SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________________________________
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
and
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(AMENDMENT NO. 1)
______________________________________________
NEOLENS, INC.
(Name of Subject Company)
SOLA ACQUISITION CORP.
a wholly owned subsidiary of
SOLA INTERNATIONAL INC.
(Bidder)
_____________________________________________
Common Stock, $.001 Par Value
Series A Convertible Preferred Stock, $.001 Par Value
Series B Convertible Preferred Stock, $.001 Par Value
(Titles of Classes of Securities)
640903308
(CUSIP Number of Class of Securities) (Common Stock)
John Heine
Sola International Inc.
2420 Sand Hill Road
Suite 200
Menlo Park, CA 94025
(Name, address and telephone number of person authorized to
receive notices and communications on behalf of bidder)
Copies to:
Peter Golden, Esq.
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004 - 1980
(212) 859-8000
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sola International Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(SEE INSTRUCTIONS)
(a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCES OF FUNDS (SEE INSTRUCTIONS)
WC, BK
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(e) OR 2(f).
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
773,975 shares of Common Stock (see Item 6)
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 7
EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
/ /
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 7
11.2% (see Item 6)
10 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
This Amendment No. 1 amends and supplements the Tender
Offer Statement on Schedule 14D-1 and Schedule 13D filed on June
5, 1996, relating to a tender offer by Sola Acquisition Corp., a
Florida corporation and a wholly owned subsidiary of Sola
International Inc., a Delaware corporation, to purchase all
outstanding shares of (i) Common Stock, par value $.001 per
share, (ii) Series A Convertible Preferred Stock, par value $.001
per share and (iii) Series B Convertible Preferred Stock, par
value $.001 per share, of Neolens, Inc., a Florida corporation,
at a purchase price of $1.14 per share of Common Stock, $25.20
per share of Series A Preferred and $41.09 per share of Series B
Preferred, in each case net to the seller in cash.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE
SUBJECT COMPANY.
Item 3 is hereby amended to add the following:
(a) and (b) Parent has not exercised its right prior to March 31,
1996, to convert its semi-exclusive arrangement under a
distribution Agreement with the Company relating to the
distribution of the Company's existing polycarbonate lenses into
an exclusive arrangement. However, Parent and the Company have
agreed to extend Parent's right to convert to an exclusive
arrangement until the earlier to occur of (i) the consummation of
the Merger (as defined in the Offer to Purchase) and (ii) the
termination of the Merger Agreement, (as defined in the Offer to
Purchase).
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 4 is hereby amended to add the following:
(a) and (b) The funds necessary for the consummation of the Offer
and the Merger will be obtained either from Parent's working
capital or a new Multicurrency Credit Agreement (the
"Multicurrency Credit Agreement") dated as of June 14, 1996,
among Parent certain subsidiaries of Parent, as borrowers,
certain subsidiaries of Parent, as guarantors, the Bank of
America National Trust and Savings Association, as Agent, The
First National Bank of Boston and The Bank of Nova Scotia, as Co-
Agents and a syndicate of other financial institutions, providing
for (i) a five-year term loan of U.S. $30 million (the "Term
Loan"), (ii) a renewable three-year foreign currency revolving
facility of the equivalent of U.S. $30 million (the "Tranche A
Revolving Loans") and (iii) and a five-year year revolving
facility of U.S. $120 million (the "Tranche B Revolving Loans").
The Tranche B Revolving Loan includes a sub-facility of Swing
Line Loans (the "Swing Line Loans"), in an amount not to exceed
U.S. $5,000,000, and a sub-facility for Letters of Credit in an
amount not to exceed U.S. $10,000,000. The Term Loan and the
Tranche B Revolving Loans are referred to as the "Domestic
Loans." The Multicurrency Credit Agreement is unsecured. The
final maturity of the Domestic Loans is May 31, 2001. The final
maturity of the Tranche A Revolving Loans is May 31, 1999, which
may be extended until a date no later than May 31, 2001.
The Domestic Loans and Swing Line Loans bear interest
at a rate per annum equal to (A) the applicable LIBOR rate or
Base Rate, in the case of any Domestic Loan and (B) the Base
Rate, in the case of any Swing Line Loan plus, in each case the
Applicable Margin. The Tranche A Revolving Loans will bear
interest at a rate to be agreed upon between Parent and the Bank
of America, as Tranche A Lender. Base Rate is the higher of (A)
0.50% over the federal funds rate and (B) the Agent's reference
rate from time to time in effect. The Applicable Margin varies
depending on the Leverage Ratio (as defined in the Multicurrency
Credit Agreement) of Parent and its subsidiaries.
The Multicurrency Credit Agreement contains a number of
covenants, including, among others, covenants restricting Parent
and its subsidiaries with respect to the creating of liens, the
consummation of certain transactions such as sales of substantial
assets, mergers or consolidations or certain other transaction,
the making of certain investments and loans, the incurrence of
indebtedness (including contingent obligations), transactions
with affiliates and the ability to declare, pay or make dividends
or other distributions in excess of prescribed levels. Parent
and its subsidiaries are also required to comply with certain
financial tests and maintain certain financial ratios.
It is anticipated that borrowings under the
Multicurrency Credit Agreement will generally be repaid from
funds generated internally by Parent and its subsidiaries
(including the Company), and from other sources which may include
other bank financings.
In connection with the execution and delivery of the
Multicurrency Credit Agreement, the Revised Bank Facility was
terminated and all amounts outstanding thereunder were repaid.
The foregoing description of the Multicurrency Credit
Agreement is qualified in its entirety by reference to the text
of the Multicurrency Credit Agreement filed as an exhibit hereto.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
Item 6 is hereby amended to add the following:
(a) If Parent were to exercise the option granted under the
Option Agreement and thereby acquire 8,771,625 Units, Parent
would then be deemed to beneficially own securities having an
aggregate of 9,545,600 votes on matters submitted to a vote of
stockholders of the Company, representing approximately 61% of
the voting power of all securities of the Company which would
then be outstanding (after taking into account the issuance of
the Units). If the Units were currently convertible into Common
Stock, Parent would be deemed the beneficial owner of 8,771,625
shares of Common stock by virtue of the Option Agreement and,
together with the beneficial ownership resulting from the
Stockholder Agreement, would be deemed to beneficially own an
aggregate of 9,545,600 shares of Common Stock, representing
approximately 61% of the outstanding Common Stock (based upon the
15,674,931 shares of Common Stock deemed to be then outstanding,
as computed in accordance with Rule 13d-3). However, the Units
are only convertible into Common Stock in the event, and at the
time, the Company has sufficient authorized and reserved shares
of Common Stock to permit such conversion, and the Company does
not currently have available any authorized reserved shares of
Common Stock to permit such conversion.
ITEM 10. ADDITIONAL INFORMATION.
Item 10 is hereby amended to add the following:
(f) The Offeror shall not be required to accept for payment or
pay for, subject to any applicable rules and regulations of the
Commission, including Rule 14e-1(c) of the Exchange Act, any
Shares not theretofore accepted for payment or paid for and may
terminate or amend the Offer as to such Shares (i) unless the
Minimum Condition is satisfied and (ii) in the event at any time
on or after May 28, 1996 and before the Expiration Date, any of
the conditions specified in sub-paragraphs (a) through (i) of
Section 15 of the Offer to Purchase (which is incorporated herein
by reference) exist, occur and remain in effect.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended by adding thereto the following
exhibit:
(c)(8) Multicurrency Credit Agreement dated as of June
14, 1996.
SIGNATURE
After due inquiry and to the best of its knowledge and belief,
each of the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Dated: June 26, 1996
SOLA INTERNATIONAL INC.
By: /s/ John Heine
_________________________________
Name: John Heine
Title: Chief Executive Officer
and President
SOLA ACQUISITION CORP.
By: /s/ John Heine
____________________________
Name: John Heine
Title: President
EXHIBIT INDEX
(c)(8) Multicurrency Credit Agreement dated June 14, 1996,
Exhibit (c)(8)
[EXECUTION COPY]
MULTICURRENCY CREDIT AGREEMENT
Dated as of June 14, 1996
among
SOLA INTERNATIONAL INC.
and the
OTHER BORROWERS
as the Borrowers,
the
SUBSIDIARY GUARANTORS,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
and
Letter of Credit Issuing Bank,
THE FIRST NATIONAL BANK OF BOSTON
and
THE BANK OF NOVA SCOTIA,
as Co-Agents,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
BA SECURITIES, INC.
<PAGE>
TABLE OF CONTENTS
Section Page
- -------
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms 2
1.02 Other Interpretive Provisions 34
1.03 Accounting Principles 35
1.04 Currency Equivalents Generally 35
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments 35
(a) Term Credit 35
(b) Tranche A Revolving Credit 35
(c) Tranche B Revolving Credit 36
(d) Swing Line Credit 36
2.02 Loan Accounts 36
2.03 Procedure for Borrowing 37
(a) Domestic Loans 37
(b) Swing Line Loans 38
(c) Tranche A Revolving Loans 39
2.04 Conversion and Continuation Elections 40
(a) Domestic Loans 40
(b) Tranche A Revolving Loans 42
2.05 Utilization of Tranche A Revolving Commitment in
OffshoreCurrencies . 43
2.06 Voluntary Termination or Reduction of Commitments 43
2.07 Optional Prepayments 44
(a) Domestic Loans 44
(b) Swing Line Loans 44
(c) Tranche A Revolving Loans 45
2.08 Currency Exchange Fluctuations, etc. 45
2.09 Repayment and Mandatory Prepayments; Cash
Collateralization 45
(a) Repayment of the Term Credit 45
(b) Repayment of the Tranche B Revolving Credit and
Swing Line Credit 46
(c) Repayment of the Tranche A Revolving Credit 46
(d) Mandatory Prepayments; Cash Collateralization 46
2.10 Interest 46
(a) Domestic Loans and Swing Line Loans 47
(b) Tranche A Revolving Loans 47
(c) Default Interest, etc 47
<PAGE>
2.11 Fees 48
(a) Arrangement, Agency Fees 48
(b) Commitment Fees 48
2.12 Computation of Fees and Interest 49
2.13 Payments by the Borrowers 49
2.14 Payments by the Domestic Banks to the Agent 50
2.15 Sharing of Payments, Etc. 51
2.16 Extension of Tranche A Revolving Loan Commitment
Termination Date and Maturity Date. 51
ARTICLE III
THE LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility. 52
3.02 Issuance, Amendment and Renewal of Letters of Credit 53
3.03 Risk Participations, Drawings and Reimbursements 55
3.04 Repayment of Participations 57
3.05 Role of the Issuing Bank 57
3.06 Obligations Absolute 58
3.07 Cash Collateral Pledge 59
3.08 Letter of Credit Fees 59
3.09 Utilization of L/C Commitment in Offshore Currencies 59
3.10 Uniform Customs and Practice 60
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes 60
4.02 Illegality 63
4.03 Increased Costs and Reduction of Return 64
4.04 Funding Losses 65
4.05 Inability to Determine Rates 65
(a) Domestic Loans 65
(b) Tranche A Revolving Loans 66
4.06 Reserves on Loans 66
4.07 Substitution of Banks 66
4.08 Change Lending Office 67
4.09 Survival 67
<PAGE>
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions of Initial Credit Extensions 67
(a) Credit Agreement and Notes 67
(b) Resolutions; Incumbency 67
(c) Organization Documents; Good Standing 67
(d) Legal Opinions 68
(e) Payment of Fees 68
(f) Certificate 68
(g) Financial Information, etc. 69
(h) Consummation of the American Optical Acquisition 69
(i) Payment of Outstanding Indebtedness, etc. 70
(j) Subordinated Debt Agreement 70
(k) Solvency Certificate 70
(l) Compliance Certificate 70
(m) Tranche A Revolving Supplement Agreements 70
(n) Other Documents 70
5.02 Conditions to All Credit Extensions 70
(a) Continuation of Representations and Warranties 70
(b) No Existing Default 71
(c) Domestic Loans; Notice of Borrowing 71
(d) Tranche A Revolving Loan; Notice of
Borrowing and Tranche A Revolving
Supplement Agreement 71
(e) Certain Additional Conditions Relating to
the Tranche A Revolving Loans 71
(f) Letters of Credit 71
5.03 Conditions to Subsequently Executed Tranche A Revolving
Supplement Agreements 71
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01 Corporate Existence and Power 72
6.02 Corporate Authorization; No Contravention 72
6.03 Governmental Authorization 73
6.04 Binding Effect 73
6.05 Litigation 73
6.06 No Default 73
6.07 ERISA Compliance 73
<PAGE>
6.08 Use of Proceeds; Margin Regulations 74
6.09 Title to Properties 74
6.10 Taxes 75
6.11 Financial Condition 75
6.12 Environmental Matters 75
6.13 Regulated Entities 75
6.14 Copyrights, Patents, Trademarks and Licenses, etc. 75
6.15 Subsidiaries 76
6.16 Insurance 76
6.17 Swap Obligations 76
6.18 Subordinated Notes 76
6.19 Full Disclosure 77
6.20 Solvency 77
ARTICLE VII
AFFIRMATIVE COVENANTS
7.01 Financial Statements 77
7.02 Certificates; Other Information 78
7.03 Notices 78
7.04 Preservation of Corporate Existence, Etc 79
7.05 Maintenance of Property 80
7.06 Insurance 80
7.07 Payment of Obligations 80
7.08 Compliance with Laws 81
7.09 Compliance with ERISA 81
7.10 Inspection of Property and Books and Records 81
7.11 Environmental Laws 81
7.12 Use of Proceeds 81
7.13 Future Subsidiaries, Etc. 82
7.14 Sola Optical S.A. 82
ARTICLE VIII
NEGATIVE COVENANTS
8.01 Limitation on Liens 83
8.02 Disposition of Assets 85
8.03 Consolidations and Mergers 86
8.04 Loans and Investments 86
8.05 Limitation on Indebtedness 88
<PAGE>
8.06 Transactions with Affiliates 89
8.07 Use of Proceeds 89
8.08 Contingent Obligations 89
8.09 Lease Obligations 90
8.10 Restricted Payments 90
8.11 ERISA 91
8.12 Financial Condition. 91
(a) Leverage Ratio 91
(b) Fixed Charge Coverage Ratio 92
(c) Net Worth 92
8.13 Change in Business 92
8.14 Accounting Changes 92
8.15 Modification of Certain Documents 92
8.16 Negative Pledges, Restrictive Agreements, etc 92
8.17 No Designated Senior Indebtedness 93
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default 93
(a) Non-Payment 93
(b) Representation or Warranty 93
(c) Specific Defaults 94
(d) Other Defaults 94
(e) Cross-Default 94
(f) Insolvency; Voluntary Proceedings 94
(g) Involuntary Proceedings 95
(h) ERISA 95
(i) Monetary Judgments 95
(j) Guarantor Defaults 95
(k) Change of Control 95
(l) Subordinated Notes 96
9.02 Remedies 96
9.03 Rights Not Exclusive 96
ARTICLE X
THE AGENT
10.01 Appointment and Authorization; "Agent" 97
10.02 Delegation of Duties 97
<PAGE>
10.03 Liability of Agent 97
10.04 Reliance by Agent 98
10.05 Notice of Default 98
10.06 Credit Decision 98
10.07 Indemnification of Agent 99
10.08 Agent in Individual Capacity 99
10.09 Successor Agent 100
ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers 100
11.02 Notices 102
11.03 No Waiver; Cumulative Remedies 102
11.04 Costs and Expenses 103
11.05 Borrowers' Indemnification 103
11.06 Payments Set Aside 103
11.07 Successors and Assigns 103
11.08 Assignments, Participations, etc. 105
11.09 Guaranty of the Borrowers and Subsidiary Guarantors 105
(a) Guaranty 106
(b) Acceleration of Guarantees 106
(c) Guarantees Absolute 108
(d) Reinstatement, etc 108
(e) Waiver of Diligence, etc 108
(f) Waiver of Subrogation 108
(g) Intercompany Subordinated Indebtedness 109
(h) Release 109
11.10 Confidentiality 110
11.11 Set-off 110
11.12 Notification of Addresses, Lending Offices, Etc. 111
11.13 Counterparts 111
11.14 Severability 111
11.15 No Third Parties Benefited 111
11.16 Governing Law and Jurisdiction 111
11.17 Waiver of Jury Trial 112
11.18 Judgment 112
11.19 Entire Agreement 112
11.20 Change in Law 112
11.21 Co-Agents 113
<PAGE>
SCHEDULES
Schedule 2.01 Commitments
Schedule 3.02(a) Existing Letters of Credit
Schedule 6.03 Governmental Authorizations
Schedule 6.05 Litigation
Schedule 6.07 ERISA
Schedule 6.11 Permitted Liabilities
Schedule 6.14 Intellectual Property
Schedule 6.15(a) Subsidiaries
Schedule 6.15(b) Minority Interests
Schedule 6.15(c) Significant Subsidiaries
Schedule 8.01 Permitted Existing Liens
Schedule 8.05(a) Permitted Existing Indebtedness
Schedule 8.05(c)(i) Indebtedness to be Paid on Closing Date
Schedule 8.05(c)(ii) Indebtedness to be Paid Post-Closing Date
Schedule 8.05(d) Existing Indebtedness
Schedule 8.08(c) Contingent Obligations
Schedule 8.09(a) Existing Leases
Schedule 11.02 Lending Offices; Payment Offices;
Addresses for Notices
ANNEXES
Annex 5.02(e) Certain Additional Conditions Relating to
the Tranche A Revolving Loans
EXHIBITS
Exhibit A-1 Form of Notice of Borrowing (Domestic
Loans)
Exhibit A-2 Form of Notice of Borrowing (Swing Line
Loans)
Exhibit A-3 Form of Notice of Borrowing (Tranche A
Revolving Loans)
Exhibit B-1 Form of Notice of Conversion/Continuation
(Domestic Loans)
Exhibit B-2 Form of Notice of Conversion/Continuation
(Tranche A Revolving Loans)
Exhibit C Form of Compliance Certificate
Exhibit D-1 Form of Legal Opinion of New York Counsel
to the Borrowers
Exhibit D-2 Form of Legal Opinion of Foreign Counsel
to the Borrowers
Exhibit E Form of Assignment and Acceptance
Exhibit F-1 Form of Tranche A Revolving Note
Exhibit F-2 Form of Tranche B Revolving Note
Exhibit F-3 Form of Term Loan Note
Exhibit F-4 Form of Swing Line Note
<PAGE>
Exhibit G Form of Tranche A Extension Request
Exhibit H Form of Joinder in Credit Agreement
Exhibit I Form of Solvency Certificate
Exhibit J Form of Tranche A Revolving Supplement
Agreement
Exhibit K Form of Closing Date Certificate
<PAGE>
MULTICURRENCY CREDIT AGREEMENT
-------------------------------
This MULTICURRENCY CREDIT AGREEMENT is entered into, as of
June 14, 1996, among Sola International Inc., a Delaware
corporation (the "Company"), Sola International Holdings Ltd.
(ACN007719708), a South Australian corporation, Sola Optical
Holdings (U.K.) Limited, an English corporation, Sola Optical
S.A., a French corporation, Sola Optical GmbH, a German
corporation, Sola Hong Kong Limited, a Hong Kong corporation,
Sola ADC Lenses Limited, an Irish corporation, Sola Optical
Italia S.p.A., an Italian corporation, Sola Optical Japan
Limited, a Japanese corporation, Sola Optical Singapore Pte.
Ltd., a Singapore corporation (the Company, such other Persons
(such capitalized term and all other capitalized terms used
herein without being defined shall have the meanings provided for
in Article I) and Sola Optical Taiwan Ltd., a Republic of China
corporation, and American Optical Corporation International AG, a
Switzerland corporation, after they become borrowers pursuant to
Section 7.13, as borrowers und er the Tranc he A Revolving
Commitment are each referred to as a "Tranche A Revolving
Borrower" and collectively as the "Tranche A Revolving
Borrowers"), the Persons named on the signature pages hereof as
Subsidiary Guarantors or from time to time added as parties
hereto pursuant to Section 7.13 (each a "Subsidiary Guarantor"
and collectively the "Subsidiary Guarantors"), the several
financial institutions from time to time party to this Agreement,
including in their capacity as co-agents as herein provided
(collectively, the "Banks"; individually, a "Bank"), and Bank of
America National Trust and Savings Association, as agent (in such
capacity, the "Agent") for the Banks.
WHEREAS,
(a) the Tranche A Revolving Bank has agreed to make
available to the Tranche A Revolving Borrowers a Tranche A
Revolving Commitment pursuant to which Tranche A Revolving
Loans in an aggregate outstanding principal Dollar
Equivalent amount not to exceed $30,000,000 may be made from
time to time prior to the Tranche A Revolving Commitment
Termination Date;
(b) the Tranche B Revolving Banks have agreed to make
available to the Company a Tranche B Revolving Commitment
pursuant to which Tranche B Revolving Loans in an aggregate
principal amount not to exceed $120,000,000 may be made from
time to time prior to the Tranche B Revolving Commitment
Termination Date, such Tranche B Revolving Commitment to
contain a sub-facility for Swing Line Loans in an aggregate
principal amount not to exceed $5,000,000 and a sub-facility
for Letters of Credit in an aggregate Dollar Equivalent
amount not to exceed $10,000,000; and
(c) the Term Loan Banks have agreed to make available
to the Company a Term Loan Commitment pursuant to which Term
Loans in an aggregate principal amount not to exceed
$30,000,000 may be made on the Closing Date;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as
follows:
<PAGE>
ARTICLE I
DEFINITIONS
-----------
1.01 Certain Defined Terms. The following terms have the
following meanings:
"Acquisition" means any transaction or series of
related transactions for the purpose of or resulting,
directly or indirectly, in (a) the acquisition of all or
substantially all of the assets of a Person, or of any
business or division of a Person, (b) the acquisition of in
excess of 50% of the capital stock, partnership interests,
membership interests or equity of any Person, or otherwise
causing any Person to become a Subsidiary, or (c) a merger
or consolidation or any other combination with another
Person (other than a Person that is a Subsidiary) provided
that the Company or the Subsidiary is the surviving entity.
"Acquisition Prospect" means the business that is the
subject of an Eligible Acquisition.
"Affected Bank" has the meaning specified in Section
4.07.
"Affiliate" means, as to any Person, any other Person
which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person
(excluding any trustee under, or any committee with
responsibility for administering, any Plan). A Person shall
be deemed to control another Person if the controlling
Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies
of the other Person, whether through the ownership of voting
securities, membership interests, by contract, or otherwise.
"Agent" has the meaning specified in the introductory
clause hereto and includes any successor agent arising under
Section 10.09.
"Agent-Related Persons" means BofA and any successor
agent arising under Section 10.09, together with their
respective Affiliates (including, in the case of BofA, the
Arranger), and the officers, directors, employees, agents
and attorneys-in-fact of such Persons and Affiliates.
"Agreement" means this Multicurrency Credit Agreement.
"Agreement Currency" has the meaning specified in
Section 11.18.
"American Optical" means American Optical Corporation,
a Delaware corporation.
"American Optical Acquisition" means the acquisition by
the Company of certain assets of American Optical and
related transactions, all as contemplated by the American
Optical Purchase Agreement.
<PAGE>
"American Optical Purchase Agreement" means the
Purchase Agreement, dated as of May 6, 1996, between the
Company and American Optical.
"Applicable Currency" means, as to any particular
payment or Loan, Dollars or the Offshore Currency in which
it is denominated or is payable.
"Applicable Margin" means (a) with respect to the
unpaid principal amount of each Base Rate Loan, the
applicable percentage set forth in the table below in the
column entitled "Applicable Margin for Base Rate Loans"; and
(b) with respect to the unpaid principal amount of each
LIBOR Rate Loan and Tranche A Revolving Loan that is a Fixed
Rate Loan, the applicable percentage set forth in the table
below in the column entitled "Applicable Margin for LIBOR
Rate Loans and Tranche A Revolving Loans that are Fixed Rate
Loans":
<TABLE>
<CAPTION>
Applicable
Margin for
LIBOR Rate Loans
and Tranche A
Leverage Revolving Loans Applicable
Ratio that are Fixed Margin for Commitment
Rate Loans Base Rate Loans Fee Rate
<S> <C> <C> <C>
* 3.00:1.00 1.125% 0.125% 0.300%
* 2.50:1.00 0.750% Zero 0.250%
and
** 3.00:1.00
* 2.00:1.00 0.675% Zero 0.200%
and
** 2.50:1.00
* 1.50:1.00 0.600% Zero 0.175%
and
** 2.00:1.00
** 1.50:1.00 0.500% Zero 0.150%
- -----------------
* Greater than or equal to
** Less than
</TABLE>
The Leverage Ratio used to compute the Applicable
Margin and the Commitment Fee Rate shall be the Leverage
Ratio set forth in the Compliance Certificate and relevant
financial statements delivered by the Company to the Agent
on the Closing Date pursuant to subsections 5.01(g) and (l)
and, after the Closing Date, in the Compliance Certificate
most recently delivered by the Company to the Agent pursuant
to subsection 7.02(b) with respect to each fiscal quarter
and the relevant financial statements relating to such
fiscal quarter required to be delivered pursuant to Section
7.01. If the Company shall fail to so deliver such
Compliance Certificate and financial statements as required
pursuant to such subsections, the Applicable Margin and
Commitment Fee Rate shall conclusively be presumed to equal,
from the date the Company was required to deliver such
Compliance Certificate and related financial statements
until the date three Business Days after the Company
actually delivers to the Agent such Compliance Certificate
and
<PAGE>
financial statements, the highest Applicable Margin and
Commitment Fee Rate set forth in the above table. Any
increase or decrease in the Applicable Margin and Commitment
Fee Rate as a result of the delivery of a Compliance
Certificate and related financial statements shall become
effective three Business Days after the date of delivery of
the same to the Agent. All of the above interest rates are
at a per annum rate. Notwithstanding the foregoing, until
December 31, 1996 the Applicable Margin and Commitment Fee
Rate shall not, in any event, be less than those rates
resulting from the Leverage Ratio being greater than or
equal to 2.50:1.00 and less than 3.00:1.00. The Applicable
Margin with respect to the unpaid principal amount of each
Tranche A Revolving Loan that is a Floating Rate Loan shall
be specified in each applicable Tranche A Revolving
Supplement Agreement.
"Arranger" means BA Securities, Inc., a Delaware
corporation.
"Assignee" has the meaning specified in subsection
11.08(a).
"Assignment and Acceptance" has the meaning specified
in subsection 11.08(a).
"Attorney Costs" means and includes all fees and
disbursements of any law firm or other external counsel, the
allocated cost of internal legal services and all
disbursements of internal counsel, provided that fees of
internal counsel for legal services provided by it shall not
be duplicative of fees of external counsel for legal
services provided by it.
"Available Net Equity Proceeds" means, at any time, an
amount equal to (a) the aggregate Net Equity Proceeds since
the Closing Date minus (b) the aggregate amount of such
Proceeds that, pursuant to a notice delivered prior to such
time by the Company to the Agent, have been allocated by the
Company pursuant to subsections 8.04(c), 8.05(l) and
8.10(vi), as the case may be, as therein provided; provided,
however, that not more than 50% of the Net Equity Proceeds
since the Closing Date shall be allocated to subsections
8.04(c) and 8.05(l).
"Bank" has the meaning specified in the introductory
clause hereto, and includes the Term Loan Banks, the Tranche
A Revolving Bank, the Tranche B Revolving Banks, the Swing
Line Bank and each Issuing Bank; for purposes of
clarification only, to the extent that any Bank may have any
rights or obligations in addition to those of the Banks due
to its status as Issuing Bank, its status as such will be
specifically referenced.
"Bankruptcy Code" means the Federal Bankruptcy Reform
Act of 1978 (11 U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of:
(a) 0.50% per annum above the latest Federal
Funds Rate; and
(b) the rate of interest in effect for such day
as publicly announced from time to time by BofA in San
Francisco, California, as its "reference rate."
<PAGE>
Any change in the reference rate announced by BofA shall
take effect at the opening of business on the day specified
in the public announcement of such change. The "reference
rate" is a rate set by BofA based upon various factors
including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above,
or below such announced rate.
"Base Rate Loan" means a Domestic Loan or L/C Advance
that bears interest based at the Base Rate.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowers" means, collectively, the Tranche A
Revolving Borrowers and the Company as borrower under the
Tranche B Revolving Commitment, the Swing Line Commitment
and the Term Loan Commitment.
"Borrowing" means a borrowing hereunder consisting of
Loans of the same Type and in the same Applicable Currency
made to any Borrower on the same day by the Banks under
Article II, and, in the case of LIBOR Rate Loans and Fixed
Rate Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Borrowing
occurs under Section 2.03.
"Business Day" means
(a) any day other than a Saturday, Sunday or other day
on which commercial banks in New York City, San Francisco
or, with respect to any Tranche A Revolving Loan, the
applicable Lending Office of the Tranche A Revolving Bank
are authorized or required by law to close;
(b) with respect to disbursements and payments of any
LIBOR Rate Loan or the determination of the LIBOR Rate, any
day which is a Business Day described in subclause (a) and
is also a day on which dealings in Dollars are carried on in
the London interbank eurodollar market; and
(c) with respect to disbursements and payments of any
Tranche A Revolving Loan, the determination of the
utilization of the Tranche A Revolving Commitment, any
change in any Offshore Sublimit Commitment Amount or the
determination of the interest rate with respect to any Fixed
Rate Loan or Floating Rate Loan, any day which is a Business
Day described in subclause (a) and is also a day on which
(i) the Tranche A Revolving Bank is open for business in the
relevant Lending Office in which such Tranche A Revolving
Loan has been or is to be made and (ii) dealings in the
relevant Applicable Currency are carried on in the
applicable interbank market in which disbursement of or
payment in such Applicable Currency will be made or received
hereunder.
<PAGE>
"Capital Adequacy Regulation" means any guideline,
request or directive of any central bank or other
Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Cash Collateralize" means to pledge and deposit with
or deliver to the Agent, for the benefit of the Agent, the
Issuing Bank and the Tranche B Revolving Banks, as
collateral for the L/C Obligations, cash or deposit account
balances (not situated in Australia) pursuant to
documentation in form and substance satisfactory to the
Agent and the Issuing Bank (which documents are hereby
consented to by the Tranche B Revolving Banks). Derivatives
of such term shall have corresponding meaning. The Company
hereby grants the Agent, as security for the L/C Obligations
and for the benefit of the Agent, the Issuing Bank and the
Tranche B Revolving Banks, a security interest in all such
cash and deposit account balances. Cash collateral shall be
maintained in blocked, non-interest bearing deposit accounts
at BofA.
"Cash Equivalents" means, at any time:
(a) any evidence of Indebtedness, maturing not more
than one year after the date of issuance, issued or
guaranteed by the United States Government (or any agency or
instrumentality thereof);
(b) commercial paper, maturing not more than nine
months from the date of issuance and rated at least A-1 by
Standard & Poor's Corporation or P-1 by Moody's Investors
Service, Inc., which is issued by
(i) a corporation (other than an Affiliate of the
Company or any Subsidiary) organized under the laws of
any State of the United States or of the District of
Columbia, or
(ii) any Bank or any Affiliate thereof; or
(c) any certificate of deposit or bankers acceptance,
maturing not more than one year after such time, which is
issued by a (i) Bank or (ii) any bank organized under the
laws of the United States (or any State thereof), Canada,
Japan or any State that is a member of the European Economic
Community and which has (x) a credit rating of Aa or better
from Moody's Investor Services, Inc. or a comparable rating
from Standard & Poor's Corporation and (y) a combined
capital and surplus and undivided profits of not less than
$250,000,000 (or equivalent); or
(d) any repurchase agreement entered into with any
Bank or any commercial banking institution of the stature
referred to in subsection (c)(ii) and which
(i) is secured by a fully perfected security
interest in any obligation of the type described in
clause (a), and
<PAGE>
(ii) has a market value at the time such
repurchase agreement is entered into of not less than
100% of the repurchase obligation of such commercial
banking institution thereunder.
"Change of Control" means the occurrence at any time of
(a) the direct or indirect acquisition (as a result of
a purchase, acquisition, merger, consolidation or otherwise)
by any Person or a group (as such term is defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as
amended), of beneficial ownership (as such term is defined
in Rule 13D-3 promulgated under the Securities Exchange Act
of 1934, as amended) of 30% or more of the outstanding
shares (voting as a single class) of common stock of the
Company;
(b) during any period of 24 consecutive months,
individuals who at the beginning of such period constituted
the Company's Board of Directors (together with any new
directors whose election by the Company's shareholders was
approved by a vote of at least two-thirds of the directors
then still in office (who either were directors at the
beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to
constitute a majority of the directors then in office;
(c) the failure of any Borrower (other than the
Company) to be a Wholly-Owned Subsidiary of the Company, all
the shares of capital stock of which shall be owned
beneficially by the Company free and clear of all Liens;
provided, that if any such Borrower is the subject of a
Permitted Disposition pursuant to Section 8.02 or subsection
8.03(b)(i), the failure of such Borrower to be a Wholly-
Owned Subsidiary of the Company shall not result in the
occurrence of a Change of Control if, on or prior to the
consummation of such Permitted Disposition, such Borrower
repays in full in cash of all of its Obligations outstanding
hereunder; or
(d) the occurrence of a "Change in Control", as such
term is defined in the Subordinated Debt Agreement.
"Closing Date" means the date on which all conditions
precedent set forth in Section 5.01 are satisfied or waived
by all the Banks (or, in the case of subsection 5.01(e),
waived by the Person entitled to receive such payment). The
initial Credit Extensions hereunder shall be made on the
Closing Date.
"Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"Commitment" means,
(a) relative to any Bank, such Bank's Tranche A
Revolving Commitment, Tranche B Revolving Commitment, Term
Loan Commitment, Swing Line Commitment and/or L/C
Commitment; and
<PAGE>
(b) relative to all the Banks, the Tranche A Revolving
Commitment, Tranche B Revolving Commitment, Term Loan
Commitment, Swing Line Commitment and L/C Commitment of all
the Banks.
"Company" has the meaning specified in the introductory
clause hereto.
"Compliance Certificate" means a certificate
substantially in the form of Exhibit C.
"Commitment Fee Rate" means the applicable percentage
set forth below the column entitled "Commitment Fee Rate" in
the table in the definition of "Applicable Margin".
"Contingent Obligation" means, as to any Person, any
direct or indirect liability of that Person, whether or not
contingent, with or without recourse, (a) with respect to
any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person
(the "primary obligor"), including any obligation of that
Person (i) to purchase, repurchase or otherwise acquire such
primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or
equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet
item, level of income or financial condition 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 holder of any such primary
obligation against loss in respect thereof (each, a
"Guaranty Obligation"); (b) with respect to any Surety
Instrument issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement of
drawings or payments; (c) to purchase any materials,
supplies or other property from, or to obtain the services
of, another Person if the relevant contract or other related
document or obligation requires that payment for such
materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such
materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered,
or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall, in the case of Guaranty
Obligations, be deemed equal to the stated or determinable
amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability
in respect thereof, and in the case of other Contingent
Obligations other than in respect of Swap Contracts, shall
be equal to the maximum reasonably anticipated liability in
respect thereof and, in the case of Contingent Obligations
in respect of Swap Contracts, shall be equal to the Swap
Termination Value.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed
of trust or other instrument, document or agreement to which
such Person is a party or by which it or any of its property
is bound.
