<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 26, 1997
BUSH INDUSTRIES, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
Delaware 1-8884 16-0837346
- ----------------- ------------------ ----------------
(State or other (Commission File (I.R.S. Employer
jurisdiction Number) Identification
of incorporation) No.)
- ----------------- ------------------ ----------------
</TABLE>
One Mason Drive
P.O. Box 460
Jamestown, New York 14702-0460
----------------------------------------
(Address of principal executive offices)
Registrant's telephone number, including area code: (716) 665-2000
N/A
-------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events.
Effective as of June 26, 1997, Bush Industries, Inc. (the "Registrant"),
entered into a Credit and Guarantee Agreement (the "Credit Agreement"), with
The Chase Manhattan Bank, as administrative agent and as a lender ("Chase"),
Mellon Bank, N.A., as co-agent and as a lender ("Mellon"), and certain other
banks, pursuant to which the Registrant can borrow up to a maximum of
$155,000,000. The credit facility replaces the Registrant's previously
existing lending facility in the aggregate amount of $85,000,000.
Pursuant to the terms of the Credit Agreement, which expires June 25,
2002, the Registrant must satisfy certain affirmative and negative covenants
at the time of any borrowing and during the term of the credit facility,
including achieving certain consolidated cash flow coverage and leverage
ratios, satisfying minimum tangible net worth requirements, and limiting
capital expenditures and new leases within prescribed parameters. The Credit
Agreement provides, at the Registrant's option, subject to certain conditions,
for revolving credit loans, swing line loans and multicurrency loans.
At the Registrant's option, borrowings may be effectuated, subject to
certain conditions, on a NYBOR rate, a eurocurrency rate for dollars, an
applicable eurocurrency rate for certain foreign currencies, a money market
rate, or an alternative base rate. Alternative base rate loans currently bear
interest at the prime rate as announced by The Chase Manhattan Bank.
The applicable margin, which pertains only to NYBOR and eurocurrency rate
loans, varies from 0.375% to 1.00%, depending upon the Registrant's ability
to satisfy certain quarterly financial tests. In addition, the Credit
Agreement permits the Registrant to request the issuance of up to a maximum of
$20,000,000 in letters of credit, which issuance will be deemed part of the
$155,000,000 maximum amount of borrowing permitted under the credit facility.
In accordance with the terms of the Credit Agreement, the Registrant
pledged 100% of the capital stock of all its domestic subsidiaries and 65% of
the capital stock of all its directly held foreign subsidiaries to the banks
to secure its obligations under the Credit Agreement. Apart from such pledge,
the credit facility is unsecured.
The Registrant has in the past maintained "key man" life insurance in the
amount of approximately $11.4 million on the life of Mr. Paul S. Bush, the
Chairman of the Board, President and Chief Executive Officer of the
Registrant. Recently the Registrant increased the amount of this insurance to
approximately $21.4 million by purchasing an additional $10 million life
insurance policy. Effective July 1997, the Registrant entered into a stock
redemption agreement with Mr. Paul S. Bush, which provides that upon Mr. Paul
S. Bush's demise the Registrant may be required to redeem a portion of the
Registrant's capital stock then owned by Mr. Paul S. Bush's estate, at the
then market price based upon a thirty day average prior to the closing of any
stock redemption. The amount of the redemption is limited to the
approximately $21.4 million proceeds described above. The Registrant believes
that such agreement would enhance stockholder valuation, by providing a
mechanism for the orderly liquidation of a portion of the estate's equity
holdings in the Registrant, if the estate is then required to sell such stock,
for among other reasons, to satisfy, in whole or in part, then current estate
tax obligations.
2
<PAGE>
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
10.1 Credit and Guarantee Agreement, dated as of June 26, 1997.
10.2 Stock Redemption Agreement.
3
<PAGE>
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 hereunto duly authorized.
BUSH INDUSTRIES, INC.
By: /s/ Robert L. Ayres
-----------------------------------------
Date: September 9, 1997 Robert L. Ayres, Chief Financial Officer,
--------------------- Chief Operating Officer and Executive Vice
President
4
<PAGE>
================================================================================
BUSH INDUSTRIES, INC.
THE FOREIGN SUBSIDIARY BORROWERS
--------------------------
$155,000,000
CREDIT AND GUARANTEE AGREEMENT
Dated as of June 26, 1997
-------------------------------
The Lenders Party Hereto,
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
MELLON BANK, N.A.,
as Co-Agent
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
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Page
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SECTION 1. DEFINITIONS......................................................................................... 1
1.1 Defined Terms................................................................................... 1
-------------
1.2 Other Definitional Provisions................................................................... 22
-----------------------------
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT
COMMITMENTS................................................................................. 23
2.1 Revolving Credit Commitments.................................................................... 23
----------------------------
2.2 Repayment of Revolving Credit Loans; Evidence of Debt........................................... 23
-----------------------------------------------------
2.3 Procedure for Revolving Credit Borrowing........................................................ 24
----------------------------------------
2.4 Termination or Reduction of Revolving Credit Commitments........................................ 25
--------------------------------------------------------
SECTION 3. AMOUNT AND TERMS OF SWING LINE COMMITMENTS.......................................................... 25
3.1 Swing Line Commitments.......................................................................... 25
----------------------
3.2 Procedure for Swing Line Borrowings; Interest Rate.............................................. 25
--------------------------------------------------
3.3 Repayment of Swing Line Loans; Evidence of Debt................................................. 26
-----------------------------------------------
3.4 Refunding of Swing Line Borrowings.............................................................. 27
----------------------------------
3.5 Participating Interests......................................................................... 27
-----------------------
SECTION 4. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT.................................................................................. 28
4.1 Multicurrency Commitments....................................................................... 28
-------------------------
4.2 Repayment of Multicurrency Loans; Evidence of Debt.............................................. 28
--------------------------------------------------
4.3 Procedure for Multicurrency Borrowing........................................................... 29
-------------------------------------
SECTION 5. LETTERS OF CREDIT................................................................................... 30
5.1 L/C Commitment.................................................................................. 30
--------------
5.2 Procedure for Issuance of Letters of Credit..................................................... 30
-------------------------------------------
5.3 L/C Participation............................................................................... 31
-----------------
5.4 Reimbursement Obligation of the Company......................................................... 32
---------------------------------------
5.5 Obligations Absolute............................................................................ 32
--------------------
5.6 Letter of Credit Payments....................................................................... 33
-------------------------
5.7 Application..................................................................................... 33
-----------
SECTION 6. GENERAL PROVISIONS APPLICABLE TO THE LOANS ......................................................... 33
6.1 Interest Rates and Payment Dates................................................................ 33
-------------------------------
6.2 Conversion and Continuation Options............................................................. 34
-----------------------------------
6.3 Minimum Amounts of Tranches..................................................................... 35
---------------------------
6.4 Optional and Mandatory Prepayments.............................................................. 35
----------------------------------
6.5 Commitment Fees; Other Fees..................................................................... 36
---------------------------
6.6 Computation of Interest and Fees................................................................ 37
--------------------------------
6.7 Inability to Determine Interest Rate............................................................ 38
------------------------------------
6.8 Pro Rata Treatment and Payments................................................................. 39
-------------------------------
6.9 Illegality...................................................................................... 40
----------
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6.10 Requirements of Law............................................................................ 41
--------------------
6.11 Taxes.......................................................................................... 42
-----
6.12 Indemnity...................................................................................... 44
---------
6.13 Use of Proceeds................................................................................ 44
---------------
6.14 Change of Lending Office; Replacement of Lenders............................................... 45
------------------------------------------------
SECTION 7. REPRESENTATIONS AND WARRANTIES...................................................................... 46
7.1 Financial Condition............................................................................. 46
-------------------
7.2 No Change....................................................................................... 46
---------
7.3 Corporate Existence; Compliance with Law........................................................ 46
----------------------------------------
7.4 Corporate Power; Authorization; Enforceable Obligations......................................... 47
-------------------------------------------------------
7.5 No Legal Bar.................................................................................... 47
------------
7.6 No Material Litigation.......................................................................... 47
----------------------
7.7 No Default...................................................................................... 47
----------
7.8 Ownership of Property; Liens.................................................................... 47
----------------------------
7.9 Intellectual Property........................................................................... 48
---------------------
7.10 No Burdensome Restrictions..................................................................... 48
--------------------------
7.11 Taxes.......................................................................................... 48
-----
7.12 Federal Regulations............................................................................ 48
-------------------
7.13 ERISA.......................................................................................... 48
-----
7.14 Investment Company Act; Other Regulations...................................................... 49
-----------------------------------------
7.15 Subsidiaries................................................................................... 49
------------
7.16 Environmental Matters.......................................................................... 49
---------------------
7.17 Accuracy and Completeness of Information....................................................... 50
----------------------------------------
7.18 Foreign Subsidiary Borrowers................................................................... 51
----------------------------
7.19 Security Documents............................................................................. 51
------------------
7.20 Solvency....................................................................................... 51
--------
7.21 Labor Matters.................................................................................. 52
-------------
SECTION 8. CONDITIONS PRECEDENT................................................................................ 52
8.1 Conditions to Initial Loans..................................................................... 52
---------------------------
8.2 Conditions to Second Closing Date............................................................... 54
---------------------------------
8.3 Conditions to Each Extension of Credit.......................................................... 55
--------------------------------------
SECTION 9. AFFIRMATIVE COVENANTS............................................................................... 56
9.1 Financial Statements............................................................................ 56
--------------------
9.2 Certificates; Other Information................................................................. 56
-------------------------------
9.3 Payment of Obligations.......................................................................... 57
----------------------
9.4 Conduct of Business and Maintenance of Existence................................................ 57
------------------------------------------------
9.5 Maintenance of Property; Insurance.............................................................. 57
----------------------------------
9.6 Inspection of Property; Books and Records; Discussions.......................................... 58
------------------------------------------------------
9.7 Notices......................................................................................... 58
-------
9.8 Environmental Laws.............................................................................. 59
------------------
9.9 Additional Collateral; Further Assurances....................................................... 59
-----------------------------------------
9.10 Satisfaction of Waived Conditions Precedent.................................................... 60
-------------------------------------------
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9.11 Identification of Collateral................................................................... 60
---------------------------
SECTION 10. NEGATIVE COVENANTS................................................................................. 60
10.1 Consolidated Cash Flow Coverage Ratio.......................................................... 60
-------------------------------------
10.2 Consolidated Leverage Ratio.................................................................... 60
---------------------------
10.3 Maintenance of Consolidated Net Worth.......................................................... 60
-------------------------------------
10.4 Limitation on Indebtedness..................................................................... 60
--------------------------
10.5 Limitation on Liens............................................................................ 61
-------------------
10.6 Limitation on Guarantee Obligations............................................................ 63
-----------------------------------
10.7 Limitation on Fundamental Changes.............................................................. 63
---------------------------------
10.8 Limitation on Sale of Assets................................................................... 64
----------------------------
10.9 Limitation on Dividends........................................................................ 64
-----------------------
10.10 Limitation on Capital Expenditures............................................................ 65
----------------------------------
10.11 Limitation on Investments, Loans and Advances................................................. 66
---------------------------------------------
10.12 Limitation on Modifications of Debt Instruments............................................... 67
-----------------------------------------------
10.13 Limitation on Transactions with Affiliates.................................................... 67
------------------------------------------
10.14 Limitation on Sales and Leasebacks............................................................ 67
----------------------------------
10.15 Limitation on Changes in Fiscal Year.......................................................... 67
------------------------------------
10.16 Limitation on Negative Pledge Clauses......................................................... 67
-------------------------------------
10.17 Limitation on Lines of Business............................................................... 68
-------------------------------
10.18 Hedging Agreements............................................................................ 68
------------------
SECTION 11. GUARANTEE.......................................................................................... 68
11.1 Guarantee...................................................................................... 68
---------
11.2 Right of Set-off............................................................................... 68
----------------
11.3 No Subrogation................................................................................. 69
--------------
11.4 Amendments, etc. with respect to the Obligations; Waiver of Rights............................. 69
------------------------------------------------------------------
11.5 Guarantee Absolute and Unconditional........................................................... 70
------------------------------------
11.6 Reinstatement.................................................................................. 71
-------------
11.7 Payments....................................................................................... 71
--------
SECTION 12. EVENTS OF DEFAULT.................................................................................. 71
SECTION 13. THE ADMINISTRATIVE AGENT; THE CO-AGENT............................................................. 74
13.1 Appointment.................................................................................... 74
-----------
13.2 Delegation of Duties........................................................................... 74
--------------------
13.3 Exculpatory Provisions......................................................................... 74
----------------------
13.4 Reliance by Administrative Agent............................................................... 75
--------------------------------
13.5 Notice of Default.............................................................................. 75
-----------------
13.6 Non-Reliance on Administrative Agent and Other Lender.......................................... 76
-----------------------------------------------------
13.7 Indemnification................................................................................ 76
---------------
13.8 Administrative Agent in its Individual Capacity................................................ 76
-----------------------------------------------
13.9 Successor Administrative Agent................................................................. 77
------------------------------
13.10 The Co-Agent.................................................................................. 77
------------
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SECTION 14. MISCELLANEOUS...................................................................................... 77
14.1 Amendments and Waivers......................................................................... 77
----------------------
14.2 Notices........................................................................................ 79
-------
14.3 No Waiver; Cumulative Remedies................................................................. 81
------------------------------
14.4 Survival of Representations and Warranties..................................................... 81
------------------------------------------
14.5 Payment of Expenses and Taxes.................................................................. 81
-----------------------------
14.6 Successors and Assigns; Participations and Assignments......................................... 82
------------------------------------------------------
14.7 Adjustments; Set-Off........................................................................... 85
--------------------
14.8 Counterparts................................................................................... 86
------------
14.9 Severability................................................................................... 86
------------
14.10 Integration................................................................................... 86
-----------
14.11 GOVERNING LAW................................................................................. 86
-------------
14.12 Submission To Jurisdiction; Waivers........................................................... 86
-----------------------------------
14.13 Acknowledgements.............................................................................. 87
----------------
14.14 WAIVERS OF JURY TRIAL......................................................................... 87
---------------------
14.15 Power of Attorney............................................................................. 87
-----------------
14.16 Judgment...................................................................................... 88
--------
14.17 Confidentiality............................................................................... 88
---------------
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<PAGE>
<TABLE>
ANNEXES:
<S> <C> <C>
I Pricing Grid
SCHEDULES:
I Commitments; Addresses
II Foreign Subsidiary Borrowers
5.1 Existing Letters of Credit
7.1 Recent Transactions
7.9 Intellectual Property
7.16 Environmental Matters
9.10 Waived Conditions Precedent
10.4 Existing Indebtedness
10.5 Existing Liens
10.6 Existing Guarantee Obligations
10.9(h) Stock Redemption Program
10.11(h) Existing Investments, Loans and Advances
EXHIBITS:
A Form of Foreign Subsidiary Guarantee
B Matters to be Covered by Foreign Subsidiary Opinion
C Form of Joinder Agreement
D-1 Form of Pledge Agreement
D-2 Form of German Pledge Agreement
E Form of Domestic Subsidiary Guarantee
F Form of Note
G Form of Assignment and Acceptance
H Form of Opinion of Akerman, Senterfitt & Eidson, P.A.
I Form of Closing Certificate
</TABLE>
<PAGE>
CREDIT AND GUARANTEE AGREEMENT, dated as of June 26, 1997, among BUSH
INDUSTRIES, INC., a Delaware corporation (the "Company"), each FOREIGN
-------
SUBSIDIARY BORROWER (as hereinafter defined) (together with the Company, the
"Borrowers"), MELLON BANK, N.A., a national banking association as co-agent (in
---------
such capacity, the "Co-Agent"), the several banks and other financial
--------
institutions from time to time parties hereto (the "Lenders") and THE CHASE
-------
MANHATTAN BANK, a New York banking corporation, as administrative agent for the
Lenders hereunder (as hereinafter defined, the "Administrative Agent").
--------------------
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company is party to the Credit Agreement, dated as of July 26,
1995, as amended (the "Existing Credit Agreement") with the several banks and
-------------------------
other financial institutions party thereto, the Issuing Bank named therein and
Mellon Bank, N.A., as the agent;
WHEREAS, the Company intends to acquire (the "Rohr Acquisition") a 51%
----------------
interest in Rohr Gruppe, a German corporation, and related entities (together
"Rohr"); and
----
WHEREAS, the Company has requested the Lenders to establish the credit
facility provided for herein (the "Facility") to refinance the Existing Credit
--------
Agreement, to finance the consummation of the Rohr Acquisition and for other
general corporate purposes;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
-------------
have the following meanings:
"ABR Loan": Revolving Credit Loans or Swing Line Loans, the rate of
--------
interest applicable to which is based upon the Alternate Base Rate.
"Adjustment Date": each date on or after June 30, 1998 that is the second
---------------
Business Day following receipt by the Lenders of both (i) the financial
statements required to be delivered pursuant to subsection 9.1(a) or 9.1(b), as
applicable, for the most recently completed fiscal period and (ii) the related
compliance certificate required to be delivered pursuant to subsection 9.2(b)
with respect to such fiscal period.
"Administrative Agent": Chase, together with its affiliates, as arranger
--------------------
of the Commitments and as administrative agent for the Lenders under this
Agreement, and any successor thereto appointed pursuant to subsection 13.9.
<PAGE>
"Affiliate": as to any Person, any other Person (other than a Subsidiary)
---------
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, "control" of
a Person means the power, directly or indirectly, either to (a) vote 10% or more
of the securities having ordinary voting power for the election of directors of
such Person or (b) direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise.
"Aggregate Available Revolving Credit Commitments": as at any date of
------------------------------------------------
determination with respect to all Lenders, an amount in U.S. Dollars equal to
the Available Revolving Credit Commitments of all Lenders on such date.
"Aggregate Multicurrency Outstandings": as at any date of determination
------------------------------------
with respect to any Lender, an amount in the applicable Available Foreign
Currencies equal to the aggregate unpaid principal amount of such Lender's
Multicurrency Loans.
"Aggregate Revolving Credit Commitments": the aggregate amount of the
--------------------------------------
Revolving Credit Commitments of all of the Lenders.
"Aggregate Revolving Credit Outstandings": as at any date of determination
---------------------------------------
with respect to any Lender, the sum of (a) the aggregate unpaid principal amount
of such Lender's Revolving Credit Loans outstanding on such date and (b) such
Lender's Revolving Credit Commitment Percentage of (i) the U.S. Dollar
Equivalent of the aggregate amount of L/C Obligations outstanding on such date
and (ii) the aggregate principal amount of Swing Line Loans outstanding on such
date.
"Aggregate Total Outstandings": as at any date of determination with
----------------------------
respect to any Lender, an amount in U.S. Dollars equal to the sum of (a) the
Aggregate Revolving Credit Outstandings of such Lender on such date and (b) the
U.S. Dollar Equivalent of the Aggregate Multicurrency Outstandings of such
Lender on such date.
"Agreement": this Credit and Guarantee Agreement, as the same may be
---------
amended, supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in subsection 14.16(b).
------------------
"Alternate Base Rate": for any day, a rate per annum (rounded upwards, if
-------------------
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and (c)
the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. If for
any reason the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms thereof, the Alternate Base Rate shall be determined without regard to
clause (c) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective on the effective day of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
<PAGE>
3
"Applicable Margin": with respect to all Eurodollar Loans, NYBOR Loans and
-----------------
Multicurrency Loans:
(a) for each day until July 4, 1998, the lesser of (i) .625% per annum or
(ii) the applicable rate per annum set forth under the heading "Applicable
Margin" on Annex I which corresponds to the Consolidated Leverage Ratio as
determined from the financial statements and compliance certificate relating to
the end of the fiscal period most recently ended and to which financial
statements and a compliance certificate have been delivered pursuant
to this Agreement; provided that in the event that the financial statements
--------
required to be delivered pursuant to subsection 9.1(a) or 9.1(b), as
applicable, and the related compliance certificate required to be delivered
pursuant to subsection 9.2(b), are not delivered when due, then the
Applicable Margin shall be .625% per annum until such time as the financial
statements are so delivered, at which time the Applicable Margin will revert to
the lesser of the rates described in items (i) or (ii) above; provided further
-------- -------
that for purposes of this paragraph until the first date after the Closing Date
on which financial statements are required to be delivered pursuant to
subsection 9.1(b), the Consolidated Leverage Ratio shall be calculated based
upon the Company's March 29, 1997 financial statements;
(b) for each day from and including July 4, 1998 until the first Adjustment
Date, the applicable rate per annum set forth under the heading "Applicable
Margin" on Annex I which corresponds to the Consolidated Leverage Ratio as
determined from the financial statements and compliance certificate relating to
the fiscal period ending July 4, 1998; provided that in the event that the
--------
financial statements required to be delivered pursuant to subsection 9.1(b) and
the related compliance certificate required to be delivered pursuant to
subsection 9.2(b) are not delivered when due, then subsections (c)(i), (ii) and
(iii) below shall apply; and
(c) for each day from and after the first Adjustment Date, the applicable
rate per annum set forth under the heading "Applicable Margin" on Annex I which
corresponds to the Consolidated Leverage Ratio as determined from the financial
statements and compliance certificate relating to the end of the fiscal period
immediately preceding the most recent Adjustment Date; the Applicable Margin
determined on each Adjustment Date will be adjusted on each subsequent
Adjustment Date in accordance with Annex I; provided that in the event that the
--------
financial statements required to be delivered pursuant to subsection 9.1(a) or
9.1(b), as applicable, and the related compliance certificate required to be
delivered pursuant to subsection 9.2(b), are not delivered when due, then
(i) if such financial statements and compliance certificate are
delivered after the date such financial statements and compliance
certificate were required to be delivered (without giving effect to
any applicable cure period) and the Applicable Margin increases from
that previously in effect as a result of the delivery of such
financial statements, then the Applicable Margin during the period
from the date upon which such financial statements ere required to be
delivered (without giving effect to any applicable cure period)
<PAGE>
4
until the date upon which they actually are delivered shall, except as
otherwise provided in clause (iii) below, be the Applicable Margin as
so increased;
(ii) if such financial statements and compliance certificate are
delivered after the date such financial statements and compliance
certificate were required to be delivered and the Applicable Margin
decreases from that previously in effect as a result of the delivery
of such financial statements, then such decrease in the Applicable
Margin shall become applicable retroactively as of the date upon which
the financial statements and certificate were required to be delivered
(without giving effect to any applicable cure period); and
(iii) if such financial statements and compliance certificate
are not delivered prior to the expiration of the applicable cure
period (which cure period shall, for purposes of this clause (iii),
commence on the date on which the Administrative Agent delivers notice
to the Company of its failure to deliver such financial statements and
compliance certificate by the date required pursuant to subsections
9.1(a) or 9.1(b), as the case may be, and subsection 9.2(b)), then,
effective upon such expiration, for the period from the date upon
which such financial statements and compliance certificate were
required to be delivered (after the expiration of the applicable cure
period) until two Business Days following the date upon which they
actually are annum (it being understood that the foregoing shall not
limit the rights of the Administrative Agent and the Lenders set forth
in Section 12).
In the case of any payment of interest made after a date on which a change in
the Applicable Margin may become effective pursuant to the foregoing provisions,
and prior to the date of determination of such change, such interest payment
shall be made at the rate in effect prior to such change, and any excess or
deficiency shall be remitted with, or deducted from, the first interest payment
made after the amount of such excess or deficiency is determined.
"Application": an application, in such form as the Issuing Lender may
-----------
specify from time to time, requesting the Issuing Lender to issue a Letter of
Credit.
"Assignee": as defined in subsection 14.6(c).
--------
"Associate": as to any person, (a) any corporation or organization of
---------
which such Person is an officer, director or partner or is, directly or
indirectly, the beneficial owner of shares of voting common stock entitling that
Person to cast votes representing at least 10% of the voting power of all the
voting common stock of such corporation or organization; (b) any trust or other
estate in which such Person has a substantial beneficial interest or as to which
such Person serves as trustee or in a similar fiduciary capacity; (c) any
relative or spouse of such Person, or any relative of the spouse, who has the
same home as such Person; and (d) minor children of such Person or any trust
established by such Person for the benefit of his minor children.
<PAGE>
5
"Available Foreign Currencies": Deutsche Marks, Pounds Sterling, Italian
----------------------------
Lire, Canadian Dollars, Japanese Yen and any other available and freely-
convertible non-U.S. Dollar currency selected by the Company and approved by the
Administrative Agent and the Lenders.
"Available Revolving Credit Commitment": as at any date of determination
-------------------------------------
with respect to any Lender, an amount in U.S. Dollars equal to the difference,
if any, of (a) the amount of such Lender's Revolving Credit Commitment in effect
on such date minus (b) the Aggregate Total Outstandings of such Lender on such
-----
date.
