1
EXHIBIT 10.24
REVOLVING CREDIT AGREEMENT
by and among
BALDWIN AMERICAS CORPORATION
AND
BALDWIN TECHNOLOGY LIMITED,
as Borrowers
and
BALDWIN TECHNOLOGY COMPANY, INC.
and
NATIONSBANK OF NORTH CAROLINA,
NATIONAL ASSOCIATION,
as Lender
and
NATIONSBANK OF NORTH CAROLINA,
NATIONAL ASSOCIATION,
as Agent
November 23, 1993
2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND TERMS
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Accounts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Advance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Applicable Commitment Percentage" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Assignment and Acceptance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authorized Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Baldwin Foreign Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Baldwin Guaranty" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Baldwin Pledge Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Baldwin Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Baldwin Technology" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Baldwin Technology Pledge Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"BAM Foreign Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"BAM Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"BAM Subsidiary Guaranty" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Base Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Board" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrower Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrowers Account" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrowers Pledge Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Borrowing Base" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Borrowing Base Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Borrowing Notice" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"BTL Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"BTL Foreign Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Capital Expenditures" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Capitalized Lease Obligation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Capitalized Leases" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Collateral" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Consolidated Cash Flow" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Consolidated Fixed Charge Ratio" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Consolidated Fixed Charges" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Consolidated Funded Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Consolidated Group" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Consolidated Interest Expense" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Consolidated Net Income" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Consolidated Net Tangible Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Consolidated Net Worth" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Consolidated Operating EBIT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Consolidated Total Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Consolidated Total Capitalization" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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"Consolidated Total Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Contingent Obligation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Current Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Current Ratio" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Dollars" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Eligible Capital Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Eligible Accounts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Eligible Inventory" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Enkel International" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Enkel Pledge Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Environmental Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"ERISA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Exchange Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Existing Capitalized Leases" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Federal Funds Effective Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Fiscal Quarter" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Fiscal Year" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Funded Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Generally Accepted Accounting Principles" or "GAAP" . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Guaranties" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Guarantors" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Hazardous Material" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Indebtedness" or "Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Indebtedness for Money Borrowed" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Intercreditor Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Interest Period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Inventory" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Investment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Lending Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"LIBOR Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"LIBOR Interest Addition" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"LIBOR Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"LIBOR Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Lien" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Loan" or "Loans" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Loan Documents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Material Adverse Effect" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Multiemployer Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Obligations" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Permitted Encumbrances" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Pledge Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Pledged Baldwin Technology Subsidiary Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Pledged BAM Subsidiary Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Pledged Borrower Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Pledged Borrower Subsidiary Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Pledged BTL Subsidiary Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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"Pledged Enkel Subsidiary Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Pledged Sector Subsidiary Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Pledged Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Prime Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"Prime Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"Principal Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"Rate Hedging Obligations" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"Regulation D" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"Regulatory Change" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"Related Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Required Lenders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Reserve Requirement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Restricted Payments" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Revolving Credit Facility" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Revolving Credit Notes" or "Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Revolving Credit Termination Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Revolving Loan Commitment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"SEC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Sector Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Sector Subsidiary Guaranty" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Security Instruments" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Senior Note Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Senior Note Documents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Significant Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"Single Employer Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"Solvent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"Total Commitment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Total Fee Baseline" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Unavailable Commitment Amount" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Voting Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1.2. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1.3. Other Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE II
REVOLVING CREDIT FACILITY
2.1. Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.2. Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.3. Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.4. Payment of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.5. Payment of Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.6. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.7. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.8. Pro Rata Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.9. Voluntary Reduction in Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.10. Prepayment of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.11. Conversions and Elections of Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.12. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.13. Deficiency Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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2.14. Unavailable Commitment Amount; Reduction in Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.15. Authority to Debit Borrower Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE III
YIELD PROTECTION AND ILLEGALITY
3.1. Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.2. Suspension of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.3. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.4. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.5. Substitution of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE IV
CONDITIONS TO MAKING LOANS
4.1. Conditions of Initial Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.2. Conditions of Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE V
SECURITY; GUARANTIES
5.1. Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.2. Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.3. New Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.4 Certain Stock Owned by Sector Subsidiaries and Other Baldwin Subsidiaries . . . . . . . . . . . . . . . . . 39
5.5. Filing and Recording Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.6. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.2. Business; Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.3. Actions Pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.4. Title to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.5. Tax Returns and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.6. Conflicting Agreements and Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.7. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.8. Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6.9. Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6.10. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6.11. Status Under Certain Federal Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6.12. Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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6.13. No Consents, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.14. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.15. Restrictions on Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.16. No Senior or Equal Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.17. Survival of Warranties and Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE VII
AFFIRMATIVE COVENANTS
7.1. Financial Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.2. Inspection of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.3. Corporate Existence, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.4. Payment of Taxes and Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.5. Compliance with Laws, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.6. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.7. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.8. Scope of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.9. Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.10. Maintenance of Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.11. Payment of Trade Payables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.12. Pay Indebtedness to Lenders and Perform other Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.13. Environmental Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.14. Notice of Discharge of Hazardous Material or Environmental Complaint . . . . . . . . . . . . . . . . . . . 56
7.15. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.16. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.17. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.18. New Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE VIII
NEGATIVE COVENANTS
8.1. Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
8.2. Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.3. Liens and Other Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.4. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.5. Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8.6. Tax Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
8.7. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
8.8. Amendments to Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE IX
EVENTS OF DEFAULT AND ACCELERATION
9.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
9.2. Agent to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
9.3. Cumulative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
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9.4. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
9.5. Allocation of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE X
THE AGENT
10.1. Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.2. Attorneys-in-fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.3. Limitation on Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.4. Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.5. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.6. No Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
10.8. Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
10.9. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
10.10. Sharing of Payments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
10.11. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE XI
MISCELLANEOUS
11.1. Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.3. Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
11.4. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
11.5. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
11.6. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
11.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
11.8. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
11.9. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
11.10. Representation and Warranty of the Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
11.11. Agreement Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
11.12. CONSENT TO JURISDICTION; OTHER WAIVERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
EXHIBIT A Applicable Commitment Percentages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B Form of Assignment and Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C Form of Borrowing Base Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D Borrowing Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
EXHIBIT E Form of Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
EXHIBIT F Form of Solvency Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
EXHIBIT G-1 Form of Opinions of Counsel
for the Borrowers and the Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .G-1-1
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EXHIBIT G-2 Form of Opinion of Bermuda Counsel for BTL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .G-2-1
EXHIBIT H [RESERVED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . H-1
EXHIBIT I Form of Notice of Appointment (or
Revocation) of Authorized Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1
SCHEDULE 6.1 Incorporation, Foreign Qualification and Ownership of Borrowers, Borrower Subsidiaries and Baldwin
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-2
SCHEDULE 6.3 Actions Pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-3
SCHEDULE 8.3(a) Indebtedness Secured by Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-4
SCHEDULE 8.3(f) Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-5
SCHEDULE 8.4(a) Existing Junior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-6
SCHEDULE 8.4(b) Existing Capitalized Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-7
SCHEDULE 9.3(k) Permitted Holders of More than 49%
Voting Control of Baldwin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-8
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of November 23, 1993 (as
amended or supplemented from time to time, the "Agreement"), is made by and
among:
BALDWIN AMERICAS CORPORATION, a corporation organized and existing
under the laws of the State of Delaware and currently having its principal
executive office in Elkwood, Virginia ("BAM"), and BALDWIN TECHNOLOGY LIMITED,
a corporation organized and existing under the laws of Bermuda and currently
having its principal place of business in Hamilton, Bermuda ("BTL") (BAM and
BTL being referred to collectively as the "Borrowers" and individually as a
"Borrower");
BALDWIN TECHNOLOGY COMPANY, INC., a corporation organized and existing
under the laws of the State of Delaware ("Baldwin"), of which BAM and BTL are
wholly-owned Subsidiaries,
NATIONSBANK OF NORTH CAROLINA, NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United States
of America ("NationsBank"), and each other lender which may hereafter execute
and deliver an Assignment and Acceptance (as defined below) with respect to
this Agreement pursuant to Section 11.1 (hereinafter NationsBank and all such
lenders may be referred to individually as a "Lender" or collectively as the
"Lenders"); and
NATIONSBANK OF NORTH CAROLINA, NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United States
of America in its capacity as agent for the Lenders (in such capacity, the
"Agent").
W I T N E S S E T H:
WHEREAS, the Borrowers have applied to the Lenders for revolving
credit loans in a maximum aggregate principal amount outstanding at any time of
$20,000,000 (as such maximum amount may be reduced from time to time) under the
terms and conditions hereinafter set forth, the proceeds of which revolving
credit loans shall be used by the Borrowers from time to time to support
working capital needs, to repay existing debt and for general corporate
purposes of the Borrowers; and
WHEREAS, the Lenders are willing to make such revolving credit loans
to the Borrowers, in the maximum aggregate principal amount outstanding at any
time of $20,000,000 (as such maximum amount may be reduced from time to time)
under the terms and conditions hereinafter set forth;
NOW, THEREFORE, the Borrowers, Baldwin, the Lenders and the Agent
agree as follows:
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ARTICLE I
DEFINITIONS AND TERMS
1.1. DEFINITIONS. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Accounts" means all accounts receivable owing to any Borrower
or any of its consolidated Subsidiaries;
"Advance" means a borrowing of new funds under the Revolving
Credit Facility consisting of the aggregate principal amount of a
Prime Loan or a LIBOR Loan;
"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or
is under common control with, a Borrower, a Borrower Subsidiary,
Baldwin or a Baldwin Subsidiary; (ii) which beneficially owns or holds
5% or more of any class of the outstanding voting stock (or in the
case of a Person which is not a corporation, 5% or more of the equity
interest) of a Borrower, a Borrower Subsidiary, Baldwin or a Baldwin
Subsidiary; or (iii) 5% or more of any class of the outstanding voting
stock (or in the case of a Person which is not a corporation, 5% or
more of the equity interest) of which is beneficially owned or held by
a Borrower, a Borrower Subsidiary, Baldwin or a Baldwin Subsidiary.
The term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting stock, by
contract or otherwise;
"Applicable Commitment Percentage" means, for each Lender,
with respect to the Obligations hereunder, a fraction (expressed as a
percentage), the numerator of which shall be the amount of such
Lender's Revolving Loan Commitment at the date of determination and
the denominator of which shall be the Total Commitment, which
Applicable Commitment Percentage for each Lender as of the Closing
Date is as set forth in Exhibit A attached hereto and incorporated
herein by reference; provided that the Applicable Commitment
Percentage of each Lender shall be increased or decreased to reflect
any assignments to or by such Lender effected in accordance with
Section 11.1 hereof;
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B attached hereto and incorporated
herein by reference (with blanks appropriately filled in) executed by
the assignor Lender, the assignee,
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the Agent and the Borrowers and delivered to the Agent in connection
with an assignment of a Lender's interest under this Agreement
pursuant to Section 11.1;
"Authorized Officer" means (i) any of the Chairman, President,
Executive Vice Presidents, Senior Vice Presidents, Vice Presidents or
Chief Financial Officer of any Borrower, or (ii) any other person
expressly designated by any person described in clause (i) as an
Authorized Officer for purposes of this Agreement, as set forth from
time to time in a certificate to such effect delivered to the Agent in
substantially the form of Exhibit I hereto;
"Baldwin Foreign Subsidiary" means any Subsidiary of Baldwin
(other than BAM, BTL, any Borrower Subsidiary or any Sector
Subsidiary) that is organized and existing under the laws of a country
other than the United States;
"Baldwin Guaranty" means that Guaranty Agreement of even date
herewith by and between Baldwin and the Agent, pursuant to which
Baldwin has unconditionally guaranteed the payment and performance of
the Obligations, as the same may be modified, amended, or supplemented
from time to time as therein permitted;
"Baldwin Pledge Agreement" means that Pledge Agreement of even
date herewith by and between Baldwin and the Agent, pursuant to which
Baldwin has assigned, transferred, pledged and set over unto the Agent
for the benefit of the Lenders its Pledged Borrower Stock and Pledged
Sector Subsidiary Stock, together with all dividends paid upon, all
securities received in addition to and in exchange for, and all rights
to subscribe for securities incident to, its Pledged Borrower Stock
and Pledged Sector Subsidiary Stock, to secure the payment and
performance of Baldwin's obligations pursuant to the Baldwin Guaranty
and the Baldwin Pledge Agreement, as the same may be modified, amended
or supplemented from time to time as therein permitted;
"Baldwin Subsidiary" means BAM, BTL, any Sector Subsidiary or
any other Subsidiary of Baldwin;
"Baldwin Technology" means Baldwin Technology Corporation, a
corporation organized and existing under the laws of the State of
Connecticut, and a wholly-owned Subsidiary of BAM;
"Baldwin Technology Pledge Agreement" means that Pledge
Agreement of even date herewith by and between Baldwin Technology and
the Agent, pursuant to which Baldwin Technology has assigned,
transferred, pledged and set over
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unto the Agent for the benefit of the Lenders its Pledged Baldwin
Technology Subsidiary Stock, together with all dividends paid upon,
all securities received in addition to and in exchange for, and all
rights to subscribe for securities incident to, its Pledged Baldwin
Technology Subsidiary Stock, to secure the payment and performance of
Baldwin Technology's obligations pursuant to the BAM Subsidiary
Guaranty and the Baldwin Technology Pledge Agreement, as the same may
be modified, amended or supplemented from time to time as therein
permitted;
"BAM Foreign Subsidiary" means Enkel Foreign Sales Corporation
or any other Subsidiary of BAM (other than Baldwin Technology, Kansa
Corporation, Enkel Corporation, Misomex of North America, Inc. or
Baldwin Graphic Systems, Inc.) that is organized and existing under
the laws of a country other than the United States.