<PAGE>
"Conversion/Continuation Date" means any date on which
(a) under subsection 2.04(a), the Company (i) converts
Domestic Loans of one Type to another Type, or (ii)
continues as Domestic Loans of the same Type, but with a new
Interest Period, Domestic Loans having Interest Periods
expiring on such date; and
(b) under subsection 2.04(b), the relevant Tranche A
Revolving Borrower (i) converts Tranche A Revolving Loans of
one Type to another Type, or (ii) continues as Tranche A
Revolving Loans of the same Type, but with a new Interest
Period, Tranche A Revolving Loans having Interest Periods
expiring on such date.
"Credit Extension" means, in accordance with the terms
hereof,
(a) the making of any Loans; and
(b) the Issuance of any Letters of Credit.
"Default" means any event or circumstance which, with
the giving of notice, the lapse of time, or both, would (if
not cured or otherwise remedied during such time) constitute
an Event of Default.
"Dollar Equivalent" means, at any time, (a) as to any
amount denominated in Dollars, the amount thereof at such
time, and (b) as to any amount denominated in an Offshore
Currency, the equivalent amount in Dollars as determined on
the basis of the Spot Rate for the purchase of Dollars with
such Offshore Currency, (i) with respect to the Tranche A
Revolving Commitment, by the Tranche A Revolving Bank on the
most recent Tranche A Revolving Computation Date, (ii) with
respect to the L/C Commitment, by the relevant Issuing Bank
on the most recent L/C Computation Date and (iii) with
respect to all other matters (including with respect to any
action taken by the Majority Banks) by the Agent from time
to time.
"Dollars", "dollars" and "$" each mean lawful money of
the United States.
"Domestic Bank" means each Term Loan Bank and Tranche B
Revolving Bank.
"Domestic Loans" means, collectively, the Terms Loans
and Tranche B Revolving Loans.
"Domestic Obligations" means all of the Obligations of
the Company and each Domestic Subsidiary Guarantor.
"Domestic Subsidiary" means each Subsidiary of the
Company which is incorporated in any State of the United
States or the District of Columbia.
"Domestic Subsidiary Guarantor" means each Subsidiary
Guarantor that is a Domestic Subsidiary.
<PAGE>
EBITDA" means, for any period, the sum (without
duplication) of
(a) Net Income;
plus
(b) the amount deducted, in determining Net Income,
representing amortization of assets (including amortization
with respect to goodwill and all other intangible assets);
plus
(c) the amount deducted, in determining Net Income, of
all income taxes (whether paid or deferred) of the Company
and its Subsidiaries;
plus
(d) Interest Expense (including amortization of debt
discount);
plus
(e) the amount deducted, in determining Net Income,
representing depreciation of assets;
plus
(f) the amount deducted, in determining Net Income, of
all non-recurring, non-cash charges;
provided, however, that prior to the first four fiscal
quarters following the consummation of any Permitted
Acquisition or other Acquisition that has been approved by
the Majority Banks (including the American Optical
Acquisition for the period of four fiscal quarters following
the Closing Date), EBITDA for such four fiscal quarter
period shall be calculated by using both the historical
EBITDA of the Acquisition Prospect for the fiscal quarters
immediately prior to, and the actual EBITDA of the
Acquisition Prospect for the fiscal quarters immediately
following the consummation of, any such Acquisition (i.e.,
as of the consummation of any such Acquisition, use four
fiscal quarters of historical EBITDA of the Acquisition
Prospect; and as of the first, second and third fiscal
quarter or quarters (as the case may be) immediately
following consummation of any such Acquisition, use three,
two and one fiscal quarters or quarter (as the case may be),
respectively, of historical EBITDA of the Acquisition
Prospect and one, two and three fiscal quarter or quarters
(as the case may be), respectively, of actual EBITDA).
"Eligible Acquisition" means an Acquisition (other than
a Hostile Acquisition) by the Company or any Wholly-Owned
Subsidiary of all or any part of the assets, shares or other
equity interests in any Person.
<PAGE>
"Eligible Assignee" means (a) a commercial bank
organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at
least $100,000,000; (b) a commercial bank organized under
the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country, and
having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a
branch or agency located in the United States; or (c) a
Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Bank,
(ii) a Subsidiary of a Person of which a Bank is a
Subsidiary, or (iii) a Person of which a Bank is a
Subsidiary.
"Environmental Claims" means all claims, however
asserted, by any Governmental Authority or other Person
alleging potential liability or responsibility for violation
of any Environmental Law, or for release or injury to the
environment.
"Environmental Laws" means all domestic and foreign
federal, state or local laws, statutes, common law duties,
rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to
environmental, health, safety and land use matters.
"ERISA" means the Employee Retirement Income Security
Act of 1974, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) under common control with the Company
within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect
to a Pension Plan; (b) a withdrawal by the Company or any
ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by the Company or any ERISA Affiliate
from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a
notice of intent to terminate, the treatment of a Plan
amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) any
written notice from the PBGC which might reasonably be
expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f)
the imposition of any liability under Title IV of ERISA,
other than PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.
<PAGE>
"Eurodollar Reserve Percentage" has the meaning
specified in the definition of "LIBOR Rate".
"Event of Default" means any of the events or
circumstances specified in Section 9.01.
"Exchange Act" means the Securities Exchange Act of
1934, and regulations promulgated thereunder.
"Existing Credit Documents" means, collectively, the
Amended and Restated Credit Agreement, dated as of March 2,
1995, among the Company, the lenders named therein and The
Bank of Nova Scotia, as agent for such lenders, and the Loan
Documents (as therein defined).
"FDIC" means the Federal Deposit Insurance Corporation,
and any Governmental Authority succeeding to any of its
principal functions.
"Federal Funds Rate" means, for any day, the rate set
forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the
Federal Reserve Bank of New York (including any such
successor, "H.15(519)") on the preceding Business Day
opposite the caption "Federal Funds (Effective)"; or, if for
any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Agent of the rates for
the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that day by each
of three leading brokers of Federal funds transactions in
New York City selected by the Agent.
"Fee Letter" has the meaning specified in subsection
2.11(a).
"Fixed Charge Coverage Ratio" means, at the end of any
fiscal quarter, the ratio computed for the period of four
consecutive fiscal quarters ending as of the close of such
fiscal quarter of:
(a) the excess, if any, of
(i) EBITDA;
over
(ii) the aggregate amount of all capital
expenditures made by the Company and the
Subsidiaries during such period;
to
(b) the sum of
<PAGE>
(i) Interest Expense during such period;
plus
(ii) all scheduled payments of principal of Funded
Debt (including scheduled payments of the
Term Loans pursuant to subsection 2.09(a))
during such period;
plus
(iii) all cash dividends paid on preferred
stock of the Company during such period;
provided, however, that:
(A) EBITDA of each Acquisition Prospect (including
American Optical) that is the subject of a Permitted
Acquisition (including the American Optical
Acquisition) or other Acquisition that has been
approved by the Majority Banks shall be calculated as
provided in the proviso to the definition of EBITDA;
(B) for the first three fiscal quarters following the
Closing Date, capital expenditures shall equal the
greater of (x) $29,000,000 and (y) the actual amount of
capital expenditures that have been made by the Company
and the Subsidiaries; and
(C) for the first three fiscal quarters following the
Closing Date, Interest Expense and cash dividends on
preferred stock shall be based upon the amount of the
same in the number of full fiscal quarters since the
Closing Date, with the results to be annualized.
"Fixed Rate Loan" means any fixed rate of interest
which, as agreed to by the Tranche A Revolving Bank and the
applicable Tranche A Revolving Borrower in a Tranche A
Revolving Supplement Agreement, accrues with respect to any
Tranche A Revolving Loan.
"Floating Rate Loan" means any floating rate of
interest which, as agreed to by the Tranche A Revolving Bank
and the applicable Tranche A Revolving Borrower in any
Tranche A Revolving Supplement Agreement, accrues with
respect to any Tranche A Revolving Loan.
"Foreign Borrower" means each Tranche A Revolving
Borrower other than the Company.
"Foreign Obligations" means all of the Obligations of
each Foreign Borrower and each Foreign Subsidiary Guarantor.
<PAGE>
"Foreign Subsidiary" means each Subsidiary of the
Company which is incorporated in a jurisdiction other than
any State of the United States or the District of Columbia.
"Foreign Subsidiary Guarantor" means each Subsidiary
Guarantor that is a Foreign Subsidiary.
"FRB" means the Board of Governors of the Federal
Reserve System, and any Governmental Authority succeeding to
any of its principal functions.
"Funded Debt" means, without duplication, any
Indebtedness of the Company and the Subsidiaries at the time
of calculation thereof of the nature referred to in
subclauses (a) through (f) of the definition of
"Indebtedness" and all Guaranty Obligations in respect of
any such Indebtedness, including, without limitation, (a)
all Indebtedness under this Agreement and the Subordinated
Debt Agreement and (b) the current portion of any preferred
stock of the Company and the Subsidiaries that is subject to
mandatory redemption in accordance with the terms thereof.
"FX Trading Office" means the Foreign Exchange Trading
Center #5193, San Francisco, California, of BofA, or such
other of BofA's offices as BofA may designate from time to
time.
"Further Taxes" means any and all present or future
domestic and foreign taxes, levies, assessments, imposts,
duties, deductions, fees, withholdings or similar charges
(including, without limitation, net income taxes and
franchise taxes), and all liabilities with respect thereto,
imposed by any jurisdiction on account of amounts payable or
paid pursuant to Section 4.01.
"GAAP" means generally accepted accounting principles
set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of
the date of determination , except that for purposes of
determining compliance with the financial covenants
contained in Section 8.12 (and related defined terms), GAAP
applied in the preparation of the financial statements
referred to as subsection 5.01(g)(i) shall be used.
"Governmental Authority" means any domestic or foreign
nation or government, any state or other political
subdivision thereof, any central bank (or similar monetary
or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and
any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the
foregoing.
<PAGE>
"Guaranty Obligation" has the meaning specified in the
definition of "Contingent Obligation."
"Honor Date" has the meaning specified in subsection
3.03(b).
"Hostile Acquisition" means an Acquisition involving a
tender offer or proxy contest that has not been recommended
or approved by the Board of Directors of the Person that is
the subject of such Acquisition prior to the first public
announcement or disclosure by the Company in any way
relating to such Acquisition.
"Indebtedness" of any Person means, without
duplication, (a) all indebtedness for borrowed money
(including, without limitation, amounts outstanding
hereunder and pursuant to the Subordinated Debt Agreement);
(b) all obligations issued, undertaken or assumed as the
deferred purchase price of property or services (other than
trade payables entered into in the ordinary course of
business on ordinary terms); (c) all non-contingent
reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of
property, assets or businesses; (e) all indebtedness created
or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either
case with respect to property acquired by the Person (even
though the rights and remedies of the seller or bank under
such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations
with respect to capital leases; (g) all indebtedness
referred to in subclauses (a) through (f) above secured by
(or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of
such Indebtedness; and (h) all Guaranty Obligations in
respect of indebtedness or obligations of others of the
kinds referred to in subclauses (a) through (g) above. For
all purposes of this Agreement, the Indebtedness of any
Person shall include all recourse Indebtedness of any
partnership or joint venture or limited liability company in
which such Person is a general partner or a joint venturer
or a member (except to the extent that by operation of law
or by the express terms of the relevant partnership, joint
venture or limited liability company agreement or instrument
governing such Indebtedness the liabilities with respect to
such Indebtedness are completely without recourse to such
Person).
"Indemnified Liabilities" has the meaning specified in
Section 11.05.
"Indemnified Person" has the meaning specified in
Section 11.05.
"Independent Auditor" has the meaning specified in
subsection 7.01(a).
"Insolvency Proceeding" means, with respect to any
Person, (a) any case, action or proceeding with respect to
such Person before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief
of debtors, or (b) any general assignment for the benefit
<PAGE>
of creditors, composition, marshalling of assets for
creditors, or other, similar arrangement in respect of its
creditors generally or any substantial portion of its
creditors; undertaken under U.S. Federal, state or foreign
law, including the Bankruptcy Code.
"Intercompany Subordinated Indebtedness" has the
meaning specified in subsection 11.09(g).
"Interest Expense" means, for any period, the aggregate
consolidated interest expenses of the Company and the
Subsidiaries for such period, as determined in accordance
with GAAP, including, without limitation, (a) commitment
fees that are payable with respect to the unutilized portion
of the Commitments, (b) fees payable with respect to Surety
Instruments and (c) the portion of capitalized lease
liabilities allocable to interest expenses, in each case
paid as payable during such period.
"Interest Payment Date" means, as to any Domestic Loan
and Swing Line Loan, the last day of each Interest Period
applicable to each LIBOR Rate Loan and, as to any Base Rate
Loan, the last Business Day of each calendar quarter and
each date such Loan is converted into another Type of Loan,
provided, however, that if any Interest Period for a LIBOR
Rate Loan exceeds three months the date that falls three
months after the beginning of such Interest Period and after
each Interest Payment Date thereafter is also an Interest
Payment Date.
"Interest Period" means
(a) as to any LIBOR Rate Loan, the period commencing
on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted
into or continued as a LIBOR Rate Loan, and ending on the
date one, two, three or six months thereafter as selected by
the Company in its Notice of Borrowing or Notice of
Conversion/Continuation; provided that:
(i) if any Interest Period would otherwise end on
a day that is not a Business Day, that Interest Period
shall be extended to the following 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 preceding
Business Day;
(ii) any Interest Period pertaining to a LIBOR
Rate 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 the calendar month at the end of such
Interest Period;
(iii) no Interest Period for any LIBOR Rate
Loan shall extend beyond the applicable Maturity Date
for such Loan; and
<PAGE>
(iv) no Interest Period applicable to a Term Loan
or portion thereof shall extend beyond any date upon
which is due any scheduled principal payment in respect
of the Term Loans unless the aggregate principal amount
of Term Loans represented by (x) Base Rate Loans or (y)
LIBOR Rate Loans having Interest Periods that will
expire on or before such date, equals or exceeds the
amount of such principal payment.
(b) as to any Fixed Rate Loan, the period commencing
on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted
into or continued as a Fixed Rate Loan, and ending on the
date selected by the relevant Tranche A Revolving Borrower
in its Notice of Borrowing or Notice of
Conversion/Continuation; provided that:
(i) no Interest Period for any Fixed Rate Loan
shall extend beyond the applicable Maturity Date for such
Loan; and
(ii) all Interest Periods pertaining to a Fixed
Rate Loan shall be subject to the terms of the applicable
Tranche A Revolving Supplement Agreement.
"Investments" has the meaning specified in Section
8.04.
"IRS" means the Internal Revenue Service, and any
Governmental Authority succeeding to any of its principal
functions under the Code.
"Issue" means, with respect to any Letter of Credit, to
issue or to extend the expiry of, or to renew or increase
the amount of, such Letter of Credit; and the terms
"Issued," "Issuing" and "Issuance" have corresponding
meanings.
"Issuing Bank" means BofA in its capacity as issuer of
one or more Letters of Credit hereunder and any other Bank
approved by the Company and the Agent to act as Issuer of
one or more Letters of Credit, together, in each case, with
any replacement letter of credit issuer arising under
subsection 10.01(b) or Section 10.09.
"Joinder in Credit Agreement" means a Joinder in Credit
Agreement delivered pursuant to Section 7.13, substantially
in the form of Exhibit H.
"Joint Venture" means a single-purpose corporation,
partnership, limited liability company, joint venture or
other similar legal arrangement (whether created by contract
or conducted through a separate legal entity) now or
hereafter formed by the Company or any of the Subsidiaries
with another Person in order to conduct a common venture or
enterprise with such Person.
"Judgment Currency" has the meaning specified in
Section 11.18.
"Law Change" has the meaning specified in subsection
4.01(g).
<PAGE>
"L/C Advance" means each Tranche B Revolving Bank's
participation in any L/C Borrowing in accordance with its
Tranche B Revolving Pro Rata Share.
"L/C Amendment Application" means an application form
for amendment of outstanding standby or commercial
documentary letters of credit as shall at any time be in use
at the Issuing Bank, as the Issuing Bank shall request.
"L/C Application" means an application form for
issuances of standby or commercial documentary letters of
credit as shall at any time be in use at the Issuing Bank,
as the Issuing Bank shall request.
"L/C Borrowing" means an extension of credit resulting
from a drawing under any Letter of Credit which shall not
have been reimbursed on the date when made nor converted
into a Borrowing of Tranche B Revolving Loans under
subsection 3.03(c).
"L/C Commitment" means the commitment of the Issuing
Bank to Issue, and the commitment of the Tranche B Revolving
Banks severally to participate in, Letters of Credit from
time to time Issued or outstanding under Article III. The
L/C Commitment is a sub-facility of the Tranche B Revolving
Commitment and is not an additional commitment that is
separate and apart from the Tranche B Revolving Commitment.
Letters of Credit may be denominated in any Applicable
Currency.
"L/C Commitment Amount" means $10,000,000, as such
amount may be reduced from time to time pursuant to Section
2.06, provided that at no time shall the aggregate Dollar
Equivalent amount of Letters of Credit denominated in
Offshore Currencies exceed $5,000,000. The L/C Commitment
Amount is a sub-facility of the Tranche B Revolving
Commitment Amount and, accordingly, (a) the aggregate Dollar
Equivalent amount of L/C Obligations plus (b) the aggregate
principal amount of Tranche B Revolving Loans and Swing Line
Loans shall not at any time exceed the Tranche B Revolving
Commitment Amount.
"L/C Computation Date" has the meaning provided for in
subsection 3.09(a).
"L/C Obligations" means on any date the sum of (a) the
aggregate undrawn amount of all Letters of Credit then
outstanding, plus (b) the Dollar Equivalent amount of all
unreimbursed drawings under all Letters of Credit, including
all outstanding L/C Borrowings, minus (c) the aggregate
amount of all Cash Collateralization, after giving effect to
any Issuances of Letters of Credit occurring on such date
and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any
Letters of Credit or any reductions in the maximum amount
available for drawing under Letters of Credit taking effect
on such date.
"L/C-Related Documents" means the Letters of Credit,
the L/C Applications, the L/C Amendment Applications and any
other document relating to any Letter of Credit,
<PAGE>
including any of the Issuing Bank's standard form documents
for letter of credit issuances.
"Lending Office" means
(a) in the case of the Domestic Loans that accrue
interest at the (i) Base Rate, the "Domestic Lending Office"
of each Domestic Bank set forth on Schedule 11.02 and (ii)
LIBOR Rate, the "LIBOR Lending Office" of each Domestic Bank
set forth on Schedule 11.02, or such other address as the
Agent may from time to time specify in accordance with
Section 11.02;
(b) in the case of the Tranche A Revolving Loans (i)
of any Foreign Borrower denominated in Dollars or in any
Offshore Currency (whether or not it is a Fixed Rate Loan or
Floating Rate Loan), the "Offshore Lending Office" of the
Tranche A Revolving Bank with respect to each Offshore
Currency as set forth on Schedule 11.02 and (ii) of the
Company, the "Domestic Lending Office" of the Tranche A
Revolving Bank set forth on Schedule 11.02, or such other
address as the Tranche A Revolving Bank may from time to
time specify in accordance with Section 11.02; and
(c) in the case of the Swing Line Loans the "Lending
Office" of the Swing Line Bank set forth on Schedule 11.02,
or such other address as the Swing Line Bank may from time
to time specify in accordance with Section 11.02.
Anything herein to the contrary notwithstanding, all Tranche
A Revolving Loans to any Foreign Borrower shall only be made
by the Offshore Lending Office of the Tranche A Revolving
Bank that is located in the country where such Foreign
Borrower borrows such Loans.
"Letters of Credit" and "L/C" means any letters of
credit (whether standby letters of credit or commercial
documentary letters of credit) Issued by the Issuing Bank
pursuant to Article III.
"Leverage Ratio" means, at the end of any fiscal
quarter, the ratio of (a) Funded Debt as of the last day of
such fiscal quarter to (b) EBITDA for the period of four
consecutive fiscal quarters ending on the close of such
fiscal quarter.
"Leverage Ratio Requirement" has the meaning specified
in subsection 8.10(vi).
"LIBOR Rate" means, for any Interest Period, with
respect to any Domestic Loan comprising part of the same
Borrowing, the rate of interest per annum (rounded upward to
the next 1/100th of 1%) determined by the Agent as follows:
LIBOR Rate = LIBOR
-------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
<PAGE>
"Eurodollar Reserve Percentage" means for any day for
any Interest Period with respect to a Domestic Loan the
maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day
(whether or not applicable to any Bank) under regulations
issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"); and
"LIBOR" means the rate of interest per annum determined
by the Agent to be the arithmetic mean (rounded upward to
the next 1/100th of 1%) of the rates of interest per annum
at which Dollar deposits in the approximate amount of the
amount of the Domestic Loan to be made or continued as, or
converted into, a LIBOR Rate Loan and having a maturity
comparable to such Interest Period would be offered to
BofA's Offshore Lending Office in the London interbank
market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such
Interest Period.
The LIBOR Rate shall be adjusted automatically as to all
LIBOR Rate Loans then outstanding as of the effective date
of any change in the Eurodollar Reserve Percentage.
"LIBOR Rate Loan" means a Domestic Loan that bears
interest based on the LIBOR Rate.
"Lien" means any security interest, mortgage, deed of
trust, pledge, hypothecation, assignment, charge or deposit
arrangement, encumbrance, lien (statutory or other) or
preferential arrangement of any kind or nature whatsoever in
respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a
capital lease, any financing lease having substantially the
same economic effect as any of the foregoing, or the filing
of any financing statement naming the owner of the asset to
which such lien relates as debtor, under the Uniform
Commercial Code or any comparable law) and any contingent or
other agreement to provide any of the foregoing, but not
including the interest of a lessor under an operating lease
or "precautionary" Uniform Commercial Code financing
statements filed by the lessor in connection therewith.
"Loan" means an extension of credit by a Bank to any
Borrower under Article II or Article III, and may be (a) an
L/C Advance, (b) in the case of any Domestic Loan, a Base
Rate Loan or a LIBOR Rate Loan, or (c) in the case of any
Tranche A Revolving Loan, a Fixed Rate Loan or a Floating
Rate Loan (each, a "Type" of Loan), and includes any Tranche
A Revolving Loan, Term Loan, Swing Line Loan and Tranche B
Revolving Loan.
"Loan Documents" means this Agreement, any Notes, the
Fee Letter, each Tranche A Revolving Supplement Agreement,
each Tranche A Extension Request, each Joinder in Credit
Agreement, each L/C Related Document and all other documents
delivered to the Agent or any Bank in connection herewith.
<PAGE>
"Majority Banks" means at any time one or more Banks
then holding in excess of 51% (a) of the sum of (i) the
Commitments and (ii), if the Term Loan Commitment has been
terminated, the aggregate unpaid principal amount of the
Term Loans or (b) if all the Commitments have been
terminated, the aggregate unpaid principal amount of the
Loans and L/C Obligations.
"Margin Stock" means "margin stock" as such term is
defined in Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse
change in, or a material adverse effect upon, the
operations, business, properties, condition (financial or
otherwise) or prospects of the Company and the Subsidiaries,
taken as a whole; (b) a material impairment of the ability
of the Company and the Subsidiaries, taken as a whole, to
perform under any Loan Document and to avoid any Event of
Default; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any
Borrower of any Loan Document.
"Maturity Date" means the earlier of:
(a) with respect to the Tranche A Revolving Loans, May
31, 1999, or, if extended by the Tranche A Revolving Bank
pursuant to Section 2.16, the date to which it is so
extended (which shall not, in any event, be later than May
31, 2001); provided, however, that the Tranche A Revolving
Loans of any particular Tranche A Revolving Borrower will be
due and payable (i) on any earlier maturity date to the
extent provided for in each applicable Tranche A Revolving
Supplement Agreement and (ii) in full on the day any such
Tranche A Revolving Borrower (other than the Company) ceases
to be a Wholly-Owned Subsidiary;
(b) with respect to the Domestic Loans and the Swing
Line Loans, May 31, 2001; and
(c) with respect to any Loan, the date on which such
Loan becomes due and payable pursuant to the operation of
Section 9.02.
"Minimum Tranche" means, with respect to Loans
comprising part of the same Borrowing, or to be converted or
continued under Section 2.04,
(a) in the case of Tranche A Revolving Loans, a
minimum amount and multiple in excess thereof as may be
specified in the relevant Tranche A Revolving Supplement
Agreement;
(b) in the case of Domestic Loans, $2,500,000 or any
integral multiple of $1,000,000 in excess thereof; and
(c) in the case of Swing Line Loans, $1,000,000 or any
integral multiple of $500,000 in excess thereof.
<PAGE>
"Multiemployer Plan" means a "multiemployer plan",
within the meaning of Section 4001(a)(3) of ERISA, to which
the Company or any ERISA Affiliate makes, is making, or is
obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make,
contributions.
"Net Equity Proceeds" means the excess of
(a) the gross cash proceeds received by the
Company from any issuance or sale of its capital stock
(whether pursuant to a public offering or private
offering)
less
the sum of
(a) all reasonable and customary fees and
expenses with respect to legal, investment banking,
brokerage and accounting and other professional fees
and sales commissions and disbursements actually
incurred in connection with such issuance or sale which
have not been paid to Affiliates of the Borrower
(except as permitted pursuant to Section 8.06), and
(b) all taxes and other governmental costs and
expenses actually paid or estimated by the Company (in
good faith) to be payable in cash in connection with
such issuance or sale.
"Net Income" means, for any period, all amounts
(exclusive of all amounts in respect of extraordinary gains
or losses) which, in accordance with GAAP, would be included
as net income on the consolidated statements of income of
the Company.
"Net Worth" means, at any time, the sum of (a) all
amounts (without duplication) which, in accordance with
GAAP, would be included under shareholders' equity on the
consolidated balance sheet of the Company, plus (b) all non-
recurring, non-cash charges of the Company and the
Subsidiaries arising as a result of the American Optical
Acquisition; provided, however, that Net Worth shall be
calculated without giving effect to any foreign currency
translation adjustments.
"Note" means, as the context may require, each Tranche
A Revolving Note, Tranche B Revolving Note, Term Loan Note
and/or Swing Line Note.
"Notice of Borrowing" means
(a) a notice to be used with respect to the Domestic
Loans in substantially the form of Exhibit A-1;
(b) a notice to be used with respect to the Swing Line
Loans in substantially the form of Exhibit A-2; and
<PAGE>
(c) a notice to be used with respect to the Tranche A
Revolving Loans in substantially the form of Exhibit A-3.
"Notice of Conversion/Continuation" means
(a) a notice to be used with respect to the Domestic
Loans in substantially the form of Exhibit B-1; and
(b) a notice to be used with respect to the Tranche A
Revolving Loans in substantially the form of Exhibit B-2.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan
Document owing by any Borrower or Subsidiary Guarantor to
any Bank, the Agent, or any Indemnified Person, whether
direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing
or hereafter arising.
"Offshore Currency" means at any time French Francs,
Deutsche Marks, Japanese Yen, Italian Lire, Hong Kong
Dollars, Singapore Dollars, New Taiwan Dollars, Australian
Dollars, United Kingdom Pounds Sterling, Swiss Francs and
Irish Pounds.
"Offshore Sublimit Commitment Amount" means, with
respect to each Lending Office of the Tranche A Revolving
Bank located in each country set forth below, the
requirement that the sum of (a) the aggregate principal
amount of the Loans denominated in Dollars made from each
such Lending Office plus (b) the Dollar Equivalent of the
aggregate principal amount of Loans denominated in the
Offshore Currency made from each such Lending Office, shall
not exceed the amount set forth opposite each such country
set forth below:
(a) France: $5,000,000;
(b) Germany: $2,000,000;
(c) Japan: $2,000,000;
(d) Italy: $5,000,000;
(e) Hong Kong: $2,000,000;
(f) Singapore: $2,000,000;
(g) Taiwan: $2,000,000;
(h) Australia: $4,000,000;
(i) United Kingdom: $2,000,000;
<PAGE>
(j) Switzerland: $1,000,000; and
(k) Ireland: $3,000,000
The Offshore Sublimit Commitment Amount is a sub-facility of
the Tranche A Revolving Commitment and is not an additional
commitment that is separate and apart from the Tranche A
Revolving Commitment. Each reduction in the Tranche A
Revolving Commitment Amount shall reduce, pro rata, each
respective Offshore Sublimit Commitment Amount. The
Company, acting for and on behalf of the Tranche A Revolving
Borrowers, may (on not less than three nor more than five
Business Days' prior notice to the Tranche A Revolving Bank
and the Agent) re-allocate the various Offshore Sublimit
Commitment Amounts among the respective Lending Offices of
the Tranche A Revolving Bank, provided that (i) at no time
shall the aggregate Dollar Equivalent amount of all the
Offshore Sublimit Commitment Amounts exceed the Tranche A
Revolving Commitment Amount and (ii) any prepayments
required to be made pursuant to subsection 2.09(d)(ii) shall
have been made prior to the effectiveness of each such
reallocation. To the extent that, at any time, the
aggregate sum of all the Offshore Sublimit Commitment
Amounts is less than the Tranche A Revolving Commitment
Amount (the "Unallocated Offshore Sublimit Commitment
Amount"), the Company may make Borrowings of Dollars from
the relevant Lending Office of the Tranche A Revolving Bank
set forth on Schedule 11.02.
"Organization Documents" means, for any corporation,
the certificate or articles of incorporation, the bylaws,
any certificate of determination or instrument relating to
the rights of preferred shareholders of such corporation and
any shareholder rights agreement.
"Other Taxes" means any present or future domestic or
foreign stamp, court or documentary taxes or any other
excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution,
delivery, performance, enforcement or registration of this
Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection
11.08(d).
"Payment Office" means
(a) in the case of payments on the Domestic Loans or
other payments required to be paid by the Company to the
Agent, the address for payments set forth on Schedule 11.02
or such other address as the Agent may from time to time
specify in accordance with Section 11.02;
(b) in the case of payments on the Tranche A Revolving
Loans or other payments required to be paid by the Tranche A
Revolving Borrowers to the Tranche A Revolving Bank, the
applicable Lending Office of the Tranche A Revolving Bank
set forth on Schedule 11.02 where the relevant Tranche A
Revolving Loans were made, or such other
<PAGE>
address as the Tranche A Revolving Bank may from time to
time specify in accordance with Section 11.02; and
(c) in the case of payments on the Swing Line Loans or
other payments required to be paid by the Company to the
Swing Line Bank, the Lending Office of the Swing Line Bank
set forth on Schedule 11.02 or such other address as the
Swing Line Bank may from time to time specify in accordance
with Section 11.02.
"PBGC" means the Pension Benefit Guaranty Corporation,
or any Governmental Authority succeeding to any of its
principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA which
the Company sponsors, maintains, or to which it makes, is
making, or is obligated to make contributions, or in the
case of a multiple employer plan (as described in Section
4064(a) of ERISA) has made contributions at any time during
the immediately preceding five (5) plan years.
"Permitted Acquisition" means an Eligible Acquisition
in which each of the following shall have been completed or
certified by a Responsible Officer on terms in form and
substance satisfactory to the Agent and the Majority Banks:
(a) a certificate from the Responsible Officer
certifying that or as to the following:
(i) the business of the Acquisition Prospect is,
taken as whole, substantially similar to the business of the
Company and the Subsidiaries engaged in on the date hereof;
(ii) the Person surviving the Eligible Acquisition
is the Company or a Subsidiary of the Company;
(iii) immediately before and after giving
effect to the Eligible Acquisition no Default or Event of
Default shall have occurred and be continuing;
(iv) the sources and uses of funds in connection
with the Eligible Acquisition;
(v) the Eligible Acquisition is not a Hostile
Acquisition; and
(vi) the aggregate consideration paid and
obligations assumed by the Company or any of its Wholly-
Owned Subsidiary in connection with the Eligible Acquisition
is less than $25,000,000;
(b) true and correct copies of
<PAGE>
(i) , if the aggregate consideration to be paid in
connection with the Eligible Acquisition exceeds $2,500,000
and to the extent they are available,
(A) audited consolidated and consolidating
financial statements of the Acquisition Prospect for its
three most recently ended fiscal years; and
(B) unaudited consolidated and consolidating
financial statements from the end of the Acquisition
Prospect's most recently ended fiscal year to the end of its
most recently ended fiscal quarter;
(ii) , if the aggregate consideration to be paid
in connection with the Eligible Acquisition exceeds
$2,500,000, a pro forma consolidated balance sheet,
statement of income and cash flow and projections of the
Company and the Subsidiaries after giving effect to the
Eligible Acquisition and all the transactions contemplated
thereby, for the period from the effective date of such
Acquisition until the period ending four full fiscal
quarters thereafter;
(iii) a duly completed Compliance Certificate,
on a pro forma basis after giving effect to the Eligible
Acquisition and all the transactions contemplated thereby,
with respect to the covenants set forth in Section 8.1.12,
for the period from the effective date of the Eligible
Acquisition until the period ending four full fiscal
quarters thereafter; and
(iv) each material written agreement relating to
the Eligible Acquisition; and
(c) such other matters in connection with the Eligible
Acquisition as may be reasonably requested by the Agent or
the Majority Banks.
"Permitted Disposition" means any sale, lease, transfer
or other disposition of assets (including without limitation
capital stock and receivables) of the Company or any of the
Subsidiaries not otherwise permitted by subsections (a)
through (e) of Section 8.02 or pursuant to subsection
8.03(b)(i), provided that (a) after giving effect to such
disposition (i) not less than 50% of the aggregate
consideration received for all such dispositions since the
Closing Date shall be in the form of cash and (ii) the
aggregate consideration received for all such dispositions
since the Closing Date shall not exceed 15% of the Company's
total assets and (b) both immediately before and after
giving effect to each such disposition no Default or Event
of Default shall have occurred and be continuing.
"Permitted Liens" has the meaning specified in Section
8.01.
"Permitted Swap Obligations" means all obligations
(contingent or otherwise) of the Company or any Subsidiary
existing or arising under Swap Contracts, provided that each
of the following criteria is satisfied: (a) such
obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly
mitigating
<PAGE>
risks associated with liabilities, commitments or assets
held by such Person, or changes in the value of securities
issued by such Person in conjunction with a securities
repurchase program not otherwise prohibited hereunder, and
not for purposes of speculation or taking a "market view;"
(b) such Swap Contracts do not contain (i) any provision
("walk-away" provision) exonerating the non-defaulting party
from its obligation to make payments on outstanding
transactions to the defaulting party, or (ii) any provision
creating or permitting the declaration of an event of
default, termination event or similar event upon the
occurrence of an Event of Default hereunder (other than an
Event of Default under subsection 9.01(a)).
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture or
Governmental Authority.
"Plan" means an employee benefit plan (as defined in
Section 3(3) of ERISA) which the Company sponsors or
maintains or to which the Company makes, is making, or is
obligated to make contributions and which is a Pension Plan
or a Multiemployer Plan.
"Pro Rata Distribution Event" means the earlier to
occur of (a) any event specified in subsection (f) or (g) of
Section 9.01 (in the cases of subsection (g)(i) upon the
expiration of the 60-day period mentioned therein) and (b)
the date on which the Majority Banks instruct the Agent to
exercise those remedies set forth in Section 9.02.
