SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For quarterly period ended October 2, 1999
Commission File Number 1-7724
SNAP-ON INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 39-0622040
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
10801 Corporate Drive, Pleasant Prairie, Wisconsin 53158-1603
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (414) 656-5200
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [ X ] No [ ]
Indicate the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practicable date:
Class Outstanding at October 30, 1999
Common stock, $1 par value 58,518,811 shares
<PAGE>
SNAP-ON INCORPORATED
INDEX
Page
Part I. Financial Information
Consolidated Statements of Earnings -
Thirteen and Thirty-nine Weeks Ended
October 2, 1999 and October 3, 1998 3
Consolidated Balance Sheets -
October 2, 1999 and January 2, 1999 4-5
Consolidated Statements of Cash Flows -
Thirty-nine Weeks Ended
October 2, 1999 and October 3, 1998 6
Notes to Consolidated Unaudited Financial Statements 7-14
Management's Discussion and Analysis of
Financial Condition and Results of Operations 15-21
Part II. Other Information 22-23
<PAGE>
PART I. FINANCIAL INFORMATION
<TABLE>
SNAP-ON INCORPORATED
CONSOLIDATED STATEMENTS OF EARNINGS
(Amounts in thousands except per share data)
(Unaudited)
<CAPTION>
Thirteen Weeks Ended Thirty-nine Weeks Ended
October 2, October 3, October 2, October 3,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net sales $ 453,157 $ 427,272 $ 1,378,895 $ 1,295,877
Cost of goods sold (234,738) (225,184) (716,310) (677,554)
Cost of goods sold -
discontinued products -- (50,562) -- (50,562)
Operating expenses (170,504) (176,366) (527,215) (525,346)
Restructuring and other
non-recurring charges (5,315) (82,559) (14,285) (82,559)
Net finance income 12,267 14,657 46,400 47,529
Interest expense (5,262) (5,883) (15,360) (15,365)
Other income (expense) - net 16,558 604 3,319 (1,624)
----------- ----------- ----------- -----------
Earnings (loss) before
income taxes 66,163 (98,021) 155,444 (9,604)
Income tax provision (benefit) 23,613 (24,024) 55,654 7,806
----------- ----------- ----------- -----------
Net earnings (loss) $ 42,550 $ (73,997) $ 99,790 $ (17,410)
=========== =========== =========== ===========
Earnings (loss) per weighted
average common share - basic $ .73 $ (1.24) $ 1.71 $ (.29)
=========== =========== =========== ===========
Earnings (loss) per weighted
average common share - diluted $ .72 $ (1.24) $ 1.69 $ (.29)
=========== =========== =========== ===========
Weighted average common shares
outstanding - basic 58,491 58,995 58,482 59,359
Effect of dilutive options 424 -- 424 --
----------- ----------- ----------- -----------
Weighted average common shares
outstanding - diluted 58,915 58,995 58,906 59,359
=========== =========== =========== ===========
Dividends declared per
common share $ -- $ -- $ .67 $ .64
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these statements.
3
<PAGE>
SNAP-ON INCORPORATED
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands except share data)
(Unaudited)
October 2, January 2,
1999 1999
------------ --------------
ASSETS
Current Assets
Cash and cash equivalents $ 42,688 $ 15,041
Accounts receivable, less allowances 568,660 554,703
Inventories
Finished stock 453,489 359,358
Work in process 58,268 38,357
Raw materials 81,854 74,192
Excess of current cost over LIFO cost (95,541) (96,471)
------------ ------------
Total inventory 498,070 375,436
Prepaid expenses and other assets 189,536 134,652
------------ ------------
Total current assets 1,298,954 1,079,832
Property and equipment
Land 21,346 19,572
Buildings and improvements 216,139 175,385
Machinery and equipment 516,866 388,862
------------ ------------
754,351 583,819
Accumulated depreciation (403,349) (311,789)
------------ ------------
Total property and equipment 351,002 272,030
Deferred income tax benefits 48,197 60,139
Intangibles 454,256 172,517
Other assets 54,537 90,402
------------- -------------
Total assets $2,206,946 $1,674,920
============= =============
The accompanying notes are an integral part of these statements.
4
<PAGE>
SNAP-ON INCORPORATED
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands except share data)
(Unaudited)
October 2, January 2,
1999 1999
------------ -------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Accounts payable $ 152,015 $ 89,442
Notes payable and current maturities
of long-term debt 37,018 93,117
Accrued compensation 41,267 42,105
Dealer deposits 40,367 42,421
Deferred subscription revenue 41,558 34,793
Accrued restructuring reserve 15,791 26,165
Other accrued liabilities 176,266 130,010
----------- -----------
Total current liabilities 504,282 458,053
Long-term debt 669,715 246,644
Deferred income taxes 18,128 9,587
Retiree health care benefits 91,525 89,124
Pension and other long-term liabilities 112,511 109,245
----------- -----------
Total liabilities 1,396,161 912,653
SHAREHOLDERS' EQUITY
Preferred stock - authorized 15,000,000 shares
of $1 par value; none outstanding - -
Common stock - authorized 250,000,000 shares
of $1 par value; issued -
October 2, 1999 - 66,717,746 shares
January 2, 1999 - 66,685,169 shares 66,718 66,685
Additional paid-in capital 96,936 117,384
Retained earnings 943,787 883,207
Accumulated other comprehensive income (loss) (35,242) (30,231)
Grantor stock trust at fair market value -
6,694,196 and 6,924,019 shares (212,963) (241,042)
Treasury stock at cost - 1,509,140 and
1,016,224 shares (48,451) (33,736)
----------- -----------
Total shareholders' equity 810,785 762,267
----------- -----------
Total liabilities and shareholders'
equity $2,206,946 $1,674,920
=========== ===========
The accompanying notes are an integral part of these statements.
5
<PAGE>
SNAP-ON INCORPORATED
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
(Unaudited)
Thirty-nine Weeks Ended
October 2, October 3,
1999 1998
----------- -----------
OPERATING ACTIVITIES
Net earnings (loss) $ 99,790 $ (17,410)
Adjustments to reconcile net earnings (loss)
to net cash provided by operating activities:
Depreciation 28,751 25,715
Amortization 8,828 7,099
Deferred income taxes 20,364 (4,310)
(Gain) on sale of assets (1,183) (4,412)
(Gain) on currency hedge for purchase
price commitment, net of tax (1,085) -
Charges due to restructuring and other
non-recurring charges, net of tax 9,504 96,461
Changes in operating assets and liabilities:
Decrease in receivables 52,904 56,514
(Increase) in inventories (42,483) (66,935)
Decrease in prepaid and other assets 54,265 50,261
(Decrease) in accounts payable (24,296) (16,127)
(Decrease) in accruals and other liabilities (2,398) (53,882)
----------- ----------
Net cash provided by operating activities 202,961 72,974
INVESTING ACTIVITIES
Capital expenditures (27,189) (32,332)
Acquisitions of businesses (481,752) (76,155)
Disposal of property and equipment 6,276 7,115
---------- -----------
Net cash used in investing activities (502,665) (101,372)
FINANCING ACTIVITIES
Payment of long-term debt - (3,543)
Increase in long-term debt 6,743 47,412
Increase in short-term borrowings-net 346,296 78,830
Purchase of treasury stock (14,714) (75,723)
Proceeds from stock plans 7,663 7,333
Cash dividends paid (39,210) (38,030)
---------- ----------
Net cash provided by financing activities 306,778 16,279
Effect of exchange rate changes on cash (416) (90)
---------- ----------
Increase (decrease) in cash and cash equivalents 6,658 (12,209)
Cash and cash equivalents at beginning of period 15,041 25,679
---------- ----------
Cash and cash equivalents at end of period $ 21,699 $ 13,470
========== ==========
The accompanying notes are an integral part of these statements.
6
<PAGE>
SNAP-ON INCORPORATED
NOTES TO CONSOLIDATED UNAUDITED FINANCIAL STATEMENTS
1. This report should be read in conjunction with the consolidated financial
statements and related notes included in Snap-on Incorporated's Annual
Report for the year ended January 2, 1999.
In the opinion of management, all adjustments (consisting of normal
recurring adjustments and adjustments related to restructuring and other
non-recurring charges) necessary to a fair statement of financial condition
and results of operations for the thirteen and thirty-nine weeks ended
October 2, 1999 have been made. Management also believes that the results of
operations for the thirteen and thirty-nine weeks ended October 2, 1999 are
not necessarily indicative of the results to be expected for the full year.
Certain prior-year amounts have been reclassified to conform with
current-year presentation.
2. Snap-on Incorporated (the "Corporation") normally declares and pays in cash
four regular, quarterly dividends. However, the third quarter dividend in
each year is declared in June, giving rise to two regular quarterly
dividends appearing in the second quarter and correspondingly, three regular
quarterly dividends appearing in the first twenty-six weeks' statements.
3. Income tax paid for the thirty-nine week period ended October 2, 1999 and
October 3, 1998 was $11.0 million and $43.4 million. Interest paid for the
thirty-nine week period ended October 2, 1999 and October 3, 1998 was $20.3
million and $16.9 million.
4. In 1998, the Corporation announced a simplification initiative ("Project
Simplify") which is a broad program of internal rationalizations,
consolidations and reorganizations. The goal is to make the Corporation's
business operations simpler and more effective. Project Simplify, upon
completion in the first quarter of 2000, will result in the closing of six
manufacturing facilities, seven warehouses and 47 small offices in North
America and Europe; the elimination of 1,100 positions; the discontinuance
of 12,000 stock keeping units ("SKUs") of inventory; and the consolidation
of certain business units. Total charges for Project Simplify are composed
of restructuring charges, other non-recurring charges and related
transitional costs.
For the third quarter and first nine months of 1999, the Corporation
recorded pre-tax charges of $5.3 million and $14.3 million, respectively, of
other non-recurring charges related to Project Simplify. For the third
quarter of 1998, when Project Simplify was announced, the Corporation
recorded pre-tax charges of $133.1 million of restructuring and other
non-recurring charges. Total charges for Project Simplify as of October 2,
1999 were $164.1 million. This amount consists of $75.6 million of
restructuring charges and $88.5 million of other non-recurring charges.
7
<PAGE>
SNAP-ON INCORPORATED
NOTES TO CONSOLIDATED UNAUDITED FINANCIAL STATEMENTS (continued)
The composition of the Corporation's $75.6 million restructuring charges is as
follows:
<TABLE>
<CAPTION>
Original Write-down Restructuring
Restructuring Additions of Assets to Cash Reserves as of
(Amounts in thousands) Reserves to Reserves Fair Value Payments October 3, 1999
<S> <C> <C> <C> <C> <C>
Expenditures for severance
and other exit costs $ 21,105 $ 1,969 $ -- $(13,093) $ 9,981
Loss on the write-down
of intangibles and
goodwill 36,240 298 (36,538) -- --
Charges for warranty
provisions 9,660 -- -- (3,850) 5,810
Loss on the write-down
of assets 5,978 357 (6,335) -- --
-------- -------- -------- -------- --------
Total restructuring
reserves $ 72,983 $ 2,624 $(42,873) $(16,943) $ 15,791
======== ======== ======== ======== ========
</TABLE>
The Corporation has recorded restructuring charges of $15.5 million for
severance and of $7.6 million for non-cancelable lease agreements on
facilities to be closed and other exit costs associated with Project
Simplify. Severance costs provided for worldwide salaried and hourly
employees relate to facility closures, elimination of staffing redundancies
and operational streamlining. As of October 2, 1999, 959 employees of an
estimated 1,100 have separated from the Corporation, and severance payments
of $8.4 million have been made. The elimination of the remaining positions
is expected by the first quarter of 2000. The Corporation has adjusted
property, plant and equipment and other assets to net realizable value
through a $6.3 million restructuring charge.
As part of the restructuring efforts, the Corporation has also written down
impaired goodwill and other intangible assets of certain discontinued
business units by $36.5 million. The majority of this write-down relates to
Computer Aided Services, Inc. and Edge Diagnostic Systems. No net realizable
value was assessed for these intangible assets due to the closure of these
operations and the discontinuance of their product lines. As part of the
elimination of these business units and their product lines, the Corporation
has recorded a charge in the amount of $9.7 million to provide additional
warranty support, at no cost to the customer, for products already sold. The
warranty reserve has been included in Cost of Goods Sold - Discontinued
Products while all remaining restructuring charges have been included in
Restructuring and Other Non-recurring Charges on the accompanying
Consolidated Statements of Earnings.
Other non-recurring Charges: As part of Project Simplify, the Corporation
has recorded other non-recurring charges in the amount of $88.5 million.
These charges include the elimination of $50.9 million of discontinued SKUs
of inventory, costs to resolve certain legal matters in the amount of $18.7
million and other transitional costs in the amount of $18.9 million.
Transitional costs, which are comprised of employee incentives ($2.1
million), relocation costs ($7.9 million) and professional services ($8.9
million), do not qualify for restructuring accrual treatment and are
therefore expensed when incurred. The reduction of SKUs is an effort to
reduce the transaction costs and working capital intensity of the
Corporation's product offering, and refocus on high volume growth products.
8
<PAGE>
SNAP-ON INCORPORATED
NOTES TO CONSOLIDATED UNAUDITED FINANCIAL STATEMENTS (continued)
The charge for certain legal matters includes legal costs to conclude these
matters. The non-recurring charge related to the reduction of SKUs has been
included as part of Cost of Goods Sold - Discontinued Products, while the
remaining non-recurring charges have been included in Restructuring and
Other Non-recurring Charges on the accompanying Consolidated Statements of
Earnings.
5. On September 30, 1999, the Corporation completed its acquisition of the
Sandvik Saws and Tools business, formerly a wholly-owned operating unit of
Sandvik AB, for approximately US$400 million (SEK 3,300 million) in cash.
Pursuant to the Share Purchase Agreement, the Corporation acquired 100% of
the voting securities of SB Tools S.a.r.l. ("SB Tools"), a controlled entity
of CTT Cutting Tool Technology B.V., a wholly-owned subsidiary of Sandvik
AB. Pursuant to a reorganization which occurred within the Sandvik group of
companies and at the time of closing, SB Tools was the owner, directly and
indirectly, of the companies within the Sandvik group conducting the line of
business known as the Sandvik Saws and Tools business. The acquired business
will operate within the Corporation as the Bahco Group. The acquisition was
financed through internally generated funds and an expansion of an existing
commercial paper credit facility supported by a recently completed $600
million multi-currency revolving credit facility. The acquisition is being
accounted for under the purchase method of accounting. The purchase includes
facilities, a number of brand names and trademarks, and certain other assets
and liabilities, all of which have been included in the October 2, 1999
consolidated balance sheet. The assets and liabilities have been recorded at
historical cost until an audited financial statement and estimated fair
market values of the assets acquired and the liabilities assumed are
available and final purchase price adjustments are made. As a result,
goodwill of $240.0 million has been recorded representing the difference
between the purchase price and the historical cost of the assets and
liabilities assumed. Upon determination of the estimated fair market values
of the assets acquired and liabilities assumed, the cost of the acquisition
will be allocated in accordance with criteria established under Accounting
Principles Board Opinion No. 16, "Business Combinations", and goodwill will
be adjusted accordingly. It is anticipated that the resulting goodwill is to
be assigned a 40 year life. Because the purchase occurred at the end of the
quarter, there was no effect recorded to the consolidated statement of
earnings for the quarter or nine months ended October 2, 1999.
The Bahco Group is a manufacturer and supplier of professional tool products
and employs approximately 2,400 people. Of those, approximately 1,000
employees are in Sweden. Products are manufactured at 11 plants in Sweden,
Germany, Portugal, France, England, the United States and Argentina. The
business had 1998 sales of US$325 million (SEK 2,700 million) (60% Europe,
26% U.S. and Latin America, and 14% in Asia/Pacific and the rest of the
world). The Corporation anticipates this transaction to be neutral to
earnings in the fourth quarter of 1999 and accretive thereafter.
6. Earnings per share calculations were computed by dividing net earnings by
the corresponding weighted average number of common shares outstanding for
the period. The dilutive effect of the potential exercise of outstanding
options to purchase shares of common stock is calculated using the treasury
stock method.
9
<PAGE>
SNAP-ON INCORPORATED
NOTES TO CONSOLIDATED UNAUDITED FINANCIAL STATEMENTS (continued)
7. In June 1998, the Financial Accounting Standards Board ("FASB") issued
Statement No. 133, "Accounting for Derivative Instruments and Hedging
Activities," which establishes accounting and reporting standards for
derivative instruments and for hedging activities. The Statement of
Financial Accounting Standards ("SFAS") No. 133 was effective for fiscal
years beginning after June 15, 1999. In June 1999, the FASB issued SFAS No.
137, "Accounting for Derivative Instruments and Hedging Activities--Deferral
of the Effective Date of FASB Statement No. 133". SFAS No. 137 defers the
effective date of SFAS No. 133 for one year to fiscal years beginning after
June 15, 2000. The Corporation is currently evaluating the impact of this
pronouncement.
8. Total comprehensive income, consisting of net earnings and foreign currency
translation adjustments, for the thirteen and thirty-nine week periods ended
October 2, 1999 and October 3, 1998, was as follows:
<TABLE>
<CAPTION>
Thirteen Weeks Ended Thirty-nine Weeks Ended
October 2, October 3, October 2, October 3,
(Amounts in thousands) 1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net earnings (loss) $ 42,550 $ (73,997) $ 99,790 $ (17,410)
Foreign currency translation 4,216 5,185 (5,011) 4,331
-------- --------- -------- ----------
Total comprehensive income (loss) $ 46,766 $ (68,812) $ 94,779 $ (13,079)
======== ========= ======== =========
</TABLE>
9. The Corporation uses derivative instruments to manage well-defined interest
rate and foreign currency exposures. The Corporation does not use derivative
instruments for trading purposes. The criteria used to determine if hedge
accounting treatment is appropriate are (i) the designation of the hedge to
an underlying exposure, (ii) whether or not overall risk is being reduced
and (iii) if there is a correlation between the value of the derivative
instrument and the underlying obligation.
Interest Rate Derivative Instruments: The Corporation enters into interest
rate swap agreements to manage interest costs and risks associated with
changing interest rates. The differentials paid or received on interest rate
agreements are accrued and recognized as adjustments to interest expense.
Gains and losses realized upon settlement of these agreements are deferred
and amortized to interest expense over a period relevant to the agreement if
the underlying hedged instrument remains outstanding, or immediately if the
underlying hedged instrument is settled.
Foreign Currency Derivative Instruments:
The Corporation has operations in a number of countries and has intercompany
transactions among them and, as a result, is exposed to changes in foreign
currency exchange rates. The Corporation manages most of these exposures on
a consolidated basis, which allows netting certain exposures to take
advantage of any natural offsets. To the extent the net exposures are
hedged, forward contracts are used. Gains and/or losses on these foreign
currency hedges are included in income in the period in which the exchange
rates change. In the second quarter of 1999, the Corporation entered into a
forward currency hedge to buy 3.2 billion of Swedish Krona on the US$400
million equivalent purchase price commitment for the Sandvik acquisition.
The hedge was marked to market at the end of the second quarter resulting in
a $13.6 million pre-tax unrealized loss. At the end of the third quarter, a
$15.3 million pre-tax gain was recognized at the close of the Sandvik
acquisition on September 30, 1999. For the thirty-nine weeks ended September
30, 1999, a $1.7 million pre-tax
10
<PAGE>
SNAP-ON INCORPORATED
NOTES TO CONSOLIDATED UNAUDITED FINANCIAL STATEMENTS (continued)
gain was realized. The pre-tax gain is included in the consolidated
statements of earnings under other income (expense) - net. Other than the
forward currency hedge related to the Sandvik acquisition, gains and/or
losses from foreign currency hedges have not been material to the
consolidated financial statements.
10. Tejas Testing Technology One, L.C. and Tejas Testing Technology Two, L.C.
(the "Tejas Companies"), former subsidiaries of the Corporation, previously
entered into contracts with the Texas Natural Resources Conservation
Commission ("TNRCC"), an agency of the State of Texas, to perform automotive
emissions testing services. The Corporation guaranteed payment (the
"Guaranty") of the Tejas Companies' obligations under a seven-year lease
agreement in the amount of approximately $98.8 million plus an interest
factor, pursuant to which the Tejas Companies leased the facilities
necessary to perform the contracts. The Guaranty was assigned to the
lessor's lenders. The Tejas Companies agreed to indemnify the Corporation
for any payments it must make under the Guaranty.
The State of Texas subsequently terminated the emissions program described
in the contracts. The Tejas companies filed for bankruptcy and commenced
litigation in state and federal court against the TNRCC and related
entities. The Corporation had recorded as assets the net amounts the
Corporation paid under the Guaranty that it expected to receive from the
State of Texas pursuant to a settlement agreement approved by the U.S.
Bankruptcy Court. Under this settlement agreement, the obligation under the
Guaranty previously recorded as a contingent liability in the amount of
$38.5 million was satisfied, leaving an expected receivable of $55.2
million. In 1998, the Corporation received $18.2 million, leaving a net
receivable balance of $37.0 million prior to the third quarter of 1999. In
September 1999, the Corporation received a $36.0 million cash payment in
early and final settlement. As a result, the Corporation recorded a
non-recurring $1.0 million charge against the $37.0 million net receivable
previously included in the Consolidated Balance Sheets under Other Assets.
The $1.0 million charge is included in the consolidated statements of
earnings under other income (expense) - net.
In April 1996, the Corporation filed a complaint against SPX Corporation
("SPX") alleging infringement of the Corporation's patents and asserting
claims relating to SPX's hiring of the former president of Sun Electric. SPX
filed a counterclaim, alleging infringement of certain SPX patents. Upon the
Corporation's request for reexamination, the U.S. Patent and Trademark
Office initially rejected SPX's patents as invalid, but recently reconfirmed
them. Neither the complaint nor the counterclaim contains specific
allegations of damages; however, the parties' claims could involve multiple
millions of dollars. It is not possible at this time to assess the outcome
of any of the claims.
The Corporation is involved in various legal matters, which are being
defended and handled in the ordinary course of business. Although it is not
possible to predict the outcome of these matters, management believes that
the results will not have a material impact on the Corporation's financial
statements.
11. In 1998, the Corporation created a Grantor Stock Trust ("GST"). In
conjunction with the formation of the GST, the Corporation sold 7.1 million
shares of treasury stock to the GST. The sale of these shares had no net
impact on shareholders' equity or on the Corporation's
11
<PAGE>
SNAP-ON INCORPORATED
NOTES TO CONSOLIDATED UNAUDITED FINANCIAL STATEMENTS (continued)
Consolidated Statements of Earnings. The GST is a funding mechanism for
certain benefit programs and compensation arrangements, including the
incentive stock program and employee and franchised dealer stock purchase
plans. The Northern Trust Company, as trustee of the GST, will vote the
common stock held by the GST based on the directions of non-director
employees holding vested options and certain employee and dealer
participants in those stock purchase plans, as set forth in the GST
Agreement. The GST is recorded as Grantor Stock Trust at Fair Market Value
on the accompanying Consolidated Balance Sheets. Shares owned by the GST are
accounted for as a reduction to shareholders' equity until used in
connection with employee benefits. Each period, the shares owned by the GST
are valued at the closing market price, with corresponding changes in the
GST balance reflected in additional paid-in capital.
12. In January 1999, the Corporation recorded a gain in accordance with SFAS No.
125. of $40 million (reported in the Corporation's 1998 annual report as a
preliminary estimate of $44 million before post-closing adjustments) pre-tax
that resulted from the sale of $141.1 million of U.S. installment accounts
receivables to Newcourt Financial USA Inc. ("Newcourt"). A significant
portion of the receivables sold to Newcourt were previously securitized with
a third party. The Corporation reacquired these previously securitized
receivables through an arm's length transaction and they were recorded at
cost. These receivables, along with previously unsecuritized receivables,
were sold to Newcourt resulting in a pre-tax gain of $40 million. The gain
is being recognized over a two-year period.
13. In 1998, the Corporation adopted Statement of Financial Accounting Standards
No. 131, "Disclosures about Segments of an Enterprise and Related
Information," which changes the way the Corporation reports information
about its operating segments. The information for 1998 has been restated
from the prior years' presentation in order to conform to the 1999
presentation.
The Corporation's segments are based on the organization structure that is
used by management for making operating and investment decisions and for
assessing performance. Based on this management approach, the Corporation
has five reportable segments: North America Transportation, North America
Other, Europe, International and Financial Services. The North America
Transportation segment consists of the Corporation's business operations
serving primarily the franchised dealer channel in the United States and
Canada. The North America Other segment consists of the Corporation's
business operations serving the direct sales and distributor channels in the
United States and Canada, as well as the Corporation's exports from the
United States. The Europe segment consists of the Corporation's operations
in Europe and Africa. The International segment consists of the
Corporation's operations in the Asia/Pacific region and Latin America. These
four segments derive revenues primarily from the sale of tools and
equipment. The Financial Services segment derives royalty income, based on
new loan originations, and management fees from Snap-on Credit LLC, a 50%
owned joint venture with Newcourt. Earnings from this segment also includes
a portion of the amortization of the approximately $40 million pre-tax gain
that resulted from the Corporation's sale of installment accounts
receivables to Newcourt. The overall gain is being recognized over a two
year period. The Financial Services segment also provides limited financing
to technicians, shop owners and dealers.
The Corporation evaluates the performance of its operating segments based on
earnings before taxes, interest expense, other income/expense-net and
restructuring and other non-recurring charges. The
12
<PAGE>
SNAP-ON INCORPORATED
NOTES TO CONSOLIDATED UNAUDITED FINANCIAL STATEMENTS (continued)
Corporation accounts for intersegment sales and transfers based on
established sales prices between the segments, which represent cost plus an
intercompany markup. The Corporation allocates shared service expenses to
those segments that utilize the services based on their percentage of
revenues from external sources. The Corporation has charged license fees to
its North America segments based on their percentages of certain North
America sales. Expenses related to restructuring and other non-recurring
charges are not allocated to the reportable segments.
