
balance sheet as at the date as of which indebtedness is to be
determined, excluding capital stock, capital and earned surplus,
surplus reserves and deferred credits, (b) endorsements and other
similar contingent obligations in respect of indebtedness of
others, (c) indebtedness secured by any Lien existing on property
owned by such Person, whether or not the indebtedness secured
thereby shall have been assumed, (d) all obligations arising
under any conditional sale, lease or title retention agreement
covering property acquired or used by such Person or any
Subsidiaries, including Capital Lease Obligations, but excluding
current accounts payable incurred in the ordinary course of
business, and (e) the full amount of all indebtedness or other
obligations of others ("primary obligors"), with respect to which
such Person is obligated pursuant to Guarantees, including
Indebtedness or other obligations for which such Person has
agreed, contingently or otherwise, to advance or supply funds, or
with respect to which such Person is contingently liable,
including, without limitation, indebtedness for borrowed money
and indebtedness guaranteed or supported indirectly by such
Person through an agreement, contingent or otherwise (i) to
purchase the indebtedness, or (ii) to purchase, sell, transport
or lease (as lessee or lessor) property at prices or in amounts
designed to enable the primary obligor to make payment of the
indebtedness or to assure the owner of the indebtedness against
loss, or (iii) to supply funds to or in any manner invest in the
primary obligor; provided, however, that although the
Indebtedness described under clause (e) above includes
indebtedness of primary obligors in support of which such Person
acts as an account party in respect of letters of credit or
letters of guaranty issued to support such indebtedness or
obligations, the Indebtedness described in clause (e) does not
mean or include either any standby or performance letters of
credit issued to a third party beneficiary to support the
Indebtedness or obligations of the Person whose Indebtedness is
being determined or indebtedness of such Person in respect of
which moneys sufficient to pay indebtedness (as such indebtedness
may be duly called for redemption and payment) shall be deposited
with a depository, agency or trustee in trust for the payment
thereof. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person is
not liable therefor.
<PAGE>
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Initial Guarantor" has the meaning set forth in the first
paragraph of Article VI.
"Interest Election Request" means a request by the Borrower
to convert or continue a Revolving or Term Borrowing in
accordance with Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR
Loan (other than a Swingline Loan), the last day of each March,
June, September and December, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of
a Eurocurrency Borrowing with an Interest Period of more than
three months' duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months'
duration after the first day of such Interest Period, (c) with
respect to any Fixed Rate Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Fixed Rate Borrowing with an Interest
Period of more than 90 days' duration (unless otherwise specified
in the applicable Competitive Bid Request), each day prior to the
last day of such Interest Period that occurs at intervals of 90
days' duration after the first day of such Interest Period, and
any other dates that are specified in the applicable Competitive
Bid Request as Interest Payment Dates with respect to such
Borrowing and (d) with respect to any Swingline Loan, the day
that such Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing
and ending on the numerically corresponding day in the calendar
month that is one, two, three or six months thereafter, as the
Borrower may elect, (b) with respect to any Fixed Rate Borrowing,
the period (which shall not be less than seven (7) days or more
than one hundred eighty (180) days) commencing on the date of
such Borrowing and ending on the date specified in the applicable
Competitive Bid Request; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless, in the case of a Eurocurrency Borrowing only, such
next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next
preceding Business Day, and (ii) any Interest Period pertaining
to a Eurocurrency Borrowing that commences on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"Issuing Bank" means The Chase Manhattan Bank, in its
capacity as the issuer of Letters of Credit hereunder, and its
successors in such capacity as provided in Section 2.06(i). The
Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Bank,
in which case the term "Issuing Bank" shall include any such
Affiliate with respect to Letters of Credit issued by such
Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
<PAGE>
"LC Exposure" means, at any time, the sum at such time of
(a) the aggregate undrawn amount of all outstanding Letters of
Credit denominated in Dollars, (b) the U.S. Dollar Equivalent of
the aggregate undrawn amount of all outstanding Letters of Credit
denominated in a Foreign Currency, (c) the aggregate amount of
all LC Disbursements denominated in Dollars that have not yet
been reimbursed by or on behalf of the applicable Borrower and
(d) the U.S. Dollar Equivalent of the aggregate amount of all LC
Disbursements denominated in a Foreign Currency that have not yet
been reimbursed by or on behalf of the applicable Borrower.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an
Assignment and Acceptance, other than any such Person that ceases
to be a party hereto pursuant to an Assignment and Acceptance.
Unless the context otherwise requires, the term "Lenders"
includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued
pursuant to this Agreement. The term "Letter of Credit" shall
include Bank Guarantees in the form customarily issued in the
Federal Republic of Germany or the Republic of Italy, as the case
may be.
"Leverage Ratio" at any time means the ratio of Consolidated
Funded Indebtedness as of the last day of the most recently
completed Fiscal Quarter to EBITDA for the twelve (12) month
period ending on such day.
"LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, the rate appearing on Page
3750 or Page 3740, as applicable, of the Telerate Service (or on
any successor or substitute pages of such Service, or any
successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such pages
of such Service, as determined by the Administrative Agent from
time to time for purposes of providing quotations of interest
rates applicable to deposits of the relevant Currency in the
London interbank market) at approximately 11:00 a.m., London
time, either two Business Days prior to the commencement of such
Interest Period, or, in the case of a Eurocurrency Borrowing
denominated in Pounds Sterling, on the first day of such Interest
Period, as the rate for deposits of the relevant Currency with a
maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Eurocurrency Borrowing for such
Interest Period shall be the rate at which deposits of the
relevant Currency for a maturity comparable to such Interest
Period are offered by the principal London office of the
Administrative Agent, in an amount comparable to the principal
amount of the Administrative Agent's share of the Borrowing to
which such Interest Period applies, in immediately available
funds in the London interbank market at approximately 11:00 a.m.,
London time, either two Business Days prior to the commencement
of such Interest Period or, in the case of a Eurocurrency
Borrowing denominated in Pounds Sterling, on the first day of
such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge
or security interest in, on or of such asset, (b) the interest of
a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the
<PAGE>
foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third
party with respect to such securities.
"Loan Documents" means this Agreement, each Pledge
Agreement, and each Guarantee of any of the Facility Obligations
that may hereafter be in effect.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of
interest, if any, to be added to or subtracted from the LIBO Rate
to determine the rate of interest applicable to such Loan, as
specified by the Lender making such Loan in its related
Competitive Bid.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition,
financial or otherwise, of the Primary Borrower and the
Subsidiaries taken as a whole, (b) the ability of any Borrower to
perform any of its obligations under this Agreement or any of the
other Loan Documents or (c) the rights of or benefits available
to the Lenders under this Agreement or any of the other Loan
Documents.
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or
more Hedging Agreements, of any one or more of the Primary
Borrower and its Subsidiaries in an aggregate principal amount
exceeding $2,500,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the
Primary Borrower or any Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Primary
Borrower or such Subsidiary would be required to pay if such
Hedging Agreement were terminated at such time.
"Maturity Date" means July 1, 2002.
"Monetary Union" has the meaning set forth in Section 2.20.
"Moody's" means Moody's Investor Service, Inc.
"MLA Cost" means the cost imputed to the Lenders of
compliance with the Mandatory Liquid Assets requirements of the
Bank of England during an Interest Period for a Loan denominated
in Pounds Sterling, determined in accordance with Schedule 1.01B.
"Multiemployer Plan" means a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any Prepayment Event
the U.S. Dollar Equivalent as of the date of receipt of (a) the
cash proceeds received by the Primary Borrower or any Subsidiary
in respect of such event including (i) any cash subsequently
received in respect of any proceeds or consideration originally
received in a form other than cash, but only as and when such
cash is received, (ii) in the case of a casualty, the amount of
insurance proceeds, and (iii) in the case of a condemnation or
similar event, the amount of condemnation awards and similar
payments, net of (b) the sum of (i) all fees and out-of-pocket
expenses paid or payable by the Primary Borrower or such
Subsidiary to third parties (other than Affiliates of the Primary
Borrower) in connection with such event (which amounts may be
reasonably estimated to the extent not then known), or (ii) in
the case of a sale or other disposition of an asset (including
pursuant to a casualty or condemnation), the amount of all
payments required to be made by the Primary Borrower or such
Subsidiary as a result of such event to repay Indebtedness (other
than Loans) secured by such asset or otherwise subject to
mandatory prepayment as a result of such event, and (iii) the
amount of all taxes paid (or reasonably estimated to be payable)
by the Primary Borrower or such Subsidiary during the year that
such event occurred or the next succeeding year, and the amount
of any reserves established by the Primary Borrower or such
Subsidiary to fund contingent liabilities reasonably estimated to
be payable, in each case that are directly attributable to such
event (as determined reasonably and in good faith by the chief
financial officer of the Primary Borrower); provided, however,
that (x) any excess of estimated fees and expenses under clause
(b)(i) over the actual amounts thereof shall constitute Net
Proceeds and be deemed to have been received on the date such
excess can be determined and (y) any excess of estimated taxes or
contingency reserves under clause (b)(iii) over the actual
amounts of taxes referred to in such clause or contingent
liabilities payable shall constitute Net Proceeds and be deemed
to have been received at the end of the period referred to in
such clause, in the case of taxes, and at the time any such
excess portion of the contingency reserve is reversed (and in the
amount of such reversal), in the case of contingency reserves.
"Other Subsidiary" means a Subsidiary that is not an
Affiliate Borrower.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges
or similar levies arising from any payment made under any Loan
Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement and under any other
Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity
performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet
due or are being contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance
with Section 5.05;
(c) pledges and deposits made in the ordinary course
of business in compliance with workers' compensation,
unemployment insurance and other social security laws or
regulations;
<PAGE>
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business; and
(e) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not
secure any monetary obligations and do not materially
detract from the value of the affected property or interfere
with the ordinary conduct of business of the Primary
Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include
any Lien securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the U.S. (or by any agency thereof to the
extent such obligations are backed by the full faith and
credit of the U.S.), in each case maturing within one year
from the date of acquisition thereof;
(b) investments in commercial paper maturing within
270 days from the date of acquisition thereof and having, at
such date of acquisition, the highest credit rating
obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from
the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank
organized under the laws of the U.S. or any State thereof
which has a combined capital and surplus and undivided
profits of not less than $500,000,000; and
(d) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in
clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c)
above.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"Pfauter-Maag Acquisition Agreement" means an agreement
providing for the acquisition by GW Acquisition Corp of the
minority interest in Pfauter-Maag Cutting Tools Limited
Partnership not held by Hermann Pfauter GmbH & Co., and all
schedules, exhibits, side letters and other documents attached to
or delivered with or in connection with such agreement.
"Pfauter Share Purchase Agreement" means the Share Purchase
Agreement between 21 individuals, as Sellers, and GW Acquisition
Corp., Gleason-Hurth Maschinen und Werkzeuge GmbH and Gleason
Maschinenfabrik GmbH, as Buyers, regarding the sale and purchase
of 100% of the limited partner capital of Hermann Pfauter GmbH &
Co., and all schedules, exhibits, side letters and other
<PAGE>
documents attached to or delivered with or in connection with
such Share Purchase Agreement.
"Plan" means any employee pension benefit plan (a) (other
than a Multiemployer Plan) subject to the provisions of Title IV
of ERISA or Section 412 of the Code or Section 302 of ERISA, and
in respect of which the Primary Borrower or any ERISA Affiliate
is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA, or (b) maintained by a Borrower or any Subsidiary
organized, incorporated or existing under the laws of a country
other than the U.S. which is subject to funding standards,
similar to those found in ERISA under the laws of the
Governmental Authority having jurisdiction over such plan.
"Pledge Agreement" means each of the Mortgage of Shares
required to be executed pursuant to Section 4.01(i) and 4.01(j)
and the Share Pledge Agreements (Verpfandungsvereinbarung)
required to be executed pursuant to Sections 4.01(k) through
4.01(m).
"Prepayment Event" means:
(a) any sale, transfer or other disposition
(including pursuant to a sale and leaseback transaction) of
any property or asset of the Primary Borrower or any
Subsidiary, other than (i) dispositions of inventory in the
ordinary course of business, (ii) dispositions in the
ordinary course of business of assets other than inventory,
to the extent that all such dispositions during any Fiscal
Year result in aggregate Net Proceeds less than One Million
Dollars ($1,000,000.00) or (iii) sales of real property
owned by the Subsidiaries known as the "Alliance Precision
Plastics Properties" and "Honeoye Falls Properties"; or
(b) any casualty or other insured damage to, or any
taking under power of eminent domain or by condemnation or
similar proceeding of, any property or asset of the Primary
Borrower or any Subsidiary, but only to the extent that the
Net Proceeds therefrom exceed One Million Dollars
($1,000,000.00) during any Fiscal Year and have not been
applied to repair, restore or functionally replace such
property or asset within two hundred seventy (270) days
after such Net Proceeds are received, or
(c) any Equity Issuance.
"Primary Borrower" means Gleason Corporation.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its
prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 9.04(c).
<PAGE>
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such
Person's Affiliates.
"Required Lenders" means, at any time, Lenders the sum of
whose Term Loan Exposures, Revolving Credit Exposures, unused
Term Loan Commitments and unused Revolving Credit Commitments
represent at least 66 2/3% of the sum of the total Term Loan
Exposures, Revolving Credit Exposures, unused Term Loan
Commitments and unused Revolving Credit Commitments at such time;
provided that, for purposes of declaring the Loans to be due and
payable pursuant to Article VII, and for all purposes after the
Loans become due and payable pursuant to Article VII or all
Commitments expire or terminate, the unused Commitments shall be
disregarded and the Competitive Loan Exposure of the Lenders
shall be included in their respective Revolving Credit Exposures
in determining the Required Lenders.
"Reset Date" shall have the meaning assigned to such term in
Section 1.05.
"Restricted Payment" means any dividend or other
distribution (whether in cash, securities or other property) with
respect to any shares of any class of capital stock of the
Primary Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund
or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such
shares of capital stock of the Primary Borrower or any Subsidiary
or any option, warrant or other right to acquire any such shares
of capital stock of the Primary Borrower or any Subsidiary.
"Revolving Credit Commitment" means, with respect to each
Lender, the commitment of such Lender, expressed in Dollars, to
make Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, as such commitment may be
(a) permanently reduced from time to time pursuant to Section
2.09 and Section 2.11, and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Revolving
Credit Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall
have assumed its Commitment, as applicable. The initial
aggregate amount of the Revolving Credit Commitments is
$110,000,000.
"Revolving Credit Exposure" means, at any time, the sum of
the outstanding principal amount of Revolving Loans denominated
in Dollars, the U.S. Dollar Equivalent of Revolving Loans
denominated in Foreign Currencies, the LC Exposure and the
Swingline Exposure at such time. The Revolving Credit Exposure
of any Lender at any time shall be the sum of the outstanding
principal amount of such Lender's Revolving Loans denominated in
Dollars, the U.S. Dollar Equivalent of such Lender's Revolving
Loans denominated in Foreign Currencies, such Lender's Applicable
Percentage of the LC Exposure and such Lender's Swingline
Exposure at such time.
"Revolving Credit Sublimit" means, with respect to each
Affiliate Borrower, its Revolving Credit Sublimit, expressed in
Dollars, set forth on Schedule 2.01.
<PAGE>
"Revolving Loan" means a Loan designated as such and made
pursuant to Section 2.03.
"S&P" means Standard & Poors.
"Statutory Reserve Rate" means with respect to any Currency,
a fraction (expressed as a decimal), the numerator of which is
the number one and the denominator of which is the number one
minus the aggregate of the maximum reserve, liquid asset or
similar percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by
any Governmental Authority of the United States or of the
jurisdiction of such currency or in which any subject Loans in
such Currency are made to which banks in such jurisdiction are
subject for any category of deposits or liabilities customarily
used to fund loans in such Currency or by reference to which
interest rates applicable to Loans in such Currency are
determined. Such reserve, liquid asset or similar percentages
shall, in the case of Dollars, include those imposed pursuant to
Regulation D (and for purposes of Regulation D, Eurocurrency
Loans shall be deemed to constitute Eurocurrency Liabilities).
Loans shall be deemed to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under
Regulation D or any other applicable law, rule or regulation.
The Statutory Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person (the
"parent") at any date, any corporation, limited liability
company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the
parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities
or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, Controlled or held, or
(b) that is, as of such date, otherwise Controlled, by the parent
or one or more subsidiaries of the parent or by the parent and
one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Primary Borrower.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time.
The Swingline Exposure of any Lender at any time shall be the
aggregate amount of the participations that such Lender has
purchased and could be required to purchase in outstanding
Swingline Loans.
"Swingline Lender" means The Chase Manhattan Bank, in its
capacity as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by
any Governmental Authority.
<PAGE>
"Term Loan" means a Loan designated as such and made
pursuant to Section 2.03.
"Term Loan Commitment" means, with respect to each Lender,
the commitment of such Lender to make Term Loans in the maximum
aggregate principal amount described as its Total Commitment
Expressed in Dollars in Paragraph 2a of Schedule 2.01. Each
Lender's Term Loan Commitment equals the sum of such Lender's
Term Loan Commitment for Dollars and its Term Loan Commitment for
Deutsche Marks.
"Term Loan Commitment for Deutsche Marks" means, with
respect to each Lender, the Commitment of such Lender to make
Term Loans denominated in Deutsche Marks in the maximum aggregate
principal amount, expressed in Dollars, set forth in Paragraph 2a
of Schedule 2.01.
"Term Loan Commitment for Dollars" means, with respect to
each Lender, the Commitment of such Lender to make Term Loans
denominated in Dollars in the maximum aggregate principal amount
set forth in Paragraph 2a of Schedule 2.01.
"Term Loan Exposure" means, at any time, the sum of the
aggregate principal amount borrowed, of all Term Loans
denominated in Dollars and the U.S. Dollar Equivalent of the
aggregate principal amount borrowed of all Term Loans denominated
in Deutsche Marks. The Term Loan Exposure of any Lender at any
time means the aggregate principal amount borrowed of such
Lender's Term Loans denominated in Dollars and the U.S. Dollar
Equivalent of the aggregate principal amount borrowed of such
Lender's Term Loans denominated in Deutsche Marks.
"Term Loan Percentage" means, with respect to any Lender,
(a) as it relates to a Borrowing of Term Loans denominated in
Deutsche Marks, the percentage of the total of all Term Loan
Commitments for Deutsche Marks represented by such Lender's Term
Loan Commitment for Deutsche Marks and (b) as it relates to a
Borrowing of Term Loans denominated in Dollars, the percentage of
the total of all Term Loan Commitments for Dollars represented by
such Lender's Term Loan Commitment for Dollars. The Term Loan
Percentages for each Lender are set forth in Schedule 2.01.
"Transactions" means the execution, delivery and performance
by the Borrowers of this Agreement and the other Loan Documents,
the borrowing of Loans, the use of the proceeds thereof and the
issuance of Letters of Credit hereunder.
"Transition Period" means the 90 day period beginning on the
Effective Date.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the
Loans comprising such Borrowing, is determined by reference to
the Adjusted LIBO Rate, the Alternate Base Rate or, in the case
of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed
Rate.
"U.S." means the United States of America.
"U.S. Dollar Equivalent" means, on any date of
determination, with respect to any amount in any Foreign
Currency, the equivalent in Dollars of such amount, determined by
<PAGE>
the Administrative Agent using the Exchange Rate with respect to
such Foreign Currency then in effect as determined pursuant to
Section 1.05.
"Withdrawal Liability" means liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred
to by Class (e.g., a "Revolving Loan") or by Type (e.g., a
"Eurocurrency Loan") or by Class and Type (e.g., a "Eurocurrency
Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a
"Eurocurrency Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms
herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation". The
word "will" shall be construed to have the same meaning and
effect as the word "shall". Unless the context requires
otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject
to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any
Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and
words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and
(e) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible
and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or
financial nature shall be construed, and all financial
information and reports provided pursuant to this Agreement shall
be prepared, in accordance with GAAP, as in effect from time to
time; provided that, if the Primary Borrower notifies the
Administrative Agent that the Primary Borrower requests an
amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Primary Borrower that the
Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given
before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change
shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
<PAGE>
SECTION 1.05. Currency Equivalents; Currency Fluctuations.
Not later than 1:00 p.m., New York City time, on each Calculation
Date, the Administrative Agent shall (i) determine the Exchange
Rate as of such Calculation Date with respect to each Foreign
Currency and (ii) give notice thereof to the Primary Borrower and
the Lenders. The Exchange Rates so determined shall become
effective on the first Business Day immediately following the
relevant Calculation Date (each a "Reset Date"), shall remain
effective until the next succeeding Reset Date and shall during
the period of their effectiveness be employed in making any
computation of Currency equivalents required to be made under
this Agreement (other than any computation required under Section
9.14). Not later than 5:00 p.m., New York City time, on the date
of each Borrowing, on the date of each issuance of any Letter of
Credit and on the date of each reduction under Section 2.09 or
prepayment under Section 2.11 involving any Foreign Currency, the
Administrative Agent shall (i) determine the U.S. Dollar
Equivalents, based on the Exchange Rates in effect as provided in
the preceding sentence, of each Foreign Currency Loan and each
Letter of Credit and LC Disbursement then outstanding denominated
in a Foreign Currency (after giving effect to any Foreign
Currency Loan made or repaid on such date and any Letter of
Credit or LC Disbursement denominated in a Foreign Currency
issued, retired, made or repaid, as applicable, on such date) and
(ii) notify the Primary Borrower and the Lenders of the results
of such determination.
