Exhibit 4.1
EXECUTION COPY
$55,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
LITTELFUSE, INC.,
as Borrower,
THE LENDERS NAMED HEREIN
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
DATED AS OF
September 1, 1998
ARRANGED BY
FIRST CHICAGO CAPITAL MARKETS, INC.
iii
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS 1
ARTICLE II
THE CREDITS 15
2.1 Commitment 15
2.2 Determination of Dollar Amounts; Required Payments; Termination 15
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2.3 Ratable Loans 16
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2.4 Types of Advances 16
2.5 Commitment and Utilization Fees; Reductions in Aggregate Commitment 16
2.6 Minimum Amount of Each Advance 17
2.7 Optional Principal Payments 17
2.8 Method of Selecting Types and Interest Periods for New Advances 17
2.9 Conversion and Continuation of Outstanding Advances 18
2.10 Swing Line Advances 19
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2.11 Method of Borrowing 21
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2.12 Changes in Interest Rate 21
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2.13 Rates Applicable After Default 22
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2.14 Method of Payment 22
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2.15 European Economic and Monetary Union 23
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2.15.1. Advances After the Euro Implementation Date 23
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2.15.2 Rounding and Other Consequential Changes 23
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2.16 Noteless Agreement; Evidence of Indebtedness 23
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2.17 Telephonic Notices 24
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2.18 Interest Payment Dates; Interest and Fee Basis 24
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2.19 Notification of Advances, Interest Rates, Prepayments and
Revolving Credit Commitment Reductions 25
2.20 Lending Installations 25
2.21 Non-Receipt of Funds by the Agent 25
2.22 Market Disruption 25
2.23 Judgment Currency 26
2.24 Taxes 26
2.25 Agent's Fees 28
ARTICLE III
CHANGE IN CIRCUMSTANCES 28
3.1 Yield Protection 28
3.2 Changes in Capital Adequacy Regulations 30
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3.3 Availability of Types of Advances 30
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3.4 Funding Indemnification 30
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3.5 Lender Statements; Survival of Indemnity 31
ARTICLE IV
CONDITIONS PRECEDENT 31
4.1 Amendment and Restatement 31
4.2 Each Future Advance 33
ARTICLE V
REPRESENTATIONS AND WARRANTIES 33
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5.1 Corporate Existence and Standing 33
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5.2 Authorization and Validity 33
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5.3 Compliance with Laws and Contracts 34
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5.4 Governmental Consents 34
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5.5 Financial Statements 34
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5.6 Material Adverse Change 35
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5.7 Taxes 35
5.8 Litigation and Contingent Obligations 35
5.9 Capitalization 35
5.10 ERISA 36
5.11 Defaults 36
5.12 Federal Reserve Regulations 36
5.13 Investment Company 36
5.14 Certain Fees 36
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5.15 Solvency 36
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5.16 Ownership of Properties 37
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5.17 Indebtedness 37
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5.18 Employee Controversies 37
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5.19 Material Agreements 37
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5.20 Hazardous Materials 37
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5.21 Year 2000 38
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5.22 Insurance 38
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5.23 Disclosure 38
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5.24 Contracts 39
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ARTICLE VI
COVENANTS 39
6.1 Financial Reporting 39
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6.2 Use of Proceeds 41
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6.3 Notice of Default 41
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6.4 Conduct of Business 41
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6.5 Taxes 41
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6.6 Insurance 41
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6.7 Compliance with Laws 42
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6.8 Maintenance of Properties 42
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6.9 Inspection 42
6.10 Capital Stock and Dividends 42
6.11 Indebtedness 42
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6.12 Merger 43
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6.13 Sale of Assets 43
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6.14 Sale and Leaseback 43
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6.15 Investments and Purchases 44
6.16 Contingent Obligations 44
6.17 Liens 45
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6.18 Capital Expenditures 45
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6.19 Lease Rentals 46
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6.20 Year 2000 46
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6.21 Letters of Credit 46
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6.22 Affiliates 46
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6.23 Amendments to Agreements 46
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6.24 Environmental Matters 46
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6.25 Agreements as to Prohibited Acts 47
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6.26 Change in Corporate Structure; Fiscal Year 47
6.27 Inconsistent Agreements 47
6.28 Financial Covenants. 47
6.28.1 Interest Expense Coverage Ratio 47
6.28.2. Debt Ratio 47
6.28.3. Minimum Net Worth. 47
ARTICLE VII
DEFAULTS 48
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 50
8.1 Acceleration 50
8.2 Amendments 50
8.3 Preservation of Rights 51
ARTICLE IX
GENERAL PROVISIONS 51
9.1 Survival of Representations 51
9.2 Governmental Regulation 51
9.3 Taxes 51
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9.4 Headings 51
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9.5 Entire Agreement 51
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9.6 Several Obligations; Benefits of this Agreement 51
9.7 Expenses; Indemnification 52
9.8 Numbers of Documents 53
9.9 Accounting 53
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9.10 Severability of Provisions 53
9.11 Nonliability of Lenders 53
9.12 CHOICE OF LAW 54
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9.13 CONSENT TO JURISDICTION 54
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9.14 WAIVER OF JURY TRIAL 54
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9.15 Disclosure 54
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9.16 Counterparts 55
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9.17 Departing Lenders 55
ARTICLE X
THE AGENT 55
10.1 Appointment 55
10.2 Powers 55
10.3 General Immunity 55
10.4 No Responsibility for Loans, Recitals, etc. 56
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10.5 Action on Instructions of Lenders 56
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10.6 Employment of Agents and Counsel 56
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10.7 Reliance on Documents; Counsel 56
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10.8 Agent's Reimbursement and Indemnification 56
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10.9 Rights as a Lender 57
10.10 Lender Credit Decision 57
10.11 Successor Agent 57
10.12 Notice of Default 57
10.13 Delegation to Affiliates 58
ARTICLE XI
SETOFF; RATABLE PAYMENTS 58
11.1 Setoff 58
11.2 Ratable Payments 58
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 59
12.1 Successors and Assigns 59
12.2 Participations 59
12.2.1. Permitted Participants; Effect 59
12.2.2. Voting Rights 59
12.2.3. Benefit of Setoff 60
12.3 Assignments 60
12.3.1. Permitted Assignments 60
12.3.2. Effect; Effective Date 60
12.4 Dissemination of Information 60
12.5 Tax Treatment 61
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ARTICLE XIII
NOTICES 61
13.1 Giving Notice 61
13.2 Change of Address 61
EXHIBITS
Exhibit A - Revolving Credit Note
Exhibit B - Swing Line Note
Exhibit C - Compliance Certificate
Exhibit D - Assignment Agreement
SCHEDULES
Schedule 1.1 - Eurocurrency Payment Offices of the Agent
Schedule 1.2 - Lending Installations
Schedule 5.3 - Approvals and Consents
Schedule 5.8 - Litigation and Material Contingent Obligations
Schedule 5.9 - Capitalization
Schedule 5.10 - ERISA
Schedule 5.14 - Brokers' Fees
Schedule 5.16 - Properties
Schedule 5.17 - Indebtedness
Schedule 5.20 - Environmental
Schedule 5.22 - Insurance
Schedule 6.11 - 1998 Senior Note Terms
Schedule 6.15 - Investments
Schedule 6.17 - Liens
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement, dated as of September 1,
1998, is among LITTELFUSE, INC., a Delaware corporation, as Borrower, the
Lenders and THE FIRST NATIONAL BANK OF CHICAGO, individually and as Agent.
W I T N E S S E T H:
WHEREAS, the Borrower has previously entered into that certain Credit
Agreement dated as of August 31, 1993 among the Borrower, the lenders named
therein and The First National Bank of Chicago, as Agent (as amended through but
not including April 26, 1996, the "Original Credit Agreement"), pursuant to
which the lenders thereunder made a term loan and extended a revolving credit
facility to the Borrower;
WHEREAS, the Borrower has previously repaid the term loan to the Lenders;
WHEREAS, the Borrower has previously entered into that certain Amended
and Restated Credit Agreement dated as of April 26, 1996 among the Borrower, the
lenders named therein and The First National Bank of Chicago as Agent (as
amended through but not including the date hereof, the "Existing Credit
Agreement"), pursuant to which the lenders thereunder increased the revolving
credit facility to $65,000,000 and made certain other amendments to the Original
Credit Agreement; and
WHEREAS, the Borrower, the Lenders and the Agent wish to
decrease the revolving credit facility to $55,000,000 and make certain other
amendments to the Existing Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements made herein, the Borrower, the Agent and the Lenders hereby agree,
subject to the fulfilment of the conditions precedent set forth in Section 4.1,
that the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
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1 ARTICLE DEFINITIONS
As used in this Agreement:
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made on the same Borrowing Date by the Lenders (or,
in the case of a Swing Line Advance, by the Swing Line Bank) to the Borrower (a)
of the same Type and (b) in the case of Eurocurrency Advances, denominated in
the same Agreed Currency and for the same Interest Period, made by the Lenders
on the same Borrowing Date.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise, other than solely
through such Person's duties as an officer of the controlled Person.
"Agent" means First Chicago in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders hereunder.
"Agreed Currencies" means (a) Dollars, (b) so long as such currencies
remain Eligible Currencies, British Pounds Sterling, German Deutsche Marks,
Dutch Guilders, French Francs, Swiss Francs, Japanese Yen, and, from and after
becoming generally available in the international currency and exchange markets,
the Euro and (c) any other Eligible Currency which the Borrower requests the
Agent to include as an Agreed Currency hereunder and which is acceptable to all
of the Lenders. For the purposes of this definition, each of the specific
currencies referred to in clause (b), above, shall mean and be deemed to refer
to the lawful currency of the jurisdiction referred to in connection with such
currency, e.g., "Swiss Francs" means the lawful currency of Switzerland. The
Agent shall promptly notify each Lender of each such request for inclusion of
any currency described in the immediately preceding clause (c) as an Agreed
Currency and each Lender shall be deemed to have agreed to each such request if
its objection thereto has not been received by the Agent within five (5)
Business Days from the date of such notification by the Agent to such Lender.
"Agreement" means this Credit Agreement, as it may be amended, modified
or restated and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
those used in preparing the financial statements referred to in Section 5.5.
"Air Regulations" is defined in Section 5.20.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (a) the Corporate Base Rate for such day and (b) the sum
of the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Commitment Fee Rate" means, at any time, the percentage
rate per annum at which commitment fees are accruing on the unused portion of
the Aggregate Commitment at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Approximate Equivalent Amount" of any currency with respect to any
amount of Dollars shall mean the Equivalent Amount of such currency with respect
to such amount of Dollars on or as of such date, rounded up to the nearest
smallest denomination of such currency as determined by the Agent from time to
time.
"Arranger" means First Chicago Capital Markets, Inc., a Delaware
corporation, and its successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the Chief Executive Officer, Chief
Financial Officer or Controller of the Borrower, acting singly.
"Bankruptcy Code" means Title 11, United States Code, sections 1 et
seq., as the same may be amended from time to time, and any successor thereto or
replacement therefor which may be hereafter enacted.
"Borrower" means Littelfuse, Inc., a Delaware corporation, and its
successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (a) with respect to any borrowing, payment or rate
selection of Eurocurrency Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York, for the conduct of
substantially all of their commercial lending activities and on which dealings
in Dollars and the other Agreed Currencies are carried on in the London
interbank market (and, if the Advances which are the subject of such borrowing,
payment or rate selection are denominated in Euro, a day upon which such
clearing system as is determined by the Agent to be suitable for clearing or
settlement of the Euro is open for business), and (b) for all other purposes, a
day (other than a Saturday or Sunday) on which banks generally are open in
Chicago for the conduct of substantially all of their commercial lending
activities.
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition for value of any asset which would be
classified as a fixed or capital asset on a consolidated balance sheet of the
Borrower and its Subsidiaries prepared in accordance with Agreement Accounting
Principles excluding (a) the cost of assets acquired under Capitalized Lease
Obligations, (b) expenditures of insurance proceeds to rebuild or replace any
asset after a casualty loss, and (c) leasehold improvement expenditures for
which the Borrower or a Subsidiary is reimbursed promptly by the lessor.
"Capitalization" means at any date the sum of (a) the Obligations as of
such date, plus (b) all unpaid principal of the 1993 Senior Notes and the 1998
Senior Notes as of such date, plus (c) all unpaid principal of other long-term
Indebtedness of the Borrower and its Subsidiaries as of such date, plus (d) the
shareholders' equity of the Borrower as of such date, as determined in
accordance with Agreement Accounting Principles.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"CERCLA" is defined in Section 6.24.
"Change" is defined in Section 3.2.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, in each case other than Trust Company of the West or
any Affiliate thereof, including without limitation an acquisition effected by
means of any transaction contemplated by Section 6.12 hereof, of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 20% or more of the
outstanding shares of voting stock of the Borrower.
"Closing Date" means August 31, 1993.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or as
set forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to Section 12.3.2, as such amount may be modified from time
to time pursuant to the terms hereof.
"Computation Date" is defined in Section 2.2.
"Condemnation" is defined in Section 7.8.
"Consolidated" or "consolidated", when used in connection with any
calculation, means a calculation to be determined on a consolidated basis for
the Borrower and its Subsidiaries in accordance with Agreement Accounting
Principles.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement or take-or-pay contract or application for a Letter of Credit.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as said corporate base rate changes. The Corporate Base Rate is a
reference rate and does not necessarily represent the lowest or best rate of
interest actually charged to any customer. First Chicago may make commercial
loans or other loans at rates of interest at, above or below the Corporate Base
Rate.
"Debt Ratio" means, for any date, the ratio of Indebtedness of the
Borrower and its Subsidiaries on a consolidated basis on such date to EBITDA of
the Borrower and its Subsidiaries on a consolidated basis for the four fiscal
quarters ending on such date.
"Default" means an event described in Article VII.
"Departing Lenders" means the Long-Term Credit Bank of Japan, Limited
and NationsBank, N.A.
"Dollar Amount" of any currency at any date shall mean (a) the amount
of such currency if such currency is Dollars or (b) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars, calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the
Agent for such currency on the London market at 11:00 a.m., London time, on or
as of the most recent Computation Date provided for in Section 2.2.
"Dollars" and "$" shall mean the lawful currency of the United
States of America.
"EBITDA" means Net Income plus, to the extent deducted from revenues in
determining Net Income, (a) interest expense, (b) expense for taxes paid or
accrued, (c) depreciation, (d) amortization and (e) extraordinary losses
incurred other than in the ordinary course of business, minus, to the extent
included in Net Income, extraordinary gains realized other than in the ordinary
course of business, all calculated for the Borrower and its Subsidiaries on a
consolidated basis in accordance with Agreement Accounting Principles.
"Eligible Currency" means any currency other than Dollars (a) that is
readily available, (b) that is freely traded, (c) in which deposits are
customarily offered to banks in the London interbank market, (d) which is
convertible into Dollars in the international interbank market and (e) as to
which an Equivalent Amount may be readily calculated. If, after the designation
by the Lenders of any currency as an Agreed Currency, (i) currency control or
other exchange regulations are imposed in the country in which such currency is
issued with the result that different types of such currency are introduced,
(ii) such currency is, in the determination of the Agent, no longer readily
available or freely traded or (iii) in the determination of the Agent, an
Equivalent Amount of such currency is not readily calculable, the Agent shall
promptly notify the Lenders and the Borrower, and such currency shall no longer
be an Agreed Currency until such time as all of the Lenders agree to reinstate
such currency as an Agreed Currency and promptly, but in any event within five
Business Days of receipt of such notice from the Administrative Agent, the
Borrower shall repay all Loans in such affected currency or convert such Loans
into Loans in Dollars or another Agreed Currency, subject to the other terms set
forth in Article II.
"Environmental Laws" shall have the meaning set forth in Section 5.20.
"Equivalent Amount" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Agent for such other currency at 11:00 a.m.,
London time, on the date on or as of which such amount is to be determined.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Euro" and/or "EUR" means the euro referred to in Council Regulation
(EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European
Union, or, if different, the then lawful currency of the member states of the
European Union that participate in the third stage of Economic and Monetary
Union.
"Euro Implementation Date" means the first date (currently expected to
be January 1, 1999) on which the Euro becomes the currency of some or all of the
member states of the European Union.
"Eurocurrency" means any Agreed Currency.
"Eurocurrency Advance" means an Advance which bears interest at the
applicable Eurocurrency Rate.
"Eurocurrency Loan" means a Loan which bears interest at the applicable
Eurocurrency Rate.
"Eurocurrency Payment Office" of the Agent shall mean, for each of the
Agreed Currencies, the office, branch, affiliate or correspondent bank of the
Agent specified as the "Eurocurrency Payment Office" for such currency in
Schedule 1.1 hereto or such other office, branch, affiliate or correspondent
bank of the Agent as it may from time to time specify to the Borrower and each
Lender as its Eurocurrency Payment Office.