"BAM Subsidiary" means (i) Baldwin Technology, (ii) Kansa
Corporation, a Kansas corporation, (iii) Enkel Corporation, a Delaware
corporation, (iv) Enkel Foreign Sales Corporation, a United States
Virgin Islands corporation, (v) Enkel International, (vi) Misomex of
North America, Inc., a Delaware corporation, (vii) Baldwin Graphic
Systems, Inc., a Delaware corporation, or (viii) any other Person
that is, at any time, a Subsidiary of BAM;
"BAM Subsidiary Guaranty" means that Guaranty Agreement of
even date herewith by and among the BAM Subsidiaries (other than Enkel
Foreign Sales Corporation and Enkel International) and the Agent,
pursuant to which such BAM Subsidiaries have unconditionally, jointly
and severally guaranteed the payment and performance of the
Obligations, as the same may be modified, amended, or supplemented
from time to time as therein permitted;
"Base Rate" means, with respect to a LIBOR Loan, in respect of
the Interest Period specified by an Authorized Officer in the
Borrowing Notice for such LIBOR Loan, the rate (expressed as a
percentage and rounded upward if necessary to the nearest 1/100 of 1%)
(which shall be the same for each day of such Interest Period)
determined by the Agent in good faith in accordance with its usual
procedures for its customers generally to be the average of the rates
per annum for deposits in Dollars offered to major money center banks
in the London interbank market at approximately 11:00 A.M. London time
two (2) LIBOR Business Days prior to the commencement of the
applicable Interest Period in an amount approximately equal to the
principal amount of, and for a period comparable to the Interest
Period for, such LIBOR Loan;
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"Board" means the Board of Governors of the Federal Reserve
System (or any successor body);
"Borrower Subsidiary" means any Subsidiary of a Borrower;
"Borrowers Account" means (i) demand deposit account number
001-009-27-319 in the name of BAM and BTL with NationsBank of Georgia,
National Association , or (ii) any successor account of the Borrowers
with the Agent, which may be maintained at one or more offices of the
Agent, or an agent for the Agent;
"Borrowers Pledge Agreement" means that Pledge Agreement of
even date herewith by and between each Borrower and the Agent,
pursuant to which each Borrower has assigned, transferred, pledged and
set over unto the Agent for the benefit of the Lenders its Pledged
Borrower Subsidiary Stock, together with all dividends paid upon, all
securities received in addition to and in exchange for, and all rights
to subscribe for securities incident to, its Pledged Borrower
Subsidiary Stock, to secure the payment and performance of the
Obligations, as the same may be modified, amended or supplemented from
time to time as therein permitted;
"Borrowing Base" means the sum, as of the date of
determination of (i) Eligible Accounts multiplied by 80%, plus (ii)
Eligible Inventory that constitutes raw materials or finished goods,
in each case valued at cost or fair market value, whichever is lower,
multiplied by 50%, plus (iii) Eligible Inventory that constitutes
work-in-process, valued at cost or fair market value, whichever is
lower, multiplied by 35%; provided, however, the Agent, based upon
reasonable justification, may, from time to time, with the consent of
all Lenders reduce or increase the percentage of Eligible Accounts or
Eligible Inventory, or both, that shall be used in calculating the
Borrowing Base. The Agent shall provide the Borrowers with written
notice outlining all proposed changes and the reasons therefore;
"Borrowing Base Certificate" means a certificate in the form
set forth in Exhibit C attached hereto and incorporated herein by
reference, together with all exhibits and schedules affixed thereto as
required to be provided by the terms thereof;
"Borrowing Notice" has the meaning specified in Section 2.3(b);
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14
"BTL Subsidiary" means, at any time, any Subsidiary of BTL;
"BTL Foreign Subsidiary" means any Subsidiary of BTL that is
organized and existing under the laws of a country other than the
United States;
"Business Day" means any day which is not a Saturday, Sunday
or legal holiday and which is a day on which NationsBank is open for
business generally with the public in the State of North Carolina and
commercial banks are not authorized or required to be closed in New
York City;
"Capital Expenditures" means for any period the sum of (i) the
aggregate gross amount of additions to property, plant and equipment
(which are classified as such in accordance with GAAP and have a
useful life in excess of one year) of Baldwin and its Subsidiaries
during such period plus (ii) with respect to any Capitalized Lease
entered into by Baldwin or any Baldwin Subsidiary during such period,
the capitalized amount of the obligations of Baldwin or such
Subsidiary with respect to such Capitalized Lease determined in
accordance with GAAP applied on a consistent basis;
"Capitalized Lease Obligation" means any payment obligation
under or with respect to any Capitalized Lease;
"Capitalized Leases" means all leases which have been or
should be capitalized in accordance with GAAP as in effect from time
to time including Statement No. 13 of the Financial Accounting
Standards Board and any successor thereof;
"Closing Date" means the date as of which this Agreement is
executed by the Borrowers, the Agent and NationsBank and on which the
conditions set forth in Section 4.1 hereof have been satisfied or
waived by NationsBank;
"Code" means the Internal Revenue Code of 1986, as amended
from time to time;
"Collateral" means all assets, instruments and other
properties, real, personal and intellectual, and interests now or
hereafter subject to a Lien granted pursuant to any Security
Instrument and all products and proceeds thereof;
"Consolidated Cash Flow" means, with respect to Baldwin and
its Subsidiaries for any period, the aggregate sum of (i) Consolidated
Operating EBIT, plus (ii) depreciation and amortization, on a
consolidated basis in accordance with GAAP;
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15
"Consolidated Fixed Charge Ratio" means, with respect to
Baldwin and its Subsidiaries for any period, the sum of (i)
Consolidated Operating EBIT, (ii) depreciation and (iii)
amortization, divided by Consolidated Fixed Charges, on a consolidated
basis in accordance with GAAP;
"Consolidated Fixed Charges" means, with respect to Baldwin
and its Subsidiaries for any period, the sum of (i) Consolidated
Interest Expense, (ii) current maturities of Funded Debt, (iii) (to
the extent not included in clause (ii)) current maturities of
Capitalized Leases, (iv) dividend expense and (v) without
duplication, other Capital Expenditures, on a consolidated basis in
accordance with GAAP;
"Consolidated Funded Debt" means, as at any date of
determination, the aggregate total Funded Debt of Baldwin and its
Subsidiaries on a consolidated basis in accordance with GAAP;
"Consolidated Group" means Baldwin and its Subsidiaries, taken
as a whole;
"Consolidated Interest Expense" means, with respect to Baldwin
and its Subsidiaries for any period, the gross interest expense of
Baldwin and its Subsidiaries determined on a consolidated basis in
accordance with GAAP applied on a consistent basis, including, without
limitation, (i) the amortization of debt discounts, (ii) the
amortization of all fees (including, without limitation, fees with
respect to interest rate protection agreements) payable in connection
with the incurrence of Indebtedness to the extent included in interest
expense and (iii) the portion of any Capitalized Lease allocable to
interest expense. For purposes of the foregoing, gross interest
expense shall be determined after (x) giving effect to any net
payments made or received by Baldwin and its Subsidiaries with respect
to interest rate protection agreements entered into as a hedge against
interest rate exposure; and (y) excluding therefrom the gross interest
expense of any Person accrued prior to the date it becomes a
Subsidiary;
"Consolidated Net Income" means, with respect to any period,
consolidated gross revenues of Baldwin and its Subsidiaries less all
operating and non-operating expenses of Baldwin and its Subsidiaries
including all charges of a proper character (including current and
deferred taxes on income, provision for taxes on unremitted foreign
earnings which are included in gross revenues, amortization,
depreciation and current additions to reserves), but not including in
gross revenues any gains (net of expenses and
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taxes applicable thereto) in excess of losses resulting from the sale,
conversion or other disposition of assets (other than Inventory and
used equipment in the ordinary course of the business of Baldwin and
its Subsidiaries), any earnings or losses attributable to any
corporation which is not a Subsidiary of Baldwin, any gains arising
from transactions of a nonrecurring and material nature, any gains
arising from the sale or discontinuation of operations, any gains
resulting from the write-up of assets, any equity of Baldwin or any of
its Subsidiaries in the unremitted earnings of any corporation which
is not a Subsidiary of Baldwin, any earnings of any Person acquired by
Baldwin or any of its Subsidiaries through purchase, merger or
consolidation or otherwise for any year prior to the year of
acquisition, any revenues of Baldwin or any of its Subsidiaries from
sales of goods or services to any other Subsidiary of Baldwin or to
Baldwin, or any deferred credit representing the excess of equity in
any Subsidiary at the date of acquisition over the cost of the
investment in such Subsidiary; all determined in accordance with GAAP;
"Consolidated Net Tangible Assets" means (i) Consolidated
Total Assets, less (ii) the sum of (a) unamortized patents,
copyrights, trademarks, trade names, franchises, goodwill, and other
similar intangibles; (b) unamortized debt discount and expense; and
(c) all liabilities of Baldwin and its Subsidiaries on a consolidated
basis as of the most recent balance sheet, determined in accordance
with GAAP, other than Consolidated Funded Debt, minority interests and
deferred taxes;
"Consolidated Net Worth" means, on any date as of which the
amount thereof is to be determined, the shareholders' equity of
Baldwin and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP, except that such amount shall (i) include
preferred stock (other than preferred stock which would not qualify as
Eligible Capital Stock), and (ii) exclude non-cash losses from
discontinued operations and any foreign exchange translation
adjustments;
"Consolidated Operating EBIT" means, with respect to Baldwin
and its Subsidiaries for any period, the sum of (i) Consolidated Net
Income, (ii) Consolidated Interest Expense and (iii) (to the extent
deducted in calculating Consolidated Net Income) current and deferred
taxes on income and provision for taxes on unremitted foreign earnings
which are included in gross revenues, all on a consolidated basis in
accordance with GAAP;
"Consolidated Total Assets" means the aggregate total assets
of Baldwin and its Subsidiaries on a consolidated
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basis as of the most recent balance sheet, determined in accordance with GAAP;
"Consolidated Total Capitalization" means (a) for purposes of Section
8.4(a)(iv) hereof, the sum of (i) Consolidated Funded Debt, plus (ii)
Consolidated Net Worth; and (b) for purposes of Section 8.4(a)(v) hereof, the
sum of (i) Consolidated Total Indebtedness plus (ii) Consolidated Net Worth;
"Consolidated Total Indebtedness" means the aggregate total
Indebtedness of Baldwin and its Subsidiaries, on a consolidated basis in
accordance with GAAP;
"Contingent Obligation" of any Person means any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, dividend or
other obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including obligations of such Person however
incurred:
(i) to purchase such Indebtedness or other obligation of
the primary obligor or any property or assets constituting security
therefor;
(ii) to advance or supply funds in any manner (A) for the
purchase or payment of such Indebtedness or other obligation of the
primary obligor, or (B) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation;
(iii) to grant or convey any lien, security interest, pledge,
charge or other encumbrance on any property or assets of such Person to
secure payment of such Indebtedness or other obligation of the primary
obligor;
(iv) to lease property or to purchase securities or other
property or services primarily for the purpose of assuring the owner or
holder of such Indebtedness or obligation of the ability of the primary
obligor to make payment of such Indebtedness or other obligation; or
(v) otherwise to assure the owner of the Indebtedness or
such obligation of the primary obligor against loss in respect thereof;
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18
"Current Debt" means, as applied to any Person, (i) all Indebtedness of
such Person that matures within one year or less from the date of its creation
and is not renewable or extendable beyond such period at the option of such
Person, including all payments in respect of Funded Debt that are required to
be made within one year from the date of determination of such Funded Debt, and
(ii) bankers and trade acceptances, whenever maturing.