ARTICLE II
The Credits
SECTION 2.01. Commitments.
(a) Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to any
Borrower in any Currency from time to time during the
Availability Period; provided, that no Borrowing shall be made
hereunder that would result in (i) the Revolving Credit Exposure
of such Lender exceeding (or further exceeding) such Lender's
Revolving Credit Commitment, or (ii) the sum of the Revolving
Credit Exposure and the total of all Competitive Loan Exposures
exceeding (or further exceeding) the total Revolving Credit
Commitments. Each Revolving Borrowing shall be made on a pro
rata basis by the Lenders based upon their respective Applicable
Percentages. Within the foregoing limits and subject to the
terms and conditions set forth herein, any Borrower may borrow,
prepay and reborrow Revolving Loans.
(b) Subject to the terms and conditions set forth
herein, each Lender agrees to make Term Loans during the
Transition Period in the amounts and Currencies, and to the
Borrowers, set forth in Paragraph 2 of Schedule 2.01; provided,
that no Borrowing of Term Loans shall be made hereunder that
would result in (i) the Term Loan Exposure of such Lender
exceeding (or further exceeding) such Lender's Term Loan
Commitment, or (ii) any Borrower receiving a Term Loan Borrowing
greater in amount or comprised of a different Currency than is
set forth for such Borrower in Paragraph 2b of Schedule 2.01, or
(iii) the U.S. Dollar Equivalent of the aggregate principal
<PAGE>
amount, borrowed of such Lender's Term Loans denominated in
Deutsche Marks exceeding (or further exceeding) the U.S. Dollar
Equivalent of such Lender's Term Loan Commitment for Deutsche
Marks, or (iv) the aggregate principal amount borrowed of such
Lender's Term Loans denominated in Dollars exceeding (or further
exceeding) such Lender's Term Loan Commitment for Dollars. Once
a Term Loan is repaid or prepaid, it may not be reborrowed.
(c) (i) No Affiliate Borrower shall have the right
to borrow any Revolving Loan, Swingline Loan or Competitive Loan
that would cause the sum of the portions of the total Revolving
Credit Exposure and the total Competitive Loan Exposures
outstanding to such Borrower to exceed such Borrower's Revolving
Credit Sublimit.
(ii) In addition, no Affiliate Borrower shall have the
right to borrow any Revolving Loan, Swingline Loan or Competitive
Loan that would cause the sum of the portions of the total
Revolving Credit Exposure and the total Competitive Loan
Exposures outstanding to the "family" of which such Borrower is a
member to exceed the Revolving Credit Sublimit of the "parent" of
such "family". For purposes of this clause (ii) the Affiliate
Borrower "families" are as follows:
Parent Other Members
Gleason Germany (Holdings) GmbH Hermann Pfauter GmbH & Co.
Gleason Maschinenfabrik GmbH
Gleason-Hurth Maschinen und
Werkzeuge GmbH
GW Acquisition Corp. American Pfauter L.P.
Pfauter-Maag Cutting Tools
Limited Partnership
Gleason Works (Holdings) Gleason Works Limited
Limited
(iii) For purposes of Clauses (i) and (ii) above, if,
at any time, the proceeds of any Loans are advanced, loaned or
contributed as equity to any Affiliate Borrower by any other
Borrower, either directly or through an Other Subsidiary, and
such proceeds have not been repaid or returned by such Affiliate
Borrower, such Affiliate Borrower's unused Revolving Credit
Sublimit shall be deemed reduced, and the portion of the
Revolving Credit Exposure outstanding to such Affiliate
Borrower's "family" will be deemed to be increased, by the amount
that has not been repaid or returned, as if such Affiliate
Borrower had borrowed a Revolving Loan in that amount directly
from the Lenders.
SECTION 2.02. Loans and Borrowings.
(a) Each Revolving Loan shall be made as part of a
Borrowing consisting of such Loans made by the Lenders ratably in
accordance with their respective Applicable Percentages. Each
Term Loan shall be made as part of a Borrowing consisting of
Loans denominated in either Deutsche Marks or Dollars made by the
Lenders ratably in accordance with their respective Term Loan
Percentages for the applicable Currency. Each Competitive Loan
shall be made in accordance with the procedures set forth in
Section 2.04. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments and
<PAGE>
Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Sections 2.14 and 2.15, (i) each
Revolving Borrowing or Term Borrowing of Dollars shall be
comprised entirely of ABR Loans or Eurocurrency Loans as a
Borrower may request in accordance herewith, (ii) each Revolving
Borrowing or Term Borrowing of a Foreign Currency shall be
comprised entirely of Eurocurrency Loans, and (iii) each
Competitive Borrowing shall be comprised entirely of Eurocurrency
Loans or Fixed Rate Loans as a Borrower may request in accordance
herewith. Each Swingline Loan shall be an ABR Loan, or shall
accrue interest as otherwise set forth in Section 2.05. Each
Lender at its option may make any Eurocurrency Loan by causing
any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for
any Eurocurrency Revolving Borrowing or Eurocurrency Term
Borrowing, such Borrowing shall be in an aggregate amount that
(i) if such Borrowing is denominated in Dollars, is an integral
multiple of Five Hundred Thousand Dollars ($500,000.00) and not
less than Two Million Dollars ($2,000,000.00) and (ii) if such
Borrowing is not denominated in Dollars, is in an aggregate
principal amount the U.S. Dollar Equivalent of which is not less
than $2,000,000. At the time that each ABR Revolving Borrowing
or ABR Term Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $100,000 and not
less than $1,000,000; provided that an ABR Revolving Borrowing
may be in a lesser aggregate amount that is equal to the entire
unused balance of the total Revolving Credit Commitments or that
is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(e). Each Competitive Borrowing
shall be in an aggregate amount that is an integral multiple of
One Million Dollars ($1,000,000.00) and not less than Ten Million
Dollars ($10,000,000.00). Each Swingline Loan shall be in an
amount that is an integral multiple of $10,000 and not less than
$100,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at
any time be more than a total of 15 Eurocurrency Borrowings
outstanding.
(d) Notwithstanding any other provision of this
Agreement, a Borrower shall not be entitled to request, or to
elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the
Maturity Date.
SECTION 2.03. Requests for Term and Revolving Borrowings.
To request a Term Borrowing or a Revolving Borrowing, a Borrower
shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurocurrency Borrowing, not later
than 11:00 a.m., New York City time, four Business Days (three
Business Days for Borrowings denominated in Dollars) before the
date of the proposed Borrowing, or (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; provided
that any such notice of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by
Section 2.06(e) may be given not later than 10:00 a.m., New York
City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form
<PAGE>
approved by the Administrative Agent and signed by the Borrower
thereof. Each such telephonic and written Borrowing Request
shall specify the following information:
(i) the identity of the Borrower, whether it is a
Term or a Revolving Borrowing, the Type of
Borrowing, and the aggregate amount and the
Currency of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) if the Borrowing Currency is Dollars, whether
such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the
initial Interest Period to be applicable
thereto, which shall be a period contemplated by
the definition of the term "Interest Period";
and
(v) the location and number of the Borrower's
account to which funds are to be disbursed,
which shall comply with the requirements of
Section 2.07.
If no election as to the Type of Borrowing of Dollars is
specified, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to
any requested Eurocurrency Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month's
duration. If no election as to Currency is specified with
respect to any Eurocurrency Revolving Borrowing, then the
applicable Borrower shall be deemed to have selected Dollars.
Promptly following receipt of a Borrowing Request in accordance
with this Section, the Administrative Agent shall advise each
Lender of the details thereof and of the amount of such Lender's
Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure.
(a) Subject to the terms and conditions set forth
herein, from time to time during the Availability Period any
Borrower may request Competitive Bids and may (but shall not have
any obligation to) accept Competitive Bids and borrow Competitive
Loans; provided that (i) the sum of the Revolving Credit Exposure
plus the total Competitive Loan Exposures at any time shall not
exceed the total Revolving Credit Commitments and (ii) with
respect to any Affiliate Borrower, the sum of the portions of the
Revolving Credit Exposure and of the total of all Competitive
Loan Exposures that are attributable to such Affiliate Borrower
at any time shall not exceed such Affiliate Borrower's Revolving
Credit Sublimit, as computed in accordance with Section 2.01 (c).
To request Competitive Bids, a Borrower shall notify the
Administrative Agent of such request by telephone, in the case of
a Eurocurrency Borrowing, not later than 11:00 a.m., New York
City time, six Business Days (five Business Days for Borrowings
denominated in Dollars) before the date of the proposed Borrowing
and, in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., New York City time, two Business Days before the date
of the proposed Borrowing; provided that the Borrower may submit
up to (but not more than) 2 Competitive Bid Requests on the same
<PAGE>
day, but a Competitive Bid Request shall not be made within six
Business Days (five Business Days for Borrowings denominated in
Dollars) after the date of any previous Competitive Bid Request,
unless any and all such previous Competitive Bid Requests shall
have been withdrawn or all Competitive Bids received in response
thereto rejected. Each such telephonic Competitive Bid Request
shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a
form approved by the Administrative Agent and signed by the
Borrower. Each such telephonic and written Competitive Bid
Request shall specify the following information:
(i) the identity of the Borrower and the aggregate
amount and Currency of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be a Eurocurrency
Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such
Borrowing, which shall be a period contemplated
by the definition of the term "Interest Period";
and
(v) the location and number of the Borrower's
account to which funds are to be disbursed,
which shall comply with the requirements of
Section 2.07.
Promptly following receipt of a Competitive Bid Request in
accordance with this Section, the Administrative Agent shall
notify the Lenders of the details thereof by telecopy, inviting
the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any
obligation to) make one or more Competitive Bids to the
requesting Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by
the Administrative Agent and must be received by the
Administrative Agent by telecopy, in the case of a Eurocurrency
Competitive Borrowing, not later than 9:30 a.m., New York City
time, four Business Days (three Business Days for Borrowings
denominated in Dollars) before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing,
not later than 9:30 a.m., New York City time, on the Business Day
before the proposed date of such Competitive Borrowing.
Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the
Administrative Agent, and the Administrative Agent shall notify
the applicable Lender as promptly as practicable. Each
Competitive Bid, including each Competitive Bid that is submitted
when more than one Competitive Bid Request is outstanding, shall
specify (i) the principal amount (which in the case of a
Competitive Bid in respect of Competitive Loans denominated in
Dollars shall be a minimum of Ten Million Dollars
($10,000,000.00) and an integral multiple of One Million Dollars
($1,000,000.00) and in the case of a Competitive Bid in respect
of Competitive Loans denominated in a Foreign Currency shall have
a minimum U.S. Dollar Equivalent which is not less than
$10,000,000 and which may equal the entire principal amount of
the Competitive Borrowing requested by the Borrower) of the
<PAGE>
Competitive Loan or Loans that the Lender is willing to make,
(ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage
rate per annum in the form of a decimal to no more than four
decimal places) and (iii) the Interest Period applicable to each
such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify
the Borrower by telecopy of the Competitive Bid Rate and the
principal amount specified in each Competitive Bid and the
identity of the Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph,
the Borrower may accept or reject any Competitive Bid. The
Borrower shall notify the Administrative Agent by telephone,
confirmed by telecopy in a form approved by the Administrative
Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurocurrency
Competitive Borrowing, not later than 11:00 a.m., New York City
time, four Business Days before the date of the proposed
Competitive Borrowing, and in the case of a Fixed Rate Borrowing,
not later than 11:00 a.m., New York City time, on the Business
Day before the proposed date of the Competitive Borrowing;
provided that (i) the failure of the Borrower to give such notice
shall be deemed to be a rejection of each Competitive Bid,
(ii) the Borrower shall not accept a Competitive Bid made at a
particular Competitive Bid Rate if the Borrower rejects a
Competitive Bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by the Borrower
shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Bid
Request, (iv) to the extent necessary to comply with clause (iii)
above, the Borrower may accept Competitive Bids at the same
Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such
Competitive Bid, and (v) except pursuant to clause (iv) above, no
Competitive Bid shall be accepted for a Competitive Loan unless
such Competitive Loan is, if denominated in Dollars, in a minimum
principal amount of Five Million Dollars ($5,000,000.00) and an
integral multiple of One Million Dollars ($1,000,000.00) or, if
denominated in a Foreign Currency, an amount the U.S. Dollar
Equivalent of which is not less than $5,000,000; provided further
that if a Competitive Loan must be in an amount less than
$5,000,000 or the U.S. Dollar Equivalent thereof in the
applicable Currency because of the provisions of clause (iv)
above, such Competitive Loan may be for a minimum of One Million
Dollars ($1,000,000.00) or the U.S. Dollar Equivalent thereof in
the applicable Currency or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of
multiple Competitive Bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to integral
multiples of One Million Dollars ($1,000,000.00), or the U.S.
Dollar Equivalent thereof in the applicable Currency, in a manner
determined by the Borrower. A notice given by the Borrower
pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify
each bidding Lender by telecopy whether or not its Competitive
Bid has been accepted (and, if so, the amount and Competitive Bid
Rate so accepted), and each successful bidder will thereupon
become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has
been accepted.
<PAGE>
(f) If the Administrative Agent shall elect to submit
a Competitive Bid in its capacity as a Lender, it shall submit
such Competitive Bid directly to the Borrower at least one
quarter of an hour earlier than the time by which the other
Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Swingline Loans.
(a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans in
Dollars to the Primary Borrower or The Gleason Works from time to
time during the Availability Period, in an aggregate principal
amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans
exceeding Ten Million Dollars ($10,000,000.00), (ii) Swingline
Lender's Revolving Credit Exposure, exceeding its Revolving
Credit Commitment or (iii) the sum of the Revolving Credit
Exposure plus the total Competitive Loan Exposures exceeding the
total Revolving Credit Commitments; provided that the Swingline
Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein,
each such Borrower may borrow, prepay and reborrow Swingline
Loans. Each Swingline Loan shall bear interest at the lower of
the Alternate Base Rate or such rate of interest, if any, as the
Swingline Lender may offer to the Borrower of such Loan at the
time of such Borrower's notice pursuant to Section 2.05(b).
(b) To request a Swingline Loan, a Borrower shall
notify the Administrative Agent of such request by telephone
(confirmed by telecopy), not later than 12:00 noon, New York City
time, on the day of a proposed Swingline Loan. Each such notice
shall be irrevocable and shall specify the requested date (which
shall be a Business Day) and amount of the requested Swingline
Loan. The Administrative Agent will promptly advise the
Swingline Lender of any such notice received from the requesting
Borrower. The Swingline Lender shall (i) notify the requesting
Borrower of any interest rate that is lower than the Alternate
Base Rate that the Swingline Lender may, in its discretion, offer
to the Borrower for such Loan, and (ii) make each Swingline Loan
available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in
the case of a Swingline Loan made to finance the reimbursement of
an LC Disbursement as provided in Section 2.06(e), by remittance
to the Issuing Bank), in each case by 3:00 p.m., New York City
time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given
to the Administrative Agent not later than 10:00 a.m., New York
City time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the
Swingline Loans outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Lender,
specifying in such notice such Lender's Applicable Percentage of
such Swingline Loan or Loans. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the
Swingline Lender, such Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and
<PAGE>
shall not be affected by any circumstance whatsoever, including
the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under
this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.07 with respect to
Loans made by such Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender
the amounts so received by it from the Lenders. The
Administrative Agent shall notify the Primary Borrower of any
participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender
from a Borrower (or other party on behalf of a Borrower) in
respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Lenders that shall have made
their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Borrower of any default in the payment
thereof.
SECTION 2.06. Letters of Credit.
(a) General. Subject to the terms and conditions set
forth herein, any Borrower may request the issuance of Letters of
Credit for its own account, denominated in any Currency in a form
reasonably acceptable to the Administrative Agent and the Issuing
Bank, at any time and from time to time during the Availability
Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any
form of letter of credit application or other agreement submitted
by a Borrower to, or entered into by a Borrower with, the Issuing
Bank relating to any Letter of Credit, the terms and conditions
of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal,
Extension; Certain Conditions. To request the issuance of a
Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), a Borrower shall hand deliver or
telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank)
to the Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended,
renewed or extended, the date of issuance, amendment, renewal or
extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the
amount and Currency of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as
shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the requesting
Borrower also shall submit a letter of credit application on the
Issuing Bank's standard form in connection with any request for a
Letter of Credit. A Letter of Credit shall not be issued,
amended, renewed or extended if after giving effect to such
issuance, amendment, renewal or extension (i) the LC Exposure
would exceed $40,000,000.00, (ii) the Revolving Credit Exposure
of any Lender would exceed such Lender's Revolving Credit
<PAGE>
Commitment or (iii) the sum of the total Revolving Credit
Exposure and the total Competitive Loan Exposures would exceed
the total Revolving Credit Commitments; and upon issuance,
amendment, renewal or extension of each Letter of Credit the
requesting Borrower shall be deemed to represent and warrant that
none of the foregoing consequences will result.
(c) Expiration Date. Each Letter of Credit shall
expire at or prior to the close of business on the earlier of
(i) the date one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the
date that is five Business Days prior to the Maturity Date;
provided, however, that Bank Guarantees issued in the Federal
Republic of Germany or in the Republic of Italy, as the case may
be, are not subject to this provision.
(d) Participations. By the issuance of a Letter of
Credit (or an amendment to a Letter of Credit increasing the
amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to
each Lender, and each Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such
Lender's Applicable Percentage of the aggregate amount available
to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, in the Currency in which such LC
Disbursement was made, and at the designated office of the
Administrative Agent in New York, for Dollar LC Disbursements, or
in London, for LC Disbursements in a Foreign Currency, such
Lender's Applicable Percentage of each LC Disbursement made by
the Issuing Bank and not reimbursed by any Borrower on the date
due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for
any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including
any amendment, renewal or extension of any Letter of Credit or
the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If the Issuing Bank shall make
any LC Disbursement in respect of a Letter of Credit, the
Borrower for whom the Letter of Credit was issued shall reimburse
such LC Disbursement by paying to the Administrative Agent, in
the Currency in which such LC Disbursement was made, and at the
designated office of the Administrative Agent in New York, for
Dollar LC Disbursements, or in London, for LC Disbursements in a
Foreign Currency, an amount equal to such LC Disbursement not
later than 2:00 p.m., New York City time or London time, as
appropriate, on the date that such LC Disbursement is made, if
the applicable Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City or London time,
on such date, or, if such notice has not been received by such
Borrower prior to such time on such date, then not later than
2:00 p.m., New York City or London time, on (i) the Business Day
that such Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City or London time, on
the day of receipt, or (ii) the Business Day immediately
following the day that such Borrower receives such notice, if
such notice is not received prior to such time on the day of
receipt; provided that, if such LC Disbursement is not less than
$1,000,000 or the U.S. Dollar Equivalent thereof in another
<PAGE>
applicable Currency, such Borrower may, prior to the time as of
which the reimbursement payment is due, and subject to all
conditions to borrowing set forth herein, request in accordance
with Section 2.03 or 2.05 that such payment be financed, in the
case of an LC Disbursement in Dollars, with an ABR Revolving
Borrowing or Swingline Loan in an equivalent amount or, in the
case of an LC Disbursement in a Foreign Currency, with a
Eurocurrency Borrowing in such Foreign Currency in an equivalent
amount and, to the extent so financed, the Borrower's obligation
to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing, Swingline Loan or Eurocurrency
Borrowing. If a Borrower fails to make such payment or such
request prior to the time such payment is due, the Administrative
Agent shall notify each Lender of the applicable LC Disbursement,
the payment then due from the Borrower in respect thereof and
such Lender's Applicable Percentage thereof. Promptly following
receipt of such notice, each Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment
then due from the Borrower, in the same Currency as the LC
Disbursement and in the same manner as provided in Section 2.07
with respect to Loans made by such Lender (and Section 2.07 shall
apply, mutatis mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the
Issuing Bank in such Currency the amounts so received by it from
the Lenders. Promptly following receipt by the Administrative
Agent of any payment from a Borrower pursuant to this paragraph,
the Administrative Agent shall distribute such payment, in the
Currency received, to the Issuing Bank or, to the extent that
Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Bank, then to such Lenders and the Issuing
Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any
LC Disbursement (other than the funding of ABR Revolving Loans,
or Eurocurrency Loans or a Swingline Loan as contemplated above)
shall not constitute a Loan and shall not relieve the relevant
Borrower of its obligation to reimburse such LC Disbursement.
Each Borrower will from time to time upon demand reimburse (i)
the Issuing Bank for costs or losses incurred by the Issuing Bank
in currency transactions entered into in connection with the
making of Letters of Credit available to such Borrower in any
Foreign Currency and (ii) each Lender for costs or losses
incurred by such Lender in currency transactions entered into in
connection with any payment by such Lender pursuant to this
paragraph (e) to the Administrative Agent of such Lender=s
Applicable Percentage of any payment due from Borrower under this
paragraph (e).