Financial data by segment for the thirteen and thirty-nine weeks ended:
<TABLE>
<CAPTION>
Thirteen Weeks Ended Thirty-nine Weeks Ended
October 2, October 3, October 2, October 3,
(Amounts in thousands) 1999 1998 1999 1998
---- ---- ---- ----
Revenues from external customers:
<S> <C> <C> <C> <C>
North America Transportation $ 210,377 $ 207,040 $ 655,762 $ 629,596
North America Other 127,777 105,412 360,650 330,828
Europe 93,527 96,711 301,977 279,612
International 21,476 18,109 60,506 55,841
----------- ------------ ----------- -----------
Total from reportable segments $ 453,157 $ 427,272 $ 1,378,895 $ 1,295,877
=========== ============ =========== ===========
<CAPTION>
Thirteen Weeks Ended Thirty-nine Weeks Ended
October 2, October 3, October 2, October 3,
(Amounts in thousands) 1999 1998 1999 1998
---- ---- ---- ----
Intersegment revenues:
<S> <C> <C> <C> <C>
North America Transportation $ -- $ -- $ -- $ 11
North America Other 60,291 56,870 192,401 171,262
Europe 2,188 1,931 7,403 5,293
International 2 1 5 48
----------- ------------ ----------- -----------
Total from reportable segments 62,481 58,802 199,809 176,614
Elimination of intersegment
revenue (62,481) (58,802) (199,809) (176,614)
----------- ------------ ----------- -----------
Total consolidated intersegment
revenue $ -- $ -- $ -- $ --
=========== ============ =========== ===========
Earnings:
North America Transportation $ 25,838 $ 18,451 $ 73,252 $ 47,509
North America Other 25,093 11,237 64,019 52,553
Europe (1,800) (2,786) 1,298 (2,884)
International (1,216) (1,180) (3,199) (4,201)
Financial Services 12,267 14,657 46,400 47,529
----------- ------------ ----------- -----------
Total from reportable segments 60,182 40,379 181,770 140,506
Restructuring and other
non-recurring charges (5,315) (133,121) (14,285) (133,121)
Interest expense (5,262) (5,883) (15,360) (15,365)
Other income (expense) - net 16,558 604 3,319 (1,624)
----------- ------------ ----------- -----------
Total consolidated earnings before taxes $ 66,163 $ (98,021) $ 155,444 $ (9,604)
=========== ============ =========== ===========
</TABLE>
13
<PAGE>
SNAP-ON INCORPORATED
NOTES TO CONSOLIDATED UNAUDITED FINANCIAL STATEMENTS (continued)
Financial data by segment as of: October 2, January 2,
(Amounts in thousands) 1999 1999
---- ----
Total assets:
North America Transportation $ 520,473 $ 516,372
North America Other 615,687 591,831
Europe 988,781 407,663
International 65,822 56,293
Financial Services 132,577 231,092
---------- ----------
Total from reportable segments $2,323,340 $1,803,251
========== ==========
14. In 1998, In August 1999, the corporation completed a $600 million revolving
credit facility to support its commercial paper program. A $200 million
credit facility is effective for a five-year term and terminates on August
23, 2004. A $400 million credit facility is a 364-day facility with a
one-year term out option which allows the Corporation to elect to borrow
under the credit facility for an additional year after the termination
date. These facilities were used to finance the Sandvik Saws and Tools
acquisition.
14
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Overview: The Corporation posted record net sales, earnings and earnings per
share for the third quarter and first nine months of 1999. Net sales increased
6.1% to $453.2 million for the third quarter and increased 6.4% to $1.4 billion
for the first nine months of 1999 as compared to the comparable 1998 periods of
$427.3 million and $1.3 billion. The increase in net sales in the third quarter
and first nine months of 1999 over 1998 was driven by increases across all
business segments in North America. Reported net earnings for the third quarter
and first nine months of 1999 were $42.6 million and $99.8 million as compared
to $74.0 million net loss and $17.4 million net loss in the comparable prior
year periods. Reported diluted earnings per share for the third quarter and
first nine months of 1999 were $0.72 per share and $1.69 per share as compared
to a loss of $1.24 per share and a loss of $0.29 per share in the comparable
prior year periods.
Net earnings for the third quarter, excluding other non-recurring charges
related to Project Simplify of $3.2 million after-tax, a gain on the forward
currency hedge on the US$400 million equivalent purchase price commitment for
the Sandvik acquisition of $9.8 million after-tax and a non-recurring $0.7
million after-tax charge resulting from settlement of litigation with the State
of Texas ("non-recurring items"), improved to $36.6 million from $22.5 million,
an increase of 63.1% from the same year-ago period. Net earnings for the first
nine months of 1999, excluding other non-recurring charges related to Project
Simplify of $8.8 million after-tax, a gain on a currency hedge of $1.1 million
after-tax and the settlement of litigation with the State of Texas of $0.7
million after-tax, increased 36.9% to $108.2 million, versus $79.1 million in
the same period a year ago. Net earnings for the third quarter of $22.5 million
and first nine months of 1998 of $79.1 million excludes $52.9 million after-tax
of restructuring charges and $43.6 million after-tax of non-recurring charges
related to the announcement of Project Simplify in the third quarter of 1998.
Diluted earnings per share for the 1999 third quarter were $0.62, excluding
non-recurring items. For the first nine months of 1999, diluted earnings per
share were $1.84, excluding non-recurring items.
Operating expenses as a percentage of net sales decreased to 37.6% in the third
quarter of 1999 from 41.3% in prior year period. For the nine month period,
operating expenses as a percentage of net sales decreased to 38.2% in 1999 from
40.5% in the prior year period. The declines in operating expenses as a
percentage of net sales reflect favorable operating leverage and the effects of
savings from Project Simplify.
The Corporation's simplification initiative, Project Simplify, is a broad
program of internal rationalizations, consolidations and reorganizations
intended to make the Corporation's business operations simpler and more
effective. The actions associated with Project Simplify, upon completion in the
first quarter of 2000, are expected to lead to the closing of six manufacturing
facilities, seven warehouses and 47 small offices in North America and Europe;
the elimination of more than 1,100 positions; the elimination of nearly 12,000
SKUs; and the consolidation of certain business units. As of the end of the
third quarter of 1999, 959 positions were eliminated, 50 facilities were closed
and the SKU reduction activities have yielded in excess of the planned 12,000
target. The closing of the remaining 10 facilities and the elimination of the
remaining 141 positions is expected to be completed by the first quarter of
2000. The Corporation expects to realize annual cost savings of approximately
15
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
$60 million from the initiative. The Corporation expects to achieve $30 million
in 1999 and $60 million in 2000.
In the third quarter and first nine months of 1999, $5.3 million ($3.2 million
or $0.06 per share after-tax) and $14.3 million ($8.8 million or $0.16 per share
after-tax) of other non-recurring charges were taken in connection with Project
Simplify, primarily for reassignment of personnel and costs for facilities
consolidation. Of the expected total charge of approximately $185.0 million to
be recorded through the first quarter of 2000, a total of $164.1 million in
pre-tax charges have been recorded through the third quarter of 1999 (including
$133.1 million in the third quarter of 1998, $16.8 million in the fourth quarter
of 1998, $1.9 million in the first quarter of 1999, $7.0 million in the second
quarter of 1999 and $5.3 million in the third quarter 1999). Approximately
one-half of the total charges will be non-cash with the remaining costs
requiring cash outflows which will be and are being provided from operations.
Finance income for the third quarter of 1999 was $12.3 million, a decrease of
16.3% from third quarter 1998 of $14.7 million, reflecting the expected decline
resulting from the reduced level of extended credit receivables. This lower
level is the result of the sale of extended credit receivables in the first
quarter of 1999 to Snap-on Credit LLC. Finance income for the first nine months
of 1999 was $46.4 million, a decrease of 2.4% from the comparable 1998 period of
$47.5 million. The decrease in finance income for the nine month period is due
to reduced level of extended credit receivables in the second and third quarters
of 1999 as compared to 1998, partially offset by gains on the initial sale of
non-recourse receivables to Snap-on Credit LLC and strong originations in the
first quarter of 1999.
Segment Results: North America Transportation sales consist of business
operations serving the dealer channel in the U.S. and Canada. For the third
quarter of 1999, sales were $210.4 million, an increase of 1.6% over third
quarter 1998 sales of $207.0 million. For the first nine months of 1999, sales
were $655.8 million, an increase of 4.2% over nine-month 1998 sales of $629.6
million. Renewed focus on Snap-on's traditional product lines - hand tools, tool
storage and power tools - resulted in a significantly better product mix during
the quarter and nine month periods. Lower emission related sales in the third
quarter contributed to a smaller increase in the third quarter than for the
nine-month period over last year.
North America Other sales consist of business operations serving the direct
sales and distributor channels in the U.S. and Canada, as well as exports from
the U.S. For the third quarter of 1999, sales were $127.8 million, an increase
of 21.2% over third quarter 1998 sales of $105.4 million. For the first nine
months of 1999, sales were $360.7 million, an increase of 9.0% over nine-month
1998 sales of $330.8 million. These increases reflect growth in diagnostics and
equipment sales to the Corporation's growing base of national and OEM accounts
as well as continued consistent growth in sales of information products. The
increase for the nine month period includes the negative effect of the reduction
in emissions sales and a discontinued product line during 1999.
Europe sales consist of business operations in Europe and Africa. For the third
quarter of 1999, sales were $93.5 million, an decrease of 3.3% over third
quarter 1998 sales of $96.7 million, reflecting the result of a negative
currency impact and continued weakness in exports (particularly in equipment) to
distributors in Eastern Europe and Asia, partially offset by sales from small
acquisitions completed
16
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
during the third quarter last year. For the first nine months of 1999, sales
were $302.0 million, an increase of 8.0% over nine-month 1998 sales of $279.6
million, reflecting sales from small acquisitions completed during the third
quarter last year, partially offset by negative currency impacts and continued
weakness in exports to distributors in Eastern Europe and Asia.
International sales consist of business operations in the Asia/Pacific and Latin
America markets, with the majority derived from Japan and Australia. For the
third quarter of 1999, sales were $21.5 million, an increase of 18.6% over third
quarter 1998 sales of $18.1 million. For the first nine months of 1999, sales
were $60.5 million, an increase of 8.4% over nine-month 1998 sales of $55.8
million. Although reported results increased year over year, operations continue
to be affected by the weakened business conditions in the Asia/Pacific region.
Sandvik Acquisition: On September 30, 1999, the Corporation completed its
acquisition of the Sandvik Saws and Tools business, formerly a wholly-owned
operating unit of Sandvik AB, for approximately US$400 million (SEK 3,300
million) in cash. Pursuant to the Share Purchase Agreement, the Corporation
acquired 100% of the voting securities of SB Tools S.a.r.l. ("SB Tools"), a
controlled entity of CTT Cutting Tool Technology B.V., a wholly-owned subsidiary
of Sandvik AB. Pursuant to a reorganization which occurred within the Sandvik
group of companies and at the time of closing, SB Tools was the owner, directly
and indirectly, of the companies within the Sandvik group conducting the line of
business known as the Sandvik Saws and Tools business. The acquired business
will operate within the Corporation as the Bahco Group. The acquisition was
financed through working capital and an expansion of an existing commercial
paper credit facility supported by a recently completed $600 million
multi-currency revolving credit facility. The acquisition is being accounted for
under the purchase method of accounting. The purchase includes facilities, a
number of brand names and trademarks, and certain other assets and liabilities,
all of which have been included in the October 2, 1999 consolidated balance
sheet. The assets and liabilities have been recorded at historical cost until an
audited financial statement and estimated fair market values of the assets
acquired and the liabilities assumed are available and final purchase price
adjustments are made. As a result, goodwill of $240.0 million has been recorded
representing the difference between the purchase price and the historical cost
of the assets and liabilities assumed. Upon determination of the estimated fair
market values of the assets acquired and liabilities assumed, the cost of the
acquisition will be allocated in accordance with criteria established under
Accounting Principles Bulletin No. 16 "Business Combinations" and goodwill will
be adjusted accordingly. Because the purchase occurred at the end of the
quarter, there was no effect recorded to the consolidated statement of earnings
for the quarter or nine months ended October 2, 1999.
The Bahco Group is a manufacturer and supplier of professional tool products and
employs approximately 2,400 people. Of those, approximately 1,000 employees are
in Sweden. Products are manufactured at 11 plants in Sweden, Germany, Portugal,
France, England, the United States and Argentina. The business had 1998 sales of
US$325 million (SEK 2,700 million) (60% Europe, 26% U.S. and Latin America, and
14% in Asia/Pacific and the rest of the world). The Corporation anticipates this
transaction to be neutral to earnings in the fourth quarter of 1999 and
accretive thereafter.
17
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
FINANCIAL CONDITION
The following discussion of financial condition excludes the effects of the
Bahco Group acquisition.
Liquidity: Cash and cash equivalents increased to $21.7 million at the end of
the third quarter from $15.0 million at the end of 1998. Working capital
increased to $683.0 million at third quarter end, from $621.8 million at the end
of 1998.
In September 1994, the Corporation filed a registration statement with the
Securities and Exchange Commission that allows the Corporation to issue from
time to time up to $300 million of unsecured indebtedness. In October 1995, the
Corporation issued $100 million of its notes to the public. The shelf
registration gives the Corporation financing flexibility to operate the
business.
In August 1999, the corporation completed a $600 million revolving credit
facility to support its commercial paper program. A $200 million credit facility
is effective for a five-year term and terminates on August 23, 2004. A $400
million credit facility is a 364-day facility with a one-year term out option
which allows the Corporation to elect to borrow under the credit facility for an
additional year after the termination date. These facilities were used to
finance the Sandvik Saws and Tools acquisition.
The Corporation believes it has sufficient sources of liquidity to support
working capital requirements, finance capital expenditures, pay dividends and
provide for costs of Project Simplify.
Accounts receivable less allowances: Accounts receivable less allowances
decreased 9.6% to $501.2 million at the end of the third quarter, compared with
$554.7 million at the end of 1998, mainly reflecting the sale of additional
non-securitized receivables to Snap-on Credit LLC in the first quarter of 1999.
Inventories: Inventories increased 10.8% to $415.9 million in the 1999 third
quarter, compared with $375.4 million at the end of 1998, reflecting normal
seasonal increases to support the higher fourth quarter level of seasonal sales
activity.
Liabilities: Total short-term and long-term debt was $692.6 million at the end
of the third quarter, compared with $339.8 million at the end of 1998,
reflecting the cash purchase of Sandvik Saws and Tools at the end of the third
quarter of 1999.
Average shares outstanding: Average shares outstanding for diluted EPS and basic
EPS in 1999's third quarter were 58.9 million and 58.5 million shares versus
60.0 million for both diluted EPS and basic EPS in last year's third quarter.
Average shares outstanding for diluted EPS and basic EPS in the first nine
months of 1999 were 58.9 million and 58.5 million shares versus 59.4 million for
both diluted EPS and basic EPS in last year's nine month period.
Share repurchase: In 1996, the Corporation's board of directors approved an
ongoing authorization to repurchase stock in an amount equivalent to that
necessary to prevent dilution created by shares issued for stock options,
employee and dealer stock purchase plans, and other corporate purposes. On June
27, 1997, the Corporation's board of directors authorized the repurchase of
$100.0 million of the Corporation's common stock over a two-year period. On June
26, 1998, the Corporation's board of directors authorized an additional share
repurchase program aggregating $100.0 million of the
18
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
Corporation's common stock. In the first quarter of 1999, the Corporation's
board of directors authorized an additional share repurchase program of $50.0
million. The Corporation repurchased $14.7 million or 492,800 shares in the
first quarter of 1999. The Corporation did not repurchase any additional shares
of its common stock in the second or third quarter of 1999. The Corporation's
outstanding authorizations are approximately $140 million.
Foreign currency: The Corporation operates in a number of countries and, as a
result, is exposed to changes in foreign currency exchange rates. Most of these
exposures are managed on a consolidated basis to take advantage of natural
offsets through netting. To the extent that the net exposures are hedged,
forward contracts are used. Refer to Note 9 for a discussion of the
Corporation's accounting policies for the use of derivative instruments and for
a discussion of the purchase price commitment hedge used in the Bahco Group
acquisition.
Year 2000 Update: The Corporation is engaged in a comprehensive project
involving its information systems, embedded systems, third-party systems, and
products. The objective of this project is to identify, develop, implement and
test any modifications that are required so that these systems and products will
achieve a Year 2000 date conversion with no disruption to the Corporation's
business operations. A committee has been established and given the
responsibility for achieving this objective.
For the Corporation's information systems, the committee has completed the risk
assessment phase of this project. In North America, the implementation of the
BaaN enterprise-wide system, which is Year 2000 compliant, has been completed.
The remediation and testing of the Corporation's critical business systems have
been completed. No significant issues have been identified. The Corporation
believes its critical business systems will continue to function properly
before, during, and after the century date change.
The Corporation has completed the risk assessment, remediation and testing of
the critical embedded systems at its facilities and manufacturing plants
worldwide. No significant issues have been identified. The Corporation believes
it will be able to manufacture and distribute products without disruption due to
date related problems with internal systems.
For third-party systems, the Corporation has communicated with suppliers,
dealers, financial institutions and others with which the Corporation does
business. Substantially all of those contacted indicated that they either are or
plan on a timely basis to be Year 2000 compliant.
The Corporation tested its current product line for Year 2000 compliance and no
date-related issues have been reported in these products. The Corporation also
tested its previously manufactured products likely to still be in use and has
established mechanisms to address any date related issues found and to
communicate with customers regarding the handling of these issues, whether or
not covered by the product warranty. The Corporation does not expect any costs
associated with these product efforts to be material.
19
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
The Corporation could potentially experience disruptions to some mission
critical operations as a result of Year 2000 problems. The Corporation believes
that its most reasonably likely worst-case Year 2000 scenarios would relate to
problems outside of the Corporation's control rather than with its own products
or internal systems. These problems might include failure by suppliers,
customers and other third parties to remediate their own potential year 2000
problems, as well as risks related to infrastructure (e.g., electricity supply
and water and sewer service). Nonetheless, the Corporation has developed
contingency plans for its critical business systems and processes to deal with
potential internal issues. These plans include the following:
o Enhanced support for the information technology infrastructure and
systems, including twenty-four hours, seven days a week support for the
corporate data center operations which includes the corporate enterprise
BaaN system, with arrangements for additional support from external
resources, if necessary.
o Procedures to deal with unanticipated date-related problems at
significant suppliers, including assistance with manual workarounds and
the use of alternate suppliers. In limited situations, the Corporation
could not identify an alternate supplier.
o Procedures for routing customer orders to and shipping product from
alternate distribution centers.
o Creation of a central issues management process to monitor, manage and
communicate regarding any issues or disruptions arising in the period
before, during and after the century date change, with special
arrangements for staff to be on-site or on-call in this period to react
quickly to any critical issues that may arise.
The Corporation's contingency plans cannot guarantee that mission critical
systems or business functions will not be affected by Year 2000 problems,
especially those outside the Corporation's control.
Based on information currently known to it, the Corporation believes that all
critical areas of its business are Year 2000 compliant and expects the
non-business critical areas to be Year 2000 compliant by the end of the fourth
quarter of 1999. None of the Corporation's other information technology projects
have been delayed as a result of these issues. The Corporation believes that
total costs for all of its Year 2000 compliance activities will approximate
between $4 million and $5.4 million through December 1999. Through the end of
the third quarter of 1999, the Corporation has spent $3.7 million on these Year
2000 issues, with funding provided by cash flows from operations. The estimated
costs do not include any potential costs related to customer or other claims, or
potential amounts related to executing contingency plans, such as costs incurred
as a result of an infrastructure or supplier failure. All cost estimates are
based on the current assessment of the projects and are subject to change as the
projects progress. Based on currently available information, the Corporation
does not believe that the Year 2000 matters discussed above related to internal
systems, embedded systems or products sold to customers will have a material
adverse effect on the Corporation's financial condition or its results of
operations. There can be no assurance that the failure to ensure Year 2000
capability by a supplier, customer or another party would not have a material
adverse effect on the Corporation's financial condition or its results of
operations.
On September 30, 1999, the Corporation acquired the Sandvik Saws and Tools
Division of Sandvik AB, now known as the Bahco Group. The Corporation has
reviewed information relative to Bahco's
20
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
Year 2000 compliance program during its pre-closing due diligence and
subsequently and has found a limited degree of non-compliance. The Corporation
has entered into an Information Technology Agreement with Sandvik AB and has
assurances that any Year 2000 issues will be resolved in a timely manner. The
Corporation does not expect this to have a material adverse effect on the
Corporation's financial condition or its results of operations.
Euro Conversion: On January 1, 1999, certain member countries of the European
Union established fixed conversion rates between their existing currencies
("legacy currencies") and one common currency - the euro. The euro trades on
currency exchanges and may be used in business transactions. Beginning in
January 2002, the new euro-denominated bills and coins will be used, and legacy
currencies will be withdrawn from circulation. The Corporation's operating
subsidiaries affected by the euro conversion are developing plans to address the
systems and business issues affected by the euro currency conversion. These
issues include, among others, (i) the need to adapt computer and other business
systems and equipment to accommodate euro-denominated transactions, and (ii) the
competitive impact of cross-border price transparency, which may affect pricing
strategies. The Corporation does not expect this conversion to have a material
impact on its financial condition or results of operations.
Safe Harbor: Statements in this document that are not historical facts,
including statements (i) that include the words "believes," "expects,"
"anticipates," or "estimates" or words of similar importance with reference to
the Corporation or management; (ii) specifically identified as forward-looking;
or (iii) describing the Corporation's or management's future plans, objectives
or goals, are forward-looking statements. The Corporation or its representatives
may also make similar forward-looking statements from time to time orally or in
writing. The Corporation cautions the reader that these statements are subject
to risks, uncertainties or other factors that could cause (and in some cases
have caused) actual results to differ materially from those described in any
such statement. Those important factors include the timing and progress with
which the Corporation can continue to implement the Project Simplify
initiatives; the Year 2000 issue; the Corporation's ability to withstand
external negative factors including changes in trade, monetary and fiscal
policies, laws and regulations, or other activities of governments or their
agencies; significant changes in the current competitive environment, inflation
or employee and labor relations; currency fluctuations or the material worsening
of the economic and political situation in Asia or other parts of the world; and
the achievement of productivity improvements and cost reductions. These factors
may not constitute all factors that could cause actual results to differ
materially from those discussed in any forward-looking statement. The
Corporation operates in a continually changing business environment and new
factors emerge from time to time. The Corporation cannot predict such factors
nor can it assess the impact, if any, of such factors on the Corporation or its
results. Accordingly, forward-looking statements should not be relied upon as a
prediction of actual results. The Corporation disclaims any responsibility to
update any forward-looking statement provided in this document.
Item 3: Qualitative and Qualitative Disclosures About Market Risk
Pursuant to Item 305 of Regulation S-K, there were no material changes for the
quarter ended October 2, 1999.
21
<PAGE>
PART II. OTHER INFORMATION
Item 6: Exhibits and Reports on Form 8-K
Item 6(a): Exhibits
Exhibit 10(a) Five Year Credit Agreement between the Corporation and Salomon
Smith Barney Inc, Banc One Capital Markets Inc. and The First
National Bank of Chicago.
Exhibit 10(b) 364-Day Credit Agreement between the Corporation and Salomon
Smith Barney Inc, Banc One Capital Markets Inc. and The First
National Bank of Chicago.
Exhibit 27 Financial Data Schedule
Item 6(b): Reports on Form 8-K Filed During the Reporting Period
Date Filed Date of Report Item
October 15, 1999 September 30, 1999 Item 2. The Corporation filed a
report outlining the
completion of its
acquisition of Sandvik
Saws and Tools.
22
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, Snap-on
Incorporated has duly caused this report to be signed on its behalf by the
undersigned duly authorized persons.
SNAP-ON INCORPORATED
Date: November 16, 1999 /s/ R. A. Cornog
R. A. CORNOG
(Chairman, President and Chief Executive Officer)
Date: November 16, 1999 /s/ N. T. Smith
N. T. SMITH
(Principal Accounting Officer and Controller)
23
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
Exhibit 10(a) Five Year Credit Agreement between the Corporation and Salomon
Smith Barney Inc, Banc One Capital Markets Inc. and The First
National Bank of Chicago.
Exhibit 10(b) 364-Day Credit Agreement between the Corporation and Salomon
Smith Barney Inc, Banc One Capital Markets Inc. and The First
National Bank of Chicago.
Exhibit 27 Financial Data Schedule
FIVE YEAR CREDIT AGREEMENT
Dated as of August 23, 1999
SNAP-ON INCORPORATED, a Delaware corporation (the "Borrower"), the
banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, SALOMON SMITH BARNEY INC., as
lead arranger and book manager, BANC ONE CAPITAL MARKETS INC., as co-arranger,
CITIBANK, N.A. ("Citibank"), as administrative agent (the "Agent") for the
Lenders (as hereinafter defined) and THE FIRST NATIONAL BANK OF CHICAGO, as
syndication agent, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive
Bid Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means (a) in the case of Advances
denominated in Dollars, the account of the Agent maintained by the
Agent at Citibank at its office at 399 Park Avenue, New York, New York
10043, Account No. 36852248, Attention: Bank Loan Syndications, (b) in
the case of Advances denominated in any Foreign Currency, the account
of the Sub-Agent designated in writing from time to time by the Agent
to the Borrower and the Lenders for such purpose and (c) in any such
case, such other account of the Agent as is designated in writing from
time to time by the Agent to the Borrower and the Lenders for such
purpose.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurocurrency Lending Office in the case
of a Eurocurrency Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the Agent
as its Applicable Lending Office with respect to such Competitive Bid
Advance.
"Applicable Margin" means (a) for Base Rate Advances, 0% per
annum and (b) for Eurocurrency Rate Advances, a percentage per annum
determined by reference to the Public Debt Rating in effect on such
date as set forth below:
<PAGE>
========================== ===================================
Public Debt Rating Applicable Margin for
S&P/Moody's Eurocurrency Rate Advances
========================== ===================================
Level 1
AA+ or Aa1 0.090%
========================== ===================================
Level 2
Lower than Level 1 but 0.135%
at least AA- or Aa3
========================== ===================================
Level 3
Lower than Level 2 but 0.175%
at least A+ or A1
========================== ===================================
Level 4
Lower than Level 3 but 0.210%
at least A or A2
========================== ===================================
Level 5
Lower than Level 4 but 0.375%
at least BBB+ or Baa1
========================== ===================================
Level 6
Lower than Level 5 but 0.525%
at least BBB or Baa2
========================== ===================================
Level 7
Lower than Level 6 0.800%
========================== ===================================
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
========================== ===================================
Public Debt Rating Applicable Percentage
S&P/Moody's
========================== ===================================
Level 1
AA+ or Aa1 0.060%
========================== ===================================
Level 2
Lower than Level 1 but 0.065%
at least AA- or Aa3
========================== ===================================
Level 3
Lower than Level 2 but 0.075%
at least A+ or A1
========================== ===================================
Level 4
Lower than Level 3 but 0.090%
at least A or A2
========================== ===================================
Level 5
Lower than Level 4 but 0.125%
at least BBB+ or Baa1
========================== ===================================
Level 6
Lower than Level 5 but 0.150%
at least BBB or Baa2
========================== ===================================
Level 7
Lower than Level 6 0.200%
========================== ===================================
"Applicable Utilization Fee" means, as of any date that the
aggregate Advances exceed 25% of the aggregate Commitments, a
percentage per annum determined by reference to the Public Debt Rating
in effect on such date as set forth below:
<PAGE>
========================== ===================================
Public Debt Rating Applicable Utilization Fee
S&P/Moody's
========================== ===================================
Level 1
AA+ or Aa1 0.075%
========================== ===================================
Level 2
Lower than Level 1 but 0.100%
at least AA- or Aa3
========================== ===================================
Level 3
Lower than Level 2 but 0.100%
at least A+ or A1
========================== ===================================
Level 4
Lower than Level 3 but 0.125%
at least A or A2
========================== ===================================
Level 5
Lower than Level 4 but 0.125%
at least BBB+ or Baa1
========================== ===================================
Level 6
Lower than Level 5 but 0.150%
at least BBB or Baa2
========================== ===================================
Level 7
Lower than Level 6 0.200%
========================== ===================================
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
<PAGE>
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance
denominated in Dollars that bears interest as provided in Section
2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances or
LIBO Rate Advances, on which dealings are carried on in the London
interbank market and banks are open for business in London and in the
country of issue of the currency of such Eurocurrency Rate Advance or
LIBO Rate Advance (or, in the case of an Advance denominated in the
euro, in Frankfurt, Germany) and, if the applicable Business Day
relates to any Local Rate Advances on which banks are open for business
in the country of issue of the currency of such Local Rate Advance.