"Current Ratio" shall mean on any date as of which the amount thereof
is to be determined, the ratio of (a) the current assets of Baldwin and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, to
(b) the current liabilities of Baldwin and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP;
"Default" means any event or condition which, with the giving or
receipt of notice or lapse of time or both, would constitute an Event of
Default hereunder;
"Dollars" and the symbol "$" means dollars constituting legal tender
for the payment of public and private debts in the United States of America;
"Eligible Capital Stock" means any class or series of capital stock of
Baldwin other than any class or series which has fixed payment obligations or
is redeemable at the option of the holder unless such fixed payment obligations
or repurchase obligations on exercise of such redemption option can be
satisfied, at the election of Baldwin through the issuance of shares of common
stock;
"Eligible Accounts" means those Accounts of BAM or any of its
consolidated Subsidiaries which Accounts are not greater than one hundred
twenty (120) days past the due date thereof (based on the terms thereof, as
opposed to the respective invoice date) and are determined by the Agent in the
reasonable exercise of its discretion to be an Eligible Account, provided that,
without limiting the generality of the foregoing, the following Accounts
shallnot be deemed Eligible Accounts: any Account (a) that is not a bona fide
existing obligation created by the sale and actual delivery of inventory, goods
or other property or the furnishing of services or other good and sufficient
consideration to customers of BAM or the respective BAM Subsidiary in the
ordinary course of business, (b) that is subject to any material dispute,
contra-account, defense, offset or counterclaim or any Lien or the inventory,
goods, property, services or other consideration of which such Account
constitutes proceeds is subject to any such Lien other than a Lien in favor of
BAM or the respective BAM Subsidiary,
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(c) in respect of which the inventory, goods, property, services or other
consideration have been rejected in such amount that is material, (d) that is
due from Baldwin, BTL, any Affiliate, any Baldwin Subsidiary or any Borrower
Subsidiary, (e) that has been classified by BAM or the respective BAM
Subsidiary as doubtful or against collection of which reserves have otherwise
been established, (f) that is payable by any person located outside the United
States (which shall not be deemed to include any territories of the United
States) and that exceeds, when aggregated with all other such Accounts coming
within this clause (f), 10% of the aggregate Eligible Accounts, (g) with
respect to which any representation or warranty contained in any Loan Document
is incorrect in any material respect at any time, (h) that is payable by the
United States or any of its departments, agencies or instrumentalities or by
any state or other governmental entity and that exceeds, when aggregated with
all other such Accounts coming within this clause (h), 10% of the aggregate
Eligible Accounts, (i) that is payable by any person that is the subject of any
proceeding seeking to adjudicate it a bankruptcy or insolvent or seeking
liquidation, winding up or reorganization, arrangement, protection, relief or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief or protection of debtors or seeking the appointment
of a receiver, trustee, custodian or other similar official for it or for any
substantial part of its property, or that is not generally paying its debts as
they become due or has admitted in writing its inability to pay its debts
generally or has made a general assignment for the benefit of creditors, (j)
that is evidenced by a promissory note or other instrument the maturity date of
which is not more than 120 days after the date of execution thereof, (k) the
payment of which is subordinate to other obligations or claims, or (l) that
does not comply in all material respects with all applicable legal
requirements;
"Eligible Inventory" means the Inventory of BAM or any of its
consolidated Subsidiaries which Inventory is usable and saleable, less (to the
extent otherwise included in Eligible Inventory) any Inventory
(a) that is not owned solely by BAM or the respective BAM
Subsidiary;
(b) that is leased to any third party or on consignment;
(c) to which BAM or the respective BAM Subsidiary does not
have good, valid and marketable title;
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(d) that is in transit to any third party (other than the
agents or warehouse of BAM or the respective BAM Subsidiary);
(e) that is not located at or in transit to any property
that is owned or leased by BAM or the respective BAM Subsidiary (or an
agent or warehouse of BAM or the respective BAM Subsidiary);
(f) that is not located in the United States and that
exceeds, when aggregated with all other such Accounts coming within
this clause (f), 15% of the aggregate Eligible Inventory; or
(g) that does not conform in all material respects to any
representations and warranties with respect thereto contained in any
Loan Documents;
and less any reserves required by GAAP for obsolete inventory, market value
declines, bill and hold (deferred shipment) sales and goods returned or
rejected;
"Enkel International" means Enkel International Sales Corporation, an
Illinois corporation;
"Enkel Pledge Agreement" means that Pledge Agreement of even date
herewith by and between Enkel Corporation and the Agent, pursuant to which
Enkel Corporation has assigned, transferred, pledged and set over to the Agent
for the benefit of the Lenders its Pledged Enkel Subsidiary Stock, together
with all dividends paid upon, all securities received in addition to and in
exchange for, and all rights to subscribe for securities incident to, its
Pledged Enkel Subsidiary Stock, to secure the payment and performance of Enkel
Corporation's obligations pursuant to the BAM Subsidiary Guaranty and the Enkel
Pledge Agreement, as the same may be modified, amended or supplemented from
time to time, as therein permitted;
"Environmental Laws" means, collectively, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, the
Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation
and Recovery Act, the Toxic Substances Control Act, as amended, the Clean Air
Act, as amended, the Clean Water Act, as amended, any other "Superfund" or
"Superlien" law or any other federal, or applicable state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating, relating
to, or imposing liability or standards of conduct concerning, any hazardous,
toxic or dangerous
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waste, substance or material, as now or at any time hereafter in effect;
"ERISA" means, at any date, the Employee Retirement Income Security Act
of 1974 and the regulations thereunder, all as the same shall be in effect at
such date;
"Event of Default" means any of the occurrences set forth as such in
Section 9.1 hereof;
"Exchange Act" means the Securities Exchange Act of 1934, as amended;
"Existing Capitalized Leases" means those Capitalized Leases of Baldwin
and its Subsidiaries existing on the Closing Date that are listed on Schedule
8.4.
"Federal Funds Effective Rate" for any day, as used herein, means the
rate per annum (rounded upward to the nearest 1/100 of 1%) announced by the
Federal Reserve Bank of New York (or any successor) on such day as being the
weighted average of the rates on overnight Federal funds transactions arranged
by Federal funds brokers on the previous trading day, as computed and announced
by such Federal Reserve Bank (or any successor) in substantially the same
manner as such Federal Reserve Bank computes and announces the weighted average
it refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement; provided, if such Federal Reserve Bank (or its successor) does not
announce such rate on any day, the "Federal Funds Effective Rate" for such day
shall be the Federal Funds Effective Rate for the last day on which such rate
was announced;
"Fiscal Quarter" of Baldwin or any Borrower means the 3-month period
ending each March 31, June 30, September 30 and December 31 in any Fiscal Year;
"Fiscal Year" of Baldwin or any Borrower means the 12-month period of
the Borrower commencing on July 1 of each calendar year and ending on June 30
of the subsequent calendar year;
"Funded Debt" shall mean, as applied to any Person, (i) all
Indebtedness of such Person that matures more than one year from the date of
its creation or matures within one year or less from the date of its creation
but is renewable or extendable at the option of such Person to a date more than
one year from the date of its creation, and (ii) any Current Debt which remains
outstanding beyond one year from
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the date of its creation or its occurrence, but excluding bankers or trade
acceptances whenever maturing;
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States of America applied on a
consistent basis through the relevant periods;
"Guaranties" means, collectively, the Baldwin Guaranty, the Sector
Subsidiary Guaranty, the BAM Subsidiary Guaranty and any other guaranty
executed by a BAM Subsidiary, a BTL Subsidiary or other Person pursuant to
Section5.3 or 8.3(b) hereof, as such Guaranties may be amended or supplemented
from time to time;
"Guarantors" means, collectively, Baldwin, the Sector Subsidiaries, the
BAM Subsidiaries (other than BAM Foreign Subsidiaries, the BTL Subsidiaries
(other than BTL Foreign Subsidiaries) and any other Person that has executed a
Guaranty and (pursuant to such Guaranty) is a guarantor of the Obligations;
"Hazardous Material" means and includes any hazardous or toxic waste,
substance or material, the generation, handling, storage, disposal, treatment
or emission of which is subject to any Environmental Law in effect on any date;
"Indebtedness" or "Debt" of a Person shall mean (i) indebtedness of
such Person for borrowed money, whether short-term or long-term and whether
secured or unsecured, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) obligations of such
Person under Capitalized Leases, (iv) obligations of such Person arising under
acceptance facilities, (v) the undrawn face amount of, and unpaid reimbursement
obligations in respect of, all letters of credit issued for the account of such
Person, (vi) all obligations of such Person upon which interest charges are
customarily paid, (vii) all obligations of such Person under conditional sale
or other title retention agreements relating to property purchased by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (viii) all executory obligations of such Person in respect of Rate
Hedging Obligations, except that if any agreement relating to such obligations
provides for the netting of amounts payable by and to such Person thereunder or
if any such agreement provides for the simultaneous payment of amounts by and
to such Person, then in each such case, the amount of such obligations shall be
the net amount thereof, and (ix) all
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Contingent Obligations in respect of Indebtedness of other Persons;
"Indebtedness for Money Borrowed" of a Person means (i) all
indebtedness, obligations and liabilities of such Person for money borrowed
which are evidenced by bonds, debentures, notes or other similar instruments,
whether short-term or long-term and whether secured or unsecured, and (ii) all
Capitalized Leases; provided, however, the term "Indebtedness for Money
Borrowed" shall specifically exclude payroll indebtedness and trade
indebtedness incurred in the ordinary course of business provided such trade
indebtedness has a maturity of less than one year;
"Intercreditor Agreement" means that Intercreditor Agreement of even
date herewith by and among NationsBank as collateral agent thereunder, the
Agent, John Hancock Mutual Life Insurance Company, John Hancock Variable Life
Insurance Company, John Hancock Life Insurance Company of America, and
acknowledged and agreed to by BAM and BTL, as amended or supplemented from time
to time;
"Interest Period" for each LIBOR Loan means a period commencing on the
date such LIBOR Loan is made or converted and each subsequent period commencing
on the last day of the immediately preceding Interest Period for such LIBOR
Loan, as the case may be, and ending, at the Borrowers' option, on the date
one, two, three or six months thereafter as notified to the Agent by an
Authorized Officer three (3) LIBOR Business Days prior to the beginning of such
Interest Period; provided, that,
(i) if an Interest Period for a LIBOR Loan would end on a
day which is not a LIBOR Business Day, such Interest Period shall be
extended to the next LIBOR Business Day (unless such extension would
cause the applicable Interest Period to end in the succeeding calendar
month, in which case such Interest Period shall end on the next
preceding LIBOR Business Day);
(ii) any Interest Period which begins on the last LIBOR
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last LIBOR Business Day of a calendar
month;
(iii) no Interest Period shall extend past the third
anniversary of the Closing Date; and
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(iv) there shall not be more than five (5) Interest Periods
with respect to LIBOR Loans in effect on any day;
"Inventory" means and includes any and all goods, merchandise and other
personal property, including, without limitation, goods in transit now owned or
hereafter acquired by any Borrower or any of its consolidated Subsidiaries and
held for sale or lease, furnished under any contract of service or held as raw
materials, work-in-process, or supplies or materials used or consumed in such
Borrower's or Borrower Subsidiary's business;
"Investment" means with respect to any Person any direct or indirect
loans or advances of money, credit (including all indebtedness and accounts
receivable from such other Person) or property to, or purchases, repurchases or
acquisitions of the securities or obligations or all or a substantial part of
the assets or properties of, or partnership or joint venture interests in, or a
capital contribution to or other form of investment in, any other Person or the
assumption of any liability of another Person which, in each case, does not
arise from sales to such other Person in the ordinary course of business;
"Lending Office" means, as to each Lender, the Lending Office of such
Lender designated on the signature pages hereof or in an Assignment and
Acceptance or such other office of such Lender (or of an affiliate of such
Lender) as such Lender may from time to time specify to the Borrower and the
Agent as the office by which its Loans are to be made and maintained;
"LIBOR Business Day" means a Business Day on which the relevant
international financial markets are open for the transaction of the business
contemplated by this Agreement in London, England and New York, New York;
"LIBOR Interest Addition" means 1.25%;
"LIBOR Loan" means all of the Loans for which the rate of interest is
determined by reference to the LIBOR Rate;
"LIBOR Rate" means, for the Interest Period for any LIBOR Loan, the
rate of interest per annum determined pursuant to the following formula:
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LIBOR Rate = Base Rate + LIBOR Interest Addition
1 - Reserve Requirement
in effect on the first
day of the Interest
Period applicable to
such LIBOR Loan
"Lien" means any mortgage, pledge, security interest, encumbrance,
statutory or other lien (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement, any lease in the
nature thereof and the filing of or agreement to give any financing statement
under the Uniform Commercial Code of any jurisdiction, except as a
precautionary filing in connection with true leases) or any other type of
preferential arrangement securing any obligation;
"Loan" or "Loans" means any of the LIBOR Loans or Prime Loans, as the
context may require, made pursuant to Section 2.1 hereof;
"Loan Documents" means collectively, and individually any one of, this
Agreement, the Revolving Credit Notes, the Intercreditor Agreement, the
Guaranties, the Security Instruments, and all other instruments and documents
hereafter executed and delivered by any Borrower, any Guarantor or any other
Person in connection with the Loans made under this Agreement, as any or all of
the same may be amended, modified or supplemented from time to time;
"Material Adverse Effect" on a Person means a material adverse effect
on the business, properties or condition, financial or otherwise, of such
Person;
"Multiemployer Plan" means any Plan which is a "multiemployer plan" as
such term is defined in section 4001(a)(3) of ERISA.