(f) Obligations Absolute. Any Borrower's obligation
to reimburse LC Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate
in any respect, (iii) payment by the Issuing Bank under a Letter
of Credit against presentation of a draft or other document that
does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither the Administrative
Agent, the Lenders nor the Issuing Bank, nor any of their Related
Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder
<PAGE>
(irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence
or wilful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing
Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with
respect to documents presented which appear on their face to be
in substantial compliance with the terms of a Letter of Credit,
the Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to
the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall,
promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the appropriate Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether
the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving
such notice shall not relieve such Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any
such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make
any LC Disbursement, then, unless the Borrower for whom the
Letter of Credit was issued shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding
the date that such Borrower either reimburses such LC
Disbursement or finances its reimbursement obligation with a
Borrowing pursuant to Paragraph (e) of this Section, at the rate
per annum then applicable to ABR Revolving Loans or, if higher,
in the case of any amount denominated in a Foreign Currency, the
cost to the Issuing Bank or the Lenders, as applicable, as
determined by the Administrative Agent, of maintaining such
outstanding amount in the applicable Currency; provided that, if
such Borrower fails to reimburse or finance such LC Disbursement
when due pursuant to paragraph (e) of this Section, then Section
2.13(e) shall apply. Interest accrued pursuant to this paragraph
shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the
extent of such payment.
<PAGE>
(i) Replacement of the Issuing Bank. The Issuing
Bank may be replaced by another Lender at any time by written
agreement among the Borrower, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Bank. At the time any such
replacement shall become effective, each Borrower for whom an
outstanding Letter of Credit was issued shall pay all unpaid fees
accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the
rights and obligations of the Issuing Bank under this Agreement
with respect to Letters of Credit to be issued thereafter and
(ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context
shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization on Default. If any Event
of Default shall occur and be continuing, on the Business Day
that the Borrower for whom an outstanding Letter of Credit was
issued receives notice from the Administrative Agent or the
Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing greater than
66 2/3% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, each such Borrower shall
deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Lenders,
an amount in cash in each Currency equal to the portion of the LC
Exposure denominated in such Currency as of such date plus any
accrued and unpaid interest thereon; provided that the obligation
to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to any such
Borrower described in clause (h) or (i) of Article VII. Such
deposit shall be held by the Administrative Agent as collateral
for the payment and performance of the obligations of the
depositing Borrower under this Agreement. The Administrative
Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of
the Administrative Agent and at the depositing Borrower's risk
and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the depositing Borrower for the LC
Exposure related to such Borrower at such time or, if the
maturity of the Loans has been accelerated (but subject to the
consent of Lenders with LC Exposure representing greater than 66
2/3% of the total LC Exposure), be applied to satisfy other
obligations of the depositing Borrower under this Agreement. If
any Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be
returned to the depositing Borrower within three Business Days
after all Events of Default have been cured or waived.
<PAGE>
(k) Cash Collateralization for Bank Guarantees. If
on the Maturity Date, there shall remain any amount for which the
Issuing Bank shall remain obligated under any Bank Guarantee that
will expire by its terms after the Maturity Date (a "Continuing
Bank Guarantee"), each Borrower for whose benefit each Continuing
Bank Guarantee was issued shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and
for the benefit of the Lenders, an amount in cash in each
Currency equal to the portion of the LC Exposure denominated in
such Currency and attributable to each Continuing Bank Guarantee
as of such date. Such deposit shall be held by the
Administrative Agent as collateral for the payment and
performance of the obligations of the depositing Borrower under
this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on
the investment of such deposit, which investment shall be made at
the option and sole discretion of the Administrative Agent and at
the depositing Borrower's risk and expense, such deposit shall
not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Monies in such
account shall be applied by the Administrative Agent to reimburse
the Issuing Bank for LC Disbursements attributable to each
Continuing Bank Guarantee and for which it has not been
reimbursed and, to the extent not so applied, shall be held for
the satisfaction of the reimbursement obligations of the
depositing Borrower for the LC Exposure related to such Borrower
and attributable to each Continuing Bank Guarantee at such time
or, if any Loans then remain unpaid (but subject to the consent
of the Lenders with LC Exposure representing greater than 66 2/3%
of the total LC Exposure with respect to the Continuing Bank
Guarantees), such monies shall be applied to satisfy other
obligations of the depositing Borrower under this Agreement. To
the extent that any depositing Borrower has already deposited
funds with the Administrative Agent pursuant to Section 2.06(j),
that are attributable to any Continuing Bank Guarantee, the
depositing Borrower shall receive credit under this Section
2.06(k) for the amount so deposited.
(l) Existing Letters of Credit. Each of the
outstanding letters of credit referred to in Section 3.20 as the
obligation of a pre Acquisition Subsidiary, each of which is
issued by The Chase Manhattan Bank, shall automatically become a
Letter of Credit, for all purposes of this Agreement, on the
Effective Date with the same effect as if it had been issued on
the Effective Date, and The Chase Manhattan Bank shall be deemed
the Issuing Bank with respect thereto.
SECTION 2.07. Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of
immediately available funds in the Currency being borrowed by
12:00 noon, New York City time, in the case of Dollar Borrowings,
and not later than 12:00 noon, London time, in the case of
Foreign Currency Borrowings, to the account of the Administrative
Agent most recently designated by it for such purpose by notice
to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.05. The Administrative Agent will make
such Loans available to the appropriate Borrower by promptly
crediting the amounts so received, in like funds, to an account
of such Borrower maintained with the Administrative Agent in New
York City for Borrowers located in the United States, and in
London, for Borrowers located outside the United States, as
designated by such Borrower in the applicable Borrowing Request
<PAGE>
or Competitive Bid Request; provided that Loans made to finance
the reimbursement of an LC Disbursement as provided in Section
2.06(e) shall be remitted by the Administrative Agent to the
Issuing Bank. From time to time the Administrative Agent may as
it deems necessary or appropriate specify alternative procedures
for funding Foreign Currency Loans or for payments in respect of
Letters of Credit or LC Disbursements denominated in a Foreign
Currency.
(b) Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make
available to the appropriate Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then
the applicable Lender and such Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the
date such amount is made available to such Borrower to but
excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest
rate applicable to the subject Loan. If such Lender pays such
amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.08. Interest Elections for Term and Revolving
Borrowings.
(a) Each Term and Revolving Borrowing initially shall
be of the Type specified in the applicable Borrowing Request and,
in the case of a Eurocurrency Term or Revolving Borrowing, shall
have an initial Interest Period as specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert any such
Borrowing that is denominated in Dollars to a Borrowing of a
different Type or to continue such Borrowing as the same Type;
and, in the case of any Eurocurrency Borrowing, the Borrower may
elect initial and successive Interest Periods therefor, all as
provided in this Section. Eurocurrency Borrowings in Dollars may
only be converted to ABR Borrowings at the end of an Interest
Period. Subject to Section 2.02(c), the Borrower may elect
different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising
such Borrowing, and the Loans comprising each such portion shall
be considered a separate Borrowing. This Section 2.08 shall not
apply to Competitive Borrowings or Swingline Borrowings, which
may not be converted or continued, and it shall not be construed
to permit any Borrower to change the Currency of any Borrowing or
to convert a Foreign Currency Borrowing to an ABR Borrowing,
which change or conversion shall not be permitted except as
provided in Section 2.15.
(b) To make an election pursuant to this Section, a
Borrower shall notify the Administrative Agent of such election
by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a new
Term or Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each
such telephonic Interest Election Request shall be irrevocable
<PAGE>
and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Interest Election Request
in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election
Request shall specify the following information in compliance
with Sections 2.02 and 2.03:
(i) the Borrowing to which such Interest Election
Request applies and, if different options are being
elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting
Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting Borrowing);
(ii) the effective date of the election made
pursuant to such Interest Election Request, which shall
be a Business Day;
(iii) in the case of a Dollar Borrowing,
whether the resulting Borrowing is to be an ABR
Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a
Eurocurrency Borrowing, the Interest Period to be
applicable thereto after giving effect to such
election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request requests a Eurocurrency
Borrowing but does not specify an Interest Period, then the
Borrower shall be deemed to have selected an Interest Period of
one month's duration.
(d) Promptly following receipt of an Interest
Election Request, the Administrative Agent shall advise each
Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) If a Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Borrowing prior
to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the
expiration of such Interest Period (i) such Borrowing shall be
converted to an ABR Borrowing, if such Borrowing is denominated
in Dollars, (ii) the Borrower will be deemed to have elected a
one (1) month Interest Period beginning with the day after the
last day of the expired Interest Period, if such Borrowing is
denominated in a Foreign Currency and (iii) the Borrower will
upon demand reimburse each Lender for costs or losses incurred by
such Lender in currency transactions reasonably undertaken by
such Lender as a result of such failure. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred
and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as
an Event of Default is continuing (i) no outstanding Term or
Revolving Borrowing in Dollars may be converted to or continued
as a Eurocurrency Borrowing and (ii) unless repaid, each
Eurocurrency Term or Revolving Borrowing shall be converted to an
ABR Borrowing at the end of the Interest Period applicable
thereto.
<PAGE>
(f) A Term Borrowing may not be converted to or
continued as a Eurocurrency Borrowing if after giving effect
thereto (i) the Interest Period therefor would end after a date
on which any principal of Term Loans is scheduled to be repaid
and (ii) the aggregate of the amount and the U.S. Dollar
Equivalent, respectively of the principal amount of outstanding
Eurocurrency Term Borrowings with Interest Periods ending on or
prior to such scheduled repayment date plus the aggregate
principal amount of outstanding ABR Term Borrowings, would be
less than the aggregate principal amount of Term Loans required
to be repaid on such scheduled repayment date.
SECTION 2.09. Termination and Reduction of Commitments.
(a) Unless previously terminated, the Revolving
Credit Commitments shall terminate on the Maturity Date and any
unused portion of the Term Loan Commitments shall terminate at
5:00 p.m. New York City time, on the last day of the Transition
Period.
(b) The Primary Borrower may at any time terminate,
or from time to time reduce, the Revolving Credit Commitments;
provided that (x) each reduction of the Revolving Credit
Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $10,000,000, and (xx) the Primary
Borrower shall not terminate or reduce the Revolving Credit
Commitments if, after giving effect to any concurrent prepayment
of the Revolving Credit Loans in accordance with Section 2.11,
(i) the Revolving Credit Exposure of any Lender would exceed such
Lender's Revolving Credit Commitment or (ii) the sum of the total
Revolving Credit Exposure and the total Competitive Loan
Exposures would exceed the total Revolving Credit Commitments.
(c) The Primary Borrower shall notify the
Administrative Agent of any election to terminate or reduce
Commitments under paragraph (b) of this Section at least three
(3) Business Days prior to the effective date of such termination
or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Primary Borrower pursuant
to this Section shall be irrevocable; provided that a notice of
termination of the Commitments delivered by the Primary Borrower
may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be
revoked by the Primary Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Revolving
Credit Commitments shall be made ratably among the Lenders in
accordance with their respective Applicable Percentages.
SECTION 2.10. Repayment of Loans; Evidence of Debt.
(a) Each Borrower hereby unconditionally promises to
pay (i) to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each of its Revolving
Loans on the Maturity Date and of each of its Term Loans in
twelve (12) equal quarterly installments payable on the first day
of each Fiscal Quarter beginning October 1, 1999, and the entire
principal balance, plus all accrued interest shall be payable on
the Maturity Date, (ii) to the Administrative Agent for the
account of each Lender, as appropriate, the then unpaid principal
amount of each of its Competitive Loans on the last day of the
<PAGE>
Interest Period applicable to such Loan and (iii) to the
Swingline Lender the then unpaid principal amount of each of its
Swingline Loans on the earlier of the Maturity Date and the first
date after such Swingline Loan is made that is the last day of a
calendar month and is at least two Business Days after such
Swingline Loan is made; provided that on each date that it makes
a Revolving Borrowing or Competitive Borrowing, each Borrower
shall repay all of its Swingline Loans then outstanding.
Principal and interest for each Loan shall be repaid in the
Currency in which it was advanced, except as provided in Section
2.20.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness
of each Borrower to such Lender resulting from each Loan made to
such Borrower by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts
in which it shall record (i) the Borrower and amount of each Loan
made hereunder, the Class and Type thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of
the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained
pursuant to paragraph (b) or (c) of this Section shall be prima
facie evidence of the existence and amounts of the obligations
recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of any
Borrower to repay its Loans in accordance with the terms of this
Agreement.
(e) Any Lender may request that Loans made by it,
other than Loans to Borrowers located in the United Kingdom, be
evidenced by a promissory note. In such event, each Borrower
shall prepare, execute and deliver to such Lender a promissory
note payable to the order of such Lender (or, if requested by
such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at
all times (including after assignment pursuant to Section 9.04)
be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.11. Prepayment of Loans.
(a) Subject to the requirements of this Section
applicable to optional prepayments, each Borrower shall have the
right at any time and from time to time to prepay any Borrowing
of which it is the Borrower, and the Primary Borrower shall have
the right to prepay any Borrowing, in whole or in part, subject
to prior notice in accordance with paragraph (f) of this Section;
provided that no Borrower shall have the right under this
paragraph to prepay any Competitive Loan without the prior
consent of the Lender thereof.
(b) Prior to any optional prepayment of Borrowings
under Section 2.11(a), a Borrower shall select the Borrowing or
Borrowings to be prepaid and shall specify such selection in the
<PAGE>
notice of such prepayment pursuant to paragraph (f) of this
Section. Optional prepayments used to prepay Term Borrowings
shall be applied to scheduled installments in the inverse order
of maturity.
(c) In the event and on each occasion that any Net
Proceeds are received by or on behalf of the Primary Borrower or
any Subsidiary in respect of any Prepayment Event, the Primary
Borrower shall, not later than the Business Day next following
the day on which such Net Proceeds are received prepay first, all
Term Borrowings and, if all Term Borrowings have been prepaid or
if there are no Term Borrowings outstanding, any other
outstanding Borrowings (in accordance with this Section) in an
aggregate amount equal to such Net Proceeds (or the equivalent
thereof in one or more other currencies based upon Exchange Rates
prevailing on the payment date in the case of Borrowings in a
currency other than that of such Net Proceeds). For purposes of
this paragraph (c), Net Proceeds in respect of any Prepayment
Event referred to in clause (b) of the definition of "Prepayment
Event" shall be deemed received on the later of the date of
actual receipt of such Net Proceeds by the Primary Borrower or
any Subsidiary and the date on which the relevant event becomes a
Prepayment Event pursuant to clause (b) of such definition.
(d) Mandatory prepayments of Term Borrowings under
Paragraphs (c) and (e) of this Section shall be allocated among
all Term Borrowings ratably according to the outstanding
principal amount thereof, and shall be applied to scheduled
installments of the Term Borrowings to which such payments are
allocated in the inverse order of maturity. In the event that
mandatory prepayments are made under paragraph (c) of this
Section at a time when no amounts are outstanding under any Term
Borrowing, or in the event that a portion of a mandatory
prepayment reduces to zero the amount outstanding under all Term
Borrowings, the mandatory prepayments, or the balance thereof, as
the case may be, will be applied first to all Revolving
Borrowings, and then to Competitive Borrowings in such manner as
the Primary Borrower may determine. To the extent that the
Lenders receive a mandatory prepayment under Section 2.11(c) that
is applied to the principal balance of any of their Revolving
Loans pursuant to this paragraph (d), such Lenders' Revolving
Credit Commitments shall be reduced permanently by the amount of
each such principal prepayment, expressed in Dollars.
(e) On any date when (i) the Revolving Credit
Exposure of any Lender exceeds 105% of such Lender's Revolving
Credit Commitment or (ii) the sum of the total Revolving Credit
Exposure plus the total of the Competitive Loan Exposures exceeds
105% of the total Revolving Credit Commitments, or (iii) the sum
of the Revolving Credit Exposure, the total of the Competitive
Loan Exposures, the outstanding principal amount of all Term
Loans denominated in Dollars and the U.S. Dollar Equivalent of
the outstanding principal amount of all Term Loans denominated in
Foreign Currencies exceeds 105% of the sum of the aggregate
amount of all Revolving Credit Commitments as then in effect and
the aggregate amount of all Term Loan Commitments as in effect on
the Effective Date, the Borrowers will prepay the Eurocurrency
Loans which they have borrowed and/or the Borrowers for whom
outstanding Letters of Credit denominated in Foreign Currencies
were issued will cash collateralize such Letters of Credit in
accordance with the provisions of Section 2.06(j), in such
amounts as may be necessary to eliminate such excess (treating
the cash collateralized portion of outstanding Letters of Credit,
solely for purposes of the foregoing, as no longer being
<PAGE>
outstanding); prior to the elimination of such excess, no
further Loan may be made and no new Letter of Credit may be
issued if the result would be to increase the amount of such
excess.
(f) The relevant Borrower shall notify the
Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone or telecopy
(confirmed by telecopy promptly following any such telephonic
notice) of any prepayment hereunder (i) in the case of prepayment
of a Eurocurrency Borrowing, not later than 11:00 a.m., New York
City time (or London time, in the case of Foreign Currency
Borrowings), four Business Days before the date of prepayment, or
(ii) in the case of prepayment of an ABR Borrowing or Swingline
Borrowing, not later than 11:00 a.m., New York City time, on the
date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the
amount of such prepayment; provided that, if a notice of optional
prepayment is given in connection with a conditional notice of
termination of the Revolving Credit Commitments as contemplated
by Section 2.09, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section
2.09. Promptly following receipt of any such notice (other than
a notice relating solely to Swingline Loans), the Administrative
Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Borrowing of
the same Type as provided in Section 2.02, except as necessary to
apply fully the required amount of a mandatory prepayment. Each
prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing and shall be made in the
applicable Currency. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.13.
(g) In the event the amount of any mandatory
prepayment required to be made on any date pursuant to this
Section shall exceed the amount of the Loans of the relevant
Borrowings that are ABR Borrowings or Swingline Borrowings or
that have Interest Periods ending on such date (the amount of any
such excess being called the "Excess Amount"), the relevant
Borrower shall have the right, in lieu of making such prepayment
in full, to prepay on such date all the outstanding ABR Loans,
Swingline Loans and Loans having Interest Periods ending on such
date within such Borrowings and to deposit an amount equal to the
Excess Amount with the Administrative Agent in a cash collateral
account maintained (pursuant to customary account documentation
of the Administrative Agent) by and in the sole dominion and
control of the Administrative Agent, and otherwise subject to the
terms of this paragraph (g). Any amounts so deposited shall be
held by the Administrative Agent as collateral for the prepayment
obligations of the relevant Borrower and applied to the
prepayment of the Eurocurrency Loans being prepaid at the end of
the current Interest Periods applicable thereto. On any Business
Day on which (x) collected amounts remain on deposit in or to the
credit of such cash collateral account after giving effect to the
payments made on such date pursuant to this Section 2.11(g) and
(y) the relevant Borrower shall have delivered to the
Administrative Agent a written request or a telephonic request
(which telephonic request shall be promptly confirmed by
telecopy) that such remaining collected amounts be invested in
the Permitted Investments specified in such request, the
Administrative Agent shall use its reasonable efforts to invest
such remaining collected amounts in such Permitted Investments;
provided, however, that the Administrative Agent shall have
<PAGE>
continuous dominion and full control over any such investments
(and over any interest that accrues thereon) to the same extent
that it has dominion and control over such cash collateral
account and no Permitted Investment shall mature after the end of
the Interest Period for the Loans in respect of which it is to be
applied. The depositing Borrower shall not have any right to
withdraw any amount from such cash collateral account until the
relevant Loans subject to prepayment hereunder and accrued
interest thereon are paid in full, at which time the
Administrative Agent shall, promptly upon the written request of
the relevant depositing Borrower, release to such Borrower the
amount due such Borrower from such cash collateral account,
unless a Default or Event of Default then exists or would result
from such release.
SECTION 2.12 Fees.
(a) The Primary Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility
fee, which shall accrue at the Applicable Rate on the daily
amount of the Revolving Credit Commitment of such Lender (whether
used or unused) during the period from and including the date of
this Agreement to but excluding the date on which its entire
Revolving Credit Commitment terminates and on the daily average
amount of the unused portion of the Term Loan Commitment during
the period prior to the last day of the Transition Period;
provided that, if such Lender continues to have any Revolving
Credit Exposure after its Revolving Credit Commitment terminates,
then such facility fee shall continue to accrue on the daily
amount of such Lender's Revolving Credit Exposure from and
including the date on which its Revolving Credit Commitment
terminates to but excluding the date on which such Lender ceases
to have any Revolving Credit Exposure. Accrued facility fees
shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the
Commitments are entirely terminated, commencing on the first such
date to occur after the date hereof; provided that any facility
fees accruing after the date on which the Revolving Credit
Commitments terminate shall be payable on demand. All facility
fees shall be paid in Dollars and computed on the basis of a year
of three hundred sixty (360) days and shall be payable for the
actual number of days elapsed (including the first day but
excluding the last day).