"Base CD Rate": the sum of (a) the product of (i) the Three-Month
------------
Secondary CD Rate and (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage and (b) the C/D
Assessment Rate.
"Benefitted Lender": as defined in subsection 14.7.
-----------------
"Board": the Board of Governors of the Federal Reserve System (or any
-----
successor thereto).
"Borrowers": as defined in the preamble hereto.
---------
"Borrowing Date": any Business Day specified in a notice pursuant to
--------------
subsection 2.3, 3.2 or 4.3 as a date on which a Borrower requests the Lenders to
make Loans hereunder.
"Bush-Viotechnik": Bush-Viotechnik GmbH, a German corporation and a
---------------
Subsidiary of the Company.
"Business": as defined in subsection 7.16.
--------
"Business Day": (a) when such term is used in respect of a day on which a
------------
Loan in an Available Foreign Currency is to be made, a payment is to be made in
respect of such Loan, an Exchange Rate is to be set in respect of such Available
Foreign Currency or any other dealing in such Available Foreign Currency is to
be carried out pursuant to this Agreement, such term shall mean a London Banking
Day which is also a day on which banks are open for general banking business in
the city which is the principal financial center of the country of issuance of
such Available Foreign Currency, (b) when such term is used to describe a day on
which a borrowing, payment or interest rate determination is to be made in
respect of a Eurodollar Loan, such day shall be a London Banking Day and (c)
when such term is used in any context in this Agreement (including as described
in the foregoing clauses (a) and (b)), such term shall mean a day which, in
addition to complying with any applicable requirements set forth in the
foregoing clause (a) and (b), is a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close.
<PAGE>
6
"Capital Expenditures": all expenditures of the Company and its
--------------------
Subsidiaries on a consolidated basis for any fixed assets or improvements, or
for replacements, substitutions or additions thereto, which have a useful life
of more than one year, including, but not limited to, the direct or indirect
acquisition of such assets by way of increased product or service charges,
offset items or otherwise, including all expenditures under Financing Leases,
all determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or other
-------------
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one year or less
----------------
from the date of acquisition issued or fully guaranteed or insured by the United
States Government or any agency thereof, (b) certificates of deposit and
eurodollar time deposits with maturities of one year or less from the date of
acquisition and overnight bank deposits of any Lender or of any commercial bank
having capital and surplus in excess of $500,000,000, (c) repurchase obligations
of any Lender or of any commercial bank satisfying the requirements of clause
(b) of this definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-2 by S&P
or P-2 by Moody's, (e) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing authority
of any such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's, (f) securities with maturities of one year or less from
the date of acquisition backed by standby letters of credit issued by any Lender
or any commercial bank satisfying the requirements of clause (b) of this
definition or (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"C/D Assessment Rate": for any day as applied to any Alternate Base Rate
-------------------
Loan, the annual assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund maintained by the Federal Deposit Insurance
Corporation (the "FDIC") classified as well-capitalized and within supervisory
----
subgroup "B" (or a comparable successor assessment risk classification) within
the meaning of 12 C.F.R. (S) 327.4 (or any successor provision) to the FDIC (or
any successor) for the FDIC's (or such successor's) insuring time deposits at
offices of such institution in the United States.
"C/D Reserve Percentage": for any day as applied to any Alternate Base
----------------------
Rate Loan, that percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board, for determining the maximum reserve requirement
for a
<PAGE>
7
Depositary Institution (as defined in Regulation D of the Board) in
respect of new non-personal time deposits in Dollars having a maturity of 30
days or more.
"Change of Control": a "Change of Control" shall be deemed to occur on any
-----------------
date on which the Control Group shall fail to satisfy the Control Tests for any
reason (voluntarily or involuntarily). As used herein, the term "Control Group"
shall mean the following Persons at any time prior to the death of Paul S. Bush:
(a) Paul S. Bush, (b) Affiliates of Paul S. Bush, (c) Associates of Paul S. Bush
and (d) adult children of Paul S. Bush. As used herein, the term "Control Group"
shall mean the following persons at any time after the death of Paul S. Bush:
(a) the children of Paul S. Bush, (b) any spouse which Paul S. Bush may have had
prior to his death and (c) Affiliates and Associates of the Persons named in
clauses (a) and (b) of this sentence. As used herein, the "Control Tests" are
deemed satisfied at a given time if and only if at such time: the members of the
Control Group in the aggregate own (beneficially and of record) and have the
right to vote shares of voting common stock of the Company representing 51% of
the voting power of all the voting common stock of the Company (assuming for
purposes of such calculation that all then-outstanding options, warrants,
conversion rights or other rights held by any Person which may in any
circumstances give such Person the right to acquire shares of voting common
stock are exercised at such time by such Person (so that all shares of voting
common stock potentially issuable pursuant to such rights shall be deemed
outstanding and held by such Person for purposes of such calculation),
regardless of whether such rights are in fact then exercisable or whether any
conditions to such exercise are then met).
"Chase": The Chase Manhattan Bank, a New York banking corporation.
-----
"Chase Delaware": Chase Manhattan Bank Delaware.
--------------
"Closing Date": the date on which the conditions precedent set forth in
------------
subsection 8.1 are satisfied or waived.
"Co-Agent": as defined in the preamble hereto.
--------
"Code": the Internal Revenue Code of 1986, as amended from time to time.
----
"Commitment Fee Rate": (a) for each day until July 4, 1998 the lesser of
-------------------
(i) .1250% per annum or (ii) the applicable rate per annum set forth under the
heading "Commitment Fee Rate" on Annex I which corresponds to the Consolidated
Leverage Ratio as determined from the financial statements and compliance
certificate relating to the end of the fiscal period most recently ended and to
which financial statements and a compliance certificate have been delivered
pursuant to this Agreement; provided that in the event that the financial
--------
statements required to be delivered pursuant to subsection 9.1(a) or 9.1(b), as
applicable, and the related compliance certificate required to be delivered
pursuant to subsection 9.2(b), are not delivered when due, then the Commitment
Fee Rate shall be .1250% per annum until the financial statements are so
delivered, at which time the Commitment Fee Rate will revert to the
<PAGE>
8
lesser of the rates described in items (i) and (ii) above; provided further that
-------- -------
for purposes of this paragraph until the first date after the Closing Date on
which financial statements are required to be delivered pursuant to subsection
9.1(b), the Consolidated Leverage Ratio shall be calculated based upon the
Company's March 29, 1997 financial statements;
(b) for each day from and including July 4, 1998 until the first Adjustment
Date, the applicable rate per annum set forth under the heading "Commitment Fee
Rate" on Annex I which corresponds to the Consolidated Leverage Ratio as
determined from the financial statements and compliance certificate relating to
the fiscal period ending July 4, 1998; provided that in the event that the
--------
financial statements required to be delivered pursuant to subsection 9.1(b) and
the related compliance certificate required to be delivered pursuant to
subsection 9.2(b) are not delivered when due, subsections (c)(i), (ii) and (iii)
below shall apply; and
(c) for each day from and after the first Adjustment Date, the applicable
rate per annum set forth under the heading "Commitment Fee Rate" on Annex I
which corresponds to the Consolidated Leverage Ratio as determined from the
financial statements and compliance certificate relating to the end of the
fiscal period immediately preceding the most recent Adjustment Date; the
Commitment Fee Rate determined on each Adjustment Date will be adjusted on each
subsequent Adjustment Date in accordance with Annex I; provided that in the
--------
event that the financial statements required to be delivered pursuant to
subsection 9.1(a) or 9.1(b), as applicable, and the related compliance
certificate required to be delivered pursuant to subsection 9.2(b), are not
delivered when due, then
(i) if such financial statements and compliance certificate are
delivered after the date such financial statements and compliance were
required to be delivered (without giving effect to any applicable cure
period) and the Commitment Fee Rate increases from that previously in
effect as a result of the delivery of such financial statements, then the
Commitment Fee Rate during the period from the date upon which such
financial statements were required to be delivered (without giving effect
to any applicable cure period) until the date upon which they actually are
delivered shall, except as otherwise provided in clause (iii) below, be the
Commitment Fee Rate as so increased;
(ii) if such financial statements and compliance certificate are
delivered after the date such financial statements and compliance
certificate were required to be delivered and the Commitment Fee Rate
decreases from that previously in effect as a result of the delivery of
such financial statements, then such decrease in the Commitment Fee Rate
shall become applicable retroactively as of the date upon which the
financial statements and certificate were required to be delivered (without
giving effect to any applicable cure period); and
<PAGE>
9
(iii) if such financial statements and compliance certificate are not
delivered prior to the expiration of the applicable cure period (which cure
period shall, for purposes of this clause (iii), commence on the date on
which the Administrative Agent delivers notice to the Company of its
failure to deliver such financial statements and compliance certificate by
the date required pursuant to subsections 9.1(a) or 9.1(b), as the case may
be, and subsection 9.2(b)), then, effective upon such expiration, for the
period from the date upon which such financial statements and compliance
certificate were required to be delivered (after the expiration of the
applicable cure period) until two Business Days following the date upon
which they actually are delivered, the Commitment Fee Rate shall be .20%
per annum (it being understood that the foregoing shall not limit the
rights of the Administrative Agent and the Lenders set forth in Section
12).
In the case of any payment of commitment fees made after a date on which a
change in the Commitment Fee Rate may become effective pursuant to the foregoing
provisions, and prior to the date of determination of such change, such
commitment fee payment shall be made at the rate in effect prior to such change,
and any excess or deficiency shall be remitted with, or deducted from, the first
commitment fee payment made after the amount of such excess or deficiency is
determined.
"Commonly Controlled Entity": an entity, whether or not incorporated,
--------------------------
which is under common control with the Company within the meaning of Section
4001 of ERISA or is part of a group which includes the Company and which is
treated as a single employer under Section 414 of the Code.
"Company": as defined in the preamble hereto.
-------
"Consolidated Cash Flow Coverage Ratio": for any period, the ratio of (a)
-------------------------------------
Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"Consolidated EBITDA": for any period, the sum of (a) Consolidated Net
-------------------
Income for such fiscal period plus (b) the amount of income and franchise taxes
and depreciation deducted in determining such Consolidated Net Income plus (c)
----
the amount of Consolidated Interest Expense for such period, plus (d)
----
amortization of Intangible Assets deducted in determining such Consolidated Net
Income.
"Consolidated Funded Debt": all Indebtedness of the Company and its
------------------------
Subsidiaries on a consolidated basis maturing one year or more after incurrence
thereof.
"Consolidated Interest Expense": with respect to any period, the aggregate
-----------------------------
of all interest expense reported by the Company and its Subsidiaries in
accordance with GAAP during such period.
<PAGE>
10
"Consolidated Leverage Ratio": as of the last day of any fiscal quarter,
---------------------------
the ratio of (i) Consolidated Funded Debt on such date, less the amount of cash
and Cash Equivalents held by the Company and its Subsidiaries on such date to
(ii) Consolidated EBITDA for the four consecutive fiscal quarters ended on such
date.
"Consolidated Net Income": for any fiscal period, consolidated net
-----------------------
income (or loss) by the Company and its Subsidiaries for such fiscal period,
determined in accordance with GAAP, but excluding the income of any Person
(other than Subsidiaries of the Company) in which the Company or any of its
Subsidiaries has an ownership interest, until such income has been received by
the Company or a Subsidiary in a cash distribution.
"Consolidated Net Worth": at any date, stockholders equity of the Company
----------------------
and its Subsidiaries on a consolidated basis as at such date, determined in
accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of any security
----------------------
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"Credit Parties": the collective reference to each Borrower and each
--------------
Subsidiary of the Company that is a party to any Loan Document.
"CSI": Chase Securities Inc.
---
"Default": any of the events specified in Section 12 whether or not any
-------
requirement for the giving of notice, the lapse of time, or both, or any other
condition has been satisfied.
"Dollars", "U.S. Dollars" and "$": dollars in lawful currency of the
------- ------------ -
United States of America.
"Domestic Subsidiary": any Subsidiary of the Company organized under the
-------------------
laws of any jurisdiction within the United States.
"Domestic Subsidiary Guarantee": the Domestic Subsidiary Guarantee, dated
-----------------------------
as of the date hereof, made by certain Domestic Subsidiaries of the Company in
favor of the Administrative Agent for the benefit of the Lenders, substantially
in the form of Exhibit E, as the same may be amended, supplemented or otherwise
modified from time to time.
"Domestic Subsidiary Guarantee Supplement": a supplement to the Domestic
----------------------------------------
Subsidiary Guarantee, substantially in the form of Annex A to the Domestic
Subsidiary Guarantee, whereby a Domestic Subsidiary of the Company becomes a
"Guarantor" under the Domestic Subsidiary Guarantee.
<PAGE>
11
"Environmental Laws": any and all foreign, Federal, state, local or
------------------
municipal, laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Eurocurrency Base Rate": (a) with respect to each Interest Period
----------------------
pertaining to a Eurodollar Loan or a Multicurrency Loan denominated in any
currency other than Pounds Sterling, the rate per annum determined by the
Administrative Agent to be the offered rate for deposits in such currency with a
term comparable to such Interest Period that appears on the applicable Telerate
Page at approximately 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period; provided, however, that if at any time for
-------- -------
any reason such offered rate for any such currency does not appear on a Telerate
Page, "Eurocurrency Base Rate" shall mean, with respect to each day during each
Interest Period pertaining to a Loan denominated in such currency, the rate per
annum equal to the average (rounded upward to the nearest 1/16th of 1%) of the
respective rates notified to the Administrative Agent by each of the Reference
Lenders as the rate at which such Reference Lender is offered deposits in such
currency at or about 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period in the London interbank market for delivery on
the first day of such Interest Period for the number of days comprised therein;
and (b) with respect to each day during each Interest Period pertaining to a
Multicurrency Loan denominated in Pounds Sterling, the rate per annum equal to
the average (rounded upward to the nearest 1/16th of 1%) of the respective rates
notified to the Administrative Agent by each of the Reference Lenders as the
rate at which such Reference Lender is offered deposits in Pounds Sterling at or
about 11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period in the Paris interbank market for delivery on the first day of
such Interest Period for the number of days comprised therein.
"Eurocurrency Rate": with respect to each day during each Interest Period
-----------------
pertaining to a Eurodollar Loan or a Multicurrency Loan, a rate per annum
determined for such day in accordance with the following formula (rounded upward
to the nearest 1/100th of 1%):
Eurocurrency Base Rate
------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Reserve Requirements": for any day as applied to a
---------------------------------
Eurodollar Loan or a Multicurrency Loan, the aggregate (without duplication) of
the rates (expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves)
<PAGE>
12
under any regulations of the Board of Governors of the Federal Reserve System or
other Governmental Authority having jurisdiction with respect thereto dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board)
maintained by a member bank of such System.
"Eurodollar Loans": Revolving Credit Loans the rate of interest applicable
----------------
to which is based upon the Eurocurrency Rate for Dollars.
"Event of Default": any of the events specified in Section 12, provided
---------------- --------
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Exchange Rate": with respect to any non-U.S. Dollar currency on any date,
-------------
the rate at which such currency may be exchanged into U.S. Dollars, as set forth
on such date on the relevant Reuters currency page at or about 11:00 A.M.,
London time, on such date. In the event that such rate does not appear on any
Reuters currency page, the "Exchange Rate" with respect to such non-U.S. Dollar
currency shall be determined by reference to such other publicly available
service for displaying exchange rates as may be agreed upon by the
Administrative Agent and the Company or, in the absence of such agreement, such
"Exchange Rate" shall instead be the Administrative Agent's spot rate of
exchange in the interbank market where its foreign currency exchange operations
in respect of such non-U.S. Dollar currency are then being conducted, at or
about 10:00 A.M., local time, on such date for the purchase of U.S. Dollars with
such non-U.S. Dollar currency, for delivery two Business Days later; provided,
--------
that if at the time of any such determination, no such spot rate can reasonably
be quoted, the Administrative Agent may use any reasonable method as it deems
applicable to determine such rate, and such determination shall be conclusive
absent manifest error. The Administrative Agent shall, upon request of the
Company, provide the Company with a description in reasonable detail of the
method of any determination pursuant to the proviso to the preceding sentence.
"Existing Credit Agreement": as defined in the recitals hereto.
-------------------------
"Existing Letters of Credit": as defined in Section 5.1.
--------------------------
"Extension of Credit": as to any Lender, the making of a Loan by such
-------------------
Lender or the issuance of any Letter of Credit.
"Facility": as defined in the recitals hereto.
--------
"Federal Funds Effective Rate": for any day, the weighted average of the
----------------------------
rates per annum 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 which is a Business Day, the average
of the quotations
<PAGE>
13
for the day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.
"Financing Lease": any lease of property, real or personal, the
---------------
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Foreign Subsidiary": any Subsidiary of the Company organized under the
------------------
laws of any jurisdiction outside the United States of America.
"Foreign Subsidiary Borrower": each Foreign Subsidiary listed as a Foreign
---------------------------
Subsidiary Borrower in Schedule II as amended from time to time in accordance
with subsection 14.1(b)(i).
"Foreign Subsidiary Guarantee": each Foreign Subsidiary Guarantee made by
----------------------------
each of the Foreign Subsidiaries of the Foreign Subsidiary Borrowers in favor of
the Administrative Agent for the benefit of the Lenders, substantially in the
form of Exhibit A, as the same may be amended, supplemented or otherwise
modified from time to time.
"Foreign Subsidiary Opinion": with respect to any Foreign Subsidiary
--------------------------
Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower
addressed to the Administrative Agent and the Lenders concluding that such
Foreign Subsidiary Borrower and the Loan Documents to which it is a party
substantially comply with the matters listed on Exhibit B, with such
assumptions, qualifications and deviations therefrom as the Administrative Agent
shall approve (such approval not to be unreasonably withheld).
"GAAP": generally accepted accounting principles in the United States of
----
America in effect from time to time.
"Governmental Authority": any nation or government, any state, or other
----------------------
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
-------------------- -------------------
obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
-------------------
of any other third Person (the "primary obligor") in any manner, whether
---------------
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity
<PAGE>
14
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
-------- -------
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Company in good
faith.
"Hedging Agreement": 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": of any Person at any date, (a) all indebtedness of such
------------
Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) all obligations of such Person under Financing Leases,
(d) all obligations of such Person in respect of acceptances issued or created
for the account of such Person and (e) all liabilities secured by any Lien on
any property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the condition that
----------
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
---------
"Intangible Assets": assets having no physical existence and that, in
-----------------
conformity with GAAP, should be classified as intangible assets, including,
without limitation, patents, patent rights, trademarks, trade names, copyrights,
franchises, licenses, customer lists, organizational expenses and goodwill.
"Intellectual Property": as defined in subsection 7.9.
---------------------
"Interest Payment Date": (a) as to any ABR Loan, the last Business Day of
---------------------
each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan or Multicurrency Loan having an
Interest Period of
<PAGE>
15
three months or less, the last day of such Interest Period and (c) as to any
Eurodollar Loan, NYBOR Loan or Multicurrency Loan having an Interest Period
longer than three months, (i) each day which is three months, or a whole
multiple thereof, after the first day of such Interest Period and (ii) the last
day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan, NYBOR Loan or
---------------
Multicurrency Loan:
(a) initially, the period commencing on the borrowing or conversion date,
as the case may be, with respect to such Eurodollar Loan, NYBOR Loan or
Multicurrency Loan and ending one week (in the case of Eurodollar Loans, NYBOR
Loans and Multicurrency Loans in Deutsche Marks only), one, two, three, six or
(if available to all Lenders) twelve months thereafter, as selected by the
relevant Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan, NYBOR Loan or
Multicurrency Loan and ending one week (in the case of Eurodollar Loans, NYBOR
Loans and Multicurrency Loans in Deutsche Marks only), one, two, three, six or
(if available to all Lenders) twelve months thereafter, as selected by the
relevant Borrower by irrevocable notice to the Administrative Agent not less
than three Business Days (in the case of Eurodollar Loans and Multicurrency
Loans) or two Business Days (in the case of NYBOR Loans) prior to the last day
of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
- --------
subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan, NYBOR
Loan or Multicurrency Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) any Interest Period applicable to a Eurodollar Loan, NYBOR Loan
or Multicurrency Loan that would otherwise extend beyond the Revolving
Credit Termination Date shall end on the Revolving Credit Termination Date;
(iii) any Interest Period pertaining to a Eurodollar Loan, NYBOR Loan
or Multicurrency Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month; and
<PAGE>
16
(iv) any Interest Period pertaining to a Multicurrency Loan
denominated in an Available Foreign Currency being replaced by the currency
of the European Monetary Union that would otherwise extend beyond the date
on which such replacement becomes effective shall end on such date.
"Issuing Lender": (a) with respect to the Existing Letters of Credit,
--------------
Mellon, and (b) with respect to any Letters of Credit issued after the Closing
Date, Chase (or Chase Delaware), in its capacity as issuer of the Letters of
Credit and any other Lender which the Company, the Administrative Agent and the
Required Lenders shall have approved, in its capacity as issuer of the Letters
of Credit.
"Joinder Agreement": the Joinder Agreement to be entered into by each
-----------------
Foreign Subsidiary Borrower subsequent to the date hereof pursuant to subsection
14.1(b)(i), substantially in the form of Exhibit C.
"Judgment Currency": as defined in subsection 14.16(b).
-----------------
"L/C Commitment": $20,000,000 or the U.S. Dollar Equivalent thereof.
--------------
"L/C Obligations": at any time, an amount equal to the sum of (a) the
---------------
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to subsection 5.4.
"L/C Participants": the collective reference to all the Lenders other than
----------------
the Issuing Lender.
"Lenders": as defined in the preamble hereto.
-------
"Letters of Credit": as defined in subsection 5.1.
-----------------
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
"Loan Documents": the collective reference to this Agreement, any Notes
--------------
and the Security Documents.
"Loans": the collective reference to the Revolving Credit Loans, the Swing
-----
Line Loans and the Multicurrency Loans.
"London Banking Day": any day on which banks in London are open for
------------------
general banking business, including dealings in foreign currency and exchange.
<PAGE>
17
"Material Adverse Effect": a material adverse effect on (a) the business,
-----------------------
operations, property, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries taken as a whole, (b) the ability of any Borrower
to perform its obligations under this Agreement or any of the Notes to which it
is a party or (c) the validity or enforceability of this Agreement or any of the
Notes or the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.
"Material Entity": any one or more Subsidiaries which in the aggregate
---------------
have assets having a book value exceeding 5% of the aggregate book value of the
assets of the Company and its Subsidiaries (determined on a consolidated bases
in accordance with GAAP).
"Material Environmental Amount": an amount payable by the Company and/or
-----------------------------
its Subsidiaries not covered by insurance or third parties in excess of an
aggregate amount of $2,000,000 for remedial costs, compliance costs,
compensatory damages, punitive damages, fines, penalties or any combination
thereof.
"Material Indebtedness": 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 Company and its Subsidiaries in an aggregate principal amount
exceeding $2,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Company 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 Company or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time.
"Materials of Environmental Concern": any gasoline or petroleum (including
----------------------------------
crude oil or any fraction thereof) or petroleum products or any hazardous or
toxic substances, materials or wastes, defined or regulated as such in or under
any Environmental Law, including, without limitation, asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"Mellon": Mellon Bank, N.A., a national banking association.
------
"Multicurrency Loans": as defined in subsection 4.1.
-------------------
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in
------------------
Section 4001(a)(3) of ERISA or any successor corporation.
"Non-Excluded Taxes": as defined in subsection 6.11(a).
------------------
"Notes": as defined in subsection 2.2.
-----
"NYBOR Base Rate": with respect to each Interest Period pertaining to a
---------------
NYBOR Loan, the rate per annum determined by the Administrative Agent to be the
rate at which deposits in U.S. Dollars with a term comparable to such Interest
Period
<PAGE>
18
are offered to prime banks in the New York interbank market on the date which is
two Business Days prior to the beginning of such Interest Period for value on
the first day of such Interest Period.
"NYBOR Rate": with respect to each day during each Interest Period
----------
pertaining to a NYBOR Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
NYBOR Base Rate
---------------
1.00 - Eurocurrency Reserve Requirements
"NYBOR Loans": Revolving Credit Loans the rate of interest applicable to
-----------
which is based upon the NYBOR Rate.
"Obligations": collectively, the unpaid principal of and interest on the
-----------
Loans and all other obligations and liabilities of each Foreign Subsidiary
Borrower under this Agreement and the other Loan Documents (including, without
limitation, interest accruing at the then applicable rate provided in this
Agreement or any other applicable Loan Document after the maturity of the Loans
and interest accruing at the then applicable rate provided in this Agreement or
any other applicable Loan Document after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Company or any Foreign Subsidiary Borrower, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement or the other Loan Documents or any
other document made, delivered or given in connection therewith, in each case
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Administrative Agent or to the Lenders
that are required to be paid by any Foreign Subsidiary Borrower pursuant to the
terms of this Agreement or any other Loan Document).
