EXHIBIT 4.1
[CONFORMED COPY]
REVOLVING CREDIT AGREEMENT
among
BARNES GROUP INC.,
THE LENDERS SIGNATORY HERETO
and
MELLON BANK, N.A., as Agent
Dated as of December 1, 1991
Table of Contents
Section Title Page
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ARTICLE I DEFINITIONS; CONSTRUCTION .......... ...... 1
1.01 Certain Definitions ................ ...... 1
1.02 Construction ....................... ...... 14
1.03 Accounting Principles .............. ...... 14
ARTICLE II THE CREDITS ........................ ...... 15
2.01 Revolving Credit Loans ............. ...... 15
2.02 Fees; Reduction
of the Committed Amounts ......... ...... 15
2.03 Extension of Revolving Credit
Maturity Date .................... ...... 16
2.04 Maximum Aggregate Amount of
Revolving Credit Loans ........... ...... 17
2.05 Making of Loans .................... ...... 17
2.06 Interest Rates ..................... ...... 18
2.07 Conversion or Renewal of Interest
Rate Options ..................... ...... 22
2.08 Prepayments Generally .............. ...... 24
2.09 Prepayments ........................ ...... 24
2.10 Interest Payment Dates ............. ...... 25
2.11 Pro Rata Treatment; Payments Generally .... 25
2.12 Additional Compensation in Certain
Circumstances ........................... 26
2.13 HLT Classification ........................ 29
2.14 Taxes ..................................... 30
2.15 Funding by Branch, Subsidiary
or Affiliate ............................ 32
ARTICLE III REPRESENTATIONS AND WARRANTIES ............ 33
3.01 Corporate Status .......................... 33
3.02 Corporate Power and Authorization ......... 33
3.03 Execution and Binding Effect .............. 34
3.04 Governmental Approvals and Filings ........ 34
3.05 Absence of Conflicts ...................... 34
3.06 Audited Financial Statements .............. 35
3.07 Absence of Undisclosed Material
Liabilities ............................. 35
3.08 Absence of Material Adverse Change ........ 35
3.09 Accurate and Complete Disclosure .......... 35
3.10 Margin Regulations ........................ 35
3.11 Subsidiaries .............................. 36
3.12 Partnerships, etc ......................... 36
3.13 Litigation ................................ 36
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3.14 Absence of Events of Default .............. 36
3.15 Insurance ................................. 36
3.16 Title to Properties ....................... 37
3.17 Intellectual Property ..................... 37
3.18 Taxes ..................................... 37
3.19 Employee Benefits ......................... 38
3.20 Environmental Matters ..................... 39
ARTICLE IV CONDITIONS OF LENDING ..................... 39
4.01 Conditions to Initial Loans ............... 39
4.02 Conditions to All Loans ................... 40
ARTICLE V AFFIRMATIVE COVENANTS ..................... 41
5.01 Basic Reporting Requirements .............. 41
5.02 Insurance ................................. 44
5.03 Payment of Taxes and Other Potential
Charges and Priority Claims ............. 44
5.04 Preservation of Corporate Status .......... 44
5.05 Governmental Approvals and Filings ........ 45
5.06 Maintenance of Properties ................. 45
5.07 Avoidance of Other Conflicts .............. 45
5.08 Financial Accounting Practices ............ 45
5.09 Use of Proceeds ........................... 45
5.10 Continuation of or Change in Business ..... 46
5.11 Consolidated Tax Return ................... 46
5.12 ERISA ..................................... 46
ARTICLE VI NEGATIVE COVENANTS ........................ 47
6.01 Financial Covenants ....................... 47
6.02 Liens ..................................... 47
6.03 Indebtedness .............................. 48
6.04 Limitation on Restrictions on Dividends
by Subsidiaries, etc .................... 49
6.05 Mergers; Acquisitions ..................... 49
6.06 ERISA Obligations ......................... 50
6.07 Leases .................................... 50
6.08 Disposition of Properties ................. 51
6.09 Transactions with Affiliates .............. 51
6.10 Loans, Advances and Investments ........... 51
ARTICLE VII DEFAULTS .................................. 52
7.01 Events of Default ......................... 52
7.02 Consequences of an Event of Default ....... 54
7.03 Application of Proceeds ................... 55
ARTICLE VIII THE AGENT ................................. 56
8.01 Appointment ............................... 56
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8.02 General Nature of Agent's Duties ............. 56
8.03 Exercise of Powers ........................... 57
8.04 General Exculpatory Provisions ............... 57
8.05 Administration by the Agent .................. 58
8.06 Lender Not Relying on Agent or
Other Lenders .............................. 59
8.07 Indemnification .............................. 59
8.08 Agent in its Individual Capacity ............. 60
8.09 Holders of Notes ............................. 60
8.10 Successor Agents ............................. 60
8.11 Calculations ................................. 61
8.12 Funding by Agent ............................. 61
ARTICLE IX MISCELLANEOUS ................................ 62
9.01 Holidays ..................................... 62
9.02 Records ...................................... 62
9.03 Amendments and Waivers ....................... 62
9.04 No Implied Waiver; Cumulative Remedies ....... 63
9.05 Notices ...................................... 63
9.06 Expenses; Taxes; Indemnity ................... 64
9.07 Severability ................................. 65
9.08 Prior Understandings ......................... 65
9.09 Duration; Survival ........................... 65
9.10 Counterparts ................................. 66
9.11 Limitation on Payments ....................... 66
9.12 Set-Off ...................................... 66
9.13 Sharing of Collections ....................... 67
9.14 Successors and Assigns; Participations
Assignments ................................ 67
9.15 Governing Law; Submission to Jurisdiction .... 70
9.16 Replacement of Lender ........................ 71
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Transfer Supplement
Exhibit C Form of Opinion of John E. Besser, Esquire
Exhibit D Form of Quarterly Compliance Certificate
Schedule 3.01 Corporate Status
Schedule 3.07 Indebtedness
Schedule 3.11 Subsidiaries
Schedule 3.12 Partnerships
Schedule 6.02 Liens
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REVOLVING CREDIT AGREEMENT
THIS AGREEMENT, dated as of December 1, 1991, by and among
BARNES GROUP INC., a Delaware corporation (the "Borrower"), the lenders parties
hereto from time to time (the "Lenders", as defined further below) and MELLON
BANK, N.A., a national banking association, as Agent for the Lenders hereunder.
The Borrower has requested the Lenders to extend credit to the
Borrower and the Lenders are willing to extend such credit upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01. Certain Definitions. In addition to other words and
terms defined elsewhere in this Agreement, as used herein the following words
and terms shall have the following meanings, respectively, unless the context
hereof otherwise clearly requires:
"Affected Lender" shall have the meaning set forth in Section
2.06(e) hereof.
"Affiliate" of a Person (the "Specified Person") shall mean
(a) any Person which directly or indirectly controls, or is controlled
by, or is under common control with, the Specified Person, and (b) any
director or officer (or, in the case of a Person which is not a
corporation, any individual having analogous powers) of the Specified
Person or of a Person who is an Affiliate of the Specified Person
within the meaning of the preceding clause (a). For purposes of the
preceding sentence, "control" of a Person means the possession,
directly or indirectly, of the power to direct or cause the direction
of the management or policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" shall mean Mellon Bank, N.A., in its capacity Agent
for the Lenders hereunder, and any successor Agent appointed in
accordance with Section 8.10 hereof.
"Anniversary Date" shall mean each December 6 during the term
of this Agreement.
"Applicable Margin" shall have the meaning set forth in
Section 2.06(b) hereof.
"Assessment Rate" shall have the meaning set forth in Section
2.06(a)(ii) hereof.
"Base Rate" shall have the meaning set forth in Section
2.06(a)(i) hereof.
"Base Rate Option" shall have the meaning set forth in Section
2.06(a)(i) hereof.
"Base Rate Portion" of any Loan or Loans shall mean at any
time the portion, including the whole, of such Loan or Loans bearing
interest at such time (i) under the Base Rate Option or (ii) in
accordance with Section 2.11(c)(ii) hereof. If no Loan or Loans is
specified, "Base Rate Portion" shall refer to the Base Rate Portion of
all Loans outstanding at such time.
"Benefit Plan" shall mean any employee benefit plan, as
defined in section 3(3) of ERISA), with respect to which the Borrower,
any of its Subsidiaries, or a member of their respective Controlled
Group, at any relevant time have some liability or obligation to
contribute or pay benefits and which relates to current or former
employees of the Borrower, any Subsidiary or any member of their
respective Controlled Group.
"Business Day" shall mean (a) with respect to selection of the
Euro-Rate Option, prepayment of any Euro-Rate Portion of any Revolving
Credit Loans, or determining the first or last day of any Euro-Rate
Funding Period, a day for dealings in deposits in Dollars by and among
banks in the London interbank market and on which commercial banks are
open for domestic and international business in Pennsylvania and
Connecticut and (b) with respect to selection of any other interest
rate Option, prepayment of any part of any other Portion of any
Revolving Credit Loans, determining the first or last day of any other
Funding Period, and in every other context, any day other than a
Saturday, Sunday or other day on which banking institutions are
authorized or obligated to close in Pennsylvania and Connecticut.
"Capitalized Lease" shall mean at any time any lease which is,
or is required under GAAP to be, capitalized on the balance sheet of
the lessee at such time, and "Capitalized Lease Obligation" of any
Person at any time shall mean the aggregate amount which is, or is
required under GAAP to be, reported as a liability on the balance sheet
of such Person at such time as lessee under a Capitalized Lease.
"CD Rate" shall have the meaning set forth in Section
2.06(a)(ii) hereof.
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"CD Rate Funding Period" shall have the meaning set forth in
Section 2.06(c) hereof.
"CD Rate Option" shall have the meaning set forth in Section
2.06(a)(ii) hereof.
"CD Rate Portion" of any Loan or Loans shall mean at any time
the portion, including the whole, of such Loan or Loans bearing
interest at any time under the CD Rate Option or at a rate calculated
by reference to the CD Rate under Section 2.11(c)(i) hereof. If no Loan
or Loans is specified, "CD Rate Portion" shall refer to the CD Rate
Portion of all Loans outstanding at such time.
"CD Rate Reserve Percentage" for any day and for any CD Rate
Funding Period shall mean the percentage (expressed as a decimal,
rounded upward to the nearest 1/100 of 1%), as determined in good faith
by the Agent (which determination shall be conclusive absent manifest
error), which is in effect on such day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) representing
the maximum reserve requirement (including without limitation
supplemental, marginal and emergency reserve requirements) for a member
bank of such System in respect of nonpersonal time deposits in Dollars
in the United States having a maturity comparable to such CD Rate
Funding Period.
"Change of Control" shall mean any Person or group of Persons
(as used in Sections 13 and 14 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the rules and regulations
thereunder) shall have become the beneficial owner (as defined in Rules
13d-3 and 13d-5 promulgated by the Securities and Exchange Commission
(the "SEC") under the Exchange Act) of 30% or more of the Borrower's
outstanding Voting Stock; provided, however, that members of the Barnes
family, Fleet Norstar Financial Group and any of its affiliates (to the
extent that it owns stock in which a member of the Barnes family has an
interest), the Barnes Group Inc. Guaranteed Stock Plan and State Street
Bank & Trust Company, in its capacity as trustee under such plan, and
employees of the Borrower (except employees of the Borrower who became
beneficial owners of more than 10% of the Borrower's Voting Stock prior
to becoming employees of the Borrower) shall not be counted as a Person
for purposes hereof.
"Closing Date" shall mean the date on which the last of the
conditions set forth in Section 4.01 hereof has been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute of similar import, and
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regulations thereunder, in each case as in effect from time to time. References
to sections of the Code shall be construed also to refer to any successor
sections.
"Commitment Fee" shall have the meaning set forth in Section 2.02(a)
hereof.
"Commitment Percentage" of a Lender at any time shall mean the
Commitment Percentage for such Lender set forth below its name on the signature
page hereof, subject to adjustment as provided in Sections 2.03 and 9.16 hereof
and subject to transfer to another Lender as provided in Section 9.14 hereof.
"Consolidated Current Assets" at any time shall mean the current assets
of the Borrower and its consolidated Subsidiaries determined on a consolidated
basis in accordance with GAAP.
"Consolidated Current Liabilities" at any time shall mean the current
liabilities of the Borrower and its consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Consolidated Current Ratio" at any time shall mean the ratio of the
Consolidated Current Assets at such time to the Consolidated Current Liabilities
at such time.
"Consolidated Leverage Ratio" at any time shall mean the ratio of
aggregate Indebtedness of the Borrower and its consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP to the Consolidated
Net Worth at such time.
"Consolidated Net Worth" at any time shall mean the total assets of the
Borrower and its Subsidiaries less the liabilities of the Borrower and its
Subsidiaries, each as shown on a consolidated balance sheet of the Borrower and
its Subsidiaries in accordance with GAAP, plus any negative (less any positive)
foreign currency translation adjustments shown in the equity section of such a
consolidated balance sheet pursuant to FAS 52 plus any amount shown on such a
consolidated balance sheet in the equity contra account arising from the
Guaranty.
"Controlled Group" shall mean with respect to any Person, all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with such Person, are
treated as a single employer under Section 414(b), 414(c), 414(m) or 414(o) of
the Code or Section 4001(a)(2) of ERISA.
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"Corresponding Source of Funds" shall mean:
(a) In the case of any Funding Segment of the CD Rate Portion,
the proceeds of hypothetical issuances by a Lender of one or more of
its certificates of deposit at the beginning of the CD Rate Funding
Period corresponding to such Funding Segment, having maturities
approximately equal to such CD Rate Funding Period and in an aggregate
amount approximately equal to such Lender's Pro Rata share of such
Funding Segment; and
(b) In the case of any Funding Segment of the Euro-Rate
Portion, the proceeds of hypothetical receipts by a Notional Euro-Rate
Funding Office or by a Lender through a Notional Euro-Rate Funding
Office of one or more Dollar deposits in the interbank eurodollar
market at the beginning of the Euro-Rate Funding Period corresponding
to such Funding Segment having maturities approximately equal to such
Euro-Rate Funding Period and in an aggregate amount approximately equal
to such Lender's Pro Rata share of such Funding Segment.
"Debt Instrument" shall have the meaning set forth in Section 7.01(f)
hereof.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money of the
United States of America.
"Environmental Claim" shall mean, with respect to any Person, any
action, suit, proceeding, investigation, notice, claim, complaint, demand,
request for information or other communication (written or oral) by any other
Person (including but not limited to any Governmental Authority, citizens' group
or present or former employee of such Person) alleging, asserting or claiming
any actual or potential (a) violation of any Environmental Law, (b) liability
under any Environmental Law or (c) liability for investigatory costs, cleanup
costs, governmental response costs, natural resources damages, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
the presence, or release into the environment, of any Hazardous Materials at any
location, whether or not owned by such Person.
"Environmental Matters" means any matter arising out of, relating to,
or resulting from any emissions, discharges, releases or threatened releases of
Hazardous Materials into the air, surface water, groundwater, or soil, or
otherwise arising out of, relating to, or resulting from the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials.
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"Environmental Permits" means all permits, licenses, authorizations,
registrations and other governmental consents required by applicable
Requirements of Law for the use, storage, treatment, transportation, release,
emission and disposal of raw materials, by-products, wastes and other substances
used or produced by or otherwise relating to the operations of the Borrower and
any Subsidiary of the Borrower.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to sections
of ERISA shall be construed also to refer to any successor sections.
"ERISA Lien" shall mean a security interest or lien arising under or in
connection with a Pension Plan or Title IV of ERISA or a claim asserted
(including for failure to withhold) by the government which if successful would
result in such a lien; provided, however, that any claim asserted, (a) for which
the Borrower has reasonable grounds to contest and (b) which the Borrower is
diligently contesting in good faith through appropriate proceedings with the IRS
or a court of law, shall not be deemed an ERISA Lien for so long as all of the
above conditions are met.
"Eurocurrency Liabilities" shall have the meaning set forth in the
definition of Euro-Rate Reserve Percentage set forth in Section 1.01 hereof.
"Euro-Rate" shall have the meaning set forth in Section 2.06(a)(iii)
hereof.
"Euro-Rate Funding Period" shall have the meaning set forth in Section
2.06(c) hereof.
"Euro-Rate Option" shall have the meaning set forth in Section
2.06(a)(iii) hereof.
"Euro-Rate Portion" of any Loan or Loans shall mean at any time the
portion, including the whole, of such Loan or Loans bearing interest at any time
under the Euro-Rate Option or at a rate calculated by reference to the Euro-Rate
under Section 2.11(c)(i) hereof. If no Loan or Loans is specified, "Euro-Rate
Portion" shall refer to the Euro-Rate Portion of all Loans outstanding at such
time.
"Euro-Rate Reserve Percentage" for any day for any Lender shall mean the
percentage (expressed as a decimal, rounded upward to the nearest 1/100 of 1%),
as determined in good faith by such Lender (which determination shall be
conclusive absent manifest error), which is in effect on such
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day as prescribed by the Board of Governors of the Federal Reserve System (or
any successor) representing the maximum reserve requirement of such Lender
(including, without limitation, supplemental, marginal and emergency reserve
requirements) with respect to eurocurrency funding (currently referred to as
"Eurocurrency Liabilities") of a member bank in such System.
"Event of Default" shall mean any of the Events of Default described in
Section 7.01 hereof.
"Federal Funds Effective Rate" for any day shall mean the rate per
annum (rounded upward to the nearest 1/100 of 1%) determined by the Agent (which
determination shall be conclusive) to be the rate per annum announced by the
Federal Reserve Bank of New York (or any successor) on such day as being the
weighted average of the rates on overnight Federal funds transactions arranged
by Federal funds brokers on the previous trading day, as computed and announced
by such Federal Reserve Bank (or any successor) in substantially the same manner
as such Federal Reserve Bank computes and announces the weighted average it
refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement; provided, that if such Federal Reserve Bank (or its successor) does
not announce such rate on any day, the "Federal Funds Effective Rate" for such
day shall be the Federal Funds Effective Rate for the last day on which such
rate was announced.
"Funding Periods" shall have the meaning set forth in Section 2.06(c)
hereof.
"Funding Segment" of the CD Rate Portion or the Euro-Rate Portion, as
the case may be, of the Revolving Credit Loans at any time shall mean the entire
principal amount of such Portion to which at the time in question there is
applicable a particular Funding Period beginning on a particular day and ending
on a particular day. (By definition, each such Portion is at all times composed
of an integral number of discrete Funding Segments and the sum of the principal
amounts of all Funding Segments of any such Portion at any time equals the
principal amount of such Portion at such time.)
"GAAP" shall have the meaning set forth in Section 1.03 hereof.
"Governmental Action" shall have the meaning set forth in Section 3.04
hereof.
"Governmental Authority" shall mean any government or political
subdivision or any agency, authority, bureau,
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central bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
"Guarantee" shall mean the guarantee by any Person to pay or perform
the obligations of any other Person, including any agreement, whether such
agreement is on a contingency basis or otherwise, to purchase, repurchase or
otherwise acquire Indebtedness of any other Person, or to purchase, sell or
lease, as lessee or lessor, property or services, in any such case primarily for
the purpose of enabling another Person to make payment of Indebtedness.
"Guaranty" shall mean the Guaranty Agreement, effective as of July 28,
1989, from the Borrower to The Connecticut National Bank and National Bank of
Detroit (now known as NBD Bank, N.A.).
"Hazardous Materials" means any pollutants, contaminants, hazardous or
toxic substances, materials or wastes (including petroleum, petroleum
by-products, PCBs, and friable asbestos) as those concepts are used in the
Comprehensive Environmental Response Compensation and Liability Act (CERCLA),
the Resource Conservation and Recovery Act (RCRA), the Toxic Substance Control
Act (TSCA), the Clean Air Act, the Clean Water Act, and other similar federal or
state statutes or regulations.
"Indebtedness" of a Person shall mean with respect to such Person,
without duplication, (a) all debt arising from borrowed money and similar
monetary obligations, whether direct or indirect; (b) all indebtedness of others
secured by any mortgage, pledge, security interest, lien, charge, or other
encumbrance existing on property owned by the Borrower or any Subsidiary or
acquired by the Borrower or any Subsidiary subject thereto, whether or not the
Indebtedness secured thereby shall have been assumed; (c) all Guarantees,
endorsements and other contingent obligations, in respect of Indebtedness of
others, including (x) any obligation to supply funds to or in any manner to
invest in, directly or indirectly, the debtor, to purchase Indebtedness, or to
assure the owner of Indebtedness against loss, through an agreement to purchase
goods, supplies, or services for the purpose of enabling the debtor to make
payment of the Indebtedness held by such owner or otherwise and (y) any
obligation of any partnership in which the Borrower or any Subsidiary is a
general partner; and (d) the obligations to reimburse the issuer in respect of
any letters of credit. Indebtedness shall not include the Indebtedness of (i) a
Subsidiary of the Borrower to the Borrower or to another Subsidiary of the
Borrower, or (ii) the Borrower to a Subsidiary of the Borrower; provided,
however, that in the case of debt of a Subsidiary not wholly owned by the
Borrower
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and/or another Subsidiary, Indebtedness shall include a percentage of such
Indebtedness equal to the percentage of the total minority ownership.
"Indemnified Parties" shall mean the Agent, the Lenders, their
respective affiliates, and the directors, officers, employees, attorneys and
agents of each of the foregoing.
"Initial Revolving Credit Committed Amount" shall have the meaning set
forth in Section 2.01(a) hereof.
"Investment" by any Person in any other Person shall mean:
(a) the amount paid, or the value of property or services contributed,
by such Person for or in connection with the acquisition by such Person
of any stock, bonds, notes, debentures, option contracts, investment
contracts, partnership or other ownership interests or other securities
of any other Person;
(b) the amount of any advance, loan or extension of credit to any other
Person by such Person; and
(c) the amount of any Indebtedness of any other Person which such
Person has guaranteed and which by its terms or as a consequence of any
default thereunder such Indebtedness has or may, at the option of the
holder thereof, become due and payable by acceleration or otherwise.