"Eurocurrency Rate" means, with respect to a Eurocurrency Advance for
the relevant Interest Period, the sum of (a) the quotient of (i) the
Eurocurrency Reference Rate applicable to such Interest Period, divided by (ii)
one minus the Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (b) the Applicable Margin. The Eurocurrency Rate shall be
rounded to the next higher multiple of 1/16 of 1% if the rate is not such a
multiple.
"Eurocurrency Reference Rate" means, with respect to a Eurocurrency
Advance for the relevant Interest Period, the rate determined by the Agent to be
the rate at which First Chicago offers to place deposits in the applicable
Agreed Currency with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period, in the approximate amount of the First Chicago's
relevant Eurocurrency Loan and having a maturity equal to such Interest Period.
"Excluded Taxes" is defined in Section 2.24(a).
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Existing Credit Agreement" is defined in the recitals to this
Agreement.
"Existing Lenders" means those lenders party to the Existing Credit
Agreement.
"Facility Termination Date" means August 31, 2003.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Financial Statements" is defined in Section 5.5.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Floating Rate" means, for any day, a rate of interest per annum equal
to the Alternate Base Rate for such day, in each case changing when and as the
Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Governmental Authority" is defined in Section 2.24(a).
"Indebtedness" of a Person means such Person's (a) obligations for
borrowed money, (b) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (c)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (d) obligations which are evidenced by notes, acceptances, or other
instruments, (e) obligations of such Person to purchase securities or other
property arising out of or in connection with the sale of the same or
substantially similar securities or property, (f) Capitalized Lease Obligations,
(g) Rate Hedging Obligations, (h) Contingent Obligations, (i) obligations for
which such Person is obligated pursuant to or in respect of a Letter of Credit,
and (j) Off-Balance Sheet Liabilities.
"Interest Expense Coverage Ratio" means for any applicable computation
period, the ratio of EBITDA for such period to the Borrower's and its
Subsidiaries' interest expenses on a consolidated basis for such period. For
purposes of this definition only "interest expenses" shall mean the aggregate of
all interest paid or accrued by the Borrower and its Subsidiaries, including,
without limitation, all interest, fees and costs payable with respect to the
Obligations, the 1993 Senior Notes and the 1998 Senior Notes (other than fees
and costs which may be capitalized as transaction costs in accordance with
Agreement Accounting Principles), the interest portion of any Capitalized Lease
payments, and any dividends paid or accrued on the Borrower's preferred stock,
all as determined in accordance with Agreement Accounting Principles.
"Interest Period" means, with respect to a Eurocurrency Advance, a
period of one, two, three or six months commencing on a Business Day selected by
the Borrower pursuant to this Agreement. Such Interest Period shall end on (but
exclude) the day which corresponds numerically to such date one, two, three or
six months thereafter; provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day; provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), deposit account or contribution of capital by such Person to any other
Person or any investment in, or purchase or other acquisition of, the stock,
partnership interests, notes, debentures, bonds, interests in mutual funds or
other securities owned by such Person; any deposit accounts and certificate of
deposit owned by such Person; and structured notes, derivative financial
instruments and other similar instruments or contracts owned by such Person.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or affiliate of such Lender or the Agent with
respect to each Agreed Currency listed on Schedule 1.2 or, with respect to any
Lender, on the administrative information sheets provided to the Agent by such
Lender in connection herewith or otherwise selected by such Lender or the Agent
pursuant to Section 2.20.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender or the Swing Line Bank, any loan
made by such Lender or the Swing Line Bank pursuant hereto, and "Loans" means
with respect to the Lenders and the Swing Line Bank, the aggregate of all
Advances.
"Loan Documents" means this Agreement, the Notes and the other
documents and agreements contemplated hereby and executed by the Borrower in
favor of the Agent or any Lender.
"Margin Stock" has the meaning assigned to such term under Regulation U.
"Material Adverse Effect" means a material adverse effect on (a) the
business, Property, condition (financial or otherwise), performance, results of
operations or prospects of the Borrower and its Subsidiaries taken as a whole,
(b) the ability of the Borrower or any Subsidiary to perform its obligations
under the Loan Documents, or (c) the validity or enforceability of any of the
Loan Documents or the rights or remedies of the Agent or the Lenders thereunder.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"National Currency Unit" means the unit of currency (other than a Euro
unit) of each member state of the European Union that participates in the third
stage of Economic and Monetary Union.
"Net Income" means, for any computation period, with respect to the
Borrower on a consolidated basis with its Subsidiaries (other than any
Subsidiary which is restricted from declaring or paying dividends or otherwise
advancing funds to its parent whether by contract or otherwise), cumulative net
income earned during such period in accordance with Agreement Accounting
Principles.
"Net Worth" means at any date the consolidated common stockholders'
equity of the Borrower and its consolidated Subsidiaries determined in
accordance with Agreement Accounting Principles.
"1993 Senior Note Agreement" means, collectively, those certain Note
Purchase Agreements entered into between the Borrower and each purchaser named
therein, dated as of August 31, 1993, as the same has been or may be amended,
supplemented or modified.
"1993 Senior Note Documents" means the 1993 Senior Notes, the 1993
Senior Note Agreement and the other documents executed and delivered in
connection therewith.
"1993 Senior Notes" means those certain 6.31% Senior Notes due August
31, 2000, issued by the Borrower pursuant to the 1993 Senior Note Agreement in
the aggregate principal amount of $45,000,000.
"1998 Senior Note Agreement" means, that certain Note Purchase
Agreement which may be entered into between the Borrower and each purchaser
named therein, as the same may be amended, supplemented or modified after the
Restatement Date.
"1998 Senior Note Documents" means the 1998 Senior Notes, the 1998
Senior Note Agreement and the other documents executed and delivered in
connection therewith.
"1998 Senior Notes" means those certain 6.16% Senior Notes due
September 1, 2005 which may be issued by the Borrower pursuant to the 1998
Senior Note Agreement in the aggregate principal amount of $60,000,000.
"Note" is defined in Section 2.16.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Agent or any indemnified party hereunder arising under any
of the Loan Documents.
"Off Balance Sheet Liability" of a Person means (a) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (b) any liability under any Sale and Leaseback
Transaction which does not create a liability on the balance sheet of such
Person, (c) any liability under any financing lease or so-called "synthetic
lease" transaction entered into by such Person or (d) any obligation arising
with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the
balance sheets of such Person, but excluding Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Original Credit Agreement" is defined in the recitals to this
Agreement.
"Original Currency" is defined in Section 2.14(b).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Pro-rata" means, when used with respect to a Lender, and any described
aggregate or total amount, an amount equal to such Lender's pro-rata share or
portion based on its percentage of the Aggregate Commitment or if the Aggregate
Commitment has been terminated, its percentage of the aggregate principal amount
of outstanding Advances.
"Purchase" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (a) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, division thereof, whether through purchase of assets, merger or
otherwise, or (b) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Purchasers" is defined in Section 12.3.1.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (b) any and all
cancellations, buybacks, reversals, terminations or assignments of any of the
foregoing.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of such Board of
Governors relating to the extension of credit by securities brokers and dealers
for the purpose of purchasing or carrying margin stocks applicable to such
Persons.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to such Persons.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors relating to the extension of credit by the specified lenders for the
purpose of purchasing or carrying margin stocks applicable to such Persons.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any lease of Property, including without limitation Capitalized
Leases having an original term (including any required renewals or any renewals
at the option of the lessor or lessee) of one year or more.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event; provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least
66-2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66-2/3% of the Equivalent
Amount of the aggregate unpaid principal amount of the outstanding Loans.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) of general application which is imposed under
Regulation D on Eurocurrency liabilities.
"Restatement Date" means September 1, 1998.
"Revolving Credit Advance" means an Advance made by the Lenders to the
Borrower pursuant to Section 2.1.
"Revolving Credit Loan" means, with respect to a Lender, such Lender's
pro-rata portion of all Revolving Credit Advances.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Solvent" means, when used with respect to a Person, that (a) the fair
saleable value of the assets of such Person is in excess of the total amount of
the present value of its liabilities (including for purposes of this definition
all liabilities (including loss reserves as determined by the Borrower), whether
or not reflected on a balance sheet prepared in accordance with Agreement
Accounting Principles and whether direct or indirect, fixed or contingent,
secured or unsecured, disputed or undisputed), (b) such Person is able to pay
its debts or obligations in the ordinary course as they mature and (c) such
Person does not have unreasonably small capital to carry out its business as
conducted and as proposed to be conducted. "Solvency" shall have a correlative
meaning.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(b) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (a) represents more than 10% of
the consolidated assets of the Borrower and its Subsidiaries, as would be shown
in the consolidated financial statements of the Borrower and its Subsidiaries as
at the end of the quarter next preceding the date on which such determination is
made, or (b) is responsible for more than 10% of the consolidated net sales or
of the consolidated net income of the Borrower and its Subsidiaries for the 12
month period ending as of the end of the quarter next preceding the date of
determination.
"Swing Line Advance" means a borrowing hereunder consisting of the
aggregate amount of the Swing Line Loan(s) made by the Swing Line Bank to the
Borrower on the same Borrowing Date pursuant to Section 2.10.
"Swing Line Bank" means First Chicago and its respective successors
and assigns.
"Swing Line Commitment Amount" means the maximum principal amount of
Swing Line Loans which the Swing Line Bank may, in its sole discretion, make
pursuant to Section 2.10, as the same may be terminated or permanently reduced
from time to time hereunder. The initial Swing Line Commitment Amount shall be
$5,000,000. The Swing Line Commitment Amount will automatically and permanently
reduce to $0 on the Facility Termination Date.
"Swing Line Loan" means a Loan made in Dollars by the Swing Line Bank
pursuant to Section 2.10.
"Tax Sharing Agreement" means that certain Tax Indebtedness Sharing
Agreement dated as of December 27, 1991 between Littelfuse, Inc. and the
other parties listed therein.
"Taxes" is defined in Section 2.24(a).
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or Eurocurrency Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all accrued (vested and unvested) benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans and valued on a basis consistent with that used to prepare the Borrower's
annual audited financial statements.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Unrefunded Swing Line Loans" is defined in Section 2.10(d).
"U.S. Lender" means a Lender incorporated under the laws of the United
States of America or a state thereof.
"Utilization" means, for any calendar quarter, a percentage equal to
the average aggregate principal amount of Loans outstanding during such calendar
quarter divided by the Aggregate Commitment as of the end of such calendar
quarter.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (b) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications to effectively
handle data including dates on and after January 1, 2000, as such inability
affects the business, operations and financial condition of the Borrower and its
Subsidiaries and of the Borrower's and its Subsidiaries' material customers,
suppliers and vendors.
"Year 2000 Program" is defined in Section 5.21.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
1 ARTICLE THE CREDITS
1.1 Commitment . From and including the date hereof to but not including the
Facility Termination Date, each Lender severally (and not jointly) agrees, on
the terms and conditions set forth in this Agreement, to make pro-rata Revolving
Credit Advances to the Borrower in Agreed Currencies from time to time in
amounts not to exceed in the aggregate at any one time outstanding the Dollar
Amount of its Commitment, less the amount of such Lender's pro-rata share of the
outstanding principal amount of all Swing Line Advances (regardless of which
Lender made such Swing Line Advances) exclusive of Swing Line Advances being
repaid substantially contemporaneously with the making of any such Revolving
Credit Advances; provided that all Floating Rate Loans shall be made in Dollars.
Subject to the terms of this Agreement, the Borrower may borrow, repay and
reborrow Revolving Credit Advances at any time prior to the Facility Termination
Date. The Commitments to lend hereunder shall expire on the Facility Termination
Date. 1.2 1.3 Determination of Dollar Amounts; Required Payments; Termination .
1.4 1.5 (a) The Agent will determine the Dollar Amount of: 1.6 1.7 (i) each
Advance as of the date two Business Days prior to the Borrowing Date or, if
applicable, date of conversion/continuation of such Advance; and 1.8 (ii) all
outstanding Revolving Credit Advances on and as of the last Business Day of each
quarter and on any other Business Day elected by the Agent in its discretion or
upon instruction by the Required Lenders. 1.9 1.10 Each day upon or as of which
the Agent determines Dollar Amounts as described in the preceding clauses (i)
and (ii) is herein described as a "Computation Date" with respect to each
Revolving Credit Advance for which a Dollar Amount is determined on or as of
such day. If at any time the Dollar Amount of the sum of the aggregate principal
amount of all outstanding Revolving Credit Advances and Swing Line Advances
(calculated, with respect to those Advances denominated in Agreed Currencies
other than Dollars, as of the most recent Computation Date with respect to each
such Advance) exceeds the Aggregate Commitment, the Borrower shall immediately
repay Revolving Credit Advances and Swing Line Advances in an aggregate
principal amount sufficient to eliminate any such excess. If at any time the
Dollar Amount of the aggregate principal amount of all Revolving Credit Advances
denominated in Agreed Currencies other than Dollars (calculated as of the most
recent Computation Date) exceeds $10,000,000, the Borrower will immediately
repay Revolving Credit Advances so denominated in an aggregate principal amount
sufficient to eliminate any such excess. 1.11 1.12 (b) Each Revolving Credit
Advance shall mature, and the principal amount thereof and the unpaid accrued
interest thereon shall be due and payable along with all other unpaid
Obligations, on the Facility Termination Date. 1.13 1.14 Ratable Loans . Each
Advance hereunder shall consist of Loans made from the several Lenders ratably
in proportion to the ratio that their respective Commitments bear to the
Aggregate Commitment. 1.15 1.16 Types of Advances . The Advances may be Floating
Rate Advances, Eurocurrency Advances, or a combination thereof, selected by the
Borrower in accordance with Sections 2.8 and 2.9; provided that the Dollar
Amount of Revolving Credit Advances denominated in Agreed Currencies other than
Dollars may not at any time exceed $10,000,000. 1.17 (a) Commitment and
Utilization Fees; Reductions in Aggregate Commitment . The Borrower agrees to
pay to the Agent for the account of each Lender a commitment fee at a per annum
rate equal to the Applicable Commitment Fee Rate on the daily unused portion of
such Lender's Commitment (based on the Equivalent Amount of the principal amount
of the aggregate Loans (determined, with respect to each Loan, as of the date
such Loan was made or, in the case of a Loan which has been continued, upon the
date of continuation) from the date hereof to and including the Facility
Termination Date, payable in arrears on each Payment Date hereafter and on the
Facility Termination Date. All accrued commitment fees shall be payable on the
effective date of any termination of the obligations of the Lenders to make
Loans hereunder. For purposes of calculating the commitment fee hereunder, (i)
Swing Line Loans shall not constitute usage hereunder and (ii) the principal
amount of each Advance made in an Agreed Currency other than Dollars shall be at
any time the Dollar Amount of such Advance as determined on the most recent
Computation Date with respect to such Advance. (b) (c) The Borrower also agrees
to pay to the Agent for the pro-rata account of the Lenders a utilization fee
for each calendar quarter that Utilization is greater than 50% from the date
hereof to and including the later of the Facility Termination Date and the date
all Advances and other Obligations are paid in full. Such utilization fee shall
be payable on each Payment Date and on the Facility Termination Date and shall
be equal to .05% per annum multiplied by the average aggregate outstanding
principal amount of the Advances during such calendar quarter. (d) (e) The
Borrower may permanently reduce the Aggregate Commitment in whole, or in part
ratably among the Lenders in a minimum aggregate amount of $1,000,000 or any
integral multiple of $100,000 in excess thereof, upon at least two Business
Days' written notice to the Agent, which notice shall specify the amount of any
such reduction; provided, however, that the amount of the Aggregate Commitment
may not be reduced below the aggregate principal Dollar Amount of the
outstanding Revolving Credit Advances. (f) 1.18 Minimum Amount of Each Advance .
Each Eurocurrency Advance shall be in the minimum amount having a Dollar Amount
of $1,000,000 (and in multiples of $500,000 if in excess thereof), and each
Floating Rate Advance shall be in the minimum amount of $500,000 (and in
multiples of $100,000 if in excess thereof); provided, however, that (a) any
Floating Rate Advance may be in the amount of the unused Aggregate Commitment
and (b) in no event shall more than six (6) Eurocurrency Advances be permitted
to be outstanding at any time. 1.19 1.20 Optional Principal Payments . The
Borrower may from time to time pay, without penalty or premium, all outstanding
Floating Rate Advances, or, in a minimum aggregate amount of $500,000 or any
integral multiple of $100,000 in excess thereof, any portion of the outstanding
Floating Rate Advances upon one (1) Business Day's prior notice to the Agent.