"Pro Rata Share" means (a) prior to the occurrence and
continuance of any Pro Rata Distribution Event, the Term
Loan Pro Rata Share, the Tranche A Revolving Pro Rata Share,
the Tranche B Revolving Pro Rata Share and the Swing Line
Pro Rata Share, as the context may require, and (b) after
the occurrence and during the continuance of any Pro Rata
Distribution Event, with respect to each Bank a fraction
(calculated as a percentage), the numerator of which equals
the aggregate principal amount of all the Loans and L/C
Obligations of such Bank and the denominator of which equals
the aggregate principal amount of all the Loans and L/C
Obligations of all the Banks; provided, however, that
notwithstanding the occurrence of any Pro Rata Distribution
Event, references to the Tranche B Revolving Pro Rata Share
(i) in subsection 2.03(b) as it relates to the making of
Tranche B Revolving Loans and the purchasing of risk
participations by the Tranche B Revolving Banks in any
outstanding Swing Line Loans and (ii) in Section 3.03 as it
relates to the making of Tranche B Revolving Loans and L/C
Advances and the purchasing of risk participations by the
Tranche B Revolving Banks in the outstanding Letters of
Credit, shall at all times refer to the meaning of such term
as provided for in subclause (a) of this definition.
"Refunded Swing Line Loans" has the meaning specified
in subsection 2.03(b)(ii).
"Replacement Notice" has the meaning specified in
Section 4.07.
<PAGE>
"Reportable Event" means, any of the events set forth
in Section 4043(b) of ERISA or the regulations thereunder,
other than any such event for which the 30-day notice
requirement under ERISA has been waived in regulations
issued by the PBGC.
"Requirement of Law" means, as to any Person, any
domestic or foreign law (statutory or common), treaty, rule
or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or
binding upon the Person or any of its property or to which
the Person or any of its property is subject.
"Responsible Officer" means the chief executive
officer, the president, chief financial officer or treasurer
of the Company, or any other officer having substantially
the same authority and responsibility.
"Same Day Funds" means (i) with respect to
disbursements and payments in Dollars, immediately available
funds, and (ii) with respect to disbursements and payments
in an Offshore Currency, same day or other funds as may be
determined by the Tranche A Revolving Bank to be customary
in the place of disbursement or payment for the settlement
of international banking transactions in the relevant
Offshore Currency.
"SEC" means the Securities and Exchange Commission, or
any Governmental Authority succeeding to any of its
principal functions.
"Significant Subsidiary" means, at any date of
determination, any Subsidiary (whether now existing or
hereafter acquired or created) that, together with its
Subsidiaries, (a) for the most recent fiscal year accounted
for or would have accounted for, as the case may be, more
than 3% of the consolidated revenues of the Company and the
Subsidiaries during such fiscal year or (b) as of the end of
the most recent fiscal year was or would have been, as the
case may be, the owner of more than 3% of the consolidated
assets of the Company and the Subsidiaries at the end of
such fiscal year, all as set forth on the most recently
available consolidated financial statements of the Company
for such fiscal year.
"Solvent" means, as to any Person at any time, that (a)
the fair value of the property of such Person is greater
than the amount of such Person's liabilities (including
disputed, contingent and unliquidated liabilities) as such
value is established and liabilities evaluated for purposes
of Section 101(32) of the Bankruptcy Code; (b) the present
fair saleable value of the tangible and intangible property
of such Person is not less than the amount that will be
required to pay the probable liabilities of such Person on
its debts as they become absolute and matured; (c) such
Person is able to realize upon its property and pay its
debts and other liabilities (including disputed, contingent
and unliquidated liabilities) as they mature in the normal
course of business; (d) such Person does not intend to, and
does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay such debts and
liabilities as they mature; and (e) such Person is not
engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such
Person's property would constitute unreasonably small
capital.
<PAGE>
"Spot Rate" for a currency means the rate quoted by
BofA as the spot rate for the purchase by BofA of such
currency with another currency through its FX Trading Office
at approximately 8:00 a.m. (San Francisco time) on the date
two Business Days prior to the date as of which the foreign
exchange computation is made.
"Subordinated Debt Agreement" means the Indenture,
dated as of December 1, 1993, between the Company and the
Subordinated Debt Trustee.
"Subordinated Debt Trustee" means NationsBank N.A.
(South) (formerly known as Nationsbank of Georgia, National
Association), as trustee under the Subordinated Debt
Agreement, together with its successors and assigns in such
capacity.
"Subordinated Note" means each 9 5/8% Senior
Subordinated Note due 2003 of the Company that is issued
pursuant to the Subordinated Debt Agreement.
"Subordination Provisions" has the meaning specified in
subsection 6.18.
"Subsidiary" of a Person means any corporation,
association, partnership, limited liability company, joint
venture or other business entity of which more than 50% of
the voting stock, membership interests or other equity
interests (in the case of Persons other than corporations),
is owned or controlled directly or indirectly by the Person,
or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly
requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Company.
"Supplemental Subordinated Note Payment" has the
meaning specified in subsection 8.10(vi).
"Surety Instruments" means all letters of credit
(including standby and commercial), banker's acceptances,
bank guaranties, shipside bonds, surety bonds and similar
instruments.
"Subsidiary Guarantor" has the meaning specified in the
introductory clause hereto.
"Swap Contract" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap,
basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap or option,
bond, note or bill option, interest rate option, forward
foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap,
swaption, currency option or any other, similar transaction
(including any option to enter into any of the foregoing) or
any combination of the foregoing, and, unless the context
otherwise clearly requires, any master agreement relating to
or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of any one
or more Swap Contracts, after taking into account the effect
of any legally enforceable netting agreement relating
<PAGE>
to such Swap Contracts, (a) for any date on or after the
date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith,
such termination value(s), and (b) for any date prior to the
date referenced in subclause (a) the amount(s) determined as
the mark-to-market value(s) for such Swap Contracts, as
determined by the Company based upon one or more mid-market
or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include
any Bank.)
"Swing Line Bank" means the Bank designated as such on
Schedule 2.01 or pursuant to an Assignment and Acceptance.
"Swing Line Commitment" means the commitment of the
Swing Line Bank to make Swing Line Loans in an aggregate
amount not to exceed the Swing Line Commitment Amount. The
Swing Line Commitment is a sub-facility of the Tranche B
Revolving Commitment and is not an additional commitment
that is separate and apart from the Tranche B Revolving
Commitment. Swing Line Loans shall only be made in Dollars.
"Swing Line Commitment Amount" means $5,000,000, as
such amount may be reduced from time to time pursuant to
Section 2.06. The Swing Line Commitment Amount is a sub-
facility of the Tranche B Revolving Commitment Amount and,
accordingly, the (a) aggregate principal amount of Swing
Line Loans and Tranche B Revolving Loans plus the (b)
aggregate Dollar Equivalent amount of L/C Obligations shall
not at any time exceed the Tranche B Revolving Commitment
Amount.
"Swing Line Loan" means each swing line loan made to
the Company by the Swing Line Bank pursuant to subsection
2.01(d).
"Swing Line Note" means a promissory note,
substantially in the form of Exhibit F-4, issued by the
Company in favor of the Swing Line Bank pursuant to
subsection 2.02(b).
"Swing Line Pro Rata Share" means
(a) with respect to the Swing Line Bank at all times
other than as provided in the immediately following
subclause (b), 100%; and
(b) at all times after the Tranche B Revolving Banks
have purchased risk participations in the Swing Line Loans
as provided in subsection 2.03(b)(ii), the Tranche B
Revolving Pro Rata Share of each Tranche B Revolving Bank.
"Taxes" means any and all domestic and foreign present
or future taxes, levies, assessments, imposts, duties,
deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, imposed or payable on or
with respect to any payment made under this Agreement or any
other Loan Document, excluding, in the case of each
<PAGE>
Bank and the Agent, respectively, franchise taxes and taxes
imposed on or measured by its net income, receipts or
capital.
"Term Loan" means a term loan made to the Company by a
Term Loan Bank pursuant to subsection 2.01(a), such loans to
be made according to each Bank's Term Loan Pro Rata Share of
the Term Loan Commitment Amount.
"Term Loan Bank" means a Bank designated as such on
Schedule 2.01 attached hereto or pursuant to an Assignment
and Acceptance.
"Term Loan Commitment" means, with respect to each Term
Loan Bank, the commitment of such Bank to make Term Loans
pursuant to subsection 2.01(a) to the Company, not to exceed
its Term Loan Pro Rata Share of the Term Loan Commitment
Amount. Term Loans shall only be made in Dollars.
"Term Loan Commitment Amount" means, with respect to
all the Term Loan Banks, $30,000,000.
"Term Loan Note" means each of the promissory notes,
substantially in the form of Exhibit F-3, issued by the
Company in favor of each Term Loan Bank pursuant to
subsection 2.02(b).
"Term Loan Pro Rata Share" means, with respect to each
Term Loan Bank, the percentage identified as such opposite
the name of such Bank on Schedule 2.01 under the heading
"Term Loan Pro Rata Share" (or, if such Bank is a party to
an Assignment and Acceptance, the percentage identified as
such opposite the name of such Bank in the most recent
Assignment and Acceptance executed by such Bank).
"Tranche A Extension Request" means an Extension
Request delivered pursuant to Section 2.16, substantially in
the form of Exhibit G.
"Tranche A Revolving Bank" means the Bank designated as
such on Schedule 2.01 or pursuant to an Assignment and
Acceptance, and shall include for purposes of each Tranche A
Revolving Supplement Agreement and any actions taken
pursuant thereto each relevant Lending Office (including any
branch, agency or other division or Affiliate of the Tranche
A Revolving Bank acting through each such Lending Office)
acting on behalf of the Tranche A Revolving Bank designated
on Schedule 11.02 or pursuant to an Assignment and
Acceptance.
"Tranche A Revolving Borrowers" has the meaning
specified in the introductory clause hereto. Without
limiting the requirements of clause (c) of the definition of
"Change of Control", if any Tranche A Revolving Borrower
(other than the Company) ceases to be a Wholly-Owned
Subsidiary at any time, such Borrower shall (a) be
prohibited from making any additional Borrowings hereunder,
(b) immediately repay in full in cash all of its Obligations
outstanding hereunder and (c) upon acknowledgment by the
Agent to the Company of the payment in full of all such
Borrower's Obligations
<PAGE>
pursuant to the preceding clause (b) cease, automatically
and without notice to or action by any Person, to be a
Tranche A Revolving Borrower hereunder.
"Tranche A Revolving Commitment" means, with respect to
the Tranche A Revolving Bank, the commitment of such Bank to
make Tranche A Revolving Loans pursuant to subsection
2.01(b) to the Tranche A Revolving Borrowers. Tranche A
Revolving Loans may be made in any Applicable Currency.
"Tranche A Revolving Commitment Amount" means the
Dollar Equivalent of $30,000,000, as such amount may be
reduced from time to time pursuant to Section 2.06.
"Tranche A Revolving Commitment Termination Date" means
the earliest to occur of:
(a) the Maturity Date;
(b) the date on which the Tranche A Revolving
Commitment of the Tranche A Revolving Bank shall
be reduced to zero pursuant to Section 2.06; and
(c) the date of termination of the Tranche A Revolving
Commitment pursuant to Section 9.02.
"Tranche A Revolving Computation Date" has the meaning
specified in subsection 2.05(a).
"Tranche A Revolving Loan" means each tranche A
revolving loan made to any Tranche A Revolving Borrower by
the Tranche A Revolving Bank pursuant to Section 2.01(b).
"Tranche A Revolving Note" means each of the promissory
notes, substantially in the form of Exhibit F-1, issued by
the Tranche A Revolving Borrowers in favor of the Tranche A
Revolving Bank pursuant to subsection 2.02(b).
"Tranche A Revolving Pro Rata Share" means, with
respect to the Tranche A Revolving Bank, 100%.
"Tranche A Revolving Supplement Agreement" means each
agreement between each Tranche A Revolving Borrower and the
Tranche A Revolving Bank to be used with respect to the
Tranche A Revolving Loans and in substantially the form of
Exhibit J.
"Tranche B Revolving Bank" means a Bank designated as
such on Schedule 2.01 attached hereto or pursuant to an
Assignment and Acceptance.
"Tranche B Revolving Commitment" means, with respect to
each Tranche B Revolving Bank, the commitment of such Bank
to make Tranche B Revolving Loans
<PAGE>
pursuant to subsection 2.01(c) to the Company, not to exceed
its Tranche B Revolving Pro Rata Share of the Tranche B
Revolving Commitment Amount. Tranche B Revolving Loans
shall only be made in Dollars.
"Tranche B Revolving Commitment Amount" means, with
respect to all the Tranche B Revolving Banks, $120,000,000,
as such amount may be reduced from time to time pursuant to
Section 2.06.
"Tranche B Revolving Commitment Termination Date" means
the earliest to occur of:
(a) the Maturity Date;
(b) the date on which the Tranche B Revolving
Commitment of all the Tranche B Revolving Banks
shall be reduced to zero pursuant to Section 2.06;
and
(c) the date of termination of the Tranche B Revolving
Commitment pursuant to Section 9.02.
"Tranche B Revolving Loan" means each tranche B
revolving loan made to the Company by a Tranche B Revolving
Bank pursuant to subsection 2.01(c), such loans to be made
according to such Bank's Tranche B Revolving Pro Rata Share
of the Tranche B Revolving Commitment Amount.
"Tranche B Revolving Note" means each of the promissory
notes, substantially in the form of Exhibit F-2, issued by
the Company in favor of each Tranche B Revolving Bank
pursuant to subsection 2.02(b).
"Tranche B Revolving Pro Rata Share" means, with
respect to each Tranche B Revolving Bank, the percentage
identified as such opposite the name of such Bank on
Schedule 2.01 under the heading "Tranche B Revolving Pro
Rata Share" (or, if such Bank is a party to an Assignment
and Acceptance, the percentage identified as such opposite
the name of such Bank in the most recent Assignment and
Acceptance executed by such Bank).
"Type" has the meaning specified in the definition of
"Loan."
"Unallocated Offshore Sublimit Commitment Amount" has
the meaning specified in the definition of "Offshore
Sublimit Commitment Amount".
"Unfunded Pension Liability" means the excess of a
Plan's benefit liabilities under Section 4001(a)(16) of
ERISA, over the current value of that Plan's assets,
determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code
for the applicable plan year.
<PAGE>
"United States" and "U.S." each means the United States
of America.
"U.S. Person" means any Person that is (i) a citizen or
resident of the United States, (ii) a corporation,
partnership or other entity created or organized under the
laws of the United States or any State thereof or (iii) any
estate or trust that is subject to U.S. Federal income
taxation regardless of the source of its income.
"Wholly-Owned Subsidiary" means any corporation in
which (other than directors' qualifying shares required by
law) 100% of the capital stock of each class having ordinary
voting power, and 100% of the capital stock of every other
class, in each case, at the time as of which any
determination is being made, is owned, beneficially and of
record, by the Company, or by one or more of the other
Wholly-Owned Subsidiaries, or both. Unless the context
otherwise clearly requires, references herein to a "Wholly-
Owned Subsidiary" refers to a Wholly-Owned Subsidiary of the
Company.
1.02 Other Interpretive Provisions. (a) The meanings of
defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and
similar words refer to this Agreement as a whole and not to any
particular provision of this Agreement; and subsection, Section,
Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates,
indentures, notices and other writings, however evidenced.
(ii) The term "including" is not limiting and
means "including without limitation."
(iii) In the computation of periods of time
from a specified date to a later specified date, the word
"from" means "from and including"; the words "to" and
"until" each mean "to but excluding", and the word "through"
means "to and including."
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the
extent such amendments and other modifications are not prohibited
by the terms of any Loan Document, and (ii) references to any
statute or regulation are to be construed as including all
statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
<PAGE>
(f) This Agreement and other Loan Documents may use
several different limitations, tests or measurements to regulate
the same or similar matters. All such limitations, tests and
measurements are cumulative and shall each be performed in
accordance with their terms. Unless otherwise expressly
provided, any reference to any action of the Agent or the Banks
by way of consent, approval or waiver shall be deemed modified by
the phrase "in its/their reasonable discretion."
(g) This Agreement and the other Loan Documents are
the result of negotiations among and have been reviewed by
counsel to the Agent, the Banks, the Borrowers and the other
parties, and are the products of all parties. Accordingly, they
shall not be construed against the Banks or the Agent merely
because of the Agent's or Banks' involvement in their
preparation.
1.03 Accounting Principles. (a) Unless the context
otherwise clearly requires, all accounting terms not expressly
defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with
GAAP, consistently applied.
(b) References herein to "fiscal year" means any
period of twelve consecutive calendar months ending on March
31st. References to a fiscal year with a number corresponding to
any calendar year (e.g., "fiscal year 1996"), refers to the
fiscal year ending during such calendar year. Reference to any
fiscal quarter refers to a quarter of a fiscal year.
1.04 Currency Equivalents Generally. For all purposes of
this Agreement (but not for purposes of the preparation of any
financial statements delivered pursuant hereto), the equivalent
in any Offshore Currency or other currency of an amount in
Dollars, and the equivalent in Dollars of an amount in any
Offshore Currency or other currency, shall be determined at the
Spot Rate.
ARTICLE II
THE CREDITS
-----------
2.01 Amounts and Terms of Commitments. The Banks agree to
make Loans to the Borrowers in accordance with the Commitments
described in this Section 2.01.
(a) Term Credit. Each Term Loan Bank severally
agrees, on the terms and conditions set forth herein, to make to
the Company a Term Loan on the Closing Date (and on no other or
subsequent date) in an amount not to exceed such Bank's Term Loan
Pro Rata Share of the Term Loan Commitment Amount. Immediately
after the making of the Term Loans the Term Loan Commitment shall
irrevocably terminate in its entirety. Amounts borrowed as Term
Loans which are repaid or prepaid by the Company may not be
reborrowed. All Term Loans shall be in Dollars.
(b) Tranche A Revolving Credit. The Tranche A
Revolving Bank agrees, on the terms and conditions set forth
herein and in each applicable Tranche A Revolving Supplement
Agreement, to make from time to time on any Business Day during
the period from
<PAGE>
the Closing Date to the Tranche A Revolving Commitment
Termination Date, Tranche A Revolving Loans to each Tranche A
Revolving Borrower (as set forth in Schedule 11.02) in an
aggregate principal Dollar Equivalent amount not to exceed at any
time outstanding the Tranche A Revolving Commitment Amount;
provided, however, that, after giving effect to any Borrowing of
Tranche A Revolving Loans, the aggregate principal Dollar
Equivalent amount of the Tranche A Revolving Loans shall not
exceed either (i) the Tranche A Revolving Commitment Amount or
(ii) the applicable Offshore Sublimit Commitment Amount. Tranche
A Revolving Loans may be in any Applicable Currency. Within the
limits of the Tranche A Revolving Commitment Amount and each
Offshore Sublimit Commitment Amount, and subject to the other
terms and conditions hereof and in each applicable Tranche A
Revolving Supplement Agreement, each Tranche A Revolving Borrower
may borrow under this subsection 2.01(b), prepay pursuant to
Section 2.07 and reborrow pursuant to this subsection 2.01(b).
(c) Tranche B Revolving Credit. Each Tranche B
Revolving Bank severally agrees, on the terms and conditions set
forth herein, to make Tranche B Revolving Loans to the Company
from time to time on any Business Day during the period from the
Closing Date to the Tranche B Revolving Commitment Termination
Date, in an aggregate principal amount not to exceed at any time
outstanding such Bank's Tranche B Revolving Pro Rata Share of the
Tranche B Revolving Commitment Amount; provided, however, that,
after giving effect to any Borrowing of Tranche B Revolving
Loans, the (i) aggregate principal amount of all outstanding
Tranche B Revolving Loans and Swing Line Loans plus the (ii)
aggregate Dollar Equivalent amount of all L/C Obligations shall
not exceed the Tranche B Revolving Commitment Amount. All
Tranche B Revolving Loans shall be in Dollars. Within the limits
of each Bank's Tranche B Revolving Commitment, and subject to
other terms and conditions hereof, the Company may borrow under
this subsection 2.01(c), prepay pursuant to Section 2.07 and
reborrow pursuant to this subsection 2.01(c).
(d) Swing Line Credit. The Swing Line Bank agrees, on
the terms and conditions set forth herein, to make Swing Line
Loans to the Company from time to time on any Business Day during
the period from the Closing Date until the Tranche B Revolving
Commitment Termination Date, in an aggregate principal amount not
to exceed the Swing Line Commitment Amount; provided, however,
that, after giving effect to any Borrowing of Swing Line Loans,
(i) the aggregate principal amount of all outstanding Swing Line
Loans shall not exceed the Swing Line Commitment Amount and (ii)
the (x) aggregate principal amount of all Swing Line Loans and
Tranche B Revolving Loans plus the (y) aggregate Dollar
Equivalent amount of all L/C Obligations shall not exceed the
Tranche B Revolving Commitment Amount. All Swing Line Loans
shall be in Dollars. Within the limits of the Swing Line
Commitment Amount, and subject to the other terms and conditions
hereof, the Company may borrow under this subsection 2.01(d),
prepay pursuant to Section 2.07 and reborrow pursuant to this
subsection 2.01(d).
2.02 Loan Accounts. (a) The Loans made by each Bank and the
Letters of Credit Issued by the Issuing Bank shall be evidenced
by one or more loan accounts or records maintained by such Bank
or Issuing Bank, as the case may be, in the ordinary course of
business. The loan accounts or records maintained by the Agent,
the Issuing Bank and each Bank shall be conclusive, absent
manifest error, of the amount of the Loans, interest and
<PAGE>
payments thereon made by the Banks to each Borrower and the
Letters of Credit Issued for the account of the Company. Any
failure so to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of any Borrower
hereunder to pay any amount owing with respect to the Loans or
any Letter of Credit.
(b) Upon the request of any Bank, the Loans made by
such Bank may be evidenced by one or more Notes, instead of or in
addition to loan accounts. Each such Bank shall endorse on the
schedules annexed to its Note(s) the date, amount and maturity of
each Loan made by it and the amount and Applicable Currency of
each payment of principal made by each Borrower with respect
thereto. Each such Bank is irrevocably authorized by each
Borrower to endorse its Note(s) and each Bank's record shall be
conclusive absent manifest error; provided, however, that the
failure of a Bank to make, or an error in making, a notation
thereon with respect to any Loan shall not limit or otherwise
affect the obligations of any Borrower hereunder or under any
such Note to such Bank.
2.03 Procedure for Borrowing. Domestic Loans shall be made
by the Domestic Banks in accordance with subsection 2.03(a),
Swing Line Loans shall be made by the Swing Line Bank in
accordance with subsection 2.03(b) and Tranche A Revolving Loans
shall be made by the Tranche A Revolving Bank in accordance with
subsection 2.03(c).
(a) Domestic Loans. (i) Each Borrowing of Domestic
Loans shall be made upon the Company's irrevocable written notice
delivered to the Agent at its relevant Lending Office in the form
of a Notice of Borrowing (which notice must be received by the
Agent prior to 9:00 a.m. (San Francisco time) (x) three Business
Days prior to the requested Borrowing Date, in the case of LIBOR
Rate Loans, and (y) one Business Day prior to the requested
Borrowing Date, in the case of Base Rate Loans), specifying:
(A) the amount of the Borrowing, which shall
be in an aggregate amount not less than the
Minimum Tranche;
(B) the requested Borrowing Date, which
shall be a Business Day;
(C) the Type of Loans comprising the
Borrowing; and
(D) the duration of the Interest Period
applicable to such Domestic Loans included in such
notice. If the Notice of Borrowing fails to
specify the duration of the Interest Period for
any LIBOR Rate Loans, such Interest Period shall
be three months.
(ii) The Agent shall, promptly after its receipt
of any such Notice of Borrowing, notify each Domestic Bank of its
receipt of such Notice of Borrowing and the amount of each such
Domestic Bank's Pro Rata Share of the relevant Borrowing. Each
Bank will make, in Same Day Funds, the amount of its Pro Rata
Share of each Borrowing of Domestic Loans available to the Agent
for the account of the Company at the Agent's Payment Office on
the Borrowing Date requested by the Company by 11:00 a.m. (San
Francisco time).
<PAGE>
The proceeds of all such Loans will then be made available by the
Agent, in like funds as received by the Agent, to the Company by
wire transfer in accordance with the written instructions
provided to the Agent by the Company.
(iii) After giving effect to any Borrowing
pursuant to this subsection (a) and any continuation or
conversion pursuant to subsection 2.04(a), unless the Agent shall
otherwise consent, there may not be in effect more than five
different Interest Periods for all the Domestic Loans.
(b) Swing Line Loans. (i) By telephonic notice to
the Agent and the Swing Line Bank on or before 9:00 a.m. (San
Francisco time) on the Business Day the proposed Swing Line Loans
are to be made (promptly followed by facsimile transmission to
the Swing Line Bank and the Agent, not later than 1:00 p.m. (San
Francisco time) on such Business Day, of a confirming Notice of
Borrowing), the Company may from time to time irrevocably request
that Swing Line Loans be made by the Swing Line Bank in an
aggregate amount which shall not be less than the Minimum
Tranche. All Swing Line Loans shall be made as Base Rate Loans
and shall not be entitled to be converted into LIBOR Rate Loans.
Promptly following confirmation from the Agent to the Swing Line
Bank that all the conditions for making a Swing Line Loan have
been satisfied, the proceeds of each Swing Line Loan shall be
made available by the Swing Line Bank, by its close of business
on the Business Day in which it receives such confirmation from
the Agent, to the Company by wire transfer in accordance with the
written instructions provided to the Swing Line Bank by the
Company.
(ii) If
(A) requested by the Swing Line Bank (as
communicated to the Agent and the Company);
(B) any Swing Line Loan is or will be outstanding
on a date when the Company requests that a Tranche B
Revolving Loan be made; or
(C) any Default or Event of Default shall occur
and be continuing,
each Tranche B Revolving Bank (other than the Swing Line Bank)
irrevocably agrees that it will, promptly following notice from
the Agent to the Tranche B Revolving Banks of the occurrence of
any of the events referred to in the preceding subclauses (A)
through (C) (which notice the Agent agrees to provide promptly
for and on behalf of the Swing Line Bank), make a Tranche B
Revolving Loan (which shall initially be funded as a Base Rate
Loan) in an amount equal to such Bank's Tranche B Revolving Pro
Rata Share of the aggregate principal amount of all such Swing
Line Loans then outstanding (such outstanding Swing Line Loans
hereinafter referred to as the "Refunded Swing Line Loans"). On
or before 9:00 a.m. (San Francisco time) on the first Business
Day following the occurrence of one of the foregoing, each such
Tranche B Revolving Bank shall deposit in an account specified by
the Swing Line Bank the amount so requested in Same Day Funds and
such funds shall be applied by the Swing Line Bank to repay the
Refunded Swing Line Loans. At the time the aforementioned
Tranche B Revolving Banks make the above-referenced Tranche B
Revolving Loans, the Swing Line Bank shall be deemed to have
<PAGE>
made, in consideration of the making of the Refunded Swing Line
Loans, Tranche B Revolving Loans in an amount equal to the Swing
Line Bank's Tranche B Revolving Pro Rata Share of the aggregate
principal amount of the Refunded Swing Line Loans. Upon the
making (or deemed making, in the case of the Swing Line Bank) of
any Tranche B Revolving Loans pursuant to this subsection (ii),
the amount so funded shall become outstanding under such Tranche
B Revolving Bank's Tranche B Revolving Note and shall no longer
be owed under the Swing Line Note. The Company hereby authorizes
the Agent and the Swing Line Bank to charge the Company's
accounts with the Agent and the Swing Line Bank in order to
immediately pay the Swing Line Bank the amount of the Refunded
Swing Line Loans to the extent the proceeds of the Tranche B
Revolving Loans made by the Banks, including the Tranche B
Revolving Loan deemed to be made by the Swing Line Bank, are not
sufficient to repay in full the Refunded Swing Line Loans.
If, as a result of any Insolvency Proceeding with respect to
the Company or otherwise, the Tranche B Revolving Loans are not
made pursuant to this subsection (ii) in an amount sufficient to
repay any amounts owed to the Swing Line Bank in respect of any
outstanding Swing Line Loans, each Tranche B Revolving Bank shall
be deemed to, and hereby agrees to, have purchased a
participation in such outstanding Swing Line Loans in an amount
equal to its Tranche B Revolving Pro Rata Share of the unpaid
amount together with accrued interest hereon. Upon one Business
Day's notice from the Agent, acting for and on behalf of the
Swing Line Bank, each such Tranche B Revolving Bank shall deliver
to the Swing Line Bank an amount equal to its respective
participation in Same Day Funds. In the event such Tranche B
Revolving Bank fails to make available the amount of such Bank's
participation as provided in this paragraph, the Swing Line Bank
shall be entitled to recover such amount on demand from such
Bank, together with the interest thereon at the rate customarily
used by the Swing Line Bank for the correction of errors among
banks, for two Business Days after such demand and thereafter at
the Base Rate.
All interest payable with respect to any Tranche B Revolving
Loans made (or deemed made, in the case of the Swing Line Bank)
pursuant to this subsection (ii) shall be appropriately adjusted
to reflect the period in respect of which such Tranche B
Revolving Loans were made. Each Tranche B Revolving Bank's
obligation to make the Tranche B Revolving Loans referred to in
this subsection (ii) shall be absolute and unconditional and
shall not be affected by any circumstance, including, without
limitation, (A) any set-off, counterclaim, recoupment, defense or
other right which such Bank may have against the Swing Line Bank,
the Company or any other Person for any reason whatsoever; (B)
the occurrence or continuance of any Default; (C) the
acceleration or maturity of any Loans or the termination of any
Commitment after the making of any Swing Line Loan; (D) any
breach of this Agreement or any other Loan Document by the
Company, any Borrower, any Bank or the Agent; or (E) any other
circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
(c) Tranche A Revolving Loans. (i) Each Borrowing of
Tranche A Revolving Loans by any Tranche A Revolving Borrower
shall be made , in an aggregate amount not less than the Minimum
Tranche, pursuant to the terms of this Agreement and the
applicable Tranche A Revolving Supplement Agreement between each
such Tranche A Revolving Borrower and the Tranche A Revolving
Bank. The terms of each such Tranche A Revolving Supplement
<PAGE>
Agreement shall be determined by mutual agreement of the relevant
Tranche A Revolving Borrower and the Tranche A Revolving Bank.
All the documentation governing each Tranche A Revolving Loan
shall contain an express acknowledgment that it is subject to the
terms of this Agreement. In the event of any inconsistency
between the terms of this Agreement and the terms of any Tranche
A Revolving Supplement Agreement, the terms of this Agreement
shall prevail.
(ii) Subject to the preceding subsection (i), each
Borrowing of Tranche A Revolving Loans shall be made upon the
relevant Tranche A Revolving Borrower's irrevocable written
notice delivered to the Tranche A Revolving Bank at its relevant
Lending Office in the form of a Notice of Borrowing (which notice
must be received by the Tranche A Revolving Bank on the terms
provided for in the relevant Tranche A Revolving Supplement
Agreement), specifying:
(A) the amount of the Borrowing, which shall
be in an aggregate amount not less than the
Minimum Tranche;
(B) the requested Borrowing Date, which
shall be a Business Day;
(C) the Applicable Currency and Type of
Loans comprising the Borrowing; and
(D) the duration of the Interest Period
applicable to such Fixed Rate Loans included in
such notice. If the Notice of Borrowing fails to
specify the duration of the Interest Period for
any Fixed Rate Loans, such Interest Period shall
be selected by the Tranche A Revolving Bank in
accordance with terms of the relevant Tranche A
Revolving Supplement Agreement.
(iii) After giving effect to any Borrowing pursuant
to this subsection (c) and any continuation or conversion
pursuant to subsection 2.04(b), unless the Tranche A Revolving
Borrower shall otherwise consent, there may not be in effect more
than the maximum number of Interest Periods for Fixed Rate Loans
specified in any applicable Tranche A Revolving Supplement
Agreement.
2.04 Conversion and Continuation Elections. Domestic Loans
may be converted or continued into any other Type of Domestic
Loan in accordance with subsection 2.04(a) and Tranche A
Revolving Loans may be converted or continued into any other Type
of Tranche A Revolving Loan in accordance with subsection
2.04(b).
(a) Domestic Loans. (i) The Company may, upon
irrevocable written notice to the Agent in accordance with
subsection (ii) with respect to any Domestic Loan:
(A) elect, as of any Business Day, in the
case of Base Rate Loans, or as of the last day of the
applicable Interest Period, in the case of any
<PAGE>
LIBOR Rate Loans, to convert any such Domestic Loans
(or any part thereof in an amount not less than the
Minimum Tranche) into Domestic Loans of any other Type;
or
(B) elect, as of the last day of the
applicable Interest Period, to continue any Domestic
Loans having Interest Periods expiring on such day (or
any part thereof in an amount not less than the Minimum
Tranche);
provided, that if at any time the aggregate amount of LIBOR Rate
Loans in respect of any Borrowing is reduced, by payment,
prepayment or conversion of part thereof to be less than
$5,000,000, such LIBOR Rate Loans shall automatically convert
into Base Rate Loans, and on and after such date the right of the
Company to continue such Domestic Loans as, and convert such
Domestic Loans into, LIBOR Rate Loans shall terminate.
(ii) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later
than 9:00 a.m.(San Francisco time) at least (x) three Business
Days in advance of the Conversion/Continuation Date, if the
Domestic Loans are to be converted into or continued as LIBOR
Rate Loans, and (y) one Business Day in advance of the
Conversion/Continuation Date, if the Domestic Loans are to be
converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation
Date;
(B) the aggregate amount of Domestic Loans
to be converted or continued;
(C) the Type of Domestic Loans resulting
from the proposed conversion or continuation; and
(D) other than in the case of conversions
into Base Rate Loans, the duration of the
requested Interest Period.
(iii) If upon the expiration of any Interest
Period applicable to any LIBOR Rate Loan the Company has failed
to timely select a new Interest Period to be applicable to such
LIBOR Rate Loan, or if any Default or Event of Default then
exists, the Company shall be deemed to have elected to convert
such LIBOR Rate Loan into a Base Rate Loan effective as of the
expiration date of such Interest Period. In addition, no Base
Rate Loan may be converted into a LIBOR Rate Loan when any
Default or Event of Default has occurred and is continuing.
(iv) The Agent will promptly notify each relevant
Domestic Bank of its receipt of a Notice of
Conversion/Continuation, or, if no timely notice is provided by
the Company, the Agent will promptly notify each relevant
Domestic Bank of the details of any automatic conversion. All
conversions and continuations shall be made ratably according to
the respective Tranche B Revolving Pro Rata Share and Term Loan
Pro Rata Share of each Domestic Bank.
<PAGE>
(b) Tranche A Revolving Loans. (i) Each Tranche A
Revolving Borrower may, in accordance with the terms of its
Tranche A Revolving Supplement Agreement with the Tranche A
Revolving Bank, convert or continue, as the case may be, any
Tranche A Revolving Loan of any Type to a Tranche A Revolving
Loan of another Type.
(ii) Subject to the preceding subsection (i), each
Tranche A Revolving Borrower may, upon irrevocable written notice
to the Tranche A Revolving Bank in accordance with subsection
(iii), with respect to any Tranche A Revolving Loan:
(A) elect, as of any Business Day, in the
case of Floating Rate Loans, or as of the last day of
the applicable Interest Period, in the case of any
Fixed Rate Loans, to convert any such Tranche A
Revolving Loans (or any part thereof in an amount not
less than the Minimum Tranche) into Tranche A Revolving
Loans of any other Type; or
(B) elect, as of the last day of the
applicable Interest Period, to continue any Tranche A
Revolving Loans having Interest Periods expiring on
such day (or any part thereof in an amount not less
than the Minimum Tranche);
provided, that if at any time the aggregate amount of Fixed Rate
Loans in respect of any Borrowing is reduced, by payment,
prepayment, or conversion of part thereof to be less than the
amount (if any) specified in the applicable Tranche A Revolving
Supplement Agreement, such Fixed Rate Loans shall automatically
convert into Floating Rate Loans (as provided in the applicable
Tranche A Revolving Supplement Agreement), and on and after such
date the right of the relevant Tranche A Revolving Borrower to
continue such Tranche A Revolving Loans as, and convert such
Tranche A Revolving Loans into, Fixed Rate Loans shall terminate.