"Participants": as defined in subsection 14.6(b).
------------
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
----
Subtitle A of Title IV of ERISA or any successor corporation.
"Person": an individual, partnership, corporation, business trust, joint
------
stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered
----
by ERISA and in respect of which the Company or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
<PAGE>
19
"Pledge Agreement": the collective reference to (i) the Pledge Agreement,
----------------
dated as of the date hereof, made by the Company in favor of the Administrative
Agent, substantially in the form of Exhibit D-1 and (ii) the German Share Pledge
Agreement, substantially in the form of Exhibit D-2 or in such other form as the
Administrative Agent shall approve, in each case as the same may be amended,
supplemented or otherwise modified from time to time.
"Pledged Stock": the "Pledged Stock" referred to in the Pledge Agreement
-------------
in the form of Exhibit D-1 and the "Pledged Share" referred to in the Pledge
Agreement in the form of Exhibit D-2.
"Prime Rate": the rate of interest per annum publicly announced from time
----------
to time by Chase as its prime rate in effect at its principal office in New York
City (each change in the Prime Rate to be effective on the date such change is
publicly announced). The Prime Rate is not intended to be the lowest rate of
interest charged by Chase in connection with extensions of credit to debtors.
"Properties": as defined in subsection 7.16(a).
----------
"Reference Lenders": Chase and Mellon.
-----------------
"Register": as defined in subsection 14.6(d).
--------
"Regulation U": Regulation U of the Board as in effect from time to time.
------------
"Reimbursement Obligation": the obligation of the Company to reimburse the
------------------------
Issuing Lender pursuant to subsection 5.4 for amounts drawn under Letters of
Credit.
"Reorganization": with respect to any Multiemployer Plan, the condition
--------------
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
----------------
ERISA or the regulations thereunder.
"Required Lenders": Lenders, the Revolving Credit Commitment Percentages
----------------
of which aggregate over 50%.
"Requirement of Law": as to any Person, the certificate of incorporation
------------------
and by-laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": (i) as to the Company, the chief executive officer,
-------------------
the president, the senior vice president - international business and corporate
development, the chief financial officer, the treasurer or the controller of the
Company and (ii) as to
<PAGE>
20
any other Borrower, those of its officers or representatives whose signatures
and incumbency shall have been certified to the Administrative Agent and the
Lenders pursuant to subsection 8.1(j).
"Revolving Credit Commitment": as to any Lender at any time, its
---------------------------
obligation to make Loans and payments in L/C Obligations hereunder in an
aggregate amount not to exceed at any time outstanding the U.S. Dollar amount
set forth opposite such Lender's name in Schedule I under the heading "Revolving
Credit Commitment", as such amount may be reduced from time to time pursuant to
subsection 2.4 and the other applicable provisions hereof.
"Revolving Credit Commitment Percentage": as to any Lender at any time,
--------------------------------------
the percentage which such Lender's Revolving Credit Commitment then constitutes
of the Aggregate Revolving Credit Commitments of all Lenders.
"Revolving Credit Commitment Period": the period from and including the
----------------------------------
Closing Date to but not including the Revolving Credit Termination Date, or such
earlier date on which the Revolving Credit Commitments shall terminate as
provided herein.
"Revolving Credit Loan": as defined in subsection 2.1.
---------------------
"Revolving Credit Termination Date": the date which is five years after
---------------------------------
the Closing Date.
"Rohr": as defined in the recitals hereto.
----
"Rohr Acquisition": as defined in the recitals hereto.
----------------
"Second Closing Date": the date on which the conditions precedent set
-------------------
forth in subsection 8.2 are satisfied.
"Security Documents": the collective reference to the Pledge Agreement,
------------------
the Domestic Subsidiary Guarantee and the Foreign Subsidiary Guarantees and any
security document or similar agreement that may be delivered to the
Administrative Agent as collateral security for any or all of the Obligations,
in each case as amended, supplemented or otherwise modified from time to time.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA,
--------------------
but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or other
----------
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the
<PAGE>
21
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Company.
"Swing Line Commitment": as to each Swing Line Lender, in its capacity as
---------------------
a Swing Line Lender, its obligation to make Swing Line Loans to the Company in
an aggregate principal amount not to exceed, at any one time outstanding
$5,000,000 (in the case of Chase) and $5,000,000 (in the case of Mellon).
"Swing Line Commitment Percentage": as to any Swing Line Lender at any
--------------------------------
time, the percentage which such Swing Line Lender's Swing Line Commitment then
constitutes of the aggregate Swing Line Commitments of all Swing Line Lenders.
"Swing Line Lenders": Chase and Mellon, each in its capacity as a provider
------------------
of the Swing Line Loans.
"Swing Line Loans" and "Swing Line Loan": as defined in subsection 3.1.
---------------- ---------------
"Three-Month Secondary CD Rate": for any day, the secondary market rate
-----------------------------
for three-month certificates of deposit reported as being in effect on such day
(or, if such day shall not be a Business Day, the next preceding Business Day)
by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 A.M., New York City time, on
such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it.
"Tranche": the collective reference to Eurodollar Loans, NYBOR Loans or
-------
Multicurrency Loans the then current Interest Periods with respect to all of
which begin on the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 14.6(f).
----------
"Type": as to any Revolving Credit Loan, its nature as an ABR Loan, a
----
NYBOR Loan or a Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
---------------
Credits (1993 Revision), International Chamber of Commerce Publication No. 500,
as the same may be amended from time to time.
<PAGE>
22
"U.S. Dollar Equivalent": with respect to an amount denominated in any
----------------------
currency other than U.S. Dollars, the equivalent in U.S. Dollars of such amount
determined at the Exchange Rate on the date of determination of such equivalent.
In making any determination of the U.S. Dollar Equivalent for purposes of
calculating the amount of Loans to be borrowed from the respective Lenders on
any Borrowing Date, the Administrative Agent shall use the relevant Exchange
Rate in effect on the date on which the interest rate for such Loans is
determined pursuant to the provisions of this Agreement and the other Loan
Documents. In making any determination of the U.S. Dollar Equivalent of any
amount for purposes of calculating the Aggregate Total Outstandings, the
Administrative Agent (i) in the case of Multicurrency Loans, shall use the
relevant Exchange Rate in effect on the date on which the interest rate for such
Loans for the then-current Interest Period was determined pursuant to the
provisions of this Agreement and the other Loan Documents and (ii) in the case
of any L/C Obligations denominated in a currency other than U.S. Dollars, shall
use the relevant Exchange Rate in effect on the last Business Day of the
calendar month ended immediately prior to the date of such determination.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
-----------------------------
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes, the other Loan Documents or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in the Notes and any other Loan Document, and
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Company and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP;
provided that, if the Company notifies the Administrative Agent that the Company
- --------
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
Company 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 become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
<PAGE>
23
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
----------------------------
conditions hereof, each Lender severally agrees to make revolving credit loans
(each, a "Revolving Credit Loan") in U.S. Dollars to the Company from time to
---------------------
time during the Revolving Credit Commitment Period so long as after giving
effect thereto (i) the Available Revolving Credit Commitment of each Lender is
greater than or equal to zero, (ii) the Aggregate Total Outstandings of all
Lenders do not exceed the Aggregate Revolving Credit Commitments and (iii) prior
to the Second Closing Date, the Aggregate Total Outstandings of all Lenders do
not exceed $115,000,000. During the Revolving Credit Commitment Period the
Company may use the Revolving Credit Commitments by borrowing, prepaying the
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans, (iii) NYBOR Loans or (iv) a combination
thereof, as determined by the Company and notified to the Administrative Agent
in accordance with subsections 2.3 and 6.2, provided that no Revolving Credit
--------
Loan shall be made as a Eurodollar Loan or a NYBOR Loan after the day that is
one week prior to the Revolving Credit Termination Date.
2.2 Repayment of Revolving Credit Loans; Evidence of Debt. (a) The
-----------------------------------------------------
Company hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Revolving
Credit Loan of such Lender on the Revolving Credit Termination Date and on such
other dates and in such other amounts as may be required from time to time
pursuant to this Agreement. The Company hereby further agrees to pay interest on
the unpaid principal amount of the Revolving Credit Loans from time to time
outstanding until payment thereof in full at the rates per annum, and on the
dates, set forth in subsection 6.1.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Company to such Lender
resulting from each Revolving Credit Loan of such Lender from time to time,
including the amounts of principal and interest payable thereon and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 14.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Revolving Credit Loan made hereunder, the Type
thereof and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Company to each Lender hereunder in respect of the Revolving Credit Loans and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the Company in respect of the Revolving Credit Loans and each Lender's
share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.2(b) shall, to the extent permitted by
applicable law, be
<PAGE>
24
prima facie evidence of the existence and amounts of the obligations of the
- ----- -----
Company therein recorded; provided, however, that the failure of any Lender or
-------- -------
the Administrative Agent to maintain the Register or any such account, or any
error therein, shall not in any manner affect the obligation of the Company to
repay (with applicable interest) the Revolving Credit Loans made to the Company
by such Lender in accordance with the terms of this Agreement.
(e) The Company agrees that, upon the request to the Administrative
Agent by any Lender, the Company will execute and deliver to such Lender a
promissory note of the Company evidencing the Revolving Credit Loans of such
Lender, substantially in the form of Exhibit F with appropriate insertions as to
date and principal amount (each, a "Note").
----
2.3 Procedure for Revolving Credit Borrowing. The Company may borrow
----------------------------------------
under the Revolving Credit Commitments during the Revolving Credit Commitment
Period on any Business Day, provided that the Company shall give the
--------
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to (a) 10:30 A.M., New York City time, three Business
Days prior to the requested Borrowing Date, with respect to any Revolving Credit
Loans requested to be made as Eurodollar Loans, (b) 10:00 A.M., New York City
time, two Business Days prior to the requested Borrowing Date, with respect to
any Revolving Credit Loans requested to be made as NYBOR Loans, or (c) 10:30
A.M., New York City time, on the requested Borrowing Date, with respect to any
Revolving Credit Loans requested to be made as ABR Loans), specifying in each
case (i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii)
whether the borrowing is to be of Eurodollar Loans, NYBOR Loans, ABR Loans or a
combination thereof and (iv) if the borrowing is to be entirely or partly of
Eurodollar Loans or NYBOR Loans, the amount of each such Type of Loan and the
length of the initial Interest Periods therefor. Each borrowing under the
Revolving Credit Commitments (other than a borrowing under subsection 3.4 or to
pay a like amount of Reimbursement Obligations) shall be in an amount equal to
(A) in the case of ABR Loan, $500,000 or a whole multiple of $100,000 in excess
thereof (or, if the then Aggregate Available Revolving Credit Commitments are
less than $500,000, such lesser amount) and (B) in the case of Eurodollar Loans
or NYBOR Loans, $3,000,000 or a whole multiple of $500,000 in excess thereof.
Upon receipt of any such notice from the Company, the Administrative Agent shall
promptly notify each Lender thereof. Not later than 12:00 Noon, New York City
time, on each requested Borrowing Date each Lender shall make an amount equal to
its Revolving Credit Commitment Percentage of the principal amount of the
Revolving Credit Loans requested to be made on such Borrowing Date available to
the Administrative Agent at its New York office specified in subsection 14.2 in
U.S. Dollars and in immediately available funds. Except as otherwise provided
in subsection 3.4, the Administrative Agent shall on such date credit the
account of the Company on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent.
2.4 Termination or Reduction of Revolving Credit Commitments. The
--------------------------------------------------------
Company shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the amount of the Revolving Credit Commitments; provided
--------
that no such termination or reduction shall be permitted if, after giving effect
thereto and to any
<PAGE>
25
prepayments of the Loans made on the effective date thereof, either (a) the
Aggregate Available Revolving Credit Commitments would not be greater than or
equal to zero or (b) the Available Revolving Credit Commitments of any Lender
would not be greater than or equal to zero. Any such reduction shall be in an
amount equal to $3,000,000 or a whole multiple of $500,000 in excess thereof and
shall reduce permanently the Revolving Credit Commitments then in effect.
SECTION 3. AMOUNT AND TERMS OF SWING LINE COMMITMENTS
3.1 Swing Line Commitments. Subject to the terms and conditions
----------------------
hereof, each Swing Line Lender agrees to make swing line loans (individually, a
"Swing Line Loan"; collectively, the "Swing Line Loans") in U.S. Dollars to the
--------------- ----------------
Company from time to time during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time outstanding not to exceed such Swing
Line Lender's Swing Line Commitment, so long as after giving effect thereto (a)
the Available Revolving Credit Commitment of each Lender is greater than or
equal to zero, (b) the Aggregate Total Outstandings of all Lenders do not exceed
the Aggregate Revolving Credit Commitments and (c) prior to the Second Closing
Date, the Aggregate Total Outstandings of all Lenders do not exceed
$115,000,000. Amounts borrowed by the Company under this Section 3 may be
repaid and, during the Revolving Credit Commitment Period, reborrowed.
3.2 Procedure for Swing Line Borrowings; Interest Rate. (a) The
--------------------------------------------------
Company shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 12:00 Noon, New York City
time on the requested Borrowing Date) specifying the amount of the requested
Swing Line Loan, which shall be in an aggregate principal amount of not less
than $1,000 or a whole multiple of $1,000 in excess thereof. Upon receipt of any
such notice from the Company, the Administrative Agent shall promptly notify
each Swing Line Lender thereof. Promptly upon receipt of any such notice from
the Administrative Agent (and, in any event, prior to 2:00 P.M., New York City
time, on the requested Borrowing Date), each Swing Line Lender shall make an
amount equal to such Swing Line Lender's Swing Line Commitment Percentage of the
principal amount of the Swing Line Loan requested to be made available to the
Administrative Agent at its New York office specified in subsection 14.2 in U.S.
Dollars and in immediately available funds. The proceeds of the Swing Line Loan
will be made available by the Administrative Agent on such Borrowing Date, to
the Company at the office of the Administrative Agent by crediting the account
of the Company at such office with such proceeds in U.S. Dollars.
(b) Unless otherwise agreed between the Company and Chase, Swing Line
Loans shall be ABR Loans. Any such ABR Loan may not be converted into a
Eurodollar Loan or a NYBOR Loan. If, however, the Company and Chase agree that
a Swing Line Loan (a "Money Market Rate Swing Line Loan") shall bear interest at
---------------------------------
a fixed rate (a "Money Market Rate") for a fixed interest period of up to 7
-----------------
days, such Money Market Rate Swing Line Loan shall bear interest for such
interest period at such interest rate so agreed upon. If a Money Market Rate
Swing Line Loan is not repaid on the last day of the interest period with
respect thereto, it shall on such date be converted automatically to an ABR
Loan. A Money
<PAGE>
26
Market Swing Line Loan shall not be optionally prepayable prior to the last day
of the interest period with respect thereto except with the consent of the Swing
Line Lenders.
3.3 Repayment of Swing Line Loans; Evidence of Debt. (a) The
------------------------------------------------
Company hereby unconditionally promises to pay to each Swing Line Lender the
then unpaid principal amount of the Swing Line Loans on the Revolving Credit
Termination Date and on such other dates and in such other amounts as may be
required from time to time pursuant to this Agreement. The Company hereby
further agrees to pay interest on the unpaid principal amount of the Swing Line
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in subsection 6.1.
(b) The Swing Line Lenders shall maintain in accordance with their
usual practice an account or accounts evidencing indebtedness of the Company
resulting from each Swing Line Loan made by it from time to time, including the
amounts of principal and interest payable thereon and paid from time to time
under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 14.6(d), and a subaccount therein for the Swing Line Lenders, in
which shall be recorded (i) the date and amount of each Swing Line Loan made
hereunder, (ii) the amount of each Lender's participating interest in such Swing
Line Loans, (iii) the date and amount of any principal or interest due and
payable or to become due and payable from the Company hereunder in respect of
the Swing Line Loans and (iv) both the date and amount of any sum received by
the Administrative Agent hereunder from the Company in respect of the Swing Line
Loans, each Lender's participating interest therein (if any) and the amount
thereof payable to the Swing Line Lenders.
(d) The entries made in the Register and the accounts of the Swing
Line Lenders maintained pursuant to this subsection 3.3 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
----- -----
amounts of the obligations of the Company therein recorded; provided, however,
-------- -------
that the failure of the Swing Line Lenders or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Company to repay (with applicable
interest) the Swing Line Loans made to the Company by the Swing Line Lenders in
accordance with the terms of this Agreement.
3.4 Refunding of Swing Line Borrowings. (a) Chase, at any time in
----------------------------------
its sole and absolute discretion may, on behalf of the Company (which hereby
irrevocably directs and authorizes Chase to act on its behalf), request each
Lender, including Chase and Mellon, to make a Revolving Credit Loan (which shall
be an ABR Loan) in an amount equal to such Lender's Revolving Credit Commitment
Percentage of the principal amount of the Swing Line Loans (the "Refunded Swing
--------------
Line Loans") outstanding on the date such notice is given; provided that the
- ---------- --------
provisions of this subsection shall not affect the Company's obligations to
repay Swing Line Loans in accordance with the provisions of subsections 3.3 and
6.4(c) and (g), and provided further that after giving effect to the making
-------- -------
of such Revolving Credit Loans and the use of the proceeds thereof, the
Available Revolving Credit Commitment of each Lender shall be greater than or
equal to zero. Unless the Revolving Credit
<PAGE>
27
Commitments shall have expired or terminated (in which event the procedures of
subsection 3.5 shall apply), each Lender will make the proceeds of the Revolving
Credit Loan made by it pursuant to the immediately preceding sentence available
to the Administrative Agent at the New York office of the Administrative Agent
specified in subsection 14.2 prior to 12:00 Noon, New York City time, in funds
immediately available on the Business Day next succeeding the date such notice
is given. The proceeds of such Revolving Credit Loans shall be immediately made
available by the Administrative Agent to the Swing Line Lenders for application
to the payment in full of the Refunded Swing Line Loans. Upon any request by
Chase to the Lenders pursuant to this subsection 3.4, the Administrative Agent
shall promptly give notice to the Company of such request.
3.5 Participating Interests. (a) If the Revolving Credit
-----------------------
Commitments shall expire or terminate at any time while Swing Line Loans are
outstanding, at the request of Chase in its sole discretion, either (i) each
Lender (including Chase and Mellon) shall, notwithstanding the expiration or
termination of the Revolving Credit Commitments, make a Revolving Credit Loan
(which shall be an ABR Loan) or (ii) each Lender (other than Chase and Mellon)
shall purchase an undivided participating interest in the Swing Line Loans of
the Swing Line Lenders, in either case in an amount equal to such Lender's
Revolving Credit Commitment Percentage (determined on the date of, and
immediately prior to, expiration or termination of the Revolving Credit
Commitments) of the aggregate principal amount of such Swing Line Loans. In the
case of any purchase of participating interests pursuant to clause (ii) of the
preceding sentence, any affected Money Market Rate Swing Line Loans shall be
converted to ABR Loans on the date of such purchase, and the Company shall pay
all amounts payable pursuant to subsection 6.12 in connection with such
conversion (calculated as if such conversion were a prepayment of the affected
Money Market Rate Swing Line Loans). Each Lender will make the proceeds of any
Revolving Credit Loan made by it pursuant to the immediately preceding sentence
available to the Administrative Agent for the account of the Swing Line Lenders
at the New York office of the Administrative Agent specified in subsection 14.2
prior to 12:00 Noon, New York City time, in funds immediately available on the
Business Day next succeeding the date of the request by Chase. The proceeds of
such Revolving Credit Loans shall be immediately applied to repay the Swing Line
Loans outstanding on the date of termination or expiration of the Revolving
Credit Commitments. In the event that any of the Lenders purchase undivided
participating interests pursuant to the first sentence of this subsection
3.5(a), each Lender shall immediately transfer to the Swing Line Lenders, in
immediately available funds, the amount of its participation in the Swing Line
Loans of each Swing Line Lender and upon receipt thereof each Swing Line Lender
will deliver to any such Lender that so requests a confirmation of such Lender's
undivided participating interest in such Swing Line Loans of such Swing Line
Lender dated the date of receipt of such funds and in such amount.
(b) Whenever, at any time after a Swing Line Lender has received
payment from any Lender in respect of such Lender's participating interest in a
Swing Line Loan of such Swing Line Lender, such Swing Line Lender receives any
payment on account thereof, such Swing Line Lender will distribute to such
Lender its participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded); provided,
--------
<PAGE>
28
however, that in the event that any such payment received by such Swing Line
- -------
Lender is required to be returned, such Lender will return to such Swing Line
Lender any portion thereof previously distributed by such Swing Line Lender to
it.
SECTION 4. AMOUNT AND TERMS OF MULTICURRENCY COMMITMENT
4.1 Multicurrency Commitments. Subject to the terms and conditions
-------------------------
hereof, each Lender severally agrees to make revolving credit loans (each, a
"Multicurrency Loan") in U.S. Dollars or any Available Foreign Currency to the
- -------------------
Company or any Foreign Subsidiary Borrower from time to time during the
Revolving Credit Commitment Period so long as after giving effect thereto (a)
the Available Revolving Credit Commitment of each Lender is greater than or
equal to zero, (b) the Aggregate Total Outstandings of all Lenders do not exceed
the Aggregate Revolving Credit Commitments and (c) prior to the Second Closing
Date, the Aggregate Total Outstandings of all Lenders do not exceed
$115,000,000. During the Revolving Credit Commitment Period, the Company or any
Foreign Subsidiary Borrower may use the Revolving Credit Commitments by
borrowing, repaying the Multicurrency Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
4.2 Repayment of Multicurrency Loans; Evidence of Debt. (a) The
--------------------------------------------------
Company or the relevant Foreign Subsidiary Borrower, as the case may be, hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Multicurrency Loan of such
Lender to the Company or such Foreign Subsidiary Borrower on the Revolving
Credit Termination Date and on such other date(s) and in such other amounts as
may be required from time to time pursuant to this Agreement. The Company or
the relevant Foreign Subsidiary Borrower, as the case may be, hereby further
agrees to pay interest on the unpaid principal amount of the Multicurrency Loans
advanced to it and from time to time outstanding until payment thereof in full
at the rates per annum, and on the dates, set forth in subsection 6.1.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Company and each Foreign
Subsidiary Borrower to such Lender resulting from each Multicurrency Loan of
such Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 14.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Multicurrency Loan made hereunder, (ii) the
amount of any principal or interest due and payable or to become due and payable
from the Company and each Foreign Subsidiary Borrower to each Lender hereunder
in respect of the Multicurrency Loans and (iii) both the amount of any sum
received by the Administrative Agent hereunder from the Company and each Foreign
Subsidiary Borrower in respect of the Loans and each Lender's share thereof.
<PAGE>
29
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 4.2(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amount of the
----- -----
obligations of the Company and each Foreign Subsidiary Borrower therein
recorded; provided, however, that the failure of any Lender or the
-------- -------
Administrative Agent to maintain the Register or any such account, or any error
therein, shall not in any manner affect the obligation of the Company or the
relevant Foreign Subsidiary Borrower, as the case may be, to repay (with
applicable interest) the Multicurrency Loans made to the Company and such
Foreign Subsidiary Borrower by such Lender in accordance with the terms of this
Agreement.
4.3 Procedure for Multicurrency Borrowing. The Company or any
-------------------------------------
Foreign Subsidiary Borrower may request the Lenders to make Multicurrency Loans
during the Revolving Credit Commitment Period on any Business Day provided that
--------
the Company or such Foreign Subsidiary Borrower shall give the Administrative
Agent (at its London office with a copy to its New York office) irrevocable
notice (which notice must be received by the Administrative Agent prior to 12:00
Noon, London time, three Business Days prior to the requested Borrowing Date,
specifying in each case (i) the amount and currency to be borrowed, (ii) the
requested Borrowing Date and (iii) the length of the initial Interest Period
therefor. Each borrowing of Multicurrency Loans shall be in an amount in U.S.
Dollars equal to, or an amount in an Available Foreign Currency of which the
U.S. Dollar Equivalent is equal to, at least $3,000,000 (or, if the then
Aggregate Available Revolving Credit Commitments are less than $3,000,000, such
lesser amount). Upon receipt of any such notice from the Company or any Foreign
Subsidiary Borrower, the Administrative Agent shall promptly notify each Lender
thereof. Not later than 12:00 Noon, local time at the funding office for the
currency in which the requested Multicurrency Loan is denominated, on the
requested Borrowing Date, each Lender shall make an amount equal to its
Revolving Credit Commitment Percentage of the principal amount of Multicurrency
Loans requested to be made on such Borrowing Date available to the
Administrative Agent at the Administrative Agent's funding office for the
applicable currency specified by the Administrative Agent from time to time by
notice to the Lenders and in immediately available funds. The amounts made
available by each Multicurrency Lender will then be made available to the
Company or relevant Foreign Subsidiary Borrower at the funding office for the
relevant Available Foreign Currency specified from time to time by the
Administrative Agent by notice to the Lenders and in like funds as received by
the Administrative Agent.