The Borrower may from time to time pay, subject to the payment of any funding
indemnification amounts required by Section 3.4 but without penalty or premium,
all outstanding Eurocurrency Advances, or, in a minimum aggregate amount of
$1,000,000 or any integral multiple of $500,000 in excess thereof (or the
Approximate Equivalent Amount if denominated in an Agreed Currency other than
Dollars), any portion of the outstanding Eurocurrency Advances upon three
Business Days' prior notice to the Agent. 1.21 1.22 Method of Selecting Types
and Interest Periods for New Advances . The Borrower shall select the Type of
Advance and, in the case of each Eurocurrency Advance, the Interest Period and
Agreed Currency applicable to each Advance from time to time. The Borrower shall
give the Agent irrevocable notice (a "Borrowing Notice") not later than 2:00
p.m. (Chicago time) at least one (1) Business Day before the Borrowing Date of
each Floating Rate Advance and not later than 10:00 a.m. (Chicago time) at least
three (3) Business Days before the Borrowing Date for each Eurocurrency Advance,
specifying: 1.23 (a) the Borrowing Date, which shall be a Business Day, of such
Advance;
(a) the aggregate amount of such Advance, which, when added to the Equivalent
Amount of all outstanding Revolving Credit Advances and Swing Line Advances, and
after giving effect to the repayment of any outstanding Advances out of the
proceeds of the requested Advance, shall not exceed the Aggregate Commitment;
(b) (c) the Type of Advance selected; and
(a) in the case of each Eurocurrency Advance, the Interest
Period and Agreed Currency applicable thereto.
(a) Conversion and Continuation of Outstanding Advances . Floating Rate Advances
shall continue as Floating Rate Advances unless and until such Floating Rate
Advances are converted into Eurocurrency Advances pursuant to this Section 2.9
or are repaid in accordance with Section 2.7. Each Eurocurrency Advance shall
continue as a Eurocurrency Advance until repaid or the end of the then
applicable Interest Period therefor, at which time: (b) (i) each such
Eurocurrency Advance denominated in Dollars shall be automatically converted
into a Floating
Rate Advance unless (x) such Eurocurrency Advance is or was
repaid in accordance with Section 2.7 or (y) the Borrower
shall have given the Agent a Conversion/Continuation Notice
(as defined below) requesting that, at the end of such
Interest Period, such Eurocurrency Advance either continue
as a Eurocurrency Advance for the same or another Interest
Period or be converted into a Floating Rate Advance; and
(i) Each such Eurocurrency Advance denominated in an Agreed
Currency other than Dollars shall automatically continue as
a Eurocurrency Advance in the same Agreed Currency with an
Interest Period of one month unless (x) such Eurocurrency
Advance is or was repaid in accordance with Section 2.7 or
(y) the Borrower shall have given the Agent a
Conversion/Continuation Notice (as defined below) requesting
that, at the end of such Interest Period, such Eurocurrency
Advance continue as a Eurocurrency Advance for the same or
another Interest Period.
Subject to the terms of Section 2.6, the Borrower may elect from time to time to
convert all or any part of an Advance of any Type into any other Type or Types
of Advances denominated in the same or any other Agreed Currency; provided, that
any conversion of any Eurocurrency Advance shall be made on, and only on, the
last day of the Interest Period applicable thereto.
(a) The Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an
Advance or continuation of a Eurocurrency Advance not later
than 2:00 p.m. (Chicago time) at least one (1) Business Day,
in the case of a conversion into a Floating Rate Advance, or
not later than 10:00 a.m. (Chicago time) three (3) Business
Days, in the case of a conversion into or continuation of a
Eurocurrency Advance, prior to the date of the requested
conversion or continuation, specifying:
(i) the requested date which shall be a Business Day, of such conversion
or continuation;
(i) the Agreed Currency; and
(i) the amount and Type(s) of Advance(s) into which such Advance is to be
converted or continued and, in the case of a conversion into or
continuation of a Eurocurrency Advance, the duration of the Interest
Period applicable thereto.
1.1 Swing Line Advances .
1.2
1.3 (a) On the terms and subject to the conditions and relying upon the
representations and warranties herein set forth, the Swing Line Bank may, in its
sole discretion, from time to time from and including the date hereof to but
excluding the earlier of the Facility Termination Date and the termination of
the Commitments, in accordance with the terms hereof, make Swing Line Loans to
the Borrower in an aggregate principal amount at any time outstanding not to
exceed the least of (i) the amount of the Swing Line Commitment at such time,
(ii) the amount which, when added to the aggregate principal amount of
outstanding Swing Line Loans and the Swing Line Bank's pro-rata share of
outstanding Revolving Credit Loans, exceeds the amount of the Swing Line Bank's
Commitment, and (iii) an amount equal to (x) the Aggregate Commitment at such
time minus (y) the sum of the aggregate principal Dollar Amount of all Revolving
Credit Loans and Swing Line Loans outstanding at such time. Each Swing Line Loan
shall be made by the Swing Line Bank at the Alternate Base Rate (or such other
rate as may be agreed to by the Borrower and the Swing Line Bank) and may not be
converted pursuant to Section 2.9 into a Eurocurrency Advance. All Swing Line
Loans shall be in a minimum amount of $1,000,000 and in any integral multiple of
$500,000 if in excess thereof. In no event shall any Swing Line Loan be made
hereunder if the Agent and the Swing Line Bank shall have received written
notice from the Required Lenders prior to any such Swing Line Loan that a
condition specified in Section 4.1 or 4.2 has not been satisfied and such
condition shall not have been subsequently waived in compliance with Section
8.2.
1.4
1.5 (b) The Borrower shall give the Swing Line Bank (with a copy to the Agent)
telephonic, written or telecopy notice (in the case of telephonic notice, such
notice shall be promptly confirmed in writing or by telecopy) not later than
3:00 p.m., Chicago time, on a day of a proposed Swing Line Advance. Such notice
shall be delivered on a Business Day, shall be irrevocable and shall refer to
this Agreement and shall specify the requested Borrowing Date (which shall be a
Business Day) and the amount of such Swing Line Advance. The Swing Line Bank
shall by 4:00 p.m., Chicago time, on the requested Borrowing Date, make the
requested Swing Line Loan by crediting the principal amount thereof, in
immediately available funds, to the account of the Borrower maintained with the
Swing Line Bank unless such Advance shall not occur on such date because any
condition precedent herein specified shall not have been met or the Swing Line
Bank elects not to make the requested Swing Line Loan. Each Swing Line Loan
shall be repaid with accrued interest on the thirteenth Business Day following
the Borrowing Date thereof; provided that each Swing Line Loan may on a single
occasion be extended as described in Section 2.10(c)(i)(y) below. 1.6 1.7 (c)
Notwithstanding the occurrence of any Default or noncompliance with the
conditions precedent set forth in Article IV, if (i) any Swing Line Loan shall
remain outstanding at 10 a.m. (Chicago time) on the twelfth Business Day
following the Borrowing Date thereof and if by such time on such twelfth
Business Day the Agent shall have received neither (x) a Borrowing Notice
delivered by the Borrower pursuant to Section 2.8 requesting that Revolving
Credit Loans be made on the immediately succeeding Business Day in an amount at
least equal to the aggregate principal amount of such Swing Line Loan, (y) a
written request that such Swing Line Loan be extended for an additional period
of thirteen (13) Business Days, which request has been consented to by the Swing
Line Bank, nor (z) any other notice satisfactory to the Agent indicating the
Borrower's intent to repay all such Swing Line Loans on or before such
succeeding Business Day with funds obtained from other sources, or (ii) on any
date the Swing Line Bank in its sole discretion shall so request with respect to
the outstanding Swing Line Loans, the Agent shall be deemed to have received a
Borrowing Notice from the Borrower pursuant to Section 2.8 requesting that an
Advance of Revolving Credit Loans at the Floating Rate be made pursuant to
Section 2.1 on such succeeding Business Day in an amount equal to the aggregate
amount of such Swing Line Loans, and the procedures set forth in Section 2.11
shall be followed in making such Revolving Credit Loans; provided that the
proceeds of such Revolving Credit Loans received by the Agent shall be
immediately delivered to the Swing Line Bank and applied to the direct repayment
of such Swing Line Loans. Effective on the day such Revolving Credit Loans are
made, the portion of the Swing Line Loans so repaid shall no longer be
outstanding as Swing Line Loans and shall be outstanding as Revolving Credit
Loans of the Lenders bearing interest at a rate determined by reference to the
Floating Rate, in accordance with the provisions of this Article II. The
Borrower authorizes the Agent and the Swing Line Bank to charge the Borrower's
account maintained with the Swing Line Bank (up to the amount available in such
account) in order to immediately pay the amount of any Swing Line Loans to the
extent amounts received from the Lenders are not sufficient to repay in full
such Swing Line Loans. If any portion of any such amount paid (or deemed paid)
to the Swing Line Bank should be recovered by or on behalf of the Borrower from
the Swing Line Bank in the event of the bankruptcy or reorganization of the
Borrower or otherwise, the loss of the amount so recovered shall be ratably
shared among all Lenders in the manner contemplated by Section 11.2. 1.8 1.9 (d)
If, for any reason (including, without limitation, the occurrence of a Default
described in Section 7.6 or 7.7 of Article VII), Revolving Credit Loans at the
Floating Rate may not be, or are not, made pursuant to paragraph (c) of this
Section 2.10 to repay Swing Line Loans as required by such paragraph and the
applicable Swing Line Loan or Swing Line Loans have not otherwise been repaid,
effective on the date such Revolving Credit Loans would otherwise have been
made, each Lender severally, unconditionally and irrevocably agrees that it
shall, without regard to the occurrence of any Default, purchase a participating
interest in such Swing Line Loans ("Unrefunded Swing Line Loans") in an amount
equal to the amount of Revolving Credit Loans which would otherwise have been
made by such Lender pursuant to paragraph (c) of this Section 2.10. Each Lender
will immediately transfer to the Agent, in immediately available funds, the
amount of its participation, and the proceeds of such participation shall be
distributed by the Agent to the Swing Line Bank in such amount as will reduce
the amount of the participating interest retained by the Swing Line Bank in its
Swing Line Loans to the amount of the Revolving Credit Loans which were to have
been made by the Swing Line Bank pursuant to paragraph (c) of this Section 2.10.
In the event a Lender fails to make available to the Swing Line Bank the amount
of such Lender's participation as provided in this paragraph (d), the Swing Line
Bank shall be entitled to recover such amount on demand from such Lender
together with interest at the customary rate set by the Swing Line Bank for
correction of errors among banks for one Business Day and thereafter at the
Alternate Base Rate then in effect. All payments in respect of Unrefunded Swing
Line Loans and participations therein shall be made in accordance with Section
2.14. 1.10 1.11 (e) Each Lender's obligation to make Revolving Credit Loans
pursuant to paragraph (c) of this Section 2.10 and to purchase participating
interests pursuant to paragraph (d) of this Section 2.10 shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any setoff, counterclaim, recoupment, defense or other right
which such Lender or the Borrower may have against the Swing Line Bank, the
Borrower or any other Person, as the case may be, for any reason whatsoever;
(ii) the occurrence or continuance of a Default; (iii) any adverse change in the
condition (financial or otherwise) of the Borrower or any of its Subsidiaries;
(iv) any breach of this Agreement by the Borrower, any of its Subsidiaries or
any Lender; or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. 1.12 1.13 Method of Borrowing .
On each Borrowing Date, each Lender shall make available its Loan or Loans, if
any, (a) if such Loan is denominated in Dollars, not later than noon, Chicago
time, in Federal or other funds immediately available to the Agent, in Chicago,
Illinois at its address specified in or pursuant to Article XIII and (b) if such
loan is denominated in an Agreed Currency other than Dollars, not later than
noon, local time, in the city of the Agent's Eurocurrency Payment Office for
such currency, in such funds as may then be customary for the settlement of
international transactions in such currency in the city of and at the address of
the Agent's Eurocurrency Payment Office for such currency. Unless the Agent
determines that any applicable condition specified in Article IV has not been
satisfied, the Agent will make the funds so received from the Lenders available
to the Borrower at the Agent's aforesaid address. Notwithstanding the foregoing
provisions of this Section 2.11, to the extent that a Loan made by a Lender
matures on the Borrowing Date of a requested Loan, such Lender shall apply the
proceeds of the Loan it is then making to the repayment of principal of the
maturing Loan. 1.14 1.15 Changes in Interest Rate , etc. Each Floating Rate
Advance shall bear interest on the outstanding principal amount thereof, for
each day from and including the date such Advance is made or is converted from a
Eurocurrency Advance into a Floating Rate Advance pursuant to Section 2.9 to but
excluding the date it becomes due or is converted into a Eurocurrency Advance
pursuant to Section 2.9 hereof, at a rate per annum equal to the Floating Rate
for such day. Changes in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect simultaneously with each
change in the Alternate Base Rate. Each Eurocurrency Advance shall bear interest
on the outstanding principal amount thereof from and including the first day of
the Interest Period applicable thereto to (but not including), the last day of
such Interest Period at the interest rate determined by the Agent as applicable
to such Eurocurrency Advance based upon the Borrower's selections under Section
2.8 and 2.9 and otherwise in accordance with the terms hereof. No Interest
Period may end after the Facility Termination Date. 1.16 1.17 Rates Applicable
After Default . Notwithstanding anything to the contrary contained in Section
2.8 or 2.9 during the continuance of a Default, the Required Lenders may, at
their option, by notice to the Borrower (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that no Revolving Credit Advance may be made as, converted into or
continued as a Eurocurrency Advance. During the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrower (which notice
may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 8.2 requiring unanimous consent of the Lenders to changes
in interest rates), declare that each Eurocurrency Advance, Floating Rate
Advance and Swing Line Advance shall bear interest for the remainder of the
applicable Interest Period in the case of Eurocurrency Advances) at the rate
otherwise applicable plus 3% per annum; provided that, during the continuance of
a Default under Section 7.6 or 7.7, the interest rates set forth above shall be
applicable to all Advances without any election or action on the part of the
Agent or any Lender. 1.18 1.19 Method of Payment . (a) Each Advance shall be
repaid and each payment of interest thereon shall be paid in the currency in
which such Advance was made or, where such currency has converted to the Euro,
in the Euro. All payments of the Obligations hereunder shall be made, without
setoff, deduction or counterclaim, in immediately available funds to the Agent
at (except as set forth in the next sentence) the Agent's address specified
pursuant to, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrower, by noon (local time) on the date when due
and shall be applied ratably by the Agent among the Lenders. All payments to be
made by the Borrower hereunder in any currency other than Dollars shall be made
in such currency on the date due in such funds as may then be customary for the
settlement of international transactions in such currency for the account of the
Agent, at its Eurocurrency Payment Office for such currency and shall be applied
ratably by the Agent among the Lenders. Each payment delivered to the Agent for
the account of any Lender shall be delivered promptly by the Agent to such
Lender in the same type of funds that the Agent received, at, (i) with respect
to Floating Rate Loans and Eurocurrency Loans denominated in Dollars, its
address specified pursuant to Article XIII or at any Lending Installation
specified in a notice received by the Agent from such Lender and (ii) with
respect to Eurocurrency Loans denominated in an Agreed Currency other than
Dollars, in the funds received from the Borrower at the address of the Agent's
Eurocurrency Payment Office for such currency. The Agent is hereby authorized to
charge any account of the Borrower maintained with First Chicago or any of its
Affiliates for each payment of principal, interest and fees as it becomes due
hereunder. 1.20 1.21 (b) Notwithstanding the foregoing provisions of this
Section, if, after the making of any Advance in any currency other than Dollars,
currency control or exchange regulations are imposed in the country which issues
such currency with the result that the type of currency in which the Advance was
made (the "Original Currency") no longer exists or the Borrower is not able to
make payment to the Agent for the account of the Lenders in such Original
Currency, then all payments shall be made by the Borrower hereunder in such
currency shall instead be made when due in Dollars in an amount equal to the
Dollar Amount (as of the date of repayment) of such payment due, it being the
intention of the parties hereto that the Borrower take all risks of the
imposition of any such currency control or exchange regulations. For purposes of
this Section 2.14(b), the commencement of the third stage of European Economic
and Monetary Union and the occurrence of the Euro Implementation Date shall not
constitute the imposition of currency control or exchange regulations. 1.22 1.23
European Economic and Monetary Union . 1.24
2.15.1. Advances After the Euro Implementation Date . If any
Advance made (or to be made) on or after the Euro Implementation Date
would, but for the provisions of this Section 2.15.1, be capable of
being made in either the Euro or in a National Currency Unit, such
Advance shall be made in the Euro.
2.15.2 Rounding and Other Consequential Changes . With effect
on and from the Euro Implementation Date:
(a) without prejudice to any method of conversion or rounding prescribed
by any legislative measures of the Council of the European Union, each
reference in this Agreement to a fixed amount or to fixed amounts in a
National Currency Unit to be paid to or by the Agent shall,
notwithstanding any other provision of this Agreement, be replaced by
a reference to such comparable and convenient fixed amount or fixed
amounts in the Euro as the Agent may from time to time specify; and
(b) the Agent may notify the other parties to this Agreement of any
modifications to this Agreement which the Agent (acting reasonably and
after consultation with the other parties to this Agreement)
determines to be necessary as a result of the commencement of the
third stage of European Economic and Monetary Union and the occurrence
of the Euro Implementation Date. Notwithstanding any other provision
of this Agreement, any modifications of which the Agent so notifies
the other parties shall take effect in accordance with the terms of
such notification. So far as possible, such modifications shall be
such as to put the parties in the same position as if the Euro
Implementation Date had not occurred. However, if and to the extent
that the Agent determines that it is not possible to put the parties
in such position, the Agent may give priority to putting the Agent,
the Arranger and the Lenders into such position.