(iii) Each Tranche A Revolving Borrower shall
deliver a Notice of Conversion/Continuation to be received by the
Tranche A Revolving Bank, in the manner and on terms provided for
in the relevant Tranche A Revolving Supplement Agreement,
specifying:
(A) the proposed Conversion/Continuation
Date;
(B) the aggregate amount and Applicable
Currency of Tranche A Revolving Loans to be
converted or continued;
(C) the Type of Tranche A Revolving Loans
resulting from the proposed conversion or
continuation; and
(D) other than in the case of conversions
into Fixed Rate Loans, the duration of the
requested Interest Period.
(iv) If upon the expiration of any Interest Period
applicable to any Fixed Rate Loan the relevant Tranche A
Revolving Borrower has failed to timely select a new Interest
Period to be applicable to such Fixed Rate Loan, or if any
Default or Event of Default then exists, such Tranche A Revolving
Borrower shall be deemed to have elected to convert such
<PAGE>
Fixed Rate Loan into a Floating Rate Loan, effective as of the
expiration date of such Interest Period, in accordance with the
terms of the applicable Tranche A Revolving Supplement Agreement.
In addition, no Floating Rate Loan may be converted into a Fixed
Rate Loan when any Default or Event of Default has occurred and
is continuing.
2.05 Utilization of Tranche A Revolving Commitment in
Offshore Currencies. (a) The Tranche A Revolving Bank will
determine and notify each applicable Tranche A Revolving Borrower
of the Dollar Equivalent amount with respect to any Tranche A
Revolving Loan that is denominated in any Offshore Currency as of
(i) each requested Borrowing Date, (ii) the last Business Day of
each calendar month, (iii) the day any Offshore Currency Loan is
redenominated pursuant to this Section 2.05, (iv) the day in
which the Company proposes to readjust any Offshore Sublimit
Commitment Amount pursuant to the definition thereof and (v) such
other days as the Tranche A Revolving Bank or the Agent may
select from time to time (each such date under subclauses (i)
through (v), a "Tranche A Revolving Computation Date").
(b) In the case of a proposed Borrowing or
continuation or conversion of any Tranche A Revolving Loan that
is denominated in any Offshore Currency the Tranche A Revolving
Bank shall be under no obligation to make, continue or convert
such Tranche A Revolving Loan in the requested Offshore Currency
as part of such Borrowing or continuation or conversion if it
cannot provide such Loans in the requested Offshore Currency, in
which event the Tranche A Revolving Bank will give notice to the
relevant Tranche A Revolving Borrower prior to the requested time
of such Borrowing or Conversion/Continuation Date that the
requested Offshore Currency is not then available. Upon receipt
of such notice, the relevant Tranche A Revolving Borrower may
revoke its Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be. If the relevant
Tranche A Borrower does not revoke its Notice of Borrowing or
Notice of Conversion/Continuation, as the case may be, the
Tranche A Revolving Bank shall make, continue or convert, as the
case may be, a Tranche A Revolving Loan in the amount specified
in such notice or request in an Applicable Currency and in such a
Type as is selected by the Tranche A Revolving Bank.
(c) If upon the expiration of any Interest Period
applicable to any Fixed Rate Loan any Default or Event of Default
shall have occurred and be continuing, each relevant Tranche A
Revolving Borrower shall be deemed to have elected to convert
such Fixed Rate Loan into a Floating Rate Loan, as provided in
the applicable Tranche A Revolving Supplement Agreement,
effective as of the expiration date of such Interest Period.
2.06 Voluntary Termination or Reduction of Commitments. The
Company may, upon not less than three Business Days' prior notice
to the Agent and the Swing Line Bank (with respect to the Swing
Line Commitment), in the case of the Term Loan Commitment,
Tranche B Revolving Commitment, L/C Commitment and Swing Line
Commitment, and five Business Days' notice to the Agent and the
Tranche A Revolving Bank, in the case of the Tranche A Revolving
Commitment, terminate the Commitments or permanently reduce (a)
the Commitments (other than the Swing Line Commitment and L/C
Commitment) by an aggregate minimum Dollar Equivalent amount of
$2,500,000 or any Dollar Equivalent integral multiple of
$1,000,000 in excess thereof or (b) the Swing Line Commitment and
L/C Commitment by an aggregate minimum amount of $1,000,000 or
any integral multiple of $500,000 in excess
<PAGE>
thereof; unless, after giving effect thereto and to any
prepayments of Loans made on the effective date thereof, (i) the
then-outstanding principal Dollar Equivalent amount of Tranche A
Revolving Loans would exceed the Tranche A Revolving Commitment
Amount or (ii) the then (A) aggregate principal amount of Tranche
B Revolving Loans and Swing Line Loans plus (B) the then
aggregate Dollar Equivalent amount of all L/C Obligations would
exceed the Tranche B Revolving Commitment Amount. Any reduction
of the Tranche B Revolving Commitment Amount which reduces the
Tranche B Revolving Commitment Amount below the then current
amount of the Swing Line Commitment Amount or L/C Commitment
Amount (including the $5,000,000 sublimit for Letters of Credit
denominated in Offshore Currencies that is referred to in the
definition of L/C Commitment Amount) shall result in an automatic
and corresponding reduction of the Swing Line Commitment Amount
and L/C Commitment Amount (including such sublimit), as the case
may be, to the amount of the Tranche B Revolving Commitment
Amount, as so reduced, without any further action on the part of
the Company, the Agent, the Issuing Bank, the Swing Line Bank or
otherwise. Once reduced in accordance with this Section, the
Commitments may not be increased. Any reduction of the
Commitments shall be applied to each Bank according to its Pro
Rata Share. All accrued commitment fees to, but not including
the effective date of any reduction or termination of
Commitments, shall be paid on the effective date of such
reduction or termination.
2.07 Optional Prepayments. The Domestic Loans are subject
to optional prepayment pursuant to Section 2.07(a), the Swing
Line Loans are subject to optional prepayment pursuant to Section
2.07(b) and the Tranche A Revolving Loans are subject to optional
prepayment pursuant to Section 2.07(c).
(a) Domestic Loans. Subject to Section 4.04, the
Company may, at any time or from time to time, deliver to the
Agent a notice of prepayment in accordance with Section 11.02 to
be received by the Agent not later than 9:00 a.m. (San Francisco
time) (i) at least three Business Days in advance of the
prepayment date if the Loans to be prepaid are LIBOR Rate Loans,
and (ii) at least one Business Day in advance of the prepayment
date if the Loans to be prepaid are Base Rate Loans. Such notice
of prepayment shall specify the date of such payment (which shall
be a Business Day), the amount of such prepayment (which shall
not be less than the Minimum Tranche) and whether such prepayment
is of Base Rate Loans, LIBOR Rate Loans or any combination
thereof. Such notice shall not thereafter be revocable by the
Company and the Agent will promptly notify each relevant Bank
thereof of such Bank's Pro Rata Share of such prepayment. The
payment amount specified in such notice of prepayment shall be
due and payable by the Company on the date specified therein,
together with accrued interest to each such date on the amount
prepaid and any amounts requiredpursuant to Section 4.04. All
prepayments of the Term Loans shall be applied pro rata to the
remaining installments thereof.
(b) Swing Line Loans. The Company may, at any time or
from time to time, by telephone notice to the Swing Line Bank on
or before 9:00 a.m. (San Francisco time) of the Business Day of
the proposed prepayment (promptly followed by facsimile
transmission to the Swing Line Bank and the Agent, not later than
1:00 p.m. (San Francisco time) on such Business Day, of a
confirming notice), prepay in an aggregate amount not less than
the Minimum Tranche, the Swing Line Loans. Such notice shall not
thereafter be revocable. The payment
<PAGE>
specified in such notice of prepayment shall be due and payable
by the Company on the date specified in such notice, together
with accrued interest on the amount prepaid.
(c) Tranche A Revolving Loans. Subject to Section
4.04 and the terms of the applicable Tranche A Revolving
Supplement Agreement, the Company may, at any time or from time
to time, deliver to the Tranche A Revolving Bank a notice of
prepayment in accordance with Section 11.02 to be received by the
Tranche A Revolving Bank not later than the time specified in
such Tranche A Revolving Supplement Agreement. Such notice of
prepayment shall specify the date of such prepayment (which shall
be a Business Day), the amount of such prepayment (which shall
not be less than the Minimum Tranche), the identity of the Loans
to be prepaid and the Applicable Currency. Such notice shall not
thereafter be revocable by the applicable Tranche A Revolving
Borrower. The payment amount specified in such notice of
prepayment shall be due and payable by the applicable Tranche A
Revolving Borrower on the date specified therein, together with
accrued interest to each such date on the amount prepaid and any
amounts required pursuant to Section 4.04.
2.08 Currency Exchange Fluctuations, etc. Subject to
Section 4.04, if on any Tranche A Revolving Computation Date the
Tranche A Revolving Bank shall have determined that the aggregate
Dollar Equivalent principal amount of the Tranche A Revolving
Loans then outstanding exceeds the Tranche A Revolving Commitment
Amount or any Offshore Sublimit Commitment Amount, due to a
change in applicable rates of exchange between Dollars and
Offshore Currencies or otherwise then the Tranche A Revolving
Bank shall give notice to the relevant Tranche A Revolving
Borrower, the Company and the Agent that a prepayment is required
under subsection 2.09(d)(ii) and each Tranche A Revolving
Borrower agrees thereupon to make prepayments of its Tranche A
Revolving Loans such that (a) after giving effect to all such
prepayments, the aggregate Dollar Equivalent amount of all
Tranche A Revolving Loans does not exceed the Tranche A Revolving
Commitment Amount and (b) after giving effect to the prepayments
made by each such Tranche A Revolving Borrower, the aggregate
Dollar Equivalent amount of all Tranche A Revolving Loans of each
such Borrower does not exceed its Offshore Sublimit Commitment
Amount.
2.09 Repayment and Mandatory Prepayments; Cash
Collateralization. The Loans shall be subject to repayment and
mandatory prepayment and the L/C Obligations shall be Cash
Collateralized in accordance with this Section 2.09.
(a) Repayment of the Term Credit. The Company shall
repay to the Term Loan Banks the Term Loans on each date as
follows:
<TABLE>
<CAPTION>
PAYMENT DATE AMOUNT
<C> <C>
November 30, 1996 $1,875,000
May 31, 1997 $1,875,000
November 30, 1997 $2,812,500
May 31, 1998 $2,812,500
<PAGE>
November 30, 1998 $2,812,500
May 31, 1999 $2,812,500
November 30, 1999 $3,750,000
May 31, 2000 $3,750,000
November 30, 2000 $3,750,000
May 31, 2001 $3,750,000
</TABLE>
(b) Repayment of the Tranche B Revolving Credit and
Swing Line Credit. The Company shall repay in full the unpaid
principal amount of the Tranche B Revolving Loans and Swing Line
Loans on the Maturity Date therefor.
(c) Repayment of the Tranche A Revolving Credit. Each
Tranche A Revolving Borrower shall repay in full the unpaid
principal amount of its Tranche A Revolving Loans on the Maturity
Date therefor.
(d) Mandatory Prepayments; Cash Collateralization.
(i) The Company shall, on each Business Day when
the sum of (x) the aggregate principal amount of
Tranche B Revolving Loans and Swing Line Loans plus (y)
the aggregate Dollar Equivalent amount of L/C
Obligations exceeds the Tranche B Revolving Commitment
Amount (including after giving effect to any reduction
of the Tranche B Revolving Commitment Amount pursuant
to Section 2.06), make a mandatory prepayment (after
giving effect to any Cash Collateralization pursuant to
subsection (iii)) of the Tranche B Revolving Loans
and/or Swing Line Loans in an amount equal to such
excess.
(ii) Each Tranche A Revolving Borrower shall make
a mandatory prepayment of its Tranche A Revolving Loans
in the amounts and when and as required pursuant to
Section 2.08 and, to the extent necessary, after giving
effect to any reduction of the Tranche A Revolving
Commitment pursuant to Section 2.06.
(iii) If on any Business Day the aggregate
amount of L/C Obligations exceeds the L/C Commitment
Amount, the Company shall Cash Collateralize in Dollars
on such Day the outstanding Letters of Credit in an
aggregate amount equal to the excess of the maximum
amount then available to be drawn under the Letters of
Credit over the L/C Commitment Amount.
2.10 Interest. The Loans and other Obligations shall accrue
interest as provided in this Section 2.10.
<PAGE>
(a) Domestic Loans and Swing Line Loans. (i) Subject
to subsection 2.04(a), each Domestic Loan and Swing Line Loan
shall bear interest on the outstanding principal amount thereof
from the applicable Borrowing Date at a rate per annum equal to
(A) the LIBOR Rate or Base Rate, in the case of any Domestic
Loan, and (B) the Base Rate, in the case of any Swing Line Loan,
plus in each case the Applicable Margin.
(ii) Interest on each Domestic Loan and Swing Line
Loan shall be paid in arrears on each Interest Payment Date.
Interest shall also be paid on the date of any prepayment of
Domestic Loans and Swing Line Loans under Section 2.07 or 2.09
for the portion of the Domestic Loans or Swing Line Loans so
prepaid and upon payment (including prepayment) in full thereof
and, during the existence of any Event of Default, interest shall
be paid on demand of the Agent at the request or with the consent
of the Majority Banks.
(b) Tranche A Revolving Loans. (i) Subject to
subsection 2.04(b), each Tranche A Revolving Loan shall bear
interest on the outstanding principal amount thereof from the
applicable Borrowing Date at a rate per annum set forth in the
applicable Tranche A Revolving Supplement Agreement plus the
Applicable Margin.
(ii) Interest on each Tranche A Revolving Loan
shall be paid at such times as provided in the applicable Tranche
A Revolving Supplement Agreement. Interest shall also be paid on
the date of any prepayment of the Tranche A Revolving Loans under
Section 2.07 or 2.09 for the portion of the Tranche A Revolving
Loans so prepaid and upon payment (including prepayment) in full
thereof and, during the existence of any Event of Default,
interest shall be paid on demand of the Tranche A Revolving Bank
at the request or with the consent of the Majority Banks.
(c) Default Interest, etc. (i) Notwithstanding
subsections 2.10(a) and 2.10(b), after the date any principal
amount of any Loan or reimbursement obligation with respect to
any Letter of Credit is due and payable (whether upon the
Maturity Date, upon acceleration or otherwise), or after any
other monetary Obligation of the Company or any other Borrower
shall have become due and payable, each Borrower shall pay
interest (after as well as before entry of judgment thereon to
the extent permitted by law) on the principal amount of all of
its outstanding Obligations, at a rate per annum which is
determined by adding 2% per annum to the Applicable Margin then
in effect for its Loans and, in the case of Obligations not
subject to an Applicable Margin, at a rate per annum equal to the
Base Rate plus 2%.
(ii) Anything herein to the contrary
notwithstanding, the obligations of each Borrower to any Bank
hereunder shall be subject to the limitation that payments of
interest shall not be required for any period for which interest
is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Bank would
be contrary to the provisions of any law applicable to such Bank
limiting the highest rate of interest that may be lawfully
contracted for, charged or received by such Bank, and in such
event each Borrower shall pay such Bank interest at the highest
rate permitted by applicable law.
<PAGE>
2.11 Fees. In addition to the fees to be paid pursuant to
Section 3.08 with respect to the Letters of Credit, the Borrowers
shall pay the fees set forth in this Section 2.11.
(a) Arrangement, Agency Fees. The Company shall pay
an arrangement fee to the Arranger for the Arranger's own
account, and shall pay an agency fee to the Agent for the Agent's
own account, as required by the letter agreement ("Fee Letter")
between the Company and the Arranger and Agent dated March 29,
1996.
(b) Commitment Fees. The Company and the Tranche A
Revolving Borrowers shall pay their respective commitment fees
set forth below
(i) Tranche B Revolving Commitment. The Company
shall pay to the Agent for the account of each Tranche B
Revolving Bank a commitment fee on the average daily unused
portion of each such Bank's Tranche B Revolving Commitment,
computed on a quarterly basis in arrears on the last Business Day
of each calendar quarter based upon the daily utilization for
that quarter as calculated by the Agent, equal to the Commitment
Fee Rate; provided, however, that for purposes of calculating any
such commitment fee (and no other purpose) outstanding commercial
documentary Letters of Credit shall not be deemed to use any of
the Tranche B Revolving Commitment Amount. Such commitment fee
shall accrue from the Closing Date to the Tranche B Revolving
Commitment Termination Date and shall be due and payable
quarterly in arrears on the last Business Day of each calendar
quarter (commencing on June 30, 1996) and with the final payment
to be made on the Tranche B Revolving Commitment Termination
Date; provided that, in connection with any reduction or
termination of the Tranche B Revolving Commitment under Section
2.06, the accrued commitment fee calculated for the period ending
on such date shall also be paid on the date of such reduction or
termination, with the following quarterly payment being
calculated on the basis of the period from such reduction or
termination date to such quarterly payment date. The commitment
fees provided in this subsection shall accrue at all times from
the Closing Date, including at any time during which one or more
conditions in Article V are not met.
(ii) Tranche A Revolving Commitment. Each Tranche
A Revolving Borrower shall pay, with respect to its respective
Offshore Sublimit Commitment Amount (it being agreed that, for
purposes of this subsection 2.11(b)(ii), the Company shall pay a
commitment fee (if any) only with respect to the Unallocated
Offshore Sublimit Commitment Amount), a commitment fee on the
average daily unused portion of each such Sublimit computed on a
quarterly basis in arrears on the last Business Day of each
calendar quarter based upon the daily utilization for that
quarter as calculated by the Tranche A Revolving Bank, equal to
the Commitment Fee Rate. Such commitment fee shall accrue from
the Closing Date to the Tranche A Revolving Commitment
Termination Date and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter
(commencing on June 30, 1996) and with the final payment to be
made on the Tranche A Revolving Commitment Termination Date;
provided that, in connection with any reduction or termination of
the Tranche A Revolving Commitment under Section 2.06, the
accrued commitment fee calculated for the period ending on such
date shall also be paid on the date of such reduction or
termination, with the following quarterly payment being
calculated on the basis of the period from such reduction or
termination date to such quarterly payment date. The commitment
fees provided in this subsection shall accrue at
<PAGE>
all times from the Closing Date, including at any time during
which one or more conditions in Article V are not met.
2.12 Computation of Fees and Interest. (a) All
computations of interest for Base Rate Loans when the Base Rate
is determined by BofA's "reference rate" shall be made on the
basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days
elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees
shall accrue during each period during which interest or such
fees are computed from the first day thereof to the last day
thereof.
(b) All commitment fees that are payable by each
Tranche A Revolving Borrower with respect to its respective
Offshore Sublimit Commitment Amount shall be paid in the
applicable Offshore Currency with respect to each such Offshore
Sublimit Commitment Amount. All commitment fees that are payable
by the Company with respect to the Tranche B Revolving Commitment
and the Unallocated Offshore Sublimit Commitment Amount shall be
paid in Dollars.
(c) Each determination of an interest rate or a Dollar
Equivalent amount by the Agent, the Tranche A Revolving Bank or
any Issuing Bank, as the case may be, shall be conclusive and
binding on each Borrower and the Banks in the absence of manifest
error.
2.13 Payments by the Borrowers. (a) All payments to be
made by each Borrower shall be made without set-off, recoupment
or counterclaim. Except as otherwise expressly provided herein,
all payments by the Company with respect to any Domestic Loan
shall be made to the Agent for the account of the Domestic Banks
at its relevant Payment Office, all payments by the Company with
respect to any Swing Line Loan shall be made to the Swing Line
Bank at its Payment Office, and all payments by any Tranche A
Revolving Borrower with respect to any Tranche A Revolving Loan
shall be made to the Tranche A Revolving Bank at its relevant
Payment Office. Following the occurrence and during the
continuance of any Pro Rata Distribution Event the Company shall
pay all amounts owing to the Swing Line Bank to the Agent at its
relevant Payment Office and the Tranche A Revolving Bank shall,
promptly following receipt of any such payment from any Tranche A
Revolving Borrower, pay the same, in like funds as received, to
the Agent. All payments by the Tranche A Revolving Borrowers (i)
with respect to principal of, interest on, and any other amounts
relating to, any Tranche A Revolving Loan (A) denominated in any
Offshore Currency shall be made in the Offshore Currency in which
such Loan is denominated or (B) denominated in Dollars shall be
made in Dollars, and (ii) with respect to all other amounts
payable hereunder (except as otherwise provided), shall be made
in Dollars. All such payments shall be made in Same Day Funds,
and (x) in the case of Tranche A Revolving Loans, such payments
shall be made no later than such time, on the dates specified
herein or in the applicable Tranche A Revolving Supplement
Agreement, as may be determined by the Tranche A Revolving Bank
to be necessary for such payment to be credited on such date in
accordance with normal banking procedures in the place of
payment, and (y) in the case of all other payments, no later than
11:00 a.m. (San Francisco time) on the date specified herein.
The Agent will promptly distribute to each Bank its Pro Rata
Share, both before and after the occurrence of any Pro Rata
Distribution Event, of such
<PAGE>
principal, interest, fees or other amounts, in like funds as
received. Any payment from any Borrower which is received by the
Agent or the Swing Line Bank later than 1:00 p.m. (San Francisco
time) or (B) by the Tranche A Revolving Bank later than the time
specified by the Tranche A Revolving Bank as provided in
subclause (x) above (in the case of Tranche A Revolving Loan
payments), shall be deemed to have been received on the following
Business Day and any applicable interest or fee shall continue to
accrue.
(b) Subject to the provisions set forth in the
definition of "Interest Period" herein, whenever any payment is
due on a day other than a Business Day, such payment shall be
made on the following Business Day, and such extension of time
shall in such case be included in the computation of interest or
fees, as the case may be.
(c) In the case of the Domestic Loans, unless the
Agent receives notice from the Company prior to the date on which
any payment is due to the Domestic Banks that the Company will
not make such payment in full as and when required, the Agent may
assume that the Company has made such payment in full to the
Agent on such date in Same Day Funds and the Agent may (but shall
not be so required), in reliance upon such assumption, distribute
to each Domestic Bank on such due date an amount equal to the
amount then due such Domestic Bank. If and to the extent the
Company has not made such payment in full to the Agent, each
Domestic Bank shall repay to the Agent on demand such amount
distributed to such Domestic Bank, together with interest thereon
at the Federal Funds Rate.
2.14 Payments by the Domestic Banks to the Agent. (a)
Unless the Agent receives notice from a Domestic Bank on or prior
to the Closing Date or, with respect to any Borrowing after the
Closing Date, at least one Business Day prior to the date of such
Borrowing, that such Domestic Bank will not make available as and
when required hereunder to the Agent for the account of the
Company the amount of that Domestic Bank's Pro Rata Share of such
Borrowing, the Agent may assume that each Domestic Bank has made
such amount available to the Agent in Same Day Funds on the
Borrowing Date and the Agent may (but shall not be so required),
in reliance upon such assumption, make available to the Company
on such date a corresponding amount. If and to the extent any
Domestic Bank shall not have made its full amount available to
the Agent in Same Day Funds and the Agent in such circumstances
has made available to the Company such amount, that Domestic Bank
shall on the Business Day following such Borrowing Date make such
amount available to the Agent, together with interest at the
Federal Funds Rate. A notice of the Agent submitted to any
Domestic Bank with respect to amounts owing under this subsection
2.14(a) shall be conclusive, absent manifest error. If such
amount is so made available, such payment to the Agent shall
constitute such Domestic Bank's Loan on the date of Borrowing for
all purposes of this Agreement. If such amount is not made
available to the Agent on the Business Day following the
Borrowing Date, the Agent will notify the Company of such failure
to fund and, upon demand by the Agent, the Company shall pay such
amount to the Agent for the Agent's account, together with
interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any
Borrowing Date shall not relieve any other Bank of any obligation
hereunder to make a Loan on such Borrowing Date,
<PAGE>
but no Bank shall be responsible for the failure of any other
Bank to make the Loan to be made by such other Bank on any
Borrowing Date.
2.15 Sharing of Payments, Etc. Each payment and prepayment
of (a) principal and interest on the Loans and (b) L/C
Obligations in which the Tranche B Revolving Banks shall have
made Tranche B Revolving Loans or L/C Advances in accordance with
subsections 3.03(c) or (d), as the case may be, shall be applied
pro rata according to the respective Pro Rata Share of each Bank
(it being agreed that if the Tranche B Revolving Banks have not
made Tranche B Revolving Loans or L/C Advances in accordance with
subsections 3.03(c) or (d), as the case may be, with respect to
any L/C Obligations, payments with respect to such L/C
Obligations shall be for the account of the Issuing Bank only).
If, other than as expressly provided elsewhere herein, any Bank
shall obtain on account of the Loans made by it any payment
(whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Pro Rata Share,
such Bank shall immediately (a) notify the Agent of such fact,
and (b) purchase from the other Banks such participations in the
Loans made by them as shall be necessary to cause such purchasing
Bank to share the excess payment in accordance with each Bank's
Pro Rata Share; provided, however, that if all or any portion of
such excess payment is thereafter recovered from the purchasing
Bank, such purchase shall to that extent be rescinded and each
other Bank shall repay to the purchasing Bank the purchase price
paid therefor, together with an amount equal to such paying
Bank's Pro Rata Share (according to the proportion of (i) the
amount of such paying Bank's required repayment to (ii) the total
amount so recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in respect of
the total amount so recovered. Each Borrower agrees that any
Bank so purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to Section
11.11) with respect to such participation as fully as if such
Bank were the direct creditor of such Borrower in the amount of
such participation. The Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case
notify the Banks following any such purchases or repayments.
2.16 Extension of Tranche A Revolving Loan Commitment
Termination Date and Maturity Date. If a Default or Event of
Default has not occurred nor is continuing, the Company acting on
behalf of the Tranche A Revolving Borrowers may, on any Business
Day occurring not earlier than January 31st nor after March 31st
in calendar years 1997, 1998 and 1999, deliver to the Tranche A
Revolving Bank two counterparts of a Tranche A Extension Request,
appropriately completed and executed. Not later than May 15th in
each such year that a Tranche A Extension Request is so delivered
the Tranche A Revolving Bank shall, by appropriately completing,
executing and delivering to the Company (with a copy to the
Agent) the Tranche A Extension Request delivered to it, indicate
whether or not it intends to extend the Tranche A Revolving
Commitment Termination Date and related Maturity Date; provided,
however, that notwithstanding a request by the Company and
consent by the Tranche A Revolving Bank that the Tranche A
Revolving Commitment Termination Date and related Maturity Date
be extended, the same shall not be extended if a Default or Event
of Default has occurred and is continuing at the time such
extension was to become effective. If the Tranche A Revolving
Bank fails to return the Tranche A Extension Request to the
Company as provided in the preceding sentence it shall be deemed
not to have consented to the extension of the
<PAGE>
Tranche A Revolving Commitment Termination Date and related
Maturity Date. If so extended, any extension of the Tranche A
Revolving Commitment Termination Date and related Maturity Date
shall be to the date specified in the Tranche A Extension
Request; provided, however, that in no event shall the Tranche A
Revolving Commitment Termination Date and related Maturity Date
be extended (a) to any date after May 31, 2001 or (b) with
respect to any such extension made in calendar year 1997, after
May 31, 2000. If such extension is consented to, each Tranche A
Revolving Borrower shall deliver, if requested by the Tranche A
Revolving Bank, to the Tranche A Revolving Bank, on or prior to
the anniversary of the Closing Date next following the date the
Tranche A Extension Request was delivered for approval as herein
provided a new Tranche A Revolving Note (which new Tranche A
Revolving Note shall be on the same terms as the existing Tranche
A Revolving Note of the Tranche A Revolving Bank, except as is
necessary to reflect the extended Maturity Date). The decision
of the Tranche A Revolving Bank to extend the Tranche A Revolving
Commitment Termination Date and Maturity Date pursuant to this
Section 2.16 shall be exercised by it in its sole and absolute
discretion, including without reference to any or all of the
stated desires of any other Bank, the Agent, the Company or any
other Borrower.
ARTICLE III
THE LETTERS OF CREDIT
---------------------
3.01 The Letter of Credit Subfacility. (a) On the terms
and conditions set forth herein (i) the Issuing Bank agrees, (A)
from time to time on any Business Day during the period from the
Closing Date to the Tranche B Revolving Commitment Termination
Date to issue Letters of Credit for the account of the Company,
and to amend or renew Letters of Credit previously issued by it,
in accordance with subsections 3.02(c) and 3.02(d), and (B) to
honor conforming drafts under the Letters of Credit; and (ii) the
Tranche B Revolving Banks severally agree to participate in
Letters of Credit Issued for the account of the Company;
provided, that the Issuing Bank shall not be obligated to Issue,
and no Tranche B Revolving Bank shall be obligated to participate
in, any Letter of Credit if as of the date of Issuance of such
Letter of Credit (the "Issuance Date") and after giving effect
thereto (1) the sum of (x) the aggregate principal amount of all
outstanding Tranche B Revolving Loans and Swing Line Loans plus
(y) the aggregate Dollar Equivalent amount of L/C Obligations
exceeds the Tranche B Revolving Commitment Amount, (2) the
aggregate Dollar Equivalent amount of the L/C Obligations exceeds
the L/C Commitment Amount or (3) the aggregate Dollar Equivalent
amount of the L/C Obligations denominated in Offshore Currencies
exceeds $5,000,000.
(b) The Issuing Bank is under no obligation to Issue
any Letter of Credit if:
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the Issuing Bank from Issuing
such Letter of Credit, or any Requirement of Law applicable
to the Issuing Bank or any request or directive (whether or
not having the force of law) from any Governmental Authority
with jurisdiction over the Issuing Bank shall prohibit, or
request that the Issuing Bank refrain from, the Issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Bank with
respect to such Letter of
<PAGE>
Credit any restriction, reserve or capital requirement (for
which the Issuing Bank is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall
impose upon the Issuing Bank any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and
which the Issuing Bank in good faith deems material to it;
(ii) the expiry date of any requested Letter of
Credit is (A) more than 360 days after the date of Issuance
or (B) prior to the maturity date of any financial
obligation to be supported by the requested Letter of
Credit;
(iii) any requested Letter of Credit is not
otherwise in form and substance acceptable to the Issuing
Bank, or the Issuance of a Letter of Credit shall violate
any applicable policies of the Issuing Bank;
(iv) any standby Letter of Credit is for the
purpose of supporting the issuance of any letter of credit
by any other Person;
(v) such Letter of Credit is in a Dollar
Equivalent face amount less than $100,000; or
(vi) in the case of any Letter of Credit
denominated in any Offshore Currency, it has determined that
it cannot provide such Letter of Credit in such Offshore
Currency.
In addition, the Issuing Bank shall not Issue, amend or
renew any Letter of Credit
(i) with an expiry date that is later than the
Maturity Date with respect to the Tranche B Revolving
Commitment; or
(ii) if it has received written notice from any Tranche
B Revolving Bank, the Agent or the Company, on or prior to
the Business Day prior to the requested date of Issuance,
amendment or renewal, as the case may be, of such Letter of
Credit, that one or more of the applicable conditions
contained in Article V is not then satisfied.
3.02 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable
written request of the Company received by the Issuing Bank (with
a copy sent by the Company to the Agent) at least four days (or
such shorter time as the Issuing Bank may agree in a particular
instance in its sole discretion) prior to the proposed date of
issuance. Each such request for issuance of a Letter of Credit
shall be by facsimile, confirmed immediately in an original
writing, in the form of an L/C Application, and shall specify in
form and detail satisfactory to the Issuing Bank: (i) the
proposed date of issuance of the Letter of Credit (which shall be
a Business Day); (ii) the face amount and Applicable Currency of
the Letter of Credit; (iii) the expiry date of the Letter of
Credit; (iv) the name and address of the beneficiary thereof; (v)
the documents to be presented by the beneficiary of the Letter of
Credit in case of any drawing thereunder; (vi) the full text of
any certificate to be presented by the beneficiary in case of any
drawing thereunder; and (vii) such other matters as the Issuing
Bank may require. Notwithstanding the forgoing and the
immediately following
<PAGE>
subsection (b), the Letters of Credit set forth in Schedule
3.02(a) shall for all purposes hereof be deemed outstanding
hereunder and The Bank of Nova Scotia shall continue to be the
Issuing Bank in respect thereof.
(b) At least two Business Days prior to the Issuance
of any Letter of Credit, the Issuing Bank will confirm with the
Agent (by telephone or in writing) that the Agent has received a
copy of the L/C Application or L/C Amendment Application from the
Company and, if not, the Issuing Bank will provide the Agent with
a copy thereof. Unless the Issuing Bank has received notice on
or before the Business Day immediately preceding the date the
Issuing Bank is to issue a requested Letter of Credit from the
Agent (A) directing the Issuing Bank not to issue such Letter of
Credit because such issuance is not then permitted under
subsection 3.01(a) as a result of the limitations set forth in
subclauses (1) or (2) thereof or subsection 3.01(b)(ii); or (B)
that one or more conditions specified in Article V are not then
satisfied, then, subject to the terms and conditions hereof, the
Issuing Bank shall, on the requested date, issue a Letter of
Credit for the account of the Company in accordance with the
Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Tranche B Revolving Commitment
Termination Date, the Issuing Bank will, upon the written request
of the Company received by the Issuing Bank (with a copy sent by
the Company to the Agent) at least five days (or such shorter
time as the Issuing Bank may agree in a particular instance in
its sole discretion) prior to the proposed date of amendment,
amend any Letter of Credit issued by it. Each such request for
amendment of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, made in the form of
an L/C Amendment Application and shall specify in form and detail
satisfactory to the Issuing Bank: (i) the Letter of Credit to be
amended; (ii) the proposed date of amendment of the Letter of
Credit (which shall be a Business Day); (iii) the nature of the
proposed amendment; and (iv) such other matters as the Issuing
Bank may require. The Issuing Bank shall be under no obligation
to amend any Letter of Credit if: (A) the Issuing Bank would
have no obligation at such time to issue such Letter of Credit in
its amended form under the terms of this Agreement; or (B) the
beneficiary of any such letter of Credit does not accept the
proposed amendment to the Letter of Credit. The Agent will
promptly notify the Tranche B Revolving Banks of the receipt by
it of any L/C Application or L/C Amendment Application.
(d) The Issuing Bank and the Tranche B Revolving Banks
agree that, while a Letter of Credit is outstanding and prior to
the Tranche B Revolving Commitment Termination Date, at the
option of the Company and upon the written request of the Company
received by the Issuing Bank (with a copy sent by the Company to
the Agent) at least five days (or such shorter time as the
Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of notification of
renewal, the Issuing Bank shall be entitled to authorize the
automatic renewal of any Letter of Credit issued by it. Each
such request for renewal of a Letter of Credit shall be made by
facsimile, confirmed immediately in an original writing, in the
form of an L/C Amendment Application, and shall specify in form
and detail satisfactory to the Issuing Bank: (i) the Letter of
Credit to be renewed; (ii) the proposed date of notification of
renewal of the Letter of Credit (which shall be a Business Day);
(iii) the revised expiry date of the Letter of Credit; and (iv)
such other matters as the Issuing Bank may require. The Issuing
<PAGE>
Bank shall be under no obligation so to renew any Letter of
Credit if: (A) the Issuing Bank would have no obligation at such
time to issue or amend such Letter of Credit in its renewed form
under the terms of this Agreement; or (B) the beneficiary of any
such Letter of Credit does not accept the proposed renewal of the
Letter of Credit. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the Issuing Bank that
such Letter of Credit shall not be renewed, and if at the time of
renewal the Issuing Bank would be entitled to authorize the
automatic renewal of such Letter of Credit in accordance with
this subsection 3.02(e) upon the request of the Company but the
Issuing Bank shall not have received any L/C Amendment
Application from the Company with respect to such renewal or
other written direction by the Company with respect thereto, the
Issuing Bank shall nonetheless be permitted to allow such Letter
of Credit to renew, and the Company and the Tranche B Revolving
Banks hereby authorize such renewal, and, accordingly, the
Issuing Bank shall be deemed to have received an L/C Amendment
Application from the Company requesting such renewal.