"IRS" shall mean the Internal Revenue Service.
"Law" shall mean any constitution, statute, treaty, convention,
regulation, rule, ordinance, order, injunction, writ, decree or award of any
Governmental Authority.
"Lender" shall mean any of the Lenders listed on the signature pages
hereof, subject to the provisions of Section 9.14 hereof pertaining to Persons
becoming or ceasing to be Lenders.
"Lien" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including but not limited to any conditional sale or title retention
arrangement, and any assignment, deposit arrangement or lease intended as, or
having the effect of, security.
"Loan" shall mean any loan or advance by a Lender under this Agreement,
and "Loans" shall mean all loans and advances made by the Lenders under this
Agreement.
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"Loan Documents" shall mean this Agreement, the Notes and the Transfer
Supplements, and all other agreements and instruments extending, renewing,
refinancing or refunding any indebtedness, obligation or liability arising under
any of the foregoing, and any certificate or instrument delivered by the
Borrower in connection herewith or therewith, in each case as the same may be
amended, modified or supplemented from time to time hereafter.
"Material Adverse Effect" shall mean a material adverse effect on the
long-term financial condition or prospects of the Borrower and its Subsidiaries
taken as a whole or on the ability of the Borrower to perform its obligations
under this Agreement or the Notes.
"Nonextending Lender" shall have the meaning set forth in Section 2.03
hereof.
"Note" or "Notes" shall mean the Revolving Credit Note(s) of the
Borrower executed and delivered under this Agreement, together with all
extensions, renewals, refinancings or refundings of any thereof in whole or
part.
"Notional Euro-Rate Funding Office" shall have the meaning given to
that term in Section 2.15(a) hereof.
"Obligations" shall mean all indebtedness, obligations and liabilities
of the Borrower to any Lender or the Agent from time to time arising under or in
connection with or related to or evidenced by or secured by this Agreement or
any other Loan Document, and all extensions, renewals or refinancings thereof,
whether such indebtedness, obligations or liabilities are direct or indirect,
otherwise secured or unsecured, joint or several, absolute or contingent, due or
to become due, whether for payment or performance, now existing or hereafter
arising. Without limitation of the foregoing, such indebtedness, obligations and
liabilities include the principal amount of Loans, interest, fees, indemnities
or expenses under or in connection with this Agreement or any other Loan
Document, and all extensions, renewals and refinancings thereof, whether or not
such Loans were made in compliance with the terms and conditions of this
Agreement or in excess of the obligation of the Lenders to lend. Obligations
shall remain Obligations notwithstanding any assignment or transfer or any
subsequent assignment or transfer of any of the Obligations or any interest
therein.
"Office" shall mean the Agent's office located at One Mellon Bank
Center, Pittsburgh, Pennsylvania 15258, or at such other office or offices of
the Agent or any branch, subsidiary or affiliate thereof as may be designated in
writing from time to time by the Agent to the Borrower.
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"Option" shall mean the Base Rate Option, the CD Rate Option or the
Euro-Rate Option, as the case may be.
"Participants" shall have the meaning set forth in Section 9.14(b)
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation established under
Title IV of ERISA or any other governmental agency, department or
instrumentality succeeding to the functions of said corporation.
"Pension Plan" shall mean a single employer plan as defined in Section
4001(a)(15) of ERISA or an individual account plan which is subject to the
funding standards of Section 302 of ERISA with respect to which the Borrower,
any of its Subsidiaries, or members of their respective Controlled Groups, at
any relevant time have some liability or obligation to contribute or pay
benefits and which relates to current or former employees of the Borrower, any
of its Subsidiaries or any member of their respective Controlled Groups.
"Person" shall mean an individual, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, Governmental
Authority or any other entity.
"Portion" shall mean the Base Rate Portion, the CD Rate Portion or the
Euro-Rate Portion, as the case may be.
"Potential Default" shall mean any event or condition which with notice
or passage of time, or any combination of the foregoing, would constitute an
Event of Default.
"Prime Rate" as used herein, shall mean the interest rate per annum
announced from time to time by Mellon Bank, N.A. as its prime rate.
"Pro Rata" shall mean to or from each Lender in proportion to such
Lender's Commitment Percentage.
"Purchasing Lender" shall have the meaning set forth in Section 9.14(c)
hereof.
"Reference Banks" shall mean, collectively, Mellon Bank, N.A. and NBD
Bank, N.A.
"Register" shall have the meaning set forth in Section 9.14(d) hereof.
"Regular Payment Date" shall mean the last Business Day of each March,
June, September and December after the date hereof.
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"Relevant Date" shall have the meaning set forth in Section 1.03
hereof.
"Replacement Lender" shall have the meaning set forth in Section 2.03
hereof.
"Reportable Event" means an event described in Section 4043 of ERISA or
in the regulations thereunder with respect to which the 30-day notice is not
waived or an event described in Section 4043 or in the regulations thereunder
with respect to which the 30-day notice has been waived and which involves a
liability of $1,000,000 or more or a material plan or a receipt of a notice of
withdrawal liabilities pursuant to Section 4202 of ERISA. For purposes of this
definition a material plan is a plan in which benefit liabilities exceed assets
on a termination basis based on PBGC assumptions by $1,000,000.
"Required Lenders" shall mean, as of any date, Lenders holding in the
aggregate 61% of the aggregate Revolving Credit Committed Amounts of all
Lenders.
"Requirements of Law" means all applicable federal, state, and local
laws, statutes, rules, regulations, codes, ordinances, orders, decrees,
directives, permits, licenses and judgments relating to Environmental Matters in
effect as of the date of this Agreement.
"Responsible Officer" of the Borrower shall mean any of the following:
the President, the senior officer of each of the Borrower's three operating
groups, the Treasurer, the Chief Financial Officer or the General Counsel.
"Revolving Credit Commitment" shall have the meaning set forth in
Section 2.01(a) hereof.
"Revolving Credit Committed Amount" shall have the meaning set forth in
Section 2.01(a) hereof.
"Revolving Credit Loans" shall have the meaning set forth in Section
2.01(a) hereof.
"Revolving Credit Maturity Date" shall mean December 6, 1995, as such
date may be extended pursuant to Section 2.03 hereof.
"Revolving Credit Note" shall mean the promissory note of the Borrower
executed and delivered under Section 2.01(c) hereof, any promissory note issued
in substitution therefor pursuant to Sections 2.15(b) or 9.14(c) hereof,
together with all extensions, renewals, refinancings or refundings thereof in
whole or part.
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"Senior Notes" shall mean the Borrower's 9.47% Senior Notes due 2001 in
the original aggregate principal amount of $40,000,000.
"Significant Subsidiary" shall mean each Subsidiary of the Borrower
which in the most recent fiscal year of the Borrower accounted for more than 10%
of the consolidated assets of the Borrower and its Subsidiaries for each of the
most recent three fiscal years of the Borrower; provided, however, that with
respect to Subsidiaries created or acquired after the date hereof, if thereafter
such entity, in a fiscal year, accounts for more than 10% of the consolidated
assets of the Borrower and its Subsidiaries in such fiscal year, it shall be
deemed to be a Significant Subsidiary for such fiscal year.
"Standard Notice" shall mean an irrevocable notice provided to the
Agent on a Business Day which is
(a) On the same Business Day in the case of selection of,
conversion to or renewal of the Base Rate Option or prepayment of any
Base Rate Portion;
(b) At least one Business Day in advance in the case of
selection of, conversion to or renewal of the CD Rate Option or
prepayment of any CD Rate Portion; and
(c) At least three Business Days in advance in the case of
selection of, conversion to or renewal of the Euro-Rate Option or
prepayment of any Euro-Rate Portion.
Standard Notice must be provided no later than 10:00 a.m., Pittsburgh time, on
the last day permitted for such notice. The Agent shall promptly forward to the
Lenders copies of all Standard Notices received from the Borrower.
"Stock Payment" by any Person shall mean any dividend, distribution or
payment of any nature (whether in cash, securities, or other property) on
account of or in respect of any shares of the capital stock (or warrants,
options or rights therefor) of such Person, including but not limited to any
payment on account of the purchase, redemption, retirement, defeasance or
acquisition of any shares of the capital stock (or warrants, options or rights
therefor) of such Person, in each case regardless of whether required by the
terms of such capital stock (or warrants, options or rights) or any other
agreement or instrument.
"Subsidiary" of a Person at any time shall mean any corporation,
association or other business entity of which more than 50% of the outstanding
stock having by its terms ordinary voting power to elect a majority of the board
of
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directors of such corporation, association or other business entity
(irrespective of whether at such time stock of any other class or
classes of such corporation, association or other business entity shall
have or might have voting power by reason of the happening of any
contingency) is at such time owned directly or indirectly by such
Person.
"Taxes" shall have the meaning set forth in Section 2.14
hereof.
"Transfer Effective Date" shall have the meaning set forth in
the applicable Transfer Supplement.
"Transfer Supplement" shall have the meaning set forth in
Section 9.14(c) hereof.
"Voting Stock" shall mean, with respect to any corporation,
the capital stock of such corporation having the power to vote for a
majority of the board of directors of such corporation under ordinary
circumstances.
1.02. Construction. Unless the context of this Agreement otherwise
clearly requires, references to the plural include the singular, the singular
the plural and the part the whole; "or" has the inclusive meaning represented by
the phrase "and/or"; and "property" includes all properties and assets of any
kind or nature, tangible or intangible, real, personal or mixed. References in
this Agreement to "determination" (and similar terms) by the Agent or by any
Lender include reasonable and good faith estimates by the Agent or by such
Lender (in the case of quantitative determinations) and good faith beliefs by
the Agent or by such Lender (in the case of qualitative determinations). The
words "hereof," "herein," "hereunder" and similar terms in this Agreement refer
to this Agreement as a whole and not to any particular provision of this
Agreement. The section and other headings contained in this Agreement and the
Table of Contents preceding this Agreement are for reference purposes only and
shall not control or affect the construction of this Agreement or the
interpretation thereof in any respect. Section, subsection and exhibit
references are to this Agreement unless otherwise specified.
1.03. Accounting Principles. As used herein, "GAAP" shall mean
generally accepted accounting principles as such principles shall be in effect
at the Relevant Date; provided, however, that such principles shall be applied
without giving effect to FAS 106. As used herein, "Relevant Date" shall mean the
date a relevant computation or determination is to be made or the date of
relevant financial statements, as the case may be.
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ARTICLE II
THE CREDITS
2.01. Revolving Credit Loans.
(a) Revolving Credit Commitments. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Lender, severally and not jointly, agrees (such agreement being herein called
such Lender's "Revolving Credit Commitment") to make loans (the "Revolving
Credit Loans") to the Borrower from time to time on or after the date hereof and
to but not including the Revolving Credit Maturity Date. A Lender shall have no
obligation to make any Revolving Credit Loan to the extent that the aggregate
principal amount of such Lender's Revolving Credit Loans at any time would
exceed such Lender's Revolving Credit Committed Amount at such time. Each
Lender's "Revolving Credit Committed Amount" at any time shall be equal to the
amount set forth as its "Initial Revolving Credit Committed Amount" below its
name on the signature pages hereof, as such amount may have been reduced
pursuant to Section 2.02(d) hereof at such time, and subject to transfer to
another Lender as provided in Section 9.14 hereof. The sum of the Revolving
Credit Committed Amounts of the Lenders shall not exceed $100,000,000 at any
time.
(b) Nature of Credit. Within the limits of time and amount set forth in
this Section 2.01, and subject to the provisions of this Agreement, the Borrower
may borrow, repay and reborrow Revolving Credit Loans hereunder.
(c) Revolving Credit Notes. The obligation of the Borrower to repay the
unpaid principal amount of the Revolving Credit Loans made to it by each Lender
and to pay interest thereon shall be evidenced in part by promissory notes of
the Borrower, one to each Lender, dated the Closing Date (the "Revolving Credit
Notes") in substantially the form attached hereto as Exhibit A, with the blanks
appropriately filled, payable to the order of such Lender in a face amount equal
to such Lender's Initial Revolving Credit Committed Amount.
(d) Maturity. To the extent not due and payable earlier, the Revolving
Credit Loans shall be due and payable on the Revolving Credit Maturity Date.
2.02. Fees; Reduction of the Committed Amounts.
(a) Commitment Fee. The Borrower shall pay to the Agent for the account
of each Lender a commitment fee (the "Commitment Fee") equal to 0.250% per annum
(based on a year of 365 or 366 days and actual days elapsed), for each day from
and including the Closing Date and to but not including the Revolving Credit
Maturity Date, of the amount (not less than zero) equal to (i) such Lender's
Revolving Credit Committed Amount on such day, minus (ii) such Lender's
Revolving Credit Loans outstanding on
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such day. Such Commitment Fee shall be due and payable for the preceding period
for which such fee has not been paid (x) on each Regular Payment Date and (y) on
the Revolving Credit Maturity Date. The Commitment Fee shall be increased to
0.375% for each day on which the aggregate Revolving Credit Loans of all Lenders
outstanding exceeds 75% of the aggregate Revolving Credit Commitments of all
Lenders.
(b) Closing Fee. On the Closing Date, the Borrower shall pay to the
Agent for the account of each Lender a closing fee equal to 0.05% of such
Lender's Revolving Credit Committed Amount.
(c) Other Fees. The Borrower shall pay to the Agent an agency fee and
other fees at the times and in the amounts previously agreed upon among the
Agent and the Borrower.
(d) Optional Reduction of the Revolving Credit Committed Amounts. The
Borrower may at any time or from time to time reduce Pro Rata the Revolving
Credit Committed Amounts of the Lenders to an aggregate amount (which may be
zero) not less than the sum of the outstanding Revolving Credit Loans plus the
principal amount of Revolving Credit Loans not yet outstanding as to which
notice has been given by Borrower under Section 2.05 hereof. Any reduction of
the Revolving Credit Committed Amounts shall be in an aggregate amount not less
than $5,000,000 which is an integral multiple of $1,000,000. Reduction of the
Revolving Credit Committed Amounts shall be made by providing not less than 10
days notice (which notice shall be irrevocable) to such effect to the Agent.
2.03. Extension of Revolving Credit Maturity Date. On and after the
first Anniversary Date hereof, the Revolving Credit Maturity Date may be
extended for successive one year periods at the request of the Borrower with the
express consent of each Lender as provided below. Not later than the date 60
days prior to each Anniversary Date, the Borrower shall, at its option, in a
written notice to the Agent request (an "Extension Request") that the Revolving
Credit Maturity Date be extended for a period of one year. The Agent shall
promptly inform the Lenders of such Extension Request. Each Lender that agrees
with such Extension Request shall deliver to the Agent its express written
consent thereto no later than such Anniversary Date. If (i) any Lender notifies
the Agent in writing prior to such Anniversary Date that it will not consent to
such Extension Request or (ii) all of the Lenders have not in writing expressly
consented to any such Extension Request as provided in the preceding sentence,
then the Agent shall so notify the Borrower and the Borrower, at its option, may
replace each Lender which has not agreed to such Extension Request (a
"Nonextending Lender") with another commercial lending institution (a
"Replacement Lender") by giving (not later than 90 days after such Anniversary
Date) notice of the name of such Replacement Lender to the Agent. Upon notice
from
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the Agent, each Nonextending Lender shall promptly (but in no event later than
the date which is 120 days after such Anniversary Date) assign all of its
interests hereunder to such Replacement Lender in accordance with the provisions
of Section 9.14(c) hereof. If, prior to the date which is 120 days after such
Anniversary Date some, but not all, of the Lenders have agreed to such Extension
Request, and each Nonextending Lender has not been replaced by the Borrower in
accordance with the terms of this Section 2.03, the Revolving Credit Maturity
Date shall be extended in accordance with such Extension Request; provided,
however, that on the original Revolving Credit Maturity Date (as such date may
have been previously extended), the Borrower shall pay to the Agent for the
account of such Nonextending Lender such Nonextending Lender's Pro Rata share of
all outstanding Revolving Credit Loans, together with interest thereon, and all
fees due and payable to such Nonextending Lender and the total Revolving Credit
Commitment shall be irrevocably reduced by an amount equal to the Commitment of
each Nonextending Lender. If all Lenders consent to any such Extension Request
(or, if any Nonextending Lenders are replaced in accordance with this Section),
then as of 5:00 p.m. Pittsburgh time on the date which is 120 days after such
Anniversary Date the Revolving Credit Maturity Date shall be deemed to have been
extended for, and shall be the date, one year after the then effective Revolving
Credit Maturity Date.
2.04. Maximum Aggregate Amount of Revolving Credit Loans. No Loan shall
be made or requested or permitted to remain outstanding hereunder if the making
or maintenance of such Loan would cause the aggregate amount of all Revolving
Credit Loans outstanding hereunder to exceed the sum of the aggregate Revolving
Credit Committed Amounts of all Lenders.
2.05. Making of Loans. Whenever the Borrower desires that the Lenders
make Revolving Credit Loans, the Borrower shall provide Standard Notice to the
Agent setting forth the following information (a separate notice being required
for each such type of Loans):
(a) The date, which shall be a Business Day, on which such
proposed Loans are to be made;
(b) The aggregate principal amount of such proposed Loans,
which shall be the sum of the principal amounts selected pursuant to
clause (c) of this Section 2.05, and which shall be an integral
multiple of $1,000,000 not less than $5,000,000;
(c) The interest rate Option or Options selected in accordance
with Section 2.06(a) hereof and the principal amounts selected in
accordance with Section 2.06(d) hereof of the Base Rate Portion and
each Funding Segment of the CD Rate Portion and the Euro-Rate Portion,
as the case may be, of such proposed Loans; and
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(d) With respect to each such Funding Segment of such proposed
Loans, the Funding Period to apply to such Funding Segment, selected in
accordance with Section 2.06(c) hereof.
Standard Notice having been so provided, the Agent shall promptly notify each
Lender of the information contained therein and of the amount of such Lender's
Loan. Unless any applicable condition specified in Article IV hereof has not
been satisfied, on the date specified in such Standard Notice each Lender shall
make the proceeds of its Loan available to the Agent at the Agent's Office, no
later than 12:00 o'clock Noon, Pittsburgh time, in funds immediately available
at such Office.
2.06. Interest Rates.
(a) Optional Bases of Borrowing. The unpaid principal amount
of the Revolving Credit Loans shall bear interest for each day from and
including the date on which funds are made available to the Borrower by the
Agent and to but excluding the date of repayment on one or more bases selected
by the Borrower from among the interest rate Options set forth below. Subject to
the provisions of this Agreement the Borrower may select different Options to
apply simultaneously to different Portions of the Loans and may select different
Funding Segments to apply simultaneously to different parts of the CD Rate
Portion or the Euro-Rate Portion of the Loans. Each selection of a rate Option
shall apply separately and without overlap to the Revolving Credit Loans as a
class. The aggregate number of Funding Segments applicable to the CD Rate
Portion and the Euro-Rate Portion of the Revolving Credit Loans at any time
shall not exceed six unless otherwise permitted by the Agent.
(i) Base Rate Option: A rate per annum (computed on the basis
of a year of 365 or 366 days and actual days elapsed) for each day
equal to the Base Rate for such day plus the Applicable Margin for such
day. The "Base Rate" for any day shall mean the greater of (A) the
Prime Rate for such day or (B) 0.50% plus the Federal Funds Effective
Rate for such day, such interest rate to change automatically from time
to time effective as of the effective date of each change in the Prime
Rate or the Federal Funds Effective Rate.
(ii) CD Rate Option: A rate per annum (based on a year of 360
days and actual days elapsed) for each day equal to the CD Rate for
such day plus the Applicable Margin for such day. "CD Rate" for any day
shall mean for each Funding Segment of the CD Rate Portion
corresponding to a proposed or existing CD Rate Funding Period the rate
per annum determined by the Agent by adding
(A) the rate per annum (which shall be the same for
each day in such CD Rate Funding Period) determined
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in good faith by the Agent in accordance with its usual procedures
(which determination shall be conclusive absent manifest error) to be
the arithmetic average of the rates offered to the Reference Banks at
or about 11:00 a.m., Eastern time, on the first day of such CD Rate
Funding Period by dealers of recognized standing in negotiable
certificates of deposit for the purchase at face value of negotiable
certificates of deposit of major money center banks for delivery on
such day in amounts comparable to such Funding Segment and having
maturities comparable to such CD Rate Funding Period plus
(B) the Assessment Rate.
"Assessment Rate" for any day shall mean the rate per annum (rounded
upward to the nearest 1/100 of 1%) determined in good faith by the Agent in
accordance with its usual procedures (which determination shall be conclusive
absent manifest error) to be the maximum effective rate per annum payable by a
depository institution insured by the Federal Deposit Insurance Corporation (or
any successor) for such day as an assessment for insurance on Dollar time
deposits, exclusive of any credit that is or may be allowed against such
assessment on account of assessment payments made or to be made by such
depository institution. The CD Rate shall be adjusted automatically as of the
effective date of each change in the Assessment Rate. The CD Rate Option shall
be calculated in accordance with the foregoing if any Lender is actually
required to pay FDIC assessments or, if required to pay such assessments, is
required to pay such assessments at the "Assessment Rate" as herein defined.
The Agent shall give prompt notice to the Borrower and to the Lenders
of the CD Rate determined or adjusted in accordance with the definition of CD
Rate, which determination or adjustment shall be conclusive if made in good
faith.
(iii) Euro-Rate Option: A rate per annum (based on a year of 360 days
and actual days elapsed) for each day equal to the Euro-Rate for such day plus,
in each case, the Applicable Margin for such day. "Euro-Rate" for any day, as
used herein, shall mean for each Funding Segment of the Euro-Rate Portion
corresponding to a proposed or existing Euro-Rate Funding Period the rate per
annum determined by the Agent to be the rate of interest (which shall be the
same for each day in such Euro-Rate Funding Period) determined in good faith by
the Agent in accordance with its usual procedures (which determination shall be
conclusive absent manifest error) to be the average of the rates per annum for
deposits in Dollars offered to the Reference Banks in the London interbank
market at approximately 11:00 a.m., London time,
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two Business Days prior to the first day of such Euro-Rate Funding
Period for delivery on the first day of such Euro-Rate Funding Period
in amounts comparable to such Funding Segment and having maturities
comparable to such Funding Period.