1.1 Noteless Agreement; Evidence of Indebtedness . (a) Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder. 1.2 1.3 (b) The
Agent shall maintain accounts in which it will record (i) the amount of each
Loan made hereunder, the Agreed Currency and Type thereof and the Interest
Period with respect thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Agent hereunder from
the Borrower and each Lender's share thereof. 1.4 1.5 (c) The entries maintained
in the accounts maintained pursuant to paragraphs (a) and (b) above shall be
prima facie evidence of the existence and amounts of the Obligations therein
recorded; provided, however, that the failure of the Agent or any Lender to
maintain such accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Obligations in accordance with their
terms. 1.6 1.7 (d) Any Lender may request that its Loans be evidenced by a
promissory note (a "Note"). In such event, the Borrower shall prepare, execute
and deliver to such Lender a Note payable to the order of such Lender in the
form of Exhibit A or B, as applicable. Thereafter, the Loans evidenced by such
Note and interest thereon shall at all times (including after any assignment
pursuant to Section 12.3) be represented by one or more Notes payable to the
order of the payee named therein or any assignee pursuant to Section 12.3,
except to the extent that any such Lender or assignee subsequently returns any
such Note for cancellation and requests that such Loans once again be evidenced
as described in paragraphs (a) and (b) above. 1.8 1.9 Telephonic Notices . The
Borrower hereby authorizes the Lenders and the Agent to extend, convert or
continue Advances, effect selections of Agreed Currencies and Types of Advances
and to transfer funds based on telephonic notices made by any person or persons
the Agent or any Lender in good faith believes to be acting on behalf of the
Borrower, it being understood that the foregoing authorization is specifically
intended to allow Borrowing Notices and Conversion/Continuation Notices to be
given telephonically. The Borrower agrees to deliver promptly to the Agent a
written confirmation, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error. 1.10 1.11 Interest Payment Dates; Interest and Fee Basis
. Interest accrued on each Floating Rate Advance shall be payable on each
Payment Date, commencing with the first such date to occur after the date
hereof, on any date on which the Floating Rate Advance is prepaid, whether due
to acceleration or otherwise, and at maturity. Interest accrued on that portion
of the outstanding principal amount of any Floating Rate Advance converted into
a Eurocurrency Advance on a day other than a Payment Date shall be payable on
the next Payment Date. Interest accrued on each Eurocurrency Advance shall be
payable on the last day of its applicable Interest Period, on any date on which
the Eurocurrency Advance is prepaid, whether by acceleration or otherwise, and
at maturity. Interest accrued on each Eurocurrency Advance having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest and commitment fees
shall be calculated for actual days elapsed on the basis of a 360-day year;
provided, that interest on Eurocurrency Advances denominated in British Pounds
Sterling shall be calculated on the basis of a 365-day or 366-day year, as
appropriate, for the actual number of days elapsed. Interest shall be payable
for the day an Advance is made but not for the day of any payment on the amount
paid if payment is received prior to noon (local time) at the place of payment.
If any payment of principal of or interest on an Advance shall become due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest in connection with such payment.
1.12 1.13 Notification of Advances, Interest Rates, Prepayments and Revolving
Credit Commitment Reductions . Promptly after receipt thereof, the Agent will
notify each Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, Conversion/Continuation Notice, and repayment notice
received by it hereunder. The Agent will notify each Lender of the interest rate
applicable to each Eurocurrency Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate. 1.14 1.15 Lending Installations . Each Lender may book its
Loans at the appropriate Lending Installation listed on Schedule 1.2 hereto or
such other Lending Installation designated by such Lender in accordance with the
final sentence of this Section 2.20. All terms of this Agreement shall apply to
any such Lending Installation and the Notes shall be deemed held by each Lender
for the benefit of such Lending Installation. Each Lender may, by written notice
to the Agent and the Borrower, in accordance with Article XIII, designate
replacement or additional Lending Installations, through which Loans will be
made by it and for whose account Loan payments are to be made. 1.16 1.17
Non-Receipt of Funds by the Agent . Unless the Borrower or a Lender, as the case
may be, notifies the Agent prior to the date on which it is scheduled to make
payment to the Agent of (a) in the case of a Lender, the proceeds of a Loan, or
(b) in the case of the Borrower, a payment of principal, interest or fees to the
Agent for the account of the Lenders, that it does not intend to make such
payment, the Agent may assume that such payment has been made. The Agent may,
but shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the Agent,
the recipient of such payment shall, on demand by the Agent, repay to the Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal to (i) in the case of payment by a Lender, the Federal Funds Effective
Rate for such day for the first three days and, thereafter, the interest rate
applicable to the relevant Loan or (ii) in the case of payment by the Borrower,
the interest rate applicable to the relevant Loan. 1.18 1.19 Market Disruption .
Notwithstanding the satisfaction of all conditions referred to in Article II and
Article IV with respect to any Advance in any Agreed Currency other than
Dollars, if there shall occur on or prior to the date of such Advance any change
in national or international financial, political or economic conditions or
currency exchange rates or exchange controls which would in the reasonable
opinion of the Agent or the Required Lenders make it impracticable for the
Eurocurrency Loans comprising such Advance to be denominated in the Agreed
Currency specified by the Borrower, then the Agent shall forthwith give notice
thereof to the Borrower and the Lenders, and such Loans shall not be denominated
in such Agreed Currency but shall, except as otherwise set forth in Section
2.15.1, be made on such Borrowing Date in Dollars, in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal amount specified in
the related Borrowing Notice or Conversion/Continuation Notice, as the case may
be, as Floating Rate Loans, unless the Borrower notifies the Agent at least one
Business Day before such date that (a) it elects not to borrow on such date or
(b) it elects to borrow on such date in a different Agreed Currency, as the case
may be, in which the denomination of such Loans would in the opinion of the
Agent and the Required Lenders be practicable and in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal amount specified in
the related Borrowing Notice or Conversion/Continuation Notice, as the case may
be. 1.20 1.21 Judgment Currency . If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due from the Borrower hereunder in
the currency expressed to be payable herein (the "specified currency") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the specified
currency with such other currency at the Agent's main Chicago office on the
Business Day preceding that on which final, non-appealable judgment is given.
The obligations of the Borrower in respect of any sum due to any Lender or the
Agent hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Agent (as the case may be) of any sum
adjudged to be so due in such other currency such Lender or the Agent (as the
case may be) may in accordance with normal, reasonable banking procedures
purchase the specified currency with such other currency. If the amount of the
specified currency so purchased is less than the sum originally due to such
Lender or the Agent, as the case may be, in the specified currency, the Borrower
agrees, to the fullest extent that it may effectively do so, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender or
the Agent, as the case may be, against such loss, and if the amount of the
specified currency so purchased exceeds (a) the sum originally due to any Lender
or the Agent, as the case may be, in the specified currency and (b) any amounts
shared with other Lenders as a result of allocations of such excess as a
disproportionate payment to such Lender under Section 12.2, such Lender or the
Agent, as the case may be, agrees to remit such excess to the Borrower. 1.22
1.23 Taxes . 1.24 1.25 (a) All sums payable by the Borrower whether in respect
of principal, interest, fees or otherwise shall be paid without deduction for
any present and future taxes, levies, imposts, charges or withholdings imposed
by any country, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government (a "Governmental Authority") thereof or
therein, any jurisdiction from which any or all such payments are made and any
political subdivision or taxing authority thereof or therein, excluding income
and franchise taxes (and deductions and withholdings therefor) imposed on the
Agent or any Lender (i) by the jurisdiction under the laws of which the Agent
(in the case of payments to the Agent) or such Lender is organized or any
Governmental Authority or taxing authority thereof or therein, or (ii) by any
jurisdiction in which the Agent's (in the case of payments to the Agent) or such
Lender's applicable Lending Installations are located or any Governmental
Authority or taxing authority thereof or therein (such excluded taxes,
deductions and withholdings, collectively, "Excluded Taxes"; and all such taxes,
levies, imposts, deductions, charges and withholdings (including Excluded
Taxes), collectively, "Taxes"), which amounts shall be paid by the Borrower as
provided in Section 2.24(b), provided, however, that in no event shall the
Borrower have any responsibility for or be required to pay any penalties arising
from the gross negligence or willful misconduct of the Agent or Lender seeking
compensation. As set forth in the preceding sentence, the Borrower will pay each
Lender the amounts necessary such that the net amount of the principal,
interest, fees or other sums received and retained by each Lender is not less
than the amount payable under this Agreement. 1.26 1.27 (b) If (i) the Borrower
or any other Person is required by law to make any deduction or withholding on
account of any Tax (other than Excluded Taxes) or other amount from any sum paid
or expressed to be payable by the Borrower to any Lender under this Agreement
(other than on account of Excluded Taxes); or (ii) any party to this Agreement
(or any Person on its behalf) other than the Borrower is required by law to make
any deduction or withholding from, or (other than on account of any Excluded
Tax) any payment on or calculated by reference to the amount of, any such sum
received or receivable by any Lender under this Agreement: 1.28
(A) the Borrower shall notify the Agent of any such requirement or any
change in any such requirement as soon as the Borrower becomes aware
of it and such Lender shall promptly notify the Borrower of any such
requirement or any change of such requirement as soon as such Lender
becomes aware thereof;
(B) to the extent the Borrower is aware or is so notified by such Lender,
the Borrower shall pay any such Tax or other amount before the date on
which penalties attached thereto become due and payable, such payment
to be made (if the liability to pay is imposed on the Borrower) for
its own account or (if that liability is imposed on any other party to
this Agreement) on behalf of and in the name of that party;
(C) the sum payable by the Borrower in respect of which the relevant
deduction, withholding or payment is required shall (except, in the
case of any such payment, to the extent that the amount thereof is not
ascertainable when that sum is paid, provided no amount is actually
withheld from such payment) be increased to the extent necessary to
ensure that, after the making of that deduction, withholding or
payment, that party receives on the due date and retains (free from
any liability in respect of any such deduction, withholding or
payment) a sum equal to that which it would have received and so
retained had no such deduction, withholding or payment been required
or made; and
(D) within thirty (30) days after payment of any sum from which the
Borrower is required by law to make any deduction or withholding, and
within thirty (30) days after the due date of payment of any Tax or
other amount which it is required by this Section 2.24 ------------ to
pay, it shall deliver to the Agent all such certified documents and
other evidence as to the making of such deduction, withholding or
payment as (1) are reasonably satisfactory to other affected parties
as proof of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority and (2)
are reasonably required by any such party to enable it to claim a tax
credit with respect to such deduction, withholding or payment.
(c) The Borrower shall not be obligated to make any payments
under this Section 2.24 to any Lender which is not a U.S. Lender until such
Lender shall have delivered the tax forms required to be delivered by it
pursuant to Section 2.24(d).
(d) At least five Business Days prior to the first date on
which interest or fees are payable hereunder for the account of any Lender, each
Lender which is not a U.S. Lender agrees that it will deliver to each of the
Borrower and the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, certifying in either case that such Lender is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Lender
which so delivers a Form 1001 or 4224 further undertakes to deliver to each of
the Borrower and the Agent two additional copies of such form (or a successor
form) on or before the date that such form expires (currently, three successive
calendar years for Form 1001 and one calendar year for Form 4224) or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent forms so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or the Agent, in
each case certifying that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including, without limitation, any change
in treaty, law or regulation) 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
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.
1.1 Agent's Fees . The Borrower shall pay to the Agent those fees, in addition
to the commitment fees referenced in Section 2.5(a), in the amounts and at the
times separately agreed to between the Agent and the Borrower. 1.2
1 ARTICLE CHANGE IN CIRCUMSTANCES
1.1 Yield Protection . (a) If, after the Restatement Date, the adoption of or
any change in any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any interpretation thereof, or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation or
Eurocurrency Payment Office to any tax, duty, charge or withholding on
or from payments due from the Borrower (excluding taxation of the
overall net income of any Lender or applicable Lending Installation in
respect of its Eurocurrency Advances, or
(i) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by,
any Lender or any applicable Lending Installation in respect of its
Eurocurrency Advances (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurocurrency
Advances), or
(i) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation of making,
funding or maintaining its Eurocurrency Advances Loans including,
without limitation, any conversion of any Loan denominated in an
Agreed Currency other than Euro into a Loan denominated in Euro) or
reduces any amount receivable by any Lender or any applicable Lending
Installation in connection with its Eurocurrency Advances, or requires
any Lender or any applicable Lending Installation or Eurocurrency
Payment Office to make any payment calculated by reference to the
amount of its Eurocurrency Advances held, or interest received by it
in respect thereof, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurocurrency
Advances or Commitment then, within 15 days of demand by such Lender, the
Borrower shall pay such Lender that portion of such increased expense incurred
or resulting in an amount received which such Lender determines is attributable
to making, funding and maintaining its Eurocurrency Advances and its Commitment
in respect thereof.
(b) In addition to any other amounts payable by the Borrower
hereunder, each Lender may require the Borrower to pay, contemporaneously with
each payment of interest on Eurocurrency Advances of the Borrower additional
interest on the related Eurocurrency Loan of such Lender at the percentage
calculated from time to time by such Lender to be the percentage required to
fully compensate such Lender for all reserve costs, liabilities, expenses and
assessments which have been incurred by such Lender (or its applicable Lending
Installation or Eurocurrency Payment Office) pursuant to requirements of
applicable law or any applicable governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) regarding the making, funding or maintaining of such Eurocurrency Loan
(including, without limitation, any and all liquid asset maintenance
requirements of the Bank of England and any reserve requirements of Regulation
D), to the extent that any such amount is not already included in the
determination of the Eurocurrency Rate. Any Lender wishing to require payment of
such additional interest (i) shall so notify the Borrower and the Agent pursuant
to Section 3.5, in which case such additional interest on the Eurocurrency Loans
of such Lender shall be payable in the applicable Agreed Currency to such Lender
at the place indicated in such notice with respect to each Interest Period
commencing at least five (5) Business Days after the giving of such notice and
(ii) shall notify the Borrower at least five (5) Business Days prior to each
date on which interest is payable on such Eurocurrency Loans of the amount then
due it under this Section 3.1(b); provided, however, that if a Lender fails to
give such prior notice, then such additional interest shall be payable five (5)
business Days after such notice if given.
1.1 Changes in Capital Adequacy Regulations . If a Lender determines the amount
of capital required or expected to be maintained by such Lender, any Lending
Installation of such Lender or any corporation controlling such Lender is
increased as a result of a Change, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased capital
which such Lender determines is attributable to this Agreement, its Loans or its
obligation to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "Change" means (a) any change after the
Restatement Date in the Risk-Based Capital Guidelines, or (b) any adoption of or
change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the Restatement Date which affects the amount of capital required
or expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "Risk-Based Capital Guidelines" means (a)
the risk-based capital guidelines in effect in the United States on the
Restatement Date, including transition rules, and (b) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the Restatement Date. 1.2 1.3
Availability of Types of Advances . If any Lender determines that maintenance of
its Eurocurrency Advances at a suitable Lending Installation would violate any
applicable law, rule, regulation, or directive, whether or not having the force
of law, or if the Required Lenders determine that (a) deposits of a type,
currency and maturity appropriate to match fund Eurocurrency Advances are not
available to banks in the London interbank market, (b) the interest rate
applicable to a Type of Eurocurrency Advance does not accurately or fairly
reflect the cost of deposits generally available to banks in the London
interbank market, or (c) a fundamental change has occurred in the foreign
exchange or interbank markets with respect to the applicable Agreed Currency
(including, without limitation, changes in national or international financial,
political or economic conditions or currency exchange rates or exchange
controls), which change has the effect of making deposits in the applicable
Agreed Currency generally not available to banks in the London interbank market,
then the Agent shall suspend the availability of the affected Type of Advance
and require any Eurocurrency Advances of the affected Type to be repaid. 1.4 1.5
Funding Indemnification . If any payment of a Eurocurrency Advance occurs on a
date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a Eurocurrency Advance is
not made on the date specified by the Borrower for any reason other than default
by the Lenders, the Borrower will indemnify the Agent and each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain the Eurocurrency Advance. 1.6 1.7 Lender Statements; Survival of
Indemnity . To the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Eurocurrency Advances to
reduce any liability of the Borrower to such Lender under Sections 2.24(a), 3.1
and 3.2 or to avoid the unavailability of a Type of Advance under Section 3.3,
so long as such designation is not disadvantageous to such Lender. Each Lender
shall deliver a written statement of such Lender to the Borrower (with a copy to
the Agent) as to the amount due, if any, under Sections 2.24(a), 3.1, 3.2 or
3.4. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a
Eurocurrency Advance shall be calculated as though each Lender funded its
Eurocurrency Advances through the purchase of a deposit of the type, currency
and maturity corresponding to the deposit used as a reference in determining the
Eurocurrency Rate applicable to such Loan, whether in fact that is the case or
not. Unless otherwise provided herein, the amount specified in the written
statement of any Lender shall be payable on demand after receipt by the Borrower
of the written statement. The obligations of the Borrower under Sections
2.24(a), 3.1, 3.2 and 3.4 shall survive payment of the Obligations and
termination of this Agreement. 1.8
1 ARTICLE CONDITIONS PRECEDENT
1.1 Amendment and Restatement . This Agreement shall not become effective until
the Borrower has furnished to the Agent with sufficient copies for the Lenders:
(a) Charter Documents. Copies of the certificate of incorporation
of the Borrower, together with all amendments, and a
certificate of good standing, both certified by the
appropriate governmental officer in its jurisdiction of
incorporation.