SECTION 5. LETTERS OF CREDIT
5.1 L/C Commitment. (a) Prior to the date hereof, Mellon has issued
--------------
the letters of credit listed on Schedule 5.1 (the "Existing Letters of Credit"),
--------------------------
and subject to the terms and conditions hereof, the Issuing Lender, in reliance
on the agreements of the other Lenders set forth in subsection 5.4(a), agrees to
issue letters of credit (together with the Existing Letters of Credit, "Letters
-------
of Credit") for the account of the Company on any Business Day during the
- ---------
Revolving Credit Commitment Period in such form as may be approved from time to
time by the Issuing Lender so long as after giving effect thereto, (i) the L/C
Obligations do not exceed the L/C Commitment, (ii) the Aggregate Total
<PAGE>
30
Outstandings of all Lenders do not exceed the Aggregate Revolving Credit
Commitments and (iii) prior to the Second Closing Date, the Aggregate Total
Outstandings of all Lenders do not exceed $115,000,000. From and after the
Closing Date, the Existing Letters of Credit will be deemed to be Letters of
Credit hereunder.
(b) Each Letter of Credit shall (i) be denominated in U.S. Dollars or
any Available Foreign Currency, (ii) be (x) a standby letter of credit issued to
support obligations of the Company or any of its Subsidiaries, contingent or
otherwise, or to finance the working capital and business needs of the Company
or any of its Subsidiaries in the ordinary course of business or (y) a
commercial letter of credit issued in respect of the purchase of goods or
services by the Company and its Subsidiaries in the ordinary course of business
and (iii) expire no later than the earlier of (x) the date that is 12 months
after the date of its issuance and (y) the fifth Business Day prior to the
Revolving Credit Termination Date; provided that any Letter of Credit with an
expiration date occurring up to twelve months after such Letter of Credit's date
of issuance may be automatically renewable for subsequent 12-month periods (but
in no event later than the fifth Business Day prior to the Revolving Credit
Termination Date).
(c) Each Letter of Credit issued after the Closing Date shall be
subject to the Uniform Customs and, to the extent not inconsistent therewith,
the laws of the jurisdiction in which the Issuing Bank is located.
(d) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
5.2 Procedure for Issuance of Letters of Credit. The Company may
-------------------------------------------
from time to time request that the Issuing Lender issue a Letter of Credit at
any time prior to the fifth Business Day prior to the Revolving Credit
Termination Date by delivering to the Issuing Lender at its address for notices
specified herein an Application therefor, completed to the satisfaction of the
Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may reasonably request. Upon receipt of any
Application, the Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Company. The Issuing
Lender shall furnish a copy of such Letter of Credit to the Company promptly
following the issuance thereof.
5.3 L/C Participation. (a) Effective on the Closing Date in respect
-----------------
of the Existing Letters of Credit, and effective on the date of issuance thereof
in respect of each Letter of Credit issued hereunder after the Closing Date, the
Issuing Lender irrevocably agrees to grant and hereby grants to each L/C
Participant, and, to induce the Issuing Lender to issue
<PAGE>
31
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from the Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
and risk an undivided interest equal to such L/C Participant's Revolving Credit
Commitment Percentage from time to time in effect in the Issuing Lender's
obligations and rights under each Letter of Credit issued hereunder and the
amount of each draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Company in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's then Revolving Credit Commitment Percentage of the amount
of such draft, or any part thereof, which is not so reimbursed; provided that,
--------
if such demand is made prior to 12:00 Noon, New York City time, on a Business
Day, such L/C Participant shall make any payment denominated in U.S. Dollars to
the Issuing Lender prior to the end of such Business Day and otherwise such L/C
Participant shall make such payment on the next succeeding Business Day.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to paragraph 5.3(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds rate, as quoted by the Issuing Lender (or, in the case of payments
in any currency other than U.S. Dollars, the rate customarily charged among
banks in similar circumstances for overdue amounts in such currency, as quoted
by the Issuing Lender), during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
subsection 5.3(a) is not in fact made available to the Issuing Lender by such
L/C Participant within three Business Days after the date such payment is due,
the Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans hereunder. A certificate of the Issuing
Lender submitted to any L/C Participant with respect to any amounts owing under
this subsection shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 5.3(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Company or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will, if such payment is received prior to 12:00 Noon, local time
in the payment office in which such payment is received by the Issuing Lender,
on a Business Day, distribute to such L/C Participant its pro rata share thereof
prior to the end of such Business Day and otherwise the Issuing Lender will
distribute such payment on the next
<PAGE>
32
succeeding Business Day; provided, however, that in the event that any such
-------- -------
payment received by the Issuing Lender and distributed to the L/C Participants
shall be required to be returned by the Issuing Lender, each such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
5.4 Reimbursement Obligation of the Company. (a) The Company agrees
---------------------------------------
to reimburse the Issuing Lender on the Business Day immediately following the
Business Day on which the Issuing Lender notifies the Company of the date and
amount of a draft presented under any Letter of Credit and paid by the Issuing
Lender. The Issuing Lender shall provide notice to the Company on each Business
Day on which a draft is presented and paid by the Issuing Lender indicating the
amount of (i) such draft so paid and (ii) any taxes, fees, charges or other
costs or expenses incurred by the Issuing Lender in connection with such
payment. Each such payment shall be made to the Issuing Lender at its address
for notices specified herein in lawful money of the United States of America and
in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining unpaid
by the Company under this subsection from the date a draft presented under any
Letter of Credit is paid by the Issuing Lender until payment in full (i) at the
rate which would be payable on any Loans that are ABR Loans at such time (in the
case of amounts denominated in U.S. Dollars) or the Administrative Agent's
reasonable estimate of its average daily cost of funds plus the Applicable
----
Margin applicable to Multicurrency Loans (in the case of amounts denominated in
a currency other than U.S. Dollars), in each case until such payment is required
to be made pursuant to subsection 5.4(a), and (ii) thereafter, at the rate which
is 2% above the rate described in the foregoing clause (i).
5.5 Obligations Absolute. (a) The Company's obligations under
--------------------
subsection 5.4(a) shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Company may have or have had against the Issuing Lender, any
L/C Participant or any beneficiary of a Letter of Credit.
(b) The Company also agrees with the Issuing Lender that the Issuing
Lender shall not be responsible for, and the Company's Reimbursement Obligations
under subsection 5.4(a) shall not be affected by, among other things, (i) the
validity or genuineness of documents or of any endorsements thereon, even though
such documents shall in fact prove to be invalid, fraudulent or forged, or (ii)
any dispute between or among the Company and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
(iii) any claims whatsoever of the Company against any beneficiary of such
Letter of Credit or any such transferee.
(c) Neither the Issuing Lender nor any L/C Participant shall be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions caused by the Issuing
Lender's gross negligence or willful misconduct.
<PAGE>
33
(d) The Company agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Company and
shall not result in any liability of the Issuing Lender or any L/C Participant
to the Company. Nothing in this subsection 5.5 shall relieve the Issuing Bank
of liability for its gross negligence or willful misconduct.
5.6 Letter of Credit Payments. If any draft shall be presented for
-------------------------
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Company and the Administrative Agent of the date and amount thereof. If any
draft shall be presented for payment under any Letter of Credit, the
responsibility of the Issuing Lender to the Company in connection with such
draft shall, in addition to any payment obligation expressly provided for in
such Letter of Credit, be limited to determining that the documents (including
each draft) delivered under such Letter of Credit in connection with such
presentment appear on their face to be in conformity with such Letter of Credit.
5.7 Application. To the extent that any provision of any Application
-----------
related to any Letter of Credit is inconsistent with the provisions of this
Section 5, the provisions of this Section 5 shall apply.
SECTION 6. GENERAL PROVISIONS APPLICABLE TO THE LOANS
6.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
--------------------------------
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate for Dollars
determined for such Interest Period plus the Applicable Margin in effect for
such day.
(b) Each NYBOR Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the NYBOR Rate
determined for such Interest Period plus the Applicable Margin in effect for
such day.
(c) Each ABR Loan shall bear interest for each day that it is
outstanding at a rate per annum equal to the Alternate Base Rate for such day.
(d) Each Multicurrency Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
applicable Eurocurrency Rate determined for such Interest Period plus the
Applicable Margin in effect for such day.
(e) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
(A) in the case of overdue principal or interest, the rate that would otherwise
be applicable to the relevant Loans pursuant to the foregoing provisions of this
subsection plus 2% or (B) in the case of overdue fees or other amounts, the
Alternate
<PAGE>
34
Base Rate plus 2%, or, in each case if higher, in the case of amounts
----
required to be paid in U.S. Dollars, the rate described in paragraph (b) of this
subsection plus 2%.
(f) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (e) of this
--------
subsection shall be payable from time to time on demand.
6.2 Conversion and Continuation Options. (a) The Company may elect
-----------------------------------
from time to time to convert outstanding Eurodollar Loans or NYBOR Loans (in
whole or in part) to ABR Loans by giving the Administrative Agent at least one
Business Day's prior irrevocable notice of such election, provided that any such
--------
conversion of Eurodollar Loans or NYBOR Loans may only be made on the last day
of an Interest Period with respect thereto. The Company may elect from time to
time to convert outstanding ABR Loans (in whole or in part) to Eurodollar Loans
by giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election. The Company may elect from time to time to
convert outstanding ABR Loans (in whole or in part) to NYBOR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election (which notice must be received by the Administrative Agent not
later than 10:00 A.M., New York City time, on such second Business Day). Any
such notice of conversion to Eurodollar Loans or NYBOR Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon receipt
of any such notice the Administrative Agent shall promptly notify each Lender
thereof. All or any part of outstanding Eurodollar Loans, NYBOR Loans and ABR
Loans may be converted as provided herein, provided that (i) no ABR Loan may be
--------
converted into a Eurodollar Loan or a NYBOR Loan when any Event of Default has
occurred and is continuing and the Administrative Agent or the Required Lenders
have determined that such conversion is not appropriate, (ii) any such
conversion may only be made if, after giving effect thereto, subsection 6.3
shall not have been violated, (iii) no ABR Loan may be converted into a
Eurodollar Loan or a NYBOR Loan after the date that is one week prior to the
Revolving Credit Termination Date and (iv) Swing Line Loans may not be converted
to Eurodollar Loans or NYBOR Loans.
(b) Any Eurodollar Loans or NYBOR Loans may be continued as such upon
the expiration of the then current Interest Period with respect thereto by the
Company giving notice to the Administrative Agent of the length of the next
Interest Period to be applicable to such Loans not later than 10:30 A.M., New
York City time, three Business Days prior to the beginning of the requested
Interest Period (in the case of continuations of Eurodollar Loans) or 10:00
A.M., New York City time, two Business Days prior to the beginning of the
requested Interest Period (in the case of continuations of NYBOR Loans),
provided that no Eurodollar Loan or NYBOR Loan may be continued as such (i) when
- --------
any Default or Event of Default has occurred and is continuing and the
Administrative Agent or the Required Lenders have determined that such
continuation is not appropriate, (ii) if, after giving effect thereto,
subsection 6.3 would be contravened or (iii) after the date that is one week
prior to the Revolving Credit Termination Date, and provided, further, that if
-------- -------
the Company shall fail to give such notice or if such continuation is not
permitted pursuant to the preceding proviso such Eurodollar Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
<PAGE>
35
(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Company or the relevant Foreign Subsidiary Borrower giving the Administrative
Agent at least three Business Days' prior irrevocable notice of such election,
provided, that if the Company or the relevant Foreign Subsidiary Borrower shall
- --------
fail to give such notice, such Multicurrency Loans shall automatically be
continued for an Interest Period of one week (in the case of Multicurrency Loans
in Deutsche Marks only) or one month (in the case of all other Multicurrency
Loans).
6.3 Minimum Amounts of Tranches. All borrowings, conversions and
---------------------------
continuations of Revolving Credit Loans and Multicurrency Loans hereunder and
all selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections so that, after giving effect thereto, (a) the
aggregate principal amount of the Eurodollar Loans comprising each Tranche shall
be equal to $3,000,000 or a whole multiple of $500,000 in excess thereof, (b)
the aggregate principal amount of the Multicurrency Loans comprising each
Tranche shall be in an amount which is, or of which the U.S. Dollar Equivalent
is, at least $3,000,000 and (c) there shall not be more than 12 Tranches at any
one time outstanding.
6.4 Optional and Mandatory Prepayments. (a) The Company may at any
----------------------------------
time and from time to time prepay Revolving Credit Loans, in whole or in part,
upon at least three Business Days' irrevocable notice to the Administrative
Agent (in the case of Eurodollar Loans and NYBOR Loans) and upon irrevocable
notice to the Administrative Agent no later than 10:30 A.M., New York City time,
on the date of prepayment (in the case of Revolving Credit Loans that are ABR
Loans), specifying the date and amount of prepayment and whether the prepayment
is of Eurodollar Loans, NYBOR Loans, ABR Loans or a combination thereof, and, if
a combination thereof, the amount allocable to each. Upon the receipt of any
such notice the Administrative Agent shall promptly notify each Lender thereof.
If any such notice is given, the amount specified in such notice shall be due
and payable on the date specified therein, together with any amounts payable
pursuant to subsection 6.12. No notice of prepayment shall be required in
respect of Swing Line Loans. Partial prepayments of the Revolving Credit Loans
that are Eurodollar Loans or NYBOR Loans shall be in an aggregate principal
amount of $3,000,000 or a whole multiple of $500,000 in excess thereof, and
partial prepayments of Revolving Credit Loans that are ABR Loans shall be in an
aggregate principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Partial prepayments of Swing Line Loans may be in any amount.
(b) The Company and the Foreign Subsidiary Borrowers may at any time
and from time to time prepay the Multicurrency Loans, in whole or in part, upon
at least three Business Days' irrevocable notice to the Administrative Agent
specifying the date and amount of prepayment. Upon the receipt of any such
notice, the Administrative Agent shall promptly notify each Multicurrency Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with any amounts
payable pursuant to subsection 6.12. Partial prepayments of Multicurrency Loans
shall be in an aggregate principal amount of which the U.S. Dollar Equivalent is
at least $3,000,000.
<PAGE>
36
(c) If, at any time during the Revolving Credit Commitment Period,
for any reason the Aggregate Total Outstandings of all Lenders exceed the
aggregate Revolving Credit Commitments then in effect, (A) the Company shall,
without notice or demand, immediately prepay the Swing Line Loans and the
Revolving Credit Loans and/or (B) the Company and the Foreign Subsidiary
Borrowers shall, without notice or demand, immediately prepay the Multicurrency
Loans such that the sum of (I) the aggregate principal amount of the Revolving
Credit Loans and Swing Line Loans so prepaid and (II) the U.S. Dollar Equivalent
of the aggregate principal amount of the Multicurrency Loans so prepaid, equals
or exceeds the amount of such excess.
(d) Each prepayment of Loans pursuant to this subsection 6.4 shall be
accompanied by accrued and unpaid interest on the amount prepaid to the date of
prepayment and any amounts payable under subsection 6.12 in connection with such
prepayment.
(e) Notwithstanding the foregoing, mandatory prepayments of Revolving
Credit Loans or Multicurrency Loans that would otherwise be required pursuant to
this subsection 6.4 solely as a result of fluctuations in Exchange Rates from
time to time shall only be required to be made pursuant to this subsection 6.4
on the last Business Day of each month on the basis of the Exchange Rate in
effect on such Business Day.
(f) Prepayments of the Loans pursuant to subsection 6.4(c) shall be
applied as follows: (i) in the case of prepayments made by the Company, first,
-----
to prepay ABR Loans then outstanding, second, to prepay Eurodollar Loans and
------
NYBOR Loans then outstanding and, third, to prepay Multicurrency Loans of the
-----
Company then outstanding and (ii) in case of prepayments made by a Foreign
Subsidiary Borrower, to prepay Multicurrency Loans borrowed by such Foreign
Subsidiary Borrower.
(g) The Company shall prepay all Swing Line Loans then outstanding as
ABR Loans simultaneously with each borrowing of Revolving Credit Loans.
6.5 Commitment Fees; Other Fees. (a) The Company agrees to pay to
---------------------------
the Administrative Agent for the account of each Lender, a commitment fee for
the period from and including the date hereof to but excluding the Revolving
Credit Termination Date (or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein), computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender plus such Lender's Revolving Credit Commitment Percentage of the
----
aggregate principal amount of the Swing Line Loans during the period for which
payment is made. Such commitment fees shall be payable quarterly in arrears on
the last day of each March, June, September and December and on the Revolving
Credit Termination Date or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein, commencing on the first of such
dates to occur after the date hereof.
(b) The Company shall pay (without duplication of any other fee
payable under this subsection 6.5) to Chase and CSI, for their respective
accounts, all fees separately agreed to in writing by the Company and Chase or
CSI, as the case may be.
<PAGE>
37
(c) The Company shall (without duplication of any other fee payable
under this subsection 6.5) pay to the Administrative Agent and the Co-Agent all
fees separately agreed to in writing by the Company and the Administrative Agent
or the Co-Agent.
(d) In lieu of any letter of credit commissions and fees provided for
in any Application (other than any standard issuance, amendment and negotiation
fees, as described in paragraph (e) below), the Company will pay the
Administrative Agent, (i) for the account of the Issuing Lender, a non-
refundable fronting fee equal to 0.125% per annum and (ii) for the account of
the Lenders, a non-refundable Letter of Credit fee computed at a rate per annum
equal to the Applicable Margin, in each case on the amount available to be drawn
under such Letter of Credit. Such fee shall be payable quarterly in arrears on
the last Business Day of each calendar quarter, and shall be calculated on the
average daily amount available to be drawn under the Letters of Credit.
(e) The Company agrees to pay the Issuing Lender for its own account
its customary administration, amendment, transfer and negotiation fees charged
by the Issuing Lender in connection with its issuance and administration of
Letters of Credit.
(f) The Company shall (without duplication of any other fee payable
under this subsection 6.5) pay to the Administrative Agent for the account of
each Lender on the Closing Date all closing fees separately agreed to in writing
by the Company and the Administrative Agent or any Lender.
6.6 Computation of Interest and Fees. (a) Commitment fees, letter
--------------------------------
of credit fees and interest based on the Eurocurrency Rate or the NYBOR Rate or
(when it is based on the Federal Funds Effective Rate) the Alternate Base Rate
shall be calculated on the basis of a 360-day year for the actual days elapsed;
and otherwise interest shall be calculated on the basis of a 365- (or 366-, as
the case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Company and the Lenders of each
determination of a Eurocurrency Rate or a NYBOR Rate. Any change in the interest
rate on a Loan resulting from a change in the Alternate Base Rate shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Company and the Lenders of the effective date and the amount of each such change
in the Alternate Base Rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrowers and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of a Borrower, deliver to such
Borrower a statement showing in reasonable detail the calculations used by the
Administrative Agent in determining any interest rate pursuant to subsection
6.1(a) or 6.1(b).
(c) If any Reference Lender shall for any reason no longer have a
Revolving Credit Commitment or any outstanding Loans, such Reference Lender
shall thereupon cease to be a Reference Lender, and if, as a result, there shall
only be one Reference Lender remaining, the Administrative Agent (subject to the
consent of the Company (which consent
<PAGE>
38
shall not be unreasonably withheld) and after consultation with the Lenders)
shall, by notice to the Company and the Lenders, designate another Lender as a
Reference Lender so that there shall at all times be at least two Reference
Lenders.
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Lenders shall be unable or shall otherwise fail to supply such rates to
the Administrative Agent upon its request, the rate of interest shall, subject
to the provisions of subsection 6.7, be determined on the basis of the
quotations of the remaining Reference Lenders or Reference Lender, as
applicable.
6.7 Inability to Determine Interest Rate. If prior to the first day of
------------------------------------
any Interest Period:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Lenders shall be unable or shall otherwise fail to supply such rates to
the Administrative Agent upon its request, the rate of interest shall, subject
to the provisions of subsection 6.7, be determined on the basis of the
quotations of the remaining Reference Lenders or Reference Lender, as
applicable.
6.7 Inability to Determine Interest Rate. If prior to the first day of
------------------------------------
any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate or NYBOR
Rate, as the case may be, for such Interest Period, or
(b) the Administrative Agent has received notice from the Required
Lenders that the Eurocurrency Rate or NYBOR Rate, as the case may be,
determined or to be determined for such Interest Period will not adequately
and fairly reflect the cost to such Lenders of making or maintaining their
Eurodollar Loans, NYBOR Loans or Multicurrency Loans, as the case may be,
during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Company and the Lenders as soon as practicable thereafter. If such notice is
given (i) any Eurodollar Loans, NYBOR Loans or Multicurrency Loans, as the case
may be, requested to be made on the first day of such Interest Period shall be
made as ABR Loans in U.S. Dollars, (ii) any Revolving Credit Loans that were to
have been converted on the first day of such Interest Period to or continued as
Eurodollar Loans shall be converted to or continued as ABR Loans, (iii) any
outstanding Eurodollar Loans or NYBOR Loans shall be converted on the first day
of such Interest Period to ABR Loans and (iv) any Multicurrency Loans to which
such Interest Period relates shall be repaid on the first day of such Interest
Period. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans, NYBOR Loans or Multicurrency Loans in the affected
currency shall be made or continued as such, nor shall the Company have the
right to convert ABR Loans to Eurodollar Loans or NYBOR Loans.
6.8 Pro Rata Treatment and Payments. (a) (i) Each borrowing of
-------------------------------
Revolving Credit Loans by the Company from the Lenders hereunder shall be made
pro rata according to the Revolving Credit Commitment Percentages of the Lenders
- --- ----
in effect on the date of such borrowing. Each payment by the Company on account
of any facility fee hereunder shall be allocated by the Administrative Agent
among the Lenders in accordance with the respective amounts which such Lenders
are entitled to receive pursuant to subsection 6.5(a). Any
<PAGE>
39
reduction of the Revolving Credit Commitments of the Lenders shall be allocated
by the Administrative Agent among the Lenders pro rata according to the
--- ----
Revolving Credit Commitment Percentages of the Lenders. Each payment (other than
any optional prepayment) by the Company on account of principal of the Revolving
Credit Loans shall be allocated by the Administrative Agent pro rata according
--- ----
to the respective principal amounts thereof then due and owing to each Lender.
Each optional prepayment by the Company on account of principal of or interest
on the Revolving Credit Loans shall be allocated by the Administrative Agent pro
---
rata according to the respective outstanding principal amounts thereof. All
- ----
payments (including prepayments) to be made by the Company hereunder (other than
payments in respect of the Multicurrency Loans), whether on account of
principal, interest, fees or otherwise, shall be made without set-off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Administrative Agent's New York office specified in subsection 14.2, in
Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders entitled to receive the same promptly
upon receipt in like funds as received.
(ii) Each borrowing of Multicurrency Loans by the Company or any
Foreign Subsidiary Borrower shall be made, pro rata according to the Revolving
--- ----
Credit Commitment Percentages of the Lenders. Each payment (including each
prepayment) by the Company or a Foreign Subsidiary Borrower on account of
principal of and interest on Multicurrency Loans shall be allocated by the
Administrative Agent pro rata according to the respective principal amounts of
--- ----
the Loans then due and owing by the Company or such Foreign Subsidiary Borrower
to each Lender. All payments (including prepayments) to be made by the Company
or a Foreign Subsidiary Borrower hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without set-off or counterclaim and
shall be made prior to 12:00 Noon, local time at the payment office for the
currency in which such Multicurrency Loan is denominated, on the due date
thereof to the Administrative Agent, for the account of the Lenders, at the
payment office for the currency of such Multicurrency Loan specified from time
to time by the Administrative Agent by notice to the Lenders and the Company, in
the currency of such Multicurrency Loan and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders entitled to
receive the same promptly upon receipt in like funds as received.
(iii) If any payment hereunder (other than payments on the
Eurodollar Loans or the Multicurrency Loans) becomes due and payable on a day
other than a Business Day, the maturity of such payment shall be extended to the
next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan or a Multicurrency Loan becomes
due and payable on a day other than a Business Day, the maturity of such payment
shall be extended to the next succeeding Business Day (and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension) unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day.