The Agent shall give prompt notice to the Borrower and to the
Lenders of the Euro-Rate determined in accordance with the definition
of the Euro-Rate, which determination shall be conclusive if made in
good faith.
(b) Applicable Margins. The "Applicable Margin" and interest
rate Option for any day shall mean the percentage set forth below:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option 0.000%
CD Rate Option 0.625%
Euro-Rate Option 0.500%
provided, however, that the Applicable Margin for each day on which the
Borrower's Consolidated Leverage Ratio is equal to or greater than 1.45:1 (but
less than or equal to 1.55:1) shall mean the percentage set forth below:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option 0.125%
CD Rate Option 0.750%
Euro-Rate Option 0.625%
(c) Funding Periods. At any time when the Borrower shall
select, convert to or renew the CD Rate Option or the Euro-Rate Option to apply
to any part of the Loans, the Borrower shall specify one or more periods (the
"Funding Periods") during which each such Option shall apply, such Funding
Periods being as set forth below:
Interest Rate Option Available Funding Periods
- -------------------- -------------------------
CD Rate Option 30, 60, 90 or 180 days or such
longer period as may be offered by
all of the Lenders ("CD Rate
Funding Period"); and
Euro-Rate Option One, two, three or six months or
such longer period as may be
offered by all of the Lenders
("Euro-Rate Funding Period");
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provided, that:
(i) Each CD Rate Funding Period which would otherwise end on a
day which is not a Business Day shall be extended to the next
succeeding Business Day;
(ii) Each Euro-Rate Funding Period shall begin on a Business
Day, and the term "month", when used in connection with a Euro-Rate
Funding Period, shall be construed in accordance with prevailing
practices in the interbank eurodollar market at the commencement of
such Euro-Rate Funding Period, as determined in good faith by the Agent
(which determination shall be conclusive);
(iii) The Borrower may not select a Funding Period that would
end after the Revolving Credit Maturity Date; and
(iv) The Borrower shall, in selecting any Funding Period,
allow for scheduled mandatory payments of the Loans.
(d) Transactional Amounts. Every selection of, conversion from,
conversion to or renewal of an interest rate Option and every payment or
prepayment of any Loans shall be in a principal amount such that after giving
effect thereto the aggregate principal amount of the Base Rate Portion of the
Revolving Credit Loans shall be $1,000,000 and integral multiples thereof, and
the aggregate principal amount of each Funding Segment of the CD Rate Portion or
the Euro-Rate Portion of the Revolving Credit Loans shall be $5,000,000 and
integral multiples of $1,000,000 thereof.
(e) CD Rate or Euro-Rate Unascertainable; Impracticability. If
(i) on any date on which a CD Rate or a Euro-Rate would
otherwise be set the Agent (in the case of clauses (A) or (B) below)
shall have determined in good faith (which determination shall be
conclusive absent manifest error) that:
(A) adequate and reasonable means do not exist for
ascertaining such CD Rate or Euro-Rate, or
(B) a contingency has occurred which materially and
adversely affects the secondary market for negotiable
certificates of deposit maintained by dealers of recognized
standing or the interbank eurodollar market, as the case may
be, or
(ii) at any time any Lender shall have determined in good
faith (which determination shall be conclusive absent manifest error)
that the making, maintenance or funding of any part of the CD Rate
Portion or the Euro-Rate Portion has
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been made impracticable or unlawful by compliance by such Lender or a
Notional Euro-Rate Funding Office in good faith with any Law or
guideline or interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof or with any request or directive of any such
Governmental Authority (whether or not having the force of law);
then, and in any such event, the Agent or such Lender, as the case may be, may
notify the Borrower of such determination (and any Lender giving such notice
shall notify the Agent). Upon such date as shall be specified in such notice
(which shall not be earlier than the date such notice is given), the obligation
of each of the Lenders to allow the Borrower to select, convert to or renew the
CD Rate Option or Euro-Rate Option, as the case may be, shall be suspended until
the Agent or such Lender, as the case may be, shall have later notified the
Borrower (and any Lender giving such notice shall notify the Agent) of the
Agent's or such Lender's determination in good faith (which determination shall
be conclusive absent manifest error) that the circumstance giving rise to such
previous determination no longer exist.
If any Lender notifies the Borrower of a determination under subsection
(ii) of this Section 2.06(e), the CD Rate Portion or the Euro-Rate Portion, as
the case may be, of the Loans of such Lender (the "Affected Lender") shall,
subject to Section 2.12(b) hereof, automatically be converted to the Base Rate
Option as of the last day of the then current Funding Period with respect to
such Loans (in the case of a determination that the making, maintenance or
funding of any CD Rate Portion or Euro-Rate Portion of such Loans is
impracticable) and the last day on which the making, maintenance or funding of
any CD Rate Portion or Euro-Rate Portion of such Loans is not unlawful (in the
case of a determination that the making, maintenance or funding of any CD Rate
Portion or Euro-Rate Portion of such Loans is unlawful) and accrued interest
thereon shall be due and payable on such date.
If at the time the Agent or a Lender makes a determination under
subsection (i) or (ii) of this Section 2.06(e), the Borrower previously has
notified the Agent that it wishes to select, convert to or renew the CD Rate
Option or the Euro-Rate Option, as the case may be, with respect to any proposed
Loans but such Loans have not yet been made, such notification shall be deemed
to provide for selection of, conversion to or renewal of the Base Rate Option
instead of the CD Rate Option or the Euro-Rate Option, as the case may be, with
respect to such Loans or, in the case of a determination by a Lender, such Loans
of such Lender.
2.07. Conversion or Renewal of Interest Rate Options.
(a) Conversion or Renewal. Subject to the provisions of Section 2.12(b)
hereof, so long as no Event of Default or
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Potential Default shall have occurred or be continuing hereunder, the Borrower
may convert any part of its Loans from any interest rate Option or Options to
one or more different interest rate Options and may renew the CD Rate Option or
the Euro-Rate Option as to any Funding Segment of the CD Rate Portion or the
Euro-Rate Portion:
(i) At any time with respect to conversion from the Base Rate
Option; or
(ii) At the expiration of any Funding Period with respect to
conversions from or renewals of the CD Rate Option or the Euro-Rate
Option, as the case may be, as to the Funding Segment corresponding to
such expiring Funding Period.
Whenever the Borrower desires to convert or renew any interest rate Option or
Options, the Borrower shall provide to the Agent Standard Notice setting forth
the following information:
(w) The date, which shall be a Business Day, on which the
proposed conversion or renewal is to be made;
(x) The principal amounts selected in accordance with Section
2.06(d) hereof of the Base Rate Portion and each Funding Segment of the
CD Rate Portion and the Euro-Rate Portion, as the case may be, to be
converted from or renewed;
(y) The interest rate Option or Options selected in accordance
with Section 2.06(a) hereof and the principal amounts selected in
accordance with Section 2.06(d) hereof of the Base Rate Portion and
each Funding Segment of the CD Rate Portion and the Euro-Rate Portion,
as the case may be, to be converted to; and
(z) With respect to each Funding Segment to be converted to or
renewed, the Funding Period selected in accordance with Section 2.06(c)
hereof to apply to such Funding Segment.
Standard Notice having been so provided, on and after the date specified in such
Standard Notice, interest shall be calculated upon the principal amount of the
Loans as so converted or renewed. Interest on the principal amount of any part
of the Loans converted or renewed (automatically or otherwise) shall be due and
payable on the conversion or renewal date.
(b) Failure to Convert or Renew. Absent payment of a Loan or
due notice from the Borrower of conversion or renewal in the circumstances
described in Section 2.07(a)(ii) hereof, any part of the CD Rate Portion or
Euro-Rate Portion for which such notice is not received shall be converted
automatically to the Base Rate Option on the last day of the expiring Funding
Period.
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2.08. Prepayments Generally. Whenever the Borrower desires or is
required to prepay any part of its Loans, it shall provide Standard Notice to
the Agent setting forth the following information:
(a) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(b) The total principal amount of such prepayment, which shall
be the sum of the principal amounts selected pursuant to clause (c) of
this Section 2.08; and
(c) The principal amounts selected in accordance with Section
2.06(d) hereof of the Base Rate Portion and each part of each Funding
Segment of the CD Rate Portion and the Euro-Rate Portion, as the case
may be, to be prepaid.
Standard Notice having been so provided, on the date specified in such Standard
Notice, the principal amounts of the Base Rate Portion and each part of the CD
Rate Portion and the Euro-Rate Portion specified in such notice, together with
interest on each such principal amount to such date, shall be due and payable.
2.09. Prepayments. (a) The Borrower shall have the right at its option
from time to time to prepay its Revolving Credit Loans in whole or part without
premium or penalty (subject, however, in the case of clause (iii) below, to
Section 2.12(b) hereof):
(i) At any time (other than a time when Standard Notice
requesting the making of Revolving Credit Loans bearing interest under
the Euro-Rate Option has been given by the Borrower but such Loans have
not yet been made) with respect to any part of the Base Rate Portion;
(ii) At the expiration of any Funding Period with respect to
prepayment of the CD Rate Portion or the Euro-Rate Portion, as the case
may be, with respect to any part of the Funding Segment corresponding
to such expiring Funding Period; or
(iii) Prior to the expiration of any Funding Period with
respect to prepayment of the CD Rate Portion or the Euro-Rate Portion,
as the case may be, with respect to any part of the Funding Segment
corresponding to such expiring Funding Period, upon payment of the
indemnity payment set forth in Section 2.12(b) hereof.
(b) All prepayments shall be made in accordance with Section 2.08
hereof.
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2.10. Interest Payment Dates. Interest on the Base Rate Portion shall
be due and payable on the date of any conversion of all or part of the Base Rate
Portion to a different interest rate Option, any prepayment of any part of the
Base Rate Portion on the amount prepaid, and on each Regular Payment Date.
Interest on each Funding Segment of the CD Rate Portion shall be due and payable
on the last day of the corresponding CD Rate Funding Period and, if such CD Rate
Funding Period is longer than 90 days, also every 90th day during such CD Rate
Funding Period. Interest on each Funding Segment of the Euro-Rate Portion shall
be due and payable on the last day of the corresponding Euro-Rate Funding Period
and, if such Euro-Rate Funding Period is longer than three months, also on the
last day of every third month during such Funding Period. After maturity of any
part of the Loans (by acceleration or otherwise), interest on such part of the
Loans shall be due and payable on demand.
2.11. Pro Rata Treatment; Payments Generally.
(a) Pro Rata Treatment. Each borrowing of Revolving Credit Loans
hereunder and each conversion and renewal of interest rate Options hereunder
shall be made, and all payments made in respect of principal, interest and fees
due from the Borrower hereunder or under the Notes shall be applied, Pro Rata
from and to each Lender, except for payments of agency and arrangement fees
pursuant to Section 2.02(c) hereof, payments of interest involving an Affected
Lender as provided in Section 2.06(e) hereof and payments to a Lender subject to
a withholding deduction under Section 2.14(c) hereof. The failure of any Lender
to make a Revolving Credit Loan shall not relieve any other Lender of its
obligation to lend hereunder, but neither the Agent nor any Lender shall be
responsible for the failure of any other Lender to make a Revolving Credit Loan.
(b) Payments Generally. All payments and prepayments to be
made by the Borrower in respect of principal, interest, fees, indemnity,
expenses or other amounts due from the Borrower to the Agent for the account of
the Lenders hereunder or under any Loan Document in Dollars shall be payable at
2:00 p.m., Pittsburgh time, on the day when due without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived, and an
action therefor shall immediately accrue, without setoff, counterclaim,
withholding or other deduction of any kind or nature, except for payments to a
Lender subject to a withholding deduction under Section 2.14(c) hereof. Except
for payments under Sections 2.12 and 9.06 hereof, such payments shall be made to
the Agent at its Office in Dollars in funds immediately available at such
Office, and payments under Sections 2.12 and 9.06 hereof shall be made to the
applicable Lender at such domestic account as it shall specify to the Borrower
from time to time in funds immediately available at such account. Any payment or
prepayment received by the Agent or such Lender after 2:00 p.m., Pittsburgh
time, on any day shall be deemed to have been received on the next
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succeeding Business Day. The Agent shall distribute to the Lenders all such
payments received by it from the Borrower as promptly as practicable after
receipt by the Agent.
(c) Interest on Overdue Amounts. To the extent permitted by law, after
there shall have become due (by acceleration or otherwise) principal, interest,
fees, indemnity, expenses or any other amounts due from the Borrower hereunder
or under any other Loan Document, such amounts shall bear interest for each day
until paid (before and after judgment), payable on demand, at a rate per annum
based on a year of 365 or 366 days, as the case may be, and actual days elapsed
(in the case of any Portion of Loans bearing interest at the Base Rate Option)
and 360 days and actual days elapsed (in the case of any Portion of Loans
bearing interest at the CD Rate Option or the Euro-Rate Option) which for each
day shall be equal to the following:
(i) In the case of any part of the CD Rate Portion or
Euro-Rate Portion of any Loans, (A) until the end of the applicable
then-current Funding Period at a rate per annum 200 basis points above
the rate otherwise applicable to such part, and (B) thereafter in
accordance with the following clause (ii); and
(ii) In the case of any other amount due from the Borrower
hereunder or under any Loan Document, 200 basis points above the then
current Base Rate.
2.12. Additional Compensation in Certain Circumstances.
(a) Increased Costs or Reduced Return Resulting From Taxes, Reserves,
Capital Adequacy Requirements, Expenses, Etc. If any Law or change therein or
guideline or interpretation or application thereof by any Governmental Authority
charged with the interpretation or administration thereof or compliance with any
request or directive of any Governmental Authority (whether or not having the
force of law) adopted or made after the date hereof:
(i) subjects any Lender or any Notional Euro-Rate Funding
Office to any tax or changes the basis of taxation with respect to this
Agreement, the Notes, the Loans or payments by the Borrower of
principal, interest, commitment fee or other amounts due from the
Borrower hereunder or under the Notes (except for taxes on the overall
net income or overall gross receipts of such Lender or such Notional
Euro-Rate Funding Office imposed by the jurisdictions (federal, state
and local) in which the Lender's principal office or Notional Euro-Rate
Funding Office is located),
(ii) imposes, modifies or deems applicable any reserve,
special deposit or similar requirement against credits or commitments
to extend credit extended by, assets (funded or contingent) of,
deposits with or for the account of, other
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acquisitions of funds by, such Lender or any Notional Euro-Rate Funding
Office (other than requirements expressly included herein in the
determination of the CD Rate, the Euro-Rate, or the determination of
additional interest pursuant to Section 2.12(c) hereof, as the case may
be, hereunder),
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against assets (funded or
contingent) of, or credits or commitments to extend credit extended by,
any Lender or any Notional Euro-Rate Funding Office, or (B) otherwise
applicable to the obligations of any Lender or any Notional Euro-Rate
Funding Office under this Agreement, or
(iv) imposes upon any Lender or any Notional Euro-Rate Funding
Office any other condition or expense directly related to this
Agreement, the Notes or its making, maintenance or funding of any Loan
and the result of any of the foregoing is determined by any Lender to increase
the cost to, reduce the income receivable by, or impose any expense (including
loss of margin) upon such Lender, any Notional Euro-Rate Funding Office or, in
the case of clause (iii) hereof, any Person controlling a Lender, with respect
to this Agreement, the Notes or the making, maintenance or funding of any Loan
(or, in the case of any capital adequacy or similar requirement, to have the
effect of reducing the rate of return on such Lender's or controlling Person's
capital, taking into consideration such Lender's or controlling Person's
policies with respect to capital adequacy) by an amount which such Lender deems
to be material (such Lender being deemed for this purpose to have made,
maintained or funded each Funding Segment of the CD Rate Portion and the
Euro-Rate Portion from a Corresponding Source of Funds), such Lender may from
time to time promptly notify the Borrower of the amount determined in good faith
(using any averaging and attribution methods) by such Lender (which
determination shall be conclusive absent manifest error) to be necessary to
compensate such Lender or such Notional Euro-Rate Funding Office for such
increase, reduction or imposition. Each Lender will notify the Borrower and the
Agent of any event occurring after the date of this Agreement which will entitle
such Lender to compensation pursuant to this Section 2.12 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation. Each Lender will furnish the Borrower and Agent with a statement
setting forth in reasonable detail the basis, the manner of calculation and the
amount of each request by such Lender for compensation from the Borrower under
this Section 2.12. Such amount shall be due and payable by the Borrower to such
Lender 20 days after such notice is given.
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(b) Funding Breakage. In addition to the compensation required under
Section 2.12(a) hereof, the Borrower shall indemnify each Lender against any
loss or expense (including loss of margin) which such Lender has incurred as a
consequence of:
(i) any payment, prepayment or conversion of any part of any
Funding Segment of any CD Rate Portion or Euro-Rate Portion of the
Loans on a day other than the last day of the corresponding Funding
Period (whether or not such payment, prepayment or conversion is
mandatory or automatic and whether or not such payment or prepayment is
then due),
(ii) any attempt by the Borrower to revoke (expressly, by
later inconsistent notices or otherwise) in whole or in part any notice
stated herein to be irrevocable (the Agent having in its sole
discretion the options (A) to give effect to such attempted revocation
provided that indemnity under this Section 2.12(b) is obtained or (B)
to treat such attempted revocation as having no force or effect, as if
never made), or
(iii) any default by the Borrower in the performance or
observance of any covenant or condition contained in this Agreement or
the Notes, including without limitation any failure of the Borrower to
pay when due (by acceleration or otherwise) any principal, interest,
commitment fee, facility fee or any other amount due hereunder or under
any Note.
If any Lender sustains or incurs any such loss or expense it shall
from time to time notify the Borrower and the Agent in writing setting forth in
reasonable detail the amount determined in good faith by such Lender (which
determination shall be conclusive absent manifest error) to be necessary to
indemnify such Lender for such loss or expense. Such amount shall be due and
payable by the Borrower to the Agent for the account of such Lender, 20 days
after such notice is given.
(c) Additional Interest. (i) So long as any Lender shall be
required under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities or
assets consisting of or including loans made with reference to the CD
Rate, such Lender may require the Borrower to pay, but only in respect
of any period during which such reserves shall actually be maintained
by such Lender, additional interest on the unpaid principal amount of
the CD Rate Portion of the Loans, at an interest rate per annum equal
at all times during each CD Rate Funding Period to the difference
obtained by subtracting (A) the CD Rate for such CD Rate Funding Period
from (B) the rate obtained by dividing such CD Rate referred to in
clause (A) above by that percentage equal to 100% minus the CD Rate
Reserve Percentage of such Lender for such CD Rate Funding Period.
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(ii) So long as any Lender shall be required under regulations
of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, such Lender may require the
Borrower to pay, but only in respect of any period during which such
reserves shall actually be maintained by such Lender, additional
interest on the unpaid principal amount of the Euro-Rate Portion of the
Loans, at an interest rate per annum equal at all times during each
Euro-Rate Funding Period to the difference obtained by subtracting (A)
the Euro-Rate for such Euro-Rate Funding Period from (B) the rate
obtained by dividing such Euro-Rate referred to in clause (A) above by
that percentage equal to 100% minus the Euro-Rate Reserve Percentage of
such Lender for such Euro-Rate Funding Period.
(iii) If any Lender shall claim entitlement to any additional
amount pursuant to this Section 2.12(c), then such Lender shall deliver
to the Borrower a certificate setting forth the basis for the
determination thereof as promptly as practicable. More than one such
certificate may be so delivered. Each such certificate shall be
conclusive and binding for all purposes as to the amount due absent
manifest error. The Borrower shall pay to such Lender the amount shown
as due on any such certificate within 20 days after its receipt of the
same.
2.13. HLT Classification. The Agent shall promptly give notice to the
Borrower and each Lender if at any time
(a) the Agent determines in its reasonable judgment (based upon any Law
or guideline or interpretation or application thereof by any Governmental
Authority charged with the interpretation or administration thereof or
compliance with any request or directive of any Governmental Authority (whether
or not having the force of law), now existing or hereafter adopted), that any
portion of the Loans under this Agreement should be classified as a "highly
leveraged transaction" (or any similar or successor classification then in
effect) (an "HLT Classification"),
(b) the Agent is informed by any Governmental Authority that any
portion of the Loans under this Agreement are or should be subject to HLT
Classification, or
(c) any Lender is informed by any Governmental Authority that any
portion of the Loans under this Agreement contemplated hereby are or should be
subject to HLT Classification, and such Lender in its discretion gives notice of
such fact to the Agent.
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In such event the parties hereto shall commence negotiations in good faith with
a view to agreeing on revised interest rates, fees and other terms and
conditions hereof, consistent with then-current market requirements for
transactions subject to HLT Classification. If the parties hereto fail to agree
on such matters in their respective absolute discretion within 30 days of the
notice given by the Agent referred to above, then the Agent, acting at the
request of the Required Lenders, may give a further notice to the Borrower, and
effective as of the date of such further notice (i) each Applicable Margin set
forth in Section 2.06(b) hereof shall be increased by 2.50%, and (ii) the
percentage applicable to calculation of the Revolving Credit Commitment Fee in
Section 2.02(a) hereof shall be increased by .250%. Except as set forth above,
this Agreement shall remain in full force and effect.
2.14 Taxes.
(a) Payments Net of Taxes. All payments made by the Borrower under this
Agreement shall be made free and clear of, and without reduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, and all liabilities with respect thereto, excluding
(i) in the case of the Agent and each Lender, income or
franchise taxes imposed on the Agent or such Lender by the jurisdiction
under the laws of which the Agent or such Lender is organized or any
political subdivision or taxing authority thereof or therein or as a
result of a connection between such Lender and any jurisdiction other
than a connection resulting solely from this Agreement and the
transactions contemplated hereby, and
(ii) in the case of each Lender, income or franchise taxes
imposed by any jurisdiction in which such Lender's lending offices
which make or book Loans are located or any political subdivision or
taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld or deducted from any amounts payable to the Agent or any Lender under
this Agreement or any other Loan Document, the Borrower shall pay the relevant
amount of such Taxes and the amounts so payable to the Agent or such Lender
shall be increased to the extent necessary to yield to the Agent or such Lender
(after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
other Loan Documents. Whenever any Taxes are paid by the Borrower with respect
to payments made in connection with this Agreement, as promptly as possible
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thereafter, the Borrower shall send to the Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof.