"Obligations" means all obligations, liabilities and Indebtedness of
any Borrower with respect to the payment of (i) all principal and interest on
the Loans as evidenced by the Notes, and (ii) all fees, expenses and other
payments required by or under this Agreement or any other Loan Document to
which it is a party;
"Permitted Encumbrances" means each Lien permitted under Section 8.3(a)
hereof;
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a government or
agency or political subdivision thereof;
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"Plan" means an "employee pension benefit plan" (as defined in section
3(2) of ERISA) which is or has been established or maintained, or to which
contributions are or have been made, by Baldwin, any Borrower or any of their
Related Persons.
"Pledge Agreements" means, collectively, the Borrowers Pledge
Agreement, the Baldwin Pledge Agreement and the Baldwin Technology Pledge
Agreement, the Enkel Pledge Agreement, or any other pledge agreement executed
by any Person pursuant to Section 5.3, 8.3(b) or 8.3(c) hereof, pursuant to
which stock is pledged to secure the Obligations, as any such Pledge Agreement
may be amended or supplemented from time to time;
"Pledged Baldwin Technology Subsidiary Stock" means all of the capital
stock of each Subsidiary of Baldwin Technology, now or hereafter issued and
outstanding;
"Pledged BAM Subsidiary Stock" means (a) all of the capital stock, now
or hereafter issued and outstanding of each BAM Subsidiary other than a BAM
Foreign Subsidiary, and (b) sixty-five percent (65%) of all of the capital
stock, now or hereafter issued and outstanding, of each BAM Foreign Subsidiary;
"Pledged Borrower Stock" means all of the capital stock of each
Borrower, now or hereafter issued and outstanding;
"Pledged Borrower Subsidiary Stock" means the Pledged BAM Subsidiary
Stock and the Pledged BTL Subsidiary Stock, collectively;
"Pledged BTL Subsidiary Stock" means (a) all of the capital stock, now
or hereafter issued and outstanding, of each BTL Subsidiary other than a BTL
Foreign Subsidiary, and (b) sixty-five percent (65%) of all of the capital
stock, now or hereafter issued and outstanding, of any BTL Foreign Subsidiary;
"Pledged Enkel Subsidiary Stock" means (a) all of the capital stock,
now or hereafter issued and outstanding, of each Subsidiary of Enkel
Corporation other than a BAM Foreign Subsidiary and (b) sixty-five percent
(65%) of all of the capital stock, now or hereafter issued and outstanding, of
each Subsidiary of Enkel that is a BAM Foreign Subsidiary;
"Pledged Sector Subsidiary Stock" means all of the capital stock of
each Sector Subsidiary now or hereafter issued and outstanding;
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"Pledged Stock" means the Pledged Borrower Stock, the Pledged Borrower
Subsidiary Stock, the Pledged Baldwin Technology Subsidiary Stock, the Pledged
Enkel Subsidiary Stock and the Pledged Sector Subsidiary Stock, collectively;
"Prime Loan" means all of the Loans for which the rate of interest is
determined by reference to the Prime Rate;
"Prime Rate" means the rate of interest per annum established by the
Agent as its prime rate from time to time. The Prime Rate is not necessarily
the best or the lowest rate of interest offered by the Agent;
"Principal Office" means the principal office of the Agent at
NationsBank Corporate Center, 100 North Tryon Street, Charlotte, North Carolina
28255-0065, Attention: Michelle J. Kirby or such other office and address as
the Agent may from time to time designate;
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and however and whenever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) 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, warrants and those commonly known as
interest rate "swap" agreements; and (ii) any and all cancellations, buybacks,
reversals, terminations or assignments of any of the foregoing;
"Regulation D" means Regulation D of the Board as the same may be
amended or supplemented from time to time;
"Regulatory Change" means, with respect to any Lender, any change
effective after the Closing Date (or in the case of an assignee of a Lender
after the effective date of such assignment) in United States federal or state
laws or regulations (including Regulation D and capital adequacy regulations)
or foreign laws or regulations or the adoption or making after such date of any
interpretations, guidelines, policies, directives or requests applying to a
class of banks, which includes such Lender, under any United States federal or
state or foreign laws or regulations (whether or not having the force of law),
by any court or
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governmental or monetary authority charged with the interpretation or
administration thereof whether or not failure to comply therewith would be
unlawful and whether or not published or proposed prior to the date hereof (and
including without limitation any such change related to or in response to the
August 1988 report of the Bank Committee on Banking Regulations and Supervisory
Practices);
"Related Person" shall, for plan purposes, mean, with respect to any
Person, any trade or business, whether or not incorporated, which, together
with such Person, is under common control, as defined in section 414(b) or (c)
of the Code.
"Required Lenders" means, as of any date, Lenders on such date having
Credit Exposures (as defined below) aggregating at least a majority of the
aggregate Credit Exposures of all the Lenders on such date. For purposes of
the preceding sentence, the amount of the "Credit Exposure" of each Lender
shall be equal to the aggregate principal amount of the Loans owing to such
Lender, or if there are no Loans outstanding from such Lender, the aggregate
unutilized amount of such Lender's Revolving Loan Commitment;
"Reserve Requirement" means, for any LIBOR Loan, the average aggregate
rate at which reserves (including, without limitation, any marginal,
supplemental or emergency reserves) are required to be maintained with respect
thereto under Regulation D by the Lenders with respect to Dollar funding in the
London interbank market in the case of any LIBOR Loan. Without limiting the
effect of the foregoing, the Reserve Requirement shall reflect any other
reserves required to be maintained by such Lenders by reason of any Regulatory
Change against (i) any category of liabilities which includes deposits by
reference to which the Base Rate is to be determined or (ii) any category of
extensions of credit or other assets which include LIBOR Loans;
"Restricted Payments" shall mean (a) the declaration, payment or
making, directly or indirectly, of any dividend, payment or other distribution,
other than dividends payable solely in common stock of Baldwin, on or with
respect to any of the capital stock of Baldwin, any Borrower or any of their
Subsidiaries or the setting apart of any funds or property therefor, or (b) the
making of any payment on account of the purchase, redemption, retirement or
other acquisition, direct or indirect, or, or the forgiveness or foreclosure of
any Debt owed to Baldwin, any Borrower or any of their Subsidiaries and secured
by a pledge of, the capital stock of Baldwin, any Borrower or any of their
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Subsidiaries (other than a purchase or other acquisition of capital stock of a
Sector Subsidiary from such Sector Subsidiary by Baldwin or another Sector
Subsidiary of Baldwin);
"Revolving Credit Facility" means the facility described in Article II
hereof providing for Loans to the Borrowers by the Lenders in the aggregate
principal amount of the Total Commitment;
"Revolving Credit Notes" or "Notes" means the revolving credit
promissory notes of the Borrower executed and delivered to the Lenders as
provided in Section 2.7 hereof in substantially the form attached hereto as
Exhibit E and incorporated herein by reference;
"Revolving Credit Termination Date" means the earlier to occur of (i)
the third anniversary of the Closing Date, or (ii) any other date upon which
the Total Commitment shall terminate in accordance with the terms hereof;
"Revolving Loan Commitment" means with respect to each Lender, the
obligation of such Lender to make Loans to the Borrower up to an aggregate
principal amount at any one time outstanding equal to such Lender's Applicable
Commitment Percentage of the Total Commitment as the same may be increased or
decreased from time to time pursuant to this Agreement;
"SEC" means the United States Securities and Exchange Commission, or
any governmental body or agency hereafter succeeding to the functions of such
securities and Exchange Commission in the administration of the Securities Act
of 1933, as amended, or the Exchange Act.
"Sector Subsidiary" means (i) Baldwin Europe Consolidated Inc., a
Delaware corporation, or (ii) Baldwin Asia Pacific Corporation, a Delaware
corporation;
"Sector Subsidiary Guaranty" means that Guaranty Agreement of even date
herewith by and among the Sector Subsidiaries and the Agent, pursuant to which
the Subsidiaries have unconditionally, jointly and severally guaranteed the
payment and performance of the Obligations, as the same may be modified,
amended, or supplemented from time to time as therein permitted;
"Security Instruments" means collectively, and individually any one of,
the Pledge Agreements and all other agreements, instruments and other
documents, whether now existing or hereafter in effect, pursuant to which any
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Borrower, any Guarantor or any other Person shall grant or convey to the Agent
for the benefit of the Lenders a Lien or other right or interest in property as
security for all or any portion of the Obligations;
"Senior Note Agreement" means the Senior Note Agreement dated as of
October 29, 1993, among Baldwin, BAM and BTL and the Purchasers (as defined
therein);
"Senior Note Documents" means, collectively, (a) the Senior Note
Agreement, (b) the Joint and Several Senior Notes by BAM and BTL pursuant to
the Senior Note Agreement, (c) the Guaranty executed by Baldwin in favor of the
Purchasers and other Assured Parties (as defined therein), pursuant to the
Senior Note Agreement, (d) the other guaranties executed by any Borrower
Subsidiaries, Sector Subsidiaries or other Person in connection with the Joint
and Several Senior Notes or the Senior Note Agreement, (e) any pledge
agreements executed by Baldwin or any other Person in connection with the Joint
and Several Senior Notes or the Senior Note Agreement, and (f) the other
Related Agreements (as defined in the Senior Note Agreement);
"Significant Subsidiary" means (a) each Borrower, (b) each Guarantor,
and (c) each other Subsidiary of Baldwin which at the time in question would
satisfy the definition of a "Significant Subsidiary" as set forth in Regulation
S-X promulgated under the Exchange Act (17 C.F.R. Section 210.1-02(v)) on the
date of this Agreement on the basis that Baldwin's and its other Subsidiaries'
equity in the income from continuing operations of such Subsidiary exceeds 20
percent (20%) of such income of the Consolidated Group;
"Single Employer Plan" means any Plan covered by Title IV of ERISA of
Baldwin, any Borrower or any of their Subsidiaries, which is not a
Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that at the time
of determination:
(i) the fair value of its assets (both at fair valuation
and at present fair saleable value on an orderly basis) is in excess of
the total amount of its liabilities, including, without limitation,
Contingent Obligations; and
(ii) it is then able and expects to be able to pay its
debts as they mature and does not intend to, and does not believe that
it will, incur debts beyond its ability to repay such debts as they
mature; and
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(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
With respect to Contingent Obligations, such liabilities shall be computed at
the amount which, in light of all the facts and circumstances existing at the
time, represent the amount which can reasonably be expected to become an actual
or matured liability;
"Subsidiary" means as to any Person (i) any corporation of which such
Person shall, at the time as of which any determination is being made, own,
either directly or through its Subsidiaries, more than (x) 50% of the total
combined voting power of all classes of the Voting Stock and (y) 50% of the
beneficial interest, (ii) any other corporation which is otherwise permitted to
be consolidated with such Person under GAAP, and (iii) any partnership,
association, joint venture or other form of business organization, whether or
not it constitutes a legal entity, in which such Person directly or indirectly,
through its Subsidiaries has more than 50% of the equity interest at the time;
"Total Commitment" means an amount equal to $20,000,000, as reduced
from time to time in accordance with Section 2.9 or Section 2.14 hereof;
"Total Fee Baseline" means, at any time, an amount equal to the Total
Commitment at such time;
"Unavailable Commitment Amount" has the meaning assigned in Section
2.14 hereof;
"Voting Stock" shall mean any securities of any class of a Person whose
holders are entitled under ordinary circumstances to vote for the election of
directors of such Person (or Persons performing similar functions)
(irrespective of whether at the time securities of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
1.2. ACCOUNTING TERMS. Unless otherwise specified herein, all accounting terms
not specifically defined herein shall have the meanings assigned to such terms
and shall be interpreted in accordance with GAAP applied on a consistent basis.