"Commitment" means as to any Lender (a) the Dollar amount set
forth opposite such Lender's name on the signature pages hereof or (b)
if such Lender has entered into any Assignment and Acceptance, the
Dollar amount set forth for such Lender in the Register maintained by
the Agent pursuant to Section 8.07(d), as such amount may be reduced
pursuant to Section 2.05.
"Committed Currencies" means lawful currency of the United
Kingdom of Great Britain and Northern Ireland, lawful currency of the
Federal Republic of Germany, lawful currency of the Republic of France,
lawful currency of The Swiss Federation, lawful currency of Spain,
lawful currency of Italy, lawful currency of Canada, lawful currency of
Australia, lawful currency of Japan, lawful currency of the European
Economic and Monetary Union and any other currency that is freely
convertible into Dollars and available to all Lenders.
<PAGE>
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance, a LIBO Rate Advance or a Local Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from a Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender, but does not include any such
information that is or becomes generally available to the public or
that is or becomes available to the Agent or such Lender from a source
other than the Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 90 days incurred in
the ordinary course of such Person's business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all
net obligations of such Person in respect of Hedge Agreements, (h) all
Debt of others referred to in clauses (a) through (g) above or clause
(i) below guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (1) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt, (2) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or
(4) otherwise to assure a creditor against loss, and (i) all Debt
referred to in clauses (a) through (h) above secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise,
to be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Debt;
provided, however, that the term "Debt" shall not include obligations
incurred in connection with sales of accounts receivable or other asset
securitization transactions by the Borrower or any Subsidiary or
Affiliate of the Borrower, except to the extent that such transaction
creates a liability which is required by generally accepted accounting
principles to be included on the Consolidated balance sheet of the
Borrower and its Subsidiaries.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
<PAGE>
"Dollars" and the "$" sign each means lawful currency of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 8.07, the Borrower,
such approval not to be unreasonably withheld or delayed; provided,
however, that neither the Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equivalent" in Dollars of any Foreign Currency on any date
means the equivalent in Dollars of such Foreign Currency determined by
using the quoted spot rate at which the Sub-Agent's principal office in
London offers to exchange Dollars for such Foreign Currency in London
prior to 4:00 P.M. (London time) (unless otherwise indicated by the
terms of this Agreement) on such date as is required pursuant to the
terms of this Agreement, and the "Equivalent" in any Foreign Currency
of Dollars means the equivalent in such Foreign Currency of Dollars
determined by using the quoted spot rate at which the Sub-Agent's
principal office in London offers to exchange such Foreign Currency for
Dollars in London prior to 4:00 P.M. (London time) (unless otherwise
indicated by the terms of this Agreement) on such date as is required
pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in
<PAGE>
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of the Borrower or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by the Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for the imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to
a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurocurrency
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time
specify to the Borrower and the Agent.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upward to the
nearest whole multiple of 1/100 of 1% per annum) appearing on Dow Jones
Markets Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars or the applicable
Committed Currency at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period or, if for any reason such rate is
not available, the average (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in Dollars or the
applicable Committed Currency is offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurocurrency Rate Advance comprising
part of such Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage
for such Interest Period. If the Dow Jones Markets Page 3750 (or any
successor page) is unavailable, the Eurocurrency Rate for any Interest
Period for each Eurocurrency Rate Advance comprising part of the same
Revolving Credit Borrowing shall be determined by the Agent on the
basis of applicable rates furnished to and received by the Agent from
the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in Dollars or a Committed Currency that bears interest as
provided in Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period
for all Eurocurrency Rate Advances or LIBO Rate Advances comprising
part of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any
<PAGE>
other category of liabilities that includes deposits by reference to
which the interest rate on Eurocurrency Rate Advances or LIBO Rate
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i), which Advances shall be denominated in Dollars or in any
Foreign Currency.
"Foreign Currency" means any Committed Currency and any other
lawful currency (other than Dollars) that is freely transferable or
convertible into Dollars.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Information Memorandum" means the information memorandum
dated July 23, 1999 used by the Agent in connection with the
syndication of the Commitments.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurocurrency Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurocurrency Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to Eurocurrency Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as the Borrower
may, upon notice received by the Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same
Revolving Credit Borrowing or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing shall be
of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the
<PAGE>
next succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum) appearing on Dow Jones Markets
Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars or the applicable Committed
Currency at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period or, if for any reason such rate is not available,
the average (rounded upward to the nearest whole multiple of 1/100 of
1% per annum, if such average is not such a multiple) of the rate per
annum at which deposits in Dollars or the applicable Foreign Currency
is offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to the amount that
would be the Reference Banks' respective ratable shares of such
Borrowing if such Borrowing were to be a Revolving Credit Borrowing to
be outstanding during such Interest Period and for a period equal to
such Interest Period by (b) a percentage equal to 100% minus the
Eurocurrency Rate Reserve Percentage for such Interest Period. If the
Dow Jones Markets Telerate Page 3750 (or any successor page) is
unavailable, the LIBO Rate for any Interest Period for each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"LIBO Rate Advances" means a Competitive Bid Advance
denominated in Dollars or in any Foreign Currency and bearing interest
based on the LIBO Rate.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Local Rate Advance" means a Competitive Bid Advance
denominated in any Foreign Currency sourced from the jurisdiction of
issuance of such Foreign Currency and bearing interest at a fixed rate.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or the Borrower
and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or the Borrower
and its Subsidiaries taken as a whole, (b) the rights and remedies of
the Agent or any Lender under this Agreement or any Note or (c) the
ability of the Borrower to perform its obligations under this Agreement
or any Note.
<PAGE>
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Note" means a Revolving Credit Note or a Competitive Bid
Note.
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Payment Office" means, for any Foreign Currency, such office
of Citibank as shall be from time to time selected by the Agent and
notified by the Agent to the Borrower and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 45
days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; and (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Public Debt Rating" means, as of any date, the lowest rating
that has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Borrower. For purposes of the foregoing,
(a) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be determined by reference to the
available rating; (b) if neither S&P nor Moody's shall have in effect a
Public Debt Rating, the Applicable Margin, the Applicable Percentage
and the Applicable Utilization Fee will be set in accordance with Level
7 under the definition of "Applicable Margin", "Applicable Percentage"
or "Applicable Utilization Fee", as the case may be; (c) if the ratings
established by S&P and Moody's shall fall within different levels, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the higher of such ratings,
provided that if the lower of such ratings is more than one level below
the higher of such ratings, the Applicable Percentage, the Applicable
Margin and the Applicable Utilization Fee shall be determined by
reference to the level that is one level above such lower rating; (d)
if any rating established by S&P or Moody's shall be changed, such
change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (e) if
S&P or Moody's shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or
<PAGE>
Moody's, as the case may be, shall refer to the then equivalent rating
by S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, The First National Bank of
Chicago and Bank of America, N.A.
"Register" has the meaning specified in Section 8.07(d).
"Related Person" means each of the following: (a) the
Borrower, (b) any Subsidiary of the Borrower or (c) any employee
benefit plan of the Borrower or of any Subsidiary of the Borrower or
any Person organized, appointed or established by the Borrower for or
pursuant to the terms of any such plan.
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount
(based on the Equivalent in Dollars at such time) of the Revolving
Credit Advances owing to Lenders, or, if no such principal amount is
then outstanding, Lenders having at least a majority in interest of the
Commitments.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurocurrency Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Lender, delivered pursuant to a
request made under Section 2.16 in substantially the form of Exhibit
A-1 hereto, evidencing the aggregate indebtedness of the Borrower to
such Lender resulting from the Revolving Credit Advances made by such
Lender.
"Sandvik Funding Date" has the meaning specified in Section
3.02.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Sub-Agent" means Citibank International plc.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries; it
being understood that Snap-On Credit LLC, which is 50% owned by the
Borrower, shall not be deemed to be a "Subsidiary" of the Borrower for
purposes of this Agreement.
"Termination Date" means the earlier of (a) August 23, 2004
and (b) the date of termination in whole of the Commitments pursuant to
Section 2.05 or 6.01.
<PAGE>
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an aggregate amount
(based in respect of any Revolving Credit Advances to be denominated in a
Committed Currency on the Equivalent in Dollars determined on the date of
delivery of the applicable Notice of Revolving Credit Borrowing) not to exceed
at any time outstanding such Lender's Commitment, provided that the aggregate
amount of the Commitments of the Lenders shall be deemed used from time to time
to the extent of the aggregate amount (based in respect of any Competitive Bid
Advance denominated in a Foreign Currency on the Equivalent in Dollars at such
time) of the Competitive Bid Advances then outstanding and such deemed use of
the aggregate amount of the Commitments shall be allocated among the Lenders
ratably according to their respective Commitments (such deemed use of the
aggregate amount of the Commitments being a "Competitive Bid Reduction");
provided, further, that until the Sandvik Funding Date, the aggregate amount of
all Revolving Credit Advances made by any Lender shall not exceed one third of
such Lender's Commitment. Each Revolving Credit Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof (or the Equivalent thereof in any Committed Currency determined on the
date of delivery of the applicable Notice of Revolving Credit Borrowing) and
shall consist of Revolving Credit Advances of the same Type made on the same day
by the Lenders ratably according to their respective Commitments. Within the
limits of each Lender's Commitment, the Borrower may borrow under this Section
2.01, prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each Revolving
Credit Borrowing shall be made on notice, given not later than (x) 11:00 A.M.
(New York City time) on the third Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in Dollars, (y) 4:00 P.M.
(London time) on the third Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency,
or (z) 11:00 A.M. (New York City time) on the first Business Day prior to the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Base Rate Advances, by the Borrower to the Agent
(and, in the case of a Revolving Credit Borrowing consisting of Eurocurrency
Rate Advances, simultaneously to the Sub-Agent), which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a Revolving
Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be by
telephone, confirmed immediately in writing, or telecopier or telex in
substantially the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such Revolving Credit Borrowing, (ii) Type of Advances comprising
such Revolving Credit Borrowing, (iii) aggregate amount of such Revolving Credit
Borrowing, and (iv) in the case of a Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances, initial Interest Period and currency for each such
Revolving Credit Advance. Each Lender shall, before 11:00 A.M. (New York City
time) on the date of such Revolving Credit Borrowing, in the case of a Revolving
Credit Borrowing consisting of Advances denominated in Dollars, and before 4:00
P.M. (London time) on the date of such Revolving Credit Borrowing, in the case
of a Revolving Credit Borrowing consisting of
<PAGE>
Eurocurrency Rate Advances denominated in any Committed Currency, make available
for the account of its Applicable Lending Office to the Agent at the applicable
Agent's Account, in same day funds, such Lender's ratable portion of such
Revolving Credit Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Agent
will make such funds available to the Borrower at the Agent's address referred
to in Section 8.02 or at the applicable Payment Office, as the case may be.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurocurrency Rate Advances for any Revolving
Credit Borrowing if the aggregate amount of such Revolving Credit Borrowing is
less than $10,000,000 or if the obligation of the Lenders to make Eurocurrency
Rate Advances shall then be suspended pursuant to Section 2.08 or 2.12 and (ii)
the Eurocurrency Rate Advances may not be outstanding as part of more than six
separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Revolving Credit Borrowing that the
related Notice of Revolving Credit Borrowing specifies is to be comprised of
Eurocurrency Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Revolving Credit
Borrowing for such Revolving Credit Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to
the date of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such ratable
portion available to the Agent, such Lender and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, the higher of (A) the interest rate applicable at the time
to Revolving Credit Advances comprising such Revolving Credit Borrowing and (B)
the cost of funds incurred by the Agent in respect of such amount and (ii) in
the case of such Lender, (A) the Federal Funds Rate in the case of Advances
denominated in Dollars or (B) the cost of funds incurred by the Agent in respect
of such amount in the case of Advances denominated in Committed Currencies. If
such Lender shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Revolving Credit Advance as part of such
Revolving Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally
agrees that the Borrower may make Competitive Bid Borrowings under this Section
2.03 from time to time on any Business Day during the period from the date
hereof until the date occurring 30 days prior to the Termination Date in the
manner set forth below; provided that, following the making of each Competitive
Bid Borrowing, the aggregate amount of the Advances then outstanding (based in
respect of any Advance denominated in a Foreign Currency on the Equivalent in
Dollars at the time such Competitive Bid Borrowing is requested) shall not
exceed the aggregate amount of the Commitments of the Lenders (computed without
regard to any Competitive Bid Reduction); provided further that until the
Sandvik Funding Date, following the making of each Competitive Bid Borrowing,
the aggregate amount of the Advances then outstanding (based in respect of any
Advance denominated in a Foreign Currency on the Equivalent in Dollars at the
time such Competitive Bid Borrowing is requested) shall not exceed
<PAGE>
the aggregate amount of one third of the Commitments of the Lenders (computed
without regard to any Competitive Bid Reduction).
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent (and, in the case of a
Competitive Bid Borrowing not consisting of Fixed Rate Advances or LIBO
Rate Advances to be denominated in Dollars, simultaneously to the
Sub-Agent), by telecopier or telex, a notice of a Competitive Bid
Borrowing (a "Notice of Competitive Bid Borrowing"), in substantially
the form of Exhibit B-2 hereto, specifying therein the requested (A)
date of such proposed Competitive Bid Borrowing, (B) aggregate amount
of such proposed Competitive Bid Borrowing, (C) interest rate basis and
day count convention to be offered by the Lenders, (D) currency of such
proposed Competitive Bid Borrowing, (E) in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances, Interest Period, or in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances or Local Rate Advances, maturity date for repayment of each
Fixed Rate Advance or Local Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than
the date occurring seven days after the date of such Competitive Bid
Borrowing or later than the earlier of (I) 180 days after the date of
such Competitive Bid Borrowing and (II) the Termination Date), (F)
interest payment date or dates relating thereto, (G) location of the
Borrower's account to which funds are to be advanced and (H) other
terms (if any) to be applicable to such Competitive Bid Borrowing, not
later than (w) 10:00 A.M. (New York City time) at least two Business
Days prior to the date of the proposed Competitive Bid Borrowing, if
the Borrower shall specify in the Notice of Competitive Bid Borrowing
that the rates of interest to be offered by the Lenders shall be fixed
rates per annum (the Advances comprising any such Competitive Bid
Borrowing being referred to herein as "Fixed Rate Advances") and that
the Advances comprising such proposed Competitive Bid Borrowing shall
be denominated in Dollars, (x) 10:00 A.M. (New York City time) at least
four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall specify in the Notice of Competitive
Bid Borrowing that the Advances comprising such Competitive Bid
Borrowing shall be LIBO Rate Advances denominated in Dollars, (y) 10:00
A.M. (London time) at least two Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall specify in
the Notice of Competitive Bid Borrowing that the Advances comprising
such proposed Competitive Bid Borrowing shall be either Fixed Rate
Advances denominated in any Foreign Currency or Local Rate Advances
denominated in any Foreign Currency and (z) 10:00 A.M. (London time) at
least four Business Days prior to the date of the proposed Competitive
Bid Borrowing, if the Borrower shall instead specify in the Notice of
Competitive Bid Borrowing that the Advances comprising such Competitive
Bid Borrowing shall be LIBO Rate Advances denominated in any Foreign
Currency. The Agent shall in turn promptly notify each Lender of each
request for a Competitive Bid Borrowing received by it from the
Borrower by sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Agent or the Sub-Agent, as the case may be
(which shall give prompt notice thereof to the Borrower), (A) before
9:30 A.M. (New York City time) on the date of such proposed Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances denominated in Dollars, (B) before 10:00 A.M. (New
York City time) three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, denominated in Dollars, (C) before
12:00 noon (London time) on the Business Day prior to the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of either Fixed Rate Advances denominated in any
Foreign Currency or Local Rate Advances denominated in any Foreign
Currency and (D) before 12:00 noon (London time) on the third Business
Day prior to the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances denominated in any Foreign Currency, of the minimum amount and
maximum amount of each Competitive Bid Advance which such Lender would
be willing to make as part of such proposed Competitive Bid Borrowing
(which amounts or the Equivalent thereof in Dollars, as the case may
be, of such proposed Competitive Bid may, subject to the provisos to
the first sentence of this Section
<PAGE>
2.03(a), exceed such Lender's Commitment, if any), the rate or rates of
interest therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance; provided that if the Agent in
its capacity as a Lender shall, in its sole discretion, elect to make
any such offer, it shall notify the Borrower of such offer at least 30
minutes before the time and on the date on which notice of such
election is to be given to the Agent or to the Sub-Agent, as the case
may be, by the other Lenders. If any Lender shall elect not to make
such an offer, such Lender shall so notify the Agent before 10:00 A.M.
(New York City time) or the Sub-Agent before 12:00 noon (London time)
on the date on which notice of such election is to be given to the
Agent or to the Sub-Agent, as the case may be, by the other Lenders,
and such Lender shall not be obligated to, and shall not, make any
Competitive Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Bid Advance
as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, (A) before 10:30 A.M. (New
York City time) on the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances denominated in Dollars, (B) before 11:00 A.M. (New York City
time) three Business Days before the date of such proposed Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances denominated in Dollars, (C) before 3:00 P.M. (London
time) on the Business Day prior to the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of either Fixed Rate Advances denominated in any Foreign
Currency or Local Rate Advances denominated in any Foreign Currency and
(D) before 3:00 P.M. (London time) on the third Business Day prior to
the date of such Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances denominated
in any Foreign Currency, either:
(x) cancel such Competitive Bid Borrowing by giving the
Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion,
by giving notice to the Agent or to the Sub-Agent, as the case
may be, of the amount of each Competitive Bid Advance (which
amount shall be equal to or greater than the minimum amount, and
equal to or less than the maximum amount, notified to the
Borrower by the Agent or the Sub-Agent, as the case may be, on
behalf of such Lender for such Competitive Bid Advance pursuant
to paragraph (ii) above) to be made by each Lender as part of
such Competitive Bid Borrowing, and reject any remaining offers
made by Lenders pursuant to paragraph (ii) above by giving the
Agent or the Sub-Agent, as the case may be, notice to that
effect. The Borrower shall accept the offers made by any Lender
or Lenders to make Competitive Bid Advances in order of the
lowest to the highest rates of interest offered by such Lenders.
If two or more Lenders have offered the same interest rate, the
amount to be borrowed at such interest rate will be allocated
among such Lenders in proportion to the amount that each such
Lender offered at such interest rate.
(iv) If the Borrower notifies the Agent or the Sub-Agent, as
the case may be, that such Competitive Bid Borrowing is cancelled
pursuant to paragraph (iii)(x) above, the Agent or the Sub-Agent, as
the case may be, shall give prompt notice thereof to the Lenders and
such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent
or the Sub-Agent, as the case may be, shall in turn promptly notify (A)
each Lender that has made an offer as described in paragraph (ii)
above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the Borrower,
(B) each Lender that is to make a Competitive Bid Advance as part of
such Competitive Bid Borrowing, of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon
<PAGE>
receipt, that the Agent or the Sub-Agent, as the case may be, has
received forms of documents appearing to fulfill the applicable
conditions set forth in Article III. Each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing
shall, before 11:00 A.M. (New York City time), in the case of
Competitive Bid Advances to be denominated in Dollars or 11:00 A.M.
(London time), in the case of Competitive Bid Advances to be
denominated in any Foreign Currency, on the date of such Competitive
Bid Borrowing specified in the notice received from the Agent or the
Sub-Agent, as the case may be, pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice
from the Agent or the Sub-Agent, as the case may be pursuant to clause
(C) of the preceding sentence, make available for the account of its
Applicable Lending Office to the Agent (x) in the case of a Competitive
Bid Borrowing denominated in Dollars, at its address referred to in
Section 8.02, in same day funds, such Lender's portion of such
Competitive Bid Borrowing in Dollars and (y) in the case of a
Competitive Bid Borrowing in a Foreign Currency, at the Payment Office
for such Foreign Currency as shall have been notified by the Agent to
the Lenders prior thereto, in same day funds, such Lender's portion of
such Competitive Bid Borrowing in such Foreign Currency. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Agent of such funds, the Agent will make such
funds available to the Borrower at the location specified by the
Borrower in its Notice of Competitive Bid Borrowing. Promptly after
each Competitive Bid Borrowing the Agent will notify each Lender of the
amount of the Competitive Bid Borrowing, the consequent Competitive Bid
Reduction and the dates upon which such Competitive Bid Reduction
commenced and will terminate.
(vi) If the Borrower notifies the Agent or the Sub-Agent, as
the case may be, that it accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, such notice of
acceptance shall be irrevocable and binding on the Borrower. The
Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or
before the date specified in the related Notice of Competitive Bid
Borrowing for such Competitive Bid Borrowing the applicable conditions
set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Competitive Bid Advance to be made
by such Lender as part of such Competitive Bid Borrowing when such
Competitive Bid Advance, as a result of such failure, is not made on
such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$10,000,000 (or the Equivalent thereof in any Foreign Currency, determined as of
the time of the applicable Notice of Competitive Bid Borrowing) or an integral
multiple of $1,000,000 (or the Equivalent thereof in any Foreign Currency,
determined as of the time of the applicable Notice of Competitive Bid Borrowing)
in excess thereof and, following the making of each Competitive Bid Borrowing,
the Borrower shall be in compliance with the limitations set forth in the
provisos to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under this Section 2.03, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.03, provided that a Competitive Bid Borrowing shall not be made within three
Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Agent for the account of each
Lender that has made a Competitive Bid Advance, on the maturity date of each
Competitive Bid Advance (such maturity date being that specified by the Borrower
for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance),
the then unpaid principal amount of such Competitive Bid Advance. The Borrower
shall have no right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive
Bid Note evidencing such Competitive Bid Advance.
<PAGE>
(e) The Borrower shall pay interest on the unpaid principal amount of
each Competitive Bid Advance from the date of such Competitive Bid Advance to
the date the principal amount of such Competitive Bid Advance is repaid in full,
at the rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) above, payable on the interest payment date or
dates specified by the Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during the continuance of an Event of Default,
the Borrower shall pay interest on the amount of unpaid principal of and
interest on each Competitive Bid Advance owing to a Lender, payable in arrears
on the date or dates interest is payable thereon, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such
Competitive Bid Advance under the terms of the Competitive Bid Note evidencing
such Competitive Bid Advance unless otherwise agreed in such Competitive Bid
Note.
(f) The indebtedness of the Borrower resulting from each Competitive
Bid Advance made to the Borrower as part of a Competitive Bid Borrowing shall be
evidenced by a separate Competitive Bid Note of the Borrower payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount of
such Lender's Commitment from the Effective Date in the case of each Initial
Lender and from the later of the Effective Date and the effective date specified
in the Assignment and Acceptance pursuant to which it became a Lender in the
case of each other Lender until the Termination Date at a rate per annum equal
to the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing September 30, 1999, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Borrower and
the Agent.
SECTION 2.05. Optional Termination or Reduction of the Commitments. The
Borrower shall have the right, upon at least three Business Days' notice to the
Agent, to terminate in whole or reduce ratably in part the unused portions of
the respective Commitments of the Lenders, provided that each partial reduction
shall be in the aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and provided further that the aggregate amount of
the Commitments of the Lenders shall not be reduced to an amount that is less
than the aggregate principal amount of the Competitive Bid Advances denominated
in Dollars then outstanding plus the Equivalent in Dollars (determined as of the
date of the notice of prepayment) of the aggregate principal amount of the
Competitive Bid Advances denominated in Foreign Currencies then outstanding.
SECTION 2.06. Repayment of Revolving Credit Advances. The Borrower
shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Revolving Credit Advances
then outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of each
Revolving Credit Advance owing to each Lender from the date of such Revolving
Credit Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (x) the Base Rate in effect from time to time plus
(y) the Applicable Margin in effect from time to time plus (z) the
Applicable Utilization Fee in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per
annum equal at all times during each Interest Period for such
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Revolving Credit Advance to the sum of (x) the Eurocurrency Rate for
such Interest Period for such Revolving Credit Advance plus (y) the
Applicable Margin in effect from time to time plus (z) the Applicable
Utilization Fee in effect from time to time, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurocurrency Rate Advance shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of
an Event of Default, the Borrower shall pay interest on (i) the unpaid principal
amount of each Revolving Credit Advance owing to each Lender, payable in arrears
on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above and
(ii) to the fullest extent permitted by law, the amount of any interest, fee or
other amount payable hereunder that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) The Agent shall give
prompt notice to the Borrower and the Lenders of the applicable interest rate
determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Agent that (i) they are unable to obtain matching deposits in
the London inter-bank market at or about 11:00 A.M. (London time) on the second
Business Day before the making of a Borrowing in sufficient amounts to fund
their respective Revolving Credit Advances as a part of such Borrowing during
its Interest Period or (ii) the Eurocurrency Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurocurrency Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon (A) the Borrower will, on the last day of the then existing
Interest Period therefor, (1) if such Eurocurrency Rate Advances are denominated
in Dollars, either (x) prepay such Advances or (y) Convert such Advances into
Base Rate Advances and (2) if such Eurocurrency Rate Advances are denominated in
any Committed Currency, either (x) prepay such Advances or (y) redenominate such
Advances into an Equivalent amount of Dollars and Convert such Advances into
Base Rate Advances and (B) the obligation of the Lenders to make, or to Convert
Revolving Credit Advances into, Eurocurrency Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist; provided that, if the circumstances set
forth in clause (ii) above are applicable, the Borrower may elect, by notice to
the Agent and the Lenders, to continue such Advances in such Committed Currency
for Interest Periods of not longer than one month, which Advances shall
thereafter bear interest at a rate per annum equal to the Applicable Margin
plus, for each Lender, the cost to such Lender (expressed as a rate per annum)
of funding its Eurocurrency Rate Advances by whatever means it reasonably
determines to be appropriate. Each Lender shall certify its cost of funds for
each Interest Period to the Agent and the Borrower as soon as practicable (but
in any event not later than ten Business Days after the first day of such
Interest Period).