(b) Indemnity. The Borrower hereby indemnifies the Agent and each of
the Lenders for the full amount of all Taxes attributable to payments by or on
behalf of the Borrower hereunder or under any of the other Loan Documents, any
such Taxes paid by the Agent or such Lender, as the case may be, any present or
future claims, liabilities or losses with respect to or resulting from any
omission to pay or delay in paying any Taxes (including any incremental Taxes,
interest or penalties that may become payable by the Agent or such Lender as a
result of any failure to pay such Taxes), whether or not such Taxes were
correctly or legally asserted. Such indemnification shall be made within 30 days
from the date such Lender or the Agent, as the case may be, makes written demand
therefor.
(c) Withholding and Backup Withholding. Each Lender that is
incorporated or organized under the laws of any jurisdiction other than the
United States or any State thereof agrees that, on or prior to the Closing Date
(or, with respect to any Lender which becomes a party to this Agreement pursuant
to Section 9.14 hereof, the Transfer Effective Date), it will furnish to the
Borrower and the Agent
(i) two valid, duly completed copies of United States Internal
Revenue Service Form 4224 or United States Internal Revenue Form 1001
or successor applicable form, as the case may be, certifying in each
case that such Lender is entitled to receive payments under this
Agreement and the other Loan Documents without deduction or withholding
of any United States federal income taxes, and
(ii) a valid, duly completed Internal Revenue Service Form W-8
or W-9 or successor applicable form, as the case may be, to establish
an exemption from United States backup withholding tax.
Each Lender which so delivers to the Borrower and the Agent a Form 1001 or 4224
and Form W-8 or W-9 applicable forms (the "Forms") agrees to deliver to the
Borrower and the Agent two further copies of the Forms, or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or otherwise is required to be resubmitted as a
condition to obtaining an exemption from withholding tax, or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it, and such extensions or renewals thereof as may reasonably be
requested by the Borrower and the Agent, certifying in the case of a Form 1001
or Form 4224 that such Lender is entitled to receive payments under this
Agreement or any other Loan Document without deduction or
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withholding of any United States federal income taxes, unless in any such cases
an event (including any changes in Law) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such letter or form with respect to it and such Lender advises
the Borrower and the Agent that it is not capable of receiving payments without
any deduction or withholding of United States federal income tax, and in the
case of a Form W-8 or W-9, establishing an exemption from United States backup
withholding tax. Notwithstanding anything to the contrary contained herein, the
Borrower shall not be required to pay any additional amounts pursuant to this
Section 2.14 or pursuant to Section 2.12 if the obligation to pay such
additional amounts would not have arisen but for the failure by any Lender to
comply with its obligations hereunder, or if such Lender shall have delivered
the appropriate Forms and such Lender is not entitled to exemption from
deduction or withholding of U.S. federal income tax in respect of payments made
by the Borrower hereunder for any reason other than a change in U.S. law or
regulations or in the official interpretation thereof after the date of delivery
of such Forms.
2.15. Funding by Branch, Subsidiary or Affiliate.
(a) Notional Funding. Each Lender shall have the right from time to
time, prospectively or retrospectively, without notice to the Borrower, to deem
any branch, subsidiary or affiliate of such Lender to have made, maintained or
funded any part of the Euro-Rate Portion at any time. Any branch, subsidiary or
affiliate so deemed shall be known as a "Notional Euro-Rate Funding Office."
Such Lender shall deem any part of the Euro-Rate Portion of the Loans or the
funding therefor to have been transferred to a different Notional Euro-Rate
Funding Office if such transfer would avoid or cure an event or condition
described in Section 2.06(e)(ii) hereof or would lessen compensation payable by
the Borrower under Sections 2.12(a) or 2.14(b) hereof, and provided that such
Lender determines in its sole discretion that such transfer would be practicable
and would not have a material adverse effect on such part of the Loans, such
Lender or any Notional Euro-Rate Funding Office (it being assumed for purposes
of such determination that each part of the Euro-Rate Portion is actually made
or maintained by or funded through the corresponding Notional Euro-Rate Funding
Office). Notional Euro-Rate Funding Offices may be selected by such Lender
without regard to such Lender's actual methods of making, maintaining or funding
Loans or any sources of funding actually used by or available to such Lender.
(b) Actual Funding. Each Lender shall have the right from time to time
to make or maintain any part of the Euro-Rate Portion by arranging for a branch,
subsidiary or affiliate of such Lender to make or maintain such part of the
Euro-Rate Portion.
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Such Lender shall have the right to (i) hold any applicable Note payable to its
order for the benefit and account of such branch, subsidiary or affiliate or
(ii) request the Borrower to issue one or more promissory notes in the principal
amount of such Euro-Rate Portion, in substantially the form attached hereto as
Exhibit A with the blanks appropriately filled, payable to such branch,
subsidiary or affiliate and with appropriate changes reflecting that the holder
thereof is not obligated to make any additional Loans to the Borrower. The
Borrower agrees to comply promptly with any request under subsection (ii) of
this Section 2.15(b). If any Lender causes a branch, subsidiary or affiliate to
make or maintain any part of the Euro-Rate Portion hereunder, all terms and
conditions of this Agreement shall, except where the context clearly requires
otherwise, be applicable to such part of the Euro-Rate Portion and to any note
payable to the order of such branch, subsidiary or affiliate to the same extent
as if such part of the Euro-Rate Portion were made or maintained and such note
were a Revolving Credit Note payable to such Lender's order.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Agent and each
Lender as follows:
3.01. Corporate Status. The Borrower and each Subsidiary thereof (a)
is a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation; (b) has corporate power and authority
to own its property and to transact the business in which it is engaged or
presently proposes to engage; and (c) is duly qualified to do business as a
foreign corporation and is in good standing in all jurisdictions in which the
ownership of its properties or the nature of its activities or both makes such
qualification necessary, except for matters that, individually or in the
aggregate, could not have a Material Adverse Effect. Schedule 3.01 hereof states
as of the date hereof the jurisdiction of incorporation of the Borrower and each
Subsidiary.
3.02. Corporate Power and Authorization. The Borrower has the corporate
power to execute, deliver and perform the Loan Documents to be executed by it,
has the power to borrow hereunder and has taken all necessary corporate action
and obtained all necessary consents and approvals to authorize the borrowings
hereunder on the terms and conditions of this Agreement, has taken all necessary
action, corporate or otherwise, to authorize the execution, delivery and
performance of this Agreement and the other Loan Documents to be executed by it.
No consent or approval of stockholders of the Borrower generally, no consent or
approval of any landlord or mortgagee, and no waiver of any Lien of right or
distraint or other similar right, is or will be required in
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connection with the execution, delivery or performance by it, or the validity,
enforcement or priority, of the Loan Documents to be executed by it.
3.03. Execution and Bindinq Effect. This Agreement and each other Loan
Document to which the Borrower is a party has been, or upon its execution and
delivery will be, duly executed and delivered by the Borrower and each
constitutes, or upon its execution and delivery will constitute, the valid and
legally binding obligation of the Borrower, enforceable in accordance with its
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar laws, now or hereafter
in effect, relating to or affecting the enforcement of creditors' rights
generally and except that the remedy of specific performance and other equitable
remedies are subject to judicial discretion. There is no action, suit,
proceeding or investigation pending or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries which
questions the validity or the enforceability of any of the Loan Documents.
3.04. Governmental Approvals and Filings. No approval, order, consent,
authorization, certificate, license, permit or validation of, or exemption or
other action by, or filing, recording or registration with, or notice to, any
Governmental Authority (collectively, "Governmental Action") is or will be
necessary or advisable in connection with execution and delivery of this
Agreement or any other Loan Document, consummation by the Borrower of the
transactions herein or therein contemplated, or performance of or compliance
with the terms and conditions hereof or thereof. Neither the Borrower nor any
Subsidiary thereof is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act or the Investment Company Act of 1940
or to any Federal or state statute or regulation limiting the Borrower's ability
to incur Indebtedness for money borrowed. Neither the Borrower nor any
Subsidiary thereof is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
3.05. Absence of Conflicts. The execution and delivery by the Borrower
of this Agreement and each other Loan Document to which it is a party and
performance by it hereunder and thereunder, will not violate any Law (including,
without limitation, Regulations G, U, T and X of the Federal Reserve Board) and
will not conflict with or result in a breach of any order, writ, injunction,
ordinance, resolution, decree, or other similar document or instrument of any
court or governmental authority, bureau or agency, domestic or foreign, or its
certificate of incorporation or by-laws or create (with or without the giving of
notice or lapse of time, or both) a default under or breach of any agreement,
bond, note or indenture to which it is a party (by successor in interest or
otherwise), or by which it is
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bound or any of its properties or assets is affected, or result in the
imposition of any Lien of any nature whatsoever upon any of the properties or
assets owned by or used in connection with the business of the Borrower or any
of its Subsidiaries.
3.06. Audited Financial Statements. The Borrower has heretofore
furnished to the Agent and each Lender consolidated balance sheets of the
Borrower and its consolidated Subsidiaries as of December 31, 1990 and the
related consolidated statements of income, cash flows and changes in
stockholders' equity for the fiscal year then ended, as examined and reported on
by Ernst & Young, independent certified public accountants for the Borrower, who
delivered an unqualified opinion in respect thereof. Such financial statements
(including the notes thereto) present fairly the financial condition of the
Borrower and its consolidated Subsidiaries as of the end of each such fiscal
year and the results of their operations and their cash flows for the fiscal
years then ended, all in conformity with GAAP.
3.07. Absence of Undisclosed Material Liabilities. Except as disclosed
in writing by the Borrower to the Lenders and except as to the possible effect
of the application of FAS 106, neither the Borrower nor any Subsidiary of the
Borrower has any liability or obligation of any nature whatever (including
without limitation Environmental Matters) which, to the knowledge of any
Responsible Officer, will more likely than not have a Material Adverse Effect.
As of September 30, 1991, neither the Borrower nor any Subsidiary of the
Borrower has any Indebtedness other than the Indebtedness of the Borrower and
its Subsidiaries set forth on Schedule 3.07 hereto.
3.08. Absence of Material Adverse Change. Except as to the possible
effect of the application of FAS 106, since December 31, 1990, there has been no
change in the business, properties, assets or financial condition of the
Borrower and its Subsidiaries taken as a whole which is likely to have a
Material Adverse Effect.
3.09. Accurate and Complete Disclosure. The Borrower has furnished to
the Lenders copies of its Annual Report on Form 10-K for the fiscal year ended
December 31, 1990, its Quarterly Report on Form 10-Q for the quarter ended June
30, 1991 and its Annual Report for the year ended December 31, 1990. None of
such documents contains any untrue statement of a material fact or omits to
state any material fact necessary to make such information (taken as a whole)
not misleading at such time in light of the circumstances in which it was
provided.
3.10. Margin Regulations. No part of the proceeds of any Loan hereunder
will be used for the purpose of buying or carrying any "margin stock", as such
term is used in Regulations G and U of the Board of Governors of the Federal
Reserve System, as amended from time to time, except margin stock issued by the
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Borrower, or to extend credit to others for the purpose of buying or carrying
any "margin stock." Neither the Borrower nor any Subsidiary thereof is engaged
in the business of extending credit to others for the purpose of buying or
carrying "margin stock." Neither the making of any Loan nor any use of proceeds
of any such Loan will violate or conflict with the provisions of Regulation G,
T, U or X of the Board of Governors of the Federal Reserve System, as amended
from time to time.
3.11. Subsidiaries. Schedule 3.11 hereof states as of the Closing Date
each Subsidiary of the Borrower and the percentage of outstanding shares owned
by the Borrower and by each Subsidiary. The outstanding shares of each
Subsidiary of the Borrower have been duly authorized and validly issued and are
fully paid and nonassessable. The Borrower and each Subsidiary thereof owns
beneficially and of record and has good title to all of the shares represented
by the ownership percentage shown in such Schedule 3.11, free and clear of any
Lien. There are no options, warrants, calls, subscriptions, conversion rights,
exchange rights, preemptive rights or other rights, agreements or arrangements
(contingent or otherwise) which may in any circumstances now or hereafter
obligate any Subsidiary to issue any shares of its capital stock or any other
securities. As of the Closing Date, no Subsidiary has outstanding any class of
preferred stock or any class of common stock with a prior right to dividends.
3.12. Partnerships, etc. As of the Closing Date, neither the Borrower
nor any Subsidiary thereof is a partner (general or limited) of any partnership,
is a party to any joint venture or owns (beneficially or of record) any material
equity or similar interest in any Person (including but not limited to any
interest pursuant to which the Borrower or such Subsidiary has or may in any
circumstance have an obligation to make capital contributions to, or be
generally liable for or on account of the liabilities, acts or omissions of such
other Person), except for the partnership interests set forth in Schedule 3.12
hereof.
3.13. Litigation. Except as disclosed in writing by the Borrower to the
Lenders, there is no pending or (to the Borrower's knowledge) threatened action,
suit, proceeding or investigation by or before any Governmental Authority
against or affecting the Borrower or any Subsidiary of the Borrower, which will
more likely than not, individually or in the aggregate, have a Material Adverse
Effect.
3.14. Absence of Events of Default. No event has occurred and is
continuing and no condition exists which constitutes an Event of Default or
Potential Default.
3.15. Insurance. The policies, binders or self-insurance programs for
fire, liability, product liability, worker's compensation, vehicular and other
insurance currently
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held by or on behalf of the Borrower and each Subsidiary thereof insure its
properties and business activities against such losses and risks as are adequate
to protect its properties in accordance with customary industry practice when
entered into or renewed. To the best knowledge of the Borrower, all such
policies, binders and self-insurance programs are in full force and effect.
Neither the Borrower nor, to the best knowledge of the Borrower, any of its
Subsidiaries has received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures will have to be made in
order to continue such insurance and, to the best knowledge of the Borrower, no
such improvements or expenditures are required. Neither the Borrower nor, to the
best knowledge of the Borrower, any of its Subsidiaries has received notice of
cancellation of any material insurance policy or binder.
3.16. Title to Properties. Except where the failure to possess good and
marketable title in fee simple or good title, as the case may be, would not have
a Material Adverse Effect, the Borrower and each Subsidiary thereof has good and
marketable title in fee simple to all real property owned or purported to be
owned by it and necessary for the operation of its business and good title to
all other property of whatever nature owned or purported to be owned by it,
including but not limited to all property reflected in the most recent audited
balance sheet referred to in Section 3.06 hereof or submitted pursuant to
Section 5.01(a) hereof, as the case may be (except as sold or otherwise disposed
of in the ordinary course of business after the date of such balance sheet or,
after the Closing Date, as otherwise expressly permitted by the Loan Documents)
in each case free and clear of all Liens, other than Liens permitted by Section
6.02 hereof.
3.17. Intellectual Property. The Borrower and each Subsidiary thereof
owns, or is licensed or otherwise has the right to use, all the patents,
trademarks, service marks, names (trade, service, fictitious or otherwise),
copyrights, technology (including but not limited to computer programs and
software), processes, data bases and other rights, free from burdensome
restrictions, necessary to own and operate its properties and to carry on its
business as presently conducted and presently planned to be conducted without
conflict with the rights of others.
3.18. Taxes. Consolidated federal income tax returns for the Borrower
and its domestic Subsidiaries have been examined by the IRS for all years up to
and including the year ended December 31, 1987. The Borrower and each of its
Subsidiaries have filed or caused to be filed all federal, state and local tax
returns which, to the knowledge of any Responsible Officer of the Borrower, are
required to be filed and have paid or caused to be paid all taxes as shown on
such returns or on any assessment received by it or by any of them, to the
extent that such taxes have become due, except any such tax or assessment the
validity of which is being contested in good faith by appropriate proceedings
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and with respect to which the Borrower or a Subsidiary of the Borrower, as
appropriate, has set aside on its books adequate reserves to the extent the
Borrower or any Subsidiary of the Borrower and a nationally recognized
independent certified public accountant believes such reserves are necessary. To
the extent that the Borrower in good faith believes is necessary, the Borrower
and its Subsidiaries have set up reserves which are believed by the Borrower to
be adequate for the payment of additional taxes. All assessed deficiencies
resulting from examinations by the IRS up to and including the year ended
December 31, 1987 have been discharged, reserved against or will not impair the
Borrower's ability to repay the Loans.
3.19. Employee Benefits. (a) No borrowing contemplated by this
Agreement is a transaction which is subject to the prohibitions of Section 406
of ERISA or in connection with which a tax could be imposed pursuant to Section
4975 of the Code or a civil penalty assessed pursuant to Section 502(i) of ERISA
(assuming that monies other than monies representing plan assets are borrowed
hereunder). Neither the Borrower, any of its Subsidiaries nor any other Person,
including any fiduciary, has engaged in any prohibited transaction (as defined
in Section 4975 of the Code or Section 406 of ERISA) which could subject any of
the Benefit Plans, the Borrower, or any Subsidiary (or any entity which they
have an obligation to indemnify) to any tax or penalty imposed under 4975 of the
Code or Section 502(i) of ERISA or any other material liability under a foreign
law of similar nature which alone or together with any other item described in
this Section 3.19 would have a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries (including any
member of their respective Controlled Group) (i) has incurred or expects to
incur any liability under Title IV of ERISA or Section 502(g) of ERISA or any
analogous provision relating to Section 515 of ERISA or (ii) has become subject
or expects to be subject to the lien described in Section 412(n) of the Code,
which alone or together with any other item described in this Section 3.19 would
have a Material Adverse Effect.
(c) The Pension Plans do not have an "accumulated funding deficiency"
(whether or not waived) within the meaning of Section 412 of the Code or Section
302 of ERISA. No Pension Plan has benefit liabilities as defined in Section
4001(a)(16) of ERISA which exceed the assets of such Pension Plan by such an
amount that the termination of such Pension Plan alone or together with any
other item described in this Section would have a Material Adverse Effect. The
Borrower has received a favorable determination letter from the IRS with respect
to all Pension Plans except for such Pension Plans with respect to which the
failure to receive such a favorable determination would not alone or together
with any other item described in this Section 3.19 have a Material Adverse
Effect and nothing has happened since the date of such letter that has adversely
affected such
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qualification. There is no Lien outstanding or security interest given in
connection with a Pension Plan or under Title IV of ERISA which would exceed the
percentage limitations of Section 6.02(g) hereof. As of the date hereof, the
Borrower has filed all required notices with respect to any terminated Benefit
Plans subject to Title IV of ERISA, no objections relating to any such
termination by the IRS or the PBGC are pending and the time period for making
such objections has lapsed.
(d) Neither the Borrower nor any of its Subsidiaries (including any
member of their respective Controlled Group) is in default in any material
respect under any Benefit Plan and all Benefit Plans are administered in
accordance with their terms and are in all material respects in compliance with
all applicable Laws, except where any such default or failure to comply would
not alone or together with any other item described in this Section 3.19 have a
Material Adverse Effect.
3.20 Environmental Matters
(a) The Borrower and each Subsidiary of the Borrower, to its knowledge,
has been operated in compliance with all applicable Requirements of Law, except
for matters which, individually or in the aggregate, are not likely to have a
Material Adverse Effect.
(b) The Borrower and each Subsidiary of the Borrower, to its knowledge,
has not received notice from any governmental authority that any of them is a
potentially responsible party under any Requirements of Law at any disposal site
containing Hazardous Materials, nor received any notice that any lien under any
Requirements of Law against any property of the Borrower or Subsidiary of the
Borrower exists, except for matters which, individually or in the aggregate, are
not likely to have a Material Adverse Effect.
ARTICLE IV
CONDITIONS OF LENDING
4.01. Conditions to Initial Loans. The obligation of each Lender to
make Loans on the Closing Date is subject to the satisfaction, immediately prior
to or concurrently with the making of such Loan, of the following conditions
precedent, in addition to the conditions precedent set forth in Section 4.02
hereof:
(a) Agreement; Notes. The Agent shall have received executed
counterparts of this Agreement for each Lender, duly executed by the
Borrower, the Agent and each Lender, and executed Revolving Credit
Notes conforming to the requirements hereof, duly executed on behalf of
the Borrower.
(b) Corporate Proceedings. The Agent shall have received, with
a counterpart for each Lender, certificates by
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the Secretary or Assistant Secretary of the Borrower dated as of the
Closing Date as to (i) true copies of the articles of incorporation and
by-laws (or other constituent documents) of the Borrower in effect on
such date, (ii) true copies of all corporate action taken by the
Borrower relative to this Agreement and the other Loan Documents and
(iii) the incumbency and signature of the respective officers of the
Borrower executing this Agreement and the other Loan Documents to which
the Borrower is a party, together with satisfactory evidence of the
incumbency of such Secretary or Assistant Secretary. The Agent shall
have received, with a copy for each Lender, certificates from the
appropriate Secretaries of State or other applicable Governmental
Authorities dated not more than 30 days before the Closing Date showing
the good standing of the Borrower in its state of incorporation.
(c) Financial Statements. The Agent shall have received, with
a counterpart for each Lender, copies of the consolidated financial
statements referred to in Section 3.06 hereof.
(d) Legal Opinion of Counsel to the Borrower. The Agent shall
have received, with an executed counterpart for each Lender, an opinion
addressed to the Agent and each Lender, dated the Closing Date, of John
E. Besser, Esquire, General Counsel of the Borrower, in the form
attached hereto as Exhibit C.
(e) Fees, Expenses, etc. All fees and other compensation
required to be paid to the Agent or the Lenders pursuant hereto or
pursuant to any other written agreement on or prior to the Closing Date
shall have been paid or received.
(f) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other matters in connection with the
transactions contemplated by this Agreement and the other Loan
Documents shall be reasonably satisfactory in form and substance to the
Agent and each Lender.