<PAGE>
40
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a Borrowing Date that such Lender will not make
the amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate per annum equal to (i) the daily average Federal
Funds Effective Rate (in the case of a borrowing of Revolving Credit Loans) or
(ii) the Administrative Agent's reasonable estimate of its average daily cost of
funds (in the case of a borrowing of Multicurrency Loans), in each case for the
period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the applicable Borrower shall
repay such Lender's share of such borrowing (together with interest thereon from
the date such amount was made available to such Borrower (i) at the rate per
annum applicable to ABR Loans hereunder (in the case of amounts made available
to the Company) or (ii) the Administrative Agent's reasonable estimate of its
average daily cost of funds plus the Applicable Margin applicable to
----
Multicurrency Loans (in the case of a borrowing of Multicurrency Loans)) to the
Administrative Agent not later than three Business Days after receipt of written
notice from the Administrative Agent specifying such Lender's share of such
borrowing that was not made available to the Administrative Agent.
6.9 Illegality. Notwithstanding any other provision herein, if the
----------
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans, NYBOR Loans or Multicurrency Loans as contemplated by this
Agreement, (a) the commitment of such Lender hereunder to make Eurodollar Loans,
NYBOR Loans or Multicurrency Loans, continue Eurodollar Loans or Multicurrency
Loans as such and convert ABR Loans to Eurodollar Loans or NYBOR Loans shall
forthwith be cancelled until such time as it shall no longer be unlawful for
such Lender to make or maintain the affected Loans, (b) such Lender's Loans then
outstanding as Eurodollar Loans or NYBOR Loans, if any, shall be converted
automatically to ABR Loans on the respective last days of the then current
Interest Periods with respect to such Eurodollar Loans or within such earlier
period as may be required by law and (c) such Lender's Multicurrency Loans shall
be prepaid on the last day of the then current Interest Period with respect
thereto or within such earlier period as may be required by law. If any such
conversion of a Eurodollar Loan or a NYBOR Loan, or repayment of a Multicurrency
Loan, occurs on a day which is not the last day of the then current Interest
Period with respect thereto, the Company shall pay to such Lender such amounts,
if any, as may be required pursuant to subsection 6.12.
6.10 Requirements of Law. (a) If the adoption of or any change in
-------------------
any Requirement of Law or in the interpretation or application thereof or
compliance by any
<PAGE>
41
Lender with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority, made subsequent to the
date hereof:
(i) shall subject such Lender to any tax of any kind whatsoever with
respect to this Agreement, any Note, any Letter of Credit issued or
participated in by it, any Eurodollar Loan, NYBOR Loan or Multicurrency
Loan made by it or its obligation to make any Eurodollar Loan, NYBOR Loan
or Multicurrency Loan, or change the basis of taxation of payments to such
Lender in respect thereof (except for taxes covered by subsection 6.11 and
changes in rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurocurrency Rate or NYBOR Rate, as the case may be, hereunder,
including, without limitation, the imposition of any reserves with respect
to Eurocurrency Liabilities under Regulation D of the Board; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, NYBOR Loans or Multicurrency Loans
or Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the applicable Borrower shall promptly pay such
Lender, upon its demand, any additional amount or amounts as will compensate
such Lender for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Company shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Company (with a copy
to the Administrative Agent) of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this
subsection, containing such calculations as such
<PAGE>
42
Lender customarily provides in similar transactions, submitted by such Lender to
the Company (with a copy to the Administrative Agent) shall be conclusive in the
absence of manifest error. The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
6.11 Taxes. (a) All payments made by the Borrowers under this
-----
Agreement and any Note shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding taxes imposed on the Administrative Agent or
any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement, any Note
or any other Loan Document). If any such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") are
------------------
required to be withheld from any amounts payable to the Administrative Agent or
any Lender hereunder or under any Note, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all Non-
Excluded Taxes) interest or any such other amounts payable hereunder at the
rates and in the amounts specified in this Agreement, provided, however, that
-------- -------
(i) the Company shall not be required to increase any such amounts payable to
any Lender that is not organized under the laws of the United States of America
or a state thereof if such Lender fails to comply with the requirements of
paragraph (b) of this subsection, and (ii) a Foreign Subsidiary Borrower shall
not be required to increase any such amounts payable to any Lender if such
Lender fails to comply with the requirements of paragraph (c) of this
subsection. Whenever any Non-Excluded Taxes are payable by a Borrower, as
promptly as possible thereafter such Borrower shall send to the Administrative
Agent for its own account or for the account of such Lender, as the case may be,
a certified copy of an original official receipt received by such Borrower
showing payment thereof. If a Borrower fails to pay any Non-Excluded Taxes when
due to the appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence, such
Borrower shall indemnify the Administrative Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a State thereof shall:
(i) at least five Business Days before the date of the initial
payment to be made by the Company to such Lender under this Agreement
and on the date on which such Lender changes its lending office (other
than pursuant to subsection 6.14), deliver to the Company and the
Administrative Agent (A) two duly completed copies of
<PAGE>
43
United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, certifying that it is entitled to
receive payments under this Agreement without deduction or withholding of
any United States federal income taxes and (B) an Internal Revenue Service
Form W-8 or W-9, or successor applicable form, as the case may be,
certifying that it is entitled to an exemption from United States backup
withholding tax;
(ii) deliver to the Company and the Administrative Agent two further
copies of any such form or certification at least five Business Days before
the date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Administrative Agent and the
Company; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Company or
the Administrative Agent;
and each Lender (or Transferee) that is incorporated or organized under the laws
of the United States of America or a State thereof shall provide two properly
completed and duly executed copies of Form W-9, or successor applicable form, at
the times specified for delivery of forms under paragraph (b)(i) of this
subsection unless an event (including, without limitation, any change in treaty,
law or regulation) has occurred after the date such Person becomes a Lender
hereunder which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the Company and the Administrative Agent; provided,
--------
however, that the Company may rely upon such forms provided to the Company for
all periods prior to the occurrence of such event. Each Person that shall
become a Lender or a Participant pursuant to subsection 14.6 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this subsection, provided
--------
that in the case of such Participant such Participant shall furnish all such
required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
(c) Each Lender that is not incorporated or organized under the laws
of the jurisdiction under which a Foreign Subsidiary Borrower is incorporated or
organized shall, upon request by such Foreign Subsidiary Borrower, within a
reasonable period of time after such request, deliver to such Foreign Subsidiary
Borrower or the applicable governmental or taxing authority, as the case may be,
any form or certificate required in order that any payment by such Foreign
Subsidiary Borrower under this Agreement or any Notes to such Lender may be made
free and clear of, and without deduction or withholding for or on account of any
Non-Excluded Tax (or to allow any such deduction or withholding to be at a
reduced rate) imposed on such payment under the laws of the jurisdiction under
which such Foreign Subsidiary Borrower is incorporated or organized, provided
--------
that such Lender is legally entitled to complete, execute and deliver such form
or certificate and such completion, execution or submission would not materially
prejudice the legal position of such Lender.
<PAGE>
44
6.12 Indemnity. Each Borrower agrees to indemnify each Lender and to
---------
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by such Borrower in payment when due of
the principal amount of or interest on any Eurodollar Loan, NYBOR Loan or
Multicurrency Loan, (b) default by such Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans, NYBOR Loans or
Multicurrency Loans after such Borrower has given a notice requesting the same
in accordance with the provisions of this Agreement, (c) default by such
Borrower in making any prepayment after such Borrower has given a notice thereof
in accordance with the provisions of this Agreement or (d) the making by such
Borrower of a prepayment of Eurodollar Loans, NYBOR Loans or Multicurrency Loans
on a day which is not the last day of an Interest Period with respect thereto,
including, without limitation, in each case, any such loss or expense arising
from the reemployment of funds obtained by a Lender or from fees payable to
terminate the deposits from which such funds were obtained. Such indemnification
may include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so prepaid, or not so borrowed, converted
or continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of such Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
6.13 Use of Proceeds. The proceeds of the Loans shall be used (a) to
---------------
refinance the Existing Credit Agreement, (b) to pay fees and expenses incurred
by the Borrowers in connection with this Agreement, (c) to finance the Rohr
Acquisition, pay transaction fees and related costs with respect to the Rohr
Acquisition, refinance certain indebtedness of Rohr and finance the working
capital needs of Rohr in an aggregate amount not to exceed the U.S. Dollar
Equivalent of 70,000,000 Deutsche Marks; provided that none of the proceeds of
--------
the Loans shall be available for any of the uses described in this subsection
6.13(c) prior to the Second Closing Date and (d) for working capital and other
general corporate purposes of the Borrowers and their Subsidiaries, including
investments and acquisitions; provided that not more than the U.S. Dollar
--------
Equivalent of 35,000,000 Deutsche Marks in the aggregate of Loan proceeds shall
be used by or for Bush Viotechnik.
6.14 Change of Lending Office; Replacement of Lenders. (a) Each
------------------------------------------------
Lender (or Transferee) agrees that, upon the occurrence of any event giving rise
to the operation of subsection 6.9, 6.10 or 6.11 with respect to such Lender (or
Transferee), it will, if requested by the Company, use reasonable efforts
(subject to overall policy considerations of such Lender (or Transferee)) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
--------
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no material economic, legal or
regulatory disadvantage, and provided, further, that nothing in this subsection
-------- -------
6.14 shall affect or postpone any of the
<PAGE>
45
obligations of any Borrower or the rights of any Lender (or Transferee) pursuant
to subsection 6.9, 6.10 or 6.11.
(b) If at any time any Lender makes any demand for payment under
subsection 6.9, 6.10 or 6.11 as a result of any condition described in any such
subsection, then the Company may, if such condition continues to exist after
such Lender shall have used reasonable efforts pursuant to paragraph (a) of this
subsection 6.14 and on 10 Business Days' prior written notice to the
Administrative Agent and such Lender, replace such Lender by causing such Lender
to (and such Lender shall) assign pursuant to subsection 14.6(c) all of its
rights and obligations under this Agreement to another Lender or other bank or
financial institution selected by the Company and acceptable to the
Administrative Agent for a purchase price equal to the outstanding principal
amount of all Loans, accrued interest, fees and other amounts owing to such
Lender; provided that (i) the Company shall have no right to replace the
--------
Administrative Agent, (ii) neither the Administrative Agent nor any Lender shall
have any obligation to the Company to find a replacement Lender or other bank or
financial institution, (iii) such replacement must take place no later than 180
days after such Lender shall have made any such demand for payment, (iv) in no
event shall any Lender hereby replaced be required to pay or surrender to such
replacement Lender or other bank or financial institution any of the fees
received by such Lender pursuant to this Agreement, (v) the Company shall pay
such amounts demanded under subsection 6.9, 6.10 or 6.11 to such Lender,
together with any amounts as may be required pursuant to subsection 6.12
(calculated as if such replacement were a prepayment in full of the Loans owing
to the Lender being replaced), prior to such Lender being replaced and the
payment of such amounts shall be a condition to the replacement of such Lender
and (vi) such Lender shall not be required to pay any fees required by
subsection 14.6(e) in connection with such replacement, which fees shall be paid
by the Company.
SECTION 7. REPRESENTATIONS AND WARRANTIES
Each of the Company and the Foreign Subsidiary Borrowers (insofar as
the representations and warranties set forth below relate respectively to such
Foreign Subsidiary Borrower) represents and warrants to the Administrative Agent
and each Lender that:
7.1 Financial Condition. The consolidated balance sheet of the
-------------------
Company and its consolidated Subsidiaries as at December 28, 1996 and December
30, 1995 and the related consolidated statements of income and of cash flows for
the fiscal years ended on such dates, reported on by Deloitte & Touche LLP,
copies of which have heretofore been furnished to each Lender, are complete and
correct and present fairly the consolidated financial condition of the Company
and its consolidated Subsidiaries as at such date, and the consolidated results
of their operations and their consolidated cash flows for the fiscal year then
ended. The unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at March 29, 1997 and the related unaudited
consolidated statements of income and of cash flows for the three-month period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and correct and
<PAGE>
46
present fairly the consolidated financial condition of the Company and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the fiscal year then ended. The
unaudited consolidated balance sheet of the Company and its consolidated
Subsidiaries as at March 29, 1997 and the related unaudited consolidated
statements of income and of cash flows for the three-month period ended on such
date, certified by a Responsible Officer, copies of which have heretofore been
furnished to each Lender, are complete and correct and present fairly the
consolidated financial condition of the Company and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the three-month period then ended (subject
to normal year-end audit adjustments). All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as approved by
such accountants or Responsible Officer, as the case may be, and as disclosed
therein). Neither the Company nor any of its consolidated Subsidiaries had, at
the date of the most recent balance sheet referred to above, any material
Guarantee Obligation, contingent liability or liability for taxes, or any long-
term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction,
which is not reflected in the foregoing statements or in the notes thereto.
Except as otherwise disclosed on Schedule 7.1, during the period from December
28, 1996 to and including the date hereof there has been no sale, transfer or
other disposition by the Company or any of its consolidated Subsidiaries of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of the Company and
its consolidated Subsidiaries at December 28, 1996.
7.2 No Change. Since December 28, 1996 there has been no development
---------
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
7.3 Corporate Existence; Compliance with Law. Each of the Company
----------------------------------------
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification except to the extent that the failure to be so
qualified could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect and (d) is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
7.4 Corporate Power; Authorization; Enforceable Obligations. Each
-------------------------------------------------------
Credit Party has the corporate or other power and authority, and the legal
right, to make, deliver and perform Loan Documents to which it is a party and,
in the case of the Borrowers, to borrow hereunder; and each Credit Party has
taken all necessary corporate or other action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in
the case of the Borrowers, the borrowings on the terms and conditions of this
Agreement. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required
in connection with the borrowings hereunder, with the execution, delivery,
performance, validity or enforceability of this Agreement or the Notes to which
it is a party except for consents which have been obtained and are in full force
and effect. This Agreement has been, and each other
Loan Document will be, duly executed and delivered on behalf of each of the
applicable Credit Parties. This
<PAGE>
47
Agreement constitutes, and each other Loan Document when executed and delivered
by the applicable Credit Parties will constitute, a legal, valid and binding
obligation of such Person enforceable against each such Credit Party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
7.5 No Legal Bar. The execution, delivery and performance of the
------------
Loan Documents, the borrowings hereunder and the use of the proceeds thereof
will not violate in any material respect any Requirement of Law or Contractual
Obligation of the Company or of any of its Subsidiaries and will not result in,
or require, the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation.
7.6 No Material Litigation. No litigation, investigation or
----------------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Company, threatened by or against the Company or any of
its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be expected to
have a Material Adverse Effect.
7.7 No Default. Neither the Company nor any of its Subsidiaries is
----------
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
7.8 Ownership of Property; Liens. Each of the Company and its
----------------------------
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property, and none of such property is
subject to any Lien except as permitted by subsection 10.5.
7.9 Intellectual Property. Other than as disclosed in Schedule 7.9,
---------------------
each of the Company and each of its Subsidiaries owns, or is licensed to use,
all trademarks, tradenames, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted except for
those the failure to own or license which could not reasonably be expected to
have a Material Adverse Effect (the "Intellectual Property"). No claim has been
---------------------
asserted and is pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Company know of any valid basis for any such
claim. The use of such Intellectual Property by the Company and its
Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
<PAGE>
48
7.10 No Burdensome Restrictions. To the best knowledge of the
--------------------------
Company, no Requirement of Law or Contractual Obligation of the Company or any
of its Subsidiaries could reasonably be expected to have a Material Adverse
Effect.
7.11 Taxes. Each of the Company and its Subsidiaries has filed or
-----
caused to be filed all tax returns which, to the knowledge of the Borrowers, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Company or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Company, no claim is being asserted,
with respect to any such tax, fee or other charge.
7.12 Federal Regulations. No part of the proceeds of any Loans will
-------------------
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board of Governors of the United States Federal Reserve System as now and from
time to time hereafter in effect or for any purpose which violates the
provisions of the Regulations of such Board of Governors (including but not
limited to the provisions of Regulation U and Regulation X) or any similar rule
of any other Governmental Authority. If any Borrower is requested by any Lender
or the Administrative Agent, such Borrower will furnish to the Administrative
Agent and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1 referred to in said Regulation G or
Regulation U as the case may be.
7.13 ERISA. Neither a Reportable Event nor an Accumulated Funding
-----
Deficiency has occurred during the five-year period prior to the date on which
this representation is made or deemed made with respect to any Plan, and each
Plan has complied in all material respects with the applicable provisions of
ERISA and the Code. No termination of a Single Employer Plan has occurred, and
no Lien in favor of PBGC or a Plan has arisen, during such five-year period.
The present value of all accrued benefits under each Single Employer Plan (based
on those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by an amount which could reasonably be expected to have a Material
Adverse Effect, either individually or in the aggregate with all other Single
Employer Plans under which such accrued benefits exceed such assets. Neither
the Company nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan during the five-year period prior to the
date on which this representation is made or deemed made which could, in the
aggregate with other such withdrawals during such period, reasonably be expected
to have a Material Adverse Effect, and neither the Company nor any Commonly
Controlled Entity would become subject to any liability under ERISA if the
Company or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made. No such Multiemployer
Plan is in Reorganization or is Insolvent.
<PAGE>
49
7.14 Investment Company Act; Other Regulations. No Borrower is an
-----------------------------------------
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No
Borrower is subject to any law or regulation which limits its ability to incur
Indebtedness.
7.15 Subsidiaries. As of the date hereof, neither the Company nor
------------
any other Borrower has any Subsidiary except those Subsidiaries identified on
Schedule II to this Agreement.
7.16 Environmental Matters. Other than as disclosed in Schedule
---------------------
7.16: (a) The facilities and properties owned, leased or operated by the
Company and/or any of its Subsidiaries (the "Properties") do not contain, and
----------
have not previously contained, any Materials of Environmental Concern in amounts
or concentrations which (i) constitute or constituted a violation of, or (ii)
could reasonably be expected to give rise to liability under, any Environmental
Law except in either case insofar as such violation or liability, or any
aggregation thereof, is not reasonably likely to result in the payment of a
Material Environmental Amount.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all material
respects with all applicable Environmental Laws, and there is no contamination
at, under or about the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by the Company or any of its
Subsidiaries (the "Business") which could materially interfere with the
--------
continued operation of the Properties or materially impair the aggregate fair
saleable value of the Properties.
(c) Neither the Company nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the Business, nor does the Company or
any of its Subsidiaries have knowledge or reason to believe that any such notice
will be received or is being threatened except insofar as such notice or
threatened notice, or any aggregation thereof, does not involve a matter or
matters that is or are reasonably likely to result in the payment of a Material
Environmental Amount.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
which could reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the Properties
in violation of, or in a manner that could reasonably be expected to give rise
to liability under, any applicable Environmental Law except insofar as any such
violation or liability referred to in this paragraph, or any aggregation
thereof, is not reasonably likely to result in the payment of a Material
Environmental Amount.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Company, threatened, under any
Environmental Law to which the
<PAGE>
50
Company or any Subsidiary is or will be named as a party with respect to the
Properties or the Business, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with respect to
the Properties or the Business except insofar as such proceeding, action,
decree, order or other requirement, or any aggregation thereof, is not
reasonably likely to result in the payment of a Material Environmental Amount.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of the Company or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or in
amounts or in a manner that could reasonably give rise to liability under
Environmental Laws except insofar as any such violation or liability referred to
in this paragraph, or any aggregation thereof, is not reasonably likely to
result in the payment of a Material Environmental Amount.
(g) Items disclosed in Schedule 7.16 will not, in the aggregate, have
a Material Adverse Effect.
7.17 Accuracy and Completeness of Information. All information
----------------------------------------
heretofore furnished by the Company to the Lenders for purposes of or in
connection with this Agreement, and all such information hereafter furnished by
the Company to any Lender for purposes of this Agreement will not, contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made or to be made, in the light of the
circumstances under which they were or will be made, not misleading. Prior to
the date hereof, the Company has disclosed to the Lenders in writing any and all
facts which materially and adversely affect (to the extent the Company can as of
the date hereof reasonably foresee), the business, operations or financial
condition of the Company and its Subsidiaries, taken as a whole, or the ability
of the Company to perform its obligations under the Loan Documents.
7.18 Foreign Subsidiary Borrowers. (a) Each Foreign Subsidiary
----------------------------
Borrower is a direct or indirect majority-owned Subsidiary of the Company and is
organized under the laws of Germany or a country comprised in the European
Union;
(b) Each Foreign Subsidiary Borrower will be a direct or indirect,
wholly-owned Subsidiary of the Company (excluding director qualifying shares)
(or, with the consent of the Lenders, which consent shall not be unreasonably
withheld, a direct or indirect, majority-owned Subsidiary of the Company) and
will be organized under the laws of Germany or a country included in the
European Union; and
(c) Each Foreign Subsidiary Borrower will have, upon becoming a party
hereto, full right and authority to enter into this Agreement and each other
Loan Document to which it is a party, and to perform all of its obligations
under this and each other Loan Document to which it is a party; all of the
foregoing actions will have been, prior to any request for Loans by such
Borrower, duly authorized by all necessary action on the part of
<PAGE>
51
such Borrower, and when such Foreign Subsidiary Borrower becomes a party hereto,
this Agreement and each other Loan Document to which it is a party will
constitute valid and binding obligations of such Borrower enforceable in
accordance with their respective terms except as such terms may be limited by
the application of bankruptcy, moratorium, insolvency and similar laws
including, without limitation, Sections 30, 31 of the German Code on Limited
Liability Companies with respect to companies incorporated under the laws of
Germany affecting the rights of creditors generally and by equitable principles
affecting the availability of specific performance and other remedies.
(d) For the purpose of this Section 7.18, all companies incorporated
under the laws of Germany whose shares are held in trust for the Company shall
be deemed to be majority owned Subsidiaries of the Company.
7.19 Security Documents. The Pledge Agreement is effective to create
------------------
in favor of the Administrative Agent, for the ratable benefit of the Lenders, a
legal, valid and enforceable security interest in the pledged stock described
therein. Such Pledge Agreement constitutes a fully perfected first lien on, and
security interest in, all right, title and interest of the Company in the
Pledged Stock described therein, subject, in the case of any stock of a German
Limited Liability Company, to the restrictions imposed by Section 32(a) of the
German Code on Limited Liability Companies.
7.20 Solvency. On the Closing Date and after giving effect to the
--------
borrowings hereunder on such date and to all other Indebtedness and Guarantee
Obligations being incurred on such date, (a) the property, at a fair market
valuation, of the Company will exceed the Company's debts, (b) the present fair
salable value of the assets of the Company is not less than the amount that will
be required to pay the probable liabilities of the Company as such debts become
absolute and matured, and (c) the Company does not intend to, and does not
believe it will, incur debts or liabilities beyond the Company's ability to pay
as such debts and liabilities mature. For purposes of this subsection, "debt"
means "liability on a claim" and "claim" means any (i) right to payment, whether
or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured,
or unsecured or (ii) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured, or unsecured.
7.21 Labor Matters. There are no strikes pending or, to the
-------------
Company's knowledge, overtly threatened against the Company or any of its
Domestic Subsidiaries which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect. The hours worked and payments
made to employees of the Company and each of its Domestic Subsidiaries have not
been in violation of the Fair Labor Standards Act or any other applicable
Requirement of Law, except to the extent such violations could not, or in the
aggregate, be reasonably expected to have a Material Adverse Effect.
<PAGE>
52
SECTION 8. CONDITIONS PRECEDENT
8.1 Conditions to Initial Loans. The obligation of each Lender to
---------------------------
make its initial Loans hereunder is subject to the satisfaction or waiver of the
following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received
--------------
this Agreement, executed and delivered by a duly authorized officer (or a
duly authorized representative) of the Company and each Foreign Subsidiary
Borrower that is a party hereto on the Closing Date, with a counterpart for
each Lender.
(b) Pledge Agreement. The Administrative Agent shall have received
----------------
each Pledge Agreement, executed and delivered by a duly authorized officer
(or a duly authorized representative) of the Company.
(c) Pledged Stock; Stock Powers. The Administrative Agent shall have
---------------------------
received the certificates representing the shares pledged pursuant to each
Pledge Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof.
(d) Guarantees. The Administrative Agent shall have received the
----------
Domestic Subsidiary Guarantee, duly executed by each of the Domestic
Subsidiaries, and the Foreign Subsidiary Guarantees, duly executed by each
Subsidiary of the Foreign Subsidiary Borrowers that are parties to this
Agreement on the Closing Date.
(e) Corporate Proceedings. The Administrative Agent shall have
---------------------
received, with a counterpart for each Lender, a copy of the resolutions, in
form and substance satisfactory to the Administrative Agent, of the Board
of Directors of the Company authorizing (i) the execution, delivery and
performance by it of this Agreement and the Loan Documents to which it is a
party and (ii) the borrowings by it contemplated hereunder, certified by
the Secretary or an Assistant Secretary of the Company as of the Closing
Date, which certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded.