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurocurrency Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor, be
continued as Eurocurrency Rate Advances having an interest period of one month.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
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(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurocurrency Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, (A) if such Eurocurrency Rate
Advances are denominated in Dollars, be Converted into Base Rate Advances and
(B) if such Eurocurrency Rate Advances are denominated in any Committed
Currency, be redenominated into an Equivalent amount of Dollars and be Converted
into Base Rate Advances and (ii) the obligation of the Lenders to make, or to
Convert Advances into, Eurocurrency Rate Advances shall be suspended; provided
that Borrower may elect, by notice to the Agent and the Lenders within one
Business Day of such Event of Default, to continue such Advances in such
Committed Currency, whereupon the Agent may require that each Interest Period
relating to such Eurocurrency Rate Advances shall bear interest at the Overnight
Eurocurrency Rate for a period of three Business Days and thereafter, each such
Interest Period shall have a duration of not longer than one month. "Overnight
Eurocurrency Rate" means the rate per annum applicable to an overnight period
beginning on one Business Day and ending on the next Business Day equal to the
sum of 1%, the Applicable Interest Rate Margin and the average, rounded upward
to the nearest whole multiple of 1/16 of 1%, if such average is not such a
multiple, of the respective rates per annum quoted by each Reference Bank to the
Agent on request as the rate at which it is offering overnight deposits in the
relevant currency in amounts comparable to such Reference Bank's Eurocurrency
Rate Advances.
(f) If Dow Jones Markets Telerate Page 3750 is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for determining
the Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO
Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined for such Eurocurrency Rate
Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, (A) if such Eurocurrency Rate Advance is
denominated in Dollars, be prepaid by the Borrower or be automatically
Converted into a Base Rate Advance and (B) if such Eurocurrency Rate
Advance is denominated in any Committed Currency, be prepaid by the
Borrower or be automatically redenominated into an Equivalent amount of
Dollars and be Converted into a Base Rate Advance (or if such Advance is
then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
into Eurocurrency Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and 2.12,
Convert all Revolving Credit Advances denominated in Dollars of one Type
comprising the same Borrowing into Revolving Credit Advances denominated in
Dollars of the other Type; provided, however, that any Conversion of
Eurocurrency Rate Advances into Base Rate Advances shall be made only on the
last day of an Interest Period for such Eurocurrency Rate Advances, any
Conversion of Base Rate Advances into Eurocurrency Rate Advances shall be in an
amount not less than the minimum amount specified in Section 2.02(b) and no
Conversion of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(b). Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Dollar denominated Revolving Credit
Advances to be Converted, and (iii) if such Conversion is into Eurocurrency Rate
Advances, the duration of the initial Interest Period for each such Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Revolving Credit Advances. (a) Optional.
The Borrower may, upon notice at least two Business Days' prior to the date of
such prepayment, in the case of Eurocurrency Rate Advances, and not later than
11:00 A.M. (New York City time) on the date of such prepayment, in the case of
Base Rate Advances, to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if
<PAGE>
such notice is given the Borrower shall, prepay the outstanding principal amount
of the Revolving Credit Advances comprising part of the same Revolving Credit
Borrowing in whole or ratably in part without premium or penalty, together with
accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof or the Equivalent thereof in a Committed Currency (determined on the
date notice of prepayment is given) and (y) in the event of any such prepayment
of a Eurocurrency Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
(b) Mandatory Prepayments. (i) If the Agent notifies the Borrower that,
on any interest payment date, the sum of (A) the aggregate principal amount of
all Advances denominated in Dollars then outstanding plus (B) the Equivalent in
Dollars (determined on the third Business Day prior to such interest payment
date) of the aggregate principal amount of all Advances denominated in Foreign
Currencies then outstanding exceeds 103% of the aggregate Commitments of the
Lenders on such date, the Borrower shall, within two Business Days after receipt
of such notice, prepay the outstanding principal amount of any Advances owing by
the Borrower in an aggregate amount sufficient to reduce such sum to an amount
not to exceed 100% of the aggregate Commitments of the Lenders on such date.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall be
made together with any interest accrued to the date of such prepayment on the
principal amounts prepaid and, in the case of any prepayment of a Eurocurrency
Rate Advance, a LIBO Rate Advance or a Local Rate Advance on a date other than
the last day of an Interest Period or at its maturity, any additional amounts
which the Borrower shall be obligated to reimburse to the Lenders in respect
thereof pursuant to Section 8.04(c). The Agent shall give prompt notice of any
prepayment required under this Section 2.10(b) to the Borrower and the Lenders.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request issued by any
central bank or other governmental authority including, without limitation, any
agency of the European Union or similar monetary or multinational authority
after the date hereof (whether or not having the force of law), there shall be
any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurocurrency Rate Advances or LIBO Rate Advances (excluding for
purposes of this Section 2.11 any such increased costs resulting from (i) Taxes
or Other Taxes (as to which Section 2.14 shall govern) and (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender is organized or is otherwise subject to tax), then the Borrower shall
from time to time, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost, provided that the
Borrower shall not be required to pay any such additional amounts to the extent
such additional amounts accrued prior to the date that is six months prior to
the date of such notice. A certificate as to the amount of such increased cost,
submitted to the Borrower and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or regulation
or any guideline or request from any central bank or other governmental
authority (whether or not having the force of law) affects or would affect the
amount of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the Agent), the Borrower shall pay to the Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurocurrency Lending Office to perform its obligations
hereunder to make Eurocurrency Rate Advances in
<PAGE>
Dollars or any Committed Currency or LIBO Rate Advances in Dollars or any
Foreign Currency or to fund or maintain Eurocurrency Rate Advances in Dollars or
any Committed Currency or LIBO Rate Advances in Dollars or any Foreign Currency
hereunder, (a) each Eurocurrency Rate Advance or LIBO Rate Advance, as the case
may be, will automatically, upon such demand, (i) if such Eurocurrency Rate
Advance or LIBO Rate Advance is denominated in Dollars, be Converted into a Base
Rate Advance or an Advance that bears interest at the rate set forth in Section
2.07(a)(i), as the case may be, and (ii) if such Eurocurrency Rate Advance or
LIBO Rate Advance is denominated in any Foreign Currency, be redenominated into
an Equivalent amount of Dollars and be Converted into a Base Rate Advance or an
Advance that bears interest at the rate set forth in Section 2.07(a)(i), as the
case may be, and (b) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances into
Eurocurrency Rate Advances shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make
each payment hereunder, except with respect to principal of, interest on, and
other amounts relating to, Advances denominated in a Foreign Currency, not later
than 11:00 A.M. (New York City time) on the day when due in Dollars to the Agent
at the applicable Agent's Account in same day funds. The Borrower shall make
each payment hereunder with respect to principal of, interest on, and other
amounts relating to, Advances denominated in a Foreign Currency, not later than
11:00 A.M. (at the Payment Office for such Foreign Currency) on the day when due
in such Foreign Currency to the Agent, by deposit of such funds to the
applicable Agent's Account in same day funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or facility fees ratably (other than amounts payable pursuant to
Section 2.03, 2.11, 2.14 or 8.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under the Note
held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due. Each Lender that charges
an account of the Borrower in accordance with this Section agrees to promptly so
notify the Borrower, provided that the failure to give such notice shall not
affect the validity of such charge.
(c) All computations of interest based on the Base Rate shall be made
by the Agent on the basis of a year of 365 or 366 days, as the case may be, all
computations of interest based on the Eurocurrency Rate or the Federal Funds
Rate and of facility fees shall be made by the Agent on the basis of a year of
360 days and computations in respect of Competitive Bid Advances shall be made
by the Agent or the Sub-Agent, as the case may be, as specified in the
applicable Notice of Competitive Bid Borrowing (or, in each case of Advances
denominated in Foreign Currencies where market practice differs, in accordance
with market practice), in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
<PAGE>
(e) Unless the Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at (i) the Federal Funds Rate in the case of Advances
denominated in Dollars or (ii) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in Foreign
Currencies.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower hereunder
or under the Notes shall be made, in accordance with Section 2.13, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdictions in which such Lender or the Agent (as the case may
be) is otherwise subject to tax (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender or the Agent, (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.14) such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for and hold
it harmless against the full amount of Taxes or Other Taxes (including, without
limitation, taxes of any kind imposed by any jurisdiction on amounts payable
under this Section 2.14) imposed on or paid by such Lender or the Agent (as the
case may be) and any liability (including penalties, interest and expenses not
incurred by reason of gross negligence or willful misconduct on the part of such
Lender or the Agent) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender or the
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
shall furnish to the Agent, at its address referred to in Section 8.02, the
original or a certified copy of a receipt evidencing such payment. In the case
of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel as requested by and acceptable to the Agent stating that such
payment is exempt from Taxes. For purposes of this subsection (d) and subsection
(e), the terms "United States" and "United States person" shall have the
meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
each of the Agent and the Borrower with two original Internal Revenue Service
forms 1001 or 4224, as appropriate, or any successor or other form prescribed by
the Internal Revenue Service, certifying that such Lender is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
<PAGE>
to this Agreement or the Notes. If the form provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender assignee becomes a
party to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. In addition, each
Lender agrees that from time to time after the Effective Date, when a change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to the Borrower and the Agent two new accurate
and complete original signed copies of Internal Revenue Service Form 4224 or
1001, as the case may be, and such other forms as may be required in order to
confirm or establish the entitlement of such Lender to a continued exemption
from or reduction in United States withholding tax with respect to payments
under this Agreement or any Note, unless any change in treaty, law or regulation
has occurred after the date such Lender becomes a party hereunder which renders
all such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises the Borrower and the Agent. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service form 1001 or 4224, that the Lender reasonably
considers to be confidential, the Lender shall give notice thereof to the
Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) Each Initial Lender hereby confirms as of the Effective Date, and
each other Lender confirms as of the effective date of the Assignment and
Acceptance pursuant to which it becomes a party hereto, in favor of the Agent
and the Borrower that either (i) such Lender is not resident in the United
Kingdom and is beneficially entitled to the Advances and the interest thereon or
(ii) it is a bank as defined for the purposes of Section 349 of the Income and
Corporation Taxes Act of 1988 of the United Kingdom and is beneficially entitled
to the Advances and the interest thereon, and each Lender agrees to notify the
Agent if there is any change in its position from that set forth in this clause
(f).
(g) For any period with respect to which a Lender has failed to provide
the Borrower with the appropriate form described in Section 2.14(e) (other than
if such failure is due to a change in law occurring subsequent to the date on
which a form originally was required to be provided, or if such form otherwise
is not required under subsection (e) above), such Lender shall not be entitled
to indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
(h) Any Lender claiming any additional amounts payable pursuant to this
Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurocurrency Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its ratable
share of payments on account of the Revolving Credit Advances obtained by all
the Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of
<PAGE>
(i) the amount of such Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Revolving Credit
Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. The Borrower agrees that upon
notice by any Lender to the Borrower (with a copy of such notice to the Agent)
to the effect that a Revolving Credit Note is required or appropriate in order
for such Lender to evidence (whether for purposes of a permitted pledge,
enforcement or otherwise) the Revolving Credit Advances owing to, or to be made
by, such Lender, the Borrower shall promptly execute and deliver to such Lender
a Revolving Credit Note payable to the order of such Lender in a principal
amount up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 8.07(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if appropriate, the Interest Period applicable thereto, (ii) the terms of
each Assignment and Acceptance delivered to and accepted by it, (iii) the amount
of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder and (iv) the amount of any sum received by
the Agent from the Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of principal
and interest due and payable or to become due and payable from the Borrower to,
in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest error; provided,
however, that the failure of the Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the Borrower under this
Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and
as of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 1998.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect other than the matters described on Schedule
3.01(b) hereto (the "Disclosed Litigation") or (ii) purports to affect
the legality, validity or enforceability of this Agreement or any Note
or the consummation of the transactions contemplated hereby, and there
shall have been no adverse change in the status, or financial effect on
the
<PAGE>
Borrower or any of its Subsidiaries, of the Disclosed Litigation from
that described on Schedule 3.01(b) hereto.
(c) Nothing shall have come to the attention of the Lenders
during the course of their due diligence investigation to lead them to
believe that the Information Memorandum was or has become misleading,
incorrect or incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been given such
access to the management, records, books of account, contracts and
properties of the Borrower and its Subsidiaries as they shall have
reasonably requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders) and shall remain in effect, and no law
or regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(e) The Borrower shall have notified each Lender and the Agent
in writing as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and expenses
of the Agent and the Lenders (including the accrued fees and expenses
of counsel to the Agent).
(g) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated
the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agent and (except for the Revolving Credit Notes)
in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of the
Lenders to the extent requested by any Lender pursuant to
Section 2.16.
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower approving this Agreement and the
Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder.
(iv) A favorable opinion of Susan F. Marrinan,
General Counsel of the Borrower, and a favorable opinion of
Foley & Lardner, counsel to the Borrower, substantially in the
form of Exhibit D-1 and Exhibit D-2 hereto, respectively, and
as to such other matters as any Lender through the Agent may
reasonably request.
(v) A favorable opinion of Shearman & Sterling,
counsel for the Agent, in form and substance satisfactory to
the Agent.
(i) The Borrower shall have repaid in full of all amounts
outstanding and terminated the commitments of the lenders under each of
(i) the $75,000,000 364-Day revolving credit agreement dated as
<PAGE>
of March 23, 1998 between the Borrower and Citibank and (ii) the
$100,000,000 five year revolving credit agreement dated as of September
5, 1997 among the Borrower, Citibank, Bank of America NT&SA, The First
National Bank of Chicago and Bank of Montreal, and each of the Lenders
that is a party to either such credit agreement hereby waives, upon
execution of this Agreement, any notice requirement of such credit
agreement relating to the termination of commitments thereunder.
(j) The conditions precedent set forth in Section 3.01(a)
through (i) of the 364-Day Credit Agreement dated as of August 23, 1999
among the Borrower, the lenders parties thereto, Salomon Smith Barney
Inc., as lead arranger and book manager, Banc One Capital Markets Inc.,
as co-arranger, Citibank, as administrative agent, and The First
National Bank of Chicago, as syndication agent, shall have been
satisfied.
SECTION 3.02. Conditions Precedent to Sandvik Funding Date. The
obligation of each Lender to make Advances in an aggregate amount greater than
one-third of such Lender's Commitment shall become effective on and as of the
date (the "Sandvik Funding Date") on which the Borrower delivers a certificate
to the Lenders certifying that the following conditions precedent have been
satisfied:
(a) All governmental and third party consents and approval
necessary in connection with the acquisition of the saw and tools
assets of Sandvik AB (the "Acquisition") shall have been obtained and
shall remain in effect; all applicable waiting periods in connection
with the Acquisition shall have expired without any action being taken
by any competent authority, and no law or regulation shall be
applicable in the judgment of the Required Lenders, in each case that
restrains, prevents or imposes materially adverse conditions upon the
Acquisition, the Borrower or any of its Subsidiaries.
(b) The conditions precedent to the Acquisition shall have
shall have been consummated (except only the delivery of closing
documents and the payment of the purchase price therefor) in compliance
with all applicable laws.
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing.
The obligation of each Lender to make a Revolving Credit Advance on the occasion
of each Revolving Credit Borrowing shall be subject to the conditions precedent
that the Effective Date shall have occurred and on the date of such Revolving
Credit Borrowing (a) the following statements shall be true (and each of the
giving of the applicable Notice of Revolving Credit Borrowing and the acceptance
by the Borrower of the proceeds of such Revolving Credit Borrowing shall
constitute a representation and warranty by the Borrower that on the date of
such Borrowing such statements are true):
(i) the representations and warranties contained in Section
4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f)(i) thereof) are correct on
and as of such date, before and after giving effect to such Revolving
Credit Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing.
The obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (ii) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Agent shall have received a Competitive Bid Note payable to the order of such
Lender for each of the one or more Competitive Bid Advances to be made by such
Lender as part of such Competitive Bid Borrowing,
<PAGE>
in a principal amount equal to the principal amount of the Competitive Bid
Advance to be evidenced thereby and otherwise on such terms as were agreed to
for such Competitive Bid Advance in accordance with Section 2.03, and (iii) on
the date of such Competitive Bid Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of Competitive Bid
Borrowing and the acceptance by the Borrower of the proceeds of such Competitive
Bid Borrowing shall constitute a representation and warranty by the Borrower
that on the date of such Competitive Bid Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01
are correct on and as of the date of such Competitive Bid Borrowing,
before and after giving effect to such Competitive Bid Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date,
(b) no event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a result
of which the information concerning the Borrower that has been provided
to the Agent and each Lender by the Borrower in connection herewith
would include an untrue statement of a material fact or omit to state
any material fact or any fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made,
not misleading.
SECTION 3.05. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes to be delivered by it, and the
consummation of the transactions contemplated hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Borrower's charter or
by-laws or (ii) law or any contractual restriction binding on or
affecting the Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required as a condition to the due
execution, delivery and performance by the Borrower of this Agreement
or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be
delivered by it when delivered hereunder will have been, duly executed
and delivered by the Borrower. This Agreement is, and each of the Notes
when delivered hereunder will be, the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with their respective terms.
<PAGE>
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1998, and the related Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Arthur Andersen LLP, independent public accountants, and the
Consolidated balance sheet of the Borrower and its Subsidiaries as at
June 30, 1999, and the related Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for the six months then
ended, duly certified by the chief financial officer of the Borrower,
copies of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheet as at June 30, 1999, and
said statements of income and cash flows for the six months then ended,
to year-end audit adjustments, the Consolidated financial condition of
the Borrower and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 1998,
there has been no Material Adverse Change.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without limitation,
any Environmental Action, affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator that
(i) would be reasonably likely to have a Material Adverse Effect (other
than the Disclosed Litigation) or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby, and there has
been no materially adverse change in the status, or financial effect on
the Borrower or any of its Subsidiaries, of the Disclosed Litigation
from that described on Schedule 3.01(b) hereto.
(g) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock.
(h) The Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(i) The Borrower has (i) initiated a review and assessment of
all areas within its and each of its Subsidiaries' business and
operations (including those affected by suppliers, vendors and
customers) that could be adversely affected by the risk that computer
applications used by the Borrower or any of its Subsidiaries (or
suppliers, vendors and customers) may be unable to recognize and
perform properly date sensitive functions involving certain dates prior
to and any date after December 31, 1999 (the "Year 2000 Problem"), (ii)
developed a plan and timetable for addressing the Year 2000 Problem on
a timely basis and (iii) to date, implemented that plan in accordance
with such timetable. Based on the foregoing, the Borrower believes that
all computer applications (including those of its suppliers, vendors
and customers) that are material to its or any of its Subsidiaries'
business and operations are reasonably expected on a timely basis to be
able to perform properly date-sensitive functions for all dates before,
on and after January 1, 2000, except to the extent that a failure to do
so would not reasonably be expected to have a Material Adverse Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
and material laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental
Laws.
<PAGE>
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates; provided, however, that the
Borrower and its Subsidiaries may self-insure to the same extent as
other companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower or such
Subsidiary operates and to the extent consistent with prudent business
practice.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(b)
and provided further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right or franchise if
the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Borrower or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time and, so long as no Default has occurred and is continuing, upon
reasonable notice, permit the Agent or any of the Lenders or any agents
or representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent certified
public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate, provided that the Borrower and its
Subsidiaries may transact business with Snap-On Credit LLC on a basis
consistent with past practice.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45
days after the end of each of the first three quarters of each
fiscal year of the Borrower, the Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such
quarter and Consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the period commencing
at the end of the
<PAGE>
previous fiscal year and ending with the end of such quarter,
duly certified (subject to year-end audit adjustments) by the
chief financial officer or treasurer of the Borrower as having
been prepared in accordance with generally accepted accounting
principles and certificates of the chief financial officer or
treasurer of the Borrower as to compliance with the terms of
this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section
5.03, provided that in the event of any change in GAAP used in
the preparation of such financial statements, the Borrower
shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and
its Subsidiaries, containing the Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such fiscal
year and Consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for such fiscal year, in
each case accompanied by an opinion acceptable to the Required
Lenders by Arthur Andersen LLP or other independent public
accountants acceptable to the Required Lenders, provided that
in the event of any change in GAAP used in the preparation of
such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
(iii) as soon as possible and in any event within
five days after the occurrence of each Default continuing on
the date of such statement, a statement of the chief financial
officer or treasurer of the Borrower setting forth details of
such Default and the action that the Borrower has taken and
proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports that the Borrower sends to any of its
securityholders as such, and copies of all reports and
registration statements that the Borrower or any Subsidiary
files with the Securities and Exchange Commission or any
national securities exchange;
(v) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Borrower or any of its
Subsidiaries of the type described in Section 4.01(f); and
(vi) such other information respecting the Borrower
or any of its Subsidiaries as any Lender through the Agent may
from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real
property or equipment acquired or held by the Borrower or any
Subsidiary in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing the acquisition
of such property or equipment, or Liens existing on such
property or equipment at the time of its acquisition (other
than any such Liens created in contemplation of such
acquisition that were not incurred to finance the acquisition
of such property) or extensions, renewals or replacements of
any of the foregoing for the same or a lesser amount,
provided, however, that no
<PAGE>
such Lien shall extend to or cover any properties of any
character other than the real property or equipment being
acquired, and no such extension, renewal or replacement shall
extend to or cover any properties not theretofore subject to
the Lien being extended, renewed or replaced, provided further
that the aggregate principal amount of the indebtedness
secured by the Liens referred to in this clause (ii) shall not
exceed $25,000,000,
(iii) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the
Borrower or any Subsidiary of the Borrower or becomes a
Subsidiary of the Borrower; provided that such Liens were not
created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those
of the Person so merged into or consolidated with the Borrower
or such Subsidiary or acquired by the Borrower or such
Subsidiary,
(v) other Liens securing Debt in an aggregate
principal amount not to exceed $50,000,000 at any time
outstanding,
(vi) sales of accounts receivable arising in
connection a transaction described in the proviso to the
definition of "Debt" in Section 1.01, and
(vii) the replacement, extension or renewal of any
Lien permitted by clause (iii) or (iv) above upon or in the
same property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby.
(b) Mergers, Etc. Merge or 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, any Person, or
permit any of its Subsidiaries to do so, except that (i) any Subsidiary
of the Borrower may merge or consolidate with or into, or dispose of
assets to, any other Subsidiary of the Borrower, (ii) any Subsidiary of
the Borrower may merge into or dispose of assets to the Borrower and
(iii) the Borrower may merge into a wholly owned Subsidiary of the
Borrower that has no material assets or liabilities for the sole
purpose of changing the state of incorporation of the Borrower if the
surviving corporation shall expressly assume the liabilities of the
Borrower under this Agreement and the Notes, provided, in each case,
that no Default shall have occurred and be continuing at the time of
such proposed transaction or would result therefrom.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
(d) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of the business
of the Borrower and its Subsidiaries taken as a whole as carried on at
the date hereof.
SECTION 5.03. Financial Covenant. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will
maintain a ratio of Consolidated Debt to the sum of Consolidated Debt plus
shareholders' equity of not greater than 0.60:1.00.
<PAGE>
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or the Borrower shall
fail to pay any interest on any Advance or make any other payment of
fees or other amounts payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(d), (e) or (i),
5.02 or 5.03, or (ii) the Borrower shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if such failure shall remain
unremedied for 30 days after written notice thereof shall have been
given to the Borrower by the Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that is outstanding
in a principal or net amount of at least $25,000,000 in the aggregate
(but excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The Borrower or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall occur; or
the Borrower or any of its Subsidiaries shall take any corporate action
to authorize any of the actions set forth above in this subsection (e);
or
(f) Judgments or orders for the payment of money in excess of
$25,000,000 in the aggregate shall be rendered against the Borrower or
any of its Subsidiaries with respect to which (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgments or orders or (ii) there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgments or orders, by
reason of a pending appeal or otherwise, shall not be in effect;
provided, however, that any such judgment or order shall not be an
Event of Default or included in the calculation of the aggregate amount
of judgments or orders under this Section 6.01(f) if and for so long as
(i) the amount of such judgment or order is covered by a valid and
binding policy of insurance between the defendant and the insurer
covering
<PAGE>
payment thereof and (ii) such insurer, which shall be rated at least
"A" by A.M. Best Company, has been notified of, and has not disputed
the claim made for payment of, the amount of such judgment or order; or
(g) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Subsidiaries that would be
reasonably expected to have a Material Adverse Effect, and there shall
be any period of 10 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) (i) Any Person or two or more Persons acting in concert
(other than any Related Person) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Borrower (or other
securities convertible into such Voting Stock) representing 15% or more
of the combined voting power of all Voting Stock of the Borrower; or
(ii) during any period of up to 24 consecutive months, commencing after
the date of this Agreement, individuals who at the beginning of such
24-month period were directors of the Borrower shall cease for any
reason to constitute a majority of the board of directors of the
Borrower; or (iii) any Person or two or more Persons acting in concert
(other than any Related Person) shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that,
upon consummation, will result in its or their acquisition of the power
to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(i) The Borrower or any of its ERISA Affiliates shall incur,
or shall be reasonably likely to incur liability in excess of
$25,000,000 in the aggregate as a result of one or more of the
following: (i) the occurrence of any ERISA Event; (ii) the partial or
complete withdrawal of the Borrower or any of its ERISA Affiliates from
a Multiemployer Plan; or (iii) the reorganization or termination of a
Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
<PAGE>
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
Lender that made any Advance as the holder of the Debt resulting therefrom until
the Agent receives and accepts an Assignment and Acceptance entered into by such
Lender, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its Commitment,
the Advances made by it and the Note issued to it, Citibank shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Citibank in its individual
capacity. Citibank and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, accept investment banking engagements from
and generally engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Citibank were not the Agent and
without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent
(to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the Revolving Credit Advances then owed to each
of them (or if no Revolving Credit Advances are at the time outstanding, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under this Agreement (collectively, the "Indemnified
Costs"), provided that no Lender shall be liable for any portion of the
Indemnified Costs resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including reasonable counsel fees) 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, to the extent that the Agent is not reimbursed for such expenses
by the Borrower. In the case of any investigation, litigation or proceeding
giving rise to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a
third party.
SECTION 7.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required
<PAGE>
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Agent with the consent, not to be unreasonably
withheld or delayed, of the Borrower so long as no Default has occurred and is
continuing. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders and with the consent, not to be unreasonably withheld or delayed, of the
Borrower so long as no Default has occurred and is continuing, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
SECTION 7.07. Sub-Agent. The Sub-Agent has been designated under this
Agreement to carry out duties of the Agent. The Sub-Agent shall be subject to
each of the obligations in this Agreement to be performed by the Sub-Agent, and
each of the Borrower and the Lenders agrees that the Sub-Agent shall be entitled
to exercise each of the rights and shall be entitled to each of the benefits of
the Agent under this Agreement as relate to the performance of its obligations
hereunder.