4.02. Conditions to All Loans. The obligation of each Lender to make
any Loan (including the initial Loans) are subject to performance by the
Borrower of its obligations to be performed hereunder or under the other Loan
conditions precedent set forth herein and in the other Loan Documents and to
satisfaction of the following further conditions precedent:
(a) Notice. Appropriate notice of such Loan shall have been
given by the Borrower as provided in Article II hereof.
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(b) Representations and Warranties. Each of the
representations and warranties made by the Borrower herein shall be
true and correct in all material respects on and as of such date as if
made on and as of such date (except with respect to representations and
warranties which specifically refer to an earlier date, which shall be
true and correct in all material respects as of such earlier date),
both before and after giving effect to the Loans requested to be made
on such date.
(c) No Defaults. No Event of Default or Potential Default
shall have occurred and be continuing on such date or after giving
effect to the Loans requested to be made on such date.
(d) No Violations of Law, etc. Neither the making nor use of
the Loans shall cause any Lender to violate or conflict with any Law.
Each request by the Borrower for any Loan shall constitute a representation and
warranty by the Borrower that the conditions set forth in this Section 4.02 have
been satisfied as of the date of such request. Failure of the Agent to receive
notice from the Borrower to the contrary before such Loan is made shall
constitute a further representation and warranty by the Borrower that the
conditions referred to in this Section 4.02 have been satisfied as of the date
such Loan is made.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower hereby covenants to the Agent and each Lender as follows:
5.01. Basic Reporting Requirements.
(a) Annual Audit Reports. The Borrower shall deliver to the Agent, with
a copy for each Lender, as soon as available, but in any event within 90 days
after the last day of each of its fiscal years, a consolidated balance sheet of
the Borrower as at such last day of the fiscal year, and the related
consolidated statement of income, consolidated statement of changes in common
shareholders equity and consolidated statement of cash flows for such fiscal
year, each prepared in accordance with GAAP (except as required by any change in
accounting principles or concurred in by the Borrower's independent certified
public accountants), in reasonable detail, and, as to the financial statements,
certified without qualification (other than relating to a change in accounting
principles with which such accountants concur and other than any other
qualification which the Agent and the Required Lenders deem, in their reasonable
judgment, to be immaterial) by Ernst & Young or another firm of independent
certified public
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accountants satisfactory to the Agent as fairly presenting the financial
position at year end and the consolidated results of operations of the Borrower
consolidated for the year ending on such date and as having been prepared in
accordance with GAAP.
(b) Quarterly Consolidated Reports. The Borrower shall deliver to the
Agent, with a copy for each Lender, as soon as available, but in any event
within 60 days after the end of each of the Borrower's fiscal quarterly periods,
a consolidated balance sheet of the Borrower as of the last day of such quarter
and consolidated statement of income, consolidated statement of changes in
common shareholders' equity and consolidated statement of cash flows, for such
quarter, and on a comparative basis figures for the corresponding period of the
immediately preceding fiscal year, all in reasonable detail, each such statement
to be certified in a certificate of a Responsible Officer of the Borrower, as
the case may be, as fairly presenting the financial position and the
consolidated results of operations of the Borrower consolidated for such quarter
and as having been prepared in accordance with GAAP for interim financial
statements (subject to customary year-end audit adjustments).
(c) Quarterly Compliance Certificates. The Borrower shall deliver to
the Agent, with a copy for each Lender, a Quarterly Compliance Certificate in
substantially the form set forth as Exhibit D hereto, duly completed and signed
by a Responsible Officer of the Borrower concurrently with the delivery of the
financial statements referred to in subsections (a) and (b) of this Section
5.01.
(d) Other Financial Statements. The Borrower shall deliver to the
Agent, with a copy for each Lender, for each Subsidiary and Subsidiary
Investment which is subject to any restriction on its ability to make Stock
Payments in respect of its capital stock (except for restrictions applicable to
corporations generally in such entity's place of incorporation) and in which
there has been an investment of cash or assets since the Closing Date, as soon
as possible but in any event within 90 days after the end of each fiscal year, a
certificate, duly executed by a Responsible Officer of the Borrower, as to
amount of the Borrower's investment, direct or indirect, in each Subsidiary and
Subsidiary Investment, together with a balance sheet and an income statement for
each Subsidiary subject to any such restriction.
(e) Certain Other Reports and Information. Promptly upon their becoming
available to the Borrower, the Borrower shall deliver to the Agent, with a copy
for each Lender, a copy of (i) all regular or special reports, registration
statements and amendments to the foregoing which the Borrower or any Subsidiary
shall file with the Securities and Exchange Commission (or any
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successor thereto), and (ii) all reports, proxy statements, financial statements
and other information distributed by the Borrower to its stockholders or
bondholders.
(f) Further Information. The Borrower will promptly furnish to the
Agent, with a copy for each Lender, such other information and in such form as
the Agent or any Lender may reasonably request from time to time.
(g) Notice of Certain Events. Promptly upon becoming aware of any of
the following, the Borrower shall give the Agent notice thereof, together with a
written statement of a Responsible Officer of the Borrower setting forth the
details thereof and any action with respect thereto taken or proposed to be
taken by the Borrower:
(i) Any Event of Default or Potential Default.
(ii) Any material correspondence with the PBGC, the Secretary
of Labor or any representative of the IRS with respect to any Benefit
Plan or Pension Plan, relating to an actual or threatened change or
development which would have a Material Adverse Effect; and copies of
any notices from the PBGC to the Borrower with respect to the intent of
the PBGC to institute involuntary proceedings.
(iii) Any Environmental Claim pending or threatened against
the Borrower or any Subsidiary of the Borrower, which Environmental
Claim, if adversely resolved, individually or in the aggregate, could
have a Material Adverse Effect; provided, however, that no such notice
is required to be given with respect to any Environmental Claim if the
Borrower reasonably determines that its liability, if any, with respect
to such Environmental Claim will not exceed $1,000,000.
(h) Visitation; Verification. The Borrower shall, and shall cause each
of its Subsidiaries to, permit the Lenders to make or cause to be made,
reasonable inspections of any of its books, records and papers and to make
extracts therefrom and copies thereof, or to make reasonable inspections and
examinations of any of its properties and facilities, and to discuss the
affairs, finances and accounts of the Borrower and its Subsidiaries with the
principal officers of the Borrower and with the Borrower's independent
accountants, all at all such reasonable times and as often as any Lender may
reasonably require, in order to assure that the Borrower and its Subsidiaries
are and will be in compliance with their respective obligations under the Loan
Documents or to evaluate the Lenders' investment in the then outstanding Notes.
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The Agent shall promptly deliver to each Lender copies of all notices,
financial statements and other information received pursuant to this Section
5.01.
5.02. Insurance. The Borrower shall, and shall cause each of its
Subsidiaries to, maintain, at its expense, and keep in effect with responsible
insurance companies, such liability insurance for bodily injury and third party
property damage as is customary in the case of corporations engaged in the same
or similar business or having similar properties, similarly situated. The
Borrower shall, and shall cause each of its Subsidiaries to, keep and maintain,
at its expense, its real and personal property insured against loss or damage by
fire, theft, explosion, spoilage, and all other risks ordinarily insured against
by other owners or users of such properties in similar businesses in an amount
equal to the full replacement or cash value thereof, subject to deductible
amounts which the Borrower, in its reasonable judgment, deems prudent.
5.03. Payment of Taxes and Other Potential Charges and Priority Claims.
Except for situations where the failure to pay or discharge would not have a
Material Adverse Effect, the Borrower shall, and shall cause each Subsidiary to,
pay or discharge
(a) on or prior to the date on which penalties are imposed by
a taxing authority with respect thereto, all taxes, assessments and
other governmental charges imposed upon it or any of its properties;
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other
like Persons which, if unpaid, might result in the creation of a Lien
upon any such property; and
(c) on or prior to the date when due, all other lawful claims
which, if unpaid, might result in the creation of a Lien upon any such
property or which, if unpaid, might give rise to a claim entitled to
priority over general creditors of the Borrower or such Subsidiary in a
case under Title 11 (Bankruptcy) of the United States Code, as amended;
provided, that unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced the Borrower or such Subsidiary need not
pay or discharge any such tax, assessment, charge or claim so long as (x) the
validity thereof is contested in good faith and by appropriate proceedings
diligently conducted, (y) such reserves or other appropriate provisions as are
required by GAAP shall have been made therefor, and (z) such failure will not
have a Material Adverse Effect.
5.04. Preservation of Corporate Status. The Borrower shall, and shall
cause each of its Subsidiaries to, do, or cause
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to be done, all things necessary to preserve, renew and keep in full force and
effect its corporate existence, permits and franchises, and use its best efforts
to comply with all Laws (including without limitation environmental Laws)
applicable to it except where such noncompliance could not have Material Adverse
Effect; provided, however, that nothing in this Section 5.04 shall prevent the
abandonment or termination of the Borrower's authorization to do business in any
foreign jurisdiction or of the corporate existence, rights and franchises of any
Subsidiary of the Borrower if such abandonment or termination is in the interest
of the Borrower and not disadvantageous in any material respect to the Lenders.
5.05. Governmental Approvals and Filings. The Borrower shall, and
shall cause each Subsidiary to, keep and maintain in full force and effect all
Governmental Actions necessary, if any, in connection with execution and
delivery of any Loan Document, consummation of the transactions hereon or
therein contemplated, performance of or compliance with the terms and conditions
hereof or thereof or to ensure the legality, validity, binding effect,
enforceability or admissibility in evidence hereof or thereof.
5.06. Maintenance of Properties. The Borrower shall, and shall cause
each Subsidiary to, maintain or cause to be maintained in good repair, working
order and condition the properties now or hereafter owned, leased or otherwise
possessed by it which are necessary for the effective conduct of its business
and shall make or cause to be made all needful and proper repairs, renewals,
replacements and improvements thereto so that they are able to serve the
functions for which they are currently being used.
5.07. Avoidance of Other Conflicts. The Borrower shall not, and shall
not permit any of its Subsidiaries to, violate or conflict with, be in violation
of or conflict with, or be or remain subject to any liability (contingent or
otherwise) on account of any violation or conflict with its articles of
incorporation or by-laws (or other constituent documents) except for matters
which, individually or in the aggregate could not have a Material Adverse
Effect.
5.08. Financial Accounting Practices. The Borrower shall, and shall
cause each of its Subsidiaries to, keep proper books of record and account in
accordance with normal business practice.
5.09. Use of Proceeds. The Borrower shall apply the proceeds of Loans
hereunder for general corporate purposes. The Borrower shall not use the
proceeds of any Loans hereunder directly or indirectly for any unlawful purpose
or in any manner inconsistent with any other provision of any Loan Document.
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5.10. Continuation of or Change in Business. Neither the Borrower nor
any Subsidiary shall engage in any line of business if as a result thereof the
business of the Borrower and its Subsidiaries taken as a whole would be
substantially different from what it was at December 31, 1990 as described in
the Borrower's Annual Report on Form 10-K for the fiscal year ended December 31,
1990.
5.11. Consolidated Tax Return. The Borrower shall not, and shall not
suffer any of its Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person other than the Borrower and its
Subsidiaries.
5.12. ERISA. The Borrower shall, and shall cause each of its
Subsidiaries incorporated in the United States to
(a) comply with all applicable provisions of ERISA now and
hereafter in effect, non-compliance with which would have a Material
Adverse Effect; and
(b) as soon as possible and, in any event, within 10 days
after the Borrower knows or has reason to know that a Reportable Event
has occurred with respect to a Pension Plan, that a transaction
prohibited under ERISA or the Code has occurred resulting in a material
liability to a Benefit Plan, the Borrower or any of its Subsidiaries
(or any entity which they have an obligation to indemnify), that an
accumulated funding deficiency has been incurred or an application is
to be or has been made to the Secretary of the Treasury for a waiver of
the minimum funding standard with respect to an accumulation funding
deficiency of $100,000 or more, that a failure to make timely
contributions to a Pension Plan may give or has given rise to a lien in
a material amount, that an amendment to a Pension Plan may require or
requires the granting of a security interest in a material amount, that
proceedings are likely to be or have been instituted to terminate a
Pension Plan, or that the Borrower, any of its Significant Subsidiaries
or a member of their respective Controlled Group will or may incur any
material liability under Section 502(g) or any analogous provision
relating to Section 515 or Title IV of ERISA, the Borrower will deliver
to the Lenders a certificate of a financial officer setting forth
details as to such occurrence and action, if any, which the Borrower,
such Subsidiary or the respective member of their Controlled Group is
required or proposes to take, together with any notices required or
proposed to be filed with or by the Borrower, such Subsidiary or the
member of their respective Controlled Group, the PBGC or the plan
administrator with respect thereto. For purposes of this Section, an
item is material if alone or taken with any other item in this Section,
it results in a liability of $1,000,000 or more. Copies of any notices
required to be delivered to the Lenders hereunder shall be delivered
not later than 10
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days after the later of the date such notice has been filed with the
IRS or the PBGC or received by the Borrower, any of its Subsidiaries or
members of their respective Controlled Group. Upon the request of the
Agent or any of the Lenders made from time to time, the Borrower will
deliver a copy of the most recent actuarial report and annual report
completed with respect to any Benefit Plan and any other financial
information the Borrower has with respect to the Benefit Plan.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower hereby covenants to the Agent and each Lender as
follows:
6.01. Financial Covenants.
(a) Consolidated Current Ratio. The Consolidated Current Ratio
shall not at any time be less than 1.40:1.
(b) Consolidated Leverage Ratio. The Consolidated Leverage
Ratio shall not at any time exceed 1.55:1.
(c) Consolidated Net Worth. Consolidated Net Worth shall not
at any time be less than $120,000,000 plus 50% of the Borrower's after-tax
consolidated net income for each fiscal year beginning after December 31, 1991
(but without deduction for any fiscal year in which consolidated net income is a
negative amount), with the annual adjustments to be applicable as of December
31, 1992 and as of the end of each subsequent fiscal year.
6.02. Liens. The Borrower will not, nor will it permit any of
its Subsidiaries to, directly or indirectly incur, create, assume or permit to
exist any mortgage, pledge, security interest, lien, charge or other encumbrance
of any nature whatsoever (including conditional sales or other title retention
agreements) on any of its property or assets, whether owned at the date hereof
or hereafter acquired, or assign, or permit any of its Subsidiaries to assign,
any right to receive income, except:
(a) liens incurred or pledges and deposits made in connection with
workers' compensation, unemployment insurance, old-age
pensions, social security and public liability and similar
legislation;
(b) liens securing the performance of bids, tenders, leases,
contracts (other than for the repayment of borrowed money),
statutory obligations, surety and appeal bonds and other
obligations of like
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nature, incurred as an incident to and in the ordinary course of
business;
(c) statutory liens of landlords and other liens imposed by law, such as
carriers', warehousemen's, mechanics', materialmen's and vendors'
liens, incurred in good faith in the ordinary course of business;
(d) liens securing the payment of taxes, assessments and governmental
charges or levies, either (1) not delinquent, or (2) being contested in
good faith by appropriate proceedings;
(e) zoning restrictions, easements, licenses, reservations, restrictions on
the use of real property or minor irregularities incident thereto which
do not in the aggregate materially detract from the value of the
property or assets of the Borrower or such Subsidiary, as the case may
be, or impair the use of such property in the operation of its
business;
(f) purchase money liens on real property or equipment (which are filed
against the real property or equipment within 180 days of purchase)
that do not exceed 100% of the fair market value of the related
property; and
(g) other liens (including ERISA Liens) that in the aggregate do not exceed
15% of the book value (computed in accordance with GAAP) of all
properties and assets of the Borrower and its Subsidiaries at the end
of the preceding fiscal year.
6.03. Indebtedness. The Borrower shall not, and shall not
permit any Subsidiary to, at any time create, incur, assume or suffer to exist
or have outstanding any Indebtedness other than:
(a) Indebtedness of the Borrower hereunder or under the Notes;
(b) the Senior Notes;
(c) Indebtedness of the Borrower which constitutes extensions, renewals or
replacements on substantially the same terms and conditions (and does not
increase the amount outstanding) of (a) and (b) above; and
(d) additional Indebtedness of the Borrower and its Subsidiaries;
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provided, however, that (i) the total Indebtedness of the Borrower's
Subsidiaries shall not at any time exceed $50,000,000, and (ii) the total
Indebtedness of the Borrower's domestic Subsidiaries shall not at any time
exceed $10,000,000 (excluding from the calculation thereof any pre-existing
Indebtedness of a newly-acquired domestic Subsidiary for a period not exceeding
30 days after the acquisition of such domestic Subsidiary if, on each day from
and including the date of any such acquisition until payment of such
pre-existing Indebtedness, the Borrower or such domestic Subsidiary has in place
a committed credit facility acceptable to the Agent which is sufficient to
permit the Borrower or such domestic Subsidiary to borrow sufficient funds to
repay such Indebtedness and comply with the limitations on Indebtedness set
forth in this Section 6.03).
6.04. Limitation on Restrictions on Dividends by Subsidiaries, etc.
The Borrower shall not permit any Subsidiary or other entity in which the
Borrower or any Subsidiary has an equity investment (a "Subsidiary Investment")
to be or become subject to any restriction (except restrictions applicable to
corporations generally), whether arising by agreement, by its articles of
incorporation, by-laws or other constituent documents of such Subsidiary or
Subsidiary Investment or otherwise, on the right of such Subsidiary or
Subsidiary Investment from time to time to (w) declare and pay Stock Payments
with respect to capital stock owned by the Borrower or any Subsidiary, (x) pay
any obligations from time to time owed to the Borrower or any Subsidiary, or (y)
make loans or advances to the Borrower or any Subsidiary, or (z) transfer any of
its properties or assets to the Borrower or any Subsidiary; provided, however,
that such restrictions may be permitted with respect to any Subsidiary or
Subsidiary Investment in which the Borrower or a Subsidiary directly or
indirectly owns less than 80% of the Voting Stock and in which the Borrower's or
such Subsidiary's cumulative investment since the Closing Date (in terms of cash
invested in and/or assets contributed to the entity) (i) individually is less
than 10% of the book value of the assets of the Borrower and its consolidated
subsidiaries, and (ii) when taken together with all such Subsidiaries and
Subsidiary Investments subject to any such restrictions in which the Borrower or
a Subsidiary directly or indirectly owns less than 80% of the Voting Stock, is
less than 15% of the book value of the assets of the Borrower and its
consolidated Subsidiaries.
6.05. Mergers; Acquisitions. The Borrower shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, consolidate with or
merge into any Person or permit any Person to merge into it; provided, however,
that (a) any Subsidiary of the Borrower may be merged into the Borrower or any
wholly-owned Subsidiary of the Borrower, (b) the Borrower or any Subsidiary of
the Borrower may merge or consolidate with another Person or business, if the
Borrower or such Subsidiary, as the case may be, is the surviving corporation,
(c) the Borrower or any
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Subsidiary of the Borrower may consolidate with another Person in a transaction
where the Borrower or Subsidiary is not the surviving corporation if (i) the
continuing or surviving entity shall assume in writing all of the Obligations of
the Borrower under this Agreement and the Notes, (ii) the continuing or
surviving entity shall not, immediately after such merger or consolidation, be
in default of any of the Borrower's obligations under this Agreement or the
Notes, (iii) the continuing or surviving entity shall be a corporation organized
under the laws of the United States of America or any state thereof, (iv) after
giving effect to such consolidation or merger no Potential Default or Event of
Default would then exist and (v) such consolidation or merger shall not have a
Material Adverse Effect.
6.06. ERISA Obligations. Except for matters which are not likely to
have a Material Adverse Effect, neither the Borrower nor any Subsidiary shall at
any time
(a) engage in any "prohibited transaction" as such term is
defined in Section 4975 of the Code or described in Section 406 of
ERISA;
(b) fail timely to make any required installment to a Pension
Plan such that a lien could arise under Section 412(n) of the Code or
Section 302(f) of ERISA;
(c) permit the incurrence of any "accumulated funding
deficiency" as such term is defined in Section 302(a)(2) of ERISA and
Section 412(a) of the Code with respect to a Pension Plan, whether or
not waived or extended;
(d) permit the occurrence of any "reportable event" with
respect to a Pension Plan as such term is defined in Section 4043 of
ERISA;
(e) become obligated to contribute to any "multiemployer plan"
as such term is defined in Section 4001(a)(3) of ERISA;
(f) amend any Pension Plan such that security would have to be
provided to such Pension Plan under Section 401(a)(29) of the Code; or
(g) permit any Pension Plan to be terminated other than in a
"standard termination" as defined in Section 4041(b) of ERISA.
6.07. Leases. The Borrower shall not, and shall not permit any
Subsidiary to, at any time enter into or suffer to remain in effect any lease,
as lessee, of any property, or agree, become or remain liable (contingently or
otherwise) to any of the foregoing, except leases which on any date in the
aggregate will
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not result in the payment or accrual by the Borrower and its Subsidiaries of a
total of more than 15% of the book value (computed in accordance with GAAP) of
all properties and assets of the Borrower and its consolidated Subsidiaries in
the twelve month period after such date.
6.08. Disposition of Properties. The Borrower shall not, and shall not
permit any Subsidiary to, directly or indirectly, except in the ordinary course
of business, sell, convey, assign, lease, transfer, abandon or otherwise dispose
of, voluntarily or involuntarily, any of its properties, now owned or hereafter
acquired, or agree, become or remain liable (contingently or otherwise) to do
any of the foregoing, if, as a result of such sale, conveyance, assignment,
lease, transfer, abandonment or other disposition, the aggregate net book value
or fair market value, whichever shall be higher, of all property and assets
sold, conveyed, assigned, leased, transferred, abandoned or otherwise disposed
of by the Borrower and its Subsidiaries in the then current fiscal year of the
Borrower would exceed an amount equal to 10% of the book value (computed in
accordance with GAAP) of all properties and assets of the Borrower and its
consolidated Subsidiaries at the end of the preceding fiscal year.