(b) Each Borrower at whose request a Letter of Credit
is issued agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its
participations in such Letter of Credit, which shall accrue at
the Applicable Rate on the average daily amount of such Lender's
LC Exposure related to such Letter of Credit (excluding any
portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Revolving
Credit Commitment terminates and the date on which such Lender
ceases to have any LC Exposure related to such Letter of Credit,
and (ii) to the Issuing Bank a fronting fee, which shall be paid
in Dollars at the time the Letter of Credit is issued, at the
rate of 1/16 of 1% on the face amount of the Letter of Credit, as
well as the Issuing Bank's standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees accrued
through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to
occur after the Effective Date; provided that all such fees shall
<PAGE>
be payable on the date on which the Revolving Credit Commitments
terminate and any such fees accruing after the date on which the
Revolving Credit Commitments terminate shall be payable on
demand. Any other fees payable to the Issuing Bank pursuant to
this paragraph shall be payable within ten (10) days after
demand. All participation fees shall be computed on the basis of
a year of three hundred sixty (360) days and shall be payable for
the actual number of days elapsed (including the first day but
excluding the last day) in Dollars.
(c) The Primary Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the
amounts and at the times separately agreed upon between the
Primary Borrower and the Administrative Agent.
(d) The Primary Borrower agrees to pay to the
Administrative Agent on the date of this Agreement, for the
account of each Lender, a commitment fee of 1/16 of 1% of each
Lender's Commitment, payable in Dollars.
(e) All fees payable hereunder shall be paid in
Dollars on the dates due, in immediately available funds, to the
Administrative Agent (or to the Issuing Bank, in the case of fees
payable to it) for distribution, in the case of facility fees and
participation fees, to the Lenders. Fees paid shall be fully
earned and shall not be refundable under any circumstances,
except in the case of clerical error.
SECTION 2.13. Interest.
(a) The Loans comprising each ABR Borrowing shall
bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing
shall bear interest (i) in the case of a Eurocurrency Term Loan
or Revolving Loan, at the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Rate, or
(ii) in the case of a Eurocurrency Competitive Loan, at the LIBO
Rate for the Interest Period in effect for such Borrowing plus
(or minus, as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the
Fixed Rate applicable to such Loan.
(d) Each Swingline Loan shall bear interest at the
Alternate Base Rate or as otherwise provided pursuant to Section
2.05.
(e) Notwithstanding the foregoing, if any principal
of or interest on any Loan or any fee or other amount payable by
a Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any
Loan, two percent (2%) plus the rate otherwise applicable to such
Loan as provided in the preceding paragraphs of this Section or
(ii) in the case of any other amount, two percent (2%) plus the
rate applicable to ABR Loans as provided in paragraph (a) of this
Section.
<PAGE>
(f) Accrued interest on each Loan shall be payable,
in the Currency in which such Loan was advanced, in arrears on
each Interest Payment Date for such Loan and, in the case of
Revolving Loans, upon termination of the Revolving Credit
Commitments; provided that (i) interest accrued pursuant to
paragraph (e) of this Section shall be payable on demand, and
(ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan prior to the
end of the Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment.
(g) Except for interest on Loans denominated in
Pounds Sterling, which shall be computed on the basis of a year
of three hundred sixty five (365) days, all interest hereunder
shall be computed on the basis of a year of three hundred sixty
(360) days; and in each case interest shall be payable for the
actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive
absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which
determination shall be conclusive absent manifest error)
that adequate and reasonable means do not exist for
ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the
Required Lenders (or, in the case of a Eurocurrency
Competitive Loan, the Lender that is required to make such
Loan) that the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in
such Borrowing for such Interest Period; or
(c) in the case of a Borrowing of Foreign Currency
Loans, the Administrative Agent determines (which
determination shall be presumed correct absent manifest
error) that deposits in the applicable Foreign Currency are
not generally available, or cannot be obtained by the
Lenders, in the London interbank market;
then the Administrative Agent shall give notice thereof to
Primary Borrower and the Lenders by telephone or telecopy as
promptly as practicable thereafter and, until the Administrative
Agent notifies Primary Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any
Interest Election Request that requests the conversion of any
Borrowing to, or continuation of any Borrowing as, a Eurocurrency
Borrowing shall be ineffective, and any Eurocurrency Borrowing so
requested to be continued shall, at the option of the Primary
Borrower, be repaid on the last day of the then current Interest
Period with respect thereto or shall be converted to an ABR
Borrowing (with any Foreign Currency Borrowing being converted to
a Borrowing denominated in Dollars at the Exchange Rate
determined by the Administrative Agent in accordance with this
Agreement) on the last day of the then current Interest Period
<PAGE>
with respect thereto, (ii) if any Borrowing Request requests a
Eurocurrency Revolving Borrowing (other than a Borrowing of
Foreign Currency Loans), such Borrowing shall be made as an ABR
Borrowing and (iii) any request by any Borrower for a
Eurocurrency Competitive Borrowing or a Borrowing of Foreign
Currency Loans shall be ineffective; provided that if the
circumstances giving rise to such notice do not affect all the
Lenders, then requests for Eurocurrency Competitive Borrowings
may be made to Lenders that are not affected thereby and, if the
circumstances giving rise to such notice do not affect all
applicable Currencies, then requests for Eurocurrency Borrowings
may be made in the Currencies that are not affected thereby.
SECTION 2.15. Increased Costs.
(a) If any Change in Law shall impose on any Lender
or the London interbank market (or any other market in which the
funding operations of such Lender shall be conducted with respect
to any Foreign Currency) any condition affecting this Agreement
or Eurocurrency Loans made by such Lender, and the result
thereof shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan or to reduce the amount of any
sum received or receivable by such Lender in respect thereof by
an amount deemed by such Lender to be material, then the Primary
Borrower will pay or cause the applicable Borrower to pay to such
Lender such additional amount or amounts as will compensate such
Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that
any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's
or the Issuing Bank's capital or on the capital of such Lender's
or the Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit
issued by the Issuing Bank, to a level below that which such
Lender or the Issuing Bank or such Lender's or the Issuing Bank's
holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's
holding company with respect to capital adequacy), then from time
to time the Primary Borrower will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank
setting forth the amount or amounts necessary to compensate such
Lender or the Issuing Bank or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section
shall be delivered to the Primary Borrower and shall be
conclusive absent manifest error. The Primary Borrower shall pay
such Lender or the Issuing Bank, as the case may be, the amount
shown as due on any such certificate within ten (10) days after
receipt thereof.
(d) Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender's or the Issuing
Bank's right to demand such compensation; provided that the
Primary Borrower shall not be required to compensate a Lender or
the Issuing Bank pursuant to this Section for any increased costs
or reductions incurred more than one hundred eighty (180) days
<PAGE>
prior to the date that such Lender or the Issuing Bank, as the
case may be, notifies the Primary Borrower of the Change in Law
giving rise to such increased costs or reductions and of such
Lender's or the Issuing Bank's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the
one hundred eighty (180) day period referred to above shall be
extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this
Section, a Lender shall not be entitled to compensation pursuant
to this Section in respect of any Competitive Loan if the Change
in Law that would otherwise entitle it to such compensation shall
have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
(f) Notwithstanding any other provision of this
Agreement, if, after the date hereof, (i) any Change in Law shall
make it unlawful for any Lender to make or maintain any
Eurocurrency Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurocurrency Loan, or
(ii) there shall have occurred any change in national or
international financial, political or economic conditions
(including the imposition of any change in exchange controls) or
currency exchange rates which would make it impracticable for any
Lender to make Loans denominated in the relevant Foreign Currency
to, or for the account of, a Borrower, then, by written notice to
the Primary Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurocurrency
Loans in the affected Currency or Currencies will not
thereafter (for the duration of such unlawfulness) be
made by such Lender hereunder or be continued for
additional Interest Periods and ABR Loans will not
thereafter (for such duration) be converted into
Eurocurrency Loans if the affected Currency is Dollars,
whereupon any request for a Eurocurrency Borrowing in
the affected Currency or Currencies, or to convert an
ABR Borrowing to a Eurocurrency Borrowing or to
continue a Eurocurrency Borrowing in the affected
Currency or Currencies, as the case may be, for an
additional Interest Period shall, as to such Lender
only, be deemed a request for an ABR Loan or a request
to continue an ABR Loan as such or to convert a
Eurocurrency Loan into an ABR Loan, as the case may be,
unless such declaration shall be subsequently
withdrawn; and
(ii) such Lender may require that all
outstanding Eurocurrency Loans in the affected Currency
or Currencies, made by it be converted to ABR Loans (at
the then current U.S. Dollar Equivalent in the case of
any conversion of Foreign Currency Loans), in which
event all such Eurocurrency Loans (in the affected
Currency or Currencies) shall be automatically
converted to ABR Loans as of the effective date of such
notice as provided in paragraph (g) below.
In the event any Lender shall exercise its rights under (i) or
(ii) above, all payments and prepayments of principal that would
otherwise have been applied to repay the Eurocurrency Loans that
<PAGE>
would have been made by such Lender or the converted Eurocurrency
Loans of such Lender shall instead be applied to repay the ABR
Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurocurrency Loans.
(g) For purposes of this Section 2.15, a notice to
the Primary Borrower by any Lender shall be effective as to each
Eurocurrency Loan made by such Lender, if lawful, on the last day
of the Interest Period currently applicable to such Eurocurrency
Loan; in all other cases such notice shall be effective on the
date of receipt by the Primary Borrower.
SECTION 2.16. Break Funding Payments. In the event of
(a) the payment of any principal of any Eurocurrency Loan or
Fixed Rate Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than
on the last day of the Interest Period applicable thereto,
(c) the failure to borrow, convert, continue or prepay any Term
Loan or Revolving Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may
be revoked under Section 2.11(f) and is revoked in accordance
therewith), (d) the failure to borrow any Competitive Loan after
accepting the Competitive Bid to make such Loan, (e) the
assignment of any Eurocurrency Loan or Fixed Rate Loan other than
on the last day of the Interest Period applicable thereto as a
result of a request by a Borrower pursuant to Section 2.19, or
(f) the conversion of any Foreign Currency Loan to a Loan
denominated in Dollars, required pursuant to Section 2.14 or
Section 2.15 then, in any such event, the Borrower involved shall
compensate each Lender for the loss, cost and expense
attributable to such event in the Currency in which the affected
Loan is denominated, subject to the provisions of Section 2.20
(and in the case of any conversion of Foreign Currency Loans to
Dollar denominated Loans, such loss, cost or expense shall also
include any loss, cost or expense sustained by a Lender as a
result of such conversion). In the case of a Eurocurrency Loan,
such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if
any, of (i) the amount of interest which would have accrued on
the principal amount of such Loan had such event not occurred, at
the Adjusted LIBO Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day
of the then current Interest Period therefor (or, in the case of
a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over either
(ii) in all cases set forth above, except for conversions
described in clauses (b) or (f) above, the amount of interest
which would accrue on such principal amount for such period at
the interest rate which such Lender would bid were it to bid, at
the commencement of such period, for deposits in the Currency in
which the affected Loan is denominated of a comparable amount and
period from other banks in the London interbank market, or (iii)
in the case of a conversion described in clause (b) or (f) above,
the amount of interest which will accrue on such principal amount
for such period as a result of the conversion. A certificate of
any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be
delivered to such Borrower and shall be conclusive absent
manifest error. Such Borrower shall pay such Lender the amount
shown as due on any such certificate within ten (10) days after
receipt thereof.
SECTION 2.17. Taxes.
<PAGE>
(a) Any and all payments by or on account of any
obligation of any Borrower hereunder shall be made free and clear
of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if any Borrower shall be required to deduct
any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable
to additional sums payable under this Section) the Administrative
Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrowers shall pay any Other
Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) The Primary Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Bank, within
ten (10) days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the
case may be, on or with respect to any payment by or on account
of any obligation of any Borrower hereunder or under any other
Loan Documents (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability
delivered to a Borrower by a Lender or the Issuing Bank, or by
the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Bank, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Borrower to a
Governmental Authority, such Borrower shall deliver to the
Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of
the jurisdiction in which any Borrower is located, or in which
any Loan is made, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall
deliver to such Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by
applicable law or reasonably requested by such Borrower as will
permit such payments to be made without withholding or at a
reduced rate.
(f) Each Lender confirms in favor of the
Administrative Agent and the Primary Borrower (on the date
hereof, or, in the case of a Lender which becomes a party hereto
pursuant to a transfer or assignment, on the date on which the
relevant transfer or assignment becomes effective) that either:
(a) it is not resident for tax purposes in the United Kingdom and
<PAGE>
is beneficially entitled to the principal and interest payable to
it under this Agreement; or (b) it is a bank as defined in
Section 840 A of the Income and Corporation Taxes Act 1988 of the
United Kingdom and is beneficially entitled to the principal and
interest payable to it under this Agreement; and each Lender in
favor of the Administrative Agent and the Primary Borrower agrees
to notify the Administrative Agent if there is any change in its
position from that set out above.
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.
(a) Except as may be specified by the Administrative
Agent as it from time to time deems necessary or appropriate with
respect to any Foreign Currency, each Borrower shall make each
payment required to be made by it hereunder or under any other
Loan Document (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under
Section 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon,
New York City or London time, depending on the required place of
payment, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such
time on any date may, in the discretion of the Administrative
Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its
offices at 270 Park Avenue, New York, New York, or Trinity Tower,
9 Thomas More Street, London, England, as the case may be, except
for payments to be made directly to the Issuing Bank or Swingline
Lender as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made
directly to the Persons entitled thereto and payments pursuant to
other Loan Documents shall be made as specified therein. The
Administrative Agent shall distribute any such payments received
by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such
extension. Except as provided in Section 2.20, all payments
under each Loan Document shall be made in the Currency as
specified therein and in the absence of any specification, in
Dollars (based, if necessary, on the U.S. Dollar Equivalent in
effect on the date of payment).
(b) If at any time insufficient funds of a Borrower
are received by and available to the Administrative Agent to pay
fully all amounts of principal, unreimbursed LC Disbursements,
interest and fees then due from such Borrower hereunder, such
funds shall be applied (i) first, towards payment of interest and
fees then due from such Borrower hereunder, ratably among the
parties entitled thereto in accordance with the amounts of
interest and fees then due from such Borrower to such parties,
and (ii) second, towards payment of principal and unreimbursed LC
Disbursements then due from such Borrower hereunder, ratably
among the parties entitled thereto in accordance with the amounts
of principal and unreimbursed LC Disbursements then due from such
Borrower to such parties.
(c) If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect
of any principal of or interest on any of its Loans or
participations in LC Disbursements resulting in such Lender
<PAGE>
receiving payment of a greater proportion of the aggregate amount
of its Loans or participations in LC Disbursements and accrued
interest thereon than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Loans or
participations in LC Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective
Loans or participations in LC Disbursements; provided that (i) if
any such participations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of
this paragraph shall not be construed to apply to any payment
made by the Borrowers pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC
Disbursements to any assignee or participant, other than to the
Primary Borrower or any Subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). Each
Borrower consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements
may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if
such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have
received notice from a Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the
Lenders or the Issuing Bank hereunder that such Borrower will not
make such payment, the Administrative Agent may assume that such
Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from
and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, (i) in
the case of a Borrowing in Dollars, at the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank
compensation and (ii) in the case of a Borrowing in a Foreign
Currency, at a rate reasonably determined by the Administrative
Agent to be the cost to it of funding such amount.
(e) If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.05(c), 2.06(d) or
(e), 2.07(b) or 2.18(d), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent
for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of
Lenders.
(a) If any Lender requests compensation under
Section 2.15, or if any Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 2.17, then such
<PAGE>
Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its
offices, branches or Affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 2.15 or 2.17, as the
case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Primary Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under
Section 2.15, or if a Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.17, or if any Lender
defaults in its obligation to fund Loans hereunder, then such
Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its
interests, rights and obligations under this Agreement with
respect to such Borrower (other than any outstanding Competitive
Loans held by it) to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) such Borrower shall
have received the prior written consent of the Administrative
Agent (and, if a Commitment is being assigned, the Issuing Bank
and Swingline Lender), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other
than Competitive Loans) and participations in LC Disbursements
and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to
the extent of such outstanding principal and accrued interest and
fees) or such Borrower (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim
for compensation under Section 2.15 or payments required to be
made pursuant to Section 2.17, such assignment will result in a
reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling such Borrower to require such assignment
and delegation cease to apply.
SECTION 2.20. European Economic and Monetary Union.
(a) If as a result of the implementation of European
economic and monetary union ("Monetary Union"):
(i) any Foreign Currency in which a Eurocurrency
Loan is denominated ceases to be the legal tender of the
country of that Foreign Currency and is replaced by a
European single currency as legal tender; or
(ii) that Foreign Currency and a European
single currency are at the same time recognized as legal
tender in the country of that Foreign Currency, and the
Required Lenders reasonably so require,
then each amount which would otherwise have been
payable by any Borrower under the Loan Documents in that Foreign
Currency shall be paid by such Borrower in the European single
<PAGE>
currency and the amount so payable shall be such amount of the
European single currency as equals the amount of the Foreign
Currency translated at the Single Currency Exchange Rate. In
addition, if a Monetary Union occurs and a LIBO Rate is no longer
quoted for the Foreign Currency in which a Eurocurrency Loan is
denominated, then the term "Currency" shall include the European
single currency that replaces such Foreign Currency and the term
"LIBO Rate" shall be determined, for such Eurocurrency Loan, with
reference to such European single currency.
For the purposes of this Section 2.20, "Single Currency
Exchange Rate" means the conversion rate of exchange determined
on any day for the conversion of the relevant Foreign Currency
into the European single currency by the Council of the European
Union according to Article 1.09(l) & 4 of the EC Tready.
(b) If, prior to or following the implementation of
Monetary Union, the Required Lenders so require pursuant to
notice from the Administrative Agent to the Primary Borrower,
this Agreement will be amended to the extent necessary to reflect
the implementation of Monetary Union and the redenomination of
the credit facilities provided for herein and to put the parties
in the same position, so far as possible, that they would have
been in had Monetary Union not occurred. Prior to the effective
date of such amendment, and during the existence of the
circumstances described in either clause (i) or (ii) of paragraph
(a) of this Section with respect of any Foreign Currency, the
Lenders agree to make Loans in the European single currency, in
place of Loans in such Foreign Currency, using the term
"Currency" and the LIBO Rate for the same purposes and in the
same manner as are set forth in such paragraph (a) and using the
U.S. Dollar Equivalent of such European single currency as if
such European single currency were a "Foreign Currency";
provided, that the Lenders' obligations hereunder are subject to
all of the terms of this Agreement, including Sections 2.14 and
2.15.
ARTICLE III
Representations, Warranties and Covenants of Borrower
Primary Borrower and The Gleason Works jointly and severally
represent, warrant and covenant, and each other Borrower
severally represents, warrants and covenants, with respect to
itself only, to the Lenders that:
SECTION 3.01. Existence, Ownership and Legal Power.
(a) Each Borrower is an organization duly organized or
incorporated, validly existing and, where relevant, in good
standing, under the laws of the jurisdiction of its origination,
as indicated on Schedule 3.01. At the Effective Date, each
Borrower is duly qualified to do business and, where relevant, is
in good standing, in all jurisdictions in which it owns
substantial properties or in which it conducts substantial
business or in which any of its activities make such
qualification necessary, each of which jurisdictions is indicated
on Schedule 3.01, except in those jurisdictions in which failure
to so qualify would not result in a material adverse impact on
such Borrower's ability to conduct business or own properties.
If, subsequent to the Effective Date, any Borrower does not
qualify in any such jurisdictions to do business or to own
<PAGE>
properties, such Borrower shall give the Administrative Agent
prompt written notice of such change in circumstances.
(b) At the Effective Date, the Primary Borrower owns
the Subsidiaries specified in Schedule 3.01 which is attached
hereto and made a part hereof, each of which is duly organized or
incorporated, validly existing and, where relevant, in good
standing, under the laws of the states or countries of their
organization and is duly qualified to do business in all
jurisdictions in which each owns substantial properties or
conducts substantial business or in which any of their activities
make such qualification necessary, each of which jurisdictions
is indicated on Schedule 3.01, except in those jurisdictions in
which failure to so qualify would not result in a material
adverse impact on such Subsidiary's ability to conduct business
or own properties. If, subsequent to the Effective Date, any
such Subsidiaries do not qualify in any such jurisdictions to do
business or to own properties, the Primary Borrower shall give
the Administrative Agent and the Lenders prompt written notice of
such change in circumstances. At the Effective Date, the Primary
Borrower's record and beneficial ownership, direct and indirect,
of each Subsidiary is free from any material restriction, equity,
security interest, or other lien.
(c) Each Borrower has all requisite power and
authority under the laws of the jurisdiction of its origination
to carry on its business and to enter into and carry out the
terms of this Agreement and the other Loan Documents.