SECTION 7.08. Other Agents. Each Lender hereby acknowledges that
neither the syndication agent nor any other Lender designated as any "Co-Agent"
on the signature pages hereof has any liability hereunder other than in its
capacity as a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Revolving Credit Notes, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Revolving Credit Advances or
any fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the Revolving Credit Advances or any
fees or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Revolving Credit
Advances, or the number of Lenders, that shall be required for the Lenders or
any of them to take any action hereunder or (f) amend this Section 8.01; and
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Agent under this Agreement or any
Note.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and sent by reputable overnight courier, telecopied,
telegraphed, telexed or delivered, if to the Borrower, at its address at 10801
Corporate Drive, Pleasant Prairie, Wisconsin 53158, Attention: Donald S. Huml,
Senior Vice President and Chief Financial Officer, and Jefferey F. Kostrzewa,
Director Treasury Operations and Finance, with copies to 2810 80th Street,
Kenosha, Wisconsin 53141-1410, Attention: Susan F. Marrinan, General Counsel; if
to any Initial Lender, at its Domestic Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assignment and Acceptance pursuant to which it became a
Lender; and if to the Agent, at its address at Two Penns Way, New Castle,
Delaware 19720, Attention: Bank Loan Syndications Department; or, as to the
Borrower or the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
<PAGE>
the Borrower and the Agent. All such notices and communications shall, when sent
by overnight courier, telecopied, telegraphed or telexed, be effective when
deposited with the courier, telecopied, delivered to the telegraph company or
confirmed by telex answerback, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender
or the Agent to exercise, and no delay in exercising, any right hereunder or
under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and expenses
of the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances or (ii) the actual or alleged presence of Hazardous Materials on
any property of the Borrower or any of its Subsidiaries, except to the extent
(x) such claim, damage, loss, liability or expense resulted from such
Indemnified Party's gross negligence or willful misconduct or (ii) such claim,
damage, loss or expense arises from a litigation or proceeding among Lenders. In
the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 8.04(b) applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the
Borrower, its directors, shareholders or creditors or an Indemnified Party or
any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrower also agrees not to assert any claim for special, indirect,
consequential or punitive damages against the Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
and agents, on any theory of liability, arising out of or otherwise relating to
the Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurocurrency
Rate Advance, LIBO Rate Advance or Local Rate Advance is made by the Borrower to
or for the account of a Lender other than on the last day of the Interest Period
for such Advance, as a result of a payment or Conversion pursuant to Section
2.08(d) or (e), 2.10 or 2.12, acceleration of the maturity of the Notes pursuant
to Section 6.01 or for any other reason, or by an Eligible Assignee to a Lender
other than on the last day of the Interest Period for such Advance upon an
assignment of rights and obligations under this Agreement pursuant to Section
8.07 as a result of a demand by the Borrower pursuant to Section 8.07(a), the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or
<PAGE>
Conversion, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate (but not including any insurance premiums) to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender and its Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender and its Affiliates may
have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may and,
if demanded by the Borrower (so long as no Default shall have occurred and be
continuing and following a demand by such Lender pursuant to Section 2.11 or
2.14 or a notice given by such Lender pursuant to Section 2.12) upon at least
five Business Days' notice to such Lender and the Agent, will assign to one or
more Persons all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Revolving Credit Advances owing to it and the Revolving Credit Note or Notes
held by it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under this
Agreement (other than any right to make Competitive Bid Advances, Competitive
Bid Advances owing to it and Competitive Bid Notes), (ii) except in the case of
an assignment to a Person that, immediately prior to such assignment, was a
Lender or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$8,000,000 or an integral multiple of $1,000,000 in excess thereof, (iii) each
such assignment shall be to an Eligible Assignee, (iv) each such assignment made
as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall
be arranged by the Borrower after consultation with the Agent and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower pursuant to this
Section 8.07(a) unless and until such Lender shall have received one or more
payments from either the Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement, and (vi) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together
<PAGE>
with any Revolving Credit Note subject to such assignment and a processing and
recordation fee of $3,000. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) 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, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in Section 8.02
a copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and any
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment
<PAGE>
or waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation. The Borrower agrees that
each participant shall be entitled to the benefits of Sections 2.11, 2.14 and
8.04(b) and (c) to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to this Section 8.07; provided that no
participant shall be entitled to receive any greater amount pursuant to any such
section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such participant had no such participation occurred.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to the Borrower
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and any Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any other Person without the consent of
the Borrower, other than (a) to the Agent's or such Lender's Affiliates and
their officers, directors, employees, agents and advisors and, as contemplated
by Section 8.07(f), to actual or prospective assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.10. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.11. Judgment. (a) If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder in Dollars into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase Dollars with
such other currency at Citibank's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(b) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in a Foreign Currency into Dollars, the
parties agree to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Agent could purchase such Foreign Currency with Dollars at
Citibank's principal office in London at 11:00 A.M. (London time) on the
Business Day preceding that on which final judgment is given.
(c) The obligation of the Borrower in respect of any sum due from it in
any currency (the "Primary Currency") to any Lender or the Agent hereunder
shall, notwithstanding any judgment in any other currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or the
Agent (as the case may be), of any sum adjudged to be so due in such other
currency, such Lender or the Agent
<PAGE>
(as the case may be) may in accordance with normal banking procedures purchase
the applicable Primary Currency with such other currency; if the amount of the
applicable Primary Currency so purchased is less than such sum due to such
Lender or the Agent (as the case may be) in the applicable Primary Currency, the
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify such Lender or the Agent (as the case may be) against such loss,
and if the amount of the applicable Primary Currency so purchased exceeds such
sum due to any Lender or the Agent (as the case may be) in the applicable
Primary Currency, such Lender or the Agent (as the case may be) agrees to remit
to the Borrower such excess.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. The Borrower hereby irrevocably consents to the service
of process in any action or proceeding in such courts by the mailing thereof by
any parties hereto by registered or certified mail, postage prepaid, with an
additional notice by telecopier or by reputable overnight delivery service, to
the Borrower at its address specified pursuant to Section 8.02. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 8.13. Substitution of Currency. If a change in any Foreign
Currency occurs pursuant to any applicable law, rule or regulation of any
governmental, monetary or multi-national authority, this Agreement (including,
without limitation, the definitions of Eurocurrency Rate and LIBO Rate) will be
amended to the extent determined by the Agent (acting reasonably and in
consultation with the Borrower) to be necessary to reflect the change in
currency and to put the Lenders and the Borrower in the same position, so far as
possible, that they would have been in if no change in such Foreign Currency had
occurred. No such change in currency nor any economic consequences resulting
therefrom shall (a) give rise to any right to terminate prematurely, contest,
cancel, rescind, alter, modify or renegotiate the provisions of this Agreement
or (b) discharge, excuse or otherwise affect the performance of any obligations
of any of the Borrower or the Lenders under this Agreement.
SECTION 8.15. Waiver of Jury Trial. Each of the Borrower, the Agent and
the Lenders hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or the Notes or the actions of the
Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SNAP-ON INCORPORATED
By /s/ Don Huml
Title: Senior Vice President-Finance
and Chief Financial Officer
<PAGE>
CITIBANK, N.A.,
as Agent
By /s/ Robert D. Wetrus
Title: Vice President
Initial Lenders
Commitment Administrative Agent
$50,000,000 CITIBANK, N.A.
By /s/ Robert D. Wetrus
Title: Vice President
Syndication Agent
$50,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Deborah Stevens
Title: Senior Vice President
Co-Agents
$25,000,000 BANK OF AMERICA, N.A.
By /s/ M.H. Claggett
Title: Vice President
$25,000,000 MORGAN GUARANTY BANK AND TRUST COMPANY
OF NEW YORK
By /s/ So Vanna Day
Title: Vice President
$25,000,000 SVENSKA HANDELSBANKEN AB (publ)
By /s/ Geoffrey Walker
Title: Senior Vice President
By /s/ Henrik Jensen
Title: Vice President
<PAGE>
Lenders
$16,666,667 BARCLAYS BANK PLC
By /s/ Marlene Wechselblatt
Title: Vice President
$5,000,000 FIRSTAR BANK MILWAUKEE, N.A.
By /s/ R. Bruce Anthony
Title: Assistant Vice President
$3,333,333 CIBC INC.
By /s/ Dominic Sorresso
Title: Executive Director
$200,000,000 Total of the Commitments
<PAGE>
SCHEDULE I
SNAP-ON INCORPORATED
FIVE YEAR CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
- ----------------------- -------------------------- ----------------------------
Name of Initial Lender Domestic Lending Office Eurocurrency Lending Office
- ----------------------- -------------------------- ----------------------------
Bank of America, N.A. 101 N. Tryon 101 N. Tryon
Charlotte, NC 60697 Charlotte, NC 60697
Attn: Sidney Bridges Attn: Sidney Bridges
T: 704 386-8542 T: 704 386-8542
F: 704 409-0090 F: 704 409-0090
- ----------------------- -------------------------- ----------------------------
Barclays Bank plc 222 Broadway 222 Broadway
New York, NY 10038 New York, NY 10038
Attn: C. Tenn Attn: C. Tenn
T: 212 412-3728 T: 212 412-3728
F: 212 412-5308 F: 212 412-5308
- ----------------------- -------------------------- ----------------------------
CIBC Inc. Two Paces West Two Paces West
2727 Paces Ferry Road, 2727 Paces Ferry Road,
Suite 1200 Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Attn: Charlene Harris Attn: Charlene Harris
T: 770 319-4881 T: 770 319-4881
F: 770 319-4950 F: 770 319-4950
- ----------------------- -------------------------- ----------------------------
Citibank, N.A. Two Penns Way Two Penns Way
New Castle, DE 19720 New Castle, DE 19720
Attn: Maureen Prytula Attn: Maureen Prytula
T: 302 894-6089 T: 302 894-6089
F: 302 894-6120 F: 302 894-6120
- ----------------------- -------------------------- ----------------------------
Firstar Bank 777 E. Wisconsin Ave. 777 E. Wisconsin Ave.
Milwaukee, N.A. Milwaukee, WI 53202 Milwaukee, WI 53202
Attn: Bruce Anthony Attn: Bruce Anthony
T: 414 765-4724 T: 414 765-4724
F: 414 765-5367 F: 414 765-5367
- ----------------------- -------------------------- ----------------------------
The First National Bank One First National Plaza, One First National Plaza,
of Chicago Suite 0088 Suite 0088
Chicago, IL 60670 Chicago, IL 60670
Attn: Edna Guerra Attn: Edna Guerra
T: 312 732-9609 T: 312 732-9609
F: 312 732-2715 F: 312 732-2715
- ----------------------- -------------------------- ----------------------------
Morgan Guaranty Bank 60 Wall Street c/o J.P. Morgan Services Inc.
and Trust Company New York, NY 100260-0060 Euro-Loan Servicing Unit
of New York Attn: 500 Stanton Christiana Road
T: Newark DE 19713
F; Attn:
T;
F; 302 634-1094
- ----------------------- -------------------------- ----------------------------
Svenska Handelsbanken 153 East 53rd Street 153 East 53rd Street
AB (publ) New York, NY 10022 New York, NY 10022
Attn: Henrik Jenson Attn: Henrik Jenson
T: 212 326-5125 T: 212 326-5125
F: 212 326-5151 F: 212 326-5151
- ----------------------- -------------------------- ----------------------------
<PAGE>
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, SNAP-ON INCORPORATED, a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (as defined in the Credit Agreement
referred to below) the principal sum of U.S.$[amount of the Lender's Commitment
in figures] or, if less, the aggregate principal amount of the Revolving Credit
Advances made by the Lender to the Borrower pursuant to the Five Year Credit
Agreement dated as of August 23, 1999 among the Borrower, the Lender and certain
other lenders parties thereto, Salomon Smith Barney Inc., as Lead Arranger and
Book Manager, Banc One Capital Markets Inc., as Co-Arranger, The First National
Bank of Chicago, as Syndication Agent, and Citibank, N.A. as Agent for the
Lender and such other lenders (as amended or modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined) outstanding on such date.
The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest in respect of each Revolving Credit Advance
(i) in Dollars are payable in lawful money of the United States of America to
the Agent at its account maintained at 399 Park Avenue, New York, New York
10043, in same day funds and (ii) in any Committed Currency are payable in such
currency at the applicable Payment Office in same day funds. Each Revolving
Credit Advance owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of Revolving Credit
Advances by the Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such Revolving
Credit Advance being evidenced by this Promissory Note, (ii) contains provisions
for determining the Dollar Equivalent of Revolving Credit Advances denominated
in Committed Currencies and (iii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
SNAP-ON INCORPORATED
By
Title:
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made By
---- ------- ---------- ------- -------
- --------- ----------------- ----------------- ------------------- --------------
- --------- ----------------- ----------------- ------------------- --------------
- --------- ----------------- ----------------- ------------------- --------------
- --------- ----------------- ----------------- ------------------- --------------
- --------- ----------------- ----------------- ------------------- --------------
- --------- ----------------- ----------------- ------------------- --------------
- --------- ----------------- ----------------- ------------------- --------------
- --------- ----------------- ----------------- ------------------- --------------
- --------- ----------------- ----------------- ------------------- --------------
- --------- ----------------- ----------------- ------------------- --------------
- --------- ----------------- ----------------- ------------------- --------------
- --------- ----------------- ----------------- ------------------- --------------
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, SNAP-ON INCORPORATED, a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Five Year Credit Agreement dated as of August
23, 1999 among the Borrower, the Lender and certain other lenders parties
thereto, Salomon Smith Barney Inc., as Lead Arranger and Book Manager, Banc One
Capital Markets Inc., as Co-Arranger, The First National Bank of Chicago, as
Syndication Agent, and Citibank, N.A., as Agent for the Lender and such other
lenders (as amended or modified from time to time, the "Credit Agreement"; the
terms defined therein being used herein as therein defined)), on
_______________, 199_, the principal amount of [U.S.$_______________] [for a
Competitive Bid Advance in a Foreign Currency, list currency and amount of such
Advance].
<PAGE>
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of
________________ to Citibank, as agent, for the account of the Lender at the
office of _________________________, at _________________________ in same day
funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
SNAP-ON INCORPORATED
By
Title:
<PAGE>
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, SNAP-ON INCORPORATED, refers to the Five Year Credit
Agreement, dated as of August 23, 1999 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto,
Salomon Smith Barney Inc., as Lead Arranger and Book Manager, Banc One Capital
Markets Inc., as Co-Arranger, The First National Bank of Chicago, as Syndication
Agent, and Citibank, N.A., as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Revolving Credit Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Revolving Credit Borrowing (the "Proposed Revolving Credit Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit
Borrowing is _______________, 199_.
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is [$_______________] [for a Revolving Credit Borrowing in a
Committed Currency, list currency and amount of Revolving Credit
Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate
Advance made as part of the Proposed Revolving Credit Borrowing is
_____ month[s].]
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Revolving
Credit Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement (except the representations set forth in
the last sentence of subsection (e) thereof and in subsection (f)(i)
thereof) are correct, before and after giving effect to the Proposed
Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Revolving Credit Borrowing or from the application
of the proceeds therefrom, that constitutes a Default.
Very truly yours,
SNAP-ON INCORPORATED
By
Title:
<PAGE>
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, SNAP-ON INCORPORATED, refers to the Five Year Credit
Agreement, dated as of August 23, 1999 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto,
Salomon Smith Barney Inc., as Lead Arranger and Book Manager, Banc One Capital
Markets Inc., as Co-Arranger, The First National Bank of Chicago, as Syndication
Agent, and Citibank, N.A., as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that the
undersigned hereby requests a Competitive Bid Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such Competitive
Bid Borrowing (the "Proposed Competitive Bid Borrowing") is requested to be
made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Day Count Convention ________________________
(F) Interest Payment Date(s) ________________________
(G) Currency ________________________
(H) Borrower's Account Location ________________________
[(I) Prepayments Permitted ________________________]
(J) ___________________ ________________________
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Competitive Bid
Borrowing:
(a) the representations and warranties contained in Section
4.01 are correct, before and after giving effect to the Proposed
Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result
from the Proposed Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default;
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the undersigned that has
been provided to the Agent and each Lender by the undersigned in
connection with the Credit Agreement would include an untrue statement
of a material fact or omit to state any material fact or any fact
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading; and
<PAGE>
(d) the aggregate amount of the Proposed Competitive Bid
Borrowing, if accepted by the Borrower, and all other Borrowings to be
made on the same day under the Credit Agreement is within the aggregate
amount of the unused Commitments of the Lenders.
Very truly yours,
SNAP-ON INCORPORATED
By
Title:
<PAGE>
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Five Year Credit Agreement dated as of August
23, 1999 (as amended or modified from time to time, the "Credit Agreement")
among Snap-On Incorporated, a Delaware corporation (the "Borrower"), the Lenders
(as defined in the Credit Agreement), Salomon Smith Barney Inc., as Lead
Arranger and Book Manager, Banc One Capital Markets Inc., as Co-Arranger, The
First National Bank of Chicago, as Syndication Agent, and Citibank, N.A., as
agent for the Lenders (the "Agent"). Terms defined in the Credit Agreement are
used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances and Competitive Bid
Notes) equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Revolving Credit Advances owing to the Assignee will be as set forth on
Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Revolving Credit Note, if any held by the Assignor.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) represents to the Assignor, the Agent and the Borrower that it
is an Eligible Assignee; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue Service
forms required under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
<PAGE>
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Revolving Credit Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the
Revolving Credit Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
<PAGE>
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of
Revolving Credit Advances assigned: $__________
Principal amount of Revolving Credit Note
payable to Assignee: $__________
Principal amount of Revolving Credit Note
payable to Assignor: $__________
Effective Date 1: _______________, 199_
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: _______________, 199_
[NAME OF ASSIGNEE], as Assignee
By
Title:
Dated: _______________, 199_
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
- -------------
1 This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
<PAGE>
Accepted [and Approved] 2 this
__________ day of _______________, 199_
CITIBANK, N.A., as Agent
By
Title:
[Approved this __________ day
of _______________, 199_
SNAP-ON INCORPORATED
By ]3
Title:
- ----------------
2 Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
3 Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
<PAGE>
EXHIBIT D - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
<PAGE>
EXECUTION COPY WITH
EXHIBITS D-1 AND D-2
AND SHEARMAN & STERLING
OPINION AS SEPARATELY EXECUTED
U.S. $200,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of August 23, 1999
Among
SNAP-ON INCORPORATED
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
SALOMON SMITH BARNEY INC.
as Lead Arranger and Book Manager
and
BANC ONE CAPITAL MARKETS INC.
as Co-Arranger
and
CITIBANK, N.A.
as Administrative Agent
and
THE FIRST NATIONAL BANK OF CHICAGO
as Syndication Agent
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 11
SECTION 1.03. Accounting Terms 11
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances 11
SECTION 2.02. Making the Revolving Credit Advances 11
SECTION 2.03. The Competitive Bid Advances13
SECTION 2.04. Fees 16
SECTION 2.05. Termination or Reduction of the Commitments 17
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SECTION 2.06. Repayment of Revolving Credit Advances 17
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SECTION 2.07. Interest on Revolving Credit Advances 17
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SECTION 2.08. Interest Rate Determination 18
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SECTION 2.09. Optional Conversion of Revolving Credit Advances 19
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SECTION 2.10. Prepayments of Revolving Credit Advances 20
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SECTION 2.11. Increased Costs 20
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SECTION 2.12. Illegality 21
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SECTION 2.13. Payments and Computations 21
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SECTION 2.14. Taxes 22
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SECTION 2.15. Sharing of Payments, Etc. 24
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SECTION 2.16. Evidence of Debt 24
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SECTION 2.17. Use of Proceeds 25
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ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03 27
SECTION 3.02. Conditions Precedent to Sandvik Funding Date 28
SECTION 3.04. Conditions Precedent to Each Competitive
Bid Borrowing 29
SECTION 3.04. Determinations Under Section 3.01 29
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower 30
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants 31
SECTION 5.02. Negative Covenants 33
SECTION 5.03. Financial Covenant 34
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default 34
ARTICLE VII THE AGENT
SECTION 7.01. Authorization and Action 36
SECTION 7.02. Agent's Reliance, Etc. 37
SECTION 7.03. Citibank and Affiliates 37
SECTION 7.04. Lender Credit Decision 37
SECTION 7.05. Indemnification 37
SECTION 7.06. Successor Agent 38
SECTION 7.07. Sub-Agent 38
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SECTION 7.08. Other Agents.38
ARTICLE VIII MISCELLANEOUS
SECTION 8.01. Amendments, Etc. 38
SECTION 8.02. Notices, Etc.39
SECTION 8.03. No Waiver; Remedies 39
SECTION 8.04. Costs and Expenses 39
SECTION 8.05. Right of Set-off 40
SECTION 8.06. Binding Effect 40
SECTION 8.07. Assignments and Participations 40
SECTION 8.08. Confidentiality 42
SECTION 8.09. Governing Law43
SECTION 8.10. Execution in Counterparts 43
SECTION 8.11. Judgment 43
SECTION 8.12. Jurisdiction, Etc. 43
SECTION 8.13. Substitution of Currency 44
SECTION 8.15. Waiver of Jury Trial 44
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of Counsel for the Borrower
Exhibit D-2 - Form of Opinion of Counsel for the Borrower
364-DAY CREDIT AGREEMENT
Dated as of August 23, 1999
SNAP-ON INCORPORATED, a Delaware corporation (the "Borrower"), the
banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, SALOMON SMITH BARNEY INC., as
lead arranger and book manager, BANC ONE CAPITAL MARKETS INC., as co-arranger,
CITIBANK, N.A. ("Citibank"), as administrative agent (the "Agent") for the
Lenders (as hereinafter defined) and THE FIRST NATIONAL BANK OF CHICAGO, as
syndication agent, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive
Bid Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means (a) in the case of Advances
denominated in Dollars, the account of the Agent maintained by the
Agent at Citibank at its office at 399 Park Avenue, New York, New York
10043, Account No. 36852248, Attention: Bank Loan Syndications, (b) in
the case of Advances denominated in any Foreign Currency, the account
of the Sub-Agent designated in writing from time to time by the Agent
to the Borrower and the Lenders for such purpose and (c) in any such
case, such other account of the Agent as is designated in writing from
time to time by the Agent to the Borrower and the Lenders for such
purpose.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurocurrency Lending Office in the case
of a Eurocurrency Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the Agent
as its Applicable Lending Office with respect to such Competitive Bid
Advance.
"Applicable Margin" means (a) for Base Rate Advances, 0% per
annum and (b) for Eurocurrency Rate Advances, as of any date prior to
the Term Loan Conversion Date, 0.15% per annum and, as of any date on
and after the Term Loan Conversion Date, 0.55% per annum.
"Applicable Percentage" means 0.05% per annum.
"Applicable Utilization Fee" means, as of any date prior to
the Term Loan Conversion Date that the aggregate principal amount of
the Advances exceeds 25% of the aggregate Commitments, 0.10% per annum.
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"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section
2.18(c).
"Assumption Agreement" has the meaning specified in Section
2.18(c).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance
denominated in Dollars that bears interest as provided in Section
2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances or
LIBO Rate Advances, on which dealings are carried on in the London
interbank market and banks are open for business in London and in the
country of issue of the currency of such Eurocurrency Rate Advance or
LIBO Rate Advance (or, in the case of an Advance denominated in the
euro, in Frankfurt, Germany) and, if the applicable Business Day
relates to any Local Rate Advances on which banks are open for business
in the country of issue of the currency of such Local Rate Advance.
"Commitment" means as to any Lender (a) the Dollar amount set
forth opposite such Lender's name on the signature pages hereof, (b) if
such Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the Dollar amount set forth in such Assumption Agreement or
(c) if such Lender
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has entered into any Assignment and Acceptance, the Dollar amount set
forth for such Lender in the Register maintained by the Agent pursuant
to Section 8.07(d), as such amount may be reduced pursuant to Section
2.05.
"Committed Currencies" means lawful currency of the United
Kingdom of Great Britain and Northern Ireland, lawful currency of the
Federal Republic of Germany, lawful currency of the Republic of France,
lawful currency of The Swiss Federation, lawful currency of Spain,
lawful currency of Italy, lawful currency of Canada, lawful currency of
Australia, lawful currency of Japan, lawful currency of the European
Economic and Monetary Union and any other currency that is freely
convertible into Dollars and available to all Lenders.
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance, a LIBO Rate Advance or a Local Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from a Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender, but does not include any such
information that is or becomes generally available to the public or
that is or becomes available to the Agent or such Lender from a source
other than the Borrower.
"Consenting Lender" has the meaning specified in Section
2.18(b).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 90 days incurred in
the ordinary course of such Person's business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all
net obligations of such Person in respect of Hedge Agreements, (h) all
Debt of others referred to in clauses (a) through (g) above or clause
(i) below guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (1) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt, (2) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or
(4) otherwise to assure a creditor
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against loss, and (i) all Debt referred to in clauses (a) through (h)
above secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt; provided, however, that the term "Debt"
shall not include obligations incurred in connection with sales of
accounts receivable or other asset securitization transactions by the
Borrower or any Subsidiary or Affiliate of the Borrower, except to the
extent that such transaction creates a liability which is required by
generally accepted accounting principles to be included on the
Consolidated balance sheet of the Borrower and its Subsidiaries.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Dollars" and the "$" sign each means lawful currency of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance pursuant to which it became a Lender,
or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 8.07, the Borrower,
such approval not to be unreasonably withheld or delayed; provided,
however, that neither the Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equivalent" in Dollars of any Foreign Currency on any date
means the equivalent in Dollars of such Foreign Currency determined by
using the quoted spot rate at which the Sub-Agent's principal office in
London offers to exchange Dollars for such Foreign Currency in London
prior to 4:00 P.M. (London time) (unless otherwise indicated by the
terms of this Agreement) on such date as is required pursuant to the
terms of this Agreement, and the "Equivalent" in any Foreign Currency
of Dollars means the equivalent in such Foreign Currency of Dollars
determined by using the quoted spot rate at which the Sub-Agent's
principal office in London offers to exchange such Foreign Currency for
Dollars in London prior to 4:00
<PAGE>
P.M. (London time) (unless otherwise indicated by the terms of this
Agreement) on such date as is required pursuant to the terms of this
Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to
a Plan; (c) the provision by the administrator of any Plan of a notice
of intent to terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Borrower or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by the Borrower or any ERISA Affiliate from a Multiple Employer Plan
during a plan year for which it was a substantial employer, as defined
in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition
of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section
307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence
of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurocurrency
Lending Office" opposite its name on Schedule I hereto or in the
Assumption Agreement or the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Agent.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upward to the
nearest whole multiple of 1/100 of 1% per annum) appearing on Dow Jones
Markets Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars or the applicable
Committed Currency at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period or, if for any reason such rate is
not available, the average (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in Dollars or the
applicable Committed Currency is offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurocurrency Rate Advance comprising
part of such Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage
for such Interest Period. If the Dow Jones Markets Page 3750 (or any
successor page) is unavailable, the Eurocurrency Rate for any Interest
Period for each Eurocurrency Rate Advance
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comprising part of the same Revolving Credit Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in Dollars or a Committed Currency that bears interest as
provided in Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period
for all Eurocurrency Rate Advances or LIBO Rate Advances comprising
part of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on
Eurocurrency Rate Advances or LIBO Rate Advances is determined) having
a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.18(b).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i), which Advances shall be denominated in Dollars or in any
Foreign Currency.