6.09. Transactions with Affiliates. Neither the Borrower nor any
Subsidiary shall enter into any transaction (except transactions which do not in
any one calendar year involve in the aggregate an amount in excess of $500,000),
including without limitation the purchase, sale or exchange of property or the
rendering of any service, with any Affiliate (excluding any wholly-owned
Subsidiary) except in the ordinary course of and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary than would
obtain in a comparable arm's-length transaction with a Person not an Affiliate.
6.10. Loans, Advances and Investments. The Borrower shall not, and
shall not permit any Subsidiary to, at any time make or permit to exist any
loans or advances to, or purchase any stock, other securities or evidences of
indebtedness of, or make or permit to exist any investment or acquire any
interest whatsoever in, any other person, except (a) the purchase of the
Borrower's common or preferred stock, (b) loans or advances of the Borrower or
any Subsidiary of the Borrower (in addition to loans or advances permitted by
clauses (d) and (e) of this Section 6.10) not in excess of $10,000,000 aggregate
principal amount for the Borrower and its Subsidiaries at any time outstanding,
(c) investments of its cash by the Borrower or any Subsidiary of the Borrower in
(i) marketable direct obligations of, or marketable obligations guaranteed by,
the United States of America or Canada, or marketable obligations of any
instrumentality or agency thereof, the payment of the principal and interest of
which is unconditionally guaranteed by the United States of America or
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Canada, (ii) certificates of deposit or other obligations issued by, or bankers'
acceptances of, any bank or trust company organized under the laws of the
Federal Republic of Germany, France, the United Kingdom, Japan, Canada or the
United States of America or any state thereof (including foreign branches of any
such bank or trust company) and having capital, surplus and undivided profits in
excess of $100,000,000, (iii) open market commercial paper with a maturity not
in excess of 270 days from the date of acquisition thereof and having the
highest credit rating by either Standard & Poor's Corporation or Moody's
Investors Service, Inc., or (iv) in the case of any foreign Subsidiary of the
Borrower, such investments in marketable obligations of a comparable quality and
term to the other investments permitted by this clause (c) as are usually made
in the jurisdiction or jurisdictions in which the business of such foreign
Subsidiary is principally conducted by prudent corporate investors in like
circumstances, (d) loans or advances of the Borrower to any of its Subsidiaries
and loans or advances of any Subsidiary of the Borrower to the Borrower or
another such Subsidiary, (e) purchases of stock or other securities of any
corporations, associations or other business entities; provided, however, that
the aggregate cost to or fair market value of the consideration paid by the
Borrower and its Subsidiaries for such stock or securities of any such
corporation, association or other business entity shall not exceed 40% of the
Borrower's Consolidated Net Worth within any four year period commencing on the
Closing Date, or (f) such other investments in an aggregate amount not to exceed
$250,000 as the Borrower or a Subsidiary may elect.
ARTICLE VII
DEFAULTS
7.01. Events of Default. An Event of Default shall mean the occurrence
or existence of one or more of the following events or conditions (for any
reason, whether voluntary, involuntary or effected or required by Law):
(a) The Borrower shall fail to pay by the close of business at
the Agent's office on the date when due principal of any Loan.
(b) The Borrower shall fail to pay when due interest on any
Loan, any fees, indemnity or expenses, or any other amount due
hereunder or under any other Loan Document and such failure shall have
continued for a period of five Business Days.
(c) Any representation or warranty made or deemed made by the
Borrower or any Subsidiary of the Borrower in or pursuant to any Loan
Document or in any certificate delivered thereunder, shall prove to
have been false or misleading in any material respect as of the time
when made or deemed made
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(including by omission of material information necessary to make such
representation, warranty or statement not misleading).
(d) The Borrower shall default in the performance or
observance of any covenant contained in Article VI hereof.
(e) The Borrower shall default in the performance or
observance of any other covenant, agreement or duty under this
Agreement or any other Loan Document and such default shall have
continued for a period of 20 days after the date on which a Responsible
Officer first becomes aware thereof.
(f) The Borrower or any Subsidiary of the Borrower shall fail
to perform or observe any term, condition or covenant of any bond,
note, debenture, loan agreement, indenture, guaranty, trust agreement,
mortgage or similar instrument to which the Borrower or any such
Subsidiary is a party or by which it is bound, or by which any of its
properties or assets may be affected (a "Debt Instrument") having a
principal or face amount, individually or in the aggregate outstanding
at any time, in excess of $5,000,000, so that, as a result of any such
failure to perform, the Indebtedness included therein or secured or
covered thereby may at the time be declared due and payable prior to
the date on which such Indebtedness would otherwise become due and
payable;
(g) One or more final judgment or judgments which are not
subject to appeal for the payment of money aggregating in excess of
$5,000,000 is or are outstanding against the Borrower or any Subsidiary
and any one of such judgments (x) has not been stayed or paid on the
date it is finally due and payable or (y) has resulted in the
attachment of a Lien on any property of the Borrower or any Subsidiary.
(h) (i) Any Pension Plan is terminated pursuant to Section
4041 or 4042 of ERISA and the benefit liabilities exceed the assets
based upon the assumptions used by the PBGC on plan termination by
$10,000,000 or more; or (ii) the Borrower or any of its Subsidiaries
(or a member of their respective Controlled Group) incur a liability
under Section 4062, 4063 or 4064 of ERISA for an amount that would
materially and adversely affect the financial condition of the Borrower
and its Subsidiaries taken as a whole.
(i) A Change in Control shall have occurred.
(j) A proceeding shall have been instituted in respect of the
Borrower or any Significant Subsidiary
(i) seeking to have an order for relief entered in
respect of such Person, or seeking a declaration or
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entailing a finding that such Person is insolvent or a similar
declaration or finding, or seeking dissolution, winding-up, charter
revocation or forfeiture, liquidation, reorganization or other similar
relief with respect to such Person, its assets or its debts under any
Law relating to bankruptcy, insolvency, relief of debtors or protection
of creditors, termination of legal entities or any other similar Law
now or hereafter in effect, or
(ii) seeking appointment of a receiver, trustee, liquidator,
assignee, sequestrator or other custodian for such Person or for all or
any substantial part of its property
and such proceeding shall result in the entry, making or grant of any such order
for relief, declaration, finding, relief or appointment, or such proceeding
shall remain undismissed and unstayed for a period of 60 consecutive days.
(k) The Borrower or any Significant Subsidiary shall become insolvent;
shall fail to pay, become unable to pay, or state that it is or will be unable
to pay, its debts as they become due; shall voluntarily suspend transaction of
its or his business; shall make a general assignment for the benefit of
creditors; shall institute (or fail to controvert in a timely and appropriate
manner) a proceeding described in Section 7.01(j)(i) hereof, or (whether or not
any such proceeding has been instituted) shall consent to or acquiesce in any
such order for relief, declaration, finding or relief described therein; shall
institute (or fail to controvert in a timely and appropriate manner) a
proceeding described in Section 7.01(j)(ii) hereof, or (whether or not any such
proceeding has been instituted) shall consent to or acquiesce in any such
appointment or to the taking of possession by any such custodian of all or any
substantial part of its or his property; shall dissolve, wind-up, revoke or
forfeit its charter (or other constituent documents) or liquidate itself or any
substantial part of its property; or shall take any action in furtherance of any
of the foregoing.
7.02. Consequences of an Event of Default.
(a) If an Event of Default specified in subsections (a) through (i) of
Section 7.01 hereof shall occur and be continuing or shall exist, then, in
addition to all other rights and remedies which the Agent or any Lender may have
hereunder or under any other Loan Document, at law, in equity or otherwise, the
Lenders shall be under no further obligation to make Loans hereunder, and the
Agent may, and upon the written request of the Required Lenders shall, by notice
to the Borrower, from time to time do any or all of the following:
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(i) Declare the Commitments terminated, whereupon the
Commitments will terminate and any fees hereunder shall be immediately
due and payable without presentment, demand, protest or further notice
of any kind, all of which are hereby waived, and an action therefor
shall immediately accrue.
(ii) Declare the unpaid principal amount of the Loans,
interest accrued thereon and all other Obligations to be immediately
due and payable without presentment, demand, protest or further notice
of any kind, all of which are hereby waived, and an action therefor
shall immediately accrue.
(b) If an Event of Default specified in subsection (j) or (k) of
Section 7.01 hereof shall occur or exist, then, in addition to all other rights
and remedies which the Agent or any Lender may have hereunder or under any other
Loan Document, at law, in equity or otherwise, the Commitments shall
automatically terminate and the Lenders shall be under no further obligation to
make Loans, and the unpaid principal amount of the Loans, interest accrued
thereon and all other Obligations shall become immediately due and payable
without presentment, demand, protest or notice of any kind, all of which are
hereby waived, and an action therefor shall immediately accrue.
7.03. Application of Proceeds. After the occurrence of an Event of
Default and acceleration of the Loans, any payments received by any Lender on
account of Obligations shall be applied by the Agent to payment of the
Obligations in the following order:
First, to payment of that portion of the Obligations
constituting accrued and unpaid interest on Loans, accrued and unpaid
Revolving Credit Commitment Fees, ratably among the Lenders in
proportion to the respective amounts described in this clause "First"
due to them;
Second, to payment of that portion of the Obligations
constituting unpaid principal of the Loans, ratably among the Lenders
in proportion to the respective amounts described in this clause
"Second" due to them;
Third, to payment of all other Obligations, ratably among the
Lenders in proportion to the respective amounts described in this
clause "Third" due to them; and
Fourth, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts due to the Agent in
its capacity as such;
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Finally, the balance, if any, after all of the Obligations
have been satisfied and all Commitments shall have terminated, to the
Borrower or as otherwise required by law.
ARTICLE VIII
THE AGENT
8.01. Appointment. Each Lender hereby irrevocably appoints Mellon
Bank, N.A. to act as Agent for such Lender under this Agreement and the other
Loan Documents. Each Lender hereby irrevocably authorizes the Agent to take such
action on behalf of such Lender under the provisions of this Agreement and the
other Loan Documents, and to exercise such powers and to perform such duties, as
are expressly delegated to or required of the Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto. Mellon
Bank, N.A. hereby agrees to act as Agent on behalf of the Lenders on the terms
and conditions set forth in this Agreement and the other Loan Documents, subject
to its right to resign as provided in Section 8.10 hereof. Each Lender hereby
irrevocably authorizes the Agent to execute and deliver each of the Loan
Documents and to accept delivery of such of the other Loan Documents as may not
require execution by the Agent. Each Lender agrees that the rights and remedies
granted to the Agent under the Loan Documents shall be exercised exclusively by
the Agent, and that no Lender shall have any right individually to exercise any
such right or remedy, except to the extent expressly provided herein or therein.
8.02. General Nature of Agent's Duties. Notwithstanding anything to the
contrary elsewhere in this Agreement or in any other Loan Document:
(a) The Agent shall not have any duties or responsibilities
except those expressly set forth in this Agreement and the other Loan
Documents, and no implied duties or responsibilities on the part of the
Agent shall be read into this Agreement or any Loan Document or shall
otherwise exist.
(b) The duties and responsibilities of the Agent under this
Agreement and the other Loan Documents shall be mechanical and
administrative in nature, and the Agent shall not have a fiduciary
relationship in respect of any Lender.
(c) The Agent is and shall be solely the agent of the Lenders.
The Agent assumes no, and shall not at any time be deemed to have, any
relationship of agency or trust with or any other duty or
responsibility to, the Borrower, and Subsidiary of the Borrower or any
other Person (except only for (i) its relationship as agent for, and
its express duties
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and responsibilities to, the Lenders and (ii) its express duties and
responsibilities to, the Borrower, all as provided in this Agreement
and the other Loan Documents).
(d) The Agent shall not be under any obligation to take any
action hereunder or under any other Loan Document if the Agent believes
in good faith after consultation with counsel that taking such action
may conflict with any Law or any provision of this Agreement or any
other Loan Document, or may require the Agent to qualify to do business
in any jurisdiction where it is not then so qualified.
8.03. Exercise of Powers. The Agent shall take any action of the type
specified in this Agreement or any other Loan Document as being within the
Agent's rights, powers or discretion in accordance with directions from the
Required Lenders (or, to the extent this Agreement or such Loan Document
expressly requires the direction or consent of some other Person or set of
Persons, then instead in accordance with the directions of such other Person or
set of Persons). In the absence of such directions, the Agent shall have the
authority (but under no circumstances shall be obligated), in its sole
discretion, to take any such action, except to the extent this Agreement or such
Loan Document expressly requires the direction or consent of the Required
Lenders (or some other Person or set of Persons), in which case the Agent shall
not take such action absent such direction or consent. Any action or inaction
pursuant to such direction, discretion or consent shall be binding on all the
Lenders. The Agent shall not have any liability to any Person as a result of (x)
the Agent acting or refraining from acting in accordance with the directions of
the Required Lenders (or other applicable Person or set of Persons), (y) unless
expressly required to act under the terms hereof, the Agent refraining from
acting in the absence of instructions to act from the Required Lenders (or other
applicable Person or set of Persons), whether or not the Agent has discretionary
power to take such action, or (z) the Agent taking discretionary action it is
authorized to take under this Section absent gross negligence or willful
misconduct.
8.04. General Exculpatory Provisions. Notwithstanding anything to
the contrary elsewhere in this Agreement or any other Loan Document:
(a) The Agent shall not be liable for any action taken or
omitted to be taken by it under or in connection with this Agreement or
anY other Loan Document, unless caused by its own gross negligence or
willful misconduct.
(b) Except for the records to be maintained by the Agent
pursuant to Section 9.02, the Agent shall not be responsible for (i)
the execution, delivery, effectiveness, enforceability, genuineness,
validity or adequacy of this Agreement or any other Loan Document, (ii)
any recital,
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representation, warranty, document, certificate, report or statement
in, provided for in, or received under or in connection with, this
Agreement or any other Loan Document or (iii) any failure of the
Borrower or any Subsidiary of the Borrower or Lender to perform any of
their respective obligations under this Agreement or any other Loan
Document.
(c) Except as otherwise expressly provided herein, the Agent
shall not be under any obligation to ascertain, inquire or give any
notice relating to (i) the performance or observance of any of the
terms or conditions of this Agreement or any other Loan Document on the
part of the Borrower or any Subsidiary of the Borrower, (ii) the
business, operations, condition (financial or otherwise) or prospects
of the Borrower or any other Person, or (iii) except to the extent set
forth in Section 8.05(f) hereof, the existence of any Event of
Default or Potential Default.
(d) The Agent shall not be under any obligation, either
initially or on a continuing basis, to provide any Lender with any
notices, reports or information of any nature, whether in its
possession presently or hereafter, except for such notices, reports and
other information expressly required by this Agreement or any other
Loan Document to be furnished by the Agent to such Lender.
8.05. Administration by the Agent.
(a) The Agent may rely in good faith upon any notice or other
communication of any nature (written or oral, including but not limited to
telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any Loan Document)
purportedly made by or on behalf of the proper party or parties, and Agent shall
not have any duty to verify the identity or authority of any Person giving such
notice or other communication.
(b) The Agent may consult with legal counsel (including, without
limitation, in-house counsel for the Agent or in-house or other counsel for the
Borrower), independent public accountants and any other experts selected by it
from time to time, and the Agent 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.
(c) The Agent may conclusively rely upon the truth of the statements
and the correctness of the opinions expressed in any certificates or opinions
furnished to the Agent in accordance with the requirements of this Agreement or
any other Loan Document. Whenever the Agent shall deem it necessary or desirable
that a matter be proved or established with respect to the Borrower or any
Lender, such matter may be established by a
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certificate of the Borrower or Lender, as the case may be, and the Agent may
conclusively rely upon such certificate (unless other evidence with respect to
such matter is specifically prescribed in this Agreement or another Loan
Document).
(d) The Agent may fail or refuse to take any action unless it shall be
indemnified to its reasonable satisfaction from time to time against any and all
amounts, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature which
may be imposed on, incurred by or asserted against the Agent by reason of taking
or continuing to take any such action.
(e) The Agent may perform any of its duties under this Agreement or
any other Loan Document by or through agents or attorneys-in-fact. The Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
(f) The Agent shall not be deemed to have any knowledge or notice of
the occurrence of any Event of Default or Potential Default unless the Agent has
actual knowledge or has received notice from a Lender or the Borrower referring
to this Agreement, describing such Event of Default or Potential Default, and
stating that such notice is a "notice of default." If the Agent receives such a
notice, the Agent shall give prompt notice thereof to each Lender.
8.06. Lender Not Relying on Agent or Other Lenders. Each Lender
acknowledges as follows: (a) Neither the Agent nor any other Lender has made any
representations or warranties to it, and no act taken hereafter by the Agent or
any other Lender shall be deemed to constitute any representation or warranty by
the Agent or such other Lender to it. (b) It has, independently and without
reliance upon the Agent or any other Lender, and based upon such documents and
information as it has deemed appropriate, made its own credit and legal analysis
and decision to enter into this Agreement and the other Loan Documents. (c) It
will, independently and without reliance upon the Agent or any other Lender, and
based upon such documents and information as it shall deem appropriate at the
time, make its own decisions to take or not take action under or in connection
with this Agreement and the other Loan Documents.
8.07. Indemnification. Each Lender agrees to reimburse and indemnify
the Agent and its directors, officers, employees and agents (to the extent not
reimbursed by the Borrower and without limitation of the obligations of the
Borrower to do so), Pro Rata, from and against any and all amounts, losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature (including,
without limitation, the reasonable fees and disbursements of counsel for the
Agent or such other Person in connection with any
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investigative, administrative or judicial proceeding commenced or threatened,
whether or not the Agent or such other Person shall be designated a party
thereto) that may at any time be imposed on, incurred by or asserted against the
Agent or such other Person as a result of, or arising out of, or in any way
related to or by reason of, this Agreement, any other Loan Document, any
transaction from time to time contemplated hereby or thereby, or any transaction
financed in whole or in part or directly or indirectly with the proceeds of any
Loan, provided that no Lender shall be liable for any portion of such amounts,
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements resulting from the gross negligence or
willful misconduct of the Agent or such other Person, as finally determined by a
court of competent jurisdiction.
8.08. Agent in its Individual Capacity. With respect to its
Commitments and the Obligations owing to it, the Agent shall have the same
rights and powers under this Agreement and each other Loan Document as any other
Lender and may exercise the same as though it were not the Agent, and the terms
"Lenders," "holders of Notes" and like terms shall include the Agent in its
individual capacity as such. The Agent and its affiliates may, without liability
to account, make loans to, accept deposits from, acquire debt or equity
interests in, act as trustee under indentures of, and engage in any other
business with, the Borrower and any stockholder, Subsidiary or Affiliate of the
Borrower, as though the Agent were not the Agent hereunder.
8.09. Holders of Notes. The Agent may deem and treat the Lender which
is payee of a Note as the owner and holder of such Note for all purposes hereof
unless and until a Transfer Supplement with respect to the assignment or
transfer thereof shall have been filed with the Agent in accordance with Section
9.14 hereof. Any authority, direction or consent of any Person who at the time
of giving such authority, direction or consent is shown in the Register as being
a Lender shall be conclusive and binding on each present and subsequent holder,
transferee or assignee of any Note or Notes payable to such Lender or of any
Note or Notes issued in exchange therefor.
8.10. Successor Agents. The Agent may resign at any time by giving 30
days' written notice thereof to the Lenders and the Borrower. The Agent may be
removed by the Required Lenders upon 30 days' written notice thereof to the
Agent, the Lenders and the Borrower. Upon receipt of notice of any such
resignation or removal, the Borrower shall have the right to appoint a successor
Agent; provided, that the Required Lenders shall have the right to disapprove
such successor Agent. If no successor Agent shall have been so appointed and
consented to, and shall have accepted such appointment, within 20 days after
such notice of resignation or removal, then the Required Lenders shall appoint a
successor Agent to succeed to the obligations of the Agent hereunder. Each
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successor Agent shall be a commercial bank or trust company organized under the
laws of the United States of America or any State thereof. Upon the acceptance
by a successor Agent of its appointment as Agent hereunder, such successor Agent
shall thereupon succeed to and become vested with all the properties, rights,
powers, privileges and duties of the former Agent, without further act, deed or
conveyance. Upon the effective date of resignation or removal of a retiring
Agent, such Agent shall be discharged from its duties under this Agreement and
the other Loan Documents, but the provisions of this Agreement shall inure to
its benefit as to any actions taken or omitted by it while it was Agent under
this Agreement. If and so long as no successor Agent shall have been appointed,
then any notice or other communication required or permitted to be given by the
Agent shall be sufficiently given if given by the Required Lenders, all notices
or other communications required or permitted to be given to the Agent shall be
given to each Lender, and all payments to be made to the Agent shall be made
directly to the Borrower or Lender for whose account such payment is made.
8.11. Calculations. The Agent shall not be liable for any calculation,
apportionment or distribution of payments made by it in good faith except for
gross negligence. If such calculation, apportionment or distribution is
subsequently determined to have been made in error, the sole recourse of any
Lender to whom payment was due but not made shall be to recover from the other
Lenders any payment in excess of the amount to which they are determined to be
entitled or, if the amount due was not paid by the Borrower, to recover such
amount from the Borrower.
8.12. Funding by Agent. Unless the Agent shall have been notified in
writing by any Lender not later than the close of business on the day before the
day on which Loans are requested by the Borrower to be made that such Lender
will not make its ratable share of such Loans, the Agent may assume that such
Lender will make its ratable share of the Loans, and in reliance upon such
assumption the Agent may (but in no circumstances shall be required to) make
available to the Borrower a corresponding amount. If and to the extent that any
Lender fails to make such payment to the Agent on such date, such Lender shall
pay such amount on demand (or, if such Lender fails to pay such amount on
demand, the Borrower shall pay such amount on demand), together with interest,
for the Agent's own account, for each day from and including the date of the
Agent's payment to and including the date of repayment to the Agent (before and
after judgment) at the Federal Funds Effective Rate for the first day and
thereafter at the rate or rates per annum applicable to such Loans. All payments
to the Agent under this Section shall be made to the Agent at its Office in
Dollars in funds immediately available at such Office, without set-off,
withholding, counterclaim or other deduction of any nature.