(e) The Issuing Bank may, at its election (or as
required by the Agent at the direction of the Majority Banks),
deliver any notices of termination or other communications to any
Letter of Credit beneficiary or transferee, and take any other
action as necessary or appropriate, at any time and from time to
time, in order to cause the expiry date of such Letter of Credit
to be a date not later than the Tranche B Revolving Commitment
Termination Date.
(f) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of
Credit).
(g) The Issuing Bank will also deliver to the Agent,
promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising
bank or a beneficiary, a true and complete copy of each such
Letter of Credit or amendment to or renewal of a Letter of
Credit.
3.03 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of
Credit each Tranche B Revolving Bank shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from
the Issuing Bank a participation in such Letter of Credit and
each drawing thereunder in an amount equal to the product of (i)
the Tranche B Revolving Pro Rata Share of such Bank, times (ii)
the maximum amount available to be drawn under such Letter of
Credit and the amount of such drawing, respectively. For
purposes of subsection 2.01(c), each Issuance of a Letter of
Credit shall be deemed to utilize the Tranche B Revolving
Commitment of each Tranche B Revolving Bank by an amount equal to
the amount of such participation.
(b) In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the
Issuing Bank will promptly notify the Company. The Company shall
reimburse the Issuing Bank prior to 11:00 a.m. (San Francisco
time), on each date that any amount is paid by the Issuing Bank
under any Letter of Credit (each such date, an "Honor Date"), in
a Dollar Equivalent amount equal to the amount so paid by the
Issuing Bank. In the event the Company fails to so reimburse the
Issuing Bank for the full amount of any
<PAGE>
drawing under any Letter of Credit by 11:00 a.m. (San Francisco
time) on the Honor Date, the Issuing Bank will promptly notify
the Agent and the Agent will promptly notify each Tranche B
Revolving Bank thereof, and so long as no Event of Default under
subsections 9.01(f) or (g) shall have occurred and be continuing,
the Company shall be deemed to have requested that Base Rate
Loans be made by the Tranche B Revolving Banks to be disbursed on
the Honor Date under such Letter of Credit, subject to the amount
of the unutilized portion of the Tranche B Revolving Commitment
Amount. Any notice given by the Issuing Bank or the Agent
pursuant to this subsection 3.03(b) may be oral if immediately
confirmed in writing (including by facsimile), provided that the
lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(c) Each Tranche B Revolving Bank shall upon any
notice pursuant to subsection 3.03(b) make available to the Agent
for the account of the relevant Issuing Bank the Dollar
Equivalent amount in immediately available funds equal to its
Tranche B Revolving Pro Rata Share of the amount of the drawing,
whereupon the participating Tranche B Revolving Banks shall
(subject to subsection 3.03(d)) each be deemed to have made a
Tranche B Revolving Loan consisting of a Base Rate Loan to the
Company in that amount. If any Tranche B Revolving Bank so
notified fails to make available to the Agent for the account of
the Issuing Bank the amount of such Bank's Tranche B Revolving
Pro Rata Share of the amount of the drawing by no later than
12:00 p.m. (San Francisco time) on the Honor Date, then interest
shall accrue on such Bank's obligation to make such payment, from
the Honor Date to the date such Bank makes such payment, at a
rate per annum equal to the Federal Funds Rate in effect from
time to time during such period. The Agent will promptly give
notice of the occurrence of the Honor Date, but failure of the
Agent to give any such notice on the Honor Date or in sufficient
time to enable any Tranche B Revolving Bank to effect such
payment on such date shall not relieve such Bank from its
obligations under this Section 3.03.
(d) With respect to any unreimbursed drawing that is
not converted into Tranche B Revolving Loans consisting of Base
Rate Loans to the Company, in whole or in part, for any reason,
the Company shall be deemed to have incurred from the Issuing
Bank an L/C Borrowing in the Dollar Equivalent amount of such
drawing, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at a rate per
annum equal to the Base Rate plus 2% per annum, and each Tranche
B Revolving Bank's payment to the Issuing Bank pursuant to
subsection 3.03(c) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C
Advance from such Bank in satisfaction of its participation
obligation under this Section 3.03.
(e) Each Tranche B Revolving Bank's obligation in
accordance with this Agreement to make the Tranche B Revolving
Loans or L/C Advances, as contemplated by this Section 3.03, as a
result of a drawing under a Letter of Credit, shall be absolute
and unconditional and without recourse to the Issuing Bank and
shall not be affected by any circumstance, including (i) any set-
off, counterclaim, recoupment, defense or other right which such
Bank may have against the Issuing Bank, the Company or any other
Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default, an Event of Default or a Material
Adverse Effect; or (iii) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
<PAGE>
3.04 Repayment of Participations. (a) Upon (and only upon)
receipt by the Agent for the account of the Issuing Bank of
immediately available funds from the Company (i) in reimbursement
of any payment made by the Issuing Bank under the Letter of
Credit with respect to which any Tranche B Revolving Bank has
paid the Agent for the account of the Issuing Bank for such
Bank's participation in the Letter of Credit pursuant to Section
3.03 or (ii) in payment of interest thereon, the Agent will pay
to each Tranche B Revolving Bank, in the same funds as those
received by the Agent for the account of the Issuing Bank, the
amount of such Bank's Tranche B Revolving Pro Rata Share of such
funds, and the Issuing Bank shall receive the amount of the Pro
Rata Share of such funds of any Tranche B Revolving Bank that did
not so pay the Agent for the account of the Issuing Bank.
(b) If the Agent or the Issuing Bank is required at
any time to return to the Company, or to a trustee, receiver,
liquidator, custodian, or any official in any Insolvency
Proceeding, any portion of the payments made by the Company to
the Agent for the account of the Issuing Bank pursuant to
subsection (a) in reimbursement of a payment made under the
Letter of Credit or interest or fee thereon, each Tranche B
Revolving Bank shall, on demand of the Agent, forthwith return to
the Agent or the Issuing Bank the amount of its Tranche B
Revolving Pro Rata Share of any amounts so returned by the Agent
or the Issuing Bank plus interest thereon from the date such
demand is made to the date such amounts are returned by such Bank
to the Agent or the Issuing Bank, at a rate per annum equal to
the Federal Funds Rate in effect from time to time.
3.05 Role of the Issuing Bank. (a) Each Tranche B
Revolving Bank and the Company agree that, in paying any drawing
under a Letter of Credit, the Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft
and certificates expressly required by the Letter of Credit) or
to ascertain or inquire as to the validity or accuracy of any
such document or the authority of the Person executing or
delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Bank
shall be liable to any Tranche B Revolving Bank for: (i) any
action taken or omitted in connection herewith at the request or
with the approval of the Majority Banks; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct;
or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its
use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the
Company's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other
agreement. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the Issuing Bank,
shall be liable or responsible to the Company, for any of the
matters described in subclauses (i) through (vii) of Section
3.06; provided, however, anything in such subclauses to the
contrary notwithstanding, that the Company may have a claim
against the Issuing Bank, and the Issuing Bank may be liable to
the Company, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages
suffered by the Company which the Company proves were caused by
the Issuing Bank's willful misconduct or
<PAGE>
gross negligence or the Issuing Bank's willful failure to pay
under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit.
In furtherance and not in limitation of the foregoing: (i) the
Issuing Bank may accept documents that appear on their face to be
in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; and (ii)
the Issuing Bank shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
3.06 Obligations Absolute. The obligations of the Company
under this Agreement and any L/C-Related Document to reimburse
the Issuing Bank for a drawing under a Letter of Credit, and to
repay any L/C Borrowing and any drawing under a Letter of Credit
converted into Revolving Loans, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and each such other L/C-Related Document
under all circumstances, including the following:
(i) any lack of validity, legality or enforceability
of this Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the obligations
of the Company in respect of any Letter of Credit or any
other amendment or waiver of or any consent to departure
from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense
or other right that the Company may have at any time against
any beneficiary or any transferee of any Letter of Credit
(or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Bank or any other
Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any
Letter of Credit;
(v) any payment by the Issuing Bank under any Letter
of Credit against presentation of a draft or certificate
that does not strictly comply with the terms of any Letter
of Credit; or any payment made by the Issuing Bank under any
Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit
of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of any
Letter of Credit, including any arising in connection with
any Insolvency Proceeding;
<PAGE>
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or
consent to departure from any other guarantee, for all or
any of the obligations of the Company in respect of any
Letter of Credit; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the
Company or a guarantor.
3.07 Cash Collateral Pledge. Upon (i) the request of the
Agent, (A) if the Issuing Bank has honored any full or partial
drawing request on any Letter of Credit and such drawing has
resulted in an L/C Borrowing hereunder, or (B) if, as of the
Tranche B Revolving Commitment Termination Date, any Letters of
Credit may for any reason remain outstanding and partially or
wholly undrawn, or (ii) the occurrence of the circumstances
described in subsection 2.09(d)(iii) requiring the Company to
Cash Collateralize Letters of Credit, then, the Company shall
immediately Cash Collateralize the L/C Obligations in Dollars in
an amount equal to the L/C Obligations.
3.08 Letter of Credit Fees. (a) The Company shall pay to
the Agent for the account of each of the Tranche B Revolving
Banks a letter of credit fee with respect to each standby Letters
of Credit equal to the Dollar Equivalent of the product of the
Applicable Margin for LIBOR Rate Loans and Tranche A Revolving
Loans (as set forth in the definition of "Applicable Margin")
multiplied by the average daily maximum amount available to be
drawn of the outstanding Letters of Credit, computed on a
quarterly basis in arrears on the last Business Day of each
calendar quarter based upon Letters of Credit outstanding for
that quarter as calculated by the Agent. Such Letter of Credit
fees shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter during which Letters of
Credit are outstanding, commencing on the first such quarterly
date to occur after the Closing Date, through the Tranche B
Revolving Commitment Termination Date (or such later date upon
which the outstanding Letters of Credit shall expire), with the
final payment to be made on the Tranche B Revolving Commitment
Termination Date (or such later expiration date).
(b) The Company shall pay to the Issuing Bank a letter
of credit fronting fee for each standby Letter of Credit Issued
by the Issuing Bank equal to _ of 1% per annum of the Dollar
Equivalent of the face amount (or increased face amount, as the
case may be) of such Letter of Credit. Such Letter of Credit
fronting fee shall be due and payable on each date of Issuance of
a Letter of Credit.
(c) The Company shall pay to the Issuing Bank from
time to time on demand, with respect to all commercial
documentary Letters of Credit that have been Issued by it, the
standard issuance, negotiation, presentation, amendment and other
costs and fees, and other standard costs and charges, of the
Issuing Bank relating to such type of letters of credit as from
time to time in effect.
3.09 Utilization of L/C Commitment in Offshore Currencies.
(a) Each Issuing Bank will determine and notify the Company and
the Agent of the Dollar Equivalent amount with respect to each
Letter of Credit that is denominated in any Offshore Currency as
of (i) the
<PAGE>
requested date of Issuance or renewal of any Letter of Credit,
(ii) the last Business Day of each calendar month, (iii) such
days as and when required pursuant to this Article III in order
to determine the Dollar Equivalent amount of any Offshore
Currency (including pursuant to subsection 3.09(b)) and (iv) such
other days as the Issuing Bank or the Agent may select from time
to time (each such date under subclause (i) through (iv), a "L/C
Computation Date").
(b) (i) Promptly following any drawing under any
Letter of Credit denominated in any Offshore Currency and (ii)
not later than the Business Day immediately preceding the day on
which the Company is required to Cash Collateralize any Letter of
Credit denominated in any Offshore Currency, the relevant Issuing
Bank shall determine the Dollar Equivalent amount thereof.
Without limitation to the other terms hereof, all amounts payable
with respect to the Letters of Credit (including (A) the
obligation of the Company to (1) make reimbursement payments and
L/C Borrowings, (2) pay Letter of Credit fees and (3) Cash
Collateralize any Letter of Credit and (B) the obligation of the
Tranche B Revolving Banks to make Tranche B Revolving Loans and
L/C Advances pursuant to this Article III) shall be paid in
Dollars based upon the Dollar Equivalent amount of each Offshore
Currency as determined by each relevant Issuing Bank.
3.10 Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits as published by the
International Chamber of Commerce most recently at the time of
issuance of any Letter of Credit shall (unless otherwise
expressly provided in the Letters of Credit) apply to the Letters
of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
---------------------------------------
4.01 Taxes. (a) Except as otherwise provided in this
Section 4.01, any and all payments by each Borrower to each Bank
or the Agent under this Agreement and any other Loan Document
shall be made free and clear of, and without deduction or
withholding for, any Taxes. In addition, each Borrower shall pay
all Other Taxes.
(b) If any Borrower shall be required by law to deduct
or withhold any Taxes or Other Taxes from or in respect of any
sum payable hereunder to any Bank or the Agent, then:
(i) the sum payable shall be increased as
necessary so that, after making all required deductions and
withholdings (including deductions and withholdings
applicable to additional sums payable under this Section),
such Bank or the Agent, as the case may be, receives and
retains an amount equal to the sum it would have received
and retained had no such deductions or withholdings been
made;
(ii) such Borrower shall make such deductions and
withholdings;
(iii) such Borrower shall pay the full amount
deducted or withheld to the relevant taxing authority or
other authority in accordance with applicable law; and
<PAGE>
(iv) such Borrower shall also pay to each Bank or
the Agent for the account of such Bank Further Taxes on
demand (which demand shall contain a reasonably detailed
calculation thereof and shall be conclusive and binding on
the Company and the Subsidiaries in the absence of manifest
error) in the amount that the respective Bank specifies as
necessary to preserve the after-tax yield such Bank would
have received if such Taxes, Other Taxes or Further Taxes
had not been imposed.
(c) Each Borrower agrees to jointly and severally
indemnify and hold harmless each Bank and the Agent for the full
amount of (i) Taxes, (ii) Other Taxes, and (iii) Further Taxes in
the amount that the respective Bank specifies (in a reasonably
detailed calculation, which shall be conclusive and binding on
the Company and the Subsidiaries in the absence of manifest
error) as is necessary to preserve the after-tax yield the Bank
would have received if such Taxes, Other Taxes or Further Taxes
had not been imposed, and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or
with respect thereto, whether or not such Taxes, Other Taxes or
Further Taxes were correctly or legally asserted; provided,
however, that the Foreign Borrowers shall only be liable for
those Taxes, other Taxes and Further Taxes relating to the
Foreign Obligations. Payment under this indemnification shall be
made within 30 days after the date any Bank or the Agent makes
written demand therefor.
(d) Within 30 days after the date of any payment by
any Borrower of Taxes, Other Taxes or Further Taxes, such
Borrower shall furnish to each relevant Bank or the Agent the
original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment satisfactory to such Bank
or the Agent, as the case may be.
(e) The Agent and each Bank that makes a Loan or
issues any Letter of Credit to any Borrower that is a U.S. Person
hereby severally (but not jointly) represents that under
applicable law and treaties in effect as of the date of the
initial Credit Extension to such Borrower, in the case of the
original signatories to this Agreement, and in effect as of the
date each such Person becomes a Bank pursuant to subsection
11.08(a) or the Agent pursuant to Section 10.09, no United States
federal taxes will be required to be withheld by such Borrower
with respect to any payments to be made to such Bank or the Agent
in respect of this Agreement or the Notes. The Agent and each
Bank that makes a Loan or issues any Letter of Credit to any
Borrower that is a U.S. Person agrees severally (but not
jointly) that prior to the date of the initial Credit Extension
to such Borrower, in the case of the original signatories to this
Agreement, and on or prior to each date on which each such Person
subsequently becomes a Bank pursuant to subsection 11.08(a) or
the Agent pursuant to subsection 10.09, it will in each case
deliver to the Company (on behalf of the Borrowers) and the Agent
the following:
(i) if reasonably requested by the Company or the
Agent, in the case of any Bank or the Agent that is a U.S.
Person, two copies of a statement signed by an authorized
officer of such Person that identifies the address of such
Person's office or place of business in the United States,
together with two duly completed copies of United States
Internal Revenue Service Form W-9 (or applicable successor
form) (unless it establishes to the reasonable satisfaction
of the Company or the Agent, as the case may be, that it is
otherwise eligible for an exemption from backup withholding
tax or other withholding tax); or
<PAGE>
(ii) in the case of a Bank or the Agent that is not a
U.S. Person, two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 (or applicable
successor form), certifying in each case that such Person is
entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States
federal taxes, and, if reasonably requested by the Company
or the Agent, two duly completed copies of United States
Internal Revenue Service Form W-8 or Form W-9 (or applicable
successor form), whichever is applicable.
(f) The Tranche A Revolving Bank agrees to make all
Tranche A Revolving Loans to each Foreign Borrower from the
Offshore Lending Office of such Bank that is specified in
Schedule 11.02. Such Bank shall be entitled to the benefits of
this Section 4.01 with respect to all the Tranche A Revolving
Loans only in the event that as the result of any change in any
law, rule, regulation, treaty or directive, or in the
interpretation or application thereof (each "Law Change"),
payments by any such Borrower to such Bank (lending through such
Lending Office) are subject to the imposition of any Taxes. The
parties acknowledge and agree that the Tranche A Revolving Bank
has relied on the legal opinions being delivered pursuant to
subsection 5.01(d)(ii) (which legal opinions provide, inter alia,
that, subject to the qualifications provided for therein, no
deduction or withholding for taxes will be made with respect to
payments under this Agreement and the Notes) and, notwithstanding
the foregoing, will be indemnified by the Borrowers as herein
provided for any Taxes, Other Taxes or Further Taxes it may be
liable for as a result of any such legal opinion being incorrect
in any respect (regardless whether there is a Law Change). The
Tranche A Revolving Bank agrees that on or prior to the date of
the initial Credit Extension to each Tranche A Revolving
Borrower, in the case of the original Tranche A Revolving Bank
that is a signatory to this Agreement, and on or prior to each
date on which any Person subsequently becomes the Tranche A
Revolving Bank pursuant to subsection 11.08(a), it will deliver
to the Company (on behalf of the Tranche A Revolving Borrowers)
and the Agent or file with any appropriate taxing authority, any
form, statement or other document that is necessary so that all
payments under this Agreement and the Notes to each Offshore
Lending Office of the Tranche A Revolving Bank may be made
without deduction or withholding for (i) federal taxes in the
country in which each such Offshore Lending Office is located and
(ii), to the extent reasonably requested and identified by the
Company, provincial and local taxes in the country in which each
such Offshore Lending Office is located.
(g) Each Person that delivers to the Company and the
Agent (or files with a taxing authority) a form, statement or
other document pursuant to subsection 4.01(e) or (f) further
undertakes to deliver to the Company and the Agent (or file with
the appropriate taxing authority) the requisite number of further
copies of such form (or applicable successor form), on or before
the date that any such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Company and the Agent,
certifying that such Person is entitled to receive payments under
this Agreement and the Notes without deduction or withholding of
any United States federal Taxes, in the case of subsection
4.01(e), or other local withholding taxes, in the case of
subsection 4.01(f). Notwithstanding anything to the contrary in
this subsection 4.01(g), no Person shall be required to deliver
or file any form, statement or document in the event that prior
to the date on which such form, statement or document would be
required to be delivered or filed, there occurs any
<PAGE>
Law Change which prevents such Person from delivering such form,
statement or document. Promptly following the occurrence of any
such Law Change, the affected Person shall notify the Company and
the Agent as to the effect of such Law Change on the eligibility
of such Person for exemption from, or reduction in the rate of,
any applicable Taxes with respect to payments to such Person
under this Agreement and the Notes. If, as a result of a Law
Change, the Agent or any Bank (i) is unable to furnish the
Company a form, statement or document certifying that the Agent
or such Bank is entitled to exemption from any applicable Taxes
with respect to payments under this Agreement and the Notes or
(ii) makes any payment of Taxes, or becomes liable to make any
payment of Taxes, with respect to payments by any Borrower under
this Agreement or the Notes, such Borrower's continuing
obligation to make payments to the Agent or such Bank under this
Section 4.01 shall be conditioned on the Agent or such Bank, as
the case may be, prior to the time that the next payment under
the Notes is due following the effective date of such Law Change
(and thereafter as is required by applicable law), having taken
such steps as may be commercially reasonably available to it (but
in no event shall the Agent or any such Bank be required to take
any action that is inconsistent with its internal policies or
would be otherwise adverse to the Agent or such Bank or its
Credit Extensions hereunder, nor shall the Agent or any Bank be
required to disclose any information regarding its tax or related
matters that it deems to be confidential) under applicable tax
laws and any applicable tax treaty or convention to obtain a
reduction, to the lowest applicable rate, of such Taxes.
(h) Notwithstanding any provision of subsection (a),
(b) or (c) to the contrary, no Borrower shall have any obligation
to pay any Taxes, Other Taxes or Further Taxes (except to the
extent reasonably believed by such Borrower to be required by
law, in which event the same may be paid by withholding from
amounts otherwise payable to any Bank or Agent) pursuant to
subsections (b) or (c) that results from (i) the failure of the
Agent or such Bank to comply with its obligations pursuant to
subsections (e), (f) or (g) or (ii) any representation or
warranty made by such Bank or the Agent pursuant to subsections
(e), (f) or (g) proving to have been incorrect when made in any
material respect.
(i) If the Agent or any Bank receives a refund in
respect of Taxes paid by any Borrower, it shall promptly pay such
refund, together with any other amounts paid by such Borrower
pursuant to this Section 4.01 in connection with such refunded
Taxes, to the Company (on behalf of such Borrower); provided,
however, that the Company and such Borrower agrees to promptly
return such refund and related other amounts to the Agent or the
applicable Bank, as the case may be, after it receives notice
from the Agent or such Bank, as the case may be, that such Bank
is required to repay such refund.
4.02 Illegality. (a) If any Bank determines that the
introduction of any Requirement of Law, or any change in any
Requirement of Law, or in the interpretation or administration of
any Requirement of Law, has made it unlawful, or that any central
bank or other Governmental Authority has asserted that it is
unlawful, for any Bank or its applicable Lending Office to make
any Type of Loan (including any LIBOR Rate Loan or Fixed Rate
Loan), then, on notice thereof by such Bank to the relevant
Borrower (with a copy thereof to the Agent, in the case of any
Domestic Loans) any obligation of such Bank to make such Type of
Loans shall be suspended until such Bank notifies the relevant
Borrower (with a copy thereof to the Agent, in the case of any
Domestic Loans) that the circumstances giving rise to such
determination no longer exist.
<PAGE>
(b) If a Bank determines that it is unlawful to
maintain any Type of Loan, each Borrower shall, upon its receipt
of notice of such fact and demand from such Bank (with a copy to
the Agent, in the case of any Domestic Loans), prepay in full its
Loans of such Type then outstanding, together with interest
accrued thereon and amounts required under Section 4.04 and
pursuant to the applicable Tranche A Revolving Supplement
Agreement, either on the last day of the applicable Interest
Period, if such Bank may lawfully continue to maintain such Loans
to such day, or immediately, if such Bank may not lawfully
continue to maintain such Loans. If any Borrower is required to
immediately prepay any LIBOR Rate Loan or Fixed Rate Loan, then
concurrently with such prepayment such Borrower shall
respectively borrow from the affected Bank, in the amount of such
prepayment, a Base Rate Loan or other Tranche A Revolving Loan
that is not subject to any such illegality.
4.03 Increased Costs and Reduction of Return. (a) If any
Bank determines that, due to either (i) the introduction of or
any change in or in the interpretation of any law or regulation
or (ii) the compliance by that Bank with any guideline or request
from any central bank or other Governmental Authority (whether or
not having the force of law), in either case after the date of
this Agreement, there shall be any increase in the cost to such
Bank of agreeing to make or making, funding or maintaining any
Loan or participating in any Letters of Credit, or, in the case
of the Issuing Bank, any increase in the cost to the Issuing Bank
of agreeing to issue, issuing or maintaining any Letter of Credit
or of agreeing to make or making, funding or maintaining any
unpaid drawing under any Letter of Credit, then each Borrower
shall be jointly and severally liable for, and shall from time to
time, upon demand (which demand shall contain a reasonably
detailed calculation of any relevant costs and shall be
conclusive and binding on the Company and the Subsidiaries in the
absence of manifest error, and a copy thereof shall be sent to
the Agent, in the case of any Domestic Loans), pay to such Bank
such additional amounts as are sufficient to compensate such Bank
for such increased costs; provided, however, that the Foreign
Borrowers shall only be liable for those additional amounts
relating to the Foreign Obligations.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change
in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or
(iv) compliance by such Bank (or its Lending Office) or any
corporation controlling such Bank with any Capital Adequacy
Regulation, in each case effective after the date of this
Agreement, affects or would affect the amount of capital required
or expected to be maintained by such Bank or any corporation
controlling such Bank and (taking into consideration such Bank's
or such corporation's policies with respect to capital adequacy
and such Bank's desired return on capital) determines that the
amount of such capital is increased as a consequence of any of
its Commitments, loans, credits or obligations under this
Agreement, then, upon demand of such Bank to the Company (which
demand shall contain a reasonably detailed calculation of any
relevant costs and shall be conclusive and binding on the Company
and the Subsidiaries in the absence of manifest error, and a copy
thereof shall to be sent to the Agent, in the case of any
Domestic Loans), each Borrower agrees to jointly and severally
pay to such Bank, from time to time as specified by such Bank,
additional amounts sufficient to compensate such Bank for
<PAGE>
such increase; provided, however, that the Foreign Borrowers
shall only be liable for those additional amounts relating to the
Foreign Obligations.
4.04 Funding Losses. Each Borrower jointly and severally
agrees, from time to time upon demand (which demand shall contain
a reasonably detailed calculation of all relevant amounts and
shall be conclusive and binding on the Company and the
Subsidiaries in the absence of manifest error), to reimburse the
Agent and each Bank and hold the Agent and each Bank harmless
from any loss or expense which the Agent and each Bank may
sustain or incur as a consequence of:
(a) the failure of any Borrower to make on a timely
basis any payment of principal of any Loan;
(b) the failure of any Borrower to borrow, continue or
convert a Loan after such Borrower has given (or is deemed to
have given) a Notice of Borrowing or a Notice of Conversion/
Continuation;
(c) the failure of any Borrower to make any prepayment
in accordance with any notice delivered under Section 2.07;
(d) the prepayment (including pursuant to Section
2.07, 2.08 or 2.09) or other payment (including after
acceleration thereof) of any LIBOR Rate Loan or Fixed Rate Loan
on a day that is not the last day of the relevant Interest
Period; or
(e) the automatic conversion under Section 2.04 of any
LIBOR Rate Loan or a Fixed Rate Loan on a day that is not the
last day of the relevant Interest Period or;
including any such loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain its LIBOR
Loans or Fixed Rate Loans, or from fees payable to terminate the
deposits from which such funds were obtained or from charges
relating to any such Loans; provided, however, that the Foreign
Borrowers shall only be liable for those losses and expenses
relating to the Foreign Obligations. For purposes of calculating
amounts payable by the Borrowers to the Banks under this Section
and under subsection 4.03(a), each LIBOR Rate Loan or Fixed Rate
Loan made by a Bank (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been
funded by a matching deposit or other comparable borrowing in the
relevant interbank market for a comparable amount and for a
comparable period, whether or not such LIBOR Rate Loan or Fixed
Rate Loan is in fact so funded in such a manner.
4.05 Inability to Determine Rates. The Banks shall not be
required to make, continue or convert any Loans under the
circumstances described in Section 4.05.
(a) Domestic Loans. If the Agent determines that for
any reason adequate and reasonable means do not exist for
determining the LIBOR Rate for any requested Interest Period with
respect to a proposed LIBOR Rate Loan, or that the LIBOR Rate
applicable for any requested Interest Period with respect to a
proposed LIBOR Rate Loan does not adequately and
<PAGE>
fairly reflect the cost to the Banks of funding such Loan, the
Agent will promptly so notify the Company and each Domestic Bank.
Thereafter, the obligation of the Domestic Banks to make or
maintain LIBOR Rate Loans hereunder shall be suspended until the
Agent revokes such notice in writing. Upon receipt of such
notice, the Company may revoke the applicable Notice of Borrowing
or Notice of Conversion/Continuation then submitted by it. If
the Company does not revoke such Notice, the Domestic Banks shall
make, convert or continue such Loans, as proposed by the Company,
in the amount specified in such Notice, but such Loans shall be
made, converted or continued as Base Rate Loans instead of LIBOR
Rate Loans.
(b) Tranche A Revolving Loans. If the Tranche A
Revolving Bank determines that for any reason adequate and
reasonable means do not exist for determining the interest rate
with respect to a proposed Tranche A Revolving Loan, or that any
such interest rate does not adequately and fairly reflect the
cost to such Bank of funding such Loan, the Tranche A Revolving
Bank will promptly so notify the relevant Tranche A Revolving
Borrower. Thereafter, the obligation of the Tranche A Revolving
Bank to make or maintain Tranche A Revolving Loans hereunder
pursuant to such interest rate shall be suspended until the
Tranche A Revolving Bank revokes such notice in writing. Upon
receipt of such notice, the relevant Tranche A Revolving Borrower
may revoke the applicable Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If such Tranche A
Revolving Borrower does not revoke such Notice, the Tranche A
Revolving Bank shall make, continue or convert, as the case may
be, a Tranche A Revolving Loan in the amount specified in such
Notice in an Applicable Currency and in such a Type as is
selected by the Tranche A Revolving Bank.
4.06 Reserves on Loans. Each Borrower agrees to pay to each
Bank with respect to its Loans hereunder, as long as such Bank
shall be required under regulations of the FRB to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), and, in respect of any Tranche A
Revolving Loans, under any applicable regulations of the central
bank or other relevant Governmental Authority in the country in
which the Tranche A Revolving Bank making such Tranche A
Revolving Rate Loan is situated, additional costs on the unpaid
principal amount of each such Loan equal to the actual costs of
such reserves allocated to each such Loan by such Bank (as
calculated by such Bank in good faith, which calculation shall be
set forth in reasonable detail and shall be conclusive and
binding on the Company and the Subsidiaries in the absence of
manifest error).
4.07 Substitution of Banks. Each Bank hereby severally
agrees that if such Bank (an "Affected Bank") makes demand upon
any Borrower for payment of amounts pursuant to Section 4.01,
4.02 or 4.03 the Company may, within 90 days of receipt by such
Borrower of such demand, give notice (a "Replacement Notice") in
writing to the Agent and such Bank of its intention to replace
such Bank with an Eligible Assignee designated in such
Replacement Notice. If the Agent shall notify the Company and
such Bank in writing that it consents to such assignment, then
such Bank shall, so long as no Default or Event of Default shall
have occurred and be continuing, assign, in accordance with
Section 11.08, all of its Commitments, Loans, Notes and other
rights and obligations under this Agreement and the other Loan
Documents to such Eligible Assignee.
<PAGE>
4.08 Change Lending Office. If any Borrower is required to
pay any amount to any Bank or the Agent pursuant to Section 4.01
or 4.03, then such Bank shall, as promptly as is practicable
after it becomes aware of the same, notify the Company of the
same and use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its
Lending Office if (a) the result thereof is to materially reduce
the amounts that would otherwise be required to be paid and (b)
such Bank determines, in its reasonable discretion, that changing
the jurisdiction of its Lending Office would not otherwise be
materially adverse to such Bank.
4.09 Survival. The agreements and obligations of the
Borrowers in this Article IV shall survive the payment of all
other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
---------------------
5.01 Conditions of Initial Credit Extensions. The obligation
of each Bank to make its initial Credit Extension hereunder is
subject to the condition that the Agent shall have received on or
before the Closing Date all of the following, in form and
substance satisfactory to the Agent and each Bank, and in
sufficient copies for each Bank:
(a) Credit Agreement and Notes. This Agreement and
the Notes (other than those Tranche A Revolving Notes relating to
each Tranche A Revolving Supplement Agreement entered into after
the Closing Date pursuant to Section 5.03) executed by each party
thereto;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of
directors of each Borrower and Subsidiary Guarantor
authorizing the transactions contemplated hereby, certified
as of the Closing Date by the Secretary or an Assistant
Secretary of and each such Borrower and Subsidiary
Guarantor;
(ii) A certificate of the Secretary or Assistant
Secretary of each Borrower and Subsidiary Guarantor
certifying the names and true signatures of the officers of
each such Borrower and Subsidiary Guarantor authorized to
execute, deliver and perform, as applicable, this Agreement
and all other Loan Documents to be delivered by it
hereunder; and
(iii) If this Agreement or any other Loan
Document is executed by any Person pursuant to a power of
attorney, a copy of each such power of attorney;
(c) Organization Documents; Good Standing. Each of
the following documents:
(i) the articles or certificate of incorporation
and the bylaws of each Borrower and Subsidiary Guarantor as
in effect on the Closing Date, certified by the
<PAGE>
Secretary or Assistant Secretary of each such Borrower and
Subsidiary Guarantor as of the Closing Date; and
(ii) a good standing and tax good standing
certificate for each Borrower and Subsidiary Guarantor from
the Secretary of State (or similar applicable Governmental
Authority) of its state or jurisdiction of incorporation and
each state or other jurisdiction where each such Borrower
and Subsidiary Guarantor is qualified to do business as a
foreign corporation as of a recent date, together with a
bring-down certificate by facsimile, dated the Closing Date
(provided that with respect to each Foreign Borrower and
Foreign Subsidiary Guarantor the foregoing shall be
delivered only to the extent it is available in the relevant
foreign jurisdiction);
(d) Legal Opinions.
(i) An opinion of Fried, Frank, Harris, Shriver &
Jacobson, counsel to the Borrowers and addressed to the
Agent and the Banks, substantially in the form of Exhibit D-
1 (with such changes thereto as may be agreed to by the
Agent, including, to the extent necessary, in order to
reflect the execution and delivery of any Tranche A
Revolving Supplement Agreement after the Closing Date
pursuant to Section 5.03);
(ii) An opinion of local foreign counsel for each
Foreign Borrower and Foreign Subsidiary Guarantor, each such
opinion to be addressed to the Agent and the Banks and be in
substantially the form (with such changes thereto as may be
agreed to by the Agent, including, to the extent necessary,
in order to reflect the execution and delivery of any
Tranche A Revolving Supplement Agreement after the Closing
Date pursuant to Section 5.03) of Exhibit D-2; and
(iii) Reliance letters addressed to the Agent
and the Banks from Fried, Frank, Harris, Shriver & Jacobson
and, to the extent available, from counsel to American
Optical, with respect to their legal opinions rendered in
connection with the American Optical Acquisition and to the
effect that the Agent and the Banks shall be entitled to
rely thereon, together with copies of such opinions;
(e) Payment of Fees. Evidence of payment by the
Borrowers of all accrued and unpaid fees, costs and expenses to
the extent then due and payable on the Closing Date, together
with reasonable Attorney Costs of BofA to the extent invoiced
prior to or on the Closing Date; provided, that the Borrowers
shall, in any event, be required to pay all other fees, costs and
expenses that are required to be paid from time to time,
including with respect to post-closing matters and pursuant to
Sections 2.11 and 11.04;
(f) Certificate. A certificate signed by a
Responsible Officer in substantially the form of Exhibit K, dated
as of the Closing Date, certifying (among other things) that:
(i) the representations and warranties contained
in Article VI are true and correct on and as of such date,
as though made on and as of such date;
<PAGE>
(ii) no Default or Event of Default exists or
would result from the initial Credit Extension;
(iii) there has occurred since March 31, 1995, no
event or circumstance that, either singly or in the
aggregate, has resulted or could reasonably be expected to
result in a Material Adverse Effect;
(g) Financial Information, etc.