"Foreign Currency" means any Committed Currency and any other
lawful currency (other than Dollars) that is freely transferable or
convertible into Dollars.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Information Memorandum" means the information memorandum
dated July 23, 1999 used by the Agent in connection with the
syndication of the Commitments.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurocurrency Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurocurrency Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
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thereafter, with respect to Eurocurrency Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as the Borrower
may, upon notice received by the Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date or, if the Revolving
Credit Advances have been converted to a term loan pursuant to
Section 2.06 prior to such selection, that ends after the
Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same
Revolving Credit Borrowing or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing shall be
of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means the Initial Lenders, each Assuming Lender that
shall become a party hereto pursuant to Section 2.18 and each Person
that shall become a party hereto pursuant to Section 8.07.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum) appearing on Dow Jones Markets
Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars or the applicable Committed
Currency at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period or, if for any reason such rate is not available,
the average (rounded upward to the nearest whole multiple of 1/100 of
1% per annum, if such average is not such a multiple) of the rate per
annum at which deposits in Dollars or the applicable Foreign Currency
is offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to the amount that
would be the Reference Banks' respective ratable shares of such
Borrowing if such Borrowing were to be a Revolving Credit Borrowing to
be outstanding during such Interest Period and for a period equal to
such Interest Period by (b) a percentage equal to 100% minus the
Eurocurrency Rate Reserve Percentage for such Interest Period. If the
Dow Jones Markets Telerate Page 3750 (or any successor page) is
unavailable, the LIBO Rate for any Interest Period for each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"LIBO Rate Advances" means a Competitive Bid Advance
denominated in Dollars or in any Foreign Currency and bearing interest
based on the LIBO Rate.
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"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Local Rate Advance" means a Competitive Bid Advance
denominated in any Foreign Currency sourced from the jurisdiction of
issuance of such Foreign Currency and bearing interest at a fixed rate.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or the Borrower
and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or the Borrower
and its Subsidiaries taken as a whole, (b) the rights and remedies of
the Agent or any Lender under this Agreement or any Note or (c) the
ability of the Borrower to perform its obligations under this Agreement
or any Note.
"Maturity Date" means the earlier of (a) the first anniversary
of the Termination Date and (b) the date of termination in whole of the
aggregate Commitments pursuant to Section 2.05 or 6.01.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Non-Consenting Lender" has the meaning specified in Section
2.18(b).
"Note" means a Revolving Credit Note or a Competitive Bid
Note.
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Payment Office" means, for any Foreign Currency, such office
of Citibank as shall be from time to time selected by the Agent and
notified by the Agent to the Borrower and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 45
days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; and (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes.
<PAGE>
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Reference Banks" means Citibank, The First National Bank of
Chicago and Bank of America, N.A..
"Register" has the meaning specified in Section 8.07(d).
"Related Person" means each of the following: (a) the
Borrower, (b) any Subsidiary of the Borrower or (c) any employee
benefit plan of the Borrower or of any Subsidiary of the Borrower or
any Person organized, appointed or established by the Borrower for or
pursuant to the terms of any such plan.
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount
(based on the Equivalent in Dollars at such time) of the Revolving
Credit Advances owing to Lenders, or, if no such principal amount is
then outstanding, Lenders having at least a majority in interest of the
Commitments.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurocurrency Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Lender, delivered pursuant to a
request made under Section 2.16 in substantially the form of Exhibit
A-1 hereto, evidencing the aggregate indebtedness of the Borrower to
such Lender resulting from the Revolving Credit Advances made by such
Lender.
"Sandvik Funding Date" has the meaning specified in Section
3.02.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Sub-Agent" means Citibank International plc.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries; it
being understood that Snap-On Credit LLC, which is 50% owned by the
Borrower, shall not be deemed to be a "Subsidiary" of the Borrower for
purposes of this Agreement.
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"Term Loan Conversion Date" means the Termination Date on
which all Revolving Credit Advances outstanding on such date are
converted into a term loan pursuant to Section 2.06.
"Term Loan Election" has the meaning specified in Section
2.06.
"Termination Date" means the earlier of (a) August 21, 2000,
subject to the extension thereof pursuant to Section 2.18 and (b) the
date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01; provided, however, that the Termination Date of any
Lender that is a Non-Consenting Lender to any requested extension
pursuant to Section 2.18 shall be the Termination Date in effect
immediately prior to the applicable Extension Date for all purposes of
this Agreement.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an aggregate amount
(based in respect of any Revolving Credit Advances to be denominated in a
Committed Currency on the Equivalent in Dollars determined on the date of
delivery of the applicable Notice of Revolving Credit Borrowing) not to exceed
at any time outstanding such Lender's Commitment, provided that the aggregate
amount of the Commitments of the Lenders shall be deemed used from time to time
to the extent of the aggregate amount (based in respect of any Competitive Bid
Advance denominated in a Foreign Currency on the Equivalent in Dollars at such
time) of the Competitive Bid Advances then outstanding and such deemed use of
the aggregate amount of the Commitments shall be allocated among the Lenders
ratably according to their respective Commitments (such deemed use of the
aggregate amount of the Commitments being a "Competitive Bid Reduction");
provided, further, that until the Sandvik Funding Date, the aggregate amount of
all Revolving Credit Advances made by any Lender shall not exceed one third of
such Lender's Commitment. Each Revolving Credit Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof (or the Equivalent thereof in any Committed Currency determined on the
date of delivery of the applicable Notice of Revolving Credit Borrowing) and
shall consist of Revolving Credit Advances of the same Type made on the same day
by the Lenders ratably according to their respective Commitments. Within the
limits of each Lender's Commitment, the Borrower may borrow under this Section
2.01, prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each Revolving
Credit Borrowing shall be made on notice, given not later than (x) 11:00 A.M.
(New York City time) on the third Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in Dollars, (y) 4:00 P.M.
(London time) on the third Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency,
or (z) 11:00 A.M. (New York City time) on
<PAGE>
the first Business Day prior to the date of the proposed Revolving Credit
Borrowing in the case of a Revolving Credit Borrowing consisting of Base Rate
Advances, by the Borrower to the Agent (and, in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances, simultaneously to the
Sub-Agent), which shall give to each Lender prompt notice thereof by telecopier
or telex. Each such notice of a Revolving Credit Borrowing (a "Notice of
Revolving Credit Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier or telex in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such Revolving Credit Borrowing,
(ii) Type of Advances comprising such Revolving Credit Borrowing, (iii)
aggregate amount of such Revolving Credit Borrowing, and (iv) in the case of a
Revolving Credit Borrowing consisting of Eurocurrency Rate Advances, initial
Interest Period and currency for each such Revolving Credit Advance. Each Lender
shall, before 11:00 A.M. (New York City time) on the date of such Revolving
Credit Borrowing, in the case of a Revolving Credit Borrowing consisting of
Advances denominated in Dollars, and before 4:00 P.M. (London time) on the date
of such Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency,
make available for the account of its Applicable Lending Office to the Agent at
the applicable Agent's Account, in same day funds, such Lender's ratable portion
of such Revolving Credit Borrowing. After the Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Agent will make such funds available to the Borrower at the Agent's address
referred to in Section 8.02 or at the applicable Payment Office, as the case may
be.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurocurrency Rate Advances for any Revolving
Credit Borrowing if the aggregate amount of such Revolving Credit Borrowing is
less than $10,000,000 or if the obligation of the Lenders to make Eurocurrency
Rate Advances shall then be suspended pursuant to Section 2.08 or 2.12 and (ii)
the Eurocurrency Rate Advances may not be outstanding as part of more than six
separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Revolving Credit Borrowing that the
related Notice of Revolving Credit Borrowing specifies is to be comprised of
Eurocurrency Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Revolving Credit
Borrowing for such Revolving Credit Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to
the date of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such ratable
portion available to the Agent, such Lender and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, the higher of (A) the interest rate applicable at the time
to Revolving Credit Advances comprising such Revolving Credit Borrowing and (B)
the cost of funds incurred by the Agent in respect of such amount and (ii) in
the case of such Lender, (A) the Federal Funds Rate in the case of Advances
denominated in Dollars or (B) the cost of funds incurred by the Agent in respect
of such amount in the case of Advances denominated in Committed Currencies. If
such Lender shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Revolving Credit Advance as part of such
Revolving Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for
<PAGE>
the failure of any other Lender to make the Revolving Credit Advance to be made
by such other Lender on the date of any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally
agrees that the Borrower may make Competitive Bid Borrowings under this Section
2.03 from time to time on any Business Day during the period from the date
hereof until the date occurring 30 days prior to the Termination Date in the
manner set forth below; provided that, following the making of each Competitive
Bid Borrowing, the aggregate amount of the Advances then outstanding (based in
respect of any Advance denominated in a Foreign Currency on the Equivalent in
Dollars at the time such Competitive Bid Borrowing is requested) shall not
exceed the aggregate amount of the Commitments of the Lenders (computed without
regard to any Competitive Bid Reduction); provided further that until the
Sandvik Funding Date, following the making of each Competitive Bid Borrowing,
the aggregate amount of the Advances then outstanding (based in respect of any
Advance denominated in a Foreign Currency on the Equivalent in Dollars at the
time such Competitive Bid Borrowing is requested) shall not exceed the aggregate
amount of one third of the Commitments of the Lenders (computed without regard
to any Competitive Bid Reduction).
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent (and, in the case of a
Competitive Bid Borrowing not consisting of Fixed Rate Advances or LIBO
Rate Advances to be denominated in Dollars, simultaneously to the
Sub-Agent), by telecopier or telex, a notice of a Competitive Bid
Borrowing (a "Notice of Competitive Bid Borrowing"), in substantially
the form of Exhibit B-2 hereto, specifying therein the requested (A)
date of such proposed Competitive Bid Borrowing, (B) aggregate amount
of such proposed Competitive Bid Borrowing, (C) interest rate basis and
day count convention to be offered by the Lenders, (D) currency of such
proposed Competitive Bid Borrowing, (E) in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances, Interest Period, or in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances or Local Rate Advances, maturity date for repayment of each
Fixed Rate Advance or Local Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than
the date occurring seven days after the date of such Competitive Bid
Borrowing or later than the earlier of (I) 180 days after the date of
such Competitive Bid Borrowing and (II) the Termination Date), (F)
interest payment date or dates relating thereto, (G) location of the
Borrower's account to which funds are to be advanced and (H) other
terms (if any) to be applicable to such Competitive Bid Borrowing, not
later than (w) 10:00 A.M. (New York City time) at least two Business
Days prior to the date of the proposed Competitive Bid Borrowing, if
the Borrower shall specify in the Notice of Competitive Bid Borrowing
that the rates of interest to be offered by the Lenders shall be fixed
rates per annum (the Advances comprising any such Competitive Bid
Borrowing being referred to herein as "Fixed Rate Advances") and that
the Advances comprising such proposed Competitive Bid Borrowing shall
be denominated in Dollars, (x) 10:00 A.M. (New York City time) at least
four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall specify in the Notice of Competitive
Bid Borrowing that the Advances comprising such Competitive Bid
Borrowing shall be LIBO Rate Advances denominated in Dollars, (y) 10:00
A.M. (London time) at least two Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall specify in
the Notice of Competitive Bid Borrowing that the Advances comprising
such proposed Competitive Bid Borrowing shall be either Fixed Rate
Advances denominated in any Foreign Currency or Local Rate Advances
denominated in any Foreign Currency and (z) 10:00 A.M. (London time) at
least four Business Days prior to the date of the proposed Competitive
Bid Borrowing, if the Borrower shall instead specify in the Notice of
Competitive Bid Borrowing that the Advances comprising such Competitive
Bid Borrowing shall be LIBO Rate Advances denominated in any Foreign
Currency. The Agent shall in turn promptly notify each Lender of each
request for a Competitive Bid Borrowing received by it from the
Borrower by sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Agent or the Sub-Agent, as the case may be
(which shall give prompt notice thereof to the Borrower), (A) before
9:30 A.M. (New York City time) on the date of such proposed Competitive
Bid Borrowing, in the
<PAGE>
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances
denominated in Dollars, (B) before 10:00 A.M. (New York City time)
three Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, denominated in Dollars, (C) before 12:00 noon
(London time) on the Business Day prior to the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of either Fixed Rate Advances denominated in any Foreign
Currency or Local Rate Advances denominated in any Foreign Currency and
(D) before 12:00 noon (London time) on the third Business Day prior to
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances denominated
in any Foreign Currency, of the minimum amount and maximum amount of
each Competitive Bid Advance which such Lender would be willing to make
as part of such proposed Competitive Bid Borrowing (which amounts or
the Equivalent thereof in Dollars, as the case may be, of such proposed
Competitive Bid may, subject to the provisos to the first sentence of
this Section 2.03(a), exceed such Lender's Commitment, if any), the
rate or rates of interest therefor and such Lender's Applicable Lending
Office with respect to such Competitive Bid Advance; provided that if
the Agent in its capacity as a Lender shall, in its sole discretion,
elect to make any such offer, it shall notify the Borrower of such
offer at least 30 minutes before the time and on the date on which
notice of such election is to be given to the Agent or to the
Sub-Agent, as the case may be, by the other Lenders. If any Lender
shall elect not to make such an offer, such Lender shall so notify the
Agent before 10:00 A.M. (New York City time) or the Sub-Agent before
12:00 noon (London time) on the date on which notice of such election
is to be given to the Agent or to the Sub-Agent, as the case may be, by
the other Lenders, and such Lender shall not be obligated to, and shall
not, make any Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive Bid
Advance as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, (A) before 10:30 A.M. (New
York City time) on the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances denominated in Dollars, (B) before 11:00 A.M. (New York City
time) three Business Days before the date of such proposed Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances denominated in Dollars, (C) before 3:00 P.M. (London
time) on the Business Day prior to the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of either Fixed Rate Advances denominated in any Foreign
Currency or Local Rate Advances denominated in any Foreign Currency and
(D) before 3:00 P.M. (London time) on the third Business Day prior to
the date of such Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances denominated
in any Foreign Currency, either:
(x) cancel such Competitive Bid Borrowing by giving
the Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Agent or to the
Sub-Agent, as the case may be, of the amount of each
Competitive Bid Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the Agent or the
Sub-Agent, as the case may be, on behalf of such Lender for
such Competitive Bid Advance pursuant to paragraph (ii) above)
to be made by each Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Lenders
pursuant to paragraph (ii) above by giving the Agent or the
Sub-Agent, as the case may be, notice to that effect. The
Borrower shall accept the offers made by any Lender or Lenders
to make Competitive Bid Advances in order of the lowest to the
highest rates of interest offered by such Lenders. If two or
more Lenders have offered the same interest rate, the amount
to be borrowed at such interest rate will be allocated among
such Lenders in proportion to the amount that each such Lender
offered at such interest rate.
<PAGE>
(iv) If the Borrower notifies the Agent or the Sub-Agent, as
the case may be, that such Competitive Bid Borrowing is cancelled
pursuant to paragraph (iii)(x) above, the Agent or the Sub-Agent, as
the case may be, shall give prompt notice thereof to the Lenders and
such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent
or the Sub-Agent, as the case may be, shall in turn promptly notify (A)
each Lender that has made an offer as described in paragraph (ii)
above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the Borrower,
(B) each Lender that is to make a Competitive Bid Advance as part of
such Competitive Bid Borrowing, of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon receipt, that
the Agent or the Sub-Agent, as the case may be, has received forms of
documents appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing shall, before 11:00 A.M. (New
York City time), in the case of Competitive Bid Advances to be
denominated in Dollars or 11:00 A.M. (London time), in the case of
Competitive Bid Advances to be denominated in any Foreign Currency, on
the date of such Competitive Bid Borrowing specified in the notice
received from the Agent or the Sub-Agent, as the case may be, pursuant
to clause (A) of the preceding sentence or any later time when such
Lender shall have received notice from the Agent or the Sub-Agent, as
the case may be pursuant to clause (C) of the preceding sentence, make
available for the account of its Applicable Lending Office to the Agent
(x) in the case of a Competitive Bid Borrowing denominated in Dollars,
at its address referred to in Section 8.02, in same day funds, such
Lender's portion of such Competitive Bid Borrowing in Dollars and (y)
in the case of a Competitive Bid Borrowing in a Foreign Currency, at
the Payment Office for such Foreign Currency as shall have been
notified by the Agent to the Lenders prior thereto, in same day funds,
such Lender's portion of such Competitive Bid Borrowing in such Foreign
Currency. Upon fulfillment of the applicable conditions set forth in
Article III and after receipt by the Agent of such funds, the Agent
will make such funds available to the Borrower at the location
specified by the Borrower in its Notice of Competitive Bid Borrowing.
Promptly after each Competitive Bid Borrowing the Agent will notify
each Lender of the amount of the Competitive Bid Borrowing, the
consequent Competitive Bid Reduction and the dates upon which such
Competitive Bid Reduction commenced and will terminate.
(vi) If the Borrower notifies the Agent or the Sub-Agent, as
the case may be, that it accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, such notice of
acceptance shall be irrevocable and binding on the Borrower. The
Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or
before the date specified in the related Notice of Competitive Bid
Borrowing for such Competitive Bid Borrowing the applicable conditions
set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Competitive Bid Advance to be made
by such Lender as part of such Competitive Bid Borrowing when such
Competitive Bid Advance, as a result of such failure, is not made on
such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$10,000,000 (or the Equivalent thereof in any Foreign Currency, determined as of
the time of the applicable Notice of Competitive Bid Borrowing) or an integral
multiple of $1,000,000 (or the Equivalent thereof in any Foreign Currency,
determined as of the time of the applicable Notice of Competitive Bid Borrowing)
in excess thereof and, following the making of each Competitive Bid Borrowing,
the Borrower shall be in compliance with the limitations set forth in the
provisos to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under this Section 2.03, repay
or prepay pursuant to subsection (d) below, and reborrow
<PAGE>
under this Section 2.03, provided that a Competitive Bid Borrowing shall not be
made within three Business Days of the date of any other Competitive Bid
Borrowing.
(d) The Borrower shall repay to the Agent for the account of each
Lender that has made a Competitive Bid Advance, on the maturity date of each
Competitive Bid Advance (such maturity date being that specified by the Borrower
for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance),
the then unpaid principal amount of such Competitive Bid Advance. The Borrower
shall have no right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive
Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of
each Competitive Bid Advance from the date of such Competitive Bid Advance to
the date the principal amount of such Competitive Bid Advance is repaid in full,
at the rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) above, payable on the interest payment date or
dates specified by the Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during the continuance of an Event of Default,
the Borrower shall pay interest on the amount of unpaid principal of and
interest on each Competitive Bid Advance owing to a Lender, payable in arrears
on the date or dates interest is payable thereon, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such
Competitive Bid Advance under the terms of the Competitive Bid Note evidencing
such Competitive Bid Advance unless otherwise agreed in such Competitive Bid
Note.
(f) The indebtedness of the Borrower resulting from each Competitive
Bid Advance made to the Borrower as part of a Competitive Bid Borrowing shall be
evidenced by a separate Competitive Bid Note of the Borrower payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount of
such Lender's Commitment from the Effective Date in the case of each Initial
Lender and from the later of the Effective Date and the effective date specified
in the Assumption Agreement or in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender until the earlier of
the Term Loan Conversion Date and the Termination Date at a rate per annum equal
to the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing September 30, 1999, and on the Term Loan Conversion Date or the
Termination Date, as the case may be.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Borrower and
the Agent.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower shall have the right, upon at least three Business Days'
notice to the Agent, to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and provided further that the aggregate
amount of the Commitments of the Lenders shall not be reduced to an amount that
is less than the aggregate principal amount of the Competitive Bid Advances
denominated in Dollars then outstanding plus the Equivalent in Dollars
(determined as of the date of the notice of prepayment) of the aggregate
principal amount of the Competitive Bid Advances denominated in Foreign
Currencies then outstanding.
(b) Mandatory. On the Termination Date, if the Borrower has
made the Term Loan Election in accordance with Section 2.06 prior to
such date, and from time to time after the Termination Date upon each
prepayment of the Revolving Credit Advances, the Commitments of the
Lenders shall be
<PAGE>
automatically and permanently reduced on a pro rata basis by an amount
equal to the amount by which (i) the aggregate Commitments immediately
prior to such reduction exceeds (ii) the aggregate unpaid principal
amount of all Revolving Credit Advances outstanding at such time.
SECTION 2.06. Repayment of Revolving Credit Advances. The Borrower
shall, subject to the next succeeding sentence, repay to the Agent for the
ratable account of the Lenders on the Termination Date the aggregate principal
amount of the Revolving Credit Advances then outstanding. The Borrower may, upon
not less than 15 days' notice to the Agent, elect (the "Term Loan Election") to
convert all of the Revolving Credit Advances outstanding on the Termination Date
in effect at such time into a term loan which the Borrower shall repay in full
ratably to the Lenders on the Maturity Date; provided that the Term Loan
Election may not be exercised if (a) a Default has occurred and is continuing on
the date of notice of the Term Loan Election or on the date on which the Term
Loan Election is to be effected or (b) the Borrower has requested an extension
of the Termination Date in accordance with Section 2.18 and the applicable
Extension Date has not occurred. All Revolving Credit Advances converted into a
term loan pursuant to this Section 2.06 shall continue to constitute Revolving
Credit Advances except that the Borrower may not reborrow pursuant to Section
2.01 after all or any portion of such Revolving Credit Advances have been
prepaid pursuant to Section 2.10.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of each
Revolving Credit Advance owing to each Lender from the date of such Revolving
Credit Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (x) the Base Rate in effect from time to time plus
(y) the Applicable Margin in effect from time to time plus (z) the
Applicable Utilization Fee in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per
annum equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurocurrency Rate for such
Interest Period for such Revolving Credit Advance plus (y) the
Applicable Margin in effect from time to time plus (z) the Applicable
Utilization Fee in effect from time to time, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurocurrency Rate Advance shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of
an Event of Default, the Borrower shall pay interest on (i) the unpaid principal
amount of each Revolving Credit Advance owing to each Lender, payable in arrears
on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above and
(ii) to the fullest extent permitted by law, the amount of any interest, fee or
other amount payable hereunder that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) The Agent shall give
prompt notice to the Borrower and the Lenders of the applicable interest rate
determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Agent that (i) they are unable to obtain matching deposits in
the London inter-bank market at or about 11:00 A.M.
<PAGE>
(London time) on the second Business Day before the making of a Borrowing in
sufficient amounts to fund their respective Revolving Credit Advances as a part
of such Borrowing during its Interest Period or (ii) the Eurocurrency Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurocurrency Rate Advances for such Interest Period, the Agent shall forthwith
so notify the Borrower and the Lenders, whereupon (A) the Borrower will, on the
last day of the then existing Interest Period therefor, (1) if such Eurocurrency
Rate Advances are denominated in Dollars, either (x) prepay such Advances or (y)
Convert such Advances into Base Rate Advances and (2) if such Eurocurrency Rate
Advances are denominated in any Committed Currency, either (x) prepay such
Advances or (y) redenominate such Advances into an Equivalent amount of Dollars
and Convert such Advances into Base Rate Advances and (B) the obligation of the
Lenders to make, or to Convert Revolving Credit Advances into, Eurocurrency Rate
Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist; provided
that, if the circumstances set forth in clause (ii) above are applicable, the
Borrower may elect, by notice to the Agent and the Lenders, to continue such
Advances in such Committed Currency for Interest Periods of not longer than one
month, which Advances shall thereafter bear interest at a rate per annum equal
to the Applicable Margin plus, for each Lender, the cost to such Lender
(expressed as a rate per annum) of funding its Eurocurrency Rate Advances by
whatever means it reasonably determines to be appropriate. Each Lender shall
certify its cost of funds for each Interest Period to the Agent and the Borrower
as soon as practicable (but in any event not later than ten Business Days after
the first day of such Interest Period).
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurocurrency Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor, be
continued as Eurocurrency Rate Advances having an interest period of one month.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurocurrency Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, (A) if such Eurocurrency Rate
Advances are denominated in Dollars, be Converted into Base Rate Advances and
(B) if such Eurocurrency Rate Advances are denominated in any Committed
Currency, be redenominated into an Equivalent amount of Dollars and be Converted
into Base Rate Advances and (ii) the obligation of the Lenders to make, or to
Convert Advances into, Eurocurrency Rate Advances shall be suspended; provided
that Borrower may elect, by notice to the Agent and the Lenders within one
Business Day of such Event of Default, to continue such Advances in such
Committed Currency, whereupon the Agent may require that each Interest Period
relating to such Eurocurrency Rate Advances shall bear interest at the Overnight
Eurocurrency Rate for a period of three Business Days and thereafter, each such
Interest Period shall have a duration of not longer than one month. "Overnight
Eurocurrency Rate" means the rate per annum applicable to an overnight period
beginning on one Business Day and ending on the next Business Day equal to the
sum of 1%, the Applicable Interest Rate Margin and the average, rounded upward
to the nearest whole multiple of 1/16 of 1%, if such average is not such a
multiple, of the respective rates per annum quoted by each Reference Bank to the
Agent on request as the rate at which it is offering overnight deposits in the
relevant currency in amounts comparable to such Reference Bank's Eurocurrency
Rate Advances.
(f) If Dow Jones Markets Telerate Page 3750 is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for determining
the Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO
Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such
Eurocurrency Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, (A) if such Eurocurrency Rate Advance is
<PAGE>
denominated in Dollars, be prepaid by the Borrower or be automatically
Converted into a Base Rate Advance and (B) if such Eurocurrency Rate
Advance is denominated in any Committed Currency, be prepaid by the
Borrower or be automatically redenominated into an Equivalent amount of
Dollars and be Converted into a Base Rate Advance (or if such Advance
is then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
into Eurocurrency Rate Advances shall be suspended until the Agent
shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and 2.12,
Convert all Revolving Credit Advances denominated in Dollars of one Type
comprising the same Borrowing into Revolving Credit Advances denominated in
Dollars of the other Type; provided, however, that any Conversion of
Eurocurrency Rate Advances into Base Rate Advances shall be made only on the
last day of an Interest Period for such Eurocurrency Rate Advances, any
Conversion of Base Rate Advances into Eurocurrency Rate Advances shall be in an
amount not less than the minimum amount specified in Section 2.02(b) and no
Conversion of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(b). Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Dollar denominated Revolving Credit
Advances to be Converted, and (iii) if such Conversion is into Eurocurrency Rate
Advances, the duration of the initial Interest Period for each such Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Revolving Credit Advances. (a) Optional.