(a) By-Laws and Resolutions. Copies, certified by the Secretary or Assistant
Secretary of the Borrower, of its by-laws and of its Board of Directors'
resolutions (and resolutions of other bodies, if any are deemed necessary
by counsel for any Lender) authorizing the execution, delivery and
performance of the Loan Documents to which the Borrower is a party.
(a) Secretary's Certificate. An incumbency certificate, executed by the
Secretary or Assistant Secretary of the Borrower, which shall identify by
name and title and bear the signature of the officers of the Borrower
authorized to sign the Loan Documents and to make borrowings hereunder,
upon which certificate the Agent and the Lenders shall be entitled to rely
until informed of any change in writing by the Borrower.
(a) Officer's Certificate. A certificate, dated the Restatement Date, signed by
an Authorized --------------------- Officer of the Borrower, in form and
substance satisfactory to the Required Lenders, to the effect that: (i) on
the Restatement Date no Default or Unmatured Default has occurred and is
continuing; (ii) no injunction or temporary restraining order which would
prohibit the making of the Loans or the consummation of any of the other
transactions contemplated by any of the Loan Documents (collectively the
"Restatement Transactions"), or other litigation which could
------------------------ reasonably be expected to have a Material Adverse
Effect is pending or, to the best of such Person's knowledge, threatened;
(iii) all orders, consents, approvals, licenses, authorizations, or
validations of, or filings, recordings or registrations with, or exemptions
by, any governmental or public body or authority, or any subdivision
thereof, required to make or consummate the Restatement Transactions have
been or, prior to the time required, will have been, obtained, given, filed
or taken and are or will be in full force and effect (or the Borrower has
obtained effective judicial relief with respect to the application thereof)
and that all applicable waiting periods have expired; (iv) the Loan
Documents are in full force and effect and no term or condition thereof has
been amended, modified or waived after the execution thereof except with
the written consent of the Agent; (v) each of the representations and
warranties set forth in Article V of this Agreement is true and correct on
and as of the --------- date hereof; and (vi) since January 3, 1998, no
event or change has occurred that has caused or evidences a Material
Adverse Effect.
(a) Legal Opinion. A written opinion of the Borrower's counsel, addressed to
the Agent and the Lenders in form and substance acceptable to the Agent and
its counsel.
(a) Notes. To the extent required by any Lender, Notes payable to the order of
each such Lender ----- duly executed by the Borrower.
(a) Transfer Instructions. Written money transfer instructions addressed to the
Agent and signed by an Authorized Officer, together with such other related
money transfer authorizations as the Agent may have reasonably requested.
(a) Year 2000. Information satisfactory to the Agent and the Required Lenders
regarding the Borrower's Year 2000 Program.
(a) Loan Documents. Executed originals of this Agreement and each of the other
Loan Documents to be executed on the Restatement Date, which shall be in
full force and effect, together with all schedules, exhibits, certificates,
instruments, opinions, documents and financial statements required to be
delivered pursuant hereto and thereto.
(a) Certain Payments. The Borrower shall have paid to the Agent for the ratable
account of the Existing Lenders the full amount of all principal, interest
and fees outstanding or accrued and unpaid under the Existing Credit
Agreement.
(a) Departing Lenders. The Departing Lenders shall have consented to this
Agreement and the reduction to $0 of their respective commitments
hereunder, such consent to be in form and substance satisfactory to the
Agent.
(a) Fees. Evidence that the Borrower shall have paid all fees due or owing on
the Restatement Date pursuant to that certain letter agreement with First
Chicago dated as of July 22, 1998.
(a) Other. Such other documents as the Agent or any Lender or its counsel may
have reasonably ----- requested.
1.1 Each Future Advance . The Lenders shall not be required to make any Advance
unless on the applicable Borrowing Date: 1.2 (a) There exists no Default or
Unmatured Default and none would result from such Advance;
(a) The representations and warranties contained in Article V are true and
correct as of such Borrowing Date except as to matters occurring after the
date hereof and affecting solely the accuracy of Schedule 5.9, 5.10, 5.16,
5.20 or 5.22;
(a) A Borrowing Notice shall have been properly submitted; and
(a) All legal matters incident to the making of such Advance shall be
satisfactory to the Lenders and their counsel.
Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in Section 4.2 have been satisfied. Any Lender may require a duly
completed compliance certificate in substantially the form of Exhibit C hereto
as a condition to making an Advance.
1 ARTICLE REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that, both before
and after giving effect to the Restatement Transactions:
1.1 Corporate Existence and Standing . Each of the Borrower and each Subsidiary
is a corporation duly incorporated, validly existing and in good standing under
the laws of its respective jurisdiction of incorporation and is duly qualified
and in good standing as a foreign corporation and is duly authorized to conduct
its business in each jurisdiction in which its business is conducted or proposed
to be conducted.
1.2
1.3 Authorization and Validity . The Borrower has all requisite power and
authority (corporate and otherwise) and legal right to execute and deliver each
of the Loan Documents to which it is a party and to perform its obligations
thereunder. The execution and delivery by the Borrower of the Loan Documents to
which it is a party and the performance of its obligations thereunder have been
duly authorized by proper corporate proceedings, and the Loan Documents
constitute legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
1.4
1.5 Compliance with Laws and Contracts . The Borrower and its Subsidiaries have
complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof, having jurisdiction over the conduct of
their respective businesses or the ownership of their respective properties,
except where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect. Neither the execution and delivery by the Borrower of
the Loan Documents, the application of the proceeds of the Loans, the
consummation of any transaction contemplated in the Loan Documents, nor
compliance with the provisions of the Loan Documents will, or at the relevant
time did, (a) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any Subsidiary or the
Borrower's or any Subsidiary's articles or certificate of incorporation or
by-laws, (b) violate the provisions of or require the approval or consent of any
party to any indenture, instrument or agreement to which the Borrower or any
Subsidiary is a party or is subject, or by which it, or its property, is bound,
or conflict with or constitute a default thereunder, or result in the creation
or imposition of any Lien (other than Liens permitted by the Loan Documents) in,
of or on the property of the Borrower or any Subsidiary pursuant to the terms of
any such indenture, instrument or agreement, or (c) require any consent of the
stockholders of any Person, except for approvals or consents which will be
obtained on or before the initial Advance and are disclosed on Schedule 5.3,
except for any violation of, or failure to obtain an approval or consent
required under, any such indenture, instrument or agreement that could not
reasonably be expected to have a Material Adverse Effect. 1.6 1.7 Governmental
Consents . No order, consent, approval, qualification, license, authorization,
or validation of, or filing, recording or registration with, or exemption by, or
other action in respect of, any court, governmental or public body or authority,
or any subdivision thereof, any securities exchange or other Person is or at the
relevant time was required to authorize, or is or at the relevant time was
required in connection with the execution, delivery, consummation or performance
of, or the legality, validity, binding effect or enforceability of, any of the
Loan Documents, the application of the proceeds of the Loans or the consummation
of any transaction contemplated in the Loan Documents. Neither the Borrower nor
any Subsidiary is in default under or in violation of any foreign, federal,
state or local law, rule, regulation, order, writ, judgment, injunction, decree
or award binding upon or applicable to the Borrower or such Subsidiary, in each
case the consequences of which default or violation could reasonably be expected
to have a Material Adverse Effect. 1.8 1.9 Financial Statements . The Borrower
has heretofore furnished to each of the Lenders (a) the January 3, 1998 audited
consolidated financial statements of the Borrower and its Subsidiaries, and (b)
the unaudited consolidated financial statements of the Borrower and its
Subsidiaries through April 4, 1998 (collectively, the "Financial Statements").
Each of the Financial Statements was prepared in accordance with Agreement
Accounting Principles and fairly presents the consolidated financial condition
and operations of the Borrower and its Subsidiaries at such dates and the
consolidated results of their operations for the respective periods then ended
(except, in the case of such unaudited statements, for normal year-end audit
adjustments and the absence of footnotes). 1.10 1.11 Material Adverse Change .
No material adverse change in the business, Property, condition (financial or
otherwise), performance, prospects or results of operations of the Borrower and
its Subsidiaries has occurred since January 3, 1998. 1.12 1.13 Taxes . The
Borrower and its Subsidiaries have filed or caused to be filed all United States
federal and applicable state tax returns and all other tax returns which are
required to be filed and have paid all taxes due pursuant to said returns or
pursuant to any assessment received by the Borrower or any Subsidiary, except
such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with Agreement Accounting
Principles and to which no Lien exists. No United States income tax returns of
the Borrower on a consolidated basis have been audited by the Internal Revenue
Service. No tax liens have been filed and no claims are being asserted with
respect to any such taxes which could reasonably be expected to have a Material
Adverse Effect. The charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of any taxes or other governmental charges are
in accordance with Agreement Accounting Principles. 1.14 1.15 Litigation and
Contingent Obligations . There is no litigation, arbitration, proceeding,
inquiry or governmental investigation (including, without limitation, by the
Federal Trade Commission) pending or, to the knowledge of any of their officers,
threatened against or affecting the Borrower or any Subsidiary or any of their
respective properties (a) which could reasonably be expected to have a Material
Adverse Effect or to prevent, enjoin or unduly delay the making of the Loans or
Advances under this Agreement or (b) as of the date of this Agreement, except as
set forth in Schedule 5.8. Neither the Borrower nor any Subsidiary has any
material contingent obligations except as set forth on Schedule 5.8. 1.16 1.17
Capitalization . Schedule 5.9 hereto contains an accurate list of all of the
existing Subsidiaries as of the date of this Agreement, setting forth their
respective jurisdictions of incorporation and the percentage of their capital
stock owned by the Borrower or other Subsidiaries. All of the issued and
outstanding shares of capital stock of the Borrower and of each Subsidiary have
been duly authorized and validly issued and are fully paid and non-assessable,
and all such shares of each Subsidiary are free and clear of all Liens. Except
as set forth on Schedule 5.9, no authorized but unissued or treasury shares of
capital stock of the Borrower or any Subsidiary are subject to any option,
warrant, right to call or commitment of any kind or character. Except as set
forth on Schedule 5.9, neither the Borrower nor any Subsidiary has any
outstanding stock or securities convertible into or exchangeable for any shares
of its capital stock, or any right issued to any Person (either preemptive or
other) to subscribe for or to purchase, or any options for the purchase of, or
any agreements providing for the issuance (contingent or other) of, or any
calls, commitments or claims of any character relating to any of its capital
stock or any stock or securities convertible into or exchangeable for any of its
capital stock other than as expressly set forth in the certificate or articles
of incorporation of the Borrower or such Subsidiary. Neither the Borrower nor
any Subsidiary is subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of its capital stock or any
convertible securities, rights or options of the type described in the preceding
sentence except as otherwise set forth on Schedule 5.9. 1.18 1.19 ERISA . Except
as set forth on Schedule 5.10 hereto, the Borrower does not maintain any Single
Employer Plans. The Borrower has no Unfunded Liabilities with respect to any
Single Employer Plans. Neither the Borrower nor any other member of the
Controlled Group is a party to any Multiemployer Plan or has incurred, or is
reasonably expected to incur, any withdrawal liability to any Multiemployer
Plan. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, neither the Borrower nor any other member of the Controlled
Group has withdrawn from any Plan or initiated steps to do so and no steps have
been taken to reorganize or terminate any Plan. 1.20 1.21 Defaults . No Default
or Unmatured Default has occurred and is continuing. 1.22 1.23 Federal Reserve
Regulations . Neither the Borrower nor any Subsidiary is engaged, directly or
indirectly, principally, or as one of its important activities, in the business
of extending, or arranging for the extension of, credit for the purpose of
purchasing or carrying Margin Stock. No part of the proceeds of any Loan will be
used in a manner which would violate, or result in a violation of, Regulation T,
Regulation U or Regulation X. Neither the making of any Advance hereunder, nor
the use of the proceeds thereof, will violate or be inconsistent with the
provisions of Regulation T, Regulation U or Regulation X. Following the
application of the proceeds of any Revolving Loan, less than 25% of the value
(as determined by any reasonable method) of the assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder taken as a whole have been, and will continue to be,
represented by Margin Stock. 1.24 1.25 Investment Company . Neither the Borrower
nor any Subsidiary is, or after giving effect to any Advance will be, an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended. 1.26 1.27 Certain
Fees . Other than as disclosed on Schedule 5.14, no broker's or finder's fee or
commission was, is or will be payable by the Borrower or any Subsidiary with
respect to any of the transactions contemplated by this Agreement. The Borrower
hereby agrees to indemnify the Agent and the Lenders against and agrees that it
will hold each of them harmless from any claim, demand or liability for broker's
or finder's fees or commissions alleged to have been incurred by the Borrower in
connection with any of the transactions contemplated by this Agreement and any
expenses (including, without limitation, attorneys' fees and time charges of
attorneys for the Agent or any Lender, which attorneys may be employees of the
Agent or any Lender) arising in connection with any such claim, demand or
liability. No other similar fee or commissions will be payable by the Borrower
or any Subsidiary for any other services rendered to the Borrower or any
Subsidiary ancillary to any of the transactions contemplated by this Agreement.
1.28 1.29 Solvency . As of the date hereof, after giving effect to the
consummation of the Restatement Transactions and the payment of all fees, costs
and expenses payable by the Borrower with respect to the Restatement
Transactions, each of the Borrower and each Subsidiary is Solvent. 1.30
Ownership of Properties . Except as set forth on Schedule 5.16 hereto, the
Borrower and its Subsidiaries have a subsisting leasehold interest in, or good
and marketable title, free of all Liens, other than those permitted by Section
6.17, to all of the properties and assets reflected in the Financial Statements
as being owned by it, except for assets sold, transferred or otherwise disposed
of in the ordinary course of business since the date thereof. Schedule 5.16
hereto contains a true, complete and accurate list of all real property owned or
leased by the Borrower and indicates whether such property is owned or leased.