1.3. OTHER TERMS. All references to the Borrower, the Lenders or the Agent
shall be deemed to include any successor or permitted assign of any thereof.
The terms "hereof," "herein," "hereunder," "hereto," and similar terms shall be
deemed to refer to this Agreement as a whole and not to any particular
provision hereof, unless the context shall clearly require otherwise. All
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plural terms shall have a corresponding meaning when used in the singular, and
all singular terms shall have a corresponding meaning when used in the plural.
ARTICLE II
REVOLVING CREDIT FACILITY
2.1. COMMITMENT. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the Borrowers from
time to time from the Closing Date until, but not including, the Revolving
Credit Termination Date on a pro rata basis as to the total borrowing requested
by the Borrowers on any day determined by such Lender's Applicable Commitment
Percentage up to but not exceeding the Revolving Loan Commitment of such
Lender; provided, however, that the Lender will not be required and shall have
no obligation to make any Advance (i) so long as a Default or an Event of
Default has occurred and is continuing or (ii) if the Agent has accelerated the
maturity of the Revolving Credit Notes as a result of an Event of Default or
(iii) if the Borrowers have not furnished to the Agent the Borrowing Base
Certificate required pursuant to Section 7.1(m) hereof; provided further,
however, that immediately after giving effect to each Advance, the aggregate
principal amount of outstanding Loans shall not exceed the lesser of: (a) the
Total Commitment less the Unavailable Commitment Amount (without duplication)
and (b) the Borrowing Base (as set forth on the Borrowing Base Certificate most
recently delivered to the Agent pursuant to Section 7.1(m) hereof or
otherwise). Within such limits, the Borrowers may borrow, repay and reborrow
hereunder, on any Business Day from the Closing Date until, but (as to
borrowings and reborrowings) not including, the Revolving Credit Termination
Date; provided, however, that (x) no LIBOR Loan shall be made less than one
month before the third anniversary of the Closing Date and (y) each LIBOR Loan
may, subject to the provisions of Section 2.5, be repaid only on the last day
of the Interest Period with respect thereto (except as permitted by Section
2.10(c) hereof). If at any time the aggregate principal amount of outstanding
Loans exceeds the lesser of (i) the Total Commitment less the Unavailable
Commitment Amount (without duplication) and (ii) the Borrowing Base, each
Borrower, jointly and severally, shall immediately reduce the outstanding
principal balance of the Loans to the extent of such excess, together with
accrued and unpaid interest on the amounts prepaid and payment of all sums
payable by any Borrower as set forth in Section 3.4 hereof.
2.2. AMOUNTS. Each Advance made hereunder and conversions under
Section 2.11 shall be in an amount of at least $750,000 or
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such greater amount which is an integral multiple of $250,000 in excess thereof
or in an amount equal to the entire difference of the Total Commitment less the
aggregate principal amount of Loans then outstanding.
2.3. ADVANCES.
(a) Each Advance shall be, at the option of the Borrowers
specified in the Borrowing Notice furnished to the Agent pursuant to subsection
2.3(b) hereof, either a Prime Loan or a LIBOR Loan, which shall in each case be
made or maintained by each Lender at its Principal Office. Not more than five
(5) Prime Loans and five (5) LIBOR Loans may be outstanding at the same time.
(b) An Authorized Officer shall give the Agent (1) at
least three (3) LIBOR Business Days' irrevocable telephonic notice of each
Advance that will be a LIBOR Loan prior to 11:00 A.M., Charlotte, North
Carolina time; or (2) irrevocable telephonic notice of each Advance that will
be a Prime Loan prior to 11:00 A.M., Charlotte, North Carolina time, on the day
of such proposed Prime Loan (each such notice referred to in subpart (1) and
(2) being referred to as a "Borrowing Notice"). Each such Borrowing Notice,
which shall be effective upon receipt by the Agent, shall specify the amount of
the borrowing, the type (Prime or LIBOR) of Loan, the date of borrowing and, if
a LIBOR Loan, the Interest Period to be used in the computation of interest.
An Authorized Officer shall provide the Agent written confirmation of each such
telephonic notice in the form attached hereto as Exhibit D and incorporated
herein by reference with appropriate insertions, but failure to provide such
confirmation shall not affect the validity of such telephonic notice. Notice
of receipt of such Borrowing Notice shall be provided by the Agent to each
Lender by telephone with reasonable promptness, but not later than 1:00 P.M.,
Charlotte, North Carolina time, on the same day as Agent's receipt of such
telephonic notice. The Agent shall provide each Lender written confirmation of
such telephonic confirmation, but failure to provide such notice shall not
affect the validity of such telephonic notice.
(c) Not later than 3:00 P.M., Charlotte, North Carolina
time, on the date specified for each borrowing under this Article II, each
Lender shall, pursuant to the terms and subject to the conditions of this
Agreement, make the amount of the Advance or Advances to be made by it on
such day available to the Agent, by depositing or transferring the proceeds
thereof in Dollars and in immediately available funds at the Principal Office.
The amount so received by the Agent shall, subject to the terms and conditions
of this Agreement, be made available to the Borrowers by depositing the
proceeds thereof in Dollars and in immediately available funds in the
Borrowers' Account.
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2.4. PAYMENT OF INTEREST.
(a) Each Borrower, jointly and severally, shall pay
interest to the Agent at the Principal Office for the account of each Lender on
the outstanding and unpaid principal amount of each Loan made by such Lender
for the period commencing on the date of such Loan until such Loan shall be due
at the then applicable Prime Rate for Prime Loans or LIBOR Rate for LIBOR
Loans, as designated by an Authorized Officer pursuant to Section 2.3 hereof
or as otherwise provided herein; provided, however, that if any amount shall
not be paid when due (at maturity, by acceleration or otherwise), such amount
shall bear interest thereafter (1) in the case of a LIBOR Loan, until the end
of the current Interest Period with respect to such LIBOR Loan, at a rate of
two percent (2%) above such LIBOR Rate or the maximum rate permitted by
applicable law, whichever is lower and (2) after the end of such Interest
Period, and at all such times with respect to Prime Loans, at a rate of
interest per annum which shall be two percent (2%) above the Prime Rate or the
maximum rate permitted by applicable law, whichever is lower, from the date
such amount was due and payable until the date such amount is paid in full.
(b) Interest on each LIBOR Loan shall be computed on the
basis of a year of 360 days and calculated for the actual number of days
elapsed. Interest on each Prime Loan shall be computed on the basis of a year
of 365 days and calculated for the actual number of days elapsed. Interest on
each Loan shall be paid (1) quarterly in arrears on each December 31, March 31,
June 30 and September 30 beginning December 31, 1993 and continuing through and
including the Revolving Credit Termination Date with respect to any Prime Loan
outstanding during such quarter, (2) on the last day of the applicable Interest
Period for each LIBOR Loan, provided that if such Interest Period extends for
six months, interest shall also be paid on the day three months after the first
day of such Interest Period, and (3) upon payment in full of the principal
amount of such Loan. Payments of interest with respect to each LIBOR Loan
pursuant to the preceding sentence shall consist of accrued and unpaid interest
on the applicable LIBOR Loan from and including the first day of the Interest
Period applicable to such LIBOR Loan (or, in the case of the payment of
interest on the last day of an Interest Period of six months for a LIBOR Loan,
from and including the date of prior payment of interest on such LIBOR Loan
during such Interest Period) to but excluding the date of payment. Payments of
interest with respect to each Prime Loan pursuant to the second preceding
sentence shall consist of accrued and unpaid interest on the applicable Prime
Loan from and including the first day such Prime Loan is outstanding to but
excluding either the date of payment or conversion of such Prime Loan.
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(c) Promptly after the determination of any interest rate
provided for herein or any change therein, the Agent shall give notice thereof
to the Borrowers.
2.5. PAYMENT OF PRINCIPAL.
(a) The principal amount of each Loan shall be due and
payable in full on the Revolving Credit Termination Date. Each Borrower,
jointly and severally, shall be responsible for each such principal amount.
(b) Each payment of principal (including any prepayment)
of any Loan shall be made in an amount of at least $750,000 or such greater
amount which is an integral multiple of $250,000 in excess thereof or in an
amount equal to the entire outstanding principal balance of such Loan to the
Agent at the Principal Office, for the account of each Lender's applicable
Lending Office, in Dollars and in immediately available funds before 3:00 P.M.,
Charlotte, North Carolina time, on the date such payment is due. Dollar
payments received by the Agent after such time shall be deemed received on the
next succeeding Business Day. The Agent may, but shall not be obligated to,
debit the amount of any such payment which is not made by such time to any
ordinary deposit account of the Borrowers with the Agent. Any Borrower shall
endeavor to give the Agent prior telephonic notice of any payment of principal,
such notice to be given by not later than 11:00 A.M., Charlotte, North Carolina
time, on the date of such payment.
(c) The Agent shall deem any payment by or on behalf of
the Borrowers hereunder that is not made both (1) in Dollars and in immediately
available funds and (2) prior to 3:00 P.M., Charlotte, North Carolina time
(other than if such payment is made by a debit by the Agent to an account of
any Borrower therewith), to be a non-conforming payment. Any such payment
shall not be deemed to be received by the Agent until the time such funds
become available funds, provided that in the case of a nonconforming payment
described in clause (2) above such payment shall be deemed received on the next
succeeding Business Day. The Agent shall give prompt telephonic notice to the
Borrowers and each of the Lenders (confirmed in writing) if any payment is
non-conforming.
(d) In the event that any payment hereunder or under the
Notes becomes due and payable on a day other than a Business Day, then, subject
to the restrictions set forth in clause (ii) of the definition of "Interest
Period," such due date shall be extended to the next succeeding Business Day;
provided that interest shall continue to accrue during the period of any such
extension.
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2.6. USE OF PROCEEDS. The proceeds of the Loans made pursuant to
the Revolving Credit Facility shall be used by the Borrowers and their
Subsidiaries to finance working capital needs, for the repayment of any debt
obligations of the Borrowers and their Subsidiaries existing on the date of
this Agreement and for general corporate purposes of the Borrowers.
2.7. NOTES. All Loans made by each Lender shall be evidenced by,
and be repayable with interest, jointly and severally by each Borrower, in
accordance with the terms of, a promissory note payable to the order of such
Lender in the amount of its Applicable Commitment Percentage of the Total
Commitment, which Note shall be dated the Closing Date or such later date
pursuant to an Assignment and Acceptance and shall be duly completed, executed
and delivered by each Borrower. Each Lender is hereby authorized to record the
date and amount of each Loan made by such Lender, and the date and amount of
each payment of principal thereof, on such Lender's internal books and records
and then attach such information as a schedule to its Note, provided that the
failure of any Lender so to record any such information (or any error in such
recordation) shall not affect the Obligations of any Borrower with respect to
such Loan.