SECTION 3.02. Right to Act. None of the execution and
delivery of this Agreement or the other Loan Documents, the
consummation of Transactions contemplated by those documents, nor
compliance with their terms and provisions will:
(a) conflict with or result in a breach of any of the
terms, conditions or provisions the certificate of incorporation,
by-laws, charter or other constitutional or organizational
documents of any Borrower or any Subsidiary or any law or any
regulation, order, writ, injunction or decree of any court or
Governmental Authority, or any agreement or instrument to which
any Borrower or any Subsidiary is a party or is subject or by
which properties of any Borrower or any Subsidiary may be bound;
(b) result in the creation or imposition of any Lien
upon the property or assets of any Borrower or any Subsidiary,
except for the Liens granted to the Lenders pursuant to this
Agreement;
(c) require the consent of any Person other than as
indicated in Subparagraph (d) of this Section 3.02; or
(d) require any consent or approval of, registration
or filing with, or any other action by any Governmental
Authority, except such as have been obtained or made and are in
full force and effect and except as provided in Section 3.16(d).
SECTION 3.03. Approval by Necessary Organizational Action.
The execution and delivery of this Agreement and the other Loan
Documents, the making of the Borrowings contemplated or permitted
by this Agreement, and the other Transactions have each been
duly authorized by all necessary organizational action on the
<PAGE>
part of each Borrower. The Agreement and the other Loan
Documents have been duly and validly executed and delivered by
each Borrower and constitute the valid and legally binding
agreements of each Borrower enforceable in accordance with their
terms, except as may be limited by (a) bankruptcy, insolvency, or
other laws of general application relating to or affecting the
enforcement of creditors' rights and remedies generally and
(b) where applicable, the exercise of judicial discretion in
accordance with general principles of equity.
SECTION 3.04. Financial Statements.
(a) At the Effective Date, each financial statement
and all other related information furnished to the Administrative
Agent and the Lenders by the Primary Borrower pursuant to this
Agreement have been prepared in accordance with GAAP consistently
applied in the preparation of the Primary Borrower's and any
Subsidiaries' previous financial statements, are true and
complete, and fairly present the Primary Borrower's and any
Subsidiaries' financial condition and results of operations as of
the date of each statement or other information and for the
respective period stated. There has been no change that
constitutes a Material Adverse Effect in the Primary Borrower's
financial condition, properties, business or operations, taken as
a whole on a consolidated basis, since the date of the Primary
Borrower's most recent audited financial statements delivered to
the Administrative Agent and the Lenders.
(b) The Primary Borrower has delivered to the
Administrative Agent and the Lenders copies of its most recent
annual and interim financial statements.
(c) The financial statements as of December 31, 1994,
1995 and 1996, and for the fiscal years then ended, of Hermann
Pfauter GmbH & Co. and its subsidiaries furnished to the
Administrative Agent and the Lenders by the Primary Borrower
pursuant to this Agreement have been prepared in accordance with
generally accepted accounting principles of the Federal Republic
of Germany, consistently applied, are true and complete, and
fairly present the financial condition and results of operations
of Hermann Pfauter GmbH & Co. and it subsidiaries, on a
consolidated basis, as of the date of such statements and for the
respective periods stated. To the knowledge of the Primary
Borrower, since December 31, 1996, there has been no change that
constitutes a material adverse effect on the business, assets,
operations, prospects or condition, financial or otherwise, of
Hermann Pfauter GmbH & Co. and its subsidiaries, taken as a
whole.
SECTION 3.05. Litigation; Regulatory Compliance. Except as
may be described in the opinions of counsel delivered pursuant to
Section 4.01:
(a) At the Effective Date, there are no actions, suits
or proceedings pending or threatened against or affecting any
Borrower or any Subsidiary before any court or before any
Governmental Authority which involve the possibility of any
judgment or liability not covered in full by insurance or which
could in one case or in the aggregate result in any Material
Adverse Effect on the business, operations, property, assets or
financial condition of the Primary Borrower and its Subsidiaries
taken as a whole. If, subsequent to the Effective Date, there
are any such actions, suits or proceedings pending or threatened
against or affecting any Borrower or any Subsidiary, the Primary
Borrower shall give the Administrative Agent and the Lenders
<PAGE>
prompt written notice of such actions, suits or proceedings.
(b) Neither any Borrower nor any Subsidiaries are in
default with respect to any order, writ, injunction or decree of
any court, arbitrator or Governmental Authority with which such
Borrower or Subsidiary is obligated to comply.
SECTION 3.06. Plan Compliance. At the Effective Date:
(a) Neither any Borrower nor any Subsidiary has
incurred any material accumulated funding deficiency within the
meaning of ERISA nor has any other ERISA Event occurred.
(b) Neither the PBGC nor any other Governmental
Authority has asserted that any Borrower or any Subsidiary has
incurred any material liability in connection with any Plan nor
has any Borrower or any Subsidiary incurred any such material
liability.
(c) No Lien has been attached and no Person has
threatened to attach a Lien on any property of any Borrower or
any Subsidiary as a result of any Borrower's or any Subsidiary's
failure to comply with any act or regulations related to any
Plan.
SECTION 3.07. Title and Freedom from Liens. At the
Effective Date, each Borrower and each Subsidiary has good,
marketable and indefeasible title to all of its properties and
assets, real and personal, free and clear of all Liens and
encumbrances, except for the following:
(a) in the case of real properties, easements,
restrictions, exceptions, reservations or defects which, in the
aggregate, do not interfere materially with the continued use of
such properties for the purposes for which they are used and do
not affect materially the value thereof;
(b) pledges, deposits or stay or appeal bonds to
secure obligations under workers' compensation laws or similar
legislation or to secure performance in connection with bids,
tenders and contracts (other than contracts for the payment of
borrowed money) to which any Borrower or any Subsidiary is a
party;
(c) deposits to secure public or statutory obligations
of any Borrower and any Subsidiaries or otherwise required by law
or government regulations as a condition of transacting business
or executing any right, privilege or license;
(d) materialmen's, mechanics', carriers', workers' or
other like Liens arising in the ordinary course of business, or
deposits of cash or United States obligations to obtain the
release of such Liens;
(e) Liens for taxes, assessments or governmental
charges which are not delinquent or are being contested in good
faith and against which adequate reserves have been provided; if
any such amount is in excess of $500,000, Borrower will notify
the Administrative Agent and the Lenders as soon as reasonably
practicable;
<PAGE>
(f) mortgages, liens, security interests or
encumbrances granted to the Lenders or as set out in Schedule
3.07 to this Agreement in existence as of the Effective Date; and
(g) Liens permitted pursuant to Section 5.20(c).
If, subsequent to the Effective Date, any Borrower or any
Subsidiary shall grant any Lien to a third party on any of its or
their properties or assets in a single transaction or in related
transactions in an amount in excess of Five Hundred Thousand
Dollars ($500,000.00), the Primary Borrower shall provide the
Administrative Agent and the Lenders with written notice as soon
as reasonably practicable. Liens shall be subject to the
limitations contained in Section 5.20.
SECTION 3.08. Absence of Default. No Default or Event of
Default has occurred and is continuing.
SECTION 3.09. Existing Debts. On the Effective Date, no
Borrower has Indebtedness except for (a) trade credit incurred in
the ordinary course of business and (b) other Indebtedness set
forth in Schedule 3.09 to this Agreement.
SECTION 3.10. Margin Stock. No Borrower is engaged
principally, or as one of its important activities, in the
business of extending or arranging for the extension of credit
for the purpose of purchasing or carrying "margin security" or
"margin Stock" (as defined in Regulations G and U issued by the
Board). No Borrower owns or intends to carry or purchase any
"margin security" or "margin Stock," except for stock of the
Primary Borrower purchased by the Primary Borrower as permitted
by Section 5.23. No Borrower will use the proceeds of any Loan
to purchase or carry (or refinance any borrowings the proceeds of
which were used to purchase or carry) any "margin security" or
"margin Stock," except for stock of the Primary Borrower
purchased by the Primary Borrower as permitted by Section 5.23.
SECTION 3.11. Compliance with Conditions Precedent. Each
Borrower has (a) executed and delivered to the Administrative
Agent and the Lenders the documents described in Section 4.01
hereto; (b) obtained and delivered to the Administrative Agent
and the Lenders the Opinions of Counsel described in Section
4.01(b); and (c) otherwise complied with all other conditions
hereto.
SECTION 3.12. Interdependent Relationship. Each of the
Affiliate Borrowers, in common with the Primary Borrower, is
governed by the management of the Primary Borrower and uses the
accounting systems and other organizational and operational
support systems of the Primary Borrower to the extent that, as of
the date of this Agreement, the Affiliate Borrowers could not
operate independently from or without the Primary Borrower unless
and until the Affiliate Borrowers made fundamental changes in
their organizational structure and operations.
SECTION 3.13. Environmental Matters. Except with respect
to any other matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect, neither the Primary Borrower nor any of its Subsidiaries
(i) has failed to comply with any Environmental Law or to obtain,
<PAGE>
maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows
of any basis for any Environmental Liability.
SECTION 3.14. Taxes. Each of the Primary Borrower and its
Subsidiaries has timely filed or caused to be filed all Tax
returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it,
except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Primary Borrower or
such Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to do so
could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.15. Disclosure. The Primary Borrower has
disclosed to the Lenders all agreements, instruments and
corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of the reports,
financial statements, certificates or other information furnished
by or on behalf of the Primary Borrower to the Administrative
Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by
other information so furnished) contains any material
misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that, with respect to projected financial information,
the Primary Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 3.16. Acquisition.
(a) Schedule 3.16 and Schedule 3.16A contains a true
and correct copy of the Pfauter Share Purchase Agreement and the
Pfauter-Maag Acquisition Agreement, respectively; provided,
however, that although such agreements do not contain the
schedules, exhibits, side letters and other documents attached to
or delivered with or in connection with each such agreement by
any of the parties thereto, copies of all such schedules,
exhibits, side letters and other documents have been delivered by
the Primary Borrower to the Administrative Agent prior to the
date of this Agreement. Each of the Pfauter Share Purchase
Agreement and the Pfauter-Maag Acquisition Agreement is a valid
and binding contract with respect to each party thereto and is
enforceable against each party in accordance with its terms.
(b) Pursuant to the Pfauter Share Purchase Agreement,
GW Acquisition Corp., Gleason-Hurth Maschinen und Werkzeuge GmbH
and Gleason Maschinenfabrik GmbH will purchase 100% of the
partner interests of Hermann Pfauter GmbH & Co. and pursuant to
the Pfauter-Maag Acquisition Agreement, GW Acquisition Corp. will
acquire the minority interest in Pfauter-Maag Cutting Tools
Limited Partnership which will not be purchased pursuant to the
Pfauter Share Purchase Agreement and which represents the balance
of the equity interest in Pfauter-Maag Cutting Tools Limited
Partnership not so acquired.
<PAGE>
(c) Subsequent to the Acquisition, and during the
Transition Period, certain assets of Hermann Pfauter GmbH & Co.
and GW Acquisition Corp. will or may be transferred to other
Subsidiaries as described in Schedule 3.16(c) to this Agreement.
(d) The consummation of the Acquisition and the
transfers described in Section 3.16(c) will not (i) conflict with
or result in a breach of any of the terms, conditions or
provisions of the Certificate of Incorporation, by-laws, charter
or other constitutional or organizational documents of any
Borrower, any Subsidiary or of Hermann Pfauter GmbH & Co. and its
subsidiaries or any law or any regulation, order, writ,
injunction or decree of any court or Governmental Authority, or
any agreement or instrument to which any of them is a party or is
subject or by which properties of any of them may be bound, (ii)
result in the creation or imposition of any Lien upon the
property or assets of any Borrower, of any Subsidiary, or of
Hermann Pfauter GmbH & Co. and its subsidiaries, or (iii) require
the consent of any Person or require any consent or approval of,
registration (except for registration of the assignments of the
partnership interest of Hermann Pfauter GmbH & Co. in the Trade
Register in Ludwigsburg, Germany, irrevocable application for
which has been filed) or filing with, or any other action by any
Governmental Authority except such as have been obtained or made
and are full force in effect.
SECTION 3.17. Labor Matters. Except as described in
Schedule 3.17, as of the date hereof and the Effective Date,
there are no strikes, lockouts or slowdowns against the Primary
Borrower or any Subsidiary pending or, to the knowledge of the
Primary Borrower, threatened. The hours worked by and payments
made to employees of the Primary Borrower and the Subsidiaries
have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law dealing
with such matters. All payments due from the Primary Borrower or
any Subsidiary, or for which any claim may be made against the
Primary Borrower or any Subsidiary, on account of wages and
employee health and welfare insurance and other benefits, have
been paid or accrued as a liability on the books of the Primary
Borrower or such Subsidiary. The consummation of the
Transactions will not give rise to any right of termination or
right of renegotiation on the part of any union under any
collective bargaining agreement to which the Primary Borrower or
any Subsidiary is bound.
SECTION 3.18. Solvency. Immediately after the consummation
of the Acquisition and the Transactions to occur on the date of
the initial Borrowing hereunder and immediately following the
making of each Loan made on such date and after giving effect to
the application of the proceeds of such Loans, (a) the fair value
of the assets of the Primary Borrower and its Subsidiaries, on a
consolidated basis, at a fair valuation, will exceed their or its
debts and liabilities, subordinated, contingent or otherwise;
(b) the present fair saleable value of the property of the
Primary Borrower and each of its Subsidiaries will be greater
than the amount that will be required to pay the probable
liability on their or its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and mature; (c) the Primary Borrower
and each of its Subsidiaries will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; (d) the Primary
Borrower and each of its Subsidiaries, individually and taken
together, will not have unreasonably small capital with which to
conduct the business in which it is or they are engaged as such a
business is now conducted and is proposed to be conducted
<PAGE>
following the Effective Date, and each will have the requisite
capital to avoid prejudicial tax treatment under applicable laws;
and (e) neither Gleason Works (Holdings) Limited nor Gleason
Works Limited will be unable to pay its debts within the meaning
of Section 123 of the Insolvency Act of 1986 of the United
Kingdom.
SECTION 3.19. Investment and Holding Company Status.
Neither the Primary Borrower nor any of its Subsidiaries is (a)
an "investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940 or (b) a "holding
company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.20. Existing Letters of Credit. Schedule 3.20
describes all letters of credit currently outstanding and issued
for the benefit of the Primary Borrower or any Subsidiary. Each
such letter of credit is issued by The Chase Manhattan Bank and
the beneficiary, the undrawn amount, the Currency and the
expiration date (and any renewal provisions) are set forth on
Schedule 3.20.
SECTION 3.21. Gleason Germany (Holdings) GmbH and Gleason
Maschinenfabrik GmbH. Gleason Germany (Holdings) GmbH is
presently registered in the Federal Republic of Germany under the
name of AB 9715 Vermogensverwaltungs GmbH and Gleason
Maschinenfabrik is presently registered under the name of AB 9704
Vermogensverwaltungs GmbH. Each of such Borrowers has, by
shareholder resolutions, taken all corporate action necessary to
authorize various amendments of its articles of association,
including the change of its name to the name utilized in this
Agreement, and these changes have been duly filed for
registration with the commercial register, which is the
appropriate place for such filing in the Federal Republic of
Germany. However, the required registration has not yet taken
place and until it is completed, the proper name for each such
Borrower shall be the name under which it is currently
registered, rather than the name generally utilized in this
Agreement.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of
Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in
accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall
have received from each party hereto either (i) a counterpart of
this Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this
Agreement.
(b) The Administrative Agent shall have received a
favorable written opinion (addressed to the Administrative Agent
and the Lenders and dated the Effective Date) of (i) Nixon
Hargrave Devans & Doyle LLP, counsel for the Primary Borrower,
substantially in the form of Schedule 4.01(b), and covering such
<PAGE>
other matters relating to the Borrowers, this Agreement or the
Transactions as the Required Lenders shall reasonably request,
(ii) Allen & Overy, substantially in the form of Schedule 4.01(b-
1), and covering such other matters relating to Gleason Works
(Holdings) Limited and Gleason Works Limited, this Agreement or
the Transactions involving such Affiliate Borrowers as the
Required Lenders shall reasonably request, (iii) counsel for
Gleason Germany (Holdings) GmbH, Gleason Maschinenfabrik GmbH,
Gleason-Hurth Maschinen und Werkzeuge GmbH, and Hermann Pfauter
GmbH & Co. substantially in the form of Schedule 4.01 (b-2), and
covering such other matters relating to each such Affiliate
Borrower, this Agreement or the Transactions involving such
Affiliate Borrowers as the Required Lenders shall reasonably
request, and (iv) Illinios counsel for American Pfauter, L.P. and
Pfauter-Maag Cutting Tools Limited Partnership, substantially in
the form of Schedule 4.01 (b-3), and covering such other matters
with respect to Illinios law relating to such Affiliate
Borrowers, this Agreement or the Transactions involving such
Affiliate Borrowers as the Required Lenders shall reasonably
request. The Primary Borrower hereby requests such counsel to
deliver such opinions.
(c) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the
President, a Vice President or a Financial Officer of the Primary
Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.
(d) The Administrative Agent shall have received all
fees and other amounts due and payable on or prior to the
Effective Date, including, to the extent invoiced, reimbursement
or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrowers hereunder.
(e) The Administrative Agent shall have received, for
each of Gleason Corporation, The Gleason Works, Gleason
International Marketing Corporation and GW Acquisition Corp., a
certificate of the Secretary for each such Borrower with attached
supporting documents as follows:
(i) resolutions duly adopted by the Board of
Directors of such Borrower authorizing the execution,
delivery and performance of this Agreement and of the other
Loan Documents to which such Borrower is a party, and of the
Transactions;
(ii) an incumbency certificate;
(iii) copy of the Certificate of Incorporation
and By-laws and any amendments to either; and
(iv) certificate of good standing or similar
subsistance certificate in the Borrower's state of
incorporation and in each state in which the Borrower is
qualified to do business.
(f) The Administrative Agent shall have received, for
each of American Pfauter, L.P. and Pfauter-Maag Cutting Tools,
Limited Partnership, a certificate of an appropriate
<PAGE>
representative for each such Borrower with attached supporting
documents as follows:
(i) resolutions duly adopted by the appropriate
authority of such Borrower authorizing the
execution, delivery and performance of this
Agreement and of the other Loan Documents to
which such Borrower is a party, and of the
Transactions;
(ii) an incumbency certificate;
(iii) a copy of the partnership agreement and
certificate of partnership, and any
amendments to either; and
(iv) Certificate of Good Standing or similar
subsistence certificate in the Borrower's
state of organization and in each state in
which the Borrower is qualified to do
business.
(g) The Administrative Agent shall have received, with
respect to each of Gleason Works (Holdings) Limited and Gleason
Works Limited, a certificate of a duly authorized director for
each such Borrower attaching the following and supporting
documents:
(i) certified copies of constitutional documents;
(ii) board resolutions approving the execution,
delivery and performance of the Loan Documents, and the
Transactions, to which it is a party;
(iii) a shareholders resolution approving the
execution, delivery and performance of the Loan Documents
and the Transactions to which it is a party, supported by
the resolutions of the boards of corporate shareholders; and
(iv) certification that borrowing limits of the
Borrower are not exceeded.
(h) The Administrative Agent shall have received, with
respect to each German Borrower, a copy of its Articles of
Association, a current extract from the commercial registry, any
application for entry into the commercial registry and any other
appropriate documentation, related to the Transactions.
(i) The Administrative Agent shall have received the
Mortgage of Shares in the form of Schedule 4.01(i) executed by
The Gleason Works with respect to 65% of the outstanding capital
stock of Gleason Works (Holdings) Limited, accompanied by the
documentation required to be delivered pursuant thereto.
(j) The Administrative Agent shall have received the
Mortgage of Shares in the form of Schedule 4.01(j) executed by
Gleason Works (Holdings) Limited, providing for the pledge of 65%
of the outstanding capital stock of Gleason Works Limited, along
with accompanying documentation required to be delivered pursuant
thereto.
<PAGE>
(k) The Administrative Agent shall have received the
Pledge Agreement in the form of Schedule 4.01(k) executed by The
Gleason Works and Gleason International Marketing Corp. and
providing for the pledge of 65% of the outstanding capital stock
of Gleason Germany (Holdings) GmbH, along with accompanying
documentation required to be delivered pursuant thereto.
(l) The Administrative Agent shall have received the
Pledge Agreement in the form of Schedule 4.01(l) executed by
Gleason Germany (Holdings) GmbH and (i) providing for the pledge
of 65% of the outstanding capital stock of Gleason
Maschinenfabrik GmbH, along with accompanying documentation
required to be delivered pursuant thereto, and (ii) providing for
the pledge of 65% of the outstanding capital stock of Gleason-
Hurth Maschinen und Werkzeuge GmbH, along with accompanying
documentation required to be delivered pursuant thereto.
(m) The Administrative Agent shall have received the
Pledge Agreement in the form of Schedule 4.01(m) executed by
Gleason Maschinenfabrik GmbH and Gleason-Hurth Maschinen und
Werkzeuge GmbH providing for the pledge of 65% of the limited
partnership interests of Hermann Pfauter GmbH & Co., along with
accompanying documentation required to be delivered pursuant
thereto.