To the knowledge of the Borrower, there are no actual, threatened or alleged
defaults with respect to any leases of real property under which the Borrower or
any Subsidiary is lessee or lessor which could reasonably be expected to have a
Material Adverse Effect. The Borrower and its Subsidiaries own or possess rights
to use all licenses, patents, patent applications, copyrights, servicemarks,
trademarks and trade names necessary to continue to conduct their business as
heretofore conducted, and no such license, patent or trademark has been declared
invalid, been limited by order of any court or by agreement or is the subject of
any infringement, interference or similar proceeding or challenge, except for
challenges which could not reasonably be expected to have a Material Adverse
Effect. 1.31 1.32 Indebtedness . Attached hereto as Schedule 5.17 is a complete
and correct list of all Indebtedness of the Borrower and its Subsidiaries
outstanding on the date of this Agreement (other than Indebtedness in a
principal amount not exceeding $5,000 for a single item of Indebtedness and
$50,000 in the aggregate for all such Indebtedness), showing the aggregate
principal amount which was outstanding on such date after giving effect to the
making of the Loans and the sale of the 1998 Senior Notes. The Borrower has
delivered or caused to be delivered to the Lenders a true and complete copy of
each instrument evidencing any Indebtedness listed on Schedule 5.17 and of each
document pursuant to which any of such Indebtedness was issued except as set
forth on Schedule 5.17. 1.33 1.34 Employee Controversies . There are no strikes,
work stoppages or controversies pending or threatened between the Borrower or
any Subsidiary and any of its employees, other than employee grievances arising
in the ordinary course of business, which, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. 1.35 1.36 Material
Agreements . Neither the Borrower nor any Subsidiary is a party to any agreement
or instrument or subject to any charter or other corporate restriction which
could reasonably be expected to have a Material Adverse Effect. Neither the
Borrower nor any Subsidiary is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
agreement to which it is a party, which default could reasonably be expected to
have a Material Adverse Effect. 1.37 1.38 Hazardous Materials . Neither the
Borrower nor any Subsidiary has received any notice to the effect that its
operations are not in compliance with any of the requirements of applicable
federal, state and local environmental, health and safety statutes and
regulations (hereinafter "Environmental Laws") with respect to, or are the
subject of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release of any toxic or hazardous waste or
substance into the environment. Neither the Borrower nor any Subsidiary has
caused or permitted any toxic or hazardous waste or product to be disposed of,
either on or under real property legally or beneficially owned or operated by
the Borrower or any Subsidiary, that could reasonably be expected to have a
Material Adverse Effect. No such real property has ever been used as a dump site
or storage site for any toxic or hazardous waste, substance or product that
could reasonably be expected to have a Material Adverse Effect. The failure, if
any, of the Borrower or any Subsidiary, in connection with the operation of
their business, to obtain or be in compliance with any permit, certificate,
license, approval and other authorization, or to file any notification or report
relating to chemical substances, air emissions, effluent discharges and storage,
treatment, transport and disposal has not had and could not reasonably be
expected to have, a Material Adverse Effect. The Borrower and its Subsidiaries
have no liabilities with respect to toxic or hazardous waste or product, and no
facts or circumstances exist which could give rise to liabilities with respect
to toxic or hazardous waste or product, which, in either case, have or could
reasonably be expected to have a Material Adverse Effect. Except as disclosed on
Schedule 5.20, the Borrower and its Subsidiaries have no liabilities exceeding
$100,000 with respect to toxic or hazardous waste or product and no facts or
circumstances exist which could give rise to such liabilities with respect to
toxic or hazardous waste product. None of the matters disclosed on Schedule
5.20, have or could reasonably be expected to have a Material Adverse Effect. As
of the date hereof, the Borrower and its Subsidiaries have no liabilities
exceeding $100,000 with respect to compliance with applicable federal, state and
local laws, statutes, codes, rules or regulations relating to the protection of
the air and atmosphere, including, without limitation, the Clean Air Act, 42
U.S.C. ss. 7401 et seq., and the Illinois Air Pollution Rules and Regulations,
35 Ill. Admin. Code ss. 201.101 et seq. (collectively, "Air Regulations"), and
no facts or circumstances exist which could give rise to such liabilities with
respect to compliance with applicable Air Regulations, and the operation and
production of the Borrower and its Subsidiaries will not be materially impacted
or affected by Borrower's and its Subsidiaries' compliance with applicable Air
Regulations. 1.39 1.40 Year 2000 . The Borrower has made a full and complete
assessment of the Year 2000 Issues and has a realistic and achievable program
for remediating the Year 2000 Issues on a timely basis (the "Year 2000
Program"). Based on such assessment and on the Year 2000 Program the Borrower
does not reasonably anticipate that Year 2000 Issues will have a Material
Adverse Effect. 1.41 1.42 Insurance . Each of the Borrower and each Subsidiary
carries and has in existence insurance which is adequate to protect it. Schedule
5.22 completely and accurately summarizes the property and casualty insurance in
existence and carried by the Borrower applicable to its domestic operations and
includes the insurer's or insurers' name(s), policy number(s), expiration
date(s), amount(s) of coverage, type(s) of coverage, exclusion(s), and
deductibles. Schedule 5.22 also includes similar information, and describes any
reserves, relating to any self-insurance program covering the domestic
operations of the Borrower or any Subsidiary that is in effect. 1.43 1.44
Disclosure . None of the (a) information, exhibits or reports furnished or to be
furnished by the Borrower or any Subsidiary to the Agent or to any Lender in
connection with the negotiation of the Loan Documents, or (b) representations or
warranties of the Borrower or any Subsidiary contained in this Agreement, the
other Loan Documents or any other document, certificate or written statement
furnished to the Agent or the Lenders by or on behalf of the Borrower or any
Subsidiary for use in connection with the transactions contemplated by this
Agreement, contained, contains or will contain any untrue statement of a
material fact or omitted, omits or will omit to state a material fact necessary
in order to make the statements contained herein or therein not misleading in
light of the circumstances in which the same were made. The pro forma financial
information contained in such materials is based upon good faith estimates and
assumptions believed by the Borrower to be reasonable at the time made. There is
no fact known to the Borrower (other than matters of a general economic nature)
that has had or could reasonably be expected to have a Material Adverse Effect
and that has not been disclosed herein or in such other documents, certificates
and statements furnished to the Lenders for use in connection with the
transactions contemplated by this Agreement. 1.45 1.46 Contracts . The Borrower
has no actual knowledge that any party is in default under any material
contract, agreement, franchise, lease, permit, consent, license or commitment
applicable thereto. Without limiting the generality of the foregoing, the
Borrower has no actual knowledge that any equipment necessary for the continued
operation of its businesses (and those of its Subsidiaries) as now conducted,
and as proposed to be conducted, is being utilized, operated and maintained
other than in conformity in all material respects with the provisions of such
contracts, agreements, franchises, leases, permits, consents and licenses
applicable thereto.
1 ARTICLE COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
1.1 Financial Reporting . The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, consistently applied, and furnish
to the Lenders:
(a) As soon as practicable and in any event within 90 days after the close of
each of its fiscal years, an unqualified audit report certified by
independent certified public accountants, acceptable to the Lenders,
prepared in accordance with Agreement Accounting Principles on a
consolidated and consolidating basis (consolidating statements need not be
certified by such accountants) for itself and its Subsidiaries, including
balance sheets as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash flows,
accompanied by (i) any management letter prepared by said accountants, (ii)
a certificate of said accountants that, in the course of the examination
necessary for their certification of the foregoing, they have obtained no
knowledge of any Default or Unmatured Default, or if, in the opinion of
such accountants, any Default or Unmatured Default shall exist, stating the
nature and status thereof, (iii) a letter from said accountants addressed
to the Lenders acknowledging that the Lenders are extending credit in
primary reliance on such financial statements and authorizing such
reliance, and (iv) a certificate describing any changes which would be
required to be made to Schedules 5.9, 5.10, 5.16, 5.20 and 5.22 in order
------------- ---- ---- ---- ---- to make such Schedules accurate as of
such date.
(a) As soon as practicable and in any event within 45 days after the close of
the first three quarterly periods of each of its fiscal years, for itself
and its Subsidiaries, consolidated and consolidating unaudited balance
sheets as at the close of each such period and consolidated and
consolidating profit and loss and reconciliation of surplus statements and
a statement of cash flows for the period from the beginning of such fiscal
year to the end of such quarter, all certified by its chief financial
officer.
(a) As soon as practicable and in any event within 30 days after the end of
each month, for itself and its Subsidiaries, consolidated and consolidating
unaudited profit and loss and reconciliation of surplus statements and a
statement of cash flows and an unaudited balance sheet of the Borrower and
its Subsidiaries as at the end of such monthly period and for the period
from the beginning of such fiscal year to the end of such monthly period,
setting forth in each case in comparative form consolidated figures for the
corresponding period in the preceding fiscal year and to the projections
delivered for such fiscal year, all prepared in accordance with Agreement
Accounting Principles and in reasonable detail and all certified by the
chief financial officer of the Borrower.
(a) As soon as available, but in any event not later than the last Business Day
in February of each year, a copy of the plan and forecast (including a
projected consolidated and consolidating balance sheet, income statement
and funds flow statement) of the Borrower and its Subsidiaries for such
year.
(a) Together with the financial statements required by clauses (a) and (b)
above, a compliance certificate in substantially the form of Exhibit C
hereto signed by its chief financial officer showing the calculations
necessary to determine compliance with this Agreement and stating that no
Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(a) Within 270 days after the close of each fiscal year, a statement of the
Unfunded Liabilities of each Single Employer Plan, certified as correct by
an actuary enrolled under ERISA.
(a) As soon as possible and in any event within 10 days after the Borrower
knows that any Reportable Event has occurred with respect to any Plan, a
statement, signed by the chief financial officer of the Borrower,
describing said Reportable Event and the action which the Borrower proposes
to take with respect thereto.
(a) As soon as possible and in any event within 10 days after receipt by the
Borrower, a copy of (i) any notice or claim to the effect that the Borrower
or any of its Subsidiaries is or may be liable to any Person as a result of
the release by the Borrower, any of its Subsidiaries, or any other Person
of any toxic or hazardous waste or substance into the environment, and (ii)
any notice alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the Borrower or any of
its Subsidiaries, which, in either case, could reasonably be expected to
have a Material Adverse Effect.
(a) Promptly upon the furnishing thereof to the shareholders of the Borrower,
copies of all financial statements, reports and proxy statements so
furnished.
(a) Promptly upon the filing thereof, copies of all registration statements and
annual, quarterly, monthly or other regular reports which the Borrower or
any of its Subsidiaries files with the Securities and Exchange Commission.
(a) Promptly upon the execution thereof, copies of the 1998 Senior Notes and
1998 Senior Note Agreement.
(a) Such other information (including non-financial information) as the Agent
or any Lender may from time to time reasonably request.
1.1 Use of Proceeds . The Borrower will, and will cause each Subsidiary to, use
the proceeds of the Loans to provide funds for repurchases of the Borrower's
common stock and common stock warrants, Purchases and Investments in joint
ventures and to meet the working capital needs of the Borrower and its
Subsidiaries. The Borrower will not, nor will it permit any Subsidiary to, use
any of the proceeds of the Advances (a) to purchase or carry any Margin Stock or
(b) in connection with any hostile takeover.
1.2
1.3 Notice of Default . The Borrower will, and will cause each Subsidiary to,
give prompt notice in writing to the Lenders of the occurrence of any Default or
Unmatured Default and of any other development, financial or other, which could
reasonably be expected to have a Material Adverse Effect.
1.4
1.5 Conduct of Business . The Borrower will, and will cause each Subsidiary to,
carry on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently conducted and to
do all things necessary to remain duly incorporated, validly existing and in
good standing as a domestic corporation in its jurisdiction of incorporation and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted. 1.6 1.7 Taxes . The Borrower will, and will
cause each Subsidiary to, pay when due all taxes, assessments and governmental
charges and levies upon it or its income, profits or Property, except those
which are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves have been set aside. 1.8 1.9 Insurance . The
Borrower will, and will cause each Subsidiary to, maintain with financially
sound and reputable insurance companies insurance on all their Property in such
amounts and covering such risks as is consistent with sound business practice,
and the Borrower will furnish to the Agent or any Lender upon request full
information as to the insurance carried. 1.10 1.11 Compliance with Laws . The
Borrower will, and will cause each Subsidiary to, comply with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject, the failure to comply with which could reasonably be expected
to have a Material Adverse Effect. 1.12 1.13 Maintenance of Properties . The
Borrower will, and will cause each Subsidiary to, do all things necessary to
maintain, preserve, protect and keep its Property in good repair, working order
and condition, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be
properly conducted at all times. 1.14 1.15 Inspection . The Borrower will, and
will cause each Subsidiary to, permit the Agent and the Lenders, by their
respective representatives and agents, to inspect any of the Property, corporate
books and financial records of the Borrower and each Subsidiary, to examine and
make copies of the books of accounts and other financial records of the Borrower
and each Subsidiary, and to discuss the affairs, finances and accounts of the
Borrower and each Subsidiary with, and to be advised as to the same by, their
respective officers at such reasonable times and intervals as the Lenders may
designate. The Borrower will keep or cause to be kept, and cause each Subsidiary
to keep or cause to be kept, appropriate records and books of account in which
complete entries are to be made reflecting its and their business and financial
transactions, such entries to be made in accordance with Agreement Accounting
Principles consistently applied. 1.16 1.17 Capital Stock and Dividends . If a
Default or an Unmatured Default has occurred and is continuing or would occur
after giving effect thereto, the Borrower will not, nor will it permit any
Subsidiary to, (a) issue any preferred stock, other capital stock or any debt or
equity securities of any kind, or (b) declare or pay any dividends on its
capital stock (other than dividends payable in its own capital stock) or redeem,
repurchase or otherwise acquire or retire any of its capital stock at any time
outstanding, except that any Subsidiary may declare and pay dividends to the
Borrower. 1.18 1.19 Indebtedness . The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except: 1.20
(a) the Loans;
(a) Indebtedness existing on the date hereof and described in Schedule 5.17
hereto; -------------
(a) the 1993 Senior Notes and the 1998 Senior Notes, provided that the 1998
Senior Notes shall be issued substantially on the terms set forth on
Schedule 6.11 hereto and otherwise on terms and pursuant to documentation
satisfactory to the Agent;
(a) Rate Hedging Obligations related to the Loans;
(a) Letters of Credit with an aggregate face amount not to exceed $8,000,000 at
any one time outstanding or a credit facility providing for the issuance
thereof;
(a) Rate Hedging Obligations related to foreign currency exchange transactions
entered into in the ordinary course of business; and
(a) such additional Indebtedness incurred by the Borrower or any Subsidiary
which is either unsecured or secured by liens permitted under Section
6.17(f) as would not cause the Debt Ratio (determined, as to the EBITDA
component thereof, as of the end of the previous quarter, but after giving
effect to the incurrence of such Indebtedness), to exceed 2.5 to 1.0 as of
the date of such incurrence.
1.1 Merger . The Borrower will not, nor will it permit any Subsidiary to, merge
or consolidate with or into or sell all or substantially all of its assets to
any other Person; provided, that the Borrower or any Subsidiary may enter into
any merger or consolidation with or sell all or substantially all of its assets
to, a corporation organized under the laws of any state of the United States
(the "surviving corporation"), so long as (a) any entity with or into which the
Borrower is being merged or consolidated or to which all or substantially all of
the Borrower's assets are being sold assumes the obligations of the Borrower
under the Loan Documents by written instrument reasonably acceptable in form and
substance to the Required Lenders, (b) no Default or Unmatured Default has
occurred and is continuing or would occur after giving effect thereto, including
without limitation any Default or Unmatured Default under Section 7.14, (c)
after giving effect thereto, the Borrower could incur an additional $1 of
Indebtedness pursuant to Section 6.11(g), (d) the Borrower has provided the
Lenders with pro forma financial statements giving effect thereto which evidence
compliance with Section 6.28 hereof, (e) the entity with or into which the
Borrower or such Subsidiary is being merged or consolidated or to which all or
substantially all of the Borrower's or such Subsidiary's assets are being sold
is in substantially the same or a similar type of business as the Borrower or
such Subsidiary and (f) such transaction is not a hostile takeover. 1.2 1.3 Sale
of Assets . The Borrower will not, nor will it permit any Subsidiary to, lease,
sell, transfer or otherwise dispose of its Property, to any other Person except
for (a) sales of inventory in the ordinary course of business, and (b) so long
as no Default or Event of Default has occurred and is continuing, leases, sales,
transfers or other dispositions that, together with all other Property of the
Borrower and its Subsidiaries previously leased, sold or disposed of (other than
inventory sold in the ordinary course of business) as permitted by this Section
6.13, (i) in any fiscal year do not constitute more than 5% of the consolidated
assets of the Borrower and its Subsidiaries, as would be shown in the
consolidated financial statements of the Borrower and its Subsidiaries as at the
end of the quarter next preceding the date of determination, or (ii) for the
period from the Closing Date through the date of determination do not constitute
more than 25% of such assets. 1.4 1.5 Sale and Leaseback . The Borrower will
not, nor will it permit any Subsidiary to, sell or transfer any of its Property
in order to concurrently or subsequently lease as lessee such or similar
Property. 1.6 1.7 Investments and Purchases . The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including,
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or create any Subsidiary or become or
remain a partner in any partnership or joint venture, or make any Purchases of
any Person, except: 1.8 (a) Short-term obligations of, or fully guaranteed by,
the United States of America;
(a) Commercial paper rated A-l or better by Standard and Poor's Rating
Services, a division of the McGraw Hill Companies, or P-l or better by
Moody's Investors Service, Inc.;
(a) Demand deposit accounts maintained in the ordinary course of business;
(a) Negotiable certificates of deposit issued by and time deposits with
domestic commercial banks having capital and surplus in excess of
$250,000,000;
(a) Municipal bonds rated BBB or better by Standard and Poor's Rating Services,
a division of the McGraw Hill Companies;
(a) Existing Investments in Subsidiaries and other Investments in existence on
the date hereof and described in Schedule 6.15 hereto;
(a) Purchases by the Borrower or any Subsidiary, so long as (i) no Default or
Unmatured Default has occurred and is continuing or would occur after
giving effect thereto, (ii) after giving effect thereto, the Borrower could
incur an additional $1 of Indebtedness pursuant to Section 6.11(g),
--------------- (iii) the Borrower has provided the Lenders with pro forma
financial statements giving effect thereto which evidence compliance with
Section 6.28 hereof, (iv) the entity being acquired is ------------ in
substantially the same or a similar type of business as the Borrower and
(v) such transaction is not a hostile takeover; and
(a) So long as no Default or Unmatured Default has occurred and is continuing,
other Investments (including without limitation the creation of and the
making of Investments in newly-formed Subsidiaries) which do not exceed, in
the aggregate at one time outstanding, fifteen percent (15%) of the
aggregate Capitalization of the Borrower and its Subsidiaries; provided,
that the -------- Borrower shall not be required to dispose of any
Investment due to (i) a decrease in Capitalization following the date on
which such Investment was made or (ii) the occurrence of a Default or an
Unmatured Default.