2.8. PRO RATA PAYMENTS. Except as otherwise provided herein, (a)
each payment by any Borrower on account of the principal of and interest on the
Loans and fees (other than the Agent's fees payable under Section 10.11 hereof,
which shall be retained by the Agent) described in this Agreement shall be made
to the Agent for the account of the Lenders pro rata based on their Applicable
Commitment Percentages (other than with respect to a "deficiency advance" under
Section 2.13), (b) all payments to be made by any Borrower for the account of
each of the Lenders on account of principal, interest and fees, shall be made
without set-off or counterclaim, and (c) the Agent will promptly distribute
payments received to the Lenders entitled thereto.
2.9. VOLUNTARY REDUCTION IN COMMITMENT. The Borrowers shall have
the right from time to time, upon not less than three (3) Business Days written
notice signed by all of the Borrowers to the Agent, to reduce the Total
Commitment. The Agent shall give each Lender, within one (1) Business Day,
telephonic notice (confirmed in writing) of such reduction. Each such
reduction shall be in the aggregate amount of $750,000 or such greater amount
which is in an integral multiple of $250,000 in excess thereof, or such lesser
amount as shall constitute the Total Commitment then existing as a result of
any one or more previous reductions thereof, and shall permanently reduce the
Revolving Loan Commitment of each Lender pro rata. No such reduction shall
result in the payment of any LIBOR Loan other than on the last day of the
Interest Period of such Loan (except as permitted by Section 2.10(c)). Each
reduction of the Total Commitment shall
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be accompanied by payment of the Notes, jointly and severally by the Borrowers,
to the extent that the aggregate principal amount of the outstanding Loans
exceeds the Total Commitment after giving effect to such reduction, together
with accrued and unpaid interest on the amounts prepaid and payment of all sums
payable by any Borrower as set forth in Section 3.4 hereof.
2.10. PREPAYMENT OF LOANS. Each Borrower shall have the right from
time to time to prepay all or a portion of outstanding principal balance under
the Loans, (a) without penalty at any time with respect to Prime Loans, (b)
without penalty at the end of the applicable Interest Period with respect to
LIBOR Loans and (c) prior to the end of the applicable Interest Period with
respect to LIBOR Loans upon receipt by the Agent, for the benefit of the
Lenders entitled thereto, of all sums payable by any Borrower as set forth in
Section 3.4 hereof.
2.11. CONVERSIONS AND ELECTIONS OF INTEREST PERIODS. The duration
of the initial Interest Period for each LIBOR Loan shall be as specified in the
Borrowing Notice. Provided that no Event of Default shall have occurred and be
continuing and subject to the limitations set forth below and in Sections
3.1(b), 3.2, 3.3 and 3.5(b) hereof, the Borrowers may on three (3) LIBOR
Business Days' notice to the Agent on or before 11:00 A.M. Charlotte, North
Carolina time:
(a) elect a subsequent Interest Period for all or a
portion of the outstanding LIBOR Loans to begin on the last day of the Interest
Period for such LIBOR Loans;
(b) convert all or a portion of the outstanding LIBOR
Loans to Prime Loans on the last day of the Interest Period for such LIBOR
Loans; and
(c) convert all or a portion of the outstanding Prime
Loans to LIBOR Loans on any date.
Notice of any such elections or conversions shall specify the
effective date of such election or conversion and the Interest Period to be
applicable to the LIBOR Loan as continued or converted. Each election and
conversion pursuant to this Section 2.11 shall be binding on all of the
Borrowers and shall be subject to the limitations on LIBOR Loans set forth in
the definition of "Interest Period" herein and in Sections 2.1, 2.2 and 2.3
hereof. If the Agent does not receive a notice of election of duration of an
Interest Period or to convert an outstanding LIBOR Loan by the time prescribed
above, the Borrowers shall be deemed to have elected to convert such LIBOR Loan
to a Prime Loan on the last day of the Interest Period for such LIBOR Loan.
All such continuations or conversions of Loans
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shall be effected pro rata based on the Applicable Commitment Percentages of
the Lenders.
2.12. FEES.
(a) For the period beginning on the date of each Lender's
commitment hereunder and ending on the Revolving Credit Termination Date, the
Borrowers agree, jointly and severally, to pay to the Agent, for the pro rata
benefit of the Lenders based on their Applicable Commitment Percentages, an
unused commitment fee for such period equal to the sum of: (i) the amount
determined by applying a rate of one-half of one percent (0.5%) per annum to
the amount by which the average daily amount during such period of the Total
Fee Baseline exceeds the sum of the average daily amount during such period of
outstanding Loans to all Borrowers, plus (ii) the amount determined by applying
a rate of one-fourth of one percent (.25%) per annum to the average daily
Unavailable Commitment Amount during such period. Such payments of fees
provided for in this Section 2.12(a) shall be due in arrears on each December
31, March 31, June 30 and September 30 beginning December 31, 1993 and
continuing through and including the Revolving Credit Termination Date.
Notwithstanding the foregoing, and without limitation of or prejudice to any
other right or remedy available to the Borrower by contract or at law, so long
as any Lender fails to make available any portion of its Revolving Loan
Commitment when requested, such Lender shall not be entitled to receive payment
of its pro rata share of such fee until such Lender shall make available such
portion.
(b) The Borrowers have agreed to pay to NationsBank a
structuring fee as set forth in that Letter Agreement of even date herewith by
and between the Borrowers and NationsBank.
2.13. DEFICIENCY ADVANCES. No Lender shall be responsible for any
default of any other Lender in respect to such other Lender's obligation to
make any Loan hereunder nor shall the Revolving Loan Commitment of any Lender
hereunder be increased as a result of such default of any other Lender.
Without limiting the generality of the foregoing, in the event any Lender shall
fail to advance funds to the Borrowers as herein provided, NationsBank may in
its discretion, but shall not be obligated to, advance under the Note in its
favor as a Lender all or any portion of such amount (the "deficiency advance")
and shall thereafter be entitled to payments of principal of and interest on
such deficiency advance in the same manner and at the same interest rate or
rates to which such other Lender would have been entitled had it made such
advance under its Note; provided that, upon payment to NationsBank from such
other Lender of the entire outstanding amount of such deficiency advance,
together with interest thereon, from the most recent date or dates interest was
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paid to NationsBank by any Borrower on each Loan comprising the deficiency
advance at the Federal Funds Effective Rate, then such payment shall be
credited against the Note of NationsBank in full payment of such deficiency
advance and the Borrowers shall be deemed to have borrowed the amount of such
deficiency advance from such other Lender as of the most recent date or dates,
as the case may be, upon which any payments of interest were made by any
Borrower thereon.
2.14. UNAVAILABLE COMMITMENT AMOUNT; REDUCTION IN COMMITMENT. The
Total Commitment shall be reduced from time to time by an amount (the
"Unavailable Commitment Amount") equal to: (I) the aggregate amount of all then
outstanding Indebtedness for Money Borrowed (other than Existing Capitalized
Leases) of each Borrower, Borrower Subsidiary, Sector Subsidiary, Subsidiary of
a Sector Subsidiary and any other Baldwin Subsidiary (other than Indebtedness
under the Senior Note Documents), less (II) $10,000,000; provided that the
Unavailable Commitment Amount shall not be less than $0.
2.15. AUTHORITY TO DEBIT BORROWER ACCOUNT. To the extent the Agent
is entitled to withdraw any amount from the Borrower Account pursuant to any
Loan Document, each Borrower hereby authorizes the Agent to debit such amount
from the Borrower Account even if it is maintained with a Person other than the
Agent.
ARTICLE III
YIELD PROTECTION AND ILLEGALITY
3.1. ADDITIONAL COSTS.
(a) Each Borrower, jointly and severally, shall promptly
pay to the Agent for the account of a Lender from time to time, following
delivery of the written explanation required under Section 3.1(c), such amounts
as such Lender may reasonably determine to be necessary to compensate it for
any material costs incurred by such Lender which it determines are attributable
to its making or maintaining any LIBOR Loan or its obligation to make any LIBOR
Loans, or any reduction in any amount receivable by such Lender under this
Agreement or the Notes in respect of any of such LIBOR Loans or such
obligation, including reductions in the rate of return on a Lender's capital
(such increases in costs and reductions in amounts receivable and returns being
herein called "Additional Costs"), resulting from any Regulatory Change which:
(1) changes the basis of taxation of any amounts payable to such Lender under
this Agreement or its Notes in respect of any of such LIBOR Loans (other than
changes in respect of taxes imposed on or measured by the income of such Lender
or
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of its applicable Lending Office by any jurisdiction in which the Lender is
subject to tax and other than changes for which (and only to the extent that)
the Lender may obtain a foreign tax credit or similar offset or tax benefit);
or (2) imposes or modifies any reserve, special deposit, or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Lender (other than the Reserve
Requirement or any other such reserve, deposit or requirement reflected in the
LIBOR Rate, computed in accordance with the definition of such term set forth
in Section 1.1 hereof); or (3) has or would have the effect of reducing the
rate of return on capital of any such Lender to a level below that which the
Lender could have achieved but for such Regulatory Change (taking into
consideration such Lender's policies with respect to capital adequacy); or (4)
imposes any other condition, not involving a change in the basis of taxation,
adversely affecting such Lender under this Agreement or the Notes. Each Lender
will notify the Borrowers of any event occurring after the Closing Date which
would entitle it to compensation pursuant to this Section 3.1(a) as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation.
(b) Without limiting the effect of the foregoing
provisions of this Section 3.1, in the event that, by reason of any Regulatory
Change, any Lender either (1) incurs Additional Costs based on or measured by
the excess above a specified level of the amount of a category of deposits or
other liabilities of such Lender which includes deposits by reference to which
the interest rate on LIBOR Loans is determined as provided in this Agreement or
a category of extensions of credit or other assets of such Lender which
includes LIBOR Loans or (2) becomes subject to restrictions on the amount of
such a category of liabilities or assets which it may hold, then, if such
Lender so elects by notice to the other Lenders, the Agent and the Borrowers,
the obligation of such Lender to make, and to convert Prime Loans into, LIBOR
Loans hereunder shall be suspended until the date such Regulatory Change ceases
to be in effect and the Borrowers shall, on the last day(s) of the then current
Interest Period(s) for outstanding LIBOR Loans, convert such LIBOR Loans into
Prime Loans, in accordance with Section 2.11 hereof.
(c) Each Lender will notify the Borrowers of any event
occurring after the date of this Agreement that will entitle such Lender to
compensation under Section 3.1 as promptly as practicable; provided, however,
that each Lender will designate a different Lending Office for the Loans of
such Lender affected by such event or by the matters requiring compensation
pursuant to Section 3.4, and take other measures, if such designation or other
measures will avoid the need for, or reduce the amount of, such compensation
and will not result in a material cost to, or be otherwise disadvantageous to,
such Lender in its
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determination. Determinations by any Lender for purposes of this Section 3.1
of the effect of any Regulatory Change on its costs of making or maintaining,
or being committed to make, Loans, or on amounts receivable by it in respect of
Loans, and of the additional amounts required to compensate the Lender in
respect of any Additional Costs, shall be conclusive absent demonstrable error.
The Lender requesting such compensation shall upon request furnish to the
Borrowers a written explanation of the Regulatory Change and calculations, in
reasonable detail, and setting forth such Lender's determination of any such
Additional Costs.
(d) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof agrees that it will deliver
to the Borrowers and the Agent, at the time of its entering into this Agreement
and, in any event, prior to any Person making any payment to such Lender
hereunder, (1) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or successor applicable form, as the case may be, or
other manner of certification, establishing that payments of interest, fees and
other amounts hereunder are either not subject to or totally exempt from United
States Federal withholding tax and (2) an Internal Revenue Service Form W-8 or
W-9 or successor applicable form. Each such Lender also agrees to deliver to
the Borrowers and the Agent two further copies of the said Form 1001 or 4224
and Form W-8 or W-9, or successor applicable forms or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Borrowers,
unless in any such case a Regulatory Change has occurred prior to the date on
which any such delivery would otherwise be required and such Regulatory Change
in and of itself (that is, not as a result of a change in Lending Office or
other action on the part of the Lender) prevents such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises each of the Borrowers and the Agent. Such Lender shall certify (1) in
the case of a Form 1001 or 4224, that it is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes and (2) in the case of a Form W-8 or W-9, that it is entitled to
an exemption from United States backup withholding tax. Any failure by the
Lender to comply with this Section 3.1(d) or Section 11.1(f) shall, without
limitation, preclude such Lender from obtaining payment from the Borrowers of
any additional costs under Section 3.1(a) to the extent such additional costs
are proximately caused by such failure to comply.