(f) Corporate Documents. The Administrative Agent shall have
-------------------
received, with a counterpart for each Lender, true and complete copies of
the certificate of incorporation and by-laws of the Company, certified as
of the Closing Date as complete and correct copies thereof by the Secretary
or an Assistant Secretary or a duly authorized representative of the
Company.
(g) Fees. The Administrative Agent, the Arranger and the Lenders
----
shall have received the fees, expenses and other consideration required to
be paid on or before the Closing Date in connection with this Agreement.
<PAGE>
53
(h) Legal Opinions. The Administrative Agent shall have received,
--------------
with a counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Akerman Senterfitt &
Eidson, P.A., special counsel to the Company, substantially in the
form of Exhibit H; and
(ii) the executed legal opinion of counsel in the
jurisdiction of organization of each Foreign Subsidiary whose Capital
Stock is being pledged to the Administrative Agent pursuant hereto on
the Closing Date or which is executing a Foreign Subsidiary Guarantee
on the Closing Date, such opinion to be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent.
(i) Existing Credit Agreement. The Administrative Agent shall have
-------------------------
received evidence that all loans, accrued interest and other fees and any
other amounts owing to the respective lenders and agents under the Existing
Credit Agreement shall have been paid in full, and the commitments to make
loans thereunder shall have been cancelled. It is understood that all such
amounts owed under the Existing Credit Agreement may be paid with the
proceeds of the initial Loans made on the Closing Date.
(j) Closing Certificate. The Administrative Agent shall have
-------------------
received, with a counterpart for each Lender, a certificate of the Company,
dated the Closing Date, substantially in the form of Exhibit I, with
appropriate insertions and attachments, satisfactory in form and substance
to the Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the Company.
(k) Consents, Authorizations and Filings, etc. All consents,
------------------------------------------
authorizations and filings, if any, required or, in the discretion of the
Administrative Agent, advisable in connection with the execution, delivery
and performance by the Company and each other Borrower, and the validity
and enforceability against the Company and each other Borrower, of the Loan
Documents to which any of them is a party, shall have been obtained or
made, and such consents, authorizations and filings shall be in full force
and effect, except such consents, authorizations and filings, the failure
to obtain which would not have a Material Adverse Effect.
(l) Insurance Review. The Administrative Agent shall
----------------
have reviewed and been reasonably satisfied with the insurance program of
the Company and its Subsidiaries.
(m) Structure. The Administrative Agent shall have reviewed and been
---------
reasonably satisfied with (a) the Company's tax assumptions, and (b) the
corporate, organizational and legal structure of the Company and its
subsidiaries.
Notwithstanding the foregoing, the conditions precedent set forth in this
subsection 8.1 and referred to in Schedule 9.10, are hereby waived as conditions
precedent hereunder.
<PAGE>
54
8.2 Conditions to Second Closing Date. The obligation of each Lender
---------------------------------
to make Loans for use in connection with the Rohr Acquisition is subject to the
satisfaction of the following conditions precedent:
(a) Rohr Acquisition. The Rohr Acquisition shall have been
----------------
consummated for an aggregate purchase price (including the value of any
equity of the Company and the refinancing of any Rohr indebtedness) not
exceeding 70,000,000 Deutsche Marks pursuant to documentation satisfactory
to the Administrative Agent, and no provision thereof shall have been
waived, amended, supplemented or otherwise modified without the consent of
the Administrative Agent (which consent shall not be unreasonably
withheld).
(b) Consents, Authorizations and Filings, etc. All governmental and
-----------------------------------------
third party consents, authorizations and filings required, or in the
discretion of the Administrative Agent, reasonably advisable in connection
with the Rohr Acquisition shall have been obtained or made, and such
consents, authorizations and filings shall be in full force and effect,
except such consents, authorizations and filings, the failure to obtain
which would not have a Material Adverse Effect, and all applicable waiting
periods (except the one year period with respect to the post-merger
notification to the German Federal Contact Office in respect of the Rohr
Acquisition) shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or
otherwise impose adverse conditions on the Rohr Acquisition and the
financing thereof.
(c) Pro Forma Financial Statements. The Administrative Agent shall
------------------------------
have received a reasonably satisfactory pro forma consolidated balance
--- -----
sheet of the Company as at the date of the most recent consolidated balance
sheet adjusted to give effect to the consummation of the Rohr Acquisition
and the financings contemplated hereby as if such transactions had occurred
on such date.
(d) Legal Opinions. The Lenders shall have received such legal
--------------
opinions (including opinions (i) from counsel to the Company and its
subsidiaries, and (ii) from such special and local counsel as may be
required by the Administrative Agent), documents and other instruments as
are customary for transactions of this type or as they may reasonably
request.
(e) Insurance Review. The Administrative Agent shall have reviewed
----------------
and been reasonably satisfied with a third party review of the insurance
program of the Company, its Subsidiaries and Rohr.
(f) Rohr Acquisition Review. The Administrative Agent shall be
-----------------------
reasonably satisfied with all agreements (including without limitation all
collective bargaining agreements) covering, and all employee savings,
retirement and benefit plans relating to, the employees of the Company, it
subsidiaries and Rohr.
<PAGE>
55
(g) Structure. The Administrative Agent shall have reviewed and been
---------
reasonably satisfied with (a) the Company's tax assumptions, and (b) the
corporate, organizational and legal structure of the Company, Rohr and
their respective subsidiaries.
8.3 Conditions to Each Extension of Credit. The agreement of each
--------------------------------------
Lender to make any Extension of Credit requested to be made by it on any date
(including, without limitation, its initial Extension of Credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Company and other Borrowers in or pursuant to the
Loan Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date except for those
representations and warranties which relate solely to an earlier date,
which shall be true and correct as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the Extensions of
Credit requested to be made on such date.
(c) Foreign Subsidiary Opinion. If such requested Extension of
--------------------------
Credit is the initial Loan to a Foreign Subsidiary Borrower, the
Administrative Agent shall have received a Foreign Subsidiary Opinion in
respect of such Foreign Subsidiary Borrower.
(d) Additional Matters. All corporate and other proceedings, and all
------------------
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be reasonably satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received such
other documents and legal opinions in respect of any aspect or consequence
of the transactions contemplated hereby or thereby as it shall reasonably
request.
Each Extension of Credit to a Borrower hereunder shall constitute a
representation and warranty by the Company and such Borrower as of the date of
such Extension of Credit that the conditions contained in this subsection 8.3
have been satisfied.
SECTION 9. AFFIRMATIVE COVENANTS
The Company hereby covenants and agrees that so long as the
Commitments remain in effect, any Loan or Reimbursement Obligation remains
outstanding and unpaid or any other amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Company
shall and shall cause each of its Subsidiaries, to the extent applicable to
Subsidiaries, to:
<PAGE>
56
9.1 Financial Statements. Furnish to each Lender:
--------------------
(a) as soon as available, but in any event within 105 days after the
end of each fiscal year of the Company, a copy of the consolidated balance
sheet of the Company and its Subsidiaries as at the end of such year and
the related consolidated statements of income and cash flows for such year,
setting forth in each case in comparative form the figures for the previous
year, certified without qualification or exception by independent public
accountants of nationally recognized standing selected by the Company; and
(b) as soon as available, but in any event within 50 days after the
end of each of the first three quarterly periods of each fiscal year of the
Company, a copy of the unaudited condensed consolidated balance sheet of
the Company and its Subsidiaries as at the end of each such quarter and the
related unaudited condensed consolidated statements of income and cash
flows of the Company and its Subsidiaries for the portion of the fiscal
year through such date, setting forth in each case in comparative form such
figures for the previous year, certified by a Responsible Officer (subject
to normal year-end audit adjustments);
all such financial statements to be complete and correct in all material
respects and prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein (except for such changes
in accounting principles as may be approved by such Responsible Officer and
concurred in by the Company's independent public accountants and disclosed
therein). It is understood that copies of the Company's Forms 10-K and 10-Q for
the relevant periods, filed with the Securities and Exchange Commission, shall
be deemed to satisfy the requirements of subsections 9.1(a) and (b),
respectively.
9.2 Certificates; Other Information. Furnish to each Lender:
-------------------------------
(a) concurrently with the delivery of the financial statements
referred to in subsection 9.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 9.1(a) and (b), a certificate of a Responsible
Officer (i) stating that, to the best of such Officer's knowledge, during
such period the Company has observed or performed all of its covenants and
other agreements in all material respects, and satisfied every condition,
contained in this Agreement and the other Loan Documents to be observed,
performed or satisfied by it in each case in all material respects, and
that such Responsible Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate and (ii)
containing calculations demonstrating compliance with subsections 10.1,
10.2 and 10.3 for such period;
<PAGE>
57
(c) not later than March 31 of each fiscal year, a copy of the
projections by the Company of the operating budget and cash flow budget of
the Company and its Subsidiaries for such fiscal year, such projections to
be accompanied by a certificate of a Responsible Officer to the effect that
such projections have been prepared on the basis of sound financial
planning practice and that such Responsible Officer has no reason to
believe they are incorrect or misleading in any material respect;
(d) within five Business Days after the same are sent, copies of all
financial statements and reports which the Company sends to its
stockholders, and within five Business Days after the same are filed,
copies of all financial statements and reports which the Company may make
to, or file with, the Securities and Exchange Commission or any successor
or analogous Governmental Authority; and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
9.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
----------------------
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Company or its Subsidiaries, as the case may be.
9.4 Conduct of Business and Maintenance of Existence. Continue to
------------------------------------------------
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except as otherwise permitted
pursuant to subsection 10.7; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
9.5 Maintenance of Property; Insurance. Keep all property useful and
----------------------------------
necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to each Lender, upon written request,
full information as to the insurance carried.
9.6 Inspection of Property; Books and Records; Discussions. Keep
------------------------------------------------------
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Company and its
Subsidiaries,
<PAGE>
58
to the extent applicable, with officers and employees of the Company and its
Subsidiaries and with its independent certified public accountants.
9.7 Notices. Promptly give notice to the Administrative Agent and
-------
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Company
or any of its Subsidiaries and any Governmental Authority, which in either
case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries in which the amount involved is $2,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any event within
30 days after the Company knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to
any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal from,
or the termination, Reorganization or Insolvency of, any Multiemployer Plan
or (ii) the institution of proceedings or the taking of any other action by
the PBGC or the Company or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan; and
(e) any development or event which could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Company proposes to take with respect thereto.
9.8 Environmental Laws. Comply with, and ensure compliance by all
------------------
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply in all material respects with and maintain, and ensure that
all tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except to the extent that
failure to do so could not be reasonably expected to have a Material Adverse
Effect;
(a) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental
<PAGE>
59
Authorities regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings and the pendency of
such proceedings could not be reasonably expected to have a Material Adverse
Effect.
9.9 Additional Collateral; Further Assurances. (a) With respect to
-----------------------------------------
any Person that, subsequent to the Closing Date, becomes a Domestic Subsidiary,
promptly upon the request of the Administrative Agent: (i) execute and deliver
to the Administrative Agent, for the benefit of the Lenders, a new pledge
agreement or such amendments to the relevant Pledge Agreement as the
Administrative Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a Lien on the Capital
Stock of such Subsidiary which is owned by the Company or any of its
Subsidiaries, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers executed and
delivered in blank by a duly authorized officer of the Company or such
Subsidiary, as the case may be, (iii) execute and deliver to the Administrative
Agent, for the benefit of the Lenders, a Subsidiary Guarantee Supplement and
(iv) if requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions relating to the matters described in clauses (i), (ii) and
(iii) immediately preceding, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent.
(b) With respect to any Person that, subsequent to the Closing Date,
becomes a Foreign Subsidiary which is a direct Subsidiary of the Company,
promptly upon the request of the Administrative Agent: (i) execute and deliver
to the Administrative Agent a new pledge agreement or such amendments to the
relevant Pledge Agreement as the Administrative Agent shall deem necessary or
advisable to grant to the Administrative Agent, for the benefit of the Lenders,
a Lien on the Capital Stock of such Subsidiary which is owned by the Company or
any of its Domestic Subsidiaries (provided that in no event shall more than 65%
of the Capital Stock of any such Subsidiary be required to be so pledged), (ii)
deliver to the Administrative Agent any certificates representing such Capital
Stock (if certificated), together with undated stock powers executed and
delivered in blank by a duly authorized officer of the Company or such
Subsidiary, as the case may be, and take or cause to be taken all such other
actions under the law of the jurisdiction of organization of such Foreign
Subsidiary as may be necessary or advisable to perfect such Lien on such Capital
Stock (iii) if such Foreign Subsidiary is a Subsidiary of a Foreign Subsidiary
Borrower execute and deliver to the Administrative Agent, for the benefit of the
Lenders, a Foreign Subsidiary Guarantee and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i), (ii) and (iii) immediately
preceding, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
(c) Execute and deliver such other documents and take such further
actions as shall be reasonably requested by the Administrative Agent in order to
evidence or perfect any Lien or security interest created or intended to be
created by the Security Documents.
9.10 Satisfaction of Waived Conditions Precedent. Satisfy each of
-------------------------------------------
the conditions referred to in Schedule 9.10 and waived as a condition precedent
hereunder
<PAGE>
60
pursuant to the last paragraph of subsection 8.1 as soon as reasonably possible,
but in any event within 30 days of the Closing Date, except that the conditions
requiring the consent of the Commonwealth of Pennsylvania (or a department or
agency thereof) shall be satisfied as soon as reasonably possible, with the
Company to use its commercially reasonable best efforts to obtain such consent.
9.11 Identification of Collateral. Within 45 days after the Closing
----------------------------
Date, provide to the Administrative Agent evidence reasonably satisfactory to it
that the Liens described in schedule 10.5 do not encumber accounts, general
intangibles or inventory (as such terms are defined in the Uniform Commercial
Code in effect in New York).
SECTION 10. NEGATIVE COVENANTS
The Company hereby covenants and agrees that so long as the
Commitments remain in effect, any Loan or Reimbursement Obligation remains
outstanding and unpaid or any other amount is owing to any Lender or the
Administrative Agent hereunder, or under any other Loan Document, the Company
shall not, and shall not permit any of its Subsidiaries, to the extent
applicable to Subsidiaries, to, directly or indirectly:
10.1 Consolidated Cash Flow Coverage Ratio. Permit the Consolidated
-------------------------------------
Cash Flow Coverage Ratio to be less than a ratio of 4.00 to 1.00 for any fiscal
quarter.
10.2 Consolidated Leverage Ratio. Permit the Consolidated Leverage
---------------------------
Ratio to be greater than 3.00 to 1.00 at the end of any fiscal quarter.
10.3 Maintenance of Consolidated Net Worth. Permit Consolidated Net
-------------------------------------
Worth at any time to be less than $66,928,500 plus 50% of Consolidated Net
Income for each fiscal quarter for which Consolidated Net Income is a positive
number ended between March 29, 1997 and the date of such determination.
10.4 Limitation on Indebtedness. Create, incur, assume or suffer to
--------------------------
exist any Indebtedness, except with respect to any of the following:
(a) Indebtedness of the Company under this Agreement;
(b) Indebtedness of the Company to any Domestic Subsidiary and of any
Domestic Subsidiary to the Company or any other Subsidiary;
(c) Indebtedness of the Company and any of its Subsidiaries incurred
to finance the acquisition of fixed or capital assets (whether pursuant to
a loan, a Financing Lease or otherwise) in an aggregate principal amount
not exceeding as to the Company and its Subsidiaries $10,000,000 at any
time outstanding;
(d) short-term Indebtedness of Foreign Subsidiaries incurred for
working capital purposes in an aggregate principal amount not exceeding
$10,000,000 or the U.S. Dollar Equivalent thereof in a foreign currency at
any time outstanding;
<PAGE>
61
(e) Indebtedness outstanding on the date hereof and listed on
Schedule 10.4 and any refinancings, refundings, renewals or extensions
thereof;
(f) Indebtedness of a corporation which becomes a Subsidiary after
the date hereof, provided that (i) such indebtedness existed at the time
--------
such corporation became a Subsidiary and was not created in anticipation
thereof and (ii) immediately after giving effect to the acquisition of such
corporation by the Company no Default or Event of Default shall have
occurred and be continuing;
(g) additional Indebtedness not exceeding $2,500,000 in aggregate
principal amount at any one time outstanding; and
(h) Indebtedness for borrowed money incurred by the Company from time
to time and payable to a Governmental Authority, provided (i) that such
--------
Indebtedness enables the Company to obtain or utilize favorable tax
treatment or bears interest at a rate that is less than interest rates
generally available at such time in the commercial market for comparable
Indebtedness, and (ii) such Indebtedness is on terms and conditions (other
than applicable interest rates) no more favorable to the holders thereof
than are applicable to the Lenders with respect to Indebtedness hereunder.
10.5 Limitation on Liens. Create, assume or incur or suffer to be
-------------------
created, assumed or incurred or to exist any Lien on any of its properties or
assets, whether now owned or hereafter acquired except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
--------
respect thereto are maintained on the books of the Company or its
Subsidiaries, as the case may be, in conformity with GAAP (or, in the case
of Foreign Subsidiaries, generally accepted accounting principles in effect
from time to time in their respective jurisdictions of incorporation);
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
<PAGE>
62
(e) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Company or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule 10.5,
securing Indebtedness permitted by subsection 10.4(e) or (h), provided that no
--------
such Lien is spread to cover any additional property after the Closing Date
(except pursuant to after-acquired property clauses in existing agreements
covering property of the same type as that now subject to such existing Liens)
and that the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Company and its Subsidiaries
permitted by subsection 10.4(c) incurred to finance the acquisition of fixed or
capital assets, provided that (i) such Liens shall be created substantially
--------
simultaneously with the acquisition of such fixed or capital assets, (ii) such
Liens do not at any time encumber any property other than the property financed
by such Indebtedness, (iii) the amount of Indebtedness secured thereby is not
increased and (iv) the principal amount of Indebtedness secured by any such Lien
shall at no time exceed 100% of the fair value (as determined in good faith by
the board of directors of the Company) of such property at the time it was
acquired;
(h) Liens on assets of any Foreign Subsidiary securing up to $5,000,000 of
Indebtedness of such Foreign Subsidiary permitted by subsection 10.4(d);
(i) Liens on the property or assets of a corporation which becomes a
Subsidiary after the date hereof securing Indebtedness permitted by subsection
10.4(f), provided that (i) such Liens existed at the time such corporation
--------
became a Subsidiary and were not created in anticipation thereof, (ii) any such
Lien is not spread to cover any property or assets of such corporation after the
time such corporation becomes a Subsidiary (except pursuant to after-acquired
property clauses in existing agreements covering property of the same type as
that now subject to such existing Liens), and (iii) the amount of Indebtedness
secured thereby is not increased;
(j) Liens created pursuant to the Security Documents;
(k) Liens on property acquired with the proceeds of Indebtedness
permitted by subsection 10.4(h) and securing such Indebtedness; and
(l) to the extent it does not create adverse tax consequences, Rohr
may grant Liens to the Company and its Subsidiaries to secure Rohr's
reimbursement obligations to the Company or such Subsidiaries arising out of
this Agreement.
10.6 Limitation on Guarantee Obligations. Create, incur, assume or
-----------------------------------
suffer to exist any Guarantee Obligation except with respect to any of the
following:
<PAGE>
63
(a) Guarantee Obligations in existence on the date hereof and listed
on Schedule 10.6;
(b) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed $2,000,000 at any one time outstanding;
(c) guarantees made in the ordinary course of its business by the
Company of obligations of any of its Subsidiaries, which obligations are
otherwise permitted under this Agreement;
(d) the Guarantee made by the Company in Section 11 hereof; and
(e) the Domestic Subsidiary Guarantee and the Foreign Subsidiary
Guarantees.
10.7 Limitation on Fundamental Changes. Enter into any merger,
---------------------------------
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Company may be merged or consolidated with
or into the Company (provided that the Company shall be the continuing or
--------
surviving corporation) or with or into any one or more wholly owned
Domestic Subsidiaries of the Company (provided that the wholly owned
--------
Domestic Subsidiary or Subsidiaries shall be the continuing or surviving
corporation);
(b) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to the Company or any other wholly owned Domestic Subsidiary
of the Company; and
(c) any Foreign Subsidiary of the Company may be merged or
consolidated with or into the Company (provided that the Company shall be
--------
the continuing or surviving corporation) or with or into any one or more
Foreign Subsidiary Borrowers (provided that such Foreign Subsidiary
Borrower or Borrowers shall be the continuing or surviving corporation).
10.8 Limitation on Sale of Assets. Convey, sell, lease, assign,
----------------------------
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Company or any wholly owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out property in
the ordinary course of business;
<PAGE>
64
(b) the sale or other disposition of any property in the ordinary
course of business, provided that (other than inventory) the aggregate fair
--------
market value of all assets so sold or disposed of after the Closing Date
shall not exceed $5,000,000 in any fiscal year;
(c) the sale of inventory in the ordinary course of business;
(d) the sale or discount without recourse (other than upon normal and
customary terms and conditions) of accounts receivable arising in the
ordinary course of business in connection with the compromise or collection
thereof; and
(e) as permitted by subsection 10.7(b);
provided that notwithstanding the foregoing, after the Second Closing Date the
- --------
Company shall not reduce its direct or indirect ownership of Rohr's Capital
Stock below 51% of all the Capital Stock of Rohr outstanding at any time.
10.9 Limitation on Dividends. Declare or pay any dividend (other
-----------------------
than dividends payable solely in common stock of the Company) on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of the Company or any warrants or
options to purchase any such Stock, whether now or hereafter outstanding, or
make any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of the Company or any Subsidiary
(such declarations, payments, setting apart, purchases, redemptions,
defeasances, retirements, acquisitions and distributions being herein called
"Restricted Payments"), except that:
-------------------
(a) a Subsidiary may declare and make Restricted Payments if all of
the Capital Stock of such Subsidiary is owned by the Company or by a direct
or indirect wholly-owned Subsidiary of the Company, and Rohr may pay
dividends on its Capital Stock in the ordinary course of business;
(b) the Company may from time to time declare and make Restricted
Payments if such Restricted Payments are payable solely in shares of
Capital Stock (or options, warrants or rights therefor) of the Company;
(c) the Company may from time to time declare and pay cash dividends
on its common stock, if on the date of such payment or immediately
thereafter and after giving effect thereto, no Event of Default or Default
shall exist;
(d) the Company may from time to time purchase, redeem, retire or
acquire shares of its Capital Stock, if on the date of such purchase,
redemption, retirement or acquisition or immediately thereafter and after
giving effect thereto, no Event of Default or Default shall exist;
<PAGE>
65
(e) the Company may issue shares of its Capital Stock in connection
with contributions made by the Company on behalf of employees of the
Company and its Subsidiaries to the Company's 401(k) Plan;
(f) the Company may issue shares of its Class A Common Stock upon
conversion of shares of its Class B Common Stock to Class A Common Stock
pursuant to and in accordance with the terms of the Class B Common Stock;
and
(g) the Company may issue shares of its Capital Stock upon the
exercise of options granted with respect thereto pursuant to the terms of
such options.
(h) the Company may repurchase shares of its Capital Stock from the
estate of Paul S. Bush with the proceeds of a life insurance policy on the
life of Paul S. Bush, as more fully described in Schedule 10.9(h).
The Company shall not declare any dividend payable later than 90 days after
declaration and shall not permit any Subsidiary to declare any dividend payable
later than 15 days after declaration.
10.10 Limitation on Capital Expenditures. Make or commit to make (by
----------------------------------
way of the acquisition of securities of a Person or otherwise) any expenditure
in respect of the purchase or other acquisition of fixed or capital assets
(excluding any such asset acquired in connection with normal replacement and
maintenance programs properly charged to current operations) except for
expenditures in the ordinary course of business not exceeding, in the aggregate
for the Company and its Subsidiaries during any of the fiscal years of the
Company set forth below, the following amounts: (a) during fiscal years
1997 and 1998 (inclusive, in fiscal year 1997, of Capital Expenditures made
in fiscal year 1997 prior to the date hereof), an amount equal to (i)
$32,500,000 minus (ii) the aggregate amount of all consideration (determined in
-----
accordance with GAAP) paid by the Company during such fiscal year in connection
with Acquisitions permitted by subsection 10.11(k); and (b) for each fiscal year
thereafter, an amount equal to (i) 27,500,000 minus (ii) the aggregate amount of
-----
all consideration (determined in accordance with GAAP) paid by the Company
during such fiscal year in connection with Acquisitions permitted by subsection
10.11(k); provided that any such amount not so expended in the fiscal year for
--------
which it is permitted above, may be carried over for use in subsequent fiscal
years as Capital Expenditures or for Acquisitions pursuant to subsection
10.11(k).