1.1 Contingent Obligations . The Borrower will not, nor will it permit any
Subsidiary to, make or suffer to exist any Contingent Obligation (including,
without limitation, any Contingent Obligation with respect to the obligations of
a Subsidiary), except by endorsement of instruments for deposit or collection in
the ordinary course of business. 1.2 1.3 Liens . The Borrower will not, nor will
it permit any Subsidiary to, create, incur, or suffer to exist any Lien in, of
or on the Property of the Borrower or any of its Subsidiaries, except: 1.4 (a)
Liens for taxes, assessments or governmental charges or levies on its Property
if the same shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with generally
accepted principles of accounting shall have been set aside on its books;
(a) Liens imposed by law, such as carriers', warehousemen's and mechanics'
liens and other similar liens arising in the ordinary course of business
which secure payment of obligations not more than 60 days past due or which
are being contested in good faith by appropriate proceedings and for which
adequate reserves shall have been set aside on its books;
(a) Liens arising out of pledges or deposits under worker's compensation laws,
unemployment insurance, old age pensions, or other social security or
retirement benefits, or similar legislation;
(a) Utility easements, building restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with
respect to properties of a similar character and which do not in any
material way affect the marketability of the same or interfere with the use
thereof in the business of the Borrower or the Subsidiaries;
(a) Liens existing on the date hereof and described in Schedule 6.17 hereto;
and -------------
(a) Purchase money Liens in connection with the acquisition of assets intended
to be used in the ordinary course of business; provided, that (i) such
Liens attached only to the tangible -------- Property (including
improvements to previously owned Property) so purchased or leased, (ii) the
Indebtedness secured by any such Lien does not exceed eighty percent (80%)
of the purchase price of the Property or improvements, as applicable, and
(iii) the aggregate Indebtedness securing all such Liens at any one time
outstanding does not exceed five percent (5%) of the aggregate
Capitalization of the Borrower and its Subsidiaries.
1.1 Capital Expenditures . If a Default or an Unmatured Default has occurred and
is continuing, the Borrower will not, nor will it permit any Subsidiary to,
expend, or be committed to expend for Capital Expenditures (including, without
limitation, for the acquisition of fixed assets) during any fiscal year in
excess of the amount of Capital Expenditures estimated to be expended in such
fiscal year by the Borrower in the projections delivered to the Lenders pursuant
to Section 6.1(d).
1.1 Lease Rentals . The Borrower will not, nor will it permit any Subsidiary to,
create, incur or suffer to exist obligations for Rentals in excess of $5,000,000
during any one fiscal year on a non-cumulative basis in the aggregate for the
Borrower and its Subsidiaries.
1.1 Year 2000 . The Borrower will take and will cause each of its Subsidiaries
to take all such actions as are reasonably necessary to successfully implement
the Year 2000 Program and to assure that Year 2000 Issues will not have a
Material Adverse Effect. At the request of the Agent or any Lender, the Borrower
will provide a description of the Year 2000 Program, together with any updates
or progress reports with respect thereto. 1.2 1.3 Letters of Credit . The
Borrower will not, nor will it permit any Subsidiary to, apply for or become
liable upon any Letter of Credit except as permitted under Section 6.11(e).
1.1 Affiliates . The Borrower will not, and will not permit any Subsidiary to,
enter into any transaction (including, without limitation, the purchase or sale
of any Property or service) with, or make any payment or transfer to, any
Affiliate except in the ordinary course of business 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 the Borrower or such Subsidiary would obtain in a comparable arms-length
transaction. 1.2 1.3 Amendments to Agreements . The Borrower will not, and will
not permit any Subsidiary to, (a) amend, waive, modify or terminate the terms
and conditions governing any preferred stock, (b) permit any amendment, waiver
or modification of the Tax Sharing Agreement which is materially adverse to the
interests of the Lenders or terminate the Tax Sharing Agreement or (c) if a
Default or an Unmatured Default has occurred and is continuing, directly or
indirectly voluntarily prepay, defease or in substance defease, purchase,
redeem, retire or otherwise acquire any Senior Note or redeem or retire any
preferred stock. 1.4 (a) Environmental Matters . If the Borrower or any
Subsidiary receives notice of any of the following: (i) the issuance of a
complaint, notice or citation alleging a violation of any Environmental Law or
regulation by the Borrower or any Subsidiary; (ii) the issuance of an
administrative or judicial complaint or order against the Borrower or any
Subsidiary seeking or requiring that action be taken to respond to or clean up a
"release" of "hazardous substances" (as those terms are defined in the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. ss.9601 et seq. ("CERCLA")) into the environment; or (iii) a
notice alleging that the Borrower or any Subsidiary may be liable or responsible
for costs associated with a response to or cleanup of a "release" of "hazardous
substances" (as those terms are defined in CERCLA), and if, based upon
information reasonably available at the time of receipt, the Borrower or any
Subsidiary expects that any such complaint, notice, citation or order is
reasonably likely to result in the payment of fines, penalties, compliance
costs, clean-up costs or other associated costs by the Borrower or any
Subsidiary in excess of an aggregate of $100,000, then the Borrower shall
provide the Agent with a copy of such notice within thirty days of receipt
thereof by the Borrower or such Subsidiary. In addition, if at any time
subsequent to any such notice, any information subsequently becomes available to
the Borrower or any Subsidiary which leads the Borrower to expect that any such
complaint, notice, or citation is reasonably likely to result in the payment of
fines, penalties, compliance costs, clean-up costs or other associated costs by
the Borrower or any Subsidiary in excess of an aggregate of $100,000, then the
Borrower shall provide the Agent with a copy of such notice and a summary of
such information within ten days after receipt of such information by the
Borrower or any Subsidiary. (b) (c) Within ten days of the Borrower or any
Subsidiary having learned of the proposal, enactment or
promulgation of any federal, state or local environmental law
or regulation which could reasonably be expected to have a
Material Adverse Effect, the Borrower shall provide the Agent
with written notice thereof.
1.1 Agreements as to Prohibited Acts . Neither the Borrower nor any subsidiary
shall agree or in any manner commit itself to take or fail to take any action
which, if taken or not taken, as applicable, would constitute a breach of this
Agreement. 1.2 1.3 Change in Corporate Structure; Fiscal Year . The Borrower
shall not, nor shall it permit any Subsidiary to, (a) permit any amendment or
modification to be made to its certificate or articles of incorporation or
by-laws which is materially adverse to the interests of the Lenders (provided
that the Borrower shall notify the Agent of any other amendment or modification
thereto as soon as practicable thereafter) or (b) change its fiscal year to end
on any date other than December 31 of each year. 1.4 1.5 Inconsistent Agreements
. The Borrower shall not, nor shall it permit any Subsidiary to, enter into any
indenture, agreement, instrument or other arrangement which (a) directly or
indirectly prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon, the incurrence of
the Obligations, the granting of Liens pursuant to the Loan Documents, the
amending of the Loan Documents or the ability of any Subsidiary to declare or
pay dividends or otherwise advance funds to its parent or (b) contains any
provision which would be violated or breached by the making of Advances or by
the performance by the Borrower of any of its obligations under any Loan
Document. 1.6 1.7 Financial Covenants. 1.8
6.28.1 Interest Expense Coverage Ratio . As of the end of each
of its fiscal quarters, the Borrower will cause the Interest Expense
Coverage Ratio for the then most-recently ended four fiscal quarters to
be not less than 4.0 to 1.0.
6.28.2. Debt Ratio . As of the end of each of its fiscal
quarters, the Borrower will cause the Debt Ratio to be not more than
2.5 to 1.0.
6.28.3. Minimum Net Worth. The Borrower will at all times
maintain Net Worth of not less than (a) $70,000,000 through January 1,
2000, (b) $75,000,000 through December 30, 2000, (c) $80,000,000
through December 29, 2001, (d) $85,000,000 through December 28, 2002
and (e) $90,000,000 through January 3, 2004.
1 ARTICLE DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
1.1 Any representation or warranty made or deemed made by or on behalf of the
Borrower or any of its Subsidiaries to the Lenders or the Agent under or in
connection with this Agreement, any Loan, or any certificate or information
delivered in connection with this Agreement or any other Loan Document shall be
false in any material respect on the date as of which made.
1.1 Nonpayment of (a) principal of any Note when due, or (b) interest upon any
Note or any commitment fee or other fee or obligations under any of the Loan
Documents within five (5) days after the same becomes due. 1.2 1.3 The breach by
the Borrower of any of the terms or provisions of Sections 6.2 or 6.10 through
6.28. 1.4 1.5 The breach by the Borrower (other than a breach which constitutes
a Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of
this Agreement which is not remedied within five (5) days after written notice
from the Agent or any Lender. 1.6 1.7 The default by the Borrower or any of its
Subsidiaries in the performance of any term, provision or condition contained in
any agreement or agreements under which any Indebtedness aggregating in excess
of $2,000,000 was created or is governed, or the occurrence of any other event
or the existence of any other condition, the effect of any of which is to cause,
or to permit the holder or holders of such Indebtedness to cause, such
Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be
due and payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the stated maturity thereof; or the Borrower or any of its
Subsidiaries shall become unable, not pay, or admit in writing its inability to
pay, its debts generally as they become due. 1.8 1.9 The Borrower or any of its
Subsidiaries shall (a) have an order for relief entered with respect to it under
the Federal bankruptcy laws as now or hereafter in effect, (b) make an
assignment for the benefit of creditors, (c) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (d) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (e) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
Section 7.6, or (f) fail to contest in good faith any appointment or proceeding
described in Section 7.7. 1.10 1.11 Without the application, approval or consent
of the Borrower or any of its Subsidiaries, a receiver, trustee, examiner,
liquidator or similar official shall be appointed for the Borrower or any of its
Subsidiaries or any Substantial Portion of its Property, or a proceeding
described in Section 7.6(d) shall be instituted against the Borrower or any of
its Subsidiaries and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of thirty (30) consecutive days.
1.12 1.13 Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of (each a "Condemnation"),
all or any portion of the Property of the Borrower and its Subsidiaries which,
when taken together with all other Property of the Borrower and its Subsidiaries
so condemned, seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such Condemnation occurs,
constitutes a Substantial Portion. 1.14 1.15 The Borrower or any of its
Subsidiaries shall fail within thirty days to pay, bond or otherwise discharge
any judgment or order for the payment of money in excess of $500,000 (or
multiple judgments or orders for the payment of an aggregate amount in excess of
$2,000,000), which is not stayed on appeal or otherwise being appropriately
contested in good faith. 1.16 1.17 Any Unfunded Liabilities in excess of
$3,000,000 under any Single Employer Plan shall exist or any Reportable Event
shall occur in connection with any Plan. 1.18 1.19 The Borrower or any other
member of the Controlled Group shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred withdrawal liability to such
Multiemployer Plan. 1.20 1.21 The Borrower or any other member of the Controlled
Group shall have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated has been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by any amount. 1.22
1.23 The Borrower or any of its Subsidiaries shall be the subject of any
proceeding or investigation pertaining to the discovery of any toxic or
hazardous waste or substance on the leased or owned property of the Borrower or
any of its Subsidiaries, the release by the Borrower or any of its Subsidiaries,
or any other Person of any toxic or hazardous waste or substance into the
environment, or any violation of any federal, state or local environmental,
health or safety law or regulation, which, in either case, could reasonably be
expected to have a Material Adverse Effect. 1.24 1.25 Any Change in Control
shall occur. 1.26
1 ARTICLE ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
- ----------------------------------------------
1.1 Acceleration . If any Default described in Section 7.6 or 7.7 occurs with
respect to the Borrower, the obligations of the Lenders to make Loans hereunder
shall automatically terminate and the Obligations shall immediately become due
and payable without any election or action on the part of the Agent or any
Lender. If any other Default occurs, the Required Lenders (or the Agent with the
consent of the Required Lenders) may terminate or suspend the obligations of the
Lenders to make Loans hereunder, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which the Borrower hereby expressly waives.
Within ten (10) Business Days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, if the Required Lenders (in their sole discretion) shall so direct, the
Agent shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
1.1 Amendments . Subject to the provisions of this Article VIII, the Required
Lenders (or the Agent with the consent in writing of the Required Lenders)
and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder
or waiving any Default hereunder; provided, however, that no such
supplemental agreement shall, without the consent of each Lender affected
thereby:
1.2 (a) Extend the final maturity of any Loan or Note or reduce
the principal amount thereof, or reduce the rate or extend the time of
payment of interest or fees thereon;
(a) Reduce the percentage specified in the definition of Required Lenders;
(a) Reduce the amount or extend the payment date for the mandatory payments
required under Section 2.2, or increase the amount of the Revolving Credit
Commitment of any Lender hereunder, or permit the Borrower to assign its
rights under this Agreement;
(a) Extend the Facility Termination Date;
(a) Amend this Section 8.2 or any of Sections 3.1, 3.2 and 3.4; or -----------
------------ --- ---
(a) Consent to any assignment by the Borrower of the Obligations except to the
extent expressly permitted by Section 6.12.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under Section 12.3.2 without obtaining the consent of any
other party to this Agreement.
1.1 Preservation of Rights . No delay or omission of the Lenders or the Agent to
exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.2, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Obligations have been paid in
full.
1 ARTICLE GENERAL PROVISIONS
1.1 Survival of Representations . All representations and warranties of the
Borrower contained in this Agreement or of the Borrower or any Subsidiary
contained in any Loan Document shall survive delivery of the Notes and the
making of the Loans herein contemplated.
1.1 Governmental Regulation . Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation. 1.2 1.3 Taxes . Any taxes (excluding taxes on
the overall net income of any Lender) or other similar assessments or charges
payable or ruled payable by any governmental authority in respect of the Loan
Documents shall be paid by the Borrower, together with interest and penalties,
if any. 1.4 1.5 Headings . Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents. 1.6 1.7 Entire Agreement . The Loan
Documents embody the entire agreement and understanding among the Borrower, the
Agent and the Lenders and supersede all prior agreements and understandings
among the Borrower, the Agent and the Lenders relating to the subject matter
thereof other than the fee letter dated July 15, 1993 in favor of First Chicago,
the letter dated February 27, 1996 between the Borrower and First Chicago and
the letter dated July 22, 1998 between the Borrower and First Chicago. 1.8 1.9
Several Obligations; Benefits of this Agreement . The respective obligations of
the Lenders hereunder are several and not joint and no Lender shall be the
partner or agent of any other (except to the extent to which the Agent is
authorized to act as such). The failure of any Lender to perform any of its
obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 9.7, 9.11 and 10.10 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.