The Borrower may, upon notice at least two Business Days' prior to the date of
such prepayment, in the case of Eurocurrency Rate Advances, and not later than
11:00 A.M. (New York City time) on the date of such prepayment, in the case of
Base Rate Advances, to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the Revolving Credit Advances
comprising part of the same Revolving Credit Borrowing in whole or ratably in
part without premium or penalty, together with accrued interest to the date of
such prepayment on the principal amount prepaid; provided, however, that (x)
each partial prepayment shall be in an aggregate principal amount of $10,000,000
or an integral multiple of $1,000,000 in excess thereof or the Equivalent
thereof in a Committed Currency (determined on the date notice of prepayment is
given) and (y) in the event of any such prepayment of a Eurocurrency Rate
Advance, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(c).
(b) Mandatory Prepayments. (i) If the Agent notifies the Borrower that,
on any interest payment date, the sum of (A) the aggregate principal amount of
all Advances denominated in Dollars then outstanding plus (B) the Equivalent in
Dollars (determined on the third Business Day prior to such interest payment
date) of the aggregate principal amount of all Advances denominated in Foreign
Currencies then outstanding exceeds 103% of the aggregate Commitments of the
Lenders on such date, the Borrower shall, within two Business Days after receipt
of such notice, prepay the outstanding principal amount of any Advances owing by
the Borrower in an aggregate amount sufficient to reduce such sum to an amount
not to exceed 100% of the aggregate Commitments of the Lenders on such date.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall be
made together with any interest accrued to the date of such prepayment on the
principal amounts prepaid and, in the case of any prepayment of a Eurocurrency
Rate Advance, a LIBO Rate Advance or a Local Rate Advance on a date other than
the last day of an Interest Period or at its maturity, any additional amounts
which the Borrower shall be obligated to reimburse to the Lenders in respect
thereof pursuant to Section 8.04(c). The Agent shall give prompt notice of any
prepayment required under this Section 2.10(b) to the Borrower and the Lenders.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request issued by any
<PAGE>
central bank or other governmental authority including, without limitation, any
agency of the European Union or similar monetary or multinational authority
after the date hereof (whether or not having the force of law), there shall be
any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurocurrency Rate Advances or LIBO Rate Advances (excluding for
purposes of this Section 2.11 any such increased costs resulting from (i) Taxes
or Other Taxes (as to which Section 2.14 shall govern) and (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender is organized or is otherwise subject to tax), then the Borrower shall
from time to time, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost, provided that the
Borrower shall not be required to pay any such additional amounts to the extent
such additional amounts accrued prior to the date that is six months prior to
the date of such notice. A certificate as to the amount of such increased cost,
submitted to the Borrower and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or regulation
or any guideline or request from any central bank or other governmental
authority (whether or not having the force of law) affects or would affect the
amount of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the Agent), the Borrower shall pay to the Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurocurrency Lending Office to perform its obligations
hereunder to make Eurocurrency Rate Advances in Dollars or any Committed
Currency or LIBO Rate Advances in Dollars or any Foreign Currency or to fund or
maintain Eurocurrency Rate Advances in Dollars or any Committed Currency or LIBO
Rate Advances in Dollars or any Foreign Currency hereunder, (a) each
Eurocurrency Rate Advance or LIBO Rate Advance, as the case may be, will
automatically, upon such demand, (i) if such Eurocurrency Rate Advance or LIBO
Rate Advance is denominated in Dollars, be Converted into a Base Rate Advance or
an Advance that bears interest at the rate set forth in Section 2.07(a)(i), as
the case may be, and (ii) if such Eurocurrency Rate Advance or LIBO Rate Advance
is denominated in any Foreign Currency, be redenominated into an Equivalent
amount of Dollars and be Converted into a Base Rate Advance or an Advance that
bears interest at the rate set forth in Section 2.07(a)(i), as the case may be,
and (b) the obligation of the Lenders to make Eurocurrency Rate Advances or LIBO
Rate Advances or to Convert Revolving Credit Advances into Eurocurrency Rate
Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make
each payment hereunder, except with respect to principal of, interest on, and
other amounts relating to, Advances denominated in a Foreign Currency, not later
than 11:00 A.M. (New York City time) on the day when due in Dollars to the Agent
at the applicable Agent's Account in same day funds. The Borrower shall make
each payment hereunder with respect to principal of, interest on, and other
amounts relating to, Advances denominated in a Foreign Currency, not later than
11:00 A.M. (at the Payment Office for such Foreign Currency) on the day when due
in such Foreign Currency to the Agent, by deposit of such funds to the
applicable Agent's Account in same day funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or facility fees ratably (other than amounts payable pursuant to
Section 2.03, 2.11, 2.14 or 8.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon any Assuming Lender becoming a Lender hereunder as
a result of an extension of the Termination Date pursuant to Section 2.18, and
upon the Agent's receipt of such Lender's
<PAGE>
Assumption Agreement and recording of the information contained therein in the
Register, from and after the applicable Extension Date, the Agent shall make all
payments hereunder and under any Notes issued in connection therewith in respect
of the interest assumed thereby to the Assuming Lender. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under the Note
held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due. Each Lender that charges
an account of the Borrower in accordance with this Section agrees to promptly so
notify the Borrower, provided that the failure to give such notice shall not
affect the validity of such charge.
(c) All computations of interest based on the Base Rate shall be made
by the Agent on the basis of a year of 365 or 366 days, as the case may be, all
computations of interest based on the Eurocurrency Rate or the Federal Funds
Rate and of facility fees shall be made by the Agent on the basis of a year of
360 days and computations in respect of Competitive Bid Advances shall be made
by the Agent or the Sub-Agent, as the case may be, as specified in the
applicable Notice of Competitive Bid Borrowing (or, in each case of Advances
denominated in Foreign Currencies where market practice differs, in accordance
with market practice), in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at (i) the Federal Funds Rate in the case of Advances
denominated in Dollars or (ii) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in Foreign
Currencies.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower hereunder
or under the Notes shall be made, in accordance with Section 2.13, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdictions in which such Lender or the Agent (as the case may
be) is otherwise subject to tax (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender or the Agent, (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.14) such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions
<PAGE>
been made, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for and hold
it harmless against the full amount of Taxes or Other Taxes (including, without
limitation, taxes of any kind imposed by any jurisdiction on amounts payable
under this Section 2.14) imposed on or paid by such Lender or the Agent (as the
case may be) and any liability (including penalties, interest and expenses not
incurred by reason of gross negligence or willful misconduct on the part of such
Lender or the Agent) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender or the
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
shall furnish to the Agent, at its address referred to in Section 8.02, the
original or a certified copy of a receipt evidencing such payment. In the case
of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel as requested by and acceptable to the Agent stating that such
payment is exempt from Taxes. For purposes of this subsection (d) and subsection
(e), the terms "United States" and "United States person" shall have the
meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assumption
Agreement or the Assignment and Acceptance pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter as requested
in writing by the Borrower (but only so long as such Lender remains lawfully
able to do so), shall provide each of the Agent and the Borrower with two
original Internal Revenue Service forms 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If the form
provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date. In addition, each Lender agrees that from time to time after the
Effective Date, when a change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the Borrower and the Agent two new accurate and complete original signed copies
of Internal Revenue Service Form 4224 or 1001, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement
of such Lender to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement or any Note,
unless any change in treaty, law or regulation has occurred after the date such
Lender becomes a party hereunder which renders all such forms inapplicable or
which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the Agent.
If any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
form 1001 or 4224, that the Lender
<PAGE>
reasonably considers to be confidential, the Lender shall give notice thereof to
the Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) Each Initial Lender hereby confirms as of the Effective Date, and
each other Lender confirms as of the effective date of the Assignment and
Acceptance pursuant to which it becomes a party hereto, in favor of the Agent
and the Borrower that either (i) such Lender is not resident in the United
Kingdom and is beneficially entitled to the Advances and the interest thereon or
(ii) it is a bank as defined for the purposes of Section 349 of the Income and
Corporation Taxes Act of 1988 of the United Kingdom and is beneficially entitled
to the Advances and the interest thereon, and each Lender agrees to notify the
Agent if there is any change in its position from that set forth in this clause
(f).
(g) For any period with respect to which a Lender has failed to provide
the Borrower with the appropriate form described in Section 2.14(e) (other than
if such failure is due to a change in law occurring subsequent to the date on
which a form originally was required to be provided, or if such form otherwise
is not required under subsection (e) above), such Lender shall not be entitled
to indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
(h) Any Lender claiming any additional amounts payable pursuant to this
Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurocurrency Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its ratable
share of payments on account of the Revolving Credit Advances obtained by all
the Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Revolving Credit
Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. The Borrower agrees that upon
notice by any Lender to the Borrower (with a copy of such notice to the Agent)
to the effect that a Revolving Credit Note is required or appropriate in order
for such Lender to evidence (whether for purposes of a permitted pledge,
enforcement or otherwise) the Revolving Credit Advances owing to, or to be made
by, such Lender, the Borrower shall promptly execute and deliver to such Lender
a Revolving Credit Note payable to the order of such Lender in a principal
amount up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 8.07(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if
<PAGE>
appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assumption Agreement and each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iv)
the amount of any sum received by the Agent from the Borrower hereunder and each
Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of principal
and interest due and payable or to become due and payable from the Borrower to,
in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest error; provided,
however, that the failure of the Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the Borrower under this
Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Borrower and its Subsidiaries.
SECTION 2.18. Extension of Termination Date. (a) At least 30 days but
not more than 45 days prior to the Termination Date, the Borrower, by written
notice to the Agent, may request an extension of the Termination Date in effect
at such time by 364 days from its then scheduled expiration; provided, however,
that the Borrower shall not have made the Term Loan Election for Revolving
Credit Advances outstanding on such Termination Date prior to such time. The
Agent shall promptly notify each Lender of such request, and each Lender shall
in turn, in its sole discretion, not later than 20 days prior to the Termination
Date, notify the Borrower and the Agent in writing as to whether such Lender
will consent to such extension. If any Lender shall fail to notify the Agent and
the Borrower in writing of its consent to any such request for extension of the
Termination Date at least 20 days prior to the Termination Date, such Lender
shall be deemed to be a Non-Consenting Lender with respect to such request. The
Agent shall notify the Borrower not later than 15 days prior to the Termination
Date of the decision of the Lenders regarding the Borrower's request for an
extension of the Termination Date.
(b) If all the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.18, the Termination Date in
effect at such time shall, effective as at the Termination Date (the "Extension
Date"), be extended for 364 days; provided that on each Extension Date the
applicable conditions set forth in Article III shall be satisfied. If less than
all of the Lenders consent in writing to any such request in accordance with
subsection (a) of this Section 2.18, the Termination Date in effect at such time
shall, effective as at the applicable Extension Date, be extended as to those
Lenders that so consented (each a "Consenting Lender") but shall not be extended
as to any other Lender (each a "Non-Consenting Lender"). To the extent that the
Termination Date is not extended as to any Lender pursuant to this Section 2.18
and the Commitment of such Lender is not assumed in accordance with subsection
(c) of this Section 2.18 on or prior to the applicable Extension Date, the
Commitment of such Non-Consenting Lender shall automatically terminate in whole
on such unextended Termination Date without any further notice or other action
by the Borrower, such Lender or any other Person; provided that such Non-
Consenting Lender's rights under Sections 2.11, 2.14 and 8.04, and its
obligations under Section 7.05, shall survive the Termination Date for such
Lender as to matters occurring prior to such date. It is understood and agreed
that no Lender shall have any obligation whatsoever to agree to any request made
by the Borrower for any requested extension of the Termination Date.
(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.18, the Agent shall promptly so
notify the Consenting Lenders, and each Consenting Lender may, in its sole
discretion, give written notice to the Agent not later than 10 days prior to the
Termination Date of the amount of the Non-Consenting Lenders' Commitments for
which it is willing to accept an assignment. If the Consenting Lenders notify
the Agent that they are willing to accept assignments of Commitments in an
aggregate amount that exceeds the amount of the Commitments of the
Non-Consenting Lenders, such Commitments shall be allocated among the Consenting
Lenders willing to accept such assignments in such amounts as are agreed between
the Borrower and the Agent. If after giving effect to the assignments of
Commitments described above there remains any Commitments of Non-Consenting
Lenders, the Borrower may arrange for one or more Consenting
<PAGE>
Lenders or other Eligible Assignees (each, an "Assuming Lender") to assume by
execution of an assumption agreement in form and substance satisfactory to the
Borrower and the Agent (each, an "Assumption Agreement"), effective as of the
Extension Date, any Non-Consenting Lender's remaining Commitment and all of the
obligations of such Non-Consenting Lender under this Agreement thereafter
arising, without recourse to or warranty by, or expense to, such Non-Consenting
Lender; provided, however, that the amount of the Commitment of any such
Assuming Lender as a result of such substitution shall in no event be less than
$10,000,000 unless the amount of the Commitment of such Non-Consenting Lender is
less than $10,000,000, in which case such Assuming Lender shall assume all of
such lesser amount; and provided further that:
(i) any such Consenting Lender or Assuming Lender shall have
paid to such Non-Consenting Lender (A) the aggregate principal amount
of, and any interest accrued and unpaid to the effective date of the
assignment on, the outstanding Advances, if any, of such Non-Consenting
Lender plus (B) any accrued but unpaid facility fees owing to such
Non-Consenting Lender as of the effective date of such assignment;
(ii) all additional costs reimbursements, expense
reimbursements and indemnities payable to such Non-Consenting Lender,
and all other accrued and unpaid amounts owing to such Non-Consenting
Lender hereunder, as of the effective date of such assignment shall
have been paid to such Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 8.07(a) for such
assignment shall have been paid;
provided further that such Non-Consenting Lender's rights under Sections 2.11,
2.14 and 8.04, and its obligations under Section 7.05, shall survive such
substitution as to matters occurring prior to the date of substitution and at
least three Business Days prior to any Extension Date, (A) each such Assuming
Lender, if any, shall have delivered to the Borrower and the Agent an Assumption
Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender,
the Borrower and the Agent, (B) any such Consenting Lender shall have delivered
confirmation in writing satisfactory to the Borrower and the Agent as to the
increase in the amount of its Commitment and (C) each Non-Consenting Lender
being replaced pursuant to this Section 2.18 shall have delivered to the Agent
any Note or Notes held by such Non-Consenting Lender. Upon the payment or
prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the
immediately preceding sentence, each such Consenting Lender or Assuming Lender,
as of the Extension Date, will be substituted for such Non-Consenting Lender
under this Agreement and shall be a Lender for all purposes of this Agreement,
without any further acknowledgment by or the consent of the other Lenders, and
the obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If Lenders holding Commitments equal to not less than 50% of the
Commitments outstanding immediately prior to the Extension Date (after giving
effect to any assignments pursuant to subsection (b) of this Section 2.18)
consent in writing to a requested extension (whether by execution or delivery of
an Assumption Agreement or otherwise) not later than one Business Day prior to
such Extension Date, the Agent shall so notify the Borrower, and, so long as no
Default shall have occurred and be continuing as of such Extension Date, or
shall occur as a consequence thereof, the Termination Date then in effect shall
be extended for the additional one-year period as described in subsection (a) of
this Section 2.18, and all references in this Agreement, and in the Notes, if
any, to the "Termination Date" shall, with respect to each Consenting Lender and
each Assuming Lender for such Extension Date, refer to the Termination Date as
so extended. Promptly following each Extension Date, the Agent shall notify the
Lenders (including, without limitation, each Assuming Lender) of the extension
of the scheduled Termination Date in effect immediately prior thereto and shall
thereupon record in the Register the relevant information with respect to each
such Consenting Lender and each such Assuming Lender.
<PAGE>
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and
as of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 1998.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect other than the matters described on Schedule
3.01(b) hereto (the "Disclosed Litigation") or (ii) purports to affect
the legality, validity or enforceability of this Agreement or any Note
or the consummation of the transactions contemplated hereby, and there
shall have been no adverse change in the status, or financial effect on
the Borrower or any of its Subsidiaries, of the Disclosed Litigation
from that described on Schedule 3.01(b) hereto.
(c) Nothing shall have come to the attention of the Lenders
during the course of their due diligence investigation to lead them to
believe that the Information Memorandum was or has become misleading,
incorrect or incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been given such
access to the management, records, books of account, contracts and
properties of the Borrower and its Subsidiaries as they shall have
reasonably requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders) and shall remain in effect, and no law
or regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(e) The Borrower shall have notified each Lender and the Agent
in writing as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and expenses
of the Agent and the Lenders (including the accrued fees and expenses
of counsel to the Agent).
(g) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated
the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agent and (except for the Revolving Credit Notes)
in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of the
Lenders to the extent requested by any Lender pursuant to
Section 2.16.
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower approving this Agreement and the
Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes.
<PAGE>
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder.
(iv) A favorable opinion of Susan F. Marrinan,
General Counsel of the Borrower, and a favorable opinion of
Foley & Lardner, counsel to the Borrower, substantially in the
form of Exhibit D-1 and Exhibit D-2 hereto, respectively, and
as to such other matters as any Lender through the Agent may
reasonably request.
(v) A favorable opinion of Shearman & Sterling,
counsel for the Agent, in form and substance satisfactory to
the Agent.
(i) The Borrower shall have repaid in full of all amounts
outstanding and terminated the commitments of the lenders under each of
(i) the $75,000,000 364-Day revolving credit agreement dated as of
March 23, 1998 between the Borrower and Citibank and (ii) the
$100,000,000 five year revolving credit agreement dated as of September
5, 1997 among the Borrower, Citibank, Bank of America NT&SA, The First
National Bank of Chicago and Bank of Montreal, and each of the Lenders
that is a party to either such credit agreement hereby waives, upon
execution of this Agreement, any notice requirement of such credit
agreement relating to the termination of commitments thereunder.
(j) The conditions precedent set forth in Section 3.01(a)
through (i) of the Five-Year Credit Agreement dated as of August 23,
1999 among the Borrower, the lenders parties thereto, Salomon Smith
Barney Inc., as lead arranger and book manager, Banc One Capital
Markets Inc., as co-arranger, Citibank, as administrative agent, and
The First National Bank of Chicago, as syndication agent, shall have
been satisfied.
SECTION 3.02. Conditions Precedent to Sandvik Funding Date. The
obligation of each Lender to make Advances in an aggregate amount greater than
one-third of such Lender's Commitment shall become effective on and as of the
date (the "Sandvik Funding Date") on which the Borrower delivers a certificate
to the Lenders certifying that the following conditions precedent have been
satisfied:
(a) All governmental and third party consents and approval
necessary in connection with the acquisition of the saw and tools
assets of Sandvik AB (the "Acquisition") shall have been obtained and
shall remain in effect; all applicable waiting periods in connection
with the Acquisition shall have expired without any action being taken
by any competent authority, and no law or regulation shall be
applicable in the judgment of the Required Lenders, in each case that
restrains, prevents or imposes materially adverse conditions upon the
Acquisition, the Borrower or any of its Subsidiaries.
(b) The conditions precedent to the Acquisition shall have
shall have been consummated (except only the delivery of closing
documents and the payment of the purchase price therefor) in compliance
with all applicable laws.
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing
and Extension Date. The obligation of each Lender to make a Revolving Credit
Advance on the occasion of each Revolving Credit Borrowing and each extension of
Commitments pursuant to Section 2.18 shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Revolving Credit Borrowing or the applicable Extension Date (a) the following
statements shall be true (and each of the giving of the applicable Notice of
Revolving Credit Borrowing, request for Commitment Extension and the acceptance
by the Borrower of the proceeds of such Revolving Credit Borrowing shall
constitute a representation and warranty by the Borrower that on the date of
such Borrowing or such Extension Date such statements are true):
(i) the representations and warranties contained in Section
4.01 (except, in the case of Revolving Credit Borrowings, the
representations set forth in the last sentence of subsection (e)
thereof and in subsection (f)(i) thereof) are correct on and as of such
date, before and after giving effect to such
<PAGE>
Revolving Credit Borrowing or such Extension Date and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(ii) no event has occurred and is continuing, or would result
from such Revolving Credit Borrowing, such Extension Date or from the
application of the proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing.
The obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (ii) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Agent shall have received a Competitive Bid Note payable to the order of such
Lender for each of the one or more Competitive Bid Advances to be made by such
Lender as part of such Competitive Bid Borrowing, in a principal amount equal to
the principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Competitive
Bid Borrowing such statements are true):
(a) the representations and warranties contained in Section
4.01 are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date,
(b) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the Borrower that has been
provided to the Agent and each Lender by the Borrower in connection
herewith would include an untrue statement of a material fact or omit
to state any material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they
were made, not misleading.
SECTION 3.05. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
<PAGE>
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes to be delivered by it, and the
consummation of the transactions contemplated hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Borrower's charter or
by-laws or (ii) law or any contractual restriction binding on or
affecting the Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required as a condition to the due
execution, delivery and performance by the Borrower of this Agreement
or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be
delivered by it when delivered hereunder will have been, duly executed
and delivered by the Borrower. This Agreement is, and each of the Notes
when delivered hereunder will be, the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1998, and the related Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Arthur Andersen LLP, independent public accountants, and the
Consolidated balance sheet of the Borrower and its Subsidiaries as at
June 30, 1999, and the related Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for the six months then
ended, duly certified by the chief financial officer of the Borrower,
copies of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheet as at June 30, 1999, and
said statements of income and cash flows for the six months then ended,
to year-end audit adjustments, the Consolidated financial condition of
the Borrower and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 1998,
there has been no Material Adverse Change. (f) There is no pending or
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Borrower or any of its Subsidiaries before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect (other than the Disclosed Litigation) or (ii)
purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions
contemplated hereby, and there has been no materially adverse change in
the status, or financial effect on the Borrower or any of its
Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(b) hereto.
(g) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock.
(h) The Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(i) The Borrower has (i) initiated a review and assessment of
all areas within its and each of its Subsidiaries' business and
operations (including those affected by suppliers, vendors and
customers) that could be adversely affected by the risk that computer
applications used by the Borrower or any of its Subsidiaries (or
suppliers, vendors and customers) may be unable to recognize and
perform properly date sensitive functions involving certain dates prior
to and any date after December 31, 1999 (the "Year 2000 Problem"), (ii)
developed a plan and timetable for addressing the Year 2000 Problem on
a timely basis and (iii) to date, implemented that plan in accordance
with such timetable. Based on the foregoing, the
<PAGE>
Borrower believes that all computer applications (including those of
its suppliers, vendors and customers) that are material to its or any
of its Subsidiaries' business and operations are reasonably expected on
a timely basis to be able to perform properly date-sensitive functions
for all dates before, on and after January 1, 2000, except to the
extent that a failure to do so would not reasonably be expected to have
a Material Adverse Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
and material laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental
Laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates; provided, however, that the
Borrower and its Subsidiaries may self-insure to the same extent as
other companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower or such
Subsidiary operates and to the extent consistent with prudent business
practice.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(b)
and provided further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right or franchise if
the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Borrower or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time and, so long as no Default has occurred and is continuing, upon
reasonable notice, permit the Agent or any of the Lenders or any agents
or representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent certified
public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
<PAGE>
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate, provided that the Borrower and its
Subsidiaries may transact business with Snap-On Credit LLC on a basis
consistent with past practice.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45
days after the end of each of the first three quarters of each
fiscal year of the Borrower, the Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such
quarter and Consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end
of such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer or treasurer of
the Borrower as having been prepared in accordance with
generally accepted accounting principles and certificates of
the chief financial officer or treasurer of the Borrower as to
compliance with the terms of this Agreement and setting forth
in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of
any change in GAAP used in the preparation of such financial
statements, the Borrower shall also provide, if necessary for
the determination of compliance with Section 5.03, a statement
of reconciliation conforming such financial statements to
GAAP;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and
its Subsidiaries, containing the Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such fiscal
year and Consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for such fiscal year, in
each case accompanied by an opinion acceptable to the Required
Lenders by Arthur Andersen LLP or other independent public
accountants acceptable to the Required Lenders, provided that
in the event of any change in GAAP used in the preparation of
such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
(iii) as soon as possible and in any event within
five days after the occurrence of each Default continuing on
the date of such statement, a statement of the chief financial
officer or treasurer of the Borrower setting forth details of
such Default and the action that the Borrower has taken and
proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports that the Borrower sends to any of its
securityholders as such, and copies of all reports and
registration statements that the Borrower or any Subsidiary
files with the Securities and Exchange Commission or any
national securities exchange;
(v) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Borrower or any of its
Subsidiaries of the type described in Section 4.01(f); and
(vi) such other information respecting the Borrower
or any of its Subsidiaries as any Lender through the Agent may
from time to time reasonably request.
<PAGE>
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real
property or equipment acquired or held by the Borrower or any
Subsidiary in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing the acquisition
of such property or equipment, or Liens existing on such
property or equipment at the time of its acquisition (other
than any such Liens created in contemplation of such
acquisition that were not incurred to finance the acquisition
of such property) or extensions, renewals or replacements of
any of the foregoing for the same or a lesser amount,
provided, however, that no such Lien shall extend to or cover
any properties of any character other than the real property
or equipment being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not
theretofore subject to the Lien being extended, renewed or
replaced, provided further that the aggregate principal amount
of the indebtedness secured by the Liens referred to in this
clause (ii) shall not exceed $25,000,000,
(iii) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the
Borrower or any Subsidiary of the Borrower or becomes a
Subsidiary of the Borrower; provided that such Liens were not
created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those
of the Person so merged into or consolidated with the Borrower
or such Subsidiary or acquired by the Borrower or such
Subsidiary,
(v) other Liens securing Debt in an aggregate
principal amount not to exceed $50,000,000 at any time
outstanding,
(vi) sales of accounts receivable arising in
connection a transaction described in the proviso to the
definition of "Debt" in Section 1.01, and
(vii) the replacement, extension or renewal of any
Lien permitted by clause (iii) or (iv) above upon or in the
same property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby.
(b) Mergers, Etc. Merge or 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, any Person, or
permit any of its Subsidiaries to do so, except that (i) any Subsidiary
of the Borrower may merge or consolidate with or into, or dispose of
assets to, any other Subsidiary of the Borrower, (ii) any Subsidiary of
the Borrower may merge into or dispose of assets to the Borrower and
(iii) the Borrower may merge into a wholly owned Subsidiary of the
Borrower that has no material assets or liabilities for the sole
purpose of changing the state of incorporation of the Borrower if the
surviving corporation shall expressly assume the liabilities of the
Borrower under this Agreement and the Notes, provided, in each case,
that no Default shall have occurred and be continuing at the time of
such proposed transaction or would result therefrom.