(i) Audited consolidated financial statements for
the Company and the Subsidiaries for each of its last three
fiscal years, in each case prepared in accordance with GAAP
consistently applied;
(ii) To the extent available, unaudited
consolidated financial statements of the Company and the
Subsidiaries certified by a Responsible Officer for the
period of time since the date of the financial statements
referred to in subclause (i), prepared in accordance with
GAAP consistently applied and subject to year-end audit
adjustments; and
(iii) A pro forma balance sheet for the
Company and the Subsidiaries, certified by a Responsible
Officer, after giving effect to the consummation of the
transactions contemplated by this Agreement, the other Loan
Documents, the repayment of amounts outstanding under the
Existing Credit Documents and the consummation of the
American Optical Acquisition.
(h) Consummation of the American Optical Acquisition.
Evidence that the American Optical Purchase Agreement has not
been amended, modified or supplemented without the Banks' prior
written consent; that all conditions precedent to the
consummation of the transactions contemplated by the American
Optical Purchase Agreement have been fully satisfied or, with the
prior written consent of the Banks, waived; and that the American
Optical Acquisition has been consummated in accordance with all
the terms of the American Optical Purchase Agreement. In
addition, there shall have been delivered (if delivered or
required, as the case may be, in connection with the American
Optical Acquisition):
(i) resolutions of the Boards of Directors and
stockholders of each Person that is a party to the American
Optical Purchase Agreement, duly adopted and in full force
and effect on the Closing Date, authorizing the execution,
delivery and performance by each such Person of the American
Optical Purchase Agreement and all the other agreements,
documents and instruments being delivered in connection
therewith; and
(ii) true and correct copies of the American
Optical Purchase Agreement and all the agreements,
documents, instruments, opinions, filings and approvals that
have been delivered, furnished or filed pursuant thereto;
<PAGE>
(i) Payment of Outstanding Indebtedness, etc. All
Indebtedness identified in Schedule 8.05(c)(i) of the Disclosure
Schedule, together with all interest, all prepayment premiums and
other amounts due and payable with respect thereto, shall have
been paid in full and all obligations with respect thereto have
been terminated, and all Liens securing payment of any such
Indebtedness shall have been released. In addition, the Agent
shall have received termination agreements and Uniform Commercial
Code Form UCC-3 termination statements or other instruments as
may be suitable or appropriate in connection with the foregoing,
and the same shall be promplty filed after the Closing Date to
release all relevant Liens and the Agent shall receive
acknowledgement copies of the same;
(j) Subordinated Debt Agreement. The terms of the
Subordinated Debt Agreement, together with all the documents,
instruments, agreements, opinions, filings, consents and
approvals executed in connection therewith, shall be in form and
substance satisfactory to the Agent and the Banks, and true and
correct copies thereof shall have been delivered. In addition,
the Company shall have delivered to the Subordinated Debt Trustee
a satisfactory notice to the effect that (i) this Agreement is
the Bank Credit Agreement referred to in the Subordinated Debt
Agreement, (ii) the Commitments and amounts to be outstanding
hereunder are permitted to be outstanding under the Subordinated
Debt Agreement, (iii) all the Loans and other amounts payable
hereunder constitute Senior Indebtedness referred to in the
Subordinated Debt Agreement and (iv) all amounts under the
Existing Credit Documents have been refinanced in full by amounts
made available pursuant to this Agreement, and the Subordinated
Debt Trustee shall have acknowledged receipt of the same;
(k) Solvency Certificate. A solvency certificate in
substantially the form of Exhibit I, signed by a Responsible
Officer and dated as of the Closing Date;
(l) Compliance Certificate. After giving effect to
all the transactions contemplated by this Agreement and the
consummation of the American Optical Acquisition, a pro forma
Compliance Certificate with respect to (i) the Net Worth
requirement set forth in subsection 8.12(c) and (ii) the Leverage
Ratio requirement set forth in subsection 8.12(a) for the period
of four consecutive fiscal quarters immediately preceding the
Closing Date;
(m) Tranche A Revolving Supplement Agreements. Each
Tranche A Revolving Supplement Agreement that is to be effective
as of the Closing Date shall have been completed and executed by
each relevant Tranche A Revolving Borrower and Tranche A
Revolving Bank that is a party thereto; and
(n) Other Documents. Such other approvals, opinions,
documents or materials as the Agent or any Bank may reasonably
request.
5.02 Conditions to All Credit Extensions. The obligation of
each Bank to make any Loan to be made by it (including its
initial Loan), and the obligation of the Issuing Bank to Issue
any Letter of Credit (including the initial Letter of Credit), is
subject to the satisfaction of the following conditions precedent
on the relevant Borrowing Date or Issuance Date, as the case may
be:
<PAGE>
(a) Continuation of Representations and Warranties.
The representations and warranties in Article VI shall be true
and correct on and as of such Borrowing Date or Issuance Date, as
the case may be, with the same effect as if made on and as of
such Borrowing Date or Issuance Date (except to the extent such
representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such
earlier date);
(b) No Existing Default. No Default or Event of
Default shall exist or shall result from such Borrowing or
Issuance;
(c) Domestic Loans; Notice of Borrowing. With respect
to each Domestic Loan, the Agent shall have received (with, in
the case of the initial Loan only, a copy for each Bank) a Notice
of Borrowing;
(d) Tranche A Revolving Loan; Notice of Borrowing and
Tranche A Revolving Supplement Agreement. With respect to each
Tranche A Revolving Loan, the Tranche A Revolving Bank shall have
received a Notice of Borrowing and a Tranche A Revolving
Supplement Agreement, and each of the terms and conditions set
forth therein shall have been satisfied;
(e) Certain Additional Conditions Relating to the
Tranche A Revolving Loans. With respect to each Tranche A
Revolving Borrower referred to in Annex 5.02(e), the post-closing
items referred to therein shall have been satisfied as therein
provided.
(f) Letters of Credit. With respect to the Issuance
of any Letter of Credit, the Issuing Bank and the Agent shall
have received an L/C Application or L/C Amendment Application, as
required under Section 3.02.
Each Notice of Borrowing, L/C Application, L/C Amendment
Application, Tranche A Revolving Supplement Agreement and
telephonic request for a Swing Line Loan (including the follow-up
Notice of Borrowing) submitted or made by any Borrower hereunder
shall constitute a representation and warranty by such Borrower,
as of the date or making or issuance of the same and the
applicable Borrowing Date and Issuance Date, as the case may be,
that all the applicable conditions in Section 5.02 are satisfied.
5.03. Conditions to Subsequently Executed Tranche A
Revolving Supplement Agreements. The execution and delivery
after the Closing Date of any Tranche A Revolving Supplement
Agreement by a Tranche A Revolving Borrower that is an original
signatory to this Agreement and the Tranche A Revolving Bank
(which Tranche A Revolving Supplement Agreement shall be on
mutually agreeable terms, except to the extent such terms do not
conflict with the terms of this Agreement) that is a party
thereto is subject to the following additional conditions
precedent:
(a) the relevant board of directors resolutions,
incumbency certificates and powers of attorney delivered
pursuant to subsection 5.01(b) as they relate to such
Tranche A Revolving Supplement Agreement shall be in full
force and effect and the
<PAGE>
relevant Tranche A Revolving Bank shall have received an
officer's certificate regarding the same;
(b) the relevant Tranche A Revolving Bank shall
have received fully executed Notes relating to such Tranche
A Revolving Supplement Agreement; and
(c) to the extent that any of the legal opinions
delivered pursuant to Section 5.01(d) do not opine on issues
relating to such Tranche A Revolving Supplement Agreement
and the related Tranche A Revolving Note of the applicable
Tranche A Revolving Borrower, the Agent and the relevant
Tranche A Revolving Bank shall have received (with
sufficient copies for each Bank) additional New York and
local foreign counsel opinions, as the case may be, from
counsel acceptable to the Agent (it being agreed that the
counsel delivering legal opinions on the Closing Date shall
be acceptable), as to such matters (such legal opinions to
be in the forms of Exhibit D-1 and Exhibit D-2, as the case
may be).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
Each Borrower represents and warrants to the Agent and each
Bank that:
6.01 Corporate Existence and Power. The Borrowers, the
Subsidiary Guarantors and each of the Subsidiaries:
(a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation;
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals to (i) own its
assets and carry on its business and (ii) to execute, deliver,
and perform its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation and is
licensed 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 or license;
and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in subclause (b)(i), (c) or (d),
to the extent that the failure to do so could not, either singly
or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.02 Corporate Authorization; No Contravention. The
execution, delivery and performance by each Borrower and
Subsidiary Guarantor of this Agreement and each other Loan
Document to which each Borrower and Subsidiary Guarantor is
party, have been duly authorized by all necessary corporate
action, and do not and will not:
<PAGE>
(a) contravene the terms of any Borrower's or
Subsidiary Guarantor's Organization Documents;
(b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document
evidencing any Contractual Obligation to which any Borrower or
Subsidiary Guarantor is a party or any order, injunction, writ or
decree of any Governmental Authority to which any Borrower or
Subsidiary Guarantor or its property is subject; or
(c) violate any Requirement of Law.
6.03 Governmental Authorization. Except as specifically
disclosed in Schedule 6.03, no approval, consent, exemption,
authorization, or other action by, or notice to, or filing with,
any Governmental Authority is necessary or required in connection
with the execution, delivery or performance by, or enforcement
against, any Borrower or Subsidiary Guarantor of this Agreement
or any other Loan Document.
6.04 Binding Effect. This Agreement and each other Loan
Document to which any Borrower or Subsidiary Guarantor is a party
constitute the legal, valid and binding obligations of such
Borrower and Subsidiary Guarantor enforceable against each such
Borrower and Subsidiary Guarantor in accordance with their
respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
6.05 Litigation. Except as specifically disclosed in
Schedule 6.05, there are no actions, suits, proceedings, claims
or disputes pending, or to the best knowledge of any Borrower,
threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, against any Borrower or the
Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or
any other Loan Document, or any of the transactions contemplated
hereby or thereby; or
(b) if determined adversely to any Borrower or the
Subsidiaries, may have a Material Adverse Effect. No injunction,
writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery or
performance of this Agreement or any other Loan Document, or
directing that the transactions provided for herein or therein
not be consummated as herein or therein provided.
6.06 No Default. No Default or Event of Default exists or
would result from the incurring of any Obligations by any
Borrower or Subsidiary Guarantor. As of the Closing Date, no
Borrower nor any Subsidiary is in default under or with respect
to any Contractual Obligation in any respect which, individually
or together with all such defaults, could reasonably be expected
to have a Material Adverse Effect, or that would, if such default
had occurred after the Closing Date, create an Event of Default
under subsection 9.01(e).
6.07 ERISA Compliance. Except as specifically disclosed in
Schedule 6.07:
<PAGE>
(a) Each Plan is in compliance in all respects with
the applicable provisions of ERISA, the Code and other federal or
state law, except to the extent that the failure to do so would
not, either singly or in the aggregate, reasonably be expected to
(x) have a Material Adverse Effect or (y) result in an Event of
Default under subsection 9.01(h). Each Plan which is intended to
qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS and to the best knowledge of
the Company, nothing has occurred which would cause the loss of
such qualification. The Company and each ERISA Affiliate has
made all required contributions to any Plan subject to Section
412 of the Code (except to the extent that the failure to do so
would not, either singly or in the aggregate, reasonably be
expected to (x) have a Material Adverse Effect or (y) result in
an Event of Default under subsection 9.01(h)) and no application
for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to
any Plan.
(b) There are no pending or, to the best knowledge of
each Borrower, threatened claims, actions or lawsuits, or action
by any Governmental Authority, with respect to any Plan which has
resulted or could reasonably be expected to result in a Material
Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to
any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension
Liability in an aggregate amount exceeding $7,500,000; (iii)
neither the Company nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of
ERISA with respect to any Pension Plan (other than premiums due
and not delinquent under Section 4007 of ERISA); (iv) neither the
Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Section 4201 of ERISA with
respect to a Multiemployer Plan; and (v) neither the Company nor
any ERISA Affiliate has engaged in a transaction that is subject
to Section 4069 or 4212(c) of ERISA, except for any such event or
liability under subclauses (i), (iii) or (iv) which, either
singly or in the aggregate, has not resulted in or would not
reasonably be expected to result in (x) a Material Adverse Effect
or (y) an Event of Default under Section 9.01(h).
6.08 Use of Proceeds; Margin Regulations. The proceeds of
the Loans are to be used solely for the purposes set forth in and
permitted by Section 7.12 and not in violation of Section 8.07.
No Borrower nor any of the Subsidiaries is generally engaged in
the business of purchasing or selling Margin Stock or extending
credit for the purpose of purchasing or carrying Margin Stock.
6.09 Title to Properties. Each Borrower and the
Subsidiaries have good record and marketable title in fee simple
to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of their respective businesses,
except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. As of the Closing
Date, the property of each Borrower and the Subsidiaries is
subject to no Liens, other than Permitted Liens.
<PAGE>
6.10 Taxes. Each Borrower and the Subsidiaries have filed
all Federal and other material tax returns and reports required
to be filed, and have paid all Federal and other material taxes,
assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise
due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves
have been provided in accordance with GAAP. There is no proposed
tax assessment against any Borrower or any Subsidiary that would,
if made, have a Material Adverse Effect.
6.11 Financial Condition. (a) The consolidated financial
statements of the Company and the Subsidiaries delivered pursuant
to subsection 5.01(g):
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, subject to
ordinary, good faith year end audit adjustments in the case
of the unaudited financial statements;
(ii) fairly present the financial condition of the
Company and the Subsidiaries as of the date thereof and
results of operations for the period covered thereby; and
(iii) except as specifically disclosed in
Schedule 6.11, show all material indebtedness and other
liabilities, direct or contingent, of the Company and its
consolidated Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Contingent
Obligations.
(b) Since March 31, 1995, there has been no Material
Adverse Effect.
6.12 Environmental Matters. Each Borrower conducts in the
ordinary course of business a review of the effect of existing
Environmental Laws and existing Environmental Claims on its
business, operations and properties, and as a result thereof each
Borrower has reasonably concluded that such Environmental Laws
and Environmental Claims could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
6.13 Regulated Entities. No Borrower, any Person
controlling a Borrower, or any Subsidiary is an "Investment
Company" within the meaning of the Investment Company Act of
1940. No Borrower is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability
to incur Indebtedness.
6.14 Copyrights, Patents, Trademarks and Licenses, etc.
Except as specifically disclosed in Schedule 6.14, each Borrower
and the Subsidiaries own or are licensed or otherwise have the
right to use all of the patents, trademarks, service marks, trade
names, copyrights, contractual franchises, authorizations and
other rights that are reasonably necessary for the operation of
their respective businesses, without conflict with the rights of
any other Person. To the best knowledge of each Borrower, no
slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now
contemplated to be
<PAGE>
employed, by any Borrower or any of the Subsidiaries infringes
upon any rights held by any other Person. Except as specifically
disclosed in Schedule 6.05, no claim or litigation regarding any
of the foregoing is pending or threatened, and no patent,
invention, device, application, principle or any statute, law,
rule, regulation, standard or code is pending or, to the
knowledge of any Borrower, proposed, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
6.15 Subsidiaries. As of the Closing Date, (a) the Company
and the Borrowers have no Subsidiaries other than those
specifically identified in part (a) of Schedule 6.15 hereto and
has no equity investments in any other corporation or entity
other than those specifically identified in part (b) of Schedule
6.15 and (b) the Significant Subsidiaries are identified in part
(c) of Schedule 6.15.
6.16 Insurance. The properties of the Borrowers and the
Subsidiaries are insured with financially sound and reputable
insurance companies that are not Affiliates of any Borrower, in
such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the
Borrowers and the Subsidiaries operate.
6.17 Swap Obligations. No Borrower nor any of the
Subsidiaries has incurred any outstanding obligations under any
Swap Contracts, other than Permitted Swap Obligations. Each
Borrower has undertaken its own independent assessment of its
consolidated assets, liabilities and commitments and has
considered appropriate means of mitigating and managing risks
associated with such matters and has not relied on any swap
counterparty or any Affiliate of any swap counterparty in
determining whether to enter into any Swap Contract.
6.18 Subordinated Notes. The Subordinated Debt Agreement
and the Subordinated Notes constitute the legal, valid and
binding obligation of the Company enforceable against the Company
in accordance with their respective terms, subject (as to
enforcement only) to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforceability of
creditors' rights generally. The Company has delivered true and
complete copies of the Subordinated Debt Agreement and
Subordinated Notes to the Banks, together with all amendments,
waivers and other changes thereto. Notwithstanding any
bankruptcy, insolvency, reorganization, moratorium or similar
proceeding in respect of the Company, at all times (a) the
subordination provisions of the Subordinated Debt Agreement and
the Subordinated Notes (the "Subordination Provisions") will be
enforceable against the holders thereof by the Banks, (b) all
Loans and other amounts payable hereunder, including the
obligation to pay principal of and interest on the Loans and fees
payable hereunder, constitute "Senior Indebtedness" (as defined
in the Subordinated Debt Agreement and the Subordinated Notes)
and all such obligations will be entitled to the benefits of
Subordination Provisions, (c) this is the Bank Credit Agreement
referred to in the Subordinated Debt Agreement and (d) all
payments of principal of or interest on any Subordinated Note
made by the Company or from the liquidation of its property will
be subject to the Subordination Provisions. The Subordinated
Debt Agreement and Subordinated Notes are duly registered or
qualified under all applicable United States Federal and state
securities laws or exempt therefrom. The Company acknowledges
that the Agent and each Bank is entering into this Agreement and
has extended the Loans in reliance upon the Subordination
<PAGE>
Provisions contained in the Subordinated Notes, the Subordinated
Debt Agreement and this Section.
6.19 Full Disclosure. None of the representations or
warranties made by any Borrower or any of their Subsidiaries in
the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements
contained in any exhibit, report, statement or certificate
furnished by or on behalf of any Borrower or any such Subsidiary
in connection with the Loan Documents (including the offering and
disclosure materials delivered by or on behalf of the Borrowers
to the Banks prior to the Closing Date), contains any untrue
statement of a material fact or omits any material fact required
to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they are made,
not misleading as of the time when made or delivered.
6.20 Solvency. The Company, each Borrower and each
Subsidiary is Solvent; provided that this Section 6.20 shall not
prevent the Company from acquiring any Person that is not Solvent
if, contemporaneously with the consummation of each such
acquisition, the Company causes each such Person to become
Solvent.
ARTICLE VII
AFFIRMATIVE COVENANTS
---------------------
So long as any Bank shall have any Commitment hereunder, or
any Loan or other Obligation shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding, unless the
Majority Banks waive compliance in writing:
7.01 Financial Statements. The Company shall deliver to the
Agent, in form and detail satisfactory to the Agent and the
Majority Banks, with sufficient copies for each Bank:
(a) as soon as available, but not later than 90 days
after the end of each fiscal year, a copy of the audited
consolidated balance sheet of the Company and the Subsidiaries as
at the end of such year and the related consolidated statements
of income or operations, shareholders' equity and cash flows for
such year, setting forth in each case in comparative form the
figures for the previous fiscal year, and accompanied by the
opinion of Ernst & Young L.L.P. or another nationally-recognized
independent public accounting firm ("Independent Auditor") which
report shall state that such consolidated financial statements
present fairly the financial position for the periods indicated
in conformity with GAAP applied on a basis consistent with prior
years. Such opinion shall not be qualified or limited because of
a restricted or limited examination by the Independent Auditor of
any material portion of the Company's or any Subsidiary's
records;
(b) as soon as available, but not later than 60 days
after the end of each of the first three fiscal quarters of each
fiscal year, a copy of the unaudited consolidated balance sheet
of the Company and the Subsidiaries as of the end of such quarter
and the related consolidated statements of income, shareholders'
equity and cash flows for the period commencing on the first day
and ending on the last day of such quarter, and certified by a
Responsible Officer as
<PAGE>
fairly presenting, in accordance with GAAP (subject to ordinary,
good faith year-end audit adjustments), the financial position
and the results of operations of the Company and the
Subsidiaries; and
(c) not later than June 28, 1996, a copy of the
audited consolidated balance sheet of the Company and the
Subsidiaries as of March 31, 1996 and the related consolidated
statements of income or operations, shareholders' equity and cash
flows for the fiscal year then ending, setting forth in each case
in comparative form the figures for the previous fiscal year,
together with the opinion of the Independent Auditor referred to
in subsection 7.01(a).
7.02 Certificates; Other Information. The Company shall
furnish to the Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.01(a), a certificate of
the Independent Auditor (i) stating that in making the
examination necessary therefor no knowledge was obtained of any
Default or Event of Default, or, if they have become aware of the
existence of any Default or Event of Default, describing such
Default or Event of Default, and (ii) containing a computation
of, and showing compliance with, each of the financial covenants
set forth in Section 8.12;
(b) concurrently with the delivery of the financial
statements referred to in subsections 7.01(a) and (b), a
Compliance Certificate executed by a Responsible Officer;
(c) promptly, copies of all financial statements and
reports that the Company or any Subsidiary sends to its
shareholders, and copies of all financial statements and regular,
periodical or special reports (including Forms 10K, 10Q and 8K)
that the Company or any Subsidiary may make to, or file with, the
SEC or other similar regulator;
(d) promptly, such additional information regarding
the business, financial or corporate affairs of the Company or
any Subsidiary as the Agent, at the request of any Bank, may from
time to time reasonably request;
(e) promptly when available and in any event within 15
Business days prior to the last day of each fiscal year, a budget
for the next succeeding fiscal year, which budget shall be
prepared on a fiscal quarter basis and shall contain a projected,
consolidated balance sheet and statement of earnings and cash
flow of the Company and the Subsidiaries for such succeeding
fiscal year, prepared in reasonable detail by a Responsible
Officer; and
(f) concurrently with the delivery or receipt, as the
case may be, of any written notice or communication pursuant to
or in connection with the Subordinated Debt Agreement, a copy of
such notice or communication, except that the Company shall not
be required to deliver any of the foregoing which has previously
been delivered hereunder.
7.03 Notices. The Company and each other Borrower shall
promptly notify the Agent and each Bank:
<PAGE>
(a) of the occurrence of any Default or Event of
Default, and of the occurrence or existence of any event or
circumstance that may reasonably be expected to become a Default
or Event of Default;
(b) of any matter that has resulted or may reasonably
result in a Material Adverse Effect, including (i) breach or non-
performance of, or any default under, a Contractual Obligation of
the Company or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Company or
any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation
or proceeding affecting the Company or any Subsidiary; including
pursuant to any applicable Environmental Laws;
(c) of the occurrence of any of the following events
affecting the Company or any ERISA Affiliate (but in no event
more than 10 days after such event), and deliver to the Agent and
each Bank a copy of any notice with respect to such event that is
filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any ERISA Affiliate with
respect to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the
Code by the Company or any ERISA Affiliate; or
(iv) the adoption of any amendment to a Plan
subject to Section 412 of the Code, if such amendment
results in a material increase in contributions or Unfunded
Pension Liability.
(d) of any material change in accounting policies or
financial reporting practices by the Company or any of its
consolidated Subsidiaries (other than due to a change in GAAP);
Each notice under this Section shall be accompanied by
a written statement by a Responsible Officer setting forth
details of the occurrence referred to therein, and stating what
action the Company or any affected Subsidiary proposes to take
with respect thereto and at what time. Each notice under
subsection 7.03(a) shall describe with particularity any and all
clauses or provisions of this Agreement or other Loan Document
that have been (or foreseeably will be) breached or violated.
7.04 Preservation of Corporate Existence, Etc. The Company
shall, and shall cause each Subsidiary to:
<PAGE>
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state
or jurisdiction of incorporation (except to the extent
contemplated by Sections 8.02 and 8.03);
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits,
licenses and franchises necessary or desirable in the normal
conduct of its business;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks;
provided however, that the Company is required to comply with the
foregoing only to the extent that the failure to do so would not,
either singly or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
7.05 Maintenance of Property. The Company shall maintain,
and shall cause each Subsidiary to maintain, all its property
which is used or useful in its business in good working order and
condition, ordinary wear and tear excepted and make all necessary
repairs thereto and renewals and replacements thereof, except as
permitted by Section 8.02 or to the extent that the failure to do
so would not, either singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
7.06 Insurance. The Company shall maintain, and shall cause
each Subsidiary to maintain, with financially sound and reputable
independent insurers, insurance with respect to its properties
and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons.
7.07 Payment of Obligations. The Company shall, and shall
cause each Subsidiary to, pay and discharge as the same shall
become due and payable, all their respective obligations and
liabilities, including:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate proceedings
and adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law
become a Lien upon its property not permitted by Section 8.01;
and
(c) all Indebtedness, as and when due and payable to
the extent necessary to avoid the occurrence of an Event of
Default as herein provided, but subject to any subordination
<PAGE>
provisions (including the Subordination Provisions) contained in
any instrument or agreement evidencing such Indebtedness.
7.08 Compliance with Laws. The Company shall comply, and
shall cause each Subsidiary to comply, in all material respects
with all Requirements of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal Fair
Labor Standards Act), except such as may be contested in good
faith or as to which a bona fide dispute may exist.
7.09 Compliance with ERISA. The Company shall, and shall
cause each of its ERISA Affiliates to: (a) maintain each Plan in
compliance in all respects with the applicable provisions of
ERISA, the Code and other federal or state law, except to the
extent that the failure to do so would not, either singly or in
the aggregate, reasonably be expected to have a Material Adverse
Effect; (b) cause each Plan which is qualified under Section
401(a) of the Code to maintain such qualification; and (c) make
all required contributions to any Plan subject to Section 412 of
the Code, except where the failure to make any such contributions
would not, either singly or in the aggregate, reasonably be
expected to (x) have a Material Adverse Effect or (y) result in
an Event of Default under Section 9.01(h).
7.10 Inspection of Property and Books and Records. The
Company shall maintain and shall cause each Subsidiary to
maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied
shall be made of all financial transactions and matters involving
the assets and business of the Company and each such Subsidiary.
The Company shall permit, and shall cause each Subsidiary to
permit, representatives and independent contractors of the Agent
or any Bank (at the Agent's and each such Bank's expense) to
visit and inspect any of their respective properties, to examine
their respective corporate, financial and operating records, and
make copies at the Company's expense thereof or abstracts
therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and
independent public accountants, at such reasonable times during
normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; provided, however,
when an Event of Default exists the Agent or any Bank may do any
of the foregoing, at the Company's expense, at any time during
normal business hours and without advance notice.
7.11 Environmental Laws. The Company shall, and shall cause
each Subsidiary to, conduct its operations and keep and maintain
its property in compliance with all Environmental Laws, except to
the extent that the failure to do so would not, either singly or
in the aggregate, reasonably be expected to have a Material
Adverse Effect.
7.12 Use of Proceeds. (a) The Borrowers shall use all
proceeds of
(i) the Tranche A Revolving Loans and Tranche B
Revolving Loans for (A) refinancing amounts outstanding under the
Existing Credit Documents, (B) working capital purposes of the
Borrowers and (C) consummating Permitted Acquisitions (including
the American Optical Acquisition); provided, however, that (x)
prior to applying any such Revolving Loans to consummate the
American Optical Acquisition, $30,000,000 of Term Loans shall
have
<PAGE>
been applied to consummate the American Optical Acquisition and
(y) notwithstanding the foregoing, the proceeds of the Tranche A
Revolving Loans to Sola Optical Singapore Pte Ltd. shall only be
used for the purpose of financing direct exports from and imports
into Singapore and economic activities in Singapore, and not any
activities which would violate the guidelines of the Monetary
Authority of Singapore as set forth in the Notice to Banks, MAS
621, dated July 18, 1992;
(ii) the Swing Line Loans for working capital
purposes of the Borrowers; and
(iii) the Term Loans for consummating the
American Optical Acquisition.
(b) The Borrower shall use the Letter of Credit for
credit support of working capital obligations and general
corporate uses of the Company.
The Loan proceeds and Letters of Credit shall not, in any event,
be used in contravention of any Requirement of Law or of any Loan
Document.
7.13 Future Subsidiaries, Etc. Within ten Business Days
after any Person becomes a direct or indirect Significant
Subsidiary of the Company, such Subsidiary shall execute and
deliver to the Agent a Joinder in Credit Agreement. Without
limiting the foregoing, within ten Business Days after the
Closing Date, American Optical Corporation International AG shall
become a Foreign Borrower and Ouest Optique S.A. shall become a
Foreign Subsidiary Guarantor, in each case by executing and
delivering to the Agent a Joinder in Credit Agreement and
completing, in form and substance satisfactory to the Agent,
those conditions referred to in subsections 5.01(a), (b), (c),
(d)(i) and (d)(ii) as the relate to American Optical Corporation
International AG and Ouest Optique S.A., as the case may be. In
addition, subject to the first sentence of this Section 7.13,
Sola Optical Taiwan Ltd. may become a Foreign Borrower by
executing and delivering to the Agent a Joinder in Credit
Agreement and completing, in form and substance satisfactory to
the Agent, those conditions referred to in subsections 5.01(a),
(b), (c), (d)(i) and (d)(ii) as they relate to Sola Optical
Taiwan Ltd.
7.14 Sola Optical S.A. If reasonably requested by the
Agent, Sola Optical S.A. shall promptly file this Agreement with
the appropriate French Governmental Authorities so that the
guarantee contained in Section 11.09 can be made in France in a
public act (acte public), and Sola Optical S.A. shall pay all
filing and other fees required to be paid in connection
therewith.
ARTICLE VIII
NEGATIVE COVENANTS
-------------------
So long as any Bank shall have any Commitment hereunder, or
any Loan or other Obligation shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding, unless the
Majority Banks waive compliance in writing:
<PAGE>
8.01 Limitation on Liens. The Company shall not, and shall
not suffer or permit any Subsidiary to, directly or indirectly,
make, create, incur, assume or suffer to exist any Lien upon or
with respect to any part of its property, whether now owned or
hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on property of the Company or
any Subsidiary on the Closing Date and set forth in Schedule 8.01
that secures Indebtedness permitted under subsection 8.05(d), and
any extensions or renewals thereof which are done in connection
with the renewal, extension or refinancing of any Indebtedness
permitted under subsection 8.05(d), provided that any such
extension or renewal of such Liens only covers the same assets
which originally secured such Indebtedness;
(b) any Lien created under any Loan Document in favor
of the Banks;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable
without penalty, or to the extent that non-payment thereof is
permitted by Section 7.07;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain
payable without penalty or which are being contested in good
faith and by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the property
subject thereto;
(e) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary course
of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(f) Liens securing (i) the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, (ii) contingent obligations on surety and appeal
bonds, and (iii) other obligations of a like nature, in each case
incurred in the ordinary course of business, provided all such
Liens in the aggregate would not (even if enforced) cause a
Material Adverse Effect;
(g) judgment or judicial attachment Liens, provided
that the enforcement of such Liens is effectively stayed and all
such Liens in the aggregate at any time outstanding for the
Company and the Subsidiaries do not otherwise constitute an Event
of Default under subsection 9.01(i);
(h) easements, rights-of-way, zoning and municipal
ordinances, restrictions and other similar encumbrances which do
not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the
businesses of the Company and the Subsidiaries;
(i) Liens on assets securing Indebtedness permitted
under subsection 8.05(j) of Persons which become Subsidiaries
after the date of this Agreement pursuant to a Permitted
<PAGE>
Acquisition and any extensions or renewals thereof which are done
in connection with the renewal, extension or refinancing of any
Indebtedness permitted under subsection 8.05(j), provided, that
(i) such Liens existed at the time the respective Persons became
Subsidiaries and were not created in anticipation thereof and
(ii) any such extension or renewal of such Liens only covers the
same assets which originally secured such Indebtedness;
(j) purchase money security interests on any property
acquired or held by the Company or any Subsidiary permitted by
subsection 8.05(e), securing Indebtedness incurred or assumed for
the purpose of financing all or any part of the cost of acquiring
such property, and any extensions or renewals thereof which are
done in connection with the renewal, extension or refinancing of
any purchase money Indebtedness permitted pursuant to subsection
8.05(e); provided that (i) any such Lien attaches to such
property concurrently with or within 20 days after the
acquisition thereof, (ii) such Lien attaches solely to the
property so acquired in such transaction, (iii) the principal
amount of the Indebtedness secured thereby does not exceed 100%
of the cost of such property, and (iv) the principal amount of
the Indebtedness secured by any and all such purchase money
security interests shall not at any time exceed, together with
the other Indebtedness permitted under subsection 8.05(e), the
amount provided for in such subsection;
(k) Liens securing obligations in respect of capital
leases on assets subject to such leases, provided that such
capital leases are otherwise permitted hereunder;
(l) any interest or title of any consignor of goods
consigned to, or of any creditor of any consignee in goods
consigned to such consignee by, the Company or any of
Subsidiaries;
(m) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-
off or similar rights and remedies as to deposit accounts or
other funds maintained with a creditor depository institution;
provided that (i) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations
promulgated by the FRB, and (ii) such deposit account is not
intended by the Company or any Subsidiary to provide collateral
to the depository institution;
(n) Liens consisting of pledges of cash collateral or
government securities to secure on a mark-to-market basis
Permitted Swap Obligations only, provided that (i) the
counterparty to any Swap Contract relating to such Permitted Swap
Obligations is under a similar requirement to deliver similar
collateral from time to time to the Company or the Subsidiary
party thereto on a mark-to-market basis; and (ii) the aggregate
value of such collateral so pledged by the Company and the
Subsidiaries together in favor of any counterparty does not at
any time exceed $10,000,000;
(o) until the dates after which the Indebtedness
specified in subsections 8.05(c)(i) and (ii) may not remain
outstanding, the respective Liens securing payment of such
Indebtedness;
<PAGE>
(p) Liens securing Indebtedness in respect of
industrial revenue bond issues permitted by subsection 8.05(e),
provided that the principal amount of the Indebtedness secured by
such industrial revenue bond issues shall not at any time exceed,
together with the other Indebtedness permitted under subsection
8.05(e), the amount provided for in such subsection;
(q) Liens arising in the ordinary course of business
in favor of customs and revenue authorities as a matter of law to
secure payment of customs duties in connection with the
importation of goods;
(r) Liens arising in the ordinary course of business
on documents of title and the property covered thereby securing
Indebtedness permitted under Section 8.05 in respect of
commercial letters of credit; and
(s) Intercompany Liens in favor of the Company, any
Wholly-Owned Subsidiary or any Subsidiary securing any extension
of credit permitted pursuant to subsection 8.04(c).