1.10 (a) Expenses; Indemnification . The Borrower shall reimburse the Agent and
the Arranger for any costs, internal charges and out-of-pocket expenses
(including attorneys' fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent) paid or incurred by the Agent or the
Arranger in connection with the preparation, negotiation, execution, delivery,
syndication, review, amendment, modification, and administration of the Loan
Documents. The Borrower also agrees to reimburse the Agent, the Arranger and the
Lenders for any costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Agent, the Arranger and
the Lenders, which attorneys may be employees of the Agent, the Arranger or the
Lenders) paid or incurred by the Agent, the Arranger or any Lender in connection
with the collection and enforcement of the Loan Documents. The Borrower further
agrees to indemnify the Agent, the Arranger and each Lender, its directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all expenses
of litigation or preparation therefor whether or not the Agent or any Lender is
a party thereto) which any of them may pay or incur arising out of or relating
to this Agreement, the other Loan Documents, the transactions contemplated
hereby or thereby or the direct or indirect application or proposed application
of the proceeds of any Loan hereunder. The obligations of the Borrower under
this Section shall survive the termination of this Agreement. (b) (c) (b) The
Borrower shall indemnify, pay and hold the Agent, the Arranger and each Lender
harmless from and against any and all losses, costs (including, without
limitation, court costs and attorneys' fees), liabilities, injuries, expenses,
claims and damages whatsoever incurred or suffered by or asserted against the
Agent, the Arranger or such Lender by reason of any violation of any applicable
Environmental Law for which the Borrower or any of its Subsidiaries is liable or
which is related to any real estate owned, leased or operated by the Borrower or
any of its Subsidiaries, or by reason of the imposition of any governmental lien
for the recovery of environmental cleanup or response costs expended by reason
of any such violation, or by reason of any breach of any representation,
warranty or affirmative or negative covenant of this Agreement, including,
without limitation, by reason of any matter disclosed in Schedule 5.20 hereto;
provided, that to the extent that the Borrower or any of its Subsidiaries is
strictly liable under any such statute, order or regulation, the Borrower's
obligation to the Agent, the Arranger and each Lender under this indemnity shall
likewise be without regard to fault on the part of the Borrower or any of its
Subsidiaries with respect to the violation of law which results in liability to
the Agent, the Arranger or any Lender. The provisions of and undertakings and
indemnification set out in this Section 9.7 shall survive the termination of
this Agreement and the payment and satisfaction of the Obligations, and shall
continue to be the liability, obligation and indemnification of the Borrower,
binding upon the Borrower. 1.11 Numbers of Documents . All statements, notices,
closing documents and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders. 1.12 1.13 Accounting . Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles. 1.14 1.15 Severability of Provisions . Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable. 1.16 1.17 Nonliability of Lenders . The relationship between
the Borrower and the Lenders and the Agent shall be solely that of borrower and
lender. Neither the Agent, the Arranger nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Agent, the Arranger nor any Lender
undertakes any responsibility to the Borrower to review or inform the Borrower
of any matter in connection with any phase of the Borrower's business or
operations. The Borrower shall rely entirely upon its own judgment with respect
to its business, and any review, inspection or supervision of, or information
supplied to the Borrower by the Agent, the Arranger or the Lenders is for the
protection of the Agent, the Arranger and the Lenders and neither the Borrower
nor any other Person is entitled to rely thereon. The Borrower (a) agrees that
neither the Agent, the Arranger nor any Lender shall have liability to the
Borrower (whether sounding in tort, contract or otherwise) for losses suffered
by the Borrower in connection with, arising out of, or in any way related to,
the transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined by a judgment of a court that is binding on the Agent,
the Arranger or such Lender, final and not subject to review on appeal, that
such losses were the result of acts or omissions on the part of the Agent, the
Arranger or such Lender, as the case may be, constituting gross negligence,
willful misconduct or knowing violations of law, and (b) waives, releases and
agrees not to sue upon any claim against the Agent, the Arranger or any Lender
(whether sounding in tort, contract or otherwise) except a claim based upon
gross negligence, willful misconduct or knowing violations of law. Whether or
not such damages are related to a claim that is subject to the waiver effected
above and whether or not such waiver is effective, none of the Agent, the
Arranger nor any Lender shall have any liability with respect to, and the
Borrower hereby waives, releases and agrees not to sue for, any special,
indirect or consequential damages suffered by the Borrower in connection with,
arising out of, or in any way related to the transactions contemplated or the
relationship established by the Loan Documents, or any act, omission or event
occurring in connection therewith, unless it is determined by a judgment of a
court that is binding on the Agent, the Arranger or such Lender, as the case may
be, final and not subject to review on appeal, that such damages were the result
of acts or omissions on the part of the Agent, the Arranger or such Lender, as
the case may be, constituting gross negligence, willful misconduct or knowing
violations of law. 1.18 1.19 CHOICE OF LAW . THE LOAN DOCUMENTS (OTHER THAN
THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF LAWS
PROVISIONS, OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS. 1.20 1.21 CONSENT TO JURISDICTION . THE BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY
LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE AGENT OR ANY
LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS;
PROVIDED, THAT SUCH PROCEEDINGS MAY BE BROUGHT IN OTHER COURTS IF JURISDICTION
MAY NOT BE OBTAINED IN A COURT IN CHICAGO, ILLINOIS. 1.22 1.23 WAIVER OF JURY
TRIAL . THE BORROWER, THE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
1.24 1.25 Disclosure . The Borrower and each Lender hereby (a) acknowledge and
agree that First Chicago and/or its Affiliates from time to time may hold other
investments in, make other loans to or have other relationships with the
Borrower, including, without limitation, in connection with (i) the placement of
the 1993 Senior Notes and (ii) any interest rate hedging instruments or
agreements or swap transactions, and (b) waive any liability of First Chicago or
such Affiliate to the Borrower or any Lender, respectively, arising out of or
resulting from such investments, loans or relationships other than liabilities
arising out of the gross negligence or willful misconduct of First Chicago or
its Affiliates. The Borrower hereby acknowledges and agrees that each Lender
and/or its Affiliates from time to time may hold other investments in, make
other loans to or have other relationships with the Borrower and waives any
liability of such Lender or Affiliate to the Borrower in connection with the
transactions contemplated by this Agreement and to the extent arising out of or
resulting from such investments, loans, or relationships, other than liabilities
arising out of the gross negligence or willful misconduct of such Lender or
Affiliate. 1.26 Counterparts . This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Borrower, the Agent and the Lenders and each party has notified the Agent by
telex or telephone, that it has taken such action. 1.27 1.28 9.17 Departing
Lenders. Upon the effectiveness of this Agreement and the payment to the
Departing Lenders of the Obligations due them, (a) the Departing Lenders shall
have no further Commitments hereunder and (b) the Departing Lenders shall cease
to have any rights or duties as Lenders hereunder; provided however, that the
Departing Lenders shall remain entitled to indemnities hereunder which by their
terms survive termination of this Agreement. 1.29 1.30
1 ARTICLE THE AGENT
1.1 Appointment . The First National Bank of Chicago is hereby appointed by each
of the Lenders as its contractual representative hereunder and under each other
Loan Document, and each of the Lenders, subject to the provisions of Section
10.11, irrevocably authorizes the Agent to act as the contractual representative
of such Lender with the rights and duties expressly set forth herein and in the
other Loan Documents. The Agent agrees to act as such contractual representative
upon the express conditions contained in this Article X. Notwithstanding the use
of the defined term "Agent," it is expressly understood and agreed that the
Agent shall not have any fiduciary responsibilities to any Lender by reason of
this Agreement or any other Loan Document and that the Agent is merely acting as
the contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105 of the
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents.
1.1 Powers . The Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder, except any action specifically provided
by the Loan Documents to be taken by the Agent. 1.2 1.3 General Immunity .
Neither the Agent nor any of its directors, officers, agents or employees shall
be liable to the Borrower or any Lender for any action taken or omitted to be
taken by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except for its or their own gross negligence or willful
misconduct. 1.4 1.5 No Responsibility for Loans, Recitals, etc. Neither the
Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (a) any
statement, warranty or representation made in connection with any Loan Document
or any borrowing hereunder, (b) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document, (c) the
satisfaction of any condition specified in Article IV, except receipt of items
required to be delivered to the Agent and not waived at closing, or (d) the
validity, effectiveness or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith. 1.6 1.7 Action on
Instructions of Lenders . The Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder and under any other Loan
Document in accordance with written instructions signed by the Required Lenders,
and such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders and on all holders of Notes. The Agent
shall be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action. 1.8 1.9 Employment of Agents and Counsel . The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document. 1.10 1.11 Reliance on
Documents; Counsel . The Agent shall be entitled to rely upon any Note, notice,
consent, certificate, affidavit, letter, telegram, statement, paper or document
believed by it to be genuine and correct and to have been signed or sent by the
proper person or persons, and, in respect to legal matters, upon the opinion of
counsel selected by the Agent, which counsel may be employees of the Agent. 1.12
1.13 Agent's Reimbursement and Indemnification . The Lenders agree to reimburse
and indemnify the Agent ratably in proportion to their respective Commitments
(a) for any amounts not reimbursed by the Borrower for which the Agent is
entitled to reimbursement by the Borrower under the Loan Documents (but not
including any agent's fees), (b) for any other expenses incurred by the Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents, and (c) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the enforcement of any of
the terms thereof or of any such other documents; provided that no Lender shall
be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. The obligations of the Lenders
under this Section 10.8 shall survive payment of the Obligations and termination
of this Agreement. 1.14 1.15 Rights as a Lender . In the event the Agent is a
Lender, the Agent shall have the same rights and powers hereunder and under any
other Loan Document as any Lender and may exercise the same as though it were
not the Agent, the Agent shall have the same obligations and responsibilities as
any Lender and the term "Lender" or "Lenders" shall, at any time when the Agent
is a Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person. The
Agent, in its individual capacity, is not obligated to remain a Lender. 1.16
1.17 Lender Credit Decision . Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents. 1.18 1.19 Successor Agent . The Agent
may resign at any time by giving written notice thereof to the Lenders and the
Borrower, and the Agent may be removed at any time with or without cause by
written notice received by the Agent from the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty days after the retiring Agent's giving notice of
resignation, then the retiring Agent may appoint, on behalf of the Borrower and
the Lenders, a successor Agent. Such successor Agent shall be a commercial bank
having capital and retained earnings of at least $150,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed Agent, and the
retiring or removed Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After any retiring or removed
Agent's resignation or removal hereunder as Agent, the provisions of this
Article X shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Agent hereunder
and under the other Loan Documents. 1.20 1.21 Notice of Default . The Agent
shall not be deemed to have knowledge or notice of the occurrence of any Default
or Unmatured Default hereunder unless the Agent has received notice from a
Lender or the Borrower referring to this Agreement describing such Default or
Unmatured Default and stating that such notice is a "notice of default". In the
event that the Agent receives such a notice, the Agent shall give prompt notice
thereof to the Lenders. Subject to the provisions of Section 10.5, the Agent
shall take any action of the type specified in this Agreement with respect to
such Default or Unmatured Default as shall be reasonably directed by the
Required Lenders (or, if so required by Section 8.2, by all Lenders); provided,
that unless and until the Agent shall have received such directions, the Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Unmatured Default as the Agent
shall determine is in the best interests of the Lenders. 1.22 1.23 Delegation to
Affiliates . The Borrower and the Lenders agree that the Agent may delegate any
of its duties under this Agreement to any of its Affiliates. Any such Affiliate
(and such Affiliate's directors, officers, agents and employees) which performs
duties in connection with this Agreement shall be subject to the obligations
relating to such duties and shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the Agent is
entitled under Articles IX and X. 1.24
1 ARTICLE SETOFF; RATABLE PAYMENTS
1.1 Setoff . In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or not
collected or available) and any other Indebtedness at any time held or owing by
any Lender to or for the credit or account of the Borrower may be offset and
applied toward the payment of the Obligations owing to such Lender, whether or
not the Obligations, or any part hereof, shall then be due.
1.1 Ratable Payments . If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Section 2.24(a), 3.1, 3.2 or 3.4) in a greater proportion than its pro-rata
share of such Loans, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of Loans. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their Loans. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made. If an amount to be setoff is to be applied to Indebtedness of the
Borrower to a Lender, other than Indebtedness evidenced by any of the Notes held
by such Lender, such amount shall be applied ratably to such other Indebtedness
and to the Indebtedness evidenced by such Notes. 1.2
1 ARTICLE BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
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1.1 Successors and Assigns . The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrower and the Lenders
and their respective successors and assigns, except that (a) the Borrower shall
not have the right to assign its rights or obligations under the Loan Documents,
and (b) any assignment by any Lender must be made in compliance with Section
12.3. Notwithstanding clause (b) of this Section, any Lender may at any time,
without the consent of the Borrower or the Agent, assign all or any portion of
its rights under this Agreement and its Notes to a Federal Reserve Bank;
provided, however, that no such assignment to a Federal Reserve Bank shall
release the transferor Lender from its obligations hereunder. The Agent may
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until such payee complies with Section 12.3 in the case of an assignment
thereof or, in the case of any other transfer, a written notice of the transfer
is filed with the Agent. Any assignee or transferee of a Note agrees by
acceptance thereof to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the holder of any
Note, shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
1.1 Participations .
1.2
12.2.1. Permitted Participants; Effect . Any Lender may, in
the ordinary course of its business and in accordance with applicable law, at
any time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such Lender under
the Loan Documents; provided, that, other than in the case of a sale of a
participation by a Lender to an Affiliate thereof, such Lender has first offered
to sell such participating interests to the other Lenders for a period of ten
(10) days for an amount equal to the face value thereof plus all amounts owing
in connection therewith. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under the
Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the holder of any such Note for all purposes under the
Loan Documents, all amounts payable by the Borrower under this Agreement shall
be determined as if such Lender had not sold such participating interests, and
the Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2. Voting Rights . Each Lender shall retain the sole
right to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than any
amendment, modification or waiver which effects any of the modifications
referenced in clauses (a) through (e) of Section 8.2.
12.2.3. Benefit of Setoff . The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section 11.1
in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents; provided, that each
Lender shall retain the right of setoff provided in Section 11.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a Lender.
1.1 Assignments .
1.2
12.3.1. Permitted Assignments . Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all or any
part of its rights and obligations under the Loan Documents; provided, that,
other than in the case of an assignment by a Lender to an Affiliate thereof,
such Lender has first offered to sell such assignment to the other Lenders for a
period of ten (10) days for an amount equal to the face value thereof plus all
amounts owing in connection therewith. Such assignment shall be substantially in
the form of Exhibit D hereto or in such other form as may be agreed to by the
parties thereto. The consent of the Agent shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not a Lender
or an Affiliate thereof. Such consent shall not be unreasonably withheld or
delayed.
12.3.2. Effect; Effective Date . Upon (a) delivery to the
Agent of a notice of assignment, substantially in the form attached as Exhibit I
to Exhibit D hereto (a "Notice of Assignment"), together with any consents
required by Section 12.3.1, and (b) payment of a $3,500 fee to the Agent for
processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. On and after the
effective date of such assignment, (a) such Purchaser shall for all purposes be
a Lender party to this Agreement and any other Loan Document executed by the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and (b)
the transferor Lender shall be released with respect to the percentage of the
Aggregate Commitment and Loans assigned to such Purchaser without any further
consent or action by the Borrower, the Lenders or the Agent. Upon the
consummation of any assignment to a Purchaser pursuant to this Section 12.3.2,
the transferor Lender, the Agent and the Borrower shall make appropriate
arrangements so that replacement Notes are issued to such transferor Lender and
new Notes or, as appropriate, replacement Notes, are issued to such Purchaser,
in each case in principal amounts reflecting their Commitment, as adjusted
pursuant to such assignment.
1.1 Dissemination of Information . The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries. 1.2 1.3
Tax Treatment . If any interest in any Loan Document is transferred to any
Transferee which is organized under the laws of any jurisdiction other than the
United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 2.24. 1.4
1 ARTICLE NOTICES
1.1 Giving Notice . Except as otherwise permitted by Section 2.8 with respect to
borrowing notices, all notices and other communications provided to any party
hereto under this Agreement or any other Loan Document shall be in writing, by
facsimile, first class U.S. mail or overnight courier and addressed or delivered
to such party at its address set forth below its signature hereto or at such
other address as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with first class postage
prepaid, return receipt requested, shall be deemed given three (3) Business Days
after deposit in the U.S. mail; any notice, if transmitted by facsimile, shall
be deemed given when transmitted; and any notice given by overnight courier
shall be deemed given when received by the addressee. Wherever under this
Agreement or under any other Loan Document any certificate or other writing is
given by any director, officer or employee of the Borrower or any Subsidiary,
such certificate or other writing shall be delivered by such director, officer
or employee on behalf of the Borrower or such Subsidiary in his or her capacity
as a director, officer or employee and not in his or her individual capacity.
1.1 Change of Address . The Borrower, the Agent and any Lender may each change
the address for service of notice upon it by a notice in writing to the other
parties hereto.
1.2
1.3
[signature pages to follow]
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
-1-
LITTELFUSE, INC.
By:
Print Name:
Title:
Address: 800 Northwest Highway
Des Plaines, Illinois 60016
Attn: Chief Financial Officer
Telecopy: (847) 824-3024
Telephone: (847) 824-1188
-1-
Commitments
$17,500,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By:
Print Name:
Title:
Address: One First National Plaza
Chicago, Illinois 60670
Attn: Karen F. Kizer
Telecopy: (312) 732-5161
Telephone: (312) 732-2330
$12,500,000 BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By:
Print Name:
Title:
Address: 231 South LaSalle Street
6th Floor
Chicago, Illinois 60697
Attn: Jim Duff
Telecopy: (312) 974-2108
Telephone: (312) 828-5964
$12,500,000 CREDIT AGRICOLE INDOSUEZ
By:
Print Name:
Title:
By:
Print Name:
Title:
Address: 55 East Monroe
Suite 4700
Chicago, Illinois 60603
Attn: Susan Knight
Telecopy: (312) 372-2830
Telephone: (312) 917-7446
$12,500,000 THE NORTHERN TRUST COMPANY
By:
Print Name:
Title:
Address: 50 South LaSalle
Floor B-2
Chicago, Illinois 60675
Attn: Robin Brody
Telecopy: (312) 444-7028
Telephone: (312) 444-3438
$55,000,000 Aggregate Commitment
PRICING SCHEDULE
============================== --------------------- -------------------- =====================
APPLICABLE MARGIN LEVEL I STATUS LEVEL II STATUS LEVEL III STATUS
============================== --------------------- -------------------- =====================
Eurocurrency Rate .375% .50% .625%
============================== ===================== ==================== =====================
Floating Rate 0% 0% 0%
============================== ===================== ==================== =====================
============================== ===================== ==================== =====================
LEVEL I STATUS LEVEL II STATUS LEVEL III STATUS
============================== ===================== ==================== =====================
============================== ===================== ==================== =====================
Applicable Commitment Fee .125% .150% .20%
Rate
============================== ===================== ==================== =====================
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Borrower delivered pursuant to Section 6.1(a) or (b).
"Level I Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Debt Ratio is less than 1.50 to 1.00.
"Level II Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Debt Ratio is greater than or equal to 1.50 to 1.00 but less than 2.00 to 1.00.
"Level III Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Debt Ratio is greater than or equal to 2.00 to 1.00.
"Status" means either Level I Status, Level II Status or Level III
Status.
The Applicable Margin and Applicable Commitment Fee Rate shall be
determined in accordance with the foregoing table based on the Borrower's Status
as reflected in the then most recent Financials. Adjustments, if any, to the
Applicable Margin or Applicable Fee Rate shall be effective five (5) Business
Days after the Agent has received the applicable Financials. If the Borrower
fails to deliver the Financials to the Agent at the time required pursuant to
Section 6.1, then the Applicable Margin and Applicable Commitment Fee Rate shall
be the highest Applicable Margin and Applicable Commitment Fee Rate set forth in
the foregoing table until five (5) days after such Financials are so delivered.
Until adjusted as provided above after the date hereof, Level I Status shall be
deemed to exist.