<PAGE>
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
(d) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of the business
of the Borrower and its Subsidiaries taken as a whole as carried on at
the date hereof.
SECTION 5.03. Financial Covenant. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will
maintain a ratio of Consolidated Debt to the sum of Consolidated Debt plus
shareholders' equity of not greater than 0.60:1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or the Borrower shall
fail to pay any interest on any Advance or make any other payment of
fees or other amounts payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(d), (e) or (i),
5.02 or 5.03, or (ii) the Borrower shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if such failure shall remain
unremedied for 30 days after written notice thereof shall have been
given to the Borrower by the Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that is outstanding
in a principal or net amount of at least $25,000,000 in the aggregate
(but excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The Borrower or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for
<PAGE>
relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property
and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 60 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its
property) shall occur; or the Borrower or any of its Subsidiaries shall
take any corporate action to authorize any of the actions set forth
above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of
$25,000,000 in the aggregate shall be rendered against the Borrower or
any of its Subsidiaries with respect to which (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgments or orders or (ii) there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgments or orders, by
reason of a pending appeal or otherwise, shall not be in effect;
provided, however, that any such judgment or order shall not be an
Event of Default or included in the calculation of the aggregate amount
of judgments or orders under this Section 6.01(f) if and for so long as
(i) the amount of such judgment or order is covered by a valid and
binding policy of insurance between the defendant and the insurer
covering payment thereof and (ii) such insurer, which shall be rated at
least "A" by A.M. Best Company, has been notified of, and has not
disputed the claim made for payment of, the amount of such judgment or
order; or
(g) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Subsidiaries that would be
reasonably expected to have a Material Adverse Effect, and there shall
be any period of 10 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) (i) Any Person or two or more Persons acting in concert
(other than any Related Person) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Borrower (or other
securities convertible into such Voting Stock) representing 15% or more
of the combined voting power of all Voting Stock of the Borrower; or
(ii) during any period of up to 24 consecutive months, commencing after
the date of this Agreement, individuals who at the beginning of such
24-month period were directors of the Borrower shall cease for any
reason to constitute a majority of the board of directors of the
Borrower; or (iii) any Person or two or more Persons acting in concert
(other than any Related Person) shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that,
upon consummation, will result in its or their acquisition of the power
to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(i) The Borrower or any of its ERISA Affiliates shall incur,
or shall be reasonably likely to incur liability in excess of
$25,000,000 in the aggregate as a result of one or more of the
following: (i) the occurrence of any ERISA Event; (ii) the partial or
complete withdrawal of the Borrower or any of its ERISA Affiliates from
a Multiemployer Plan; or (iii) the reorganization or termination of a
Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
<PAGE>
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
Lender that made any Advance as the holder of the Debt resulting therefrom until
the Agent receives and accepts an Assumption Agreement entered into by an
Assuming Lender as provided in Section 2.18 or an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 8.07; (ii) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex) believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its Commitment,
the Advances made by it and the Note issued to it, Citibank shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Citibank in its individual
capacity. Citibank and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, accept investment banking engagements from
and generally engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Citibank were not the Agent and
without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent
(to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the Revolving Credit Advances then owed to each
of them (or if no Revolving Credit Advances are at the time outstanding, ratably
<PAGE>
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under this Agreement (collectively, the "Indemnified
Costs"), provided that no Lender shall be liable for any portion of the
Indemnified Costs resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including reasonable counsel fees) 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, to the extent that the Agent is not reimbursed for such expenses
by the Borrower. In the case of any investigation, litigation or proceeding
giving rise to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a
third party.
SECTION 7.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent with the consent, not to be unreasonably withheld or delayed, of
the Borrower so long as no Default has occurred and is continuing. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation or the Required Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders and with the consent, not
to be unreasonably withheld or delayed, of the Borrower so long as no Default
has occurred and is continuing, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
SECTION 7.07. Sub-Agent. The Sub-Agent has been designated under this
Agreement to carry out duties of the Agent. The Sub-Agent shall be subject to
each of the obligations in this Agreement to be performed by the Sub-Agent, and
each of the Borrower and the Lenders agrees that the Sub-Agent shall be entitled
to exercise each of the rights and shall be entitled to each of the benefits of
the Agent under this Agreement as relate to the performance of its obligations
hereunder.
SECTION 7.08. Other Agents. Each Lender hereby acknowledges that
neither the syndication agent nor any other Lender designated as any "Co-Agent"
on the signature pages hereof has any liability hereunder other than in its
capacity as a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Revolving Credit Notes, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Revolving Credit Advances or
any fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the Revolving Credit Advances or any
fees or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Revolving Credit
Advances, or
<PAGE>
the number of Lenders, that shall be required for the Lenders or any of them to
take any action hereunder or (f) amend this Section 8.01; and provided further
that no amendment, waiver or consent shall, unless in writing and signed by the
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and sent by reputable overnight courier, telecopied,
telegraphed, telexed or delivered, if to the Borrower, at its address at 10801
Corporate Drive, Pleasant Prairie, Wisconsin 53158, Attention: Donald S. Huml,
Senior Vice President and Chief Financial Officer, and Jefferey F. Kostrzewa,
Director Treasury Operations and Finance, with copies to 2810 80th Street,
Kenosha, Wisconsin 53141-1410, Attention: Susan F. Marrinan, General Counsel; if
to any Initial Lender, at its Domestic Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assumption Agreement or the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Agent, at its address at Two
Penns Way, New Castle, Delaware 19720, Attention: Bank Loan Syndications
Department; or, as to the Borrower or the Agent, at such other address as shall
be designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Agent. All such notices and
communications shall, when sent by overnight courier, telecopied, telegraphed or
telexed, be effective when deposited with the courier, telecopied, delivered to
the telegraph company or confirmed by telex answerback, respectively, except
that notices and communications to the Agent pursuant to Article II, III or VII
shall not be effective until received by the Agent. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender
or the Agent to exercise, and no delay in exercising, any right hereunder or
under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and expenses
of the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances or (ii) the actual or alleged presence of Hazardous Materials on
any property of the Borrower or any of its Subsidiaries, except to the extent
(x) such claim, damage, loss, liability or expense resulted from such
Indemnified Party's gross negligence or willful misconduct or (ii) such claim,
damage, loss or expense arises from a litigation or proceeding among Lenders. In
the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 8.04(b) applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the
Borrower, its directors, shareholders or creditors or an Indemnified Party or
any other
<PAGE>
Person or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated. The Borrower also agrees
not to assert any claim for special, indirect, consequential or punitive damages
against the Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, arising out of or otherwise relating to the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurocurrency
Rate Advance, LIBO Rate Advance or Local Rate Advance is made by the Borrower to
or for the account of a Lender other than on the last day of the Interest Period
for such Advance, as a result of a payment or Conversion pursuant to Section
2.08(d) or (e), 2.10 or 2.12, acceleration of the maturity of the Notes pursuant
to Section 6.01 or for any other reason, or by an Eligible Assignee to a Lender
other than on the last day of the Interest Period for such Advance upon an
assignment of rights and obligations under this Agreement pursuant to Section
8.07 as a result of a demand by the Borrower pursuant to Section 8.07(a), the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate (but not including any insurance premiums) to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender and its Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender and its Affiliates may
have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may and,
if demanded by the Borrower (so long as no Default shall have occurred and be
continuing and following a demand by such Lender pursuant to Section 2.11 or
2.14 or a notice given by such Lender pursuant to Section 2.12) upon at least
five Business Days' notice to such Lender and the Agent, will assign to one or
more Persons all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Revolving Credit Advances owing to it and the Revolving Credit Note or Notes
held by it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under this
Agreement (other than any right to make Competitive Bid Advances, Competitive
Bid Advances owing to it and
<PAGE>
Competitive Bid Notes), (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender or an assignment of all
of a Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each such assignment
shall be to an Eligible Assignee, (iv) each such assignment made as a result of
a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by
the Borrower after consultation with the Agent and shall be either an assignment
of all of the rights and obligations of the assigning Lender under this
Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and
until such Lender shall have received one or more payments from either the
Borrower or one or more Eligible Assignees in an aggregate amount at least equal
to the aggregate outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this
Agreement, and (vi) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Revolving Credit Note subject to
such assignment and a processing and recordation fee of $3,000. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) 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, have the rights
and obligations of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in Section 8.02
a copy of each Assumption Agreement and each Assignment and Acceptance delivered
to and accepted by it and a register for the
<PAGE>
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Advances owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and any
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation. The Borrower agrees that
each participant shall be entitled to the benefits of Sections 2.11, 2.14 and
8.04(b) and (c) to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to this Section 8.07; provided that no
participant shall be entitled to receive any greater amount pursuant to any such
section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such participant had no such participation occurred.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to the Borrower
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and any Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any other Person without the consent of
the Borrower, other than (a) to the Agent's or such Lender's Affiliates and
their officers, directors, employees, agents and advisors and, as contemplated
by Section 8.07(f), to actual or prospective assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.10. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
<PAGE>
SECTION 8.11. Judgment. (a) If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder in Dollars into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase Dollars with
such other currency at Citibank's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(b) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in a Foreign Currency into Dollars, the
parties agree to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Agent could purchase such Foreign Currency with Dollars at
Citibank's principal office in London at 11:00 A.M. (London time) on the
Business Day preceding that on which final judgment is given.
(c) The obligation of the Borrower in respect of any sum due from it in
any currency (the "Primary Currency") to any Lender or the Agent hereunder
shall, notwithstanding any judgment in any other currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or the
Agent (as the case may be), of any sum adjudged to be so due in such other
currency, such Lender or the Agent (as the case may be) may in accordance with
normal banking procedures purchase the applicable Primary Currency with such
other currency; if the amount of the applicable Primary Currency so purchased is
less than such sum due to such Lender or the Agent (as the case may be) in the
applicable Primary Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent (as the
case may be) against such loss, and if the amount of the applicable Primary
Currency so purchased exceeds such sum due to any Lender or the Agent (as the
case may be) in the applicable Primary Currency, such Lender or the Agent (as
the case may be) agrees to remit to the Borrower such excess.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. The Borrower hereby irrevocably consents to the service
of process in any action or proceeding in such courts by the mailing thereof by
any parties hereto by registered or certified mail, postage prepaid, with an
additional notice by telecopier or by reputable overnight delivery service, to
the Borrower at its address specified pursuant to Section 8.02. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 8.13. Substitution of Currency. If a change in any Foreign
Currency occurs pursuant to any applicable law, rule or regulation of any
governmental, monetary or multi-national authority, this Agreement (including,
without limitation, the definitions of Eurocurrency Rate and LIBO Rate) will be
amended to the extent determined by the Agent (acting reasonably and in
consultation with the Borrower) to be necessary to reflect the change in
currency and to put the Lenders and the Borrower in the same position, so far as
possible, that they would have been in if no change in such Foreign Currency had
occurred. No such change in currency nor any economic consequences resulting
therefrom shall (a) give rise to any right to terminate prematurely, contest,
cancel, rescind, alter, modify or renegotiate the provisions of this Agreement
or (b) discharge, excuse or otherwise affect the performance of any obligations
of any of the Borrower or the Lenders under this Agreement.
<PAGE>
SECTION 8.15. Waiver of Jury Trial. Each of the Borrower, the Agent and
the Lenders hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or the Notes or the actions of the
Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SNAP-ON INCORPORATED
By /s/ Don Huml
Title: Senior Vice President-Finance
and Chief Financial Officer
CITIBANK, N.A.,
as Agent
By /s/ Robert D. Wetrus
Title: Vice President
Initial Lenders
Commitment Administrative Agent
$100,000,000 CITIBANK, N.A.
By /s/ Robert D. Wetrus
Title: Vice President
Syndication Agent
$100,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Deborah Stevens
Title: Senior Vice President
Co-Agents
$50,000,000 BANK OF AMERICA, N.A.
By /s/ M.H. Claggett
Title: Vice President
$50,000,000 MORGAN GUARANTY BANK AND TRUST COMPANY
OF NEW YORK
By /s/ So Vanna Day
Title: Vice President
<PAGE>
$50,000,000 SVENSKA HANDELSBANKEN AB (publ)
By /s/ Geoffrey Walker
Title: Senior Vice President
By /s/ Henrik Jensen
Title: Vice President
Lenders
$33,333,333 BARCLAYS BANK PLC
By /s/ Marlene Wechselblatt
Title: Vice President
$10,000,000 FIRSTAR BANK MILWAUKEE, N.A.
By /s/ R. Bruce Anthony
Title: Assistant Vice President
$6,666,667 CIBC INC.
By /s/ Dominic Sorresso
Title: Executive Director
$400,000,000 Total of the Commitments
<PAGE>
SCHEDULE I
SNAP-ON INCORPORATED
364-DAY CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Initial Lender Domestic Lending Office Eurocurrency Lending Office
- ----------------------- ------------------------- ------------------------------
Bank of America, N.A. 1850 Gateway Blvd. 1850 Gateway Blvd.
Concord, CA 94520 Concord, CA 94520
Attn: Debbie Conchongco Attn: Debbie Conchongco
T: 925 675-8913 T: 925 675-8913
F: 925 675-7539 F: 925 675-7539
- ----------------------- ------------------------- ------------------------------
Barclays Bank PLC 222 Broadway 222 Broadway
New York, NY 10038 New York, NY 10038
Attn: C. Tenn Attn: C. Tenn
T: 212 412-3728 T: 212 412-3728
F: 212 412-5308 F: 212 412-5308
- ----------------------- ------------------------- ------------------------------
CIBC Inc. Two Paces West Two Paces West
2727 Paces Ferry Road, 2727 Paces Ferry Road,
Suite 1200 Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Attn: Charlene Harris Attn: Charlene Harris
T: 770 319-4881 T: 770 319-4881
F: 770 319-4950 F: 770 319-4950
- ----------------------- ------------------------- ------------------------------
Citibank, N.A. Two Penns Way Two Penns Way
New Castle, DE 19720 New Castle, DE 19720
Attn: Maureen Prytula Attn: Maureen Prytula
T: 302 894-6089 T: 302 894-6089
F: 302 894-6120 F: 302 894-6120
- ----------------------- ------------------------- ------------------------------
Firstar Bank 777 E. Wisconsin Ave. 777 E. Wisconsin Ave.
Milwaukee, N.A. Milwaukee, WI 53202 Milwaukee, WI 53202
Attn: Bruce Anthony Attn: Bruce Anthony
T: 414 765-4724 T: 414 765-4724
F: 414 765-5367 F: 414 765-5367
- ----------------------- ------------------------- ------------------------------
The First National One First National Plaza, One First National Plaza,
Bank of Chicago Suite 0088 Suite 0088
Chicago, IL 60670 Chicago, IL 60670
Attn: Edna Guerra Attn: Edna Guerra
T: 312 732-9609 T: 312 732-9609
F: 312 732-2715 F: 312 732-2715
- ----------------------- ------------------------- ------------------------------
Morgan Guaranty Bank 60 Wall Street c/o J.P. Morgan Services Inc.
and Trust Company New York, NY 100260-0060 Euro-Loan Servicing Unit
of New York Attn: 500 Stanton Christiana Road
T: Newark DE 19713
F; Attn:
T;
F; 302 634-1094
- ----------------------- ------------------------- ------------------------------
Svenska Handelsbanken 153 East 53rd Street 153 East 53rd Street
AB (publ) New York, NY 10022 New York, NY 10022
Attn: Henrik Jenson Attn: Henrik Jenson
T: 212 326-5125 T: 212 326-5125
F: 212 326-5151 F: 212 326-5151
- ----------------------- ------------------------- ------------------------------
<PAGE>
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, SNAP-ON INCORPORATED, a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the later of the Termination Date and the Maturity Date (each
as defined in the Credit Agreement referred to below) the principal sum of
U.S.$[amount of the Lender's Commitment in figures] or, if less, the aggregate
principal amount of the Revolving Credit Advances made by the Lender to the
Borrower pursuant to the 364-Day Credit Agreement dated as of August 23, 1999
among the Borrower, the Lender and certain other lenders parties thereto,
Salomon Smith Barney Inc., as Lead Arranger and Book Manager, Banc One Capital
Markets Inc., as Co-Arranger, The First National Bank of Chicago, as Syndication
Agent, and Citibank, N.A. as Agent for the Lender and such other lenders (as
amended or modified from time to time, the "Credit Agreement"; the terms defined
therein being used herein as therein defined) outstanding on such date.
The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest in respect of each Revolving Credit Advance
(i) in Dollars are payable in lawful money of the United States of America to
the Agent at its account maintained at 399 Park Avenue, New York, New York
10043, in same day funds and (ii) in any Committed Currency are payable in such
currency at the applicable Payment Office in same day funds. Each Revolving
Credit Advance owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of Revolving Credit
Advances by the Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such Revolving
Credit Advance being evidenced by this Promissory Note, (ii) contains provisions
for determining the Dollar Equivalent of Revolving Credit Advances denominated
in Committed Currencies and (iii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
SNAP-ON INCORPORATED
By
Title:
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made By
---- ------- ---------- ------- -------
- ---------- --------------- ------------------- ----------------- ------------
- ---------- --------------- ------------------- ----------------- ------------
- ---------- --------------- ------------------- ----------------- ------------
- ---------- --------------- ------------------- ----------------- ------------
- ---------- --------------- ------------------- ----------------- ------------
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EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, SNAP-ON INCORPORATED, a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the 364-Day Credit Agreement dated as of August
23, 1999 among the Borrower, the Lender and certain other lenders parties
thereto, Salomon Smith Barney Inc., as Lead Arranger and Book Manager, Banc One
Capital Markets Inc., as Co-Arranger, The First National Bank of Chicago, as
Syndication Agent, and Citibank, N.A., as Agent for the Lender and such other
lenders (as amended or modified from time to time, the "Credit Agreement"; the
terms defined therein being used herein as therein defined)), on
_______________, 199_, the principal amount of [U.S.$_______________] [for a
Competitive Bid Advance in a Foreign Currency, list currency and amount of such
Advance].
<PAGE>
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of
________________ to Citibank, as agent, for the account of the Lender at the
office of _________________________, at _________________________ in same day
funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
SNAP-ON INCORPORATED
By
Title:
<PAGE>
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, SNAP-ON INCORPORATED, refers to the 364-Day Credit
Agreement, dated as of August 23, 1999 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto,
Salomon Smith Barney Inc., as Lead Arranger and Book Manager, Banc One Capital
Markets Inc., as Co-Arranger, The First National Bank of Chicago, as Syndication
Agent, and Citibank, N.A., as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Revolving Credit Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Revolving Credit Borrowing (the "Proposed Revolving Credit Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit
Borrowing is _______________, 199_.
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is [$_______________] [for a Revolving Credit Borrowing in a
Committed Currency, list currency and amount of Revolving Credit
Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate
Advance made as part of the Proposed Revolving Credit Borrowing is
_____ month[s].]
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Revolving
Credit Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement (except the representations set forth in
the last sentence of subsection (e) thereof and in subsection (f)(i)
thereof) are correct, before and after giving effect to the Proposed
Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Revolving Credit Borrowing or from the application
of the proceeds therefrom, that constitutes a Default.
Very truly yours,
SNAP-ON INCORPORATED
By
Title:
<PAGE>
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, SNAP-ON INCORPORATED, refers to the 364-Day Credit
Agreement, dated as of August 23, 1999 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto,
Salomon Smith Barney Inc., as Lead Arranger and Book Manager, Banc One Capital
Markets Inc., as Co-Arranger, The First National Bank of Chicago, as Syndication
Agent, and Citibank, N.A., as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that the
undersigned hereby requests a Competitive Bid Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such Competitive
Bid Borrowing (the "Proposed Competitive Bid Borrowing") is requested to be
made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Day Count Convention ________________________
(F) Interest Payment Date(s) ________________________
(G) Currency ________________________
(H) Borrower's Account Location ________________________
[(I) Prepayments Permitted ________________________]
(J) ___________________ ________________________
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Competitive Bid
Borrowing:
(a) the representations and warranties contained in Section
4.01 are correct, before and after giving effect to the Proposed
Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result
from the Proposed Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default;
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the undersigned that has
been provided to the Agent and each Lender by the undersigned in
connection with the Credit Agreement would include an untrue statement
of a material fact or omit to state any material fact or any fact
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading; and
<PAGE>
(d) the aggregate amount of the Proposed Competitive Bid
Borrowing, if accepted by the Borrower, and all other Borrowings to be
made on the same day under the Credit Agreement is within the aggregate
amount of the unused Commitments of the Lenders.
Very truly yours,
SNAP-ON INCORPORATED
By
Title:
<PAGE>
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of August
23, 1999 (as amended or modified from time to time, the "Credit Agreement")
among Snap-On Incorporated, a Delaware corporation (the "Borrower"), the Lenders
(as defined in the Credit Agreement), Salomon Smith Barney Inc., as Lead
Arranger and Book Manager, Banc One Capital Markets Inc., as Co-Arranger, The
First National Bank of Chicago, as Syndication Agent, and Citibank, N.A., as
agent for the Lenders (the "Agent"). Terms defined in the Credit Agreement are
used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances and Competitive Bid
Notes) equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Revolving Credit Advances owing to the Assignee will be as set forth on
Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Revolving Credit Note, if any held by the Assignor.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) represents to the Assignor, the Agent and the Borrower that it
is an Eligible Assignee; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue Service
forms required under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
<PAGE>
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Revolving Credit Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the
Revolving Credit Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
<PAGE>
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of Revolving
Credit Advances assigned: $__________
Principal amount of Revolving Credit Note payable to Assignee: $__________
Principal amount of Revolving Credit Note payable to Assignor: $__________
Effective Date 1: _______________, 199_
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: _______________, 199_
[NAME OF ASSIGNEE], as Assignee
By
Title:
Dated: _______________, 199_
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
- ------------
1 This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
<PAGE>
Accepted [and Approved] 2 this
__________ day of _______________, 199_
CITIBANK, N.A., as Agent
By
Title:
[Approved this __________ day
of _______________, 199_
SNAP-ON INCORPORATED
By ] 3
Title:
- -------------
2 Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
3 Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
<PAGE>
EXHIBIT D - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
<PAGE>
EXECUTION COPY WITH
EXHIBITS D-1 AND D-2
AND SHEARMAN & STERLING
OPINION AS SEPARATELY EXECUTED
U.S. $400,000,000
364-DAY CREDIT AGREEMENT
Dated as of August 23, 1999
Among
SNAP-ON INCORPORATED
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
SALOMON SMITH BARNEY INC.
as Lead Arranger and Book Manager
and
BANC ONE CAPITAL MARKETS INC.
as Co-Arranger
and
CITIBANK, N.A.
as Administrative Agent
and
THE FIRST NATIONAL BANK OF CHICAGO
as Syndication Agent
<PAGE>
XXX.XXXXXX.XA
- -1-
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 11
SECTION 1.03. Accounting Terms 11
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances 11
SECTION 2.02. Making the Revolving Credit Advances 11
SECTION 2.03. The Competitive Bid Advances13
SECTION 2.04. Fees 16
SECTION 2.05. Termination or Reduction of the Commitments 17
SECTION 2.06. Repayment of Revolving Credit Advances 17
SECTION 2.07. Interest on Revolving Credit Advances 17
SECTION 2.08. Interest Rate Determination 18
SECTION 2.09. Optional Conversion of Revolving Credit Advances 19
SECTION 2.10. Prepayments of Revolving Credit Advances 20
SECTION 2.11. Increased Costs 20
SECTION 2.12. Illegality 21
SECTION 2.13. Payments and Computations 21
SECTION 2.14. Taxes 22
SECTION 2.15. Sharing of Payments, Etc. 24
SECTION 2.16. Evidence of Debt 24
SECTION 2.17. Use of Proceeds 25
SECTION 2.18. Extension of Termination Date 25
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01 and 2.03 27
SECTION 3.02. Conditions Precedent to Sandvik Funding Date 28
SECTION 3.04. Conditions Precedent to Each Competitive Bid
Borrowing 29
SECTION 3.05. Determinations Under Section 3.01 30
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower 30
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants 31
SECTION 5.02. Negative Covenants 33
SECTION 5.03. Financial Covenant 34
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default 35
ARTICLE VII THE AGENT
SECTION 7.01. Authorization and Action 37
SECTION 7.02. Agent's Reliance, Etc. 37
SECTION 7.03. Citibank and Affiliates 37
SECTION 7.04. Lender Credit Decision 37
SECTION 7.05. Indemnification 38
SECTION 7.06. Successor Agent 38
<PAGE>
SECTION 7.07. Sub-Agent 38
SECTION 7.08. Other Agents.38
ARTICLE VIII MISCELLANEOUS
SECTION 8.01. Amendments, Etc. 38
SECTION 8.02. Notices, Etc.39
SECTION 8.03. No Waiver; Remedies 39
SECTION 8.04. Costs and Expenses 39
SECTION 8.05. Right of Set-off 40
SECTION 8.06. Binding Effect 41
SECTION 8.07. Assignments and Participations 41
SECTION 8.08. Confidentiality 43
SECTION 8.09. Governing Law43
SECTION 8.10. Execution in Counterparts 43
SECTION 8.11. Judgment 43
SECTION 8.12. Jurisdiction, Etc. 44
SECTION 8.13. Substitution of Currency 44
SECTION 8.15. Waiver of Jury Trial 44
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of Counsel for the Borrower
Exhibit D-2 - Form of Opinion of Counsel for the Borrower
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS OF SNAP-ON INCORPORATED AS OF AND FOR THE
THIRTY-NINE WEEKS ENDED OCTOBER 2, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JAN-01-2000
<PERIOD-START> JAN-03-1999
<PERIOD-END> OCT-02-1999
<CASH> 42,688
<SECURITIES> 0
<RECEIVABLES> 592,254
<ALLOWANCES> 23,594
<INVENTORY> 498,070
<CURRENT-ASSETS> 1,265,954
<PP&E> 754,351
<DEPRECIATION> (403,349)
<TOTAL-ASSETS> 2,206,946
<CURRENT-LIABILITIES> 504,282
<BONDS> 669,715
0
0
<COMMON> 66,718
<OTHER-SE> 744,067
<TOTAL-LIABILITY-AND-EQUITY> 2,206,946
<SALES> 1,378,895
<TOTAL-REVENUES> 1,378,895
<CGS> 716,310
<TOTAL-COSTS> 716,310
<OTHER-EXPENSES> 527,215
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 15,360
<INCOME-PRETAX> 155,444
<INCOME-TAX> 55,654
<INCOME-CONTINUING> 99,790
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 99,790
<EPS-BASIC> 1.71
<EPS-DILUTED> 1.69
</TABLE>