10.11 Limitation on Investments, Loans and Advances. Make any
---------------------------------------------
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person
(all the foregoing, "Investments"), except:
-----------
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
<PAGE>
66
(c) loans to officers of the Company in an aggregate principal amount
not to exceed $2,000,000 at any one time outstanding;
(d) loans and advances to employees of the Company or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for the Company and its
Subsidiaries not to exceed $2,500,000 at any one time outstanding;
(e) Investments by the Company in its Domestic Subsidiaries and
investments by such Subsidiaries in the Company and in other Domestic
Subsidiaries;
(f) the Rohr Acquisition;
(g) Investments by a Foreign Subsidiary in its Foreign Subsidiaries;
(h) Investments described in Schedule 10.11(h);
(i) Investments by the Company and its Domestic Subsidiaries in its
Foreign Subsidiaries not exceeding $10,000,000 in aggregate principal
amount at any one time outstanding and investments by Foreign Subsidiaries
in the Company;
(j) Investments in common stock of other entities not exceeding
$150,000 in aggregate principal amount at any one time outstanding; and
(k) the Company may (w) acquire a majority of all of the properties or
assets of any going concern or going line of business, (x) acquire a
majority of all of the property or assets of any other Person, (y) acquire
a majority of all of the Capital Stock or other equity interests in or of
any other Person, and (z) agree, become or remain liable (contingently or
otherwise) to do any of the foregoing (collectively, "Acquisitions")
provided that (i) no Event of Default shall occur and be continuing or
shall exist at such time or after giving effect to such transaction, (ii)
the business or properties so acquired shall be within the Company's line
of business or a related line of business or shall use production or
manufacturing technology used in the Company's line of business, and (iii)
as of the end of each fiscal year of the Company, the aggregate
consideration (determined in accordance with GAAP) paid by the Company in
connection with all Acquisitions (other than the Rohr Acquisition) shall
not exceed: (a) during fiscal years 1997 and 1998 (inclusive, in fiscal
year 1997, of Acquisitions made in fiscal year 1997 prior to the date
hereof), an amount equal to (1) $32,500,000 minus (2) the aggregate amount
-----
of all Capital Expenditures made by the Company during such fiscal year
to the extent permitted by subsection 10.10; provided, that and (b) for
--------
each fiscal year thereafter, an amount equal to (1) $27,500,000 minus (2)
-----
the aggregate amount of all Capital Expenditures made by the Company during
such fiscal year to the extent permitted by subsection 10.10; any such
amount not so expended in the fiscal year for which it is permitted above,
may be carried over for use in subsequent fiscal years for Acquisitions or
as Capital Expenditures pursuant to subsection 10.10.
<PAGE>
67
10.12 Limitation on Modifications of Debt Instruments. Amend, modify
-----------------------------------------------
or change, or consent or agree to any amendment, modification or change to any
of the terms of any Indebtedness (other than any such amendment, modification or
change which would extend the maturity or reduce the amount of any payment of
principal thereof or which would reduce the rate or extend the date for payment
of interest thereon).
10.13 Limitation on Transactions with Affiliates. Enter into any
------------------------------------------
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Company's or such Subsidiary's business and (c) upon fair
and reasonable terms no less favorable to the Company or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's length transaction with
a Person which is not an Affiliate, except that the foregoing shall not preclude
such transactions involving an aggregate amount not exceeding $250,000 in any
fiscal year; provided, that the stock repurchase described in subsection 10.9(n)
--------
may be consummated.
10.14 Limitation on Sales and Leasebacks. Enter into any arrangement
----------------------------------
with any Person providing for the leasing by the Company or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Company or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Company or such Subsidiary.
10.15 Limitation on Changes in Fiscal Year. Permit the fiscal year
------------------------------------
of the Company to end on a day other than the Saturday closest to December 31.
10.16 Limitation on Negative Pledge Clauses. Enter into with any
-------------------------------------
Person any agreement, other than (a) this Agreement and (b) any industrial
revenue bonds, purchase money mortgages or Financing Leases permitted by this
Agreement (in which cases, any prohibition or limitation shall only be effective
against the assets financed thereby), which prohibits or limits the ability of
the Company or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, or limits the ability of any Subsidiary to pay dividends
to or make other distributions to, or guarantee obligations of, the Company.
10.17 Limitation on Lines of Business. Enter into any business,
-------------------------------
either directly or through any Subsidiary, except for those businesses in which
the Company and its Subsidiaries are engaged on the date of this Agreement or
which are directly related thereto.
10.18 Hedging Agreements. Enter into any Hedging Agreement other
------------------
than in the ordinary course of business to hedge against interest rate or
currency exchange rate fluctuations and in any event not for speculative
purposes.
<PAGE>
68
SECTION 11. GUARANTEE
11.1 Guarantee. (a) The Company hereby unconditionally and
---------
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Administrative Agent and the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment by the
Foreign Subsidiary Borrowers when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
(b) The Company further agrees to pay any and all reasonable expenses
(including, without limitation, all reasonable fees and disbursements of
counsel, which may be paid or incurred by the Administrative Agent, or any
Lender in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the Company under this
Section 11. This Section 11 shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated, notwithstanding
that from time to time prior thereto the Borrowers may be free from any
Obligations.
(c) No payment or payments made by any Borrower or any other Person
or received or collected by the Administrative Agent or any Lender from any
Borrower or any other Person by virtue of any action or proceeding or any set-
off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of the Company under this Section 11
which shall, notwithstanding any such payment or payments, remain liable under
this Section 11 for the Obligations until the Obligations are paid in full and
the Commitments are terminated.
(d) The Company agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent or any Lender on
account of its liability hereunder, it will notify the Administrative Agent and
such Lender in writing that such payment is made under this Section 11 for such
purpose.
11.2 Right of Set-off. The Administrative Agent and each Lender is
----------------
hereby irrevocably authorized at any time and from time to time without notice
to the Company, any such notice being expressly waived by the Company, to set
off and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender (or any Affiliate of such
Lender) to or for the credit or the account of the Company, or any part thereof
in such amounts as the Administrative Agent or such Lender may elect, against or
on account of the obligations and liabilities of the Company to the
Administrative Agent or such Lender hereunder which are then due and payable and
claims of every nature and description of the Administrative Agent or such
Lender against the Company, in any currency, whether arising hereunder, under
any other Loan Document or otherwise in connection therewith, as the
Administrative Agent or such Lender may elect, whether or not the Administrative
Agent or such Lender has made any demand for payment. The Administrative Agent
and each Lender shall notify the Company
<PAGE>
69
promptly of any such set-off and the application made by the Administrative
Agent or such Lender, as the case may be, of the proceeds thereof; provided that
--------
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of the Administrative Agent and each Lender under
this subsection are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Administrative Agent or such
Lender may have.
11.3 No Subrogation. Notwithstanding any payment or payments made by
--------------
the Company under this Section 11, or any set-off or application of funds of the
Company by the Administrative Agent or any Lender, the Company shall not be
entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against the Borrowers or against any collateral security or guarantee
or right of offset held by the Administrative Agent or any Lender for the
payment of the Obligations, nor shall the Company seek or be entitled to seek
any contribution or reimbursement from the Borrowers in respect of payments made
by the Company hereunder, until all amounts owing to the Administrative Agent
and the Lenders by the Borrowers on account of the Obligations are paid in full
and the Commitments are terminated. If any amount shall be paid to the Company
on account of such subrogation rights at any time when all of the Obligations
shall not have been paid in full, such amount shall be held by the Company in
trust for the Administrative Agent and the Lenders, segregated from other funds
of the Company, and shall, forthwith upon receipt by the Company, be turned over
to the Administrative Agent in the exact form received by the Company (duly
indorsed by the Company to the Administrative Agent, if required), to be applied
paragraph shall survive the termination of this Agreement and the payment in
full of the Obligations and the termination of the Commitments.
11.4 Amendments, etc. with respect to the Obligations; Waiver of
-----------------------------------------------------------
Rights. The Company shall remain obligated under this Section 11
- ------
notwithstanding that, without any reservation of rights against the Company, and
without notice to or further assent by the Company, any demand for payment of
any of the Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender, and any of the Obligations
continued, and the Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and any Loan
Documents and any other documents executed and delivered in connection therewith
may be amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof as the Administrative Agent (or the
requisite Lenders, as the case may be) may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. None of the Administrative
Agent or any Lender shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
this Agreement or any property subject thereto. When making any demand under
this Section 11 against the Company, the Administrative Agent or any Lender
<PAGE>
70
may, but shall be under no obligation to, make a similar demand on the Borrowers
or any other guarantor, and any failure by the Administrative Agent or any
Lender to make any such demand or to collect any payments from the Borrowers or
any such other guarantor or any release of the Borrowers or such other guarantor
shall not relieve the Company of its obligations or liabilities under this
Section 11, and shall not impair or affect the rights and remedies, express or
implied, or as a matter of law, of the Administrative Agent or any Lender
against the Company. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
11.5 Guarantee Absolute and Unconditional. The Company waives any
------------------------------------
and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Agreement or acceptance of this Agreement; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Agreement; and all dealings between the Borrowers and the Company, on the one
hand, and the Administrative Agent and the Lenders, on the other, shall likewise
be conclusively presumed to have been had or consummated in reliance upon this
Agreement. The Company waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Borrowers and the
Company with respect to the Obligations. This Section 11 shall be construed as
a continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity, regularity or enforceability of this Agreement, any other Loan
Document, any of the Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Borrowers against the Administrative
Agent or any Lender, or (c) any other circumstance whatsoever (with or without
notice to or knowledge of the Borrowers or the Company) which constitutes, or
might be construed to constitute, an equitable or legal discharge of the
Borrowers for the Obligations, or of the Company under this Section 11, in
bankruptcy or in any other instance. When pursuing its rights and remedies
under this Section 11 against the Company, the Administrative Agent and any
Lender may, but shall be under no obligation to, pursue such rights and remedies
as it may have against the Borrowers or any other Person or against any
collateral security or guarantee for the Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent or any Lender to
pursue such other rights or remedies or to collect any payments from the
Borrowers or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any
release of the Borrowers or any such other Person or of any such collateral
security, guarantee or right of offset, shall not relieve the Company of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent or any Lender against the Company. This Section 11 shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon the Company and its successors and assigns, and shall inure to the
benefit of the Administrative Agent and the Lenders, and their respective
successors, indorsees, transferees and assigns, until all the Obligations and
the obligations of the Company under this Agreement shall have been satisfied by
payment in full
<PAGE>
71
and the Commitments shall be terminated, notwithstanding that from time to time
during the term of this Agreement the Borrowers may be free from any
Obligations.
11.6 Reinstatement. This Section 11 shall continue to be effective,
-------------
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by the Administrative Agent or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Borrower or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, any Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
11.7 Payments. The Company hereby agrees that all payments required
--------
to be made by it hereunder will be made to the Administrative Agent without set-
off or counterclaim in accordance with the terms of the Obligations, including,
without limitation, in the currency in which payment is due.
SECTION 12. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Loan made to it,
or any Reimbursement Obligations owing by it, when due in accordance with the
terms thereof or hereof; or any Borrower shall fail to pay any interest on Loans
made to it or any other amount payable by it hereunder, within five days after
notice from the Administrative Agent or any Lender that such interest or other
amount has become due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any Borrower
herein or which is contained in any certificate, document or financial or other
statement furnished at any time under or in connection with this Agreement shall
prove to have been incorrect in any material respect on or as of the date made
or deemed made; or
(c) Any Borrower shall default in the observance or performance of any
agreement contained in Subsection 9.10 or Section 10; or
(d) Any Borrower shall default in the observance or performance of any
other agreement contained in this Agreement (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days; or
(e) The Company or any one or more of its Subsidiaries constituting a
Material Entity shall (i) default in any payment of principal of or interest of
any Material Indebtedness (other than the Loans) or in the payment of any
Guarantee Obligation, beyond the period of grace (not to exceed 30 days), if
any, provided in the
<PAGE>
72
instrument or agreement under which such Material Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance of any
other agreement or condition relating to any such Material Indebtedness or
Guarantee Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Material Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Material Indebtedness to become due prior to
its stated maturity or such Guarantee Obligation to become payable; or
(f) (i) The Company or any one or more of its Subsidiaries constituting a
Material Entity shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Company or any one or more of its
Subsidiaries constituting a Material Entity shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced against the
Company or any one or more of its Subsidiaries constituting a Material Entity
any case, proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such adjudication
or appointment or (B) remains undismissed, undischarged or unbonded for a period
of 60 days; or (iii) there shall be commenced against the Company or any one or
more of its Subsidiaries constituting a Material Entity any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Company or any one or more of its Subsidiaries
constituting a Material Entity shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above; or (v) the Company or any one or more
of its Subsidiaries constituting a Material Entity shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Company or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate,
<PAGE>
73
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Company or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
could reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $2,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or
(i) The validity or enforceability of this Agreement or any of the
other Loan Documents shall be challenged by the Company or any of its
Subsidiaries or shall fail to remain in full force and effect for any
reason other than in accordance with its express terms; or
(j) A Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Company,
automatically the Revolving Credit Commitments and Swing Line Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement and the Notes (including,
without limitation, all Reimbursement Obligations, regardless of whether or not
such Reimbursement Obligations are then due and payable) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Company
declare the Revolving Credit Commitments and Swing Line Commitments to be
terminated forthwith, whereupon the Revolving Credit Commitments and Swing Line
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Company,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes to be due and payable
forthwith, whereupon the same shall immediately become due and payable. With
respect to all outstanding Reimbursement Obligations which have not matured at
the time of an acceleration pursuant to the second preceding paragraph, the
Company shall at such time deposit in a cash collateral account opened by and
maintained by the Administrative Agent an amount equal to the aggregate amount
of all such Reimbursement Obligations. Amounts held in such cash collateral
account shall be applied
<PAGE>
74
by the Administrative Agent to the payment of Reimbursement Obligations when
drawings under the related Letters of Credit are made, and any balance in such
account shall be applied to repay other obligations of the Company hereunder.
After all Reimbursement Obligations shall have been satisfied and all other
obligations of the Company hereunder shall have been paid in full, the balance,
if any, in such cash collateral account shall be promptly returned to the
Company. Except as expressly provided above in this Section 12, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 13. THE ADMINISTRATIVE AGENT; THE CO-AGENT
13.1 Appointment. Each Lender hereby irrevocably designates and
-----------
appoints Chase as the Administrative Agent of such Lender under this Agreement
and the other Loan Documents, and each Lender irrevocably authorizes Chase to
act as the Administrative Agent of such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent is hereby authorized by the Lenders to accept on their
behalf any security interests or guarantees granted by any of the Borrowers or
their Subsidiaries. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
13.2 Delegation of Duties. The Administrative Agent may execute any
--------------------
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
13.3 Exculpatory Provisions. Neither the Administrative Agent nor
----------------------
any of its respective officers, directors, employees, agents, attorneys-in-fact
or affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Borrower or any
officer thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of a Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any
<PAGE>
75
of the agreements contained in, or conditions of, this Agreement or any other
Loan Document or to inspect the properties, books or records of the Borrowers.
13.4 Reliance by Administrative Agent. The Administrative Agent
--------------------------------
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrowers or any of
them), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment or transfer
thereof shall have been filed with the Administrative Agent. The Administrative
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of
the Loans.
13.5 Notice of Default. The Administrative Agent shall not be deemed
-----------------
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or a
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that the Administrative Agent receives such a notice, the Administrative Agent
shall give notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until the
--------
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
13.6 Non-Reliance on Administrative Agent and Other Lender. Each
-----------------------------------------------------
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
any Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or
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76
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents 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 deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by an Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrowers which may come into the possession of the Administrative Agent or
any of its respective officers, directors, employees, agents, attorneys-in-fact
or affiliates.
13.7 Indemnification. Each Lender agrees to indemnify the
---------------
Administrative Agent and the Co-Agent in their respective capacities as such (to
the extent not reimbursed by the Borrowers and without limiting the obligation
of the Borrowers to do so), ratably according to its Revolving Credit Commitment
Percentage in effect on the date on which indemnification is sought from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans be imposed on, incurred by or asserted
against the Administrative Agent or the Co-Agent in any way relating to or
arising out of this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent or the Co-Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
--------
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent or the Co-Agent.
The agreements in this subsection shall survive the payment of the Loans and all
other amounts payable hereunder.
13.8 Administrative Agent in its Individual Capacity. The
-----------------------------------------------
Administrative Agent, the Co-Agent and their affiliates may make loans to,
accept deposits from and generally engage in any kind of business with the
Borrowers as though the Administrative Agent or the Co-Agent were not the
Administrative Agent and Co-Agent, respectively, hereunder and under the other
Loan Documents. With respect to the Loans made or renewed by the Administrative
Agent or the Co-Agent, and any Note issued to either of them, the Administrative
Agent and the Co-Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though they were not the Administrative Agent and Co-Agent, respectively, and
the terms "Lender" and "Lenders" shall include the Administrative Agent and the
Co-Agent in their individual capacities.
13.9 Successor Administrative Agent. The Administrative Agent may
------------------------------
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor administrative
<PAGE>
77
agent for the Lenders, which successor administrative agent shall, unless an
Event of Default is continuing, be approved by the Company, whereupon such
successor administrative agent shall succeed to the rights, powers and duties of
the resigning Administrative Agent, and the term "Administrative Agent" shall
mean such successor administrative agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties as the
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any resigning Administrative
Agent's resignation as the Administrative Agent the provisions of this
subsection shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under this Agreement and the
other Loan Documents.
13.10 The Co-Agent. Each Lender and the Co-Agent acknowledges that
------------
the Co-Agent, in such capacity, shall have no duties or responsibilities, and
shall incur no liabilities, under this Agreement or the other Loan Documents in
its capacity as such.
SECTION 14. MISCELLANEOUS
14.1 Amendments and Waivers. (a) Neither this Agreement or any
----------------------
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this subsection 14.1. The Required Lenders may, or, with the written consent of
the Required Lenders, the Administrative Agent may, from time to time, (i) enter
into with the Borrowers written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights or
obligations of the Lenders or of the Borrowers hereunder or thereunder or (ii)
waive at the Borrowers' request, on such terms and conditions as the Required
Lenders or the Administrative Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
--------
however, that no such waiver and no such amendment, supplement or modification
- -------
shall:
(A) reduce the amount or extend the scheduled date of maturity of
any Loan of any scheduled installment thereof, or reduce the stated rate of
any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount, extend the expiration date of any
Lender's Revolving Credit Commitment, amend, modify or waive any provision
of subsection 6.8 or amend, modify or waive any provision of subsection
3.5, in each case without the consent of each Lender affected thereby;
(B) amend, supplement, modify or waive any provision of this
subsection 14.1 or reduce the percentage specified in the definition of
"Required Lenders" or consent to the assignment or transfer by any Borrower
of any of its rights and obligations under this Agreement and the other
Loan Documents or release all or
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78
substantially all of the Guarantors or release all or substantially all of
the Pledged Stock, in each case without the consent of all the Lenders;
(C) amend, supplement, modify or waive any provision of Section 3 or
any other provision of this Agreement governing the rights and obligations
of the Swing Line Lenders; or the definitions used therein without the
consent of the Swing Line Lenders;
(D) extend the expiry date on any Letter of Credit beyond the
Revolving Credit Termination Date without the consent of each Lender.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 14.1 shall apply to each of the Lenders and shall be binding upon the
Borrowers, the Lenders, the Administrative Agent, and all future holders of the
Loans and the Reimbursement Obligations. In the case of any waiver, the
Borrowers, the Lenders and the Administrative Agent shall be restored to their
former positions and rights hereunder and under the other Loan Documents, and
any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), Schedule II may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries of the Company
as additional Foreign Subsidiary Borrowers upon (A) execution and delivery
by the Company, any such Foreign Subsidiary Borrower and the Administrative
Agent, of a Joinder Agreement providing for any such Subsidiary to become a
Foreign Subsidiary Borrower, (B) execution and delivery of a Foreign
Subsidiary Guarantee by each Subsidiary of such Foreign Subsidiary
Borrower, and (C) delivery to the Administrative Agent of (I) a Foreign
Subsidiary Opinion in respect of such additional Foreign Subsidiary
Borrower and (II) such other documents with respect thereto as the
Administrative Agent shall reasonably request.
(ii) Schedule II will be amended to remove any Subsidiary as a
Foreign Subsidiary Borrower upon (A) written notice by the Company to the
Administrative Agent to such effect and (B) repayment in full of all
outstanding Loans of such Foreign Subsidiary Borrower.
(c) The Administrative Agent shall give prompt notice to each Lender
of any amendment effected pursuant to subsection 14.1(b).
14.2 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or three days
after being deposited in the mail, postage prepaid (certified mail, return
receipt requested), or two days after being sent by a nationally
<PAGE>
79
recognized overnight courier, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Borrowers and the Administrative Agent,
and as set forth in Schedule I in the case of the other parties hereto, or to
such other address as may be hereafter notified by the respective parties hereto
and any future holders of the Notes:
The Company: Bush Industries, Inc.
Mason Drive Industrial Park
P.O. Box 460
Jamestown, New York 14702-0460
Attention: Mr. Robert L. Ayres
Telephone: (716) 665-2000
Facsimile: (716) 665-1192
The Foreign
Subsidiary Borrowers: c/o
Bush Industries, Inc.
Mason Drive Industrial Park
P.O. Box 460
Jamestown, New York 14702-046
Attention: Mr. Robert L. Ayres
Telephone: (716) 665-2000
Facsimile: (716) 665-1192
With a copy to the Company at
its address set forth above
The Administrative Agent
(New York Office): The Chase Manhattan Bank
Loan and Agency Services
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Janet Belden
Telephone: (212) 552-7277
Facsimile: (212) 552-5658
<PAGE>
80
With a copy to:
The Chase Manhattan Bank
2300 Main Place Tower
Buffalo, New York 14202
Attention: Robert McArdle
Telephone: (716) 858-1418
Facsimile: (716) 843-4939
The Administrative Agent
(London Office): Chase Manhattan International Limited
Trinity Tower
9 Thomas Moore Street
London, England E1 94T
Attention: Steven Clark or Steven
Hurford
Telephone: 44 171 777 2353
Facsimile: 44 171 777 3846
With a copy to:
The Chase Manhattan Bank
2300 Main Place Tower
Buffalo, New York 14202
Attention: Robert McArdle
Telephone: (716) 858-1418
Facsimile: (716) 843-4939
provided that any notice, request or demand to or upon (i) the Administrative
- --------
Agent or the Lenders pursuant to subsection 2.3, 3.2, 4.3, 5.2, 6.2, 6.4, 6.7,
or 6.11 or (ii) the Swing Line Lender pursuant to Section 3, shall not be
effective until received. All notices to the Administrative Agent in respect of
Multicurrency Loans shall be to the Administrative Agent's London Office
specified above .
14.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of any Borrower, the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder or under the other
Loan Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
14.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder and in any certificate delivered pursuant hereto
shall survive the
<PAGE>
81
execution and delivery of this Agreement and the Notes and the making of the
Loans hereunder.
14.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or
-----------------------------
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation, execution
and delivery of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation of the transactions
contemplated hereby, including, without limitation, the reasonable fees and
disbursements of counsel (and any special or local counsel retained by such
counsel to assist it) to the Administrative Agent, provided that the out of
--------
pocket expenses of the Administrative Agent be limited as provided in the
commitment letter between the Company and The Chase Manhattan Bank related to
this transaction (b) to pay indemnify, hold harmless or reimburse each Lender
and the Administrative Agent for all its costs and expenses incurred (including,
without limitation, reasonable attorney's fees and expenses and court costs) in
connection with any default by the Company or any other Borrower hereunder or
under any other Loan Document and in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, (d) to pay, indemnify, hold harmless or reimburse Mellon for any and
all fees, expenses, disbursements or other costs (including, without limitation,
reasonable attorney's fees) incurred by, or assessed or asserted against, Mellon
in connection with the termination of the Existing Credit Agreement, and (e) to
indemnify and hold harmless each Lender and the Administrative Agent, their
affiliates and their respective officers, directors, employees, advisors, and
agents (each, an "indemnified person") from and against any and all losses,
------------------
claims, damages and liabilities to which any such indemnified person may become
subject arising out of or in connection with this the Agreement, Loan Documents,
the use of the proceeds or any related transaction or any claim, litigation,
investigation or proceeding relating to any of the foregoing, regardless of
whether any indemnified person is a party thereto, and to reimburse each
indemnified person upon demand for any reasonable legal or other reasonable
expenses incurred in connection with investigating or defending any of the
foregoing, provided that the foregoing indemnity will not, as to any
--------
indemnified person, apply to losses, claims, damages, liabilities or related
expenses to the extent they are found by a final, non-appealable judgment of a
court to arise from the willful misconduct or gross negligence of such
indemnified person. No indemnified person shall be liable for any indirect or
consequential damages in connection with its activities related to any of the
Loan Documents. An indemnified person shall not enter into any settlement or
consent to the entry of any judgment with respect to any matter as to which the
afore-described indemnification relates without your prior written
consent, which consent shall not be unreasonably withheld. In addition, an
indemnified person shall take whatever action is necessary to prevent the entry
of a default judgment, unless otherwise previously
<PAGE>
82
agreed to by you in writing. An indemnified person shall give you prompt written
notice of any matter that arises as to which such indemnified person may be
entitled to indemnification, provided, however, that any failure on the part of
an indemnified party to so notify you promptly shall not relieve you of any
obligation or liability hereunder, unless and to the extent that you are damaged
by such failure or delay. An indemnified person shall cooperate with you with
respect to the defense of any third party claim or action. In addition, and
notwithstanding the foregoing, with respect to any claim or action initiated or
instituted by you against an indemnified person for willful misconduct or gross
negligence, the obligation to so indemnify such person and to reimburse such
indemnified person upon demand prior to a final non-appealable judgment of a
court as to such willful misconduct or gross negligence shall not be binding
upon you. The agreements in this subsection shall survive repayment of the Loans
and all other amounts payable hereunder.