3.2. SUSPENSION OF LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any
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interest rate for any LIBOR Loan for any Interest Period therefor, the Agent
determines (which determination shall be conclusive absent manifest error)
that:
(a) quotations of interest rates for the relevant
deposits referred to in the definition of "Base Rate" in Section 1.1 hereof are
not being provided in the relevant amounts or for the relevant maturities for
purposes of determining the rate of interest for such LIBOR Loan as provided in
this Agreement; or
(b) the relevant rates of interest referred to in the
definition of "Base Rate" in Section 1.1 hereof upon the basis of which the
LIBOR Rate for such Interest Period is to be determined do not adequately
reflect the cost to the Lenders of making or maintaining such LIBOR Loan for
such Interest Period;
then the Agent shall give the Borrowers prompt notice thereof, and so long as
such condition remains in effect, the Lenders shall be under no obligation to
make LIBOR Loans or to convert Prime Loans into LIBOR Loans, and the Borrowers
shall, on the last day(s) of the then current Interest Period(s) for
outstanding LIBOR Loans convert such LIBOR Loans into Prime Loans, if available
hereunder, in accordance with Section 2.11 hereof. The Agent shall give the
Borrowers notice describing in reasonable detail any event or condition
described in this Section 3.2 promptly following the Agent's determination that
the availability of LIBOR Loans is, or is to be, suspended as a result thereof.
3.3. ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender to honor its
obligation to make or maintain LIBOR Loans hereunder, then such Lender shall
promptly notify the Borrowers thereof (with a copy to the Agent) and such
Lender's obligation to make or continue LIBOR Loans, or convert Prime Loans
into LIBOR Loans, shall be suspended until such time as such Lender may again
make and maintain LIBOR Loans, and such Lender's outstanding LIBOR Loans shall
be converted into Prime Loans in accordance with Section 2.11 hereof or, in the
event such Lender's outstanding LIBOR Loans must be converted into Prime Loans
prior to the end of the current Interest Period therefor, such Lender's
outstanding LIBOR Loans shall be so converted at such time, provided that each
Borrower, jointly and severally, shall be obligated to pay such Lender such
amounts as may otherwise be required pursuant to Section 3.4 hereof in such
instance.
3.4. COMPENSATION. Each Borrower, jointly and severally, shall
promptly pay to the Agent for the account of each Lender, upon the request of
such Lender through the Agent, such amount or amounts as shall be sufficient
(in the reasonable determination
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of Lender) to compensate it for any loss, cost or out-of-pocket expense
incurred by it as a result of:
(a) any payment, prepayment or conversion of a LIBOR
Loan, including without limitation in connection with any reduction in the
Total Commitment pursuant to Sections 2.9, 2.14 or 2.15 hereof, on a date other
than the last day of the Interest Period for such LIBOR Loan; or
(b) any failure by the Borrowers to borrow a LIBOR Loan
on the date for such borrowing specified in the relevant Borrowing Notice under
Section 2.3 hereof;
such compensation to include, without limitation, an amount equal to the
excess, if any, of (1) the amount of interest which would have accrued on the
principal amount so paid, prepaid, converted, not borrowed or reduced for the
period from the date of such payment, prepayment, conversion, failure to borrow
or reduction to the last day of the then current Interest Period for such Loan
(or, in the case of a failure to borrow, the Interest Period for such Loan
which would have commenced on the date scheduled for such borrowing) at the
applicable rate of interest for such LIBOR Loan provided for herein minus the
LIBOR Interest Addition for such Loan over (2) the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks of amounts comparable to such principal amount and
maturities comparable to such period (as reasonably determined by such Lender).
A determination of a Lender as to the amounts payable pursuant to this Section
3.4 shall be conclusive absent demonstrable error. The Lender requesting
compensation under this Section 3.4 shall furnish to the Borrowers upon written
request written calculations in reasonable detail setting forth such Lender's
determination of the amount of such compensation.
3.5. SUBSTITUTION OF LOANS. If (a) the obligation of any Lender to
make, continue or convert a Prime Loan into a LIBOR Loan has been suspended
pursuant to Section 3.1(b), 3.2 or 3.3 hereof, or (b) any Lender has required
payment of compensation under Section 3.1(a) and the Borrowers have elected
upon five LIBOR Business Days prior written notice signed by all of the
Borrowers to the Agent that this Section 3.5 shall be applicable, then in
either event, unless and until the Borrowers have been notified that the
circumstances resulting in such suspension or compensation no longer exist or
are no longer applicable, all Loans which otherwise would have been so made,
continued or converted shall be made or continued as Prime Loans by such
Lender, and all payments of interest and principal thereon shall be made by the
Borrowers on such dates as if such Prime Loans had been made as, remained or
converted into LIBOR Loans.
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ARTICLE IV
CONDITIONS TO MAKING LOANS
4.1. CONDITIONS OF INITIAL ADVANCE. The obligation of NationsBank
to make the initial Advance is subject to the condition precedent that
NationsBank shall have received, on or before the Closing Date, in form and
substance satisfactory to it, the following:
(a) executed originals of each of this Agreement, the
Notes, the Intercreditor Agreement, the Guaranties, the Pledge Agreements and
the other Loan Documents, together with all schedules and exhibits thereto;
(b) copies of the executed Senior Note Documents;
(c) certificates of insurance evidencing compliance with
the insurance requirements contained herein and in the Security Instruments;
(d) the Pledged Borrower Stock, the Pledged Sector
Subsidiary Stock, the Pledged BAM Subsidiary Stock, the Pledged Baldwin
Technology Subsidiary Stock, and the Pledged Enkel Subsidiary Stock, with such
stock powers duly executed in blank as NationsBank shall require;
(e) written evidence of Baldwin's Consolidated Net Worth
in an amount not less than $70,000,000;
(f) a certificate of the Chief Financial Officer of BAM
and Baldwin, respectively, and the Vice President and Treasurer of BTL,
certifying that each Borrower is Solvent, and that Baldwin and its Subsidiaries
on a consolidated basis are Solvent, in each case as of the Closing Date after
giving effect to the transactions contemplated hereby on such date, such
certificates being in the form attached hereto as Exhibit F and incorporated
herein by reference;
(g) consolidated financial statements of Baldwin and its
Subsidiaries balance sheets of BAM, compilation report and balance sheet of
BTL, all as described in Section 6.2 ;
(h) (1) unaudited consolidated and consolidating balance
sheet for Baldwin and its Subsidiaries as of September 30, 1993, (2) an
unaudited consolidated cash flow statement for Baldwin and its Subsidiaries for
the current Fiscal Year through and including September 30, 1993, (3) an
unaudited balance sheet for BAM as of September 30, 1993, and (4) an unaudited
cash flow statement for BAM for the current Fiscal Year through and including
September 30, 1993;
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(i) organizational chart of Baldwin, each Borrower, each
Sector Subsidiary and certain Affiliates, as selected by and in detail
acceptable to the Agent;
(j) notice of appointment of additional Authorized
Officers, if any;
(k) work papers of BAM relating to Accounts of BAM and its
consolidated Subsidiaries, which work papers were prepared in connection with
the consolidated financial statements of Baldwin and its Subsidiaries described
in Section 6.2 that are dated as of June 30, 1993;
(l) a certificate of the Chief Financial Officer of BAM
that (1) all of the Eligible Inventory reflected in the initial Borrowing Base
Certificate complies in all respects, as of October 31, 1993, with the
definition of "Eligible Inventory", and (2) that each of the Eligible Accounts
reflected in the initial Borrowing Base Certificate complies in all respects,
as of October 31, 1993, with the definition of "Eligible Accounts";
(m) favorable written opinions of counsel and certain
local counsel to the Borrowers and the Guarantors dated the Closing Date,
addressed to the Agent and the Lenders and satisfactory to Smith Helms Mulliss
& Moore, special counsel to the Agent, with regard collectively to the matters
set forth in Exhibit G-1 and Exhibit G-2 attached hereto and incorporated
herein by reference;
(n) resolutions of the board of directors (or of the
appropriate committee thereof) of each Borrower certified by its Secretary or
Assistant Secretary as of the Closing Date, appointing the initial Authorized
Officers and approving and adopting the Loan Documents to be executed by such
Borrower on the Closing Date, and authorizing the execution, delivery and
performance thereof; and specimen signatures of officers of each Borrower
executing the Loan Documents, certified by the Secretary or Assistant Secretary
of each Borrower;
(o) resolutions of the board of directors (or the
appropriate committee thereof) of Baldwin certified by its Secretary or
Assistant Secretary as of the Closing Date, approving and adopting the Loan
Documents to be executed by Baldwin on the Closing Date, and authorizing the
execution, delivery and performance thereof; and specimen signatures of
officers of Baldwin executing the Loan Documents, certified by the Secretary or
Assistant Secretary thereof;
(p) resolutions of the board of directors of each Sector
Subsidiary (or the appropriate committee thereof), certified by its Secretary
or Assistant Secretary as of the
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Closing Date, approving and adopting the Loan Documents to be executed by such
Sector Subsidiary and authorizing the execution, delivery and performance
thereof; and specimen signatures of officers of each Sector Subsidiary
executing the Loan Documents, certified by the Secretary or Assistant Secretary
thereof;
(q) resolutions of the board of directors of Baldwin
Technology (or appropriate committee thereof), certified by its Secretary or
Assistant Secretary as of the Closing Date, approving and adopting the Loan
Documents to be executed by Baldwin Technology on the Closing Date, and
authorizing the execution, delivery and performance thereof; and specimen
signatures of officers of Baldwin Technology executing the Loan Documents,
certified by the Secretary or Assistant Secretary thereof;
(r) with respect to each Borrower Subsidiary, resolutions
of the board of directors (or the appropriate committee thereof) of such
Borrower Subsidiary certified by its Secretary or Assistant Secretary as of the
Closing Date, approving and adopting the Loan Documents to be executed by such
Borrower Subsidiary on the Closing Date, and authorizing the execution,
delivery and performance thereof; and specimen signatures of officers of such
Borrower Subsidiary executing the Loan Documents, certified by the Secretary or
Assistant Secretary thereof;
(s) (i) the charter documents of each of the Borrowers,
Baldwin, and the Sector Subsidiaries certified as of a recent date by the
Secretary of State of such corporation's state of incorporation, and (ii) the
charter documents of each Borrower Subsidiary certified as of the Closing Date
as true, correct and complete by such corporation's Secretary or Assistant
Secretary;
(t) the bylaws of each of the Borrowers, Baldwin, the
Sector Subsidiaries, Baldwin Technology and each Borrower Subsidiary certified
as of the Closing Date as true, correct and complete by such corporation's
Secretary or Assistant Secretary;
(u) (i) for each of the Borrowers, Baldwin and the Sector
Subsidiaries certificates issued as of a recent date by the Secretary of State
of the state of its incorporation as to its corporate good standing therein,
and (ii) for each Borrower Subsidiary, a "long-form" certificate issued as of
a recent date by the Secretary of State of the state of its incorporation as to
its corporate good standing therein;
(v) appropriate certificates of qualification of each of
the Borrowers, Baldwin, the Sector Subsidiaries, Baldwin Technology and each
Borrower Subsidiary to do business and of its corporate good standing issued as
of a recent date by the
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Secretary of State of each jurisdiction in which the failure to qualify to do
business would reasonably be expected to have a Material Adverse Effect on
Baldwin, and Significant Subsidiary or the Consolidated Group;
(w) certificates of the relevant taxing authorities in
each of the jurisdiction referred to in clauses (u) and (v) above with respect
to each Borrower and each Guarantor, certifying that each of the Borrowers and
each of the Guarantors has filed all necessary tax returns and paid all taxes
due and owing.