8.02 Disposition of Assets. The Company shall not, and
shall not suffer or permit any Subsidiary to, directly or
indirectly, sell, assign, lease, convey, transfer or otherwise
dispose of (whether in one or a series of transactions) any
property (including accounts and notes receivable, with or
without recourse) or enter into any agreement to do any of the
foregoing, except:
(a) dispositions (i) in the ordinary course of
business of inventory and worn-out or obsolete assets or (ii)
pursuant to any transaction permitted by Section 8.03;
(b) the sale of equipment to the extent that such
equipment is exchanged for credit against the purchase price of
similar replacement equipment, or the proceeds of such sale are
reasonably promptly applied to the purchase price of such
replacement equipment;
(c) dispositions of inventory, equipment or other
property or assets by the Company or any Subsidiary to another
Subsidiary pursuant to reasonable business requirements,
provided, that the aggregate amount of such dispositions from the
Company and the Domestic Subsidiaries to the Foreign Subsidiaries
shall not exceed $20,000,000 since the Closing Date;
(d) such disposition is in respect of assets acquired
within six months of such disposition pursuant to a Permitted
Acquisition;
(e) dispositions in respect of the issuance or sale
(by way of an initial public offering, private placement or
otherwise) of the capital stock of Sola Argentina S.A., Sola
Optical Taiwan Ltd., Sola Hong Kong Ltd., Norinco Sola Ltd.
(China) or Sola Brasil Industria Optica Ltda and their respective
Subsidiaries, provided that after each such issuance or sale the
Company shall continue to own, directly or indirectly, at least
51% of the capital stock of any such Subsidiary; and
(f) Permitted Dispositions.
<PAGE>
8.03 Consolidations and Mergers. The Company shall not, and
shall not suffer or permit any Subsidiary to, merge, consolidate
with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all
or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary may merge with and into, or
liquidate or dissolve voluntarily into, the Company, provided
that the Company shall be the continuing or surviving
corporation, or with any one or more Subsidiaries, provided that
if any transaction shall be between a Subsidiary and a Wholly-
Owned Subsidiary, the Wholly-Owned Subsidiary shall be the
continuing or surviving corporation;
(b) any Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, any corporation
which is not a Subsidiary of the Company provided, that (i) such
transaction is Permitted Disposition or (ii) the following
conditions are satisfied: (A) the surviving corporation shall be
a Subsidiary of the Company, (B) if such Subsidiary is a Domestic
Subsidiary the surviving corporation shall be a Domestic
Subsidiary, (C) the Company shall own at least the same
percentage of the outstanding capital stock of the surviving
corporation as the Company owned of such Subsidiary prior to such
merger, liquidation or consolidation, (D) immediately prior to
and after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing and (E) the surviving
corporation complies with the provisions of Section 7.13; and
(c) any transaction permitted pursuant to Section
8.02.
8.04 Loans and Investments. The Company shall not purchase
or acquire, or suffer or permit any Subsidiary to purchase or
acquire, or make any commitment therefor, any capital stock,
equity interest, or any obligations or other securities of, or
any interest in, any Person, or make or commit to make any
Acquisitions, or make or commit to make any advance, loan,
extension of credit or capital contribution to or any other
investment in, any Person including any Affiliate of the Company
or any Subsidiary (together, "Investments"), except for:
(a) Investments held by the Company or any Subsidiary
in the form of Cash
Equivalents; or
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of
goods or services in the ordinary course of business;
(c) extensions of credit, capital contributions or
purchases of equity by the Company to or in favor of any Wholly-
Owned Subsidiary or by any Subsidiary to or in favor of any
Wholly-Owned Subsidiary or the Company; provided, however, that
the aggregate amount of such extensions of credit, capital
contributions and purchases of equity by the Company and the
Domestic Subsidiaries to or in favor of the Foreign Subsidiaries
(other than up to $15,000,000 of extensions of credit to Foreign
Subsidiaries in connection with the sale to such Foreign
Subsidiaries of assets acquired in connection with the American
Optical Acquisition) shall not in the aggregate exceed at any
time an amount equal to the lesser of (i) the sum of (A)
$25,000,000 plus (B) the amount of Available Net Equity Proceeds
designated
<PAGE>
pursuant to the definition thereof by the Company to the Agent to
be allocated to this subsection 8.04(c) and (ii) $45,000,000;
(d) Investments incurred in order to consummate the
American Optical Acquisition and other Permitted Acquisitions,
provided, that (i) the aggregate value of all consideration for
all such other Permitted Acquisitions shall not exceed
$35,000,000 in any fiscal year, (ii) the Agent and each Bank
shall have received, not less than 10 Business Days prior to the
consummation of each relevant Permitted Acquisition, the
certification of the Responsible Officer and the related
documentation required to be delivered pursuant to the definition
of "Permitted Acquisition" and (iii) all the requirements set
forth in the definition of "Permitted Acquisition" shall have
been fulfilled;
(e) Investments in Joint Ventures not exceeding in the
aggregate $10,000,000 in any fiscal year;
(f) Investments constituting Permitted Swap
Obligations or payments or advances under Swap Contracts relating
to Permitted Swap Obligations;
(g) Investments to the extent permitted (without
duplication) as Indebtedness pursuant to Section 8.05;
(h) Investments constituting accounts receivable
arising, and trade debt granted, in the ordinary course of
business with customers and suppliers of the Company or any
Subsidiary (provided that nothing in this Section 8.04 shall
prevent the Company or any Subsidiary from offering concessionary
trade terms, or from receiving such Investments in connection
with the bankruptcy or reorganization of their respective
customers or suppliers or the settlement of disputes with such
customers or suppliers arising in the ordinary course of
business, as Responsible Officers of the Company deem reasonable
in the circumstances after taking into account prevailing credit
conditions at the relevant time);
(i) Investments made in connection with Permitted
Dispositions pursuant to subsection 8.02(d); provided, that the
aggregate amount of such Investments at any time shall not exceed
in the aggregate 50% of the aggregate consideration for all such
Permitted Dispositions;
(j) Investments made (without duplication) in
connection with any payment, redemption, purchase or defeasance
of the Subordinated Notes permitted pursuant to subsection
8.10(vi); and
(k) other Investments in an aggregate amount not to
exceed at any time $15,000,000;
provided, however, that no Investment permitted by subclauses(d),
(j) or (k) shall be permitted to be made if immediately before or
after giving effect to hereto, any Default or Event of Default
shall have occurred and be continuing.
<PAGE>
8.05 Limitation on Indebtedness. The Company shall not, and
shall not suffer or permit any Subsidiary to, create, incur,
assume, suffer to exist, or otherwise become or remain directly
or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness (without duplication) consisting of
Contingent Obligations permitted pursuant to Section 8.08;
(c) (i) until the making of the initial Loans,
Indebtedness set forth in Schedule 8.05(c)(i); and (ii) until the
date three months after the Closing Date, Indebtedness set forth
on Schedule 8.05(c)(ii);
(d) Indebtedness existing on the Closing Date and set
forth in Schedule 8.05(d), together with the aggregate amount of
such Indebtedness that is extended, renewed or refinanced
pursuant to subsection (k);
(e) Indebtedness in respect of capitalized leases,
purchase money security interests (including trade letters of
credit incurred by the Company or any Subsidiary in the ordinary
course of business to finance the purchase of goods and services
and which are to be repaid in full not in excess of one year
after the date of such incurrence) and industrial revenue bond
issues, provided that at each time such Indebtedness is so
incurred the aggregate amount of such Indebtedness, together with
the aggregate amount of such Indebtedness that is extended,
renewed or refinanced pursuant to subsection (k), shall not
exceed 5% of total assets of the Company and the Subsidiaries;
(f) Indebtedness incurred in connection with leases
permitted pursuant to Section 8.09;
(g) any grant by a foreign Governmental Authority,
provided that (i) at any time of determination all or any part of
such grant or Contingent Liability in respect thereof is not
required to be repaid by the Company or any of the Subsidiaries
and (ii) the aggregate amount of such grants shall not exceed at
any time $10,000,000;
(h) intercompany Indebtedness to the extent permitted
(without duplication) by subsections 8.04(c), (e) or (k);
provided, that any such intercompany Indebtedness owing by any
Subsidiary to the Company shall not be forgiven or discharged for
any consideration other than payment in cash unless the Majority
Banks otherwise consent, such consent not to be unreasonably
withheld;
(i) Indebtedness consisting of Permitted Swap
Obligations;
(j) Indebtedness of a Person existing at the time such
Person became a Subsidiary pursuant to a Permitted Acquisition,
provided that (i) such Indebtedness was not incurred in
connection with, or in contemplation of, such Permitted
Acquisition, (ii) the aggregate amount of all such Indebtedness
for all such Persons that subsequently become a
<PAGE>
Subsidiary shall not exceed $10,000,000 at any time and (iii) all
the requirements set forth in the definition of "Permitted
Acquisition" shall have been fulfilled;
(k) Indebtedness incurred for the purposes of
extending, renewing or refinancing Indebtedness permitted
pursuant to subsections (d) or (e); provided that (i) the
principal amount of such Indebtedness as so extended, renewed or
refinanced may not exceed the principal amount of the
Indebtedness being so extended, renewed or refinanced, (ii) any
such extension, renewal or refinancing is upon terms and
provisions which are, in the reasonable judgment of the Agent, no
less favorable to the Company and the Subsidiaries in the
aggregate than such Indebtedness being so extended, renewed or
refinanced, taking into account, in each case, prevailing credit
conditions at the time of such extension, renewal or refinancing,
and (iii) none of the terms (including the Subordination
Provisions) contained in the Subordinated Notes and Subordinated
Debt Agreement that is so extended, renewed or refinanced shall
in any respect be more adverse to the interests of the Agent and
the Banks; and
(l) other unsecured Indebtedness in an aggregate
amount not to exceed at any time an amount equal to the lesser of
(i) the sum of (A) $20,000,000 plus (B) the amount of Available
Net Equity Proceeds designated pursuant to the definition thereof
by the Company to the Agent to be allocated to this subsection
8.05(l) and (ii) $30,000,000.
8.06 Transactions with Affiliates. The Company shall not,
and shall not suffer or permit any Subsidiary to, enter into any
transaction with any of its Affiliates, except upon fair and
reasonable terms no less favorable to the Company or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person that is not such an Affiliate;
provided, however, that the foregoing shall not prohibit any
transactions between the Company and any of the Subsidiaries, or
between such Subsidiaries, otherwise expressly permitted herein.
8.07 Use of Proceeds. No Borrower shall, and shall not
suffer or permit any Subsidiary to, use any portion of the Loan
proceeds or any Letter of Credit, directly or indirectly, (a) to
purchase or carry Margin Stock, (b) to repay or otherwise
refinance indebtedness of such Borrower or others incurred to
purchase or carry Margin Stock, (c) to extend credit for the
purpose of purchasing or carrying any Margin Stock, or (d) to
acquire any security in any transaction that is subject to
Section 13 or 14 of the Exchange Act.
8.08 Contingent Obligations. The Company shall not, and
shall not suffer or permit any Subsidiary to, create, incur,
assume or suffer to exist any Contingent Obligations except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and
Subsidiaries existing as of the Closing Date and listed in
Schedule 8.08(c);
(d) Contingent Obligations with respect to Surety
Instruments incurred in the ordinary course of business and not
exceeding at any time $20,000,000; and
<PAGE>
(e) Contingent Obligations, without duplication, with
respect to any Lien permitted pursuant to Section 8.01, any
disposition permitted pursuant to Section 8.02, any
consolidation, merger or other transaction permitted pursuant to
Section 8.03, any Investment permitted pursuant to Section 8.04
and any Indebtedness permitted pursuant to Section 8.05.
8.09 Lease Obligations. The Company shall not, and shall
not suffer or permit any Subsidiary to, create or suffer to exist
any obligations for the payment of rent for any property under
lease or agreement to lease, except for:
(a) leases of the Company and the Subsidiaries in
existence on the Closing Date and listed on Schedule 8.09(a);
(b) operating leases entered into by the Company or
any Subsidiary after the Closing Date in the ordinary course of
business; and
(c) without duplication, capital leases permitted
pursuant to subsection 8.05(e).
8.10 Restricted Payments. The Company shall not, and shall
not suffer or permit any Subsidiary to, (a) declare or make any
dividend payment or other distribution of assets, properties,
cash, rights, obligations or securities on account of any shares
of any class of the Company's capital stock, or purchase, redeem
or otherwise acquire for value any shares of its capital stock or
any warrants, rights or options to acquire such shares, now or
hereafter outstanding; or (b) pay, prepay or repay any principal
of, or make any payment of interest on, or redeem, purchase, set
aside any funds for or defease, or give any notice of redemption
for, or purchase or otherwise acquire any Subordinated Notes;
except that the Company may, if no Default or Event of Default
has occurred and is continuing or would result therefrom:
(i) declare and make dividend payments or other
distributions payable solely in its capital stock;
(ii) purchase, redeem or otherwise acquire shares of
its common stock or warrants or options to acquire any such
shares with the proceeds received from the substantially
concurrent issue of new shares of its common stock;
(iii) declare and pay cash dividends on its
preferred stock;
(iv) declare and pay cash dividends on its common
stock, provided that the aggregate amount of such dividends that
are paid in any fiscal year shall not exceed 50% of Net Income as
reported in the audited financial statements for the immediately
preceding fiscal year that are delivered pursuant to subsections
5.01(g)(i) and 7.01(a);
(v) purchase, redeem, acquire or retire for value
shares of capital stock of the Company or options on any such
shares on related stock appreciation rights or similar securities
owned by officers or employees (or their estates or beneficiaries
thereunder), in all cases only upon death, disability,
retirement, termination of employment or pursuant to the terms of
the Company's stock option plan or any other similar agreement,
provided that the aggregate amount
<PAGE>
of consideration paid for all such purchases, redemptions,
acquisitions or retirements shall not exceed $1,000,000 in any
fiscal year; and
(vi) subject to the Subordination Provisions and the
requirement that no Default or Event of Default exists
immediately prior to or after giving effect to each repurchase or
repayment on the Subordinated Notes, (i) make regularly scheduled
payments of accrued interest on the Subordinated Notes, in
accordance with the terms of and to the extent required by, the
Subordinated Notes and the Subordinated Debt Agreement, and (ii)
repurchase or repay the principal amount of the Subordinated
Notes, in accordance with the terms of, and to the extent not
prohibited by, the Subordinated Notes and the Subordinated Debt
Agreement, provided that (A) the aggregate principal amount of
the Subordinated Notes so repurchased or repaid in any fiscal
year shall not exceed the sum of (1) (w) $15,000,000 or (x) if
the Leverage Ratio, as reported in the Compliance Certificate
delivered pursuant to subsection 7.02(b) from time to time, is
less than 2.50:1.00 for two consecutive fiscal quarters (the
"Leverage Ratio Requirement"), $20,000,000 (the "Supplemental
Subordinated Note Payment") plus (2) the amount of Available Net
Equity Proceeds designated pursuant to the definition thereof by
the Company to the Agent to be allocated to this subsection (vi),
and (B) if the Leverage Ratio Requirement is satisfied (y) the
Supplemental Subordinated Note Payment shall be applied by the
Company to repurchase or repay the Subordinated Notes not later
than the last day of the fiscal quarter immediately succeeding
the two fiscal quarter period in which the Leverage Ratio
Requirement is satisfied and (z) no part of the Supplemental
Subordinated Note Payment shall be applied to repurchase or repay
the Subordinated Notes until the full $15,000,000 referred to in
subclause (1) (w) and all of the Available Net Equity Proceeds
that had been previously allocated by the Company to this
subsection (vi) shall have been so applied.
8.11 ERISA. The Company shall not, and shall not suffer or
permit any of its ERISA Affiliates to: (a) engage in a
prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted
or could reasonably expected to result in liability of the
Company and the ERISA Affiliates in an aggregate amount in excess
of $5,000,000; or (b) engage in a transaction that is subject to
Section 4069 or 4212(c) of ERISA.
8.12 Financial Condition.
(a) Leverage Ratio. The Company shall not permit the
Leverage Ratio to be greater than the following ratios as of the
last day of each fiscal quarter occurring during each period set
forth below:
<TABLE>
<CAPTION>
PERIOD LEVERAGE RATIO
<C> <C>
Closing Date through 03/30/97 3.20:1.00
03/31/97 through 03/30/98 3.00:1.00
03/31/98 and thereafter 2.75:1.00
</TABLE>
<PAGE>
(b) Fixed Charge Coverage Ratio. The Company shall
not permit its Fixed Charge Coverage Ratio to be less than the
following ratios as of the last day of each fiscal quarter during
each period set forth below:
<TABLE>
<CAPTION>
PERIOD FIXED CHARGE COVERAGE RATIO
<C> <C>
Closing Date through 03/30/98 1.60:1.00
03/31/98 and thereafter 1.50:1.00
</TABLE>
(c) Net Worth. The Company shall not permit its Net
Worth at any time to be less than the sum of (i) 85% of Net Worth
on the Closing Date as certified by a Responsible Officer in the
certificate delivered pursuant to subsection 5.01(f), plus (ii)
50% of the positive Net Income for each fiscal quarter after the
Closing Date as reported in the financial statements delivered
pursuant to Section 7.01, plus (iii) 50% of the gross cash
proceeds received by the Company or any of the Subsidiaries from
the issuance, placement or sale of securities which qualify as
shareholders' equity (whether pursuant to a public or private
offering) from and after the Closing Date, net of all reasonable
and customary related (i) fees and expenses with respect to
legal, investment banking, brokerage and other professional fees
and commissions actually paid by the Company or any of the
Subsidiaries to Persons that are not any of their Affiliates and
(ii) out-of-pocket expenses.
8.13 Change in Business. The Company shall not, and shall
not suffer or permit any Subsidiary to, engage in any material
line of business substantially different from those lines of
business carried on by the Company and the Subsidiaries on the
date hereof.
8.14 Accounting Changes. The Company shall not, and shall
not suffer or permit any Subsidiary to, make any significant
change in accounting treatment or reporting practices, except as
required by GAAP, or change the fiscal year of the Company or of
any Subsidiary.
8.15 Modification of Certain Documents. The Company shall
not, and shall not suffer or permit any Subsidiary to, amend,
supplement, restate or otherwise modify any of the terms or
provisions contained in, or applicable to, or (in the case of the
Subordinated Notes and Subordinated Debt Agreement) forebear from
exercising any of its rights with respect to, the Subordinated
Notes, the Subordinated Debt Agreement or any of its or their
Organizational Documents, in each case in any manner that is
adverse to the interests of the Agent or the Banks. Not less
than 10 Business Days prior to the effective date of any such
amendment, supplement, restatement or other modification of the
Subordinated Notes, Subordinated Debt Agreement or relevant
Organizational Documents, as the case may be, the Company shall
deliver execution copies thereof to the Agent for the purpose of
determining compliance with the provisions of this Section 8.15.
8.16 Negative Pledges, Restrictive Agreements, etc. The
Company shall not, and shall not suffer or permit any Subsidiary
to, enter into any agreement:
<PAGE>
(a) creating, incurring or assuming any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired (except as permitted pursuant to Section 8.01);
(b) limiting the ability of any Subsidiary to amend or
otherwise modify this Agreement or any other Loan Document; or
(c) limiting the ability of any Subsidiary to make any
payments, directly or indirectly, to any Borrower by way of
dividends, advances, repayments of loans or advances,
reimbursements of management and other intercompany charges,
expenses and accruals or other returns on investments, or any
other agreement or arrangement which restricts the ability of any
such Subsidiary to make any payment, directly or indirectly, to
any Borrower.
If any Borrower or Subsidiary shall create, incur, assume or
suffer to existing any Liens upon any of their properties,
revenues or assets, whether now owned or hereafter acquired
(except as otherwise permitted by Section 8.01), it shall make or
cause to be made an effective provision whereby the Obligations
are secured, in a form satisfactory to the Agent and the Majority
Banks, by a security interest equally and ratably with any and
all Indebtedness secured thereby; provided, that notwithstanding
the foregoing, this covenant shall not be construed as a consent
by either the Agent or the Majority Banks to the creation or
assumption of any such Lien not permitted by Section 8.01.
8.17 No Designated Senior Indebtedness. The Company shall
not designate any of its Indebtedness (other than Indebtedness
arising under this Agreement and the Notes) as Designated Senior
Indebtedness (as defined in the Subordinated Debt Agreement)
unless the instruments evidencing such Designated Senior
Indebtedness shall expressly provide on terms reasonably
satisfactory to the Agent that, without the prior written consent
of the Agent, neither the trustee nor other representative of
such Designated Senior Indebtedness shall give notice commencing
a Payment Blockage Period under and as defined in Section
10.02(b) of the Subordinated Debt Agreement.
ARTICLE IX
EVENTS OF DEFAULT
-----------------
9.01 Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. Any Borrower fails to pay, (i) when
and as required to be paid herein, any amount of principal of any
Loan or of any L/C Obligation, or (ii) within three days after
the same becomes due, any interest, fee or any other amount
payable hereunder or under any other Loan Document; or
(b) Representation or Warranty. Any representation or
warranty by the Company or any Subsidiary made or deemed made
herein, in any other Loan Document, or which is contained in any
certificate, document or financial or other statement by the
Company, any Subsidiary, or any Responsible Officer, furnished at
any time under this Agreement, or in
<PAGE>
or under any other Loan Document, is incorrect in any material
respect on or as of the date made or deemed made; or
(c) Specific Defaults. The Company or any Subsidiary
fails to perform or observe any term, covenant or agreement
contained in any of Section 7.01, 7.02, 7.03, 7.09 or 7.12 or in
Article VIII; or
(d) Other Defaults. The Company or any Subsidiary
fails to perform or observe any other term or covenant contained
in this Agreement or any other Loan Document, and such default
shall continue unremedied for a period of 30 days after the
earlier of (i) the date upon which any the Company or any
Subsidiary knew of such failure or (ii) the date upon which
written notice thereof is given to the Company or any Subsidiary
by the Agent or any Bank; or
(e) Cross-Default. (i) The Company or any Subsidiary
(A) fails to make any payment in respect of any Indebtedness or
Contingent Obligation (other than in respect of Swap Contracts),
having an aggregate principal amount (including undrawn committed
or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than
$5,000,000 when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) and such failure
continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure;
or (B) fails to perform or observe any other condition or
covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such
Indebtedness or Contingent Obligation, and such failure continues
after the applicable grace or notice period, if any, specified in
the relevant document on the date of such failure if the effect
of such failure, event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries)
to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity, or such Contingent Obligation to
become payable or cash collateral in respect thereof to be
demanded; (ii) there shall be any event of default under the
Subordinated Debt Agreement; or (iii) there occurs under any Swap
Contract an Early Termination Date (as defined in and provided
for in any such Swap Contract that is in the form of an ISDA
Master Agreement) or equivalent termination event (as provided in
any other Swap Contract) resulting from (1) any event of default
under such Swap Contract as to which the Company or any
Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (2) any Termination Event (as so defined) as to
which the Company or any Subsidiary is an Affected Party (as so
defined), and, in either event, the Swap Termination Value owed
by the Company or such Subsidiary as a result thereof is greater
than $5,000,000; or
(f) Insolvency; Voluntary Proceedings. The Company or
any Significant Subsidiary (i) ceases or fails to be Solvent, or
generally fails to pay, or admits in writing its inability to
pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary
course; (iii) commences any Insolvency Proceeding with respect to
itself; or (iv) takes any action to effectuate or authorize any
of the foregoing; or
<PAGE>
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company
or any Significant Subsidiary, or any writ, judgment, warrant of
attachment, execution or similar process, is issued or levied
against a substantial part of the Company's or any Significant
Subsidiary's properties, and any such proceeding or petition
shall not be dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement, filing
or levy; (ii) the Company or any Significant Subsidiary admits
the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order
under non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) the Company or any Significant Subsidiary acquiesces in the
appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its
property or business; or
(h) ERISA. (i) An ERISA Event shall occur with
respect to a Pension Plan or Multiemployer Plan which has
resulted or could reasonably be expected to result in liability
of the Company or any ERISA Affiliate under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of $5,000,000; (ii) the aggregate amount of
Unfunded Pension Liability among all Pension Plans at any time
exceeds $7,500,000; or (iii) the Company or any ERISA Affiliate
shall fail to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to
its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of
$5,000,000; or
(i) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration
awards is entered against the Company or any Subsidiary involving
in the aggregate a liability (to the extent not covered (after
taking into account of the customary deductible) by independent
third-party insurance as to which the insurer does not dispute
coverage) as to any single or related series of transactions,
incidents or conditions, of $5,000,000 or more, and the same
shall remain unsatisfied, unvacated and unstayed pending appeal
for a period of 30 days after the entry thereof; or
(j) Guarantor Defaults. Any Borrower or Subsidiary
Guarantor fails in any material respect to perform or observe any
term contained in Section 11.09; or Section 11.09 is for any
reason partially (including with respect to future advances) or
wholly revoked or invalidated, or otherwise ceases to be in full
force and effect, or any Borrower, Subsidiary Guarantor or any
holder of Subordinated Notes contests in any manner the validity
or enforceability thereof or any Borrower or Subsidiary Guarantor
denies that it has any further liability or obligation
thereunder; or
(k) Change of Control. There occurs any Change of
Control; or
<PAGE>
(l) Subordinated Notes. (i) The Subordination
Provisions shall fail to be enforceable by the Agent or any Bank
which has not effectively waived the benefits thereof, or the
principal or interest on any Loan or other amounts payable
hereunder shall fail to constitute "Senior Indebtedness" (as
defined in the Subordinated Debt Agreement and the Subordinated
Notes); or (ii) the Company or any Subsidiary shall, directly or
indirectly, disavow or contest in any manner (A) the
effectiveness, validity or enforceability of any of the
Subordination Provisions, (B) that any of the Subordination
Provisions exist for the benefit of the Agent and each Bank, (C)
that all payments of principal or interest with respect to the
Subordinated Notes made by the Company, or realized from the
liquidation of any property of the Company, shall be subject to
any of the Subordination Provisions or (D) that this is the Bank
Credit Agreement referred to in the Subordinated Debt Agreement;
or (iii) any holder of Subordinated Notes shall commence or file
a proceeding disavowing or contesting in any manner any of the
matters specified in subclause (ii)(A) through (D) and such
proceeding shall either (x) not be dismissed within 60 days after
commencement thereof or (y) have resulted in a judgment being
rendered against the Company.
9.02 Remedies. If any Event of Default occurs, the Agent
shall, at the request of, or may, with the consent of, the
Majority Banks,
(a) declare the Commitments to be terminated,
whereupon such Commitments shall be terminated;
(b) declare an amount equal to the maximum aggregate
amount that is or at any time thereafter may become available for
drawing under any outstanding Letters of Credit (whether or not
any beneficiary shall have presented, or shall be entitled at
such time to present, the drafts or other documents required to
draw under such Letters of Credit) to be immediately due and
payable (whereupon the Company shall, in accordance with
subsection 3.03(b), immediately be required to reimburse the
Issuing Bank with respect thereto), and declare the unpaid
principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due
and payable, without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the
Borrowers; and
(c) exercise on behalf of itself and the Banks all
rights and remedies available to it and the Banks under the Loan
Documents or applicable law;
provided, however, that upon the occurrence of any event
specified in subsection (f) or (g) of Section 9.01 (in the case
of subsection (g)(i) upon the expiration of the 60-day period
mentioned therein), the obligation of each Bank to make Loans and
any Obligation of the Issuing Bank to Issue Letters of Credit
shall automatically terminate and the unpaid principal amount of
all outstanding Loans and all interest thereon, all L/C
Obligations and all other Obligations shall automatically become
due and payable without further act of the Agent, the Issuing
Bank or any Bank.
9.03 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges
<PAGE>
or remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter
arising.
ARTICLE X
THE AGENT
---------
10.01 Appointment and Authorization; "Agent". (a) Each
Bank hereby irrevocably (subject to Section 10.09) appoints,
designates and authorizes the Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor
shall the Agent have or be deemed to have any fiduciary
relationship with any Bank, 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 Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement
with reference to the Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is
used merely as a matter of market custom, and is intended to
create or reflect only an administrative relationship between
independent contracting parties.
(b) The Issuing Bank shall act on behalf of the
Tranche B Revolving Banks with respect to any Letters of Credit
Issued by it and the documents associated therewith until such
time and except for so long as the Agent may agree at the request
of the Majority Banks to act for such Issuing Bank with respect
thereto; provided, however, that the Issuing Bank shall have all
of the benefits and immunities (i) provided to the Agent in this
Article X with respect to any acts taken or omissions suffered by
the Issuing Bank in connection with Letters of Credit Issued by
it or proposed to be Issued by it and the application and
agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Agent", as used in this Article
X, included the Issuing Bank with respect to such acts or
omissions, and (ii) as additionally provided in this Agreement
with respect to the Issuing Bank.
10.02 Delegation of Duties. The Agent may execute any
of its duties under this Agreement or any other Loan Document by
or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining
to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it
selects with reasonable care.
10.03 Liability of Agent. None of the Agent-Related
Persons shall (i) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement
or any other Loan Document or the transactions contemplated
hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the
Banks for any recital, statement, representation or warranty made
by any Borrower or any Subsidiary or Affiliate of any Borrower,
or any officer thereof, contained in this Agreement or in any
other
<PAGE>
Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent
under or in connection with, this Agreement or any other Loan
Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of any Borrower or any other party
to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any
obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Loan Document, or
to inspect the properties, books or records of any Borrower, any
Subsidiary or any Affiliate of the Borrowers.
10.04 Reliance by Agent. (a) The Agent shall be
entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message,
statement 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 counsel to the Borrowers), independent
accountants and other experts selected by the Agent. The 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 Majority
Banks or all the Banks (in the case of those matters referred to
in the proviso of Section 11.01), as it deems appropriate and, if
it so requests, it shall first be indemnified to its satisfaction
by the Banks 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 Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of
the Majority Banks or all the Banks (in the case of those matters
referred to in the proviso of Section 11.01), as the case may be,
and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the
conditions specified in Section 5.01, each Bank that has executed
this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter
either sent by the Agent to such Bank for consent, approval,
acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the
Bank.
10.05 Notice of Default. The Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or
Event of Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to the Agent
for the account of the Banks, unless the Agent shall have
received written notice from a Bank or a Borrower referring to
this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". The Agent
will notify the Banks of its receipt of any such notice. The
Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Majority Banks in
accordance with Article IX; provided, however, that unless and
until the Agent has received any such request, the 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 or in the best interest of the
Banks.
<PAGE>
10.06 Credit Decision. Each Bank acknowledges that none
of the Agent-Related Persons has made any representation or
warranty to it, and that no act by the Agent hereinafter taken,
including any review of the affairs of the Borrowers and the
Subsidiaries, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Bank. Each Bank
represents to the Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such
documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and
creditworthiness of each Borrower and its Subsidiaries, and all
applicable bank regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrowers hereunder. Each
Bank also represents that it will, independently and without
reliance upon any Agent-Related Person 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 investigations as it
deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Borrowers. Except for notices, reports
and other documents expressly herein required to be furnished to
the Banks by the Agent, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other
information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of
any Borrower which may come into the possession of any of the
Agent-Related Persons.
10.07 Indemnification of Agent. Whether or not the
transactions contemplated hereby are consummated, the Banks shall
indemnify upon demand the Agent-Related Persons (to the extent
not reimbursed by or on behalf of the Borrowers and without
limiting the obligation of the Borrowers to do so), pro rata,
from and against any and all Indemnified Liabilities; provided,
however, that no Bank shall be liable for the payment to the
Agent-Related Persons of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence
or willful misconduct. Without limitation of the foregoing, each
Bank shall reimburse the Agent upon demand for its ratable share
of any costs or out-of-pocket expenses (including reasonable
Attorney Costs) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein,
to the extent that the Agent is not reimbursed for such expenses
by or on behalf of the Borrowers. The undertaking in this
Section shall survive the payment of all Obligations hereunder
and the resignation or replacement of the Agent.
10.08 Agent in Individual Capacity. BofA and its
Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with the Borrowers, the
Subsidiaries and their Affiliates as though BofA were not the
Agent hereunder or the Issuing Bank and without notice to or
consent of the Banks. The Banks acknowledge that, pursuant to
such activities, BofA or its Affiliates may receive information
regarding the Borrowers, the Subsidiaries or their Affiliates
(including information that may be subject to confidentiality
obligations in favor of the Borrowers or other Persons) and
acknowledge that the
<PAGE>
Agent shall be under no obligation to provide such information to
them. With respect to its Loans, BofA shall have the same rights
and powers under this Agreement as any other Bank and may
exercise the same as though it were not the Agent or the Issuing
Bank, and the terms "Bank" and "Banks" include BofA in its
individual capacity.
10.09 Successor Agent. The Agent may resign as Agent
upon 30 days' notice to the Banks. If the Agent resigns under
this Agreement, the Majority Banks shall appoint from among the
Banks a successor agent for the Banks. If no successor agent is
appointed prior to the effective date of the resignation of the
Agent, the Agent may appoint, after consulting with the Banks and
the Company, a successor agent from among the Banks. Upon the
acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and
duties of the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article X
and Sections 11.04 and 11.05 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is 30 days following a
retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the
Banks shall perform all of the duties of the Agent hereunder
until such time, if any, as the Majority Banks appoint a
successor agent as provided for above.
ARTICLE XI
MISCELLANEOUS
-------------
11.01 Amendments and Waivers. No amendment or waiver of
any provision of this Agreement or any other Loan Document, and
no consent with respect to any departure by any Borrower or
Subsidiary Guarantor therefrom, shall be effective unless the
same shall be in writing and signed by the Majority Banks (or by
the Agent at the written request of the Majority Banks), the
Borrowers and the Subsidiary Guarantors and acknowledged by the
Agent, and then any such waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given; provided, however, that no such waiver, amendment or
consent shall, unless in writing and signed by all the Banks, the
Borrowers and the Subsidiary Guarantors and acknowledged by the
Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to Section 9.02),
except as provided in Section 2.16;
(b) postpone or delay any date fixed by this Agreement
or any other Loan Document for any payment of principal,
interest, fees or other amounts due to the Banks (or any of them)
hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or (subject to subclause (ii)
below) any fees or other amounts payable hereunder or under any
other Loan Document;
<PAGE>
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required
for the Banks or any of them to take any action hereunder;
(e) release all or any of the Subsidiary Guarantors
from their obligations under Section 11.09 (other than pursuant
to any transaction permitted by Section 8.02 or 8.03 in which the
Subsidiary Guarantor ceases to be a Subsidiary); or
(f) amend this Section, or Section 2.14, or any
provision herein providing for consent or other action by all
Banks;
and, provided further, that (i) no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to
the Majority Banks or all the Banks, as the case may be, affect
the rights or duties of the Agent under this Agreement or any
other Loan Document; (ii) the Fee Letter may be amended, or
rights or privileges thereunder waived, only in a writing
executed by the parties thereto; (iii) no amendment, waiver or
consent of any provision of this Agreement or any other Loan
Document relating exclusively to (A) the Swing Line Loan
Commitment or Swing Line Loans or (B) the Tranche A Revolving
Commitment or Tranche A Revolving Loans shall be effective unless
consented to in writing by the Swing Line Bank and the Tranche A
Revolving Bank, respectively; (iv) no amendment, waiver or
consent shall, unless in writing and signed by the Issuing Bank
affect the rights or duties of the Issuing Bank under this
Agreement or any L/C-Related Document relating to any Letter of
Credit Issued or to be Issued by it; and (v) the Tranche A
Revolving Bank and each relevant Tranche A Revolving Borrower may
enter into (without the consent of the Agent or any other Bank)
any amendment, waiver or consent with respect to the Tranche A
Revolving Supplement Agreement entered into between them if the
terms thereof do not conflict with the terms contained in this
Agreement.