(n) The Administrative Agent shall have received UCC
searches in the State of New York with respect to the Primary
Borrower, The Gleason Works, Gleason International Marketing
Corporation and GW Acquisition Corp., and in the state of
Illinois, with respect to Pfauter-Maag Cutting Tools Limited
Partnership, and American Pfauter L.P., and the Administrative
Agent shall have received appropriate searches of the Companies
Registry, and of the winding up petitions at the Companies court,
in the United Kingdom with respect to the Borrowers organized
under the laws thereof and an appropriate certificate of each
Borrower organized under the laws of the Federal Republic of
Germany regarding Liens against such Borrower, and in each case
such searches and certificates shall in all material respects,
substantiate the representations and warranties set forth in
Section 3.07 with respect to each of such Borrowers.
(o) The Acquisition shall have been consummated, in
all respects in accordance with the terms with the Pfauter Share
Purchase Agreement and the Pfauter-Maag Acquistion Agreement,
with each party thereto having fullfilled all of the conditions
to such party's obligations set forth in each of such agreements,
except to the extent that such conditions have not been met or
fulfilled with the consent of each Lender and subject to the
registration of assignments as described in Section 3.16(d).
(p) The Administrative Agent and each Lender shall
have been provided, on or prior to the Effective Date, with the
opportunity to review the documents exchanged between the parties
at the closing of the Acquisition, and such documents shall be in
all material respects consistent with the terms of the Pfauter
Share Purchase Agreement and the Pfauter-Maag Acquisition
Agreement and shall be reasonably satisfactory to each Lender.
<PAGE>
(q) The Administrative Agent and each Lender shall
have received a certificate of the Financial Officer to the
effect set forth below and each statement therein shall be true
an correct on the date of such certificate:
(i) the Acquisition has been consumated in all
respects in accordance with the terms of the Pfauter Share
Purchase Agreement and the Pfauter-Maag Acquisition
Agreement, with each party thereto having fulfilled all of
the conditions to such party's obligations set forth
therein, except to the extent that such conditions have not
been met or fulfilled with the concurrence of each Lender;
(ii) the Administrative Agent and each Lender have
been provided on or prior to the efective date with an
opportunity to review the documents exchanged between the
parties at the closing of the Acquisition, and such
documents are in all material respects consistant with the
terms of the Pfauter Share Purchase Agreement and the
Pfauter-Maag Acquisition Agreement;
(iii) the Primary Borrower or an appropriate
Subsidiary shall have received all of the assets to be
purchased by it pursuant to the Acquisition free and clear
of all mortgages, pledges, liens, charges and other
encumbrances except for those provided for in the Pfauter
Share Purchase Agreement or the Pfauter-Maag Acquistion
Agreement;
(iv) all representations and warranties of the
Borrowers contained in this Agreement and any Loan Document
made as of and after the date thereof are true and correct
as of the Effective Date after inclusion or reflection, as
appropriate, of all of the assets purchased by the Primary
Borrower and its Subsidiaries pursuant to the Acquistion;
and
(v) the following is a reconcilliation of the
Borrowers' use of the Borrowings made on the Effective Date
for the payment or refinancing of the purchase price payable
pursuant to the Acquisition, for application to the costs
and expenses of the Acquisition and to the payment of
Indebtedness as required pursuant to Section 4.01(r) below.
(r) Except as permitted under Section 5.19, all
Indebtedness of the Primary Borrower and its Subsidiaries (other
than Indebtedness permitted pursuant to Section 5.19) described
in Schedule 4.01(r) shall have been paid in full and all
obligations thereunder and Liens related thereto that are not
permitted pursuant to Section 5.20 shall have been discharged,
and the Agent shall have received satisfactory evidence of such
repayment or discharge. The letters of credit listed in Schedule
4.01(r) shall have become Letters of Credit pursuant to this
Agreement.
The Administrative Agent shall notify the Primary Borrower and
the Lenders of the Effective Date, and such notice shall be
conclusive and binding. Notwithstanding the foregoing, the
obligations of the Lenders to make Loans and of the Issuing Bank
to issue Letters of Credit hereunder shall not become effective
unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City
time, on August 15, 1997 (and, in the event such conditions are
<PAGE>
not so satisfied or waived, the Commitments shall terminate at
such time).
SECTION 4.02. Each Credit Event. The obligation of each
Lender to make a Loan on the occasion of any Borrowing, and of
the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following
conditions:
(a) The representations and warranties of the
Borrowers set forth in this Agreement shall be true and correct
on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as
applicable.
(b) At the time of and immediately after giving effect
to such Borrowing or the issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, no Default
shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension
of a Letter of Credit shall be deemed to constitute a
representation and warranty by the Borrowers on the date thereof
as to the matters specified in paragraphs (a) and (b) of this
Section.
ARTICLE V
Affirmative and Negative Covenants
Until the Commitments have expired or been terminated in
full and the principal of and interest on each Loan and all fees
payable hereunder shall have been paid in full and all Letters of
Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, each Borrower covenants and agrees
with the Lenders that:
SECTION 5.01. Punctual Payment. Each Borrower will
punctually pay or cause to be paid the principal and interest due
in respect of each Borrowing made by it according to the terms
hereof and each Borrower will punctually pay or cause to be paid
the facility and other fees for which it is responsible pursuant
to Section 2.12 hereof. Each of Primary Borrower and The Gleason
Works shall be jointly and severally liable for all debts,
liabilities and obligations of all Borrowers hereunder.
SECTION 5.02. Financial Information.
(a) The Primary Borrower will furnish to the
Administrative Agent for delivery to each of the Lenders annually
within ninety (90) days after and as at the close of each Fiscal
Year its audited financial statements, including, without
limitation, consolidated and consolidating (including
supplemental information for each Affiliate Borrower
substantially similar to the information previously furnished by
the Primary Borrower to the Administrative Agent with the Primary
Borrower's 1996 audited financial statements) balance sheets and
statements of operations and earnings and changes in financial
position, each examined and reported upon by an independent
certified public accounting firm of national reputation, and the
report of such accountants (i) shall not contain any
qualification or disclaimer of opinion by reason of going concern
<PAGE>
or audit limitations imposed by the Primary Borrower and (ii)
shall state that such consolidated financial statements present
fairly in all material respects the financial condition and
results of operations of the Primary Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied.
(b) The Primary Borrower will furnish to the
Administrative Agent for delivery to each of the Lenders within
forty-five (45) days after and as of the close of each Fiscal
Quarter its financial statements, including, without limitation,
consolidated and consolidating (including supplemental
information for each Affiliate Borrower substantially similar to
that furnished under Section 5.02(a)) balance sheets and related
statements of operations and earnings and changes in financial
position of the Primary Borrower for the previous Fiscal Quarter
and from the beginning of the Fiscal Year to the end of such
Fiscal Quarter, together with comparisons to the previous year,
if appropriate, certified by a Financial Officer as presenting
fairly in all material respects the financial condition and
results of operations of the Primary Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied.
(c) The Primary Borrower will promptly furnish to the
Administrative Agent, for delivery to the Lenders, upon their
becoming available, copies of all regular and periodic financial
reports, if any, which the Primary Borrower or any of its
Subsidiaries shall file with the Securities and Exchange
Commission or with any securities exchange.
(d) The Primary Borrower will promptly furnish to the
Administrative Agent, for delivery to the Lenders, upon their
becoming available, copies of all prospectuses of the Primary
Borrower and all reports, proxy statements and financial
statements mailed by the Primary Borrower to its shareholders
generally.
(e) The Primary Borrower will promptly furnish to the
Administrative Agent for delivery to each of the Lenders on a
quarterly basis within sixty (60) days after and as at the close
of each Fiscal Quarter a schedule of any outstanding standby or
performance letters of credit issued to a third party beneficiary
for the account of the Primary Borrower.
(f) The Primary Borrower will furnish to the
Administrative Agent for delivery to each of the Lenders as soon
as reasonably practicable with such further information regarding
the Primary Borrower's and its Subsidiaries' business, condition,
other credit sources, property, assets or operations, financial
or otherwise, as the Administrative Agent, at the instruction of
the Required Lenders, may from time to time reasonably request,
all prepared in form and detail reasonably satisfactory to the
Administrative Agent and the Lenders.
(g) The Primary Borrower will at all times maintain
true and complete records and books of account including, without
limiting the generality of the foregoing, appropriate reserves
for possible losses and liabilities, all in accordance with GAAP
consistently applied.
(h) Concurrently with any delivery of financial
statements under clauses (a) and (b) above, the Primary Borrower
will furnish to the Administrative Agent for delivery to each of
the Lenders a certificate of a Financial Officer of the Primary
Borrower (i) certifying as to whether a Default has occurred and,
<PAGE>
if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii)
setting forth reasonably detailed calculations demonstrating
compliance with Sections 5.15, 5.16 and 5.17 and computation of
the Applicable Rate, (iii) stating whether any change in GAAP or
in the application thereof has occurred since the date of the
latest audited financial statements supplied by the Primary
Borrower to the Administrative Agent and, if any such change has
occurred, specifying the effect of such change on the financial
statements accompanying such certificate, and (iv) describing
generally the use made by each Borrower of the Loans borrowed by
it during the Fiscal Quarter covered by such financial statements
and relating such use to the unused Revolving Credit Sublimit, as
of the date of the financial statements with which such
certificate is delivered, of each Affiliate Borrower in
sufficient detail to demonstrate compliance with Section 2.01(c)
(iii) as of such date.
(i) Concurrently with any delivery of financial
statements under clause (a) above, the Primary Borrower will
furnish to the Administrative Agent for delivery to each of the
Lenders a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge
during the course of their examination of such financial
statements of any Default (which certificate may be limited to
the extent required by accounting rules or guidelines).
SECTION 5.03. Inspection of Borrowers' Property and
Records. Each Borrower shall permit and the Primary Borrower
shall cause any Subsidiary to permit, representatives of the
Administrative Agent and the Lenders (a) to visit and inspect any
of the properties of such Borrower or any Subsidiary, (b) to
examine its or their corporate books and records, (c) to make
extracts or copies of such books and records, and (d) to discuss
its or their affairs, finances and accounts with its or their
officers or partners, as applicable. The foregoing may be done
at any time within regular business hours upon one (1) Business
Day's advance notice.
SECTION 5.04. Preservation of Borrowers' Existence and
Business.
(a) Each Borrower will preserve and keep in full force
and effect such Borrower's existence, rights, licenses and
franchises and, except as permitted under Section 5.11, the
Primary Borrower will preserve and keep in full force and effect
those of any Subsidiaries which are necessary and material to the
Primary Borrower's and Subsidiaries' operations taken as a whole.
(b) No Borrower will make or permit to be made any
material change in the character of its business or operations.
SECTION 5.05. Payment of Debts and Obligations. Each
Borrower will duly pay and discharge, and the Primary Borrower
will cause each of the Subsidiaries to pay and discharge, all (i)
its or their material obligations when due and (ii) Taxes,
assessments and governmental charges of which it has or they have
knowledge assessed against it or them or against its or their
properties prior to the dates on which penalties are attached
thereto, unless and to the extent only that such obligations,
Taxes, assessments or charges are not material or shall be
contested in good faith and by appropriate proceedings by it
(with adequate book reserves in accordance with GAAP).
<PAGE>
SECTION 5.06. Insurance Coverage. The Primary Borrower
will maintain, and cause any Subsidiaries to maintain, an
adequate insurance program, with financially sound and reputable
insurance companies, covering all such properties and risks as
are customarily insured by, and in amounts not less than those
customarily carried by, corporations engaged in similar business
and similarly situated.
SECTION 5.07. Litigation. The Primary Borrower will
promptly notify the Agent and the Lenders in writing of the
commencement of any single litigation involving claims by or
against any Borrower or any Subsidiary in excess of Two and One
Half Million Dollars ($2,500,000.00), or related litigations,
which, when aggregated, involve such claims in excess of Two and
One Half Million Dollars ($2,500,000.00), to which any Borrower
or any Subsidiary, is a party defendant or is a cross- or counter-
defendant, except for litigation in which any Borrower's
contingent liability is fully covered by insurance. The Primary
Borrower will promptly notify the Administrative Agent and the
Lenders in writing of any judgment against any Borrower or
Subsidiary in excess of $500,000.00.
SECTION 5.08. ERISA Compliance. (a) No Borrower subject to
ERISA will incur any accumulated funding deficiency within the
meaning of ERISA and the regulations thereunder, and no Borrower
maintaining or sponsoring a Plan that is not subject to ERISA
will incur or permit an accumulated funding deficiency with
respect to such Plan, to the extent that the amount of all such
deficiencies together is equal to or greater than 5% of
Consolidated Net Worth, less the value of all intangible assets
with regard to such Plans or (b) incur any liability of
comparable size to the Pension Benefit Guaranty Corporation; and
the Primary Borrower will give prompt written notice to the
Administrative Agent and each Lender of any ERISA Event.
SECTION 5.09. FLSA Compliance. Each Borrower will and the
Primary Borrower will cause each Subsidiary to comply with the
applicable provisions of the Fair Labor Standards Act of 1938, as
amended, or any other applicable federal, state, local or foreign
law dealing with such matters.
SECTION 5.10. Compliance with All Laws, Etc. No Borrower
will knowingly be, nor will the Primary Borrower permit any
Subsidiary to knowingly be, in violation of any law or
regulation, order, writ, injunction or decree of any court or
Governmental Authority or in breach of any agreement or
instrument to which any Borrower or any Subsidiary is subject or
in default thereunder, which violation, breach or default results
in a Material Adverse Effect.
SECTION 5.11. Mergers, Acquisitions, Bulk Sales and
Reorganization. No Borrower will, nor will the Primary Borrower
permit any Subsidiary to, enter into or be a party to any merger,
consolidation or reorganization, or sell, transfer, convey, lease
or otherwise dispose (in one transaction or a series of
transactions) of all or substantially all of its assets or
business, or of any of the shares of capital stock of any
Affiliate Borrower or any Other Subsidiary; provided, however,
that (i) this Section does not limit in any way the making of
leases by any Borrower, or any Subsidiary, as lessor, of such
Borrower's or Subsidiary's products, programs, or other inventory
in the ordinary course of such Borrower's or Subsidiary=s
business; and (ii) any wholly-owned Subsidiary may be merged into
the Primary Borrower or any other wholly-owned Subsidiary; and
(iii) any wholly-owned Other Subsidiary may sell, transfer, lease
<PAGE>
or otherwise dispose of all or substantially all of its assets to
any Borrower or to another wholly-owned Other Subsidiary; and
(iv) any wholly-owned Other Subsidiary may liquidate or dissolve
if the Primary Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the
Primary Borrower and is not materially disadvantageous to the
Lenders; (v) the transfers described in sections I and II of
Schedule 3.16(c) as taking place either on the Effective Date or
on August 1, 1997 shall be completed by such respective dates,
and the transfers described in section IV of such schedule under
Step F shall be permitted at any time during the Transition
Period, (vi) with regard to the transfers described in Step G of
section IV of Schedule 3.16(c), American Pfauter L.P. and Pfauter-
Maag Cutting Tools Limited Partnership shall be permitted to
merge with each other and/or with GW Acquisition Corp. and (vii)
any Borrower or any Other Subsidiary may undertake any or all of
the transactions otherwise prohibited by this Section as long as
no Default either exists at the time of any such transaction or
would result therefrom and as long as all of such prohibited
transactions, taken together, do not result in the transfer of
assets whose aggregate book value at the time of transfer exceeds
10% of Consolidated Net Worth as of the end of the Fiscal Year
preceding the Fiscal Year during which the latest of such
transactions takes place. If any two or more Borrowers merge as
permitted pursuant to this Section, the Revolving Credit Sublimit
of the surviving Borrower shall be the higher or highest of the
Revolving Credit Sublimits of the Borrowers involved in the
merger. The foregoing provisions of this Section to the contrary
notwithstanding, neither Hermann Pfauter GmbH & Co. nor any of
its subsidiaries shall transfer any of the shares of the capital
stock of Hermann Pfauter Verwaltungsgesellschaft mit beschrankter
Haftung, provided that it or such subsidiaries shall be permitted
to transfer such shares Step F, clause (ii) (a) of Schedule
3.16(c) so long as the transferee executes a pledge of 65% of
such shares in favor of the Lenders containing terms the same in
all material respects as Schedule 4.01(l).
SECTION 5.12. Subsidiaries.
(a) No Borrower will organize or cause to exist any
Subsidiaries, except for the Subsidiaries listed in Schedule
3.01, unless each such new Subsidiary shall provide the Lenders
and the Administrative Agent with a Guarantee of payment, in a
form acceptable to the Required Lenders and the Administrative
Agent, of Indebtedness of the Borrowers to the Lenders and the
Administrative Agent created under this Agreement. Any
Subsidiary created or acquired after the Effective Date that is
incorporated or organized under the laws of a state of the United
States shall be required to guarantee Indebtedness under this
Agreement equal to the aggregate amount of moneys from time to
time advanced by the Primary Borrower and any other Borrower to
the new Subsidiary together with the fair market value of any
property transferred from time to time by the Primary Borrower
and any other Borrower to the new Subsidiary (whether such
advances or transfers are made as loans or as equity
contributions) which have not been repaid or returned to the
Primary Borrower or such other Borrower. If any Subsidiary
created or acquired after the Effective Date is incorporated or
organized under the laws of any country other than the United
States, all moneys or other property from time to time advanced
or transferred to such Subsidiary by Affiliates of the Primary
Borrower shall be so advanced or transferred only by an Affiliate
Borrower or an Other Subsidiary that is also incorporated or
organized under the laws of a country other than the United
States; and the new Subsidiary shall be required to guarantee the
Indebtedness under this Agreement of any Borrower(s) that at any
time advance funds or transfer property to the new Subsidiary,
<PAGE>
which guarantee shall be limited to the aggregate amount of the
moneys so advanced plus the fair market value of the property so
transferred which has not been repaid or returned to such
Borrower(s).
(b) With regard to any Subsidiaries created after the
Effective Date, such Subsidiaries shall be duly organized,
validly existing and in good standing under the laws of the
states or countries of their organization and duly qualified to
do business in all jurisdictions in which each owns substantial
properties or conducts substantial business or in which any of
their activities makes such qualification necessary except in
those jurisdictions in which failure to so qualify would not
result in a Material Adverse Effect. If any such Subsidiaries do
not qualify in any such jurisdictions to do business or to own
properties, Primary Borrower shall give the Administrative Agent
and the Lenders prompt written notice of such circumstances.
(c) If Gleason-Hurth Maschinen und Werkzeuge GmbH
issues additional shares of its capital stock after the date of
this Agreement, such Borrower, the Primary Borrower and Gleason
Germany (Holdings) GmbH agree to require each Person to whom such
shares are issued to provide for the pledge of a sufficient
amount of such shares that 65% of the outstanding shares of such
Borrower are pledged to the Lenders on terms that are the same in
all material respects as Schedule 4.01(l).
SECTION 5.13. Maintenance of Properties. Each Borrower
will maintain and keep its properties in good condition, and from
time to time make all repairs, renewals and replacements, to the
extent necessary for the conduct of its business, and the Primary
Borrower will cause the Subsidiaries to do the same.
SECTION 5.14. Notice to Lenders and Administrative Agent of
Default. The Primary Borrower will immediately notify the
Lenders and the Administrative Agent in writing with full details
(a) of the occurrence of a Default or an Event of Default or of
any event which might cause a Material Adverse Effect or (b) if
any representation or warranty made in this Agreement, in any
other Loan Document, or in any other writing related to it, or
deemed made pursuant to Section 4.02, may for any reason cease in
any material respect to be true and complete.
SECTION 5.15. Consolidated Funded Indebtedness to
Consolidated Net Worth. The Primary Borrower will not permit its
Consolidated Funded Indebtedness to be more than 200% of its
Consolidated Net Worth at the end of any Fiscal Quarter.
SECTION 5.16. Consolidated Funded Indebtedness to EBITDA.
The Primary Borrower shall not permit the ratio of Consolidated
Funded Indebtedness as of the last day of any Fiscal Quarter to
be greater than 3.0 times its EBITDA as measured during the
twelve month period ending on the last day of such Fiscal
Quarter.
SECTION 5.17. Interest Coverage. The Primary Borrower
shall not permit the ratio of EBITDA to Consolidated Interest
Expense to be less than 5.0 to 1.0 for each twelve month period
ending on the last day of each Fiscal Quarter.
<PAGE>
SECTION 5.18. Restrictions on Use of Proceeds. Each
Borrower shall use the proceeds of (a) Term Loans, only to
finance the Acquisition, including payment of transaction fees
and related costs, and to refinance existing Indebtedness for
borrowed money of the Primary Borrower and its Subsidiaries and
of Hermann Pfauter GmbH & Co. after the Acquisition and (b) other
Loans and Letters of Credit to fund capital expenditures, working
capital and other general corporate expenditures, and for no
other purposes. No proceeds of any of the Loans made pursuant to
this Agreement shall be used, whether directly or indirectly, for
any purpose that entails a violation of any of the regulations of
the Board, including Regulations G, T, U and X.