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ARTICLE IX
MISCELLANEOUS
9.01. Holidays. Whenever any payment or action to be made or taken
hereunder or under any other Loan Document shall be stated to be due on a day
which is not a Business Day, such payment or action shall be made or taken on
the next following Business Day and such extension of time shall be included in
computing interest or fees, if any, in connection with such payment or action.
9.02. Records. The unpaid principal amount of the Loans owing to each
Lender, the unpaid interest accrued thereon, the interest rate or rates
applicable to such unpaid principal amount, the duration of such applicability,
each Lender's Committed Amount and the accrued and unpaid Commitment Fees shall
at all times be ascertained from the records of the Agent, which shall be
conclusive absent manifest error.
9.03. Amendments and Waivers. Neither this Agreement nor any Loan
Document may be amended, modified or supplemented except in accordance with the
provisions of this Section. The Required Lenders and the Borrower may from time
to time amend, modify or supplement the provisions of this Agreement or any
other Loan Document for the purpose of amending, adding to, or waiving any
provisions or changing in any manner the rights and duties of the Borrower, the
Agent or any Lender. Any such amendment, modification or supplement made by the
Borrower, the Agent and the Required Lenders in accordance with the provisions
of this Section shall be in writing and shall be binding upon the Borrower, each
Lender and the Agent; provided, that no such amendment, modification or
supplement may be made which will:
(a) Increase the Committed Amount of any Lender over the
amount thereof then in effect, subject any Lender to additional
obligations hereunder or extend the Revolving Credit Maturity Date
without the written consent of each Lender affected thereby;
(b) Reduce the principal amount of or extend the time for any
payment of any Loan, or reduce the amount of or rate of interest or
extend the time for payment of interest borne by any Loan or extend the
time for payment of or reduce the amount of any Commitment Fee or
reduce or postpone the date for payment of any other fees, expenses,
indemnities or amounts payable under any Loan Document, without the
written consent of each Lender affected thereby;
(c) Change the definition of "Required Lenders" or amend this
Section 9.03, without the written consent of all the Lenders;
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(d) Amend or waive any of the provisions of Article IX hereof,
or impose additional duties upon the Agent or otherwise adversely
affect the rights, interests or obligations of the Agent, without the
written consent of the Agent; or
(e) Amend Section 2.13 hereof, without the written consent of
all Lenders.
provided further, that Transfer Supplements may be entered into in the manner
provided in Section 9.14 hereof. Any such amendment, modification or supplement
must be in writing and shall be effective only to the extent set forth in such
writing. Any Event of Default or Potential Default waived or consented to in any
such amendment, modification or supplement shall be deemed to be cured and not
continuing to the extent and for the period set forth in such waiver or consent,
but no such waiver or consent shall extend to any other or subsequent Event of
Default or Potential Default or impair any right consequent thereto.
9.04. No Implied Waiver; Cumulative Remedies. No course of dealing and
no delay or failure of the Agent or any Lender in exercising any right, power or
privilege under this Agreement or any other Loan Document shall affect any other
or future exercise thereof or exercise of any other right, power or privilege;
nor shall any single or partial exercise of any such right, power or privilege
or any abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power or
privilege. The rights and remedies of the Agent and the Lenders under this
Agreement and any other Loan Document are cumulative and not exclusive of any
rights or remedies which the Agent or any Lender would otherwise have hereunder
or thereunder, at law, in equity or otherwise.
9.05. Notices.
(a) Except to the extent otherwise expressly permitted hereunder or
thereunder, all notices, requests, demands, directions and other communications
(collectively "notices") under this Agreement or any Loan Document shall be in
writing (including telexes and communication using facsimile machines) and shall
be sent by first-class mail, or by nationally-recognized overnight courier, or
by telex or facsimile (with confirmation in writing mailed first-class or sent
by such an overnight courier), or by personal delivery. All notices shall be
sent to the applicable party at the address stated on the signature pages hereof
or in accordance with the last unrevoked written direction from such party to
the other parties hereto, in all cases with postage or other charges prepaid.
Any such properly given notice shall be effective on the earliest to occur of
receipt, telephone
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confirmation of receipt of telex or facsimile communication, one Business Day
after delivery to a nationally-recognized overnight courier, or five Business
Days after deposit in the mail.
(b) Any Lender giving any notice to the Borrower shall simultaneously
send a copy thereof to the Agent, and the Agent shall promptly notify the other
Lenders of the receipt by it of any such notice.
(c) The Agent and each Lender may rely on any notice (whether or not
such notice is made in a manner permitted or required by this Agreement or any
Loan Document) purportedly made by or on behalf of the Borrower, and neither the
Agent nor any Lender shall have any duty to verify the identity or authority of
any Person giving such notice.
9.06. Expenses; Taxes; Indemnity.
(a) The Borrower agrees to pay or cause to be paid and to save the
Agent and each of the Lenders harmless against liability for the payment of all
reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of counsel to the Agent, local counsel, auditors,
consulting engineers, appraisers, and all other professional, accounting,
evaluation and consulting costs) incurred by the Agent or, in the case of clause
(iii) below any Lender, from time to time arising from or relating to (i) the
negotiation, preparation, execution, delivery, administration and performance of
this Agreement and the other Loan Documents, (ii) any requested amendments,
modifications, supplements, waivers or consents (whether or not ultimately
entered into or granted) to this Agreement or any Loan Document, and (iii) the
enforcement or preservation of rights under this Agreement or any Loan Document
(including but not limited to any such costs or expenses arising from or
relating to (A) collection or enforcement of an outstanding Obligation or any
other amount owing hereunder or thereunder by the Agent or any Lender, and (B)
any litigation, proceeding, dispute, work-out, restructuring or rescheduling
related in any way to this Agreement or the Loan Documents).
(b) The Borrower hereby agrees to pay all stamp, document, transfer,
recording, filing, registration, search, sales and excise fees and taxes and all
similar impositions now or hereafter determined by the Agent or any Lender to be
payable in connection with this Agreement or any other Loan Documents or any
other documents, instruments or transactions pursuant to or in connection
herewith or therewith, and the Borrower agrees to save the Agent and each Lender
harmless from and against any and all present or future claims, liabilities or
losses with respect to or resulting from any omission to pay or delay in paying
any such fees, taxes or impositions.
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(c) The Borrower hereby agrees to reimburse and indemnify each of the
Indemnified Parties from and against any and all losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such Indemnified Party in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnified Party shall be
designated a party thereto) that may at any time be imposed on, asserted against
or incurred by such Indemnified Party as a result of, or arising out of, or in
any way related to or by reason of, any transaction financed in whole or in part
or directly or indirectly with the proceeds of any Loan (and without in any way
limiting the generality of the foregoing, including any violation or breach of
any Requirement of Law or any other Law by the Borrower or any Subsidiary); or
any exercise by the Agent or any Lender of any of its rights or remedies under
this Agreement or any other Loan Document; but excluding any such losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements resulting solely from the gross
negligence or willful misconduct of such Indemnified Party. If and to the extent
that the foregoing obligations of the Borrower under this subsection (c), or any
other indemnification obligation of the Borrower hereunder or under any other
Loan Document, are unenforceable for any reason, the Borrower hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable Law.
9.07. Severability. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
9.08. Prior Understandings. This Agreement and the other Loan Documents
supersede all prior and contemporaneous understandings and agreements, whether
written or oral, among the parties hereto relating to the transactions provided
for herein and therein.
9.09. Duration; Survival. All representations and warranties of the
Borrower contained herein or in any other Loan Document or made in connection
herewith shall survive the making of, and shall not be waived by the execution
and delivery, of this Agreement or any other Loan Document, any investigation by
or knowledge of the Agent or any Lender, the making of any Loan, or any other
event or condition whatever. All covenants and agreements of the Borrower
contained herein or in any other Loan Document shall continue in full force and
effect from and after
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the date hereof so long as any Borrower may borrow hereunder and until payment
in full of all Obligations. Without limitation, all obligations of the Borrower
hereunder or under any other Loan Document to make payments to or indemnify the
Agent or any Lender shall survive the payment in full of all other Obligations,
termination of the Borrower's right to borrow hereunder, and all other events
and conditions whatever. In addition, all obligations of each Lender to make
payments to or indemnify the Agent or the other Lenders shall survive the
payment in full by the Borrower of all Obligations, termination of the
Borrower's right to borrow hereunder, and all other events or conditions
whatever.
9.10. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
9.11. Limitation on Payments. The parties hereto intend to conform to
all applicable Laws in effect from time to time limiting the maximum rate of
interest that may be charged or collected. Accordingly, notwithstanding any
other provision hereof or of any other Loan Document, the Borrower shall not be
required to make any payment to or for the account of any Lender, and each
Lender shall refund any payment made by the Borrower, to the extent that such
requirement or such failure to refund would violate or conflict with nonwaivable
provisions of applicable Laws limiting the maximum amount of interest which may
be charged or collected by such Lender.
9.12. Set-Off. The Borrower hereby agrees that, to the fullest extent
permitted by law, if any Obligation of the Borrower shall be due and payable (by
acceleration or otherwise), each Lender shall have the right, without notice to
the Borrower, to set-off against and to appropriate and apply to the Obligation
any indebtedness, liability or obligation of any nature owing to the Borrower by
such Lender, including but not limited to all deposits (whether time or demand,
general or special, provisionally credited or finally credited, whether or not
evidenced by a certificate of deposit) now or hereafter maintained by the
Borrower with such Lender. Such right shall be absolute and unconditional in all
circumstances and, without limitation, shall exist whether or not such Lender or
any other Person shall have given notice or made any demand to the Borrower or
any other Person, whether such indebtedness, obligation or liability owed to the
Borrower is contingent, absolute, matured or unmatured (it being agreed that
such Lender may deem such indebtedness, obligation or liability to be then due
and payable at the time of such setoff), and regardless of the existence or
adequacy of any collateral, guaranty or any other security, right or remedy
available to any Lender or any other Person. The Borrower hereby agrees that, to
the fullest extent permitted by law, any Participant and any branch, subsidiary
or affiliate of any Lender
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or any Participant shall have the same rights of set-off as a Lender as provided
in this Section (regardless of whether such Participant, branch, subsidiary or
affiliate would otherwise be deemed in privity with or a direct creditor of such
Borrower). The rights provided by this Section are in addition to all other
rights of set-off and banker's lien and all other rights and remedies which any
Lender (or any such Participant, branch, subsidiary or affiliate) may otherwise
have under this Agreement, any other Loan Document, at law or in equity, or
otherwise, and nothing in this Agreement or any Loan Document shall be deemed a
waiver or prohibition of or restriction on the rights of set-off or bankers'
lien of any such Person.
9.13. Sharinq of Collections. The Lenders hereby agree among themselves
that if any Lender shall receive (by voluntary payment, realization upon
security, set-off or from any other source) any amount on account of the Loans,
interest thereon, or any other Obligation contemplated by this Agreement or the
other Loan Documents to be made by the Borrower pro rata to all Lenders in
greater proportion than any such amount received by any other Lender, then the
Lender receiving such proportionately greater payment shall notify each other
Lender and the Agent of such receipt, and equitable adjustment will be made in
the manner stated in this Section so that, in effect, all such excess amounts
will be shared ratably among all of the Lenders. The Lender receiving such
excess amount shall purchase (which it shall be deemed to have done
simultaneously upon the receipt of such excess amount) for cash from the other
Lenders a participation in the applicable Obligations owed to such other Lenders
in such amount as shall result in a ratable sharing by all Lenders of such
excess amount (and to such extent the receiving Lender shall be a Participant).
If all or any portion of such excess amount is thereafter recovered from the
Lender making such purchase, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, together with interest or other
amounts, if any, required by Law to be paid by the Lender making such purchase.
The Borrower hereby consents to and confirms the foregoing arrangements. Each
Participant shall be bound by this Section as fully as if it were a Lender
hereunder.
9.14. Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lenders, all future holders of the
Notes, the Agent and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights hereunder or interests
herein without the prior written consent of all the Lenders and the Agent, and
any purported assignment without such consent shall be void.
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(b) Participations. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable Law, at any time
sell participations to one or more commercial banks or other Persons (each a
"Participant") in all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, all or a
portion of its Commitments and the Loans owing to it and any Note held by it);
provided, that
(i) any such Lender's obligations under this Agreement and the
other Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents,
(iv) such Participant shall be bound by the provisions of
Section 9.13 hereof, and the Lender selling such participation shall
obtain from such Participant a written confirmation of its agreement to
be so bound,
(v) no Participant (unless such Participant is an affiliate of
such Lender, or is itself a Lender) shall be entitled to require such
Lender to take or refrain from taking action under this Agreement or
under any other Loan Document, except that such Lender may agree with
such Participant that such Lender will not, without such Participant's
consent, take action of the type described in subsections (a), (b),
(c), (d) or (e) of Section 9.03 hereof; notwithstanding the foregoing,
in no event shall any participation by an Lender have the effect of
releasing such Lenders from its obligations hereunder, and
(vi) no Participant shall be an Affiliate of the Borrower.
The Borrower agrees that any such Participant shall be entitled to the benefits
of Sections 2.12, 2.14 and 9.06 with respect to its participation in the
Commitments and the Loans outstanding from time to time but only to the extent
such Participant sustains such losses; provided, that no such Participant shall
be entitled to receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred to such Participant had no such transfer
occurred.
(c) Assignments. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable Law, at any time
assign all or a portion of its rights
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and obligations under this Agreement and the other Loan Documents (including,
without limitation, all or any portion of its Commitments and Obligations owing
to it and any Note held by it) to any Lender, any affiliate of a Lender or to
one or more additional commercial banks or other Persons (each a "Purchasing
Lender"); provided, that
(i) any such assignment to a Purchasing Lender which is not a
Lender shall be made only with the consent of the Borrower and the
Agent which shall not be unreasonably withheld,
(ii) if a Lender makes such an assignment of less than all of
its then remaining rights and obligations under this Agreement and the
other Loan Documents, such transferor Lender shall retain, after such
assignment, a minimum principal amount of $5,000,000 of the Commitments
and Revolving Credit Loans then outstanding, and such assignment shall
be in a minimum aggregate principal amount of $5,000,000 of the
Commitments and Revolving Credit Loans then outstanding,
(iii) each such assignment shall be of a constant, and not a
varying, percentage of each Commitment of the transferor Lender and of
all of the transferor Lender's rights and obligations under this
Agreement and the other Loan Documents, and
(iv) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of Exhibit C to this Agreement,
duly completed (a "Transfer Supplement").
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Agent a duly completed Transfer
Supplement (including the consents required by clause (i) of the preceding
sentence) with respect to such assignment, together with any Note or Notes
subject to such assignment (the "Transferor Lender Notes") and a processing and
recording fee of $2,500; and, upon receipt thereof, the Agent shall accept such
Transfer Supplement. Upon receipt of the Purchase Price Receipt Notice pursuant
to such Transfer Supplement, the Agent shall record such acceptance in the
Register. Upon such execution, delivery, acceptance and recording, from and
after the Transfer Effective Date specified in such Transfer Supplement
(x) the Purchasing Lender shall be a party hereto and, to the
extent provided in such Transfer Supplement, shall have the rights and
obligations of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released from
its obligations under this Agreement to the extent so transferred (and,
in the case of an Transfer Supplement
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covering all or the remaining portion of a transferor Lender's rights
and obligations under this Agreement, such transferor Lender shall
cease to be a party to this Agreement) from and after the Transfer
Effective Date.
On or prior to the Transfer Effective Date specified in an Transfer Supplement,
the Borrower, at its expense, shall execute and deliver to the Agent (for
delivery to the Purchasing Lender) new Notes evidencing such Purchasing Lender's
assigned Commitments or Loans and (for delivery to the transferor Lender)
replacement Notes in the principal amount of the Loans or Commitments retained
by the transferor Lender (such Notes to be in exchange for, but not in payment
of, those Notes then held by such transferor Lender). Each such Note shall be
dated the date and be substantially in the form of the predecessor Note. The
Agent shall mark the predecessor Notes "exchanged" and deliver them to the
Borrower. Accrued interest and accrued fees shall be paid to the Purchasing
Lender at the same time or times provided in the predecessor Notes and this
Agreement.
(d) Register. The Agent shall maintain at its office a copy of each
Transfer Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Obligations owing to, each Lender from time to time. The
entries in the Register shall be conclusive 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 the 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) Financial and Other Information. The Borrower authorizes the Agent
and each Lender to disclose to any Participant or Purchasing Lender (each, a
"transferee") and any prospective transferee any and all financial and other
information in such Person's possession concerning the Borrower and its
Subsidiaries and Affiliates which has been or may be delivered to such Person by
or on behalf of the Borrower in connection with this Agreement or any other Loan
Document or such Person's credit evaluation of the Borrower and its Subsidiaries
and Affiliates.
9.15. Governing Law; Submission to Jurisdiction.
(a) Governing Law. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS (EXCEPT
TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN DOCUMENTS)
SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES.
(b) Certain Waivers. THE BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
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(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON ARISING
FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY STATEMENT,
COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION HEREWITH OR
THEREWITH (COLLECTIVELY, "RELATED LITIGATION") MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN THE CITY AND COUNTY OF NEW
YORK, NEW YORK, AND SUBMITS TO THE JURISDICTION OF SUCH COURTS;
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING
OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM
THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND
WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY RELATED LITIGATION BROUGHT IN
ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER THE BORROWER;
AND
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED U.S. MAIL,
POSTAGE PREPAID, TO THE BORROWER AT THE ADDRESS FOR NOTICES DESCRIBED IN SECTION
9.05 HEREOF, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY
RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE
VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY
LAW).
9.16. Replacement of Lender. If (a) a change in control shall have
occurred with respect to any Lender or (b) any Lender shall impose increased
costs on the Borrower pursuant to Section 2.12(a) or 2.12(c) hereof, the
Borrower may, upon not less than 30 Business Days' notice to the Agent, cause a
Replacement Lender reasonably satisfactory to the Agent (which may be one of the
other Lenders) to purchase all of such Lender's interests in accordance with the
provisions of Section 9.14(c) hereof.
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IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Agreement as of the date first
above written.
ATTEST: BARNES GROUP INC.
By /s/ John E. Besser By /s/ George S. Crowley
-------------------------------- --------------------------------
Title: Secretary Title: Executive Vice President-
Finance
[Corporate Seal]
Address for Notices:
123 Main Street
Bristol, CT 06010
Telephone: 203-583-7070
Telex:
(Answerback: )
Telecopier: 203-589-3507
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MELLON BANK, N.A., individually and
as Agent
By /s/ Joseph F. Bond, Jr.
--------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $35,000,000
Commitment Percentage: 35.000%
Address for Notices:
Corporate Banking Department
Mellon Financial Center
551 Madison Avenue
New York, NY 10022-3217
Attn: Joseph F. Bond, Jr.
Vice President
Telephone: 212-702-4017
Telex:
(Answerback: )
Telecopier: 212-702-5269
CHEMICAL BANK
By /s/ Stewart U. Wallace
--------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $25,000,000
Commitment Percentage: 25.000%
Address for Notices:
277 Park Avenue
6th Floor
New York, NY 10172
Telephone: (212) 310-7800
Telex:
(Answerback: )
Telecopier: (212) 310-4526
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THE CONNECTICUT NATIONAL BANK
By /s/ Thomas A. Brugger
------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $10,000,000
Commitment Percentage: 10.000%
Address for Notices:
777 Main Street
Hartford, CT 06115
Attn: Corporate Banking Dept.
Telephone: (203) 728-2751
Telex: 99339
(Answerback: )
Telecopier: (203) 722-9378
NBD BANK, N.A.
By /s/ Carolyn Parks
------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $10,000,000
Commitment Percentage: 10.000%
Address for Notices:
611 Woodward Ave.
Detroit, MI 48226
Telephone: (313) 225-4315
Telex:
(Answerback: )
Telecopier: (313) 225-2649
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AMERITRUST COMPANY NATIONAL
ASSOCIATION
By /s/ Michael Jackson
-------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $10,000,000
Commitment Percentage: 10.000%
Address for Notices:
900 Euclid Avenue
Cleveland, OH 44115
Telephone:
Telex:
(Answerback: )
Telecopier:
FLEET BANK, NATIONAL ASSOCIATION
By /s/ Marlene K. Haddad
-------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $10,000,000
Commitment Percentage: 10.000%
Address for Notices:
One Constitution Plaza
CTHMM03G
Hartford, CT 06115-1600
Telephone: (203) 244-5825
Telex:
(Answerback: )
Telecopier: (203) 244-5391
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Exhibit A
to
Credit Agreement
BARNES GROUP INC.
Revolving Credit Note
$_________ New York, New York
_____________, 199_
FOR VALUE RECEIVED, the undersigned, BARNES GROUP INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of [NAME OF LENDER]
(the "Lender") on or before the Revolving Credit Maturity Date, and at such
earlier dates as may be required by the Agreement (as defined below), the lesser
of (i) the principal sum of ($ ) or (ii) the aggregate
unpaid principal amount of all Revolving Credit Loans made by the Lender to the
Borrower from time to time pursuant to the Agreement. The Borrower further
promises to pay to the order of the Lender interest on the unpaid principal
amount hereof from time to time outstanding at the rate or rates per annum
determined pursuant to the Agreement, payable on the dates set forth in the
Agreement.
This Note is one of the "Revolving Credit Notes" as referred to in, and
is entitled to the benefits of, the Revolving Credit Agreement, dated as of
December 1, 1991, by and among the Borrower, the Lenders parties thereto from
time to time, and Mellon Bank, N.A., as Agent (as the same may be amended,
modified or supplemented from time to time, the "Agreement"), which among other
things provides for the acceleration of the maturity hereof upon the occurrence
of certain events and for prepayments in certain circumstances and upon certain
terms and conditions. Terms defined in the Agreement have the same meanings
herein.
Except as otherwise set forth in the Agreement, the Borrower hereby
expressly waives presentment, demand, notice, protest and all other demands and
notices in connection with the delivery, acceptance, performance, default or
enforcement of this Note and the Agreement, and an action for amounts due
hereunder or thereunder shall immediately accrue.