11.02 Notices. (a) All notices, requests, consents,
approvals, waivers and other communications shall be in writing
(including, unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted by a
Borrower or Subsidiary Guarantor by facsimile (i) shall be
immediately confirmed by a telephone call to the recipient at the
number specified on Schedule 11.02, and (ii) shall be followed
promptly by delivery of a hard copy original thereof) and mailed,
faxed or delivered, to the address or facsimile number specified
for notices on Schedule 11.02; or, as directed to any Borrower,
Subsidiary Guarantor, Lender, Issuing Bank or the Agent, to such
other address as shall be designated by such party in a written
notice to the other parties, and as directed to any other party,
at such other address as shall be designated by such party in a
written notice to the Company and the Agent.
(b) All such notices, requests and communications
shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively,
or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery;
except that notices pursuant to Article II, III or X to the
Agent, the Tranche A Revolving Bank or the Issuing Bank shall not
be effective until actually received by the Agent, the Tranche A
Revolving Bank or the Issuing Bank, as the case may be.
<PAGE>
(c) Any agreement of the Agent and the Banks herein to
receive from the Borrowers notices by telephone or facsimile is
solely for the convenience and at the request of the Borrowers.
The Agent and the Banks shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by
any Borrower to give such notice and the Agent and the Banks
shall not have any liability to any Borrower or other Person on
account of any action taken or not taken by the Agent or the
Banks in reliance upon such telephonic or facsimile notice. The
obligation of the Borrowers to repay the Loans shall not be
affected in any way or to any extent by any failure by the Agent
and the Banks to receive written confirmation of any telephonic
or facsimile notice or the receipt by the Agent and the Banks of
a confirmation which is at variance with the terms understood by
the Agent and the Banks to be contained in the telephonic or
facsimile notice.
11.03 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Agent or
any Bank, any right, remedy, power or privilege hereunder, 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.
11.04 Costs and Expenses. The Borrowers shall:
(a) whether or not the transactions contemplated
hereby are consummated, jointly and severally pay or reimburse
BofA (including in its capacity as Agent) within five Business
Days after demand (subject to subsection 5.01(e)) for all
reasonable costs and expenses incurred by BofA (including in its
capacity as Agent) in connection with the development,
preparation, delivery, administration and execution of, and any
amendment, supplement, waiver or modification to (in each case,
whether or not consummated), this Agreement, any Loan Document
and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated
hereby and thereby, including reasonable Attorney Costs incurred
by BofA (including in its capacity as Agent) with respect
thereto; provided, however, that the Foreign Borrowers shall
only be liable for those costs and expenses relating to the
Foreign Obligations.
(b) jointly and severally pay or reimburse the Agent,
the Arranger and each Bank within five Business Days after demand
(subject to subsection 5.01(e)) for all reasonable costs and
expenses (including reasonable Attorney Costs) incurred by them
in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or
any other Loan Document during the existence of an Event of
Default or after acceleration of the Loans (including in
connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate
proceeding); provided, however, that the Foreign Borrowers shall
only be liable for those costs and expenses relating to the
Foreign Obligations.
<PAGE>
11.05 Borrowers' Indemnification. Whether or not the
transactions contemplated hereby are consummated, the Borrowers
agree to jointly and severally indemnify, defend and hold the
Agent-Related Persons, the Issuing Bank and each Bank and each of
its respective officers, directors, employees, counsel, agents
and attorneys-in-fact (each, an "Indemnified Person") harmless
from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, charges,
expenses and disbursements (including reasonable Attorney Costs)
of any kind or nature whatsoever which may at any time (including
at any time following repayment of the Loans, the termination of
the Letters of Credit and the resignation of the Agent or the
Issuing Bank or replacement of any Bank) be imposed on, incurred
by or asserted against any such Person in any way relating to or
arising out of this Agreement or any document contemplated by or
referred to herein, or the transactions contemplated hereby, or
any action taken or omitted by any such Person under or in
connection with any of the foregoing, including with respect to
any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to or
arising out of this Agreement or the Loans or Letters of Credit
or the use of the proceeds thereof, or related to any Tranche A
Revolving transactions entered into in connection herewith,
whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities");
provided, that (i) no Borrower shall have any obligation
hereunder to any Indemnified Person with respect to Indemnified
Liabilities resulting solely from the gross negligence or willful
misconduct of such Indemnified Person and (ii) the Foreign
Borrowers shall only be liable for those Indemnified Liabilities
relating to the Foreign Obligations. The agreements in this
Section shall survive payment of all other Obligations.
11.06 Payments Set Aside. To the extent that any
Borrower or Subsidiary Guarantor makes a payment to the Agent or
the Banks, or the Agent or the Banks exercise their right of set-
off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside or required (including pursuant to any
settlement entered into by the Agent or such Bank in its
discretion) to be repaid to a trustee, receiver or any other
party, in connection with any Insolvency Proceeding or otherwise,
then (a) to the extent of such recovery the obligation or part
thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not
been made or such set-off had not occurred, and (b) each Bank
severally agrees to pay to the Agent upon demand its pro rata
share of any amount so recovered from or repaid by the Agent.
11.07 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the
parties hereto 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 the Agent and each Bank.
11.08 Assignments, Participations, etc. (a) Any Bank
may, with the written consent of the Company (which consent shall
be required at all times other than during the existence of an
Event of Default and shall not be unreasonably withheld) and the
Agent, at any time assign and delegate to one or more Eligible
Assignees (provided that no written consent of the Company or the
Agent shall be required in connection with any assignment and
delegation by a Bank to an Eligible Assignee that is an Affiliate
of such Bank) (each an "Assignee") all, or any ratable part of
all, of the Loans, the Commitments, the L/C Obligations and the
other rights and
<PAGE>
obligations of such Bank hereunder, in a minimum amount of
$5,000,000; provided, however, that (A) the Tranche A Revolving
Bank may not assign less than 100% of the Tranche A Revolving
Commitment and Tranche A Revolving Loans and a Swing Line Bank
may not assign less than 100% of the Swing Line Commitment and
Swing Line Loans, and (B) the Borrowers and the Agent may
continue to deal solely and directly with such Bank in connection
with the interest so assigned to an Assignee until (i) written
notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee,
shall have been given to the Company and the Agent by such Bank
and the Assignee; (ii) such Bank and its Assignee shall have
delivered to the Company and the Agent an Assignment and
Acceptance in substantially the form of Exhibit E ("Assignment
and Acceptance") together (in the case of the Company only) with
any Note or Notes subject to such assignment and (iii) the
assignor Bank or Assignee has paid to the Agent a processing fee
in the amount of $3,500.
(b) From and after the date that the Agent notifies
the assignor Bank that it has received an Assignment and
Acceptance that has been signed by the appropriate Persons as
provided in subsection (a) and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and
Acceptance, shall have the rights and obligations of a Bank under
the Loan Documents, and (ii) the assignor Bank shall, to the
extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (except to the
extent such rights are by the express terms hereof stated to
survive) and be released from its obligations under the Loan
Documents.
(c) Within five Business Days after its receipt of
notice by the Agent that it has received an Assignment and
Acceptance that has been signed by the appropriate Persons as
provided in subsection (a) and payment of the processing fee,
each relevant Borrower shall, if requested by the relevant Bank,
execute and deliver to the Agent, new Notes evidencing such
Assignee's assigned Loans and Commitments and, if the assignor
Bank has retained a portion of its Loans and its Commitment,
replacement Notes in the principal amount of the Loans retained
by the assignor Bank (such Notes to be in exchange for, but not
in payment of, the Notes held by such Bank). Immediately upon
each Assignee's making its processing fee payment under the
Assignment and Acceptance, this Agreement shall be deemed to be
amended to the extent, but only to the extent, necessary to
reflect the addition of the Assignee and the resulting adjustment
of the Commitments arising therefrom. The Commitment allocated to
each Assignee shall reduce such Commitments of the assigning Bank
pro tanto.
(d) Any Bank may at any time sell to one or more
commercial banks or other Persons (a "Participant") participating
interests in any Loans, the Commitments of that Bank and the
other interests of that Bank (the "originating Bank") hereunder
and under the other Loan Documents; provided, however, that (i)
the originating Bank's obligations under this Agreement shall
remain unchanged, (ii) the originating Bank shall remain solely
responsible for the performance of such obligations, (iii) the
Borrowers, the Agent and the Issuing Bank shall continue to deal
solely and directly with the originating Bank in connection with
the originating Bank's rights and obligations under this
Agreement and the other Loan Documents, (iv) no Bank shall
transfer or grant any participating interest under which the
Participant has rights to approve
<PAGE>
any amendment to, or any consent or waiver with respect to, this
Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of
the Banks as described in the first proviso to Section 11.01 and
(v) on or prior to the date any such Person becomes a Participant
it shall have delivered to the Company and the Agent or file with
the appropriate taxing authority the tax forms, if any, it would
have been required to deliver or file pursuant to subsection
4.01(e) or (f), as the case may be, if it were a Bank hereunder,
and shall thereafter comply with the provisions of subsection
4.01(g). In the case of any such participation, the Participant
shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05
as though it were also a Bank hereunder (provided, however, that
the Borrowers shall not be required to pay any amount pursuant to
Sections 4.01 and 4.03 that is greater than the amount which they
would have been required to pay had no participation interest
been sold) and if amounts outstanding under this Agreement are
due and unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under
this Agreement.
(e) Notwithstanding any other provision in this
Agreement, any Bank may at any time create a security interest
in, or pledge, all or any portion of its rights under and
interest in this Agreement the Note held by it in favor of any
Federal Reserve Bank in accordance with Regulation A of the FRB
or U.S. Treasury Regulation 31 CFR Section 203.14, and such
Federal Reserve Bank may enforce such pledge or security interest
in any manner permitted under applicable law.
11.09 Guaranty of the Borrowers and Subsidiary
Guarantors.
(a) Guaranty. The Borrowers and Subsidiary Guarantors
make the following guarantees:
(i) The Company and each Domestic Subsidiary
Guarantor unconditionally and irrevocably jointly and
severally guarantees the full and prompt payment when due,
whether at stated maturity, by acceleration or otherwise
(including, without limitation, all amounts which would have
become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code or other comparable
law) of all the Obligations, whether for principal,
interest, fees, expenses or otherwise, and including any and
all costs and expenses (including reasonable Attorney Costs)
incurred by the Agent, any Bank or any Indemnified Person in
enforcing any of their respective rights with respect
thereto; provided, however, that the Company and each
Domestic Subsidiary Guarantor shall be liable pursuant to
the guaranty under this subsection (a)(i) only for the
maximum amount of such liability that can be incurred
without rendering this guaranty as it relates to the Company
and each such Domestic Subsidiary Guarantor voided under
Section 548 of the Bankruptcy Code or any applicable
provisions of any comparable law.
(ii) Each Foreign Borrower and Foreign Subsidiary
Guarantor unconditionally and irrevocably jointly and
severally guarantees the full and prompt
<PAGE>
payment when due, whether at stated maturity, by
acceleration or otherwise (including, without limitation,
all amounts which would have become due but for the
operation of the automatic stay under Section 362(a) of the
Bankruptcy Code or other comparable law) of all the Foreign
Obligations, whether for principal, interest, fees, expenses
or otherwise, and including any and all costs and expenses
(including reasonable Attorney Costs) incurred by the Agent,
any Bank or any Indemnified Person in enforcing any of their
respective rights with respect thereto; provided, however,
that each Foreign Subsidiary Guarantor and Foreign Borrower
shall be liable pursuant to the guaranty under this
subsection (a)(ii) only for the maximum amount of such
liability that can be incurred without resulting in this
guaranty as it relates to each such Foreign Subsidiary
Guarantor and Foreign Borrower to be (A) voided under
Section 548 of the Bankruptcy Code or any applicable
provisions of comparable law or (B) cause any criminal or
civil liability to be imposed against any such Foreign
Subsidiary Guarantor or Foreign Borrower or any of their
officers or directors under applicable foreign law.
The foregoing guaranties constitute a guaranty of payment when
due and not merely of collection, and each Borrower and
Subsidiary Guarantor specifically agrees that it shall not be
necessary or required for the Agent, any Bank or any Indemnified
Person to exercise any right, assert any claim or demand or
enforce any remedy whatsoever against any Borrower, and
Subsidiary Guarantor or any other Person before or as a condition
to the obligations of any Borrower or Subsidiary Guarantor
hereunder.
(b) Acceleration of Guarantees. Each Borrower and
Subsidiary Guarantor agrees that (i) in the event of any
Insolvency Proceeding affecting any Borrower or Subsidiary
Guarantor or (ii) upon notice of acceleration of the Obligations
from the Agent pursuant to Section 9.02, and if any such event
shall occur at a time when any of the Obligations may not then be
due and payable, (i) the Company and each Domestic Subsidiary
Guarantor, jointly and severally, will pay pursuant to subclause
(a)(i) to the Agent (on behalf of the Banks) forthwith the full
amount which would be payable hereunder by the Borrowers and the
Subsidiary Guarantors if all the Obligations were then due and
payable, and (ii) each Foreign Borrower and Foreign Subsidiary
Guarantor, jointly and severally, will pay pursuant to subclause
(a)(ii) to the Tranche A Revolving Bank forthwith the full amount
which would be payable hereunder by the Foreign Borrowers and the
Foreign Subsidiary Guarantors if all the Foreign Obligations were
then due and payable.
(c) Guarantees Absolute. Each guaranty pursuant to
this Section 11.09 is a continuing, absolute, unconditional and
irrevocable guaranty of payment and shall remain in full force
and effect until (A) all the Obligations guaranteed by each
Borrower and Subsidiary Guarantor have been indefeasibly paid in
full in cash and (B) all related Commitments shall have
permanently terminated. Each Borrower and Subsidiary Guarantor
guarantees that the Obligations guaranteed by each such Borrower
and Subsidiary Guarantor will be paid strictly in accordance with
the terms of this Agreement, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of the Agent or any of the Banks
with respect thereto. The liability of each Borrower and
Subsidiary Guarantor under this Section 11.09 shall be absolute
and unconditional irrespective of:
<PAGE>
(i) any lack of validity, legality or
enforceability of this Agreement, the Notes, any other Loan
Document or any other agreement or instrument relating to
any thereof;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations, or any compromise, renewal, extension,
acceleration or release with respect thereto, or any other
amendment or waiver of or any consent to departure from this
Agreement, the Notes or any other Loan Document;
(iii)any addition, exchange, release or non-
perfection of any collateral, or any release or amendment or
waiver of or consent to departure from any other guaranty,
for all or any of the Obligations;
(iv) the failure of the Agent or any Bank
(A) to assert any claim or demand or to
enforce any right or remedy against any Borrower,
Subsidiary Guarantor or any other Person under the
provisions of this Agreement, any Note, any other
Loan Document or otherwise;
(B) to exercise any right or remedy against
any other guarantor of, or collateral securing,
any of the Obligations; or
(C) to disclose to any Subsidiary Guarantor
any matter relating to the business, operation or
condition of any Borrower or other Subsidiary
Guarantor or any other matter relating to any of
their financial condition or otherwise;
(v) any amendment to, rescission, waiver, or
other modification of, or any consent to departure from, any
of the terms of this Agreement, any Note or any other Loan
Document;
(vi) any defense, set-off or counter-claim which
may at any time be available to or be asserted by any
Borrower or Subsidiary Guarantor against any other Borrower
or Subsidiary Guarantor, the Agent or any Bank;
(vii) any reduction, limitation, impairment or
termination of the Obligations for any reason, including any
claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and each Borrower
and Subsidiary Guarantor hereby waives any right to or claim
of) any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence
affecting, the Obligations or otherwise; or
<PAGE>
(viii) any other circumstance which might
otherwise constitute a defense available to, or a legal or
equitable discharge of, any Borrower or Subsidiary
Guarantor.
(d) Reinstatement, etc. Each Borrower and Subsidiary
Guarantor agrees that its guaranty hereunder shall continue to be
effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the Obligations
guaranteed by any such Borrower or Subsidiary Guarantor is
rescinded or must otherwise be restored by the Agent or any Bank
as a result of any Insolvency Proceeding affecting any Borrower,
any Subsidiary Guarantor or otherwise, all as though such payment
had not been made.
(e) Waiver of Diligence, etc. Each Borrower and
Subsidiary Guarantor hereby waives promptness, diligence, notice
of acceptance and any other notice with respect to any of the
Obligations guaranteed by any such Borrower or Subsidiary
Guarantor and this guaranty and any requirement that the Agent or
any Bank protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action
against any Borrower, any Subsidiary Guarantor or any other
Person.
(f) Waiver of Subrogation. Each Borrower and
Subsidiary Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against any other
Borrower or Subsidiary Guarantor that arises from the existence,
payment, performance or enforcement of its obligations under its
guaranty hereunder, including any right of subrogation,
reimbursement, exoneration or indemnification, any right to
participate in any claim or remedy of the Agent or any Bank
against any Borrower or Subsidiary Guarantor which the Agent or
any Bank now has or hereafter acquires (whether or not such
claim, remedy or right arises in equity, or under contract,
statute or common law), including the right to take or receive
from any Borrower or Subsidiary Guarantor, directly or
indirectly, in cash or other property or by set-off or in any
manner, payment or security on account of such claim or other
rights. If any amount shall be paid to any Borrower or
Subsidiary Guarantor in violation of the preceding sentence and
the Obligations guaranteed by each such Borrower and Subsidiary
Guarantor shall not have been indefeasibly paid in cash in full
and all the related Commitments have not been permanently
terminated, such amount shall forthwith be paid to the Agent on
behalf of the Banks by such Borrower and Subsidiary Guarantor, as
the case may be, to be credited and applied against such
Obligations, whether matured or unmatured, and (except in the
case of property of Sola Optical Partners, Sola International
Holdings Ltd., Sola Corporation Limited and Sola Optical Holdings
Pty. Ltd. or property of the Company situated in Australia) until
such payment shall be deemed to have been paid to such Borrower
or Subsidiary Guarantor, as the case may be, for the benefit of,
and held in trust for, the Banks. Each Borrower and Subsidiary
Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this
Agreement and that the waiver set forth in this Section is
knowingly made in contemplation of such benefits.
(g) Intercompany Subordinated Indebtedness. Each
Borrower and Subsidiary Guarantor agrees that the payment of the
principal of, or interest on, any Indebtedness or other amounts
owing to it by any Borrower (the "Intercompany Subordinated
Indebtedness") is hereby expressly subordinated, to the extent
and in the manner hereinafter set forth, to the prior payment in
full in cash of all the Obligations:
<PAGE>
(i) Upon the maturity of any Obligations, whether
at stated maturity, by acceleration or otherwise, such
Obligations shall first be paid in full in cash and all the
Commitments shall have been permanently terminated before
any payment (whether in cash, property, securities or
otherwise) is made by any Borrower on account of the
Intercompany Subordinated Indebtedness;
(ii) If any Default or Event of Default is in
existence no Borrower shall, directly or indirectly, make
any payment of any Intercompany Subordinated Indebtedness
until all the Obligations have been paid in full in cash and
all the Commitments have been permanently terminated. Each
Subsidiary Guarantor hereby agrees that, so long as any such
Default or Event of Default exists, it will not sue for, or
otherwise take any action to enforce any Borrower's
obligations to pay, any amounts owing in respect of any
Intercompany Subordinated Indebtedness;
(iii) In the event that notwithstanding the
provisions of the preceding subsections (i) and (ii), a
Borrower shall make any payment on account of any
Intercompany Subordinated Indebtedness at a time when
payment is not permitted by said subsection (i) or (ii),
such payment shall be paid forthwith over and delivered to,
the Agent, if paid by the Company, or the Tranche A
Revolving Bank, if paid by any other Borrower, for
application to the payment in full in cash of all the
Domestic Obligations and Foreign Obligations, as the case
may be and (except in the case of payments by Sola Optical
Partners, Sola International Holdings Ltd., Sola Corporation
Limited or Sola Optical Holdings Pty. Ltd) shall be held by
such Subsidiary Guarantor in trust for the benefit of the
Agent, if paid by the Company, or the Tranche A Revolving
Bank, if paid by any other Borrower; and
(iv) In the event any Borrower is subject to any
Insolvency Proceeding, any payment or distributions of
assets of such Borrower of any kind or character, whether in
cash, property or securities to which any Subsidiary
Guarantor would be entitled except for the provisions of
this subsection, shall be paid by the liquidating trustee or
agent or other person making such payment or distribution
directly to the Agent, with respect to payments or
distributions on behalf of the Company, or the Tranche A
Revolving Bank, with respect to payments or distributions on
behalf of any other Borrower, for application to the payment
in full in cash of all the Domestic Obligations and Foreign
Obligations, as the case may be.
The terms of this subsection (g) are continuing,
absolute, unconditional and irrevocable, and shall remain in
full force and effect notwithstanding the occurrence of any
of the events described in subclause (c).
(h) Release. Any Subsidiary Guarantor that shall not
be, at any time, a Subsidiary of the Company shall automatically
be released from the terms of this Section.
11.10 Confidentiality. Each Bank agrees to take and to
cause its Affiliates to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all
information identified as "confidential" or "secret" by any
Borrower and provided to it by any
<PAGE>
Borrower or any Subsidiary, or by the Agent on any Borrower's or
such Subsidiary's behalf, under this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall use any
such information other than in connection with or in enforcement
of this Agreement and the other Loan Documents or in connection
with other business now or hereafter existing or contemplated
with any Borrower or any Subsidiary; except to the extent such
information (i) was or becomes generally available to the public
other than as a result of disclosure by such Bank, or (ii) was or
becomes available on a non-confidential basis from a source
other than the Borrowers, provided that such source is not bound
by a confidentiality agreement with the Borrowers known to such
Bank; provided, however, that any Bank may disclose, and each
Borrower hereby irrevocably consents to the disclosure by any
Bank of, such information (A) at the request or pursuant to any
requirement of any Governmental Authority to which such Bank is
subject or in connection with an examination of such Bank by any
such authority; (B) pursuant to subpoena or other court process;
(C) when required to do so in accordance with the provisions of
any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which
the Agent, any Bank or their respective Affiliates may be party;
(E) to the extent reasonably required in connection with the
exercise of any remedy hereunder or under any other Loan
Document; (F) to such Bank's independent auditors and other
professional advisors; (G) to any Participant or Assignee, actual
or potential, provided that such Person agrees in writing to keep
such information confidential to the same extent required of the
Banks hereunder; (H) as to any Bank or its Affiliate, as
expressly permitted under the terms of any other document or
agreement regarding confidentiality to which any Borrower or
Subsidiary is party or is deemed party with such Bank or such
Affiliate; and (I) to its Affiliates.
11.11 Set-off. In addition to any rights and remedies
of the Banks provided by law, if an Event of Default exists or
the Loans have been accelerated, each Bank is authorized at any
time and from time to time, without prior notice to any Borrower
or Subsidiary Guarantor, any such notice being waived by the
Borrowers and Subsidiary Guarantors to the fullest extent
permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such
Bank to or for the credit or the account of the Borrowers and
Subsidiary Guarantors against any and all Obligations owing to
such Bank, now or hereafter existing, irrespective of whether or
not the Agent or such Bank shall have made demand under this
Agreement or any Loan Document and although such Obligations may
be contingent or unmatured; provided, that any amounts received
by exercising such set-off rights against any Foreign Borrower or
Foreign Subsidiary Guarantor may only be applied against the
Foreign Obligation. Each Bank agrees promptly to notify the
Company, the Agent and the Tranche A Revolving Bank after any
such set-off and application made by such Bank; provided,
however, that the failure to give such notice shall not affect
the validity of such set-off and application.
11.12 Notification of Addresses, Lending Offices, Etc.
Each Bank shall notify the Agent in writing of any changes in the
address to which notices to the Bank should be directed, of
addresses of any Lending Office, of payment instructions in
respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably
request.
<PAGE>
11.13 Counterparts. This Agreement may be executed in
any number of separate counterparts, each of which, when so
executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one
and the same instrument.
11.14 Severability. The illegality or unenforceability
of any provision of this Agreement or any instrument or agreement
required hereunder shall not in any way affect or impair the
legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
11.15 No Third Parties Benefited. This Agreement is
made and entered into for the sole protection and legal benefit
of the Borrowers, the Banks, the Agent and the Agent-Related
Persons, and their permitted successors and assigns, and no other
Person shall be a direct or indirect legal beneficiary of, or
have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan
Documents.
11.16 Governing Law and Jurisdiction. (a) THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT
THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH BORROWER AND SUBSIDIARY GUARANTOR, THE AGENT
AND EACH BANK CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
EACH BORROWER AND SUBSIDIARY GUARANTOR, THE AGENT AND EACH BANK
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT
OR ANY DOCUMENT RELATED HERETO. EACH BORROWER AND SUBSIDIARY
GUARANTOR, THE AGENT AND EACH BANK WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY NEW YORK LAW.
11.17 Waiver of Jury Trial. EACH BORROWER AND
SUBSIDIARY GUARANTOR, EACH BANK AND THE AGENT WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT,
THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY
TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY
AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH
BORROWER AND SUBSIDIARY
<PAGE>
GUARANTOR, EACH BANK AND THE AGENT AGREES THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION
OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.18 Judgment. If, for the purposes of obtaining
judgment in any court, it is necessary to convert a sum due
hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent (or, in the
case of the Tranche A Revolving Loans, the Tranche A Revolving
Bank) could purchase the first currency with such other currency
on the Business Day preceding that on which final judgment is
given. The obligation of the Borrowers in respect of any such
sum due from it to the Agent, the Issuing Bank or the Tranche A
Revolving Bank, as the case may be, hereunder or under the other
Loan Documents 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 the Agent,
the Issuing Bank or the Tranche A Revolving Bank, as the case may
be, of any sum adjudged to be so due in the Judgment Currency,
the Agent, the Issuing Bank or the Tranche A Revolving Bank, as
the case may be, may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency. If
the amount of the Agreement Currency so purchased is less than
the sum originally due to the Agent, the Issuing Bank or the
Tranche A Revolving Bank, as the case may be, in the Agreement
Currency, the relevant Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify the Agent,
the Issuing Bank or the Tranche A Revolving Bank, as the case may
be, to whom such obligation was owing against such loss. If the
amount of the Agreement currency so purchased is greater than the
sum originally due to the Agent, the Issuing Bank or the Tranche
A Revolving Bank, as the case may be, in such currency, the
Agent, the Issuing Bank or the Tranche A Revolving Bank, as the
case may be, agrees to return the amount of any excess to the
relevant Borrower (or to any other Person who may be entitled
thereto under applicable law).
11.19 Entire Agreement. This Agreement, together with
the other Loan Documents, embodies the entire agreement and
understanding among the Borrowers, the Subsidiary Guarantors, the
Banks and the Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written,
relating to the subject matter hereof and thereof.
11.20 Change in Law. If as a result of a change in law
after the Closing Date any Foreign Borrower or Foreign Subsidiary
Guarantor, as the case may be, is able to guaranty or otherwise
become liable for the repayment of the Domestic Obligations
(whether pursuant to Section 11.09 or otherwise) without
suffering to exist any material adverse tax consequences,
<PAGE>
such Foreign Borrower or Foreign Subsidiary Guarantor, as the
case may be, shall promptly notify the Agent of the same.
Promptly following receipt by the Agent of each such notice (and,
in any event, within 20 Business Days), this Agreement and the
other Loan Documents shall be amended on terms in form and
substance satisfactory to Agent and the Majority Banks so that
the relevant Foreign Borrower and Foreign Subsidiary Guarantor
guarantees and is otherwise liable for all the Obligations to the
same extent as if it were the Company or a Domestic Subsidiary
Guarantor, as the case may be.
11.21 Co-Agents. The Agent hereby designates the First
National Bank of Boston and The Bank of Nova Scotia as co-agents
under this Agreement, and their execution of this Agreement in
their capacity as a Bank shall evidence their acceptance thereof.
Neither The First National Bank of Boston nor The Bank of Nova
Scotia shall have any additional rights or obligations under this
Agreement or the other Loan Documents as a result of their
designation as co-agents.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in New York, New York
by their proper and duly authorized officers as of the day and
year first above written.
BORROWERS:
SOLA INTERNATIONAL INC.
By: /s/ James Gould
---------------------------
Name: James Gould
Title: Attorney in Fact
SOLA INTERNATIONAL HOLDINGS LTD.
(ACN007719708)
SOLA OPTICAL HOLDINGS (U.K.)
LIMITED
SOLA OPTICAL S.A.
SOLA OPTICAL GMBH
SOLA HONG KONG LIMITED
SOLA ADC LENSES LIMITED
SOLA OPTICAL ITALIA S.P.A.
SOLA OPTICAL JAPAN LIMITED
SOLA OPTICAL SINGAPORE PTE. LTD.
By: /s/ James Gould
---------------------------
Name: James Gould
Title: Attorney in Fact
<PAGE>
SUBSIDIARY GUARANTORS:
SOLA OPTICAL HOLDINGS PTY. LTD.
(ACN0060836811)
SOLA CORPORATION LIMITED
(ACN008065905)
SOLA BRASIL INDUSTRIA OPTICA LTDA.
SOLA OPTICAL (U.K.) LIMITED
INDUSTRIES OPTIQUE SOLA S.A.
SOLA OPTICAL HOLDINGS S.A.R.L.
SOLA GROUP HOLDINGS GMBH
AMERICAN OPTICAL LENS COMPANY
SOLA OPTICAL HOLDINGS AUS. LTD.
SOLA OPTICAL HOLDINGS FR. LTD.
By: /s/ James Gould
---------------------------
Name: James Gould
Title: Attorney in Fact
SOLA OPTICAL PARTNERS, a Limited
Partnership, by its Managing
Partner, Sola
International Inc.
By: /s/ James Gould
---------------------------
Name: James Gould
Title: Attorney in Fact
<PAGE>
AGENT:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, as Agent
By: /s/ Christine Conti
---------------------------
Name: Christine Conti
Title: Vice President
ISSUING BANK:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, as Issuing Bank
By: /s/ Linda A. Carper
---------------------------
Name: Linda A. Carper
Title: Managing Director
BANKS:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ Linda A. Carper
---------------------------
Name: Linda A. Carper
Title: Managing Director
<PAGE>
THE BANK OF NOVA SCOTIA
By: /s/ Eric M. Knight
---------------------------
Name: Eric M. Knight
Title: Relationship Manager
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Lisa S. Marshall
---------------------------
Name: Lisa S. Marshall
Title: Managing Director
DEUTSCHE BANK AG
Los Angeles Branch and/or
Cayman Islands Branch
By: /s/ Jonathan S. Jessup
---------------------------
Name: J. Scott Jessup
Title: Vice President
By: /s/ Ross Howard
---------------------------
Name: Ross A. Howard
Title: Director
LASALLE NATIONAL BANK
By: /s/ Betty T. Latson
---------------------------
Name: Betty T. Latson
Title: First Vice President
NATIONSBANK OF TEXAS N.A.
By: /s/ Michele M. Shafroth
---------------------------
Name: Michele M. Shafroth
Title: Senior Vice President
<PAGE>
SOCIETE GENERALE
By: /s/ J. Blaine Shaum
---------------------------
Name: J. Blaine Shaum
Title: Regional Manager
BANQUE PARIBAS
By: /s/ John J. McCormick, III
---------------------------
Name: John J. McCormick, III
Title: Vice President
By: /s/ Mary T. Finnegan
---------------------------
Name: Mary T. Finnegan
Title: Group Vice President
COMMERZBANK AKTIENGESELLSCHAFT,
Los Angeles Branch
By: /s/ Christian Jagenberg
---------------------------
Name: Christian Jagenberg
Title: SVP and Manager
By: /s/ Werner Schmidbauer
---------------------------
Name: Werner Schmidbauer
Title: Vice President
THE LONG-TERM CREDIT BANK
OF JAPAN, LTD.
By: /s/ Paul Clifford
---------------------------
Name: Paul Clifford
Title: Deputy General Manager
<PAGE>
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ Katherine Martin
---------------------------
Name: Katherine Martin
Title: Vice President
<PAGE>
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES AS OF THE CLOSING DATE
-------------------------------------------
<TABLE>
<CAPTION>
Tranche A Tranche A Tranche B Tranche B
Bank Revolving Pro Revolving Revolving Pro Revolving
Rata Share Commitment Rata Share Commitment
Amount Amount
<S> <C> <C> <C> <C>
TRANCHE A
REVOLVING BANK:
Bank of America
National Trust
and Savings 100% $30,000,000 -- --
Association
TRANCHE B
REVOLVING BANKS: -- --
Bank of America
National Trust
and Savings 6.66666667% $ 8,000,000
Association
The Bank of Nova 16.66666667% $20,000,000
Scotia
The First
National Bank of 16.66666667% $20,000,000
Boston
Deutsche Bank AG
Los Angeles
Branch and/or
Cayman Islands 8.33333333% $10,000,000
Branch
LaSalle National 8.33333333% $10,000,000
Bank
NationsBank of
Texas N.A. 8.33333333% $10,000,000
Societe Generale 8.33333333% $10,000,000
Banque Paribas 6.66666667% $ 8,000,000
Commerzbank
Aktiengesellschaf
t, 6.66666667% $ 8,000,000
Los Angeles
Branch
The Long-Term
Credit Bank of 6.66666667% $ 8,000,000
Japan, Ltd.
Wells Fargo Bank,
National 6.66666667% $ 8,000,000
Association
TERM LOAN BANKS: -- -- -- --
Bank of America
National Trust
and Savings
Association
The Bank of Nova
Scotia
The First
National Bank of
Boston
<PAGE>
Deutsche Bank AG
Los Angeles
Branch and/or
Cayman Islands
Branch
LaSalle National
Bank
NationsBank of
Texas N.A.
Societe Generale
Banque Paribas
Commerzbank
Aktiengesellschaf
t,
Los Angeles
Branch
The Long-Term
Credit Bank of
Japan, Ltd.
Wells Fargo Bank,
National
Association
SWING LINE BANK:
Bank of America
National Trust
and Savings -- -- -- --
Association
<PAGE>
<CAPTION>
Term Loan Pro Term Loan Swing Line Swing Line
Bank Rata Share Commitment Pro Rata Commitment
Amount Share Amount
<S> <C> <C> <C> <C>
TRANCHE A
REVOLVING BANK:
Bank of America
National Trust
and Savings -- -- -- --
Association
TRANCHE B
REVOLVING BANKS: -- -- -- --
Bank of America
National Trust
and Savings
Association
The Bank of Nova
Scotia
The First
National Bank of
Boston
Deutsche Bank AG
Los Angeles
Branch and/or
Cayman Islands
Branch
LaSalle National
Bank
NationsBank of
Texas N.A.
Societe Generale
Banque Paribas
Commerzbank
Aktiengesellschaf
t,
Los Angeles
Branch
The Long-Term
Credit Bank of
Japan, Ltd.
Wells Fargo Bank,
National
Association
TERM LOAN BANKS: -- --
Bank of America
National Trust
and Savings 6.66666667% $2,000,000
Association
The Bank of Nova 16.66666667% $5,000,000
Scotia
The First
National Bank of 16.66666667% $5,000,000
Boston
<PAGE>
Deutsche Bank AG
Los Angeles
Branch and/or
Cayman Islands 8.33333333% $2,500,000
Branch
LaSalle National 8.33333333% $2,500,000
Bank
NationsBank of
Texas N.A. 8.33333333% $2,500,000
Societe Generale 8.33333333% $2,500,000
Banque Paribas 6.66666667% $2,000,000
Commerzbank
Aktiengesellschaf
t, 6.66666667% $2,000,000
Los Angeles
Branch
The Long-Term
Credit Bank of 6.66666667% $2,000,000
Japan, Ltd.
Wells Fargo Bank,
National 6.66666667% $2,000,000
Association
SWING LINE BANK:
Bank of America
National Trust
and Savings -- -- 100% $5,000,000
Association
</TABLE>
<PAGE>