14.6 Successors and Assigns; Participations and Assignments. (a)
------------------------------------------------------
This Agreement shall be binding upon and inure to the benefit of the Borrowers,
the Lenders, the Administrative Agent, all future holders of the Loans, the
Reimbursement Obligations and their respective successors and assigns, except
that no Borrower may assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
------------
owing to such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the
Borrowers and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. No Lender shall
be entitled to create in favor of any Participant, in the participation
agreement pursuant to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Loan Document except for those specified
in clauses (A) and (B) of the proviso to subsection 14.1. Each Borrower agrees
that if amounts outstanding under this Agreement are due or unpaid, or shall
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement; provided that, in
--------
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in subsection
14.7(a) as fully as if it were a Lender hereunder. Each Borrower agrees that
each Participant shall be entitled to the benefits of subsections 6.10, 6.11,
6.12 and 6.13 with respect to its participation in the Commitments and the Loans
outstanding from time to time hereunder as if it was a Lender; provided that, in
--------
the case of
<PAGE>
83
subsection 6.11, such Participant shall have complied with the requirements of
said subsection and provided, further, that no Participant shall be entitled to
-------- -------
receive any greater amount pursuant to any such subsection than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any Affiliate thereof or, with the prior written
consent of the Company (such consent not to be unreasonably withheld) and the
Administrative Agent (such consent not to be unreasonably withheld), to an
additional bank or financial institution (an "Assignee") all or any part of its
--------
rights and obligations under this Agreement and the other Loan Documents
including, without limitation, its Commitments and Loans, pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit G, executed by
such Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the Company and the Administrative
Agent) and delivered to the Administrative Agent for their acceptance and
recording in the Register; provided that (i) if any Lender assigns a part of
--------
its rights and obligations in respect of Revolving Credit Loans and/or
Revolving Credit Commitment under this Agreement to an Assignee, such Lender
shall assign proportionate interests in their respective Revolving Credit Loans
and Revolving Credit Commitment and other related rights and obligations
hereunder to such Assignee, (ii) if any Lender assigns a part of its rights and
obligations under this Agreement in respect of its Revolving Credit Loans and/or
Revolving Credit Commitments to an Assignee, such Lender shall assign
proportionate interests in (A) its participations in the Swing Line Loans and
other rights and obligations hereunder in respect of the Swing Line Loans to
such Assignee and (B) Multicurrency Loans, (iii) in the case of any such
assignment to an additional bank or financial institution, the aggregate amount
of any Revolving Credit Commitment (or, if the Revolving Credit Commitments have
terminated or expired, the aggregate principal amount of any Revolving Credit
Loans) being assigned shall not be less than $5,000,000 (or (x) if less, the
then outstanding amount of such Commitments and/or Loans or (y) such lesser
amount as may be agreed by the Borrowers and the Administrative Agent), and
after giving effect to such assignment such assignor Lender, if its retains any
Revolving Credit Commitment and Loans, shall retain a Revolving Credit
Commitment and Loans aggregating at least $10,000,000. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (I) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with Commitments, rights
in respect of Loans as set forth therein, and (II) the assigning Lender
thereunder shall be released from its obligations under this Agreement to the
extent that such obligations shall have been expressly assumed by the Assignee
pursuant to such Assignment and Acceptance (and, in the case of an Assignment
and Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such assigning Lender shall cease
to be a party hereto). Notwithstanding the foregoing, no consent of the Company
shall be required for any assignment effected while an Event of Default under
Section 12(f) is in existence.
<PAGE>
84
(d) The Administrative Agent, on behalf of the Borrowers, shall
maintain at its address referred to in subsection 14.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
--------
recordation of (i) the names and addresses of the Lenders and the Commitments
of, and principal amounts of the Loans owing to, each Lender from time to time
and (ii) the other information required from time to time pursuant to subsection
3.1 in respect of Swing Line Loans. The entries in the Register shall constitute
prima facie evidence of the information recorded therein, and the Borrowers, the
Administrative Agent and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Loan Documents, notwithstanding any notice to the contrary. Any assignment of
any Loan or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the Borrowers or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, executed by the Borrowers and the
Administrative Agent), together with payment to the Administrative Agent of a
registration and processing fee of $2,500 (except in the case of an Assignee
that is an Affiliate of a lender, in which case the registration and processing
fee of $2,500 is waived), the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give prompt notice of such acceptance and recordation to the Lenders and the
Borrowers.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
----------
which has agreed to maintain the confidentiality of information provided to it
pursuant to subsection 14.17 any and all financial information in such Lender's
possession concerning such Borrower and its Affiliates which has been delivered
to such Lender by or on behalf of such Borrower pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of such Borrower in
connection with such Lender's credit evaluation of such Borrower and its
Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
(h) If, pursuant to this subsection, any interest in this Agreement
or any Loan is transferred to any Transferee (which is a Lender) which is
organized under the laws of any jurisdiction other than the United States or any
state thereof, the transferor Lender shall cause such Transferee, concurrently
with the effectiveness of such transfer, to agree (for the benefit of the
transferor Lender, the Administrative Agent and the Company) to provide the
transferor
<PAGE>
85
Lender (and, in the case of any Transferee registered in the Register, the
Administrative Agent and the Company) the tax forms and other documents required
to be delivered pursuant to subsection 6.11(b) and to comply from time to time
with all applicable U.S. laws and regulations with regard to such withholding
tax exemption.
(i) If, pursuant to this subsection, any interest in this Agreement
or any Loan is transferred to any Transferee, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to agree
(for the benefit of the transferor Lender, the Administrative Agent and the
Foreign Subsidiary Borrowers) to provide the transferor Lender, the
Administrative Agent and the Foreign Subsidiary Borrowers the tax forms and
other documents required to be delivered pursuant to subsection 6.11(c) and to
comply from time to time with all applicable laws and regulations with regard to
such withholding tax exemption.
14.7 Adjustments; Set-Off. (a) If any Lender (a "Benefitted
-------------------- ----------
Lender") shall at any time receive any payment of all or part of its Loans then
- ------
due and owing to it by any Borrower, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 12(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans
then due and owing to it by such Borrower, or interest thereon, such Benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loans owing to it by such Borrower,
or shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders; provided, however, that if all or any portion of such
-------- -------
excess payment or benefits is thereafter recovered from such benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to any Borrower, any
such notice being expressly waived by the Borrowers to the extent permitted by
applicable law, upon any amount becoming due and payable hereunder (whether at
the stated maturity thereof, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch, agency or Affiliate thereof to or for the
credit or the account of any Borrower. Each Lender agrees promptly to notify
the Borrowers and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such notice
--------
shall not affect the validity of such set-off and application.
14.8 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one
<PAGE>
86
and the same instrument. A set of the copies of this Agreement signed by all the
parties shall be delivered to the Borrowers and the Administrative Agent.
14.9 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14.10 Integration. This Agreement and the other Loan Documents
-----------
represent the agreement of the Borrowers, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrowers, the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
14.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
-------------
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
14.12 Submission To Jurisdiction; Waivers. (a) The Company and each
-----------------------------------
Foreign Subsidiary Borrower hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company or such Foreign Subsidiary Borrower, as the case
may be, at the address specified in subsection 14.2, or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction.
<PAGE>
87
(b) Each party to this Agreement waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal action
or proceeding referred to in this subsection any special, exemplary, punitive or
consequential damages.
(c) Each Foreign Subsidiary Borrower hereby irrevocably appoints the
Company as its agent for service of process in any proceeding referred to in
subsection 14.12(a) and agrees that service of process in any such proceeding
may be made by mailing or delivering a copy thereof to it care of the Company at
its address for notices set forth in subsection 14.2.
14.13 Acknowledgements. Each Borrower hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agent or any Lender has any fiduciary
relationship with or duty to such Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the Administrative Agents and the Lenders, on the one
hand, and the Borrowers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrowers and the Lenders.
14.14 WAIVERS OF JURY TRIAL. THE BORROWERS, THE ADMINISTRATIVE AGENT
---------------------
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
14.15 Power of Attorney. Each Foreign Subsidiary Borrower hereby
-----------------
grants to the Company an irrevocable power of attorney to act as its attorney-
in-fact with regard to matters relating to this Agreement and each other Loan
Document, including, without limitation, execution and delivery of any
amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of process
in connection herewith or therewith. Each Foreign Subsidiary Borrower hereby
explicitly acknowledges that the Administrative Agents and each Lender have
executed and delivered this Agreement and each other Loan Document to which it
is a party, and has performed its obligations under this Agreement and each
other Loan Document to which it is a party, in reliance upon the irrevocable
grant of such power of attorney pursuant to this subsection. The power of
attorney granted by each Foreign Subsidiary Borrower hereunder is coupled with
an interest.
<PAGE>
88
14.16 Judgment. (a) If for purpose of obtaining judgment in any court
--------
it is necessary to convert a sum due hereunder in one currency into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange operation for the first currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from it
to any Lender hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
- ------------------
accordance with the applicable provisions of this Agreement (the "Agreement
---------
Currency"), be discharged only to the extent that on the Business Day following
- --------
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, such Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to promptly remit to such Borrower such excess.
14.17 Confidentiality. Each Lender agrees to keep confidential any
---------------
written information (a) provided to it by or on behalf of the Company or any of
its Subsidiaries pursuant to or in connection with this Agreement or (b)
obtained by such Lender based on a review of the books and records of the
Company or any of its Subsidiaries; provided that nothing herein shall prevent
any Lender from disclosing any such information (i) to the Administrative Agent
or any other Lender, (ii) to any Transferee or prospective Transferee which
agrees to comply with the provisions of this subsection, (iii) to its employees,
directors, agents, attorneys, accountants and other professional advisors, (iv)
upon the request or demand of any Governmental Authority having jurisdiction
over such Lender or as shall be required pursuant to any Requirement of Law, (v)
in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (vi) in connection
with any litigation to which such Lender is a party, (vii) which has been
publicly disclosed other than in breach of this Agreement, or (viii) to the
extent reasonably necessary, in connection with the exercise of any remedy
hereunder.
<PAGE>
89
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
BUSH INDUSTRIES, INC.
By: /s/ Robert L. Ayres
---------------------------------------
Title: EVP, COO, CFO
THE CHASE MANHATTAN BANK, as
Administrative Agent and a Lender
By: /s/ Robert McArdle
---------------------------------------
Title: Vice President
MELLON BANK, N.A., as CoAgent and a Lender
By: /s/ Michael R. Zaksheske
---------------------------------------
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Jane W. Workman
---------------------------------------
Title: Senior Vice President
SUNTRUST BANK, ATLANTA
By: /s/ Lara L. McGinty
---------------------------------------
Title: Banking Officer
By: /s/ Maria C. Mamilovich
---------------------------------------
Title: Vice President
<PAGE>
90
CORESTATES BANK, N.A.
By: /s/ John D. Brady
--------------------------------
Title: Assistant Vice President
NATIONAL CITY BANK OF PENNSYLVANIA
By: /s/ William A. Feldmann
--------------------------------
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By: /s/ J. Alan Edwards
--------------------------------
Title: Authorized Signatory
BAYERISCHE VEREINSBANK AG,
NEW YORK BRANCH
By: /s/ Hans Dick
--------------------------------
Title: Vice President
By: /s/ Ralfe Enke
--------------------------------
Title: Assistant Treasurer
<PAGE>
Annex I
Pricing Grid
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<TABLE>
<CAPTION>
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Consolidated Applicable
Leverage Ratio Margin Commitment Fee Rate
-------------- ------ -------------------
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<S> <C> <C>
Greater than 2.50 to 1.00 1.00% .20%
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Greater than 1.75 to 1.00 .75% .15%
but Less than or equal to 2.50 to 1.00
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Greater than 1.50 to 1.00 .625% .125%
but Less than or equal to 1.75 to 1.00
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Greater than 1.00 to 1.00 .50% .125%
but Less than or equal to 1.50 to 1.00
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Less than or equal to 1.00 to 1.00 .375% .10%
- -------------------------------------------------------------------------------
</TABLE>
<PAGE>
STOCK REDEMPTION AGREEMENT
--------------------------
This STOCK REDEMPTION AGREEMENT (the "Agreement") is made as of this 10th
day of July, 1997, by and between BUSH INDUSTRIES, INC., a Delaware corporation
with its principal place of business at One Mason Drive, Jamestown, New York
14702 (the "Corporation"), and PAUL S. BUSH, One Mason Drive, Jamestown, New
York 14702 (the "Shareholder").
W I T N E S S E T H:
WHEREAS, the Shareholder is currently a principal shareholder of the
Corporation, and owns of record and/or beneficially shares of the Corporation's
Class A Common Stock, $.10 par value per share (the "Class A Shares") and
shares of the Corporation's Class B Common Stock, $.10 par value per share (the
"Class B Shares") (hereinafter the Class A Shares and the Class B Shares are
collectively referred to as the "Shares");
WHEREAS, the Corporation is desirous of protecting the Corporation and its
stockholders by attempting to reduce the possibility that any future personal
representative of the estate of the Shareholder and certain other persons would
be required to sell large blocks of the Corporation's Shares, either in open
market or in privately negotiated transactions, in order to fund debts and
expenses of any such future estate;
WHEREAS, the parties hereto believe that the interests of the Corporation's
shareholders would be protected and that shareholder valuation would be
preserved and enhanced if the parties hereto currently provide for a possible
orderly mechanism in the event that the personal representative of the future
estate of the Shareholder and certain other persons are required to sell large
blocks of Shares to pay federal and state taxes and other expenses;
WHEREAS, the parties hereto believe that it is in the best interests of the
Corporation and its shareholders that the afore-described beliefs and goals of
the Corporation can be best achieved if the Corporation and the Shareholder
currently provide for the redemption by the Corporation of Shares owned by the
estate of the Shareholder and certain other persons after the death of the
Shareholder; and
WHEREAS, the Corporation has procured insurance of the life of the
Shareholder to fund any such redemption, upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
<PAGE>
1. Purchase from Personal Representative
-------------------------------------
(a) Following the death of the Shareholder, the Personal
Representative shall have the right to sell to the Corporation, from time to
time, upon written demand ("Demand") to the Corporation by the Personal
Representative and subject to the terms, conditions and limitations set forth in
this Agreement, the number of Shares designated by the Personal Representative.
Any such Demand shall be irrevocable, and shall set forth the amount of Shares
which the Personal Representative desires that the Corporation purchase from the
Personal Representative, provided that the Corporation shall not be required to
purchase hereunder any Shares which the Personal Representative purchased from
any party subsequent to the Shareholder's death, excluding any Shares acquired
by the Personal Representative upon exercise or conversion of derivative
securities, including without limitation, options and/or warrants. For the
purposes of this Agreement, the term "Personal Representative" shall include the
following acting together as a group: (i) the executors or administrators of the
Shareholder's estate; (ii) the trustees of any trust created by Shareholder
(either at the Shareholder's death or during the Shareholder's lifetime); and
(iii) any person the distribution to whom would qualify under Section 303(b)(3)
of the Internal Revenue Code of 1986, as amended (the "Code") in accordance with
Reg. 1.303-2 (f), promulgated under the Code.
(b) Any Shares to be redeemed hereunder shall be redeemed by the
Corporation pursuant to the terms, conditions and limitations contained herein,
at such price per Share, as set forth and determined pursuant to Section 2 of
this Agreement. Notwithstanding anything contained herein to the contrary, the
parties hereto hereby agree that the aggregate amount of such Shares which the
Corporation is required hereunder to redeem from the Personal Representative
shall not exceed an amount of Shares which have an aggregate redemption price
greater than the difference between (i) the aggregate proceeds ("Proceeds")
received by the Corporation from the life insurance policies procured on the
life of the Shareholder (listed in Exhibit A attached hereto) and (ii) any
taxes, expenses or other costs incurred by the Corporation, including, without
limitation any alternative minimum taxes, which the Corporation may be subject
to or incur as a consequence of receiving insurance proceeds upon the death of
the Shareholder. The parties agree that, if requested by the Personal
Representative, the Corporation may, at its option, redeem Shares in excess of
the limit of the aggregate amount of Shares required to be redeemed under this
Section 1(b).
(c) The parties hereto hereby agree that the Personal Representative
can request the Corporation to redeem Shares hereunder up until the time period
permitted to pay estate taxes, as set forth in Section 6166 of the Code,
provided that such time period under Section 6166 is so elected by the Personal
Representative.
(d) The parties hereto hereby agree that the Corporation is only
required to redeem such amount of Shares as requested by the Personal
Representative, subject to the conditions and limitations set forth herein, and
that the Personal Representative is not obligated to request that the
Corporation redeem any such Shares.
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<PAGE>
(e) The parties hereto also agree that the Personal Representative, in
its sole discretion, shall designate, if applicable, how many Shares of each
class, that the Personal Representative will tender to the Corporation for
redemption, if any.
2. Purchase Price.
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(a) The purchase price of each share of Class A Shares and/or Class B
Shares to be purchased by the Corporation pursuant to this Agreement shall be
equal to the fair market value per share of the Class A Common Stock as provided
below.
(b) The fair market value per share of the Corporation's Class A
Common Stock shall be deemed to be the average of the closing price of the
Corporation's Class A Common Stock, as quoted on the New York Stock Exchange (or
on any other exchange which such shares are then regularly traded, if such
shares are not then traded on the New York Stock Exchange) for the thirty (30)
consecutive trading days for which quotations are readily available which
precede the date of a closing. In the event such shares of Class A Common Stock
are then traded on the over-the-counter market or such other exchange or market
for which closing prices are not regularly available then the fair market value
per share of the Corporation's Class A Common Stock shall be deemed to be the
average of the high and low sales prices of the Corporation's Class A Common
Stock for each trading day for the thirty (30) consecutive trading days for
which quotations are readily available which precede the date of such closing.
(c) In the event that such shares of Class A Common Stock are not then
quoted or traded on an exchange, the over-the-counter market or other market for
which sales prices are available, then the fair market value shall be determined
by an independent appraiser selected by the Corporation. If the Personal
Representative objects to the appraiser selected by the Corporation, then the
Personal Representative shall select an appraiser and each of those appraisers
shall select a third appraiser who shall perform the appraisal, which shall be
binding on the parties. The cost of the appraisal shall be borne equally by the
Corporation and the Personal Representative. The valuation shall be made as of
a date within thirty (30) days prior to any such closing.
3. Time of Closing.
----------------
(a) The closing or closings of the redemption and purchase of the
Shares required pursuant to Section 1 of this Agreement shall occur within
thirty (30) days of the Corporation's receipt of a Demand for a closing, but not
earlier than the receipt of Proceeds by the Corporation.
(b) The parties hereto hereby agree that the Personal Representative
shall not be entitled to any interest payments on the Proceeds received by the
Corporation pending any such closing with respect to the redemption of the
Shares.
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<PAGE>
(c) The payment of the purchase price for the Shares being acquired
pursuant to this Agreement shall be made by the Corporation by wire transfer or
certified or bank cashier's check of immediately available funds, as instructed
by the Personal Representative, against delivery by the Personal Representative
of a certificate or certificates for the Shares being redeemed pursuant to this
Agreement, with signatures medallion guaranteed. The Personal Representative
shall also represent in writing to the Corporation at the time of such closing
that Shares are then free and clear of any liens or encumbrances of any kind,
whatsoever.
4. No Capital Impairment. Notwithstanding anything to the contrary
----------------------
contained in this Agreement, no purchase of the Shares shall be made by the
Corporation hereunder from the Personal Representative if the capital of the
Corporation is then impaired or if the redemption would cause any impairment of
the capital of the Corporation, within the meaning of Section 160 of the
Delaware General Corporation Law or any similar applicable statute or if the
Corporation is then insolvent or the purchase would render the Corporation
insolvent. The Corporation shall not be liable to any person for any failure to
purchase Shares by reason of the prohibition set forth herein.
5. Compliance with Laws and Applicable Loan Agreements. Notwithstanding
----------------------------------------------------
anything to the contrary contained herein, the Corporation is under no
obligation to purchase any Shares, if, in the opinion of the Corporation or its
counsel, to do so would (i) violate any applicable federal or state laws or
regulations, including, but not limited to, applicable federal and state
securities laws and regulations or (ii) violate or result in an event of
default and/or acceleration of payment of indebtedness under the provisions of
any loan agreements to which the Corporation or any of its subsidiaries are a
party or their assets are subject, including, but not limited to, the triggering
of any change of control provision.
6. Insurance Proceeds. The parties hereto hereby agree that they will
------------------
use their best efforts to maintain on behalf of the life of the Shareholder,
with the Corporation designated as the beneficiary, life insurance policies in a
face amount not less than $21,400,000. The Shareholder further agrees to use his
best efforts to comply with any requests of the insurance carriers in order that
the Corporation is able to maintain such policies in effect. The obligations of
the Corporation hereunder shall terminate with no liability in the event the
Corporation is unable to maintain such policies or collect under such policies
based upon any action or inaction on the part of or on behalf of the
Shareholder.
7. Sale of Shares. The parties hereto hereby agree that subsequent to a
--------------
Demand by the Personal Representative, as described above, and subject to the
terms, conditions, and limitations set forth herein, pending the closing of the
purchase of the Shares by the Corporation, the Personal Representative cannot
sell or otherwise dispose, hypothecate, pledge, lien or otherwise convey such
Shares, which are subject to such Demand, to a third party.
8. Notices. All notices to be given or made under this Agreement shall
-------
be effected by either registered or certified mail, postage prepaid, return
receipt requested and shall be deemed given three (3) days after being mailed as
provided herein. In the alternative, notice may be
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<PAGE>
effectuated by facsimile transmission with confirmation of receipt generated
simultaneously therewith followed by a mailing by regular United States mail,
and shall be deemed given when such facsimile transmission is received. Notice
may also be given by overnight delivery or personal delivery and shall be deemed
given when received by the party to whom addressed, as evidenced by receipt of
delivery of such notice. Mailed notice shall be addressed to the parties who
have signed this Agreement as their addresses appear herein Each party may
change its address by providing written notice in accordance with this section.
9. Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and shall be binding upon the Corporation, its successors and assigns,
including, but not limited to, any corporation or other entity which may acquire
all or substantially all of the Corporation's assets and business or with or
into which the Corporation may be consolidated or merged, and upon the
Shareholder and the Personal Representative. The obligation of the surviving
corporation in any consolidation or merger to which the Corporation is a party
or of any corporation to which the Corporation may assign all or substantially
all of its assets or business shall be to purchase from the Personal
Representative, the Shares called for by Section 1 of this Agreement, or that
class or series of securities, beneficially owned by Shareholder, at the date of
his death, which was received in respect of the Shares.
10. Governing Law. This Agreement shall be deemed to be made in the State
-------------
of New York and shall be governed by and construed under the laws thereof,
without application to the principles of conflicts of laws.
11. Severability. The invalidity or unenforceability of any provision of
------------
this Agreement shall not effect the other provisions hereof and the Agreement
shall be construed in all respects as if such invalid or unenforceable provision
were omitted.
12. Entire Agreement. This Agreement constitutes the entire agreement of
----------------
the parties with respect to the subject matter hereof. It may be changed only
by an agreement in writing signed by the parties hereto.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date and year first written above.
BUSH INDUSTRIES, INC., a Delaware
corporation
By: /s/ Robert L. Ayres
-----------------------------------------
Robert L. Ayres, Chief Financial Officer,
Chief Operating Officer
and Executive Vice President
/s/ Paul S. Bush
-----------------------------------------
PAUL S. BUSH, Individually
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