SECTION 5.19. Indebtedness. The Primary Borrower will not,
and will not permit any Subsidiary to, create, incur, assume or
permit to exist any Indebtedness, except Indebtedness created
hereunder or pursuant hereto, and the following additional
Indebtedness:
(a) Indebtedness of one or more Borrowers acquired by
reason of the Acquisition, existing on the Effective Date and set
forth in Schedule 5.19(a), up to an aggregate of (i) $20,000,000
in aggregate principal amount through the end of the Transition
Period and (ii) $10,000,000 in aggregate principal amount
thereafter (in each case using the U.S. Dollar Equivalent to
determine the amount of such Indebtedness in Foreign Currencies
on the Effective Date and on the last day of the Transition
Period), as long as no portion of the latter amount is secured
after the end of the Transition Period pursuant to the Collateral
Pooling Agreement dated August 20/26/28, 1996 with
Sudwestdeutsche Landesbank Girozentrale Stuttgart as pool leader
and Kreissparkasse Ludwigsburg and Deutsche Bank AG, as pool
members;
(b) Indebtedness of any Borrower, provided that such
Indebtedness is not secured by any Lien;
(c) The Other Subsidiaries together shall be permitted
to borrow from time to time and to have outstanding aggregate
principal Indebtedness for borrowed money that is not wholly or
partially secured by any Lien, of up to $5,000,000 (using the
Exchange Rate with respect to any Indebtedness denominated in a
currency other than Dollars); and
(d) The Primary Borrower and its Subsidiaries together
shall be permitted to have outstanding aggregate principal
Indebtedness that is wholly or partially secured by a Lien or
Liens, provided that the aggregate principal amount of all such
Indebtedness (using the Exchange Rate with respect to any
Indebtedness denominated in a currency other than Dollars) does
not exceed $5,000,000 at any one time;
Provided, however, that (i) after the end of the Transition
Period, the aggregate principal amount, expressed in Dollars, of
Indebtedness permitted pursuant to paragraph (a) that is wholly
or partly secured by any Lien, plus the aggregate principal
amount, expressed in Dollars, of Indebtedness permitted pursuant
to paragraph (d), shall not at any time exceed $5,000,000, (ii)
the aggregate principal amount of Indebtedness permitted pursuant
to paragraphs (c) and (d), expressed in Dollars, shall not at any
time exceed $5,000,000 and (iii) after the end of the Transition
Period, the aggregate principal amount, expressed in Dollars, of
Indebtedness permitted pursuant to paragraphs (c) and (d), plus
the aggregate principal amount, expressed in Dollars, of
Indebtedness permitted pursuant to paragraph (a) that is wholly
or partially secured by any Lien, shall not at any time exceed
$5,000,000. In computing all Dollar limitations relating to
Indebtedness permitted pursuant to paragraphs (a), (c) and (d),
if any Indebtedness of the Primary Borrower or any Subsidiary is
guaranteed by the Primary Borrower or another Subsidiary, as the
<PAGE>
case may be, the amount of the Indebtedness so guaranteed shall
only be included as one Indebtedness.
SECTION 5.20. Liens. No Borrower will, nor will the
Primary Borrower permit any Subsidiary to, create, incur, assume
or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Permitted Encumbrances;
(b) Liens securing Indebtedness permitted pursuant to
paragraphs (a) and (d), and the concluding paragraph, of Section
5.19.
(c) Liens granted by Borrowers or their Subsidiaries
to their depositary banks, on deposits and securities accounts
maintained with such banks, to secure their respective
liabilities to such banks, to the extent required by the general
business conditions of such banks.
SECTION 5.21. Investments, Loans, Advances, Guarantees and
Acquisitions. The Primary Borrower will not, and will not permit
any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly
owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee
any obligations of, or make or permit to exist any investment or
any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any
assets of any other Person constituting a business unit, except:
(a) Permitted Investments, investments in existence on
the date hereof and described on Schedule 5.21 and investments by
virtue of the Acquisition and by virtue of the post Acquisition
transfers referred to in Schedule 3.16(c) and in clauses (v) and
(vi) of Section 5.11;
(b) additional investments by a Borrower in the
capital stock of, or as capital contributions to, any of its
Subsidiaries, provided, that, (i) such investments in any
Affiliate Borrower shall not exceed at any time the sum of
$5,000,000 (including the U.S. Dollar Equivalent of any
investment made in a Foreign Currency), plus the amount of such
Affiliate Borrower's Revolving Credit Sublimit, less the
aggregate principal amount, expressed in Dollars, of all such
Affiliate Borrower's outstanding Revolving, Competitive and
Swingline Loans and (ii) such investments in all Other
Subsidiaries shall not exceed at any time the amount of
$10,000,000 minus the lesser of $5,000,000 or the amount,
expressed in Dollars, of the principal amount of all Indebtedness
for borrowed money owed by all Other Subsidiaries at such time
pursuant to paragraphs (c) and (d) of Section 5.19;
(c) loans or advances made by a Borrower to any
Subsidiary of which it is, directly or indirectly, the owner of
the entire equity interest, and loans or advances made by any
Other Subsidiary to a Borrower or to any Other Subsidiary,
provided that they comply with Sections 5.12, 5.18 and 5.19;
<PAGE>
(d) Guarantees constituting Indebtedness permitted by
Section 5.19.
SECTION 5.22. Hedging Agreements. The Primary Borrower
will not, and will not permit any of its Subsidiaries to, enter
into any Hedging Agreement, other than Hedging Agreements entered
into in the ordinary course of business to hedge or mitigate
risks to which the Primary Borrower or any Subsidiary is exposed
in the conduct of its business or the management of its
liabilities.
SECTION 5.23. Restricted Payments. The Primary Borrower
will not, and will not permit any of its Subsidiaries to, declare
or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) the Primary Borrower may declare
and pay dividends with respect to its capital stock payable
solely in additional shares of its common stock, (b) wholly-owned
Subsidiaries may declare and pay dividends ratably with respect
to their capital stock, (c) the Primary Borrower may make
Restricted Payments pursuant to and in accordance with stock
option plans or other benefit plans for management or employees
of the Primary Borrower and its Subsidiaries and (d) as long as
no Default exists and is continuing, or would be created thereby,
the Primary Borrower may pay cash dividends with respect to its
outstanding capital stock and may repurchase shares of its
outstanding capital stock.
SECTION 5.24. Transactions with Affiliates. The Primary
Borrower will not, and will not permit any of its Subsidiaries
to, sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets
from, or otherwise engage in any other transactions with, any of
its Affiliates, except (a) in the ordinary course of business at
prices and on terms and conditions not less favorable to the
Primary Borrower or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (b) transactions
between or among the Primary Borrower and its Subsidiaries not
involving any other Affiliate and otherwise specifically
permitted under this Agreement, including the post Acquisition
transfers described in Schedule 3.16(c), to the extent permitted
pursuant to Section 5.11, and (c) any Restricted Payment
permitted by Section 5.23.
SECTION 5.25. Restrictive Agreements. The Primary Borrower
will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Primary
Borrower or any Subsidiary to create, incur or permit to exist
any Lien upon any of its property or assets, or (b) the ability
of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay
loans or advances to any Borrower or any other Subsidiary or to
Guarantee Indebtedness of any Borrower or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions
and conditions imposed by law or by this Agreement, (ii) the
foregoing shall not apply to restrictions and conditions existing
on the date hereof identified on Schedule 5.25 (but shall apply
to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed
<PAGE>
by any agreement relating to secured Indebtedness permitted by
this Agreement if such restrictions or conditions apply only to
the property or assets securing such Indebtedness and (v) clause
(a) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof.
ARTICLE VI
Guaranty
Without limitation of any obligation of any of the Borrowers
or any rights of the Lenders hereunder, (a) Primary Borrower and
The Gleason Works (herein "Initial Guarantors") hereby
unconditionally guaranty to the Lenders and the Administrative
Agent the full, prompt and punctual payment when due of any and
all Facility Obligations, (b) each of the Affiliate Borrowers
that is incorporated or organized under the laws of a state of
the United States (other than The Gleason Works) i.e., GW
Acquisition Corp., Gleason International Marketing Corporation,
Pfauter-Maag Cutting Tools Limited Partnership and American
Pfauter L.P., (each also an "Initial Guarantor") hereby severally
unconditionally guarantees to the Lenders and the Administrative
Agent the full, prompt and punctual payment when due of any and
all Loans, including all principal and interest thereon, and LC
Disbursement reimbursement obligations, but only to the extent
that Loan proceeds are advanced or contributed to it, or in the
case of LC Disbursements, are disbursed for its account, whether
in the form of debt, equity or otherwise, by the Primary Borrower
or any of its other Subsidiaries, which amounts have not been
returned or repaid by it, (c) each of Gleason Germany (Holdings)
GmbH and Gleason Works (Holdings) Limited (also "Initial
Guarantors') hereby severally and unconditionally guarantees to
the Lenders and the Administrative Agent the full, prompt and
punctual payment when due of any and all Loans, including
principal and interest thereon, that are advanced by the Lenders
directly to its respective Subsidiaries and the reimbursement
obligations related to LC Disbursements made to or for the
benefit of such Subsidiaries and (d) each of Hermann Pfauter GmbH
& Co., Gleason Maschinenfabrik GmbH, Gleason-Hurth Maschinen und
Werkzeuge GmbH and Gleason Works Limited (each also and "Initial
Guarantor") hereby unconditionally guarantees to the Lenders and
the Administrative Agent the full, prompt and punctual payment
when due of any and all Loans, including all principal and
interest thereon, and LC Disbursement reimbursement obligations,
but only to the extent that Loan proceeds are advanced or
contributed to it, or in the case of LC Disbursements, are
disbursed for its account, whether in the form of debt, equity or
otherwise, by Gleason Germany (Holdings) GmbH or Gleason Works
(Holdings) Limited, which amounts have not been returned or
repaid by it. The Facility Obligations, Loans and reimbursement
obligations guaranteed hereby are hereinafter referred to as
"Guaranteed Obligations."
The Initial Guarantors agree and understand that their
obligations under this Article VI shall be unconditional,
regardless of any circumstances which might constitute a legal or
equitable discharge of a surety or guarantor and regardless of
any law, rule, regulation, decree or order now or hereafter in
effect in any jurisdiction purporting to affect in any manner any
of the terms of the Guaranteed Obligations or the rights of the
Lenders or the Administrative Agent under this Article VI, and
the Initial Guarantors expressly waive each of the foregoing. In
furtherance, but not in limitation, of the foregoing, the
liability of the Initial Guarantors under this Article VI shall
be unconditional irrespective of the following:
<PAGE>
(i) The lack of genuineness, validity, regularity or
enforceability of the Guaranteed Obligations or of any debt,
liability or obligation evidenced thereby or contained
therein;
(ii) Any extension of time of payment or renewal in
whole or in part of any Guaranteed Obligation;
(iii) The failure of the Lenders or the
Administrative Agent to obtain rights in any collateral or
to perfect rights in any collateral which may now or
hereafter secure payment of any Guaranteed Obligation;
(iv) Any exchange or release of, or compromise or
settlement with respect to, any obligation or any collateral
which may now or hereafter secure payment of any Guaranteed
Obligation;
(v) Any change in or waiver of the time, manner or
place of payment, or any other terms, of any Guaranteed
Obligation;
(vi) The bankruptcy, insolvency, dissolution,
reorganization, merger, consolidation, sale of assets,
discharge in bankruptcy, adjustment or composition of debts,
appointment of a trustee or receiver, or any other
proceeding or event, with respect to any Borrower;
(vii) The release of, or any compromise or
settlement with, any guarantor, endorser or other party,
person or entity liable primarily or secondarily on any
Guaranteed Obligation;
(viii) Any delay or lack of promptness or diligence
by the Lenders or the Administrative Agent in enforcing the
rights of the Lenders or the Administrative Agent under any
Loan Document;
(ix) The existence of any claim, set-off or other
rights which any Borrower may have at any time against the
Lenders or the Administrative Agent or other corporation or
person, whether in connection herewith or by reason of any
unrelated transactions, provided that nothing herein shall
prevent the assertion of any such claim by separate suit or
compulsory counterclaim;
(x) Any claim of invalidity or unenforceability
relating to or against any other Borrower or any Guarantor
for any reason with respect to the Guaranteed Obligations,
or any provision of applicable law or regulation purporting
to prohibit the payment by any other Borrower or any such
Guarantor of any Guaranteed Obligation; or
(xi) Any other act or omission to act or delay of any
kind by any Borrower, any Guarantor, the Lenders or the
Administrative Agent or any other Person, or any other
circumstance whatsoever which might, but for the provisions
of this paragraph, constitute a legal or equitable discharge
of any Guarantor's obligations under this Article VI.
<PAGE>
The Initial Guarantors agree that if the Lenders or the
Administrative Agent are ever required to repay all or any part
of any amount or amounts received by the Lenders or the
Administrative Agent in payment or on account of any Guaranteed
Obligation, by reason of any judgment, order or decree of any
court or administrative body, or by reason of any settlement or
compromise of any claim made upon the Lenders or the
Administrative Agent to repay any such amount or amounts, then
any such judgment, order, decree, settlement or compromise shall
be binding upon each Initial Guarantor notwithstanding any
termination of this Agreement or the cancellation of any
Guaranteed Obligation; and the Initial Guarantors shall be and
remain liable to the Lenders and the Administrative Agent under
this Article VI for the amounts so repaid to the same extent as
if such amounts had never originally been received by the Lenders
or the Administrative Agent.
The Lenders and the Administrative Agent may proceed to
exercise any rights or remedies which the Lenders and the
Administrative Agent may have under this Article VI without first
pursuing or exhausting any other rights or remedies which the
Lenders or the Administrative Agent may have against any
Borrower, any collateral security for the payment of the
Guaranteed Obligations, or any other Guarantor or other person or
entity.
If a Borrower makes any payment pursuant to and under this
Agreement, including without limitation this Article VI, such
Borrower shall not exercise any right of subrogation or any right
of contribution unless and until the Lenders and the
Administrative Agent have received payment in full of the
Guaranteed Obligations.
This Article VI is a continuing Guarantee and shall remain
in force and effect until all of the Guaranteed Obligations
(including all expenses and reasonable attorneys' fees which may
be incurred in enforcing any rights of the Lenders and the
Administrative Agent under this Article VI) shall be paid or
performed.
Each Initial Guarantor hereby irrevocably waives notice of
acceptance hereof, presentment, demand, protest and any notice
not provided for herein.
All sums to the credit of any Initial Guarantor and any
property of any Initial Guarantor in the possession of any Lender
or the Administrative Agent at any time shall be deemed held by
such Lender or the Administrative Agent as security for payment
of the Guaranteed Obligations and each Initial Guarantor hereby
grants to each Lender and the Administrative Agent the right,
without notice to such Initial Guarantor, to set off such sums
against any obligations of such Initial Guarantor hereunder.
Each Initial Guarantor shall have no right of subrogation,
reimbursement, indemnity or contribution from any Borrower
(including another Initial Guarantor) unless and until all
Guaranteed Obligations shall have been paid in full.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
<PAGE>
(a) any Borrower or any Initial Guarantor shall fail
to pay any principal of any Loan or any reimbursement obligation
in respect of any LC Disbursement when and as the same shall
become due and payable, whether at the due date thereof or at a
date fixed for repayment thereof or otherwise;
(b) any Borrower or any Initial Guarantor shall fail
to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article)
payable under this Agreement, when and as the same shall become
due and payable, and such failure shall continue unremedied for a
period of five Business Days;
(c) the Primary Borrower defaults in the performance
of any covenant contained in Section 5.15, 5.16 or 5.17; or any
representation or warranty made or deemed made by or on behalf of
any Borrower or any Subsidiary in or in connection with this
Agreement or any amendment or modification hereof or waiver
hereunder, or by any Guarantor in any Guarantee or by any
Borrower or Guarantor in any report, certificate, financial
statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification
hereof or waiver hereunder, shall prove to have been incorrect or
misleading in any material respect when made or deemed made;
(d) any Borrower defaults in the performance of any
other covenant, condition, or provision in this Agreement or any
Guarantor defaults in the performance of any covenant, condition,
or provision of a Guarantee (other than a default by an Initial
Guarantor under clause (a) or (b) of this Article), and such
Borrower or Guarantor, as the case may be, does not remedy that
default within a period of thirty (30) days after written notice
of such default shall have been rendered to the Primary Borrower
by the Administrative Agent at the request of the Required
Lenders;
(e) any Borrower or any Subsidiary shall fail to make
any payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness, when and as the
same shall become due and payable; or any event or condition
occurs that results in any Material Indebtedness becoming due
prior to its scheduled maturity or that enables or permits (with
or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness
to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (e) shall not apply to
secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing
such Indebtedness.
(f) (i) any event occurs or condition exists which,
with notice or lapse of time or both, would make any employee
pension benefit plan of any Borrower, any Subsidiary or any
Guarantor subject to termination under subsections (1), (2) and
(3) of Section 4042(a) of ERISA, unless the Administrative Agent
at the request of the Required Lenders has first given its prior
written approval of such event or condition, which approval will
not be unreasonably withheld, or (ii) any Borrower, any
Subsidiary, any Guarantor or any of their respective plan
administrators shall have received notice from the Pension
Benefit Guaranty Corporation indicating that it has made a
determination that an employee pension benefit plan of the
Primary Borrower, any Subsidiary or any Guarantor is subject to
termination under Section 4042(a)(4) of ERISA, or (iii) any
Borrower, any Subsidiary or any Guarantor is subject to
employer's liability under Sections 4062, 4063, or 4064 or ERISA,
<PAGE>
in each case under ERISA as now or hereafter amended, or (iv) an
ERISA Event shall otherwise have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result
in a Material Adverse Effect; provided that Primary Borrower's
planned curtailment and standard termination of Borrower's
Defined Benefit Pension Plan as defined at the Effective Date, if
consummated in accordance with ERISA and if such consummation
does not violate any of the covenants hereunder, shall, for the
purposes of this Part, not be considered an Event of Default;
(g) any Borrower, any Subsidiary or any Guarantor is
generally not paying its debts, respectively, as they become due
in the ordinary course of its business or shall admit in writing
its inability to do so; or either Gleason Works (Holdings)
Limited or Gleason Works Limited shall be or be deemed to be
unable to pay its debts within the meaning of Section 123 of the
Insolvency Act of 1986 of the United Kingdom;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
administration, winding-up, reorganization or other relief in
respect of any Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator, administrator,
liquidator or similar official for any Borrower or any Subsidiary
or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for sixty
(60) days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) any Borrower or any Subsidiary shall
(i) voluntarily commence any proceeding or file any petition
seeking liquidation, administration, reorganization or other
relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in
a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, administrator, trustee,
custodian, sequestrator, conservator, liquidator or similar
official for any Borrower or any Subsidiary or for a substantial
part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting
any of the foregoing;
(j) the Borrower or any Subsidiary shall become
unable, to pay its debts as they become due;
(k) one or more final judgments which when aggregated
are in excess of Two Million Five Hundred Thousand Dollars
($2,500,000.00) or more at any one time outstanding are rendered
against any Borrower, any Subsidiary or any Guarantor and are not
satisfied, bonded, stayed or insured for a period of thirty (30)
days thereafter, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of any
Borrower or any Subsidiary to enforce any such judgment;
(l) a Change in Control shall occur;
<PAGE>
(m) any of the Guarantees actually delivered pursuant
hereto shall at any time not be in full force and effect and
valid and binding with respect to the Guarantor under such
Guarantee for any reason whatsoever, except where any such
Guarantor has merged into another Borrower or Guarantor, or has
been dissolved, if permitted under Section 5.11.
then, and in every such event (other than an event described in
clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice
to the Primary Borrower, take either or both of the following
actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be
due and payable in whole (or in part, in which case any principal
not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans
so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of each Borrower
accrued hereunder, shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrower and (iii) require
the deposit of cash collateral pursuant to Section 2.06(j); and
in case of any event with respect to any Borrower described in
clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees
and other obligations of each Borrower accrued hereunder, shall
automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Administrative Agent as its agent hereunder and
under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms
hereof and thereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not
the Administrative Agent. Such bank and its Affiliates may
accept deposits from, lend money to and generally engage in any
kind of business with any Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent
hereunder. The Administrative Agent may accept fees and other
consideration from the Borrowers for services in connection with
this Agreement or otherwise without having to account for the
same to the Lenders.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and under the
other Loan Documents. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to
any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, and the designation of
the Administrative Agent as agent and trustee pursuant to the
Pledge Agreements described in Sections 4.01(i) and (j) shall
<PAGE>
subject the Administrative Agent to duties and obligations only
to the extent necessary to perform its obligations under those
Pledge Agreements, (b) the Administrative Agent shall not have
any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and
(c) except as expressly set forth herein, the Administrative
Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to
any Borrower or any of its Subsidiaries that is communicated to
or obtained by the bank serving as Administrative Agent or any of
its Affiliates in any capacity. The Administrative Agent shall
not be liable for any action taken or not taken by it with the
consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02) or in the absence
of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any
Default unless and until written notice thereof, specifying that
a Default exists and describing a such Default, is given to the
Administrative Agent by the Primary Borrower or a Lender. In the
event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent
shall (subject to Article VII) take such action with respect to
such Default which is continuing as shall be directed by the
Required Lenders; provided that, unless and until the
Administrative Agent shall have received such directions, the
Administrative Agent may take such action, or refrain from taking
such action, with respect to such Default as it shall deem
advisable in the best interest of the Lenders; and provided
further that the Administrative Agent shall not be required to
take any such action which it determines to be contrary to law.
The Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth
herein or any other Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or
any other Loan Document, or any other related agreement,
instrument or document, or for the perfection, priority or
enforceability of any Lien securing the Loans, fees and other
Facility Obligations or (v) the satisfaction of any condition set
forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or
other writing believed by it to be genuine and to have been
signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by
telephone or by other means and believed by it to be made by the
proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel
(who may be counsel for any Borrower), independent accountants
and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
<PAGE>
Except for action expressly required of the Administrative
Agent hereunder, the Administrative Agent shall in all cases be
fully justified in failing or refusing to act hereunder unless it
shall have received further assurances (which may include cash
collateral) of the indemnification obligations of the Lenders
under Section 9.03(c) in respect of any and all liability and
expense which may be incurred by it in the 90 days following
receipt of any such assurances by reason of taking or continuing
to take any such action.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-
agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the
Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Bank and the Primary Borrower. In addition,
the Administrative Agent may be removed for cause at any time by
the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right, in consultation with the
Primary Borrower, to appoint a successor, which shall be a
Lender. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of
its resignation or has been removed, then the retiring
Administrative Agent may, on behalf of the Lenders and the
Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. The
fees payable by the Borrowers to a successor Administrative Agent
shall be the same as those payable to its predecessor unless
otherwise agreed between all Borrowers and such successor. After
the Administrative Agent's resignation hereunder, the provisions
of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and
their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as
Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action
under or based upon this Agreement, the other Loan Documents, and
any related agreement or any document furnished hereunder or
thereunder.
<PAGE>
The Administrative Agent in its capacity as trustee or
otherwise under the Pledge Agreements executed by The Gleason
Works and Gleason Works (Holdings) Limited as required in
Sections 4.01(i) and 4.01(j) (the "U.K. Pledge Agreements"):
(i) is not liable for any failure, omission, or defect
in perfecting or registering the security constituted or
created by any U.K. Pledge Agreement;
(ii) may accept without inquiry such title as any
Borrower may have to any asset secured by any U.K. Pledge
Agreements; and
(iii) is not under any obligation to hold any U.K.
Pledge Agreements or any other document in connection with
the U.K. Pledge Agreements or the assets secured by any U.K.
Pledge Agreements (including title deeds) in its own
possession or take any steps to protect or preserve the
same. The Administrative Agent may permit any Borrower to
retain any shares subject to the U.K. Pledge Agreements or
other document in its possession.
Except as otherwise provided in the U.K. Pledge Agreements, all
moneys which under the trusts contained in the U.K. Pledge
Agreements are received by the Administrative Agent in its
capacity as trustee or otherwise may be invested in the name of
or under the control of the Administrative Agent in any
investment authorized by English law for the investment by a
trustee of trust money or in any other investments which may be
selected by the Administrative Agent. Additionally, the same may
be placed on deposit in the name or under the control of the
Administrative Agent at such bank or institution (including the
Administrative Agent) and upon such terms as the Administrative
Agent may think fit.
None of the provisions of this Article VIII or of Section
9.03(c) shall inure to the benefit of any Borrower or anyone
other than the Administrative Agent and the Lenders.
Consequently, neither any Borrower or any other Person shall be
entitled to rely upon such provisions or to raise as a defense,
in any manner whatsoever, the failure of the Administrative Agent
or any Lender to comply with such provisions.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by
telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail
or sent by telecopy to the Administrative Agent, to each Borrower
and to each Lender and its applicable lending office, at the
address(es) set forth on its respective signature page to this
Agreement.
Any party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to the
other parties hereto. All notices and other communications given
to any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of
receipt.
<PAGE>
SECTION 9.02. Waivers; Amendments.
(a) No failure or delay by the Administrative Agent,
the Issuing Bank or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Issuing Bank and the Lenders
hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by any
Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph(b) of this Section, and then
such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting
the generality of the foregoing, the making of a Loan or issuance
of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of
such Default at the time.
(b) Neither this Agreement nor any provision hereof
may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by each Borrower
and the Required Lenders or by each Borrower and the
Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase any Commitment
of any Lender without the written consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement
or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of
the principal amount of any Loan or LC Disbursement, or any
interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the
written consent of each Lender affected thereby, (iv) change
Section 2.18(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent
of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written
consent of each Lender, (vi) amend Article VI or waive or release
any Guarantee with respect to any of the Guaranteed Obligations,
without the written consent of each Lender (although no such
amendment, waiver or release shall be necessary in order to
permit any of the transactions permitted under clauses (v) and
(vi) of Section 5.11, to the extent that any such transaction may
affect a Guarantor or its Guarantee); provided further that no
such agreement shall amend, modify or otherwise affect the rights
or duties of the Administrative Agent, the Issuing Bank or the
Swingline Lender hereunder without the prior written consent of
the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) Each Borrower shall be jointly and severally
obligated to pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates and the
Lenders, including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent and the Lenders, in
<PAGE>
connection with the syndication of the credit facilities provided
for herein, the preparation and administration of this Agreement,
the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred
by the Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for
the Administrative Agent, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in
connection with this Agreement and the other Loan Documents,
including its rights under this Section, or in connection with
the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters
of Credit.
(b) Each Borrower shall indemnify the Administrative
Agent, the Issuing Bank and each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement, the other Loan
Documents or any other agreement or instrument contemplated
hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or
any other transactions contemplated hereby, (ii) any Loan or
Letter of Credit or the use of the proceeds therefrom (including
any refusal by the Issuing Bank to honor a demand for payment
under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or
operated by any Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to any Borrower or any
of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent that any Borrower fails to pay any
amount required to be paid by it to the Administrative Agent, the
Issuing Bank or the Swingline Lender under paragraph (a) or (b)
of this Section, each Lender severally agrees to pay to the
Administrative Agent, the Issuing Bank or the Swingline Lender,
as the case may be, such Lender's share (determined as of the
time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or
the Swingline Lender in its capacity as such. Each Lender's
share of such unpaid amount shall be a fraction of such amount
equal to the aggregate unpaid principal amount of all of such
<PAGE>
Lender's Loans at the time of determination, divided by the
aggregate unpaid principal amount of all Loans at such time.
Each Lender shall be entitled to be indemnified by each Borrower
for any amounts paid to the Administrative Agent under this
paragraph (c) pursuant to paragraph (b) of this Section.
(d) To the extent permitted by applicable law, no
Borrower shall assert, and each Borrower hereby waives, any claim
against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a
result of, this Agreement, any Loan Document or any other
agreement or instrument contemplated hereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be
payable promptly after written demand therefor.
SECTION 9.04. Successors and Assigns.
(a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto (except as
provided in the last paragraph of Article VIII) and their
respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit),
except that no Borrower may assign or otherwise transfer any of
its rights or obligations hereunder or under any other Loan
Document without the prior written consent of each Lender (and
any attempted assignment or transfer by a Borrower without such
consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate
of the Issuing Bank that issues any Letter of Credit) and, to the
extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason
of this Agreement.
(b) Any Lender may assign to one or more assignees all
or a portion of its rights and obligations under this Agreement
or under any other Loan Document (including all or a portion of
its Commitment and the Loans at the time owing to it); provided
that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the Primary Borrower and the
Administrative Agent (and, in the case of an assignment of all or
a portion of a Commitment or any Lender's obligations in respect
of its LC Exposure or Swingline Exposure, the Issuing Bank and
the Swingline Lender) must give their prior written consent to
such assignment (which consent shall not be unreasonably
withheld), (ii) except in the case of an assignment to a Lender
or an Affiliate of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment, the amount
of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless
each of the Primary Borrower and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as
an assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement and the
other Loan Documents, except that this clause (iii) shall not
apply to rights in respect of outstanding Competitive Loans,
<PAGE>
(iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500 for each
assignment, and (v) the assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the
Primary Borrower otherwise required under this paragraph shall
not be required if an Event of Default has occurred and is
continuing. Subject to acceptance and recording thereof pursuant
to paragraph (d) of this Section, from and after the effective
date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be
treated for purposes of this Agreement as a sale by such Lender
of a participation in such rights and obligations in accordance
with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose
as an agent of the Primary Borrower, shall maintain at one of
its offices in The City of New York a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to,
each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive,
and Borrowers, the Administrative Agent, the Issuing Bank and the
Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the
Borrowers, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment
and Acceptance executed by an assigning Lender and an assignee,
the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b)
of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(e) Any Lender may, without the consent of any
Borrower, the Administrative Agent, the Issuing Bank or the
Swingline Lender, sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement and the
other Loan Documents (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and
(iii) each Borrower, the Administrative Agent, the Issuing Bank
and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
<PAGE>
obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce
this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f)
of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to
the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a
Lender, provided such Participant agrees to be subject to Section
2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.15 or 2.17 than the applicable
Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Primary
Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.17 unless the Primary Borrower is notified
of the participation sold to such Participant and such
Participant agrees, for the benefit of the Primary Borrower, to
comply with Sections 2.17(e) and (f) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee
or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by each Borrower herein and
in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have
been relied upon by the other parties hereto and shall survive
the execution and delivery of this Agreement and the making of
any Loans and issuance of any Letters of Credit, regardless of
any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03
and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Commitments or
the termination of this Agreement or any provision hereof.
<PAGE>
SECTION 9.06. Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any
and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the
other parties hereto, and thereafter shall be binding upon and
inure to the benefit of the parties hereto and their respective
permitted successors and assigns (except as provided in the last
paragraph of Article VIII). Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this
Agreement.
SECTION 9.07. Severability. Any provision of this
Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default
shall have occurred and be continuing, each Lender and each of
its Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit
or the account of any Borrower against any of and all the
obligations of such Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not
such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may
have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process.
(a) This Agreement shall be construed in accordance
with and governed by the law of the State of New York applicable
to contracts made and to be performed in such state, without
regard to conflict of laws principles.
(b) Each Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition
or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by
law, in such Federal court. Each of the parties hereto agrees
<PAGE>
that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Administrative
Agent, the Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement against any
Borrower or its properties in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents
to service of process in the manner provided for notices in
Section 9.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner
permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and
the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in
interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative
Agent, the Issuing Bank and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by
any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar
legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, (f) subject to an agreement
containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective
<PAGE>
assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Primary
Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis from a
source other than any Borrower. For the purposes of this
Section, "Information" means all information received from any
Borrower relating to any Borrower or its business, other than any
such information that is available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis prior
to disclosure by such Borrower; provided that, in the case of
information received from a Borrower after the date hereof, such
information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord
to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate
applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under
applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by the Lender holding
such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such
Lender.
SECTION 9.14. Judgment Currency. (a) If, for the purpose
of obtaining judgment in any court, it is necessary to convert a
sum owing hereunder in one currency into another currency, each
party hereto agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that
at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with
such other currency on the Business Day immediately preceding the
day on which final judgment is given.
(b) The obligations of any Borrower in respect of any
sum due to any party hereto or any holder of the obligations
owing hereunder (the "Applicable Creditor") shall,
notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to
be due hereunder (the "Agreement Currency"), be discharged only
to the extent that, on the Business Day following receipt by the
Applicable Creditor of any sum adjudged to be so due in the
Judgment Currency, the Applicable Creditor may in accordance with
normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount
of the Agreement Currency so purchased is less than the sum
originally due to the Applicable Creditor in the Agreement
Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Borrowers
<PAGE>
contained in this Section 9.14 shall survive the termination of
this Agreement and the payment of all other amounts owing
hereunder.
SECTION 9.15. Gleason Germany (Holdings) GmbH and
Gleason Maschinenfabrik GmbH. Each of Gleason Germany (Holdings)
GmbH and Gleason Maschinenfabrik GmbH is named in and executes
this Agreement and the other Loan Documents to which it is a
party under that name, rather than the name under which it is
presently registered in the commercial registry, as described in
Section 3.21. Until such time as the name change registration
described in such Section becomes effective, each such Borrower
agrees, at the request of the Administrative Agent, to reexecute
each such document under the name under which it is currently
registered.
SECTION 9.16 Pfauter Italia SPA. All parties to this
Agreement understand that the Primary Borrower intends that a
corporation be incorporated in the Republic of Italy, to be named
Pfauter Italia SPA and that such corporation will be a wholly
owned Subsidiary of one of the wholly owned subsidiaries of
Gleason Germany (Holdings) GmbH. The parties agree that, upon
submission to the Administrative Agent of the following, and upon
execution of this Agreement in the blank provided on the
signature pages hereof by Pfauter Italia SPA, that Pfauter Italia
SPA shall become a party to this Agreement and shall be an
Affiliate Borrower and an Initial Guarantor.
(i) Resolutions duly adopted by the Board of Directors of
such Borrower authorizing the execution, delivery and
performance of this Agreement and of the other Loan
Documents to which such Borrower is to be a party, and
of the Transactions;
(ii) An incumbency certificate;
(iii)A copy of the Certificate of Incorporation and
Bylaws, and any amendments to either, of such
corporation;
(iv) Certificate of Good Standing or similar subsistant
certificate issued by the Republic of Italy; and
(v) An opinion of counsel reasonably satisfactory to the
Administrative Agent as to the existence, organization,
good standing, authorization and execution of this
Agreement by, and the enforceability of this Agreement
against, Pfauter Italia SPA.
As an Affiliate Borrower, Pfauter Italia SPA will have a
Revolving Credit Commitment of $0.00, but will be entitled to
have Letters of Credit issued with an LC Exposure not to exceed
$10,000,000.00 in U.S. Dollar Equivalent at any one time. As an
Initial Guarantor, Pfauter Italia SPA shall be liable to the same
extent as if it were included among the Initial Guarantors listed
in clause (d) of the first paragraph of Article VI.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
<PAGE>
Address for Notices: GLEASON CORPORATION
Gleason Corporation
1000 University Avenue By /s/ John J. Perrotti
PO Box 22970 Name John J. Perrotti
Rochester, New York 14692 Title: Vice President - Finance
Attention: Oksana S. Dominach
Treasury Manager
Telephone: (716) 256-8753
Telecopy: (716) 461-4348
The Gleason Works THE GLEASON WORKS
1000 University Avenue
PO Box 22970
Rochester, New York 14692 By /s/ John J. Perrotti
Attention: Oksana S. Dominach Name John J. Perrotti
Treasury Manager Title: Vice President - Finance and
Telephone: (716) 256-8753 Vice President Manufacturing
Telecopy: (716) 461-4348 Operationgs - Rochester
For all other Borrowers GLEASON INTERNATIONAL MARKETING
C/O Gleason Corporation CORPORATION
1000 University Avenue
PO Box 22970
Rochester, New York 14692 By /s/ John B. Kodweis
Attention: Oksana S. Dominach Name John B. Kodweis
Treasury Manager Title: Vice President
Telephone: (716) 256-8753
Telecopy: (716) 461-4348
GW ACQUISITION CORPORATION
By /s/ John J. Perrotti
Name John J. Perrotti
Title: Treasurer
GLEASON GERMANY (HOLDINGS) GMBH
(presently known as AB 9715
Vermogensverwaltungs (GmbH)
By /s/ John B. Kodweis
Name John B. Kodweis
Title: Geschaftsfuhrer (Managing Director)
<PAGE>
GLEASON MASCHINENFABRIK GMBH
(presently known as AB 9704
Vermogensverwaltungs GmbH)
By /s/ John B. Kodweis
Name John B. Kodweis
Title: Geschaftsfuhrer (Managing Director)
GLEASON-HURTH MASCHINEN UND
WERKZEUGE GMBH
By /s/ John B. Kodweis
Name John B. Kodweis
Title: Geschaftsfuhrer (Managing Director)
HERMANN PFAUTER GMBH & CO.
By /s/ Walter Eggert
Title: Managing Director
GLEASON WORKS (HOLDINGS) LIMITED
By /s/ Ralph E. Harper
Name Ralph E. Harper
Title: Secretary
GLEASON WORKS LIMITED
By /s/ Ralph E. Harper
Name Ralph E. Harper
Title: Secretary
PFAUTER-MAAG CUTTING TOOLS LIMITED PARTNERSHIP
By /s/ David J. Burns
Name David J. Burns
Title:
<PAGE>
AMERICAN PFAUTER L.P.
By /s/ David J. Burns
Name David J. Burns
Title:
The following Subsidiary hereby executes this Credit Agreement
pursuant to Section 9.16, and agrees to be bound by the
provisions of the Agreement as an Affiliate Borrower and an
Initial Guarantor, as provided in Section 9.16.
PFAUTER ITALIA SPA
By __________________________
Name
Title:
SEPARATE SIGNATURE PAGE FOR EACH LENDER, TO FOLLOW ON PAGES 101
THROUGH 111
<PAGE>
THE CHASE MANHATTAN BANK,
as Administrative Agent,
By /s/ Thomas C. Strasenburgh
Name: Thomas C. Strasenburh
Title: Vice President
Address for Notices:
One Chase Plaza
Loan and Agency Service Group - 8th Floor
New York, NY 10081
Attn: Sandra Miklave
Telephone: (212) 552-7953
Facsimile: (212) 552-5658
with a copy of all notices
regarding Eurocurrency Borrowings
to:
Trinity Towers
9 Thomas Moore Street
London, England E19YT
Attention: Steven Clarke
Telephone: 44-171-777-3253
Facsimile: 44-171-777-3253
<PAGE>
THE CHASE MANHATTAN BANK
By /s/ Thomas C. Strasenburg
Name Thomas C. Strasenburg
Title: Vice President
Lending Office and Address for Notices
One Chase Square, 9th Floor
Rochester, New York 14643
Attn: Thomas C. Strasenburgh, Vice President
Telephone: (716) 258-4248
Facsimile: (716) 258-4439
<PAGE>
CORESTATES BANK, N.A.
By /s/ Brian M. Haley
Name Brian M. Haley
Title: Vice President
Lending Office and Address for Notices
1345 Chestnut Street
P.O. Box 7618
F.C. 1-8-3-16
Philadelphia, PA 19101-7618
Telephone: 215-973-2372
Facsimile: 215-973-7820
<PAGE>
THE BANK OF NOVA SCOTIA
By /s/ Stephen Lockhart
Name Stephen Lockhart
Title: Vice President
Lending Office and Address for Notices
The Bank of Nova Scotia
One Liberty Plaza
New York, NY 10006
Telephone: 212-225-5012
Facsimile: 212-225-5090
<PAGE>
FIRST UNION NATIONAL BANK
By /s/ Mark M. Harden
Name Mark M. Harden
Title: Vice President
Lending Office and Address for Notices
John S. Cannon
First Union Capital Markets Group
301 S. College Street, DC-5
Charlotte, NC 28288-0745
Telephone: 704-383-4747
Facsimile: 704-374-2802
<PAGE>
MARINE MIDLAND BANK
By /s/ Guy R. Nudd
Name Guy R. Nudd
Title: Vice President
Lending Office and Address for Notices
Marine Midland Bank
One Marine Midland Plaza, 5th Floor
Rochester, NY 14639
Telephone: 716-238-7402
Facsimile: 716-238-7992
<PAGE>
MANUFACTURERS AND TRADERS
TRUST COMPANY
By /s/ William E. Holsten
Name William E. Holsten
Title: Vice President
Lending Office and Address for Notices
M&T Bank
M&T Place
255 East Avenue
Rochester, NY 14604
Telephone: 716-258-8479
Facsimile: 716-325-5105
<PAGE>
SUDWESTDEUTSCHE LANDESBANK
By /s/ Peter Kogel/ Gerd Schanzenbacher
Name Peter Kogel/ Gerd Schanzenbacher
Title: Senior Vice President / Senior
Vice President
Lending Office and Address for Notices
Sudwestdeutsch Landesbank Girozentrale
Am Hauptbahnhof 2
70173 Stuttgart/ Germany
Attn: Peter Kogel
Telephone: 049/711-127-35-69
Facsimile: 049/711-127-36-99
<PAGE>
PNC BANK, N.A.
By /s/ Thomas R. Colwell
Name Thomas R. Colwell
Title: Vice President
Lending Office and Address for Notices
PNC Bank, National Association
249 Fifth Avenue, 2nd Floor
Pittsburgh, PA 15222
Attn: Hillary Guttman
Telephone: 412-768-8219
Facsimile: 412-768-4586
<PAGE>
MELLON BANK
By /s/ Joseph F. Bond, Jr.
Name Joseph F. Bond, Jr.
Title: Vice President
Lending Office and Address for Notices
Mellon Financial Services
65 East 55th Street
New York, NY 10022
Telephone: 212-702-4017
Facsimile: 212-702-5269
<PAGE>
BANCA MONTE DEI PASCHI DI SIENA, SPA
By /s/ G. Natalicchi
Name G. Natalicchi
Title: Vice President
By /s/ Brian R. Landy
Name: Brian R. Landy
Title: Vice President
Lending Office and Address for Notices
245 Park Avenue
New York, New York 10167
______________________________
______________________________
Telephone: (212) 557-8111
Facsimile: (212) 557-8039