This Note shall be governed by, construed and enforced in accordance
with the laws of the State of New York, without regard to principles of choice
of law.
BARNES GROUP INC.
By__________________________________
Title:
Exhibit B
to
Credit Agreement
TRANSFER SUPPLEMENT
THIS TRANSFER SUPPLEMENT, dated as of the date specified in Item 1 of
Schedule I hereto, among the Transferor Lender specified in Item 2 of Schedule I
hereto (the "Transferor Lender"), each Purchasing Lender specified in Item 3 of
Schedule I hereto (each a "Purchasing Lender") and Mellon Bank, N.A., as Agent
for the Lenders under the Revolving Credit Agreement described below.
Recitals:
A. This Transfer Supplement is being executed and delivered in
accordance with Section 9.14(c) of the Revolving Credit Agreement, dated as of
December 1, 1991 by and among Barnes Group Inc., a Delaware corporation (the
"Borrower"), the Lenders parties thereto, and Mellon Bank, N.A., a national
banking association, as Agent (as the same may be amended, modified or
supplemented from time to time, the "Credit Agreement"). Capitalized terms used
herein without definition have the meaning specified in the Credit Agreement.
B. Each Purchasing Lender (if it is not already a Lender) wishes to
become a Lender party to the Credit Agreement.
C. The Transferor Lender is selling and assigning to each Purchasing
Lender, and each Purchasing Lender is purchasing and assuming, a certain portion
of the Transferor Lender's rights and obligations under the Credit Agreement,
including, without limitation, the Transferor Lender's Commitments and Loans
owing to it and any Notes held by it (the "Transferor Lender's Interests").
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Transfer Effective Notice. Upon receipt by the Agent of five
counterparts of this Transfer Supplement (to each of which is attached a fully
completed Schedule I and Schedule II), and each of which has been executed by
the Transferor Lender, by each Purchasing Lender and by any other Person
required by Section 9.14(c) of the Credit Agreement to execute this Transfer
Supplement, the Agent will transmit to the Borrower, the Transferor Lender and
each Purchasing Lender a transfer effective notice, substantially in the form of
Schedule III to this Transfer Supplement (a "Transfer Effective Notice"). The
date specified in such Transfer Effective Notice as the date on which the
transfer effected by this Transfer Supplement shall become effective (the
"Transfer Effective Date") shall be the fifth Business Day following the date of
such Transfer Effective Notice or such other date as shall be agreed upon among
the Transfer Lender, the Purchasing Lender, the Agent and the Borrower. From and
after the Transfer Effective Date each Purchasing Lender (if not already a
Lender party to the Credit Agreement) shall be a Lender party to the Credit
Agreement for all purposes thereof having the respective interests in the
Transferor Lender's interests reflected in this Transfer Supplement.
2. Purchase Price; Sale. At or before 12:00 Noon, local time at the
Transferor Lender's office specified in Schedule III, on the Transfer Effective
Date, each Purchasing Lender shall pay to the Transferor Lender, in immediately
available funds, an amount equal to the purchase price, as agreed between the
Transferor Lender and such Purchasing Lender (the "Purchase Price"), of the
portion being purchased by such Purchasing Lender (such Purchasing Lender's
"Purchased Percentage") of the Transferor Lender's Interests. Effective upon
receipt by the Transferor Lender of the Purchase Price from a Purchasing Lender,
the Transferor Lender hereby irrevocably sells, assigns and transfers to such
Purchasing Lender, without recourse, representation or warranty (express or
implied) except as set forth in Section 6 hereof, and each Purchasing Lender
hereby irrevocably purchases, takes and assumes from the Transferor Lender such
Purchasing Lender's Purchased Percentage of the Transferor Lender's Interests.
The Transferor Lender shall promptly notify the Agent of the receipt of the
Purchase Price from a Purchasing Lender ("Purchase Price Receipt Notice"). Upon
receipt by the Agent of such Purchase Price Receipt Notice, the Agent shall
record in the Register the information with respect to such sale and purchase as
contemplated by Section 9.14(d) of the Credit Agreement.
3. Principal, Interest and Fees. All principal payments, interest, fees
and other amounts that would otherwise be payable from and after the Transfer
Effective Date to or for the account of the Transferor Lender in respect of the
Transferor Lender's Interests shall, instead, be payable to or for the account
of the Transferor Lender and the Purchasing Lenders, as the case may be, in
accordance with their respective interests as reflected in this Transfer
Supplement.
4. Closing Documents. Concurrently with the execution and delivery
hereof, the Transferor Lender will request that the Borrower provide to each
Purchasing Lender (if it is not already a Lender party to the Credit Agreement)
conformed copies of all documents delivered to such Transferor Lender on the
Closing Date in satisfaction of conditions precedent set forth in the Credit
Agreement.
5. Further Assurances. Each of the parties to this Transfer Supplement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Transfer Supplement.
-2-
6. Certain Representations and Agreements. By executing and delivering
this Transfer Supplement, the Transferor Lender and each Purchasing Lender
confirm to and agree with each other and the Agent and the Lenders as follows:
(a) Other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, the Transferor Lender makes no
representation or warranty and assumes no responsibility with respect
to (i) the execution, delivery, effectiveness, enforceability,
genuineness, validity or adequacy of the Credit Agreement or any other
Loan Document, (ii) any recital, representation, warranty, document,
certificate, report or statement in, provided for in, received under or
in connection with, the Credit Agreement or any other Loan Document, or
(iv) the existence, validity, enforceability, perfection, recordation,
priority, adequacy or value, now or hereafter, of any Lien or other
direct or indirect security afforded or purported to be afforded by any
of the Loan Documents or otherwise from time to time.
(b) The Transferor Lender makes no representation or warranty
and assumes no responsibility with respect to (i) the performance or
observance of any of the terms or conditions of the Credit Agreement or
any other Loan Document on the part of the Borrower or any other
Borrower, (ii) the business, operations, condition (financial or
otherwise) or prospects of the Borrower or any other Borrower or any
other Person, or (iii) the existence of any Event of Default or
Potential Default.
(c) Each Purchasing Lender confirms that it has received a
copy of the Credit Agreement and each of the other Loan Documents,
together with copies of the financial statements referred to in Section
3.06 thereof, the most recent financial statements delivered pursuant
to Section 5.01 thereof, if any, and such other documents and
information as it has deemed appropriate to make its own credit and
legal analysis and decision to enter into this Transfer Supplement.
Each Purchasing Lender confirms that it has made such analysis and
decision independently and without reliance upon the Agent, the
Transferor Lender or any other Lender.
(d) Each Purchasing Lender, independently and without reliance
upon the Agent, the Transferor Lender or any other Lender, and based on
such documents and information as it shall deem appropriate at the
time, will make its own decisions to take or not take action under or
in connection with the Credit Agreement or any other Loan Document.
-3-
(e) Each Purchasing Lender irrevocably appoints the Agent to
act as Agent for such Purchasing Lender under the Agreement and the
other Loan Documents, all in accordance with Article IX of the Credit
Agreement and the other provisions of the Credit Agreement and the
other Loan Documents.
(f) Each Purchasing Lender agrees that it will perform in
accordance with their terms all of the obligations which by the terms
of the Credit Agreement and the other Loan Documents are required to be
performed by it as a Lender.
7. Schedule II. Schedule II hereto sets forth the revised Commitments
of the Transferor Lender and each Purchasing Lender as well as administrative
information with respect to each Purchasing Lender.
8. Governing Law. This Transfer Supplement shall be governed by,
construed and enforced in accordance with the laws of the State of New York,
without regard to principles of choice of law.
9. Counterparts. This Transfer Supplement may be executed on any number
of counterparts and by the different parties hereto on separate counterparts
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Transfer
Supplement to be executed by their respective duly authorized officers on
Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
-4-
Schedule I
to
Transfer Supplement
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Revolving Credit Agreement, dated as of December 1, 1991, by and among
Barnes Group Inc., a Delaware corporation (the "Borrower"), the Lenders
parties thereto from time to time, and Mellon Bank N.A., a national
banking association, as Agent for the Lenders (as amended, modified or
supplemented from time to time, the "Credit Agreement")
Item 1 (Date of [Insert date of
Assignment Supplement): Assignment Supplement]
Item 2 (Transferor Lender): [Insert name of Transferor
Lender]
Item 3 (Purchasing Lender[s]): [Insert name[s] of
Purchasing Lender[s]]
Item 4 (Signatures of Parties
to Transfer Supplement):
[Name of Transferor Lender]
__________________________________________,
as Transferor Lender
By:_____________________________________
Title:
[Name of Purchasing Lender]
__________________________________________,
as Purchasing Lender
By:_____________________________________
Title:
[Name of Purchasing Lender]
_________________________________________
as Purchasing Lender
By:_____________________________________
Title:
[Following two consents required
only when Purchasing Lender is not
already a Lender [or an Affiliate of
a Lender]]
CONSENTED TO AND ACKNOWLEDGED:
BARNES GROUP INC.
By:___________________________
Title:
MELLON BANK, N.A., as Agent
By:___________________________
Title:
ACCEPTED FOR RECORDATION
IN PURCHASING LENDER REGISTER:
MELLON BANK, N.A., as Agent
By:___________________________
Title:
-2-
Schedule II
to
Transfer Supplement
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITTED AMOUNTS
[Name of Transferor
Lender] Revised Commitment and Loan Amounts:
Revolving Credit
Committed Amount $_________
Revised Commitment Percentage: _________
[Name of Purchasing
Lender] New Commitment and Loan Amounts:
Revolving Credit
Committed Amount $_________
New Commitment Percentage: _________
Administrative Information
for Purchasing Lender:
Address:__________________
__________________
Attention:________________
Telephone:________________
Telex:
(Answerback:____________)
Telecopier:_______________
Schedule III
to
Transfer Supplement
Transfer Effective Notice
To: [Insert Name of Borrower, Transferor
Lender and each Purchasing Lender]
The undersigned, as the Agent under the Revolving Credit Agreement,
dated as of December 1, 1991, by and among Barnes Group Inc., a Delaware
corporation (the "Borrower"), the Lenders parties thereto from time to time, and
Mellon Bank N.A., a national banking association, as Agent for the Lenders (as
amended, modified or supplemented from time to time, the "Credit Agreement"),
acknowledges receipt of five executed counterparts of a completed Transfer
Supplement, dated __________, 199_, from [name of Transferor Lender] to [name
of each Purchasing Lender] (the "Transfer Supplement"). Terms defined in the
Transfer Supplement are used herein as therein defined.
1. Pursuant to the Transfer Supplement, you are advised that the
Transfer Effective Date will be __________, 199_. [Insert fifth Business Day
following date of Transfer Effective Notice or other date agreed to among the
Transferor Lender, the Purchasing Lender, the Agent and the Borrower.]
2. Pursuant to Section 9.14(c) of the Credit Agreement, the Transferor
Lender has delivered to the Agent the Transferor Lender Notes.
3. Section 9.14(c) of the Credit Agreement provides that the Borrower
is to deliver to the Agent on or before the Assignment Effective Date the
following Notes, each dated the date of the Note it replaces.
[Describe each new Revolving Credit Note for Transferor Lender and
Purchasing Lender as to date (as required by the Credit Agreement), principal
amount and payee.]
4. The Transfer Supplement provides that each Purchasing Lender is to
pay its Purchase Price to the Transferor Lender at or before 12:00 o'clock Noon,
local time at the Transferor Lender's lending office specified in Schedule II to
the Transfer Supplement, on the Transfer Effective Date in immediately available
funds.
Very truly yours,
MELLON BANK, N.A., as Agent
By: _______________________________
Title:
[BARNES LETTERHEAD]
[BARNES LOGO]
Exhibit C
to
Credit Agreement
December 6, 1991
Mellon Bank, N.A., Individually and as Agent
Ameritrust Company National Association
Chemical Bank
The Connecticut National Bank
Fleet Bank, National Association
NBD Bank, N.A.
Gentlemen/Mesdames:
I am Vice President, General Counsel and Secretary of Barnes Group
Inc., a Delaware corporation (the "Borrower"), and have acted as counsel to the
Borrower in connection with the Revolving Credit Agreement dated as of December
1, 1991 between you and the Borrower (the "Agreement"). This opinion is being
delivered to the Lenders pursuant to Section 4.01(d) of the Agreement.
Capitalized terms used herein without definition are used as defined in the
Agreement.
In this connection, I have examined and am familiar with the originals
or copies, certified or otherwise identified to my satisfaction, of the
Agreement, the Revolving Credit Notes, the Restated Certificate of Incorporation
and By-Laws of the Company, as currently in effect, resolutions of the Company's
Board of Directors authorizing the Agreement and the issuance of the Notes, and
such other documents as I have deemed necessary or appropriate as a basis for
the opinions set forth below. In my examination, I have assumed the genuineness
of all signatures (except for signatures of officers of the Borrower), the legal
capacity of natural persons, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all documents submitted to
me as certified or photostatic copies and the authenticity of the originals of
such copies. As to the facts material to this opinion which I did not
independently establish or verify, I have relied upon statements and
representations of officers and other representatives of the Borrower and
others.
I am admitted to the bar in the State of Missouri and am not admitted
in any of the jurisdictions in which the Foreign Subsidiaries are incorporated.
With respect to Foreign Subsidiaries, I am generally familiar with their
organizational structure, have put in place
. . .
Page 2
December 6, 1991
procedures designed to ensure their continued qualification to do business and
good standing in their respective jurisdictions, and am generally familiar with
their current business activities and financial status.
Based upon and subject to the forgoing, I am of the opinion that:
1. The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, has the
corporate power to own its property and to carry on its business as now
conducted and is qualified to do business in every jurisdiction where
such qualification is necessary and in which the failure to be so
qualified would have a Material Adverse Effect.
2. Each Subsidiary incorporated in the United States ("Domestic
Subsidiary") is a corporation duly organized, validly existing and in
good standing under the laws of its state of incorporation, has the
corporate power to own its property and to carry on its business as now
conducted and is qualified to do business in every jurisdiction where
such qualification is necessary and in which the failure to be so
qualified would have a Material Adverse Effect. The shares of stock of
each Domestic Subsidiary purported to be owned by the Borrower are
validly issued, fully paid and nonassessable and are owned by the
Borrower free and clear of any mortgage, lien, pledge, charge, security
interest or other encumbrance.
3. To the best of my knowledge, without any special investigation by me,
(a) each subsidiary not incorporated in the United States ("Foreign
Subsidiary") is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation,
has the corporate power to own its property and to carry on its
business as now conducted and is qualified to do business in every
jurisdiction where such qualification is necessary and in which the
failure to be so qualified would have a Material Adverse Effect, and
(b) the shares of stock of each Foreign Subsidiary purported to be
owned by the Borrower or another Subsidiary are validly issued, fully
paid and
. . .
Page 3
December 6, 1991
nonassessable and are owned by the Borrower or another Subsidiary
(except in the case of Director's qualifying shares) free and clear of
any mortgage, lien, pledge, charge, security interest or other
encumbrance.
4. The Borrower has the corporate power to execute, deliver and perform
the Agreement, to borrow under the Agreement, and to execute and
deliver the Notes.
5. As of the date hereof, the execution, delivery and performance of the
Agreement, any borrowings under the Agreement and the execution and
delivery of the Notes by the Borrower, (a) have been duly authorized by
all requisite corporate action (including, without limitation, any
requisite action of the stockholders of the Borrower), (b) will not
violate any provision of the Restated Certificate of Incorporation or
By-Laws of the Borrower or any Subsidiary and (c) will not be in
conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default with respect to Indebtedness for
borrowed money (including but not limited to the Guarantee).
6. To the best of my knowledge, without any special investigation by me
other than the laws and documents referred to above, as of the date
hereof the execution, delivery and performance of the Agreement, any
borrowings under the Agreement and the execution and delivery of the
Notes by the Borrower (a) will not (i) violate (A) any provision of Law
(including, without limitation, Regulations G, U, T, and X of the
Federal Reserve Board), any order of any court or other agency of
government or (B) any indenture, agreement or other instrument to which
the Company or any Subsidiary of the Company is a party, or by which it
or any of its property is bound, (ii) be in conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument or
(iii) result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any property or assets of the
Borrower or any Subsidiary of the Borrower and (b) do not require the
Borrower or any Subsidiary to obtain the consent or approval of any
Federal, State, municipal or other governmental
. . .
Page 4
December 6, 1991
department, commission, board, bureau, agency or instrumentality,
domestic or foreign.
7. Neither the Borrower nor any Subsidiary thereof is subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, or the Investment Company Act of 1940. Neither the
Borrower nor any Subsidiary thereof is an "investment company" or a
company "controlled" by an "investment company," within the meaning of
the Investment Company Act of 1940, as amended.
8. The Agreement and the Revolving Credit Notes have each been duly
executed and delivered and, assuming that the Agreement is a valid and
binding obligation of you, each constitutes the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, except (a) that such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws nor or hereafter in effect relating to creditors' rights
generally, and (b) such enforcement may be subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
9. To the best of my knowledge after due inquiry, there is no pending or
threatened action, suit, proceeding or investigation by or before any
Governmental Authority against or affecting the Borrower or any
Subsidiary of the Borrower, which will more likely than not,
individually or in the aggregate, have a Material Adverse Effect.
I am furnishing this opinion to you solely in connection with the
transactions contemplated by the Agreement. This opinion is solely for your
benefit and is not to be used, circulated, quoted or otherwise referred to for
any other purpose without my written permission. In connection with the
transactions contemplated by this Agreement, the law firm of Reed Smith Shaw &
McClay may also rely on this opinion.
Very truly yours,
/s/ John E. Besser
------------------
John E. Besser
JEB/hvl
Exhibit D
to
Credit Agreement
Quarterly Compliance Certificate
I have conducted a review of the terms and conditions of the Revolving
Credit Agreement dated as of December 1, 1991 (the "Agreement"), the Notes and
the other Loan Documents, and the financial statements of the Borrower. Defined
terms used herein without definition are used as defined in the Agreement. Such
review has not disclosed nor does the signer have any knowledge of the existence
as of the date of this certificate of any condition or event which constitutes a
Potential Default or Event of Default.
Enclosed are condensed financial statements relating to the most recent
quarter. In my opinion they present fairly the consolidated financial position
of Barnes Group at the end of the quarter and the results of operations for the
indicated periods. These statements were prepared in accordance with generally
accepted accounting principles for interim financial statements.
Also enclosed are true and correct schedules demonstrating compliance
with the covenants contained in Sections 6.01, 6.02 and 6.03 of the Agreement as
of the date of this certificate.
Date: By: _______________________________
Title: ____________________________
Schedule 3.01 (Corporate Status)
1. The Borrower is incorporated in the State of Delaware.
2. See Schedule 3.11 for the places of incorporation of the Subsidiaries.
Schedule 3.07
INDEBTEDNESS
(A) The Indebtedness of the Company and its Subsidiaries as of September
30, 1991 is as follows:
Description Amount
----------- ------
1) Term Loan Agreement Mellon Bank, N.A. $20,000,000.00
2) Senior Notes Various $40,000,000.00
3) Industrial Revenue Comerica Bank, N.A. $ 7,000,000.00
Bond, Saline, MI Trustee
4) Industrial Revenue Mellon Bank, N.A.A. $ 1,714,300.00
Bond, Meridian, MS Trustee
5) Short Term Credit Line Various $37,000,000.00
6) Bank Overdraft Various $ 3,715,803.00
7) Guaranty Agreement Mellon Bank, N.A. $ 1,714,300.00
8) Letter of Credit Fuji Bank, Ltd. $ 7,394,000.00
9) NASCO Guaranty LTCB Trust Co. $ 3,780,000.00
10) NASCO Guaranty Tohlease Corp. $ 3,891,000.00
11) NASCO Guaranty LTCB Trust Co. $ 5,930,000.00
12) NASCO Guaranty LTCB Trust Co. $ 1,350,000 00
13) ESOP Guaranty CT. National Bank $18,002,000.00
Nat. Bank Detroit
14) Standby L/C Connecticut National $ 5,694,000.00
(Insurance) Bank
15) Commercial L/C Fleet Bank, N.A. $ 571,000.00
16) Company Guaranty Various $ 100,000.00
17) Standby L/C (Gardena) Connecticut Nationa1 $ 347,000.00
Total Debt: $149,489,000. Total excludes duplication items listed:
(3) Industrial Revenue Bond, Saline, $7,000,000.00.
(7) Guaranty Agreement, Meridian, $1,714,300.00.
Schedule 3.11
The Company's Subsidiaries are as follows:
Percentage of
Voting Stock Owned
Jurisdiction of by Company and Each
Name of Subsidiary Incorporation Other Subsidiary*
------------------ ------------- -----------------
Associated Spring-Asia PTE. LTD. Singapore 100%
Associated Spring Corporation** Connecticut 100%
Associated Spring SPEC Ltd. England Note 1
Autoliaisons France S.A. France 100%
Barnes Group Canada Inc. Canada 100%
Bowman Distribution (U.K.) Limited** United Kingdom 100%
Motalink Limited United Kingdom 100%
Resortes Industriales Del Norte, S.A. Mexico 100%
Resortes Mecanicos, S.A. Mexico 100%
Stumpp & Schuele do Brasil
Industria e Comercio Limitada Brazil 100%
Stumpp & Schuele Distribuidora Ltda. Brazil 100%
The Wallace Barnes Company** Connecticut 100%
Windsor Airmotive Asia PTE. LTD. Singapore Note 2
Note 1: Associated Spring SPEC Limited is wholly owned by Motalink Limited.
Note 2: Windsor Airmotive Asia PTE. LTD. is wholly owned by Barnes Group Canada
Inc.
* Other than directors' qualifying shares.
** Inactive.
Schedule 3.12 (Partnerships, etc.)
1. The Subsidiaries listed in Schedule 4.11.
2. The Borrower owns 45% of the stock of NHK-Associated Spring Suspension
Components Inc.
3. The Borrower owns a 15% equity interest in Resortes Argentina, S.A.,
formerly a wholly-owned subsidiary of the Borrower.