(x) executed Letter Agreement of even date herewith
regarding the structuring fee and evidence of payment thereof;
(y) initial Borrowing Notice;
(z) initial Borrowing Base Certificate;
(aa) all fees payable by the Borrower on or before the
Closing Date to the Agent and the Lenders (which may be paid from the proceeds
of the initial Advance); and
(ab) such other documents, instruments, certificates and
opinions as the Agent or any Lender may reasonably request on or prior to the
Closing Date in connection with the consummation of the transactions
contemplated hereby.
4.2. CONDITIONS OF LOANS. The obligations of the Lenders to make any
Advance hereunder on or subsequent to the Closing Date are subject to the
satisfaction of the following conditions:
(a) the Agent shall have received a notice of such
borrowing or request as required by Section 2.3 hereof;
(b) the representations and warranties of Baldwin, the
Borrowers, the Guarantors and the Baldwin Subsidiaries set forth in Article VI
hereof and in each of the other Loan Documents shall be true and correct in all
material respects on and as of the date of such Advance, with the same effect
as though such representations and warranties had been made on and as of such
date, except to the extent that such representations and warranties expressly
relate to an earlier date; and
(c) at the time of each such Advance, (1) no Default or
Event of Default shall have occurred and be continuing, (2) the Agent shall not
have accelerated the maturity of the Notes as a result of an Event of Default,
(3) no Material Adverse Effect with respect to Baldwin, any Significant
Subsidiary or the Consolidated Group shall have occurred since the date of the
most recent financial statements delivered to the Agent pursuant to Section
7.1, and (4) all of the Security Instruments shall have
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remained in full force and effect, and the perfection and priority of the Liens
granted thereunder shall have remained unchanged.
In the case of each Advance hereunder (other than the initial Advance if such
initial Advance is made on the Closing Date) the Borrower's notice to the Agent
with respect to the making of such Advance shall be deemed to be a
representation and warranty by the Borrower on the date of such Advance as to
the satisfaction of the conditions referred to in (b) and (c) of this Section
4.2.
ARTICLE V
SECURITY; GUARANTIES
5.1. SECURITY. As security for the full and timely payment and
performance of all Obligations now existing or hereafter arising, the Borrowers
and Baldwin shall on or before the Closing Date cause to be delivered to the
Agent, in form and substance acceptable to the Agent, each of the Pledge
Agreements together with certificates representing the Pledged Sector
Subsidiary Stock, the Pledged Borrower Stock, the Pledged BAM Subsidiary Stock,
the Pledged Baldwin Technology Subsidiary Stock and such stock powers duly
executed in blank as may be required by the Agent.
5.2. GUARANTY. To guarantee the full and timely payment and
performance of all Obligations now existing or hereafter arising, the Borrowers
and Baldwin shall cause to be delivered to the Agent, in form and substance
acceptable to the Agent, on or before the Closing Date: (1) the Baldwin
Guaranty, (2) the Sector Subsidiary Guaranty and (3) the BAM Subsidiary
Guaranty.
5.3. NEW SUBSIDIARIES. (a) If any Borrower acquires or forms a new
Subsidiary (or if Enkel International ever owns any assets), the Borrowers
shall immediately cause such Subsidiary (including Enkel International) to
execute a guaranty of the Obligations in substantially the form of the BAM
Subsidiary Guaranty (with appropriate changes to reflect such Subsidiary's name
and relationship to the respective Borrower), unless such Subsidiary is a BAM
Foreign Subsidiary or a BTL Foreign Subsidiary. The Borrowers shall also
immediately pledge and deliver to the Agent, and shall promptly cause any other
relevant stockholder to pledge and deliver to the Agent, all issued and
outstanding stock of such Subsidiary (or, if such Subsidiary is a BAM Foreign
Subsidiary or BTL Foreign Subsidiary, 65% of the issued and outstanding stock
of such Subsidiary) (in each case, pursuant to a pledge agreement substantially
similar to the form of the Baldwin Technology Pledge Agreement, to be executed
by such stockholder at such time) together with stock powers executed in blank.
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(b) If Baldwin acquires or forms a new direct Subsidiary, (or if
Baldwin Asia Pacific Ltd., which is currently a direct Subsidiary of Baldwin,
does not become, within 90 days of the date hereof, and thereafter remain, a
direct, wholly-owned Subsidiary of BAP), Baldwin shall immediately cause such
Subsidiary to execute a guaranty of the Obligations in substantially the form
of the Sector Subsidiary Guaranty, unless such Subsidiary is a Baldwin Foreign
Subsidiary. Baldwin shall also immediately pledge and deliver to the Agent,
all issued and outstanding stock of such Subsidiary (including Baldwin Asia
Pacific Ltd.) (or, if such Subsidiary is a Baldwin Foreign Subsidiary, 65% of
the issued and outstanding stock of such Subsidiary) (in each case, pursuant to
a pledge agreement substantially similar to the form of the Baldwin Pledge
Agreement, to be executed by Baldwin at such time) together with stock powers
executed in blank.
(c) The Lenders are and will be unwilling to make any Advances to any
Borrower after the date of acquisition or formation of any such Subsidiary (or
after Enkel International owns any assets, or if Baldwin Asia Pacific Ltd. is
not a direct, wholly-owned Subsidiary of BAP at the time specified above)
unless and until the respective guaranty and pledge agreement required by
subsection (a) or (b) above have been executed and delivered to the Agent,
together with the respective shares and stock powers.
5.4 CERTAIN STOCK OWNED BY SECTOR SUBSIDIARIES AND OTHER BALDWIN
SUBSIDIARIES. The Borrower and Baldwin shall promptly deliver to the Agent any
guaranty or pledge agreement executed by a Sector Subsidiary or any other
Baldwin Subsidiary pursuant to Section 8.3(b)(i) or 8.3(c) together with the
shares of stock pledged thereunder and stock powers executed in blank. The
Lenders are, and will be, unwilling to make any Advance to any Borrower after
the date of any loan, advance, issuance, sale or other disposition of any
shares giving rise to the obligation of a Sector Subsidiary or other Baldwin
Subsidiary to execute such a guaranty or pledge agreement, unless and until
such guaranty or pledge agreement has been executed and delivered to the Agent,
together with such shares and stock powers executed in blank.
5.5. FILING AND RECORDING INSTRUMENTS. The Borrowers shall at their
expense execute, deliver and file and re-file and record and re-record or
cause to be filed and re-filed and recorded and re-recorded all instruments
deemed necessary or advisable by the Agent to be filed and re-filed and
recorded or re-recorded and shall continue or cause to be continued the Liens
in the Collateral under the Loan Documents for so long as any of the
Obligations shall be outstanding and until the Revolving Credit Termination
Date.
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5.6. FURTHER ASSURANCES. At the request of the Agent, the Borrowers
will execute by their duly authorized officers, alone or with the Agent, any
certificate, instrument, statement or document and will procure any such
certificate, instrument, statement or document (and pay all connected costs)
which the Agent reasonably deems necessary to create or preserve the Liens (and
the perfection and priority thereof) of the Agent for the benefit of the
Lenders contemplated hereby and by the other Loan Documents.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Each Borrower and Baldwin represents and warrants (which
representations and warranties shall survive the delivery of the documents
mentioned herein and the making of the Loan) that:
6.1. ORGANIZATION, ETC. Baldwin and BAM are corporations duly
organized, validly existing and in good standing under the laws of the State of
Delaware, BTL is a corporation duly organized, validly existing and in good
standing under the laws of Bermuda, each of the Baldwin Subsidiaries and each
of the BAM Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is incorporated as set
forth in Schedule 6.1, and Baldwin, each Borrower and each of their
Subsidiaries has the corporate power and authority to own, operate and lease
its respective property and to carry on its respective business as now being
conducted. Baldwin, each Borrower and each of their Subsidiaries is duly
qualified and in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the failure to do so would have a
Material Adverse Effect on Baldwin, any Significant Subsidiary or the
Consolidated Group. Each of the Borrowers, BEC and BAP are wholly-owned
Subsidiaries of Baldwin. Schedule 6.1 sets forth the jurisdiction of
incorporation of the Baldwin Subsidiaries and each jurisdiction in which
Baldwin, each Borrower or any of their Subsidiaries is authorized to do
business as a foreign corporation. This Agreement, the Notes, the Borrowers
Pledge Agreement and any other Loan Agreement to which any Borrower is a party
have been duly authorized by all necessary corporate action on the part of such
Borrower and, when executed and delivered by such Borrower, will constitute
legal, valid and binding obligations of such Borrower, and, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws affecting the
enforcement or priority of creditors' rights generally, now or hereafter in
effect, and subject to the provision that equitable remedies shall be within
the discretion of the court having jurisdiction to exercise the same, are
enforceable in accordance with their respective terms. The Guaranties, the
Pledge Agreements and any other Loan Document
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to which Baldwin, any Sector Subsidiary, any BAM Subsidiary or any BTL
Subsidiary, as the case may be, and when executed and delivered by Baldwin,
such Sector Subsidiary, such BAM Subsidiary, or such BTL Subsidiary, as the
case may be, will constitute legal, valid and binding obligations of Baldwin,
such Sector Subsidiary, such BAM Subsidiary, or such BTL Subsidiary, as the
case may be, and, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement or priority of creditors' rights
generally, now or hereafter in effect, and subject to the provision that
equitable remedies shall be within the discretion of the court having
jurisdiction to exercise the same, are enforceable in accordance with their
respective terms. There are no Subsidiaries of Baldwin or any Borrower in
existence as of the Closing Date other than those listed in Schedule 6.1. As
of the Closing Date, neither Baldwin nor any Borrower owns any equity interest
in any Person other than the Persons set out in Schedule 6.1. All of the
outstanding capital stock of Baldwin is validly issued, fully paid and non-
assessable.
6.2. BUSINESS; FINANCIAL STATEMENTS. Baldwin has furnished the
Agent and each Lender with (i) audited consolidated balance sheets of Baldwin
and its Subsidiaries as of June 30 in each of the years 1988 through 1993 and
the related consolidated statements of income, of changes in shareholders'
equity and of cash flows and, as applicable, changes in financial position or
cash flows for the periods of twelve months ended on each such date; (ii) the
unaudited compiled balance sheet of BAM as of June 30 in each of the years 1990
through 1993 together with a compilation report with respect to the balance
sheet of BAM as of June 30, 1993, such report to be issued by the same
independent certified public accountants that prepared the audited balance
sheet of Baldwin and its Subsidiaries for the year ended June 30, 1993; and
(iii) the unaudited balance sheet of BTL as of October 28, 1993. The financial
statements referred to in this paragraph 6.2 including any related schedules
and/or notes (the "Financial Statements"), are true and correct in all material
respects, have been prepared in accordance with GAAP and show all liabilities
of Baldwin and its consolidated Subsidiaries (and in the case of the balance
sheet of BAM, all liabilities of BAM) required to be shown therein accordance
with GAAP. The balance sheets included in the Financial Statements fairly
present the condition of Baldwin and its consolidated Subsidiaries (including
BAM), of BAM and of BTL, as the case may be, as at the dates thereof, and the
statements of income, of changes in shareholders' equity and of cash flows
included in the Financial Statements fairly present the results of the
operations, the changes in shareholders' equity and the cash flows of Baldwin
and its consolidated Subsidiaries (including BAM) for the periods indicated.
Baldwin has furnished the Agent and each Lender with each filing or report
filed with the SEC under Section 13 or
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15(d) of the Exchange Act in respect of the fiscal year ended June 30, 1993.
There has been no change or event which has had a Material Adverse Effect on
Baldwin, any Significant Subsidiary or the Consolidated Group since June 30,
1993.
6.3. ACTIONS PENDING. Except as disclosed in Schedule 6.3, there is
no action, suit, investigation or proceeding pending or, to the knowledge of
any Borrower or any Borrower Subsidiary, threatened against Baldwin, any
Borrower or any of their Subsidiaries, or any properties or rights of Baldwin,
any Borrower or any of their Subsidiaries, by or before any court, arbitrator
or administrative or governmental body which might have a Material Adverse
Effect on Baldwin, any Significant Subsidiary or the Consolidated Group, or
impair any Borrower's ability to perform this Agreement, the Notes, the
Borrowers Pledge Agreement or any other Loan Document to which it is a party,
Baldwin's ability to perform the Baldwin Guaranty or any other Loan Document
Agreement to which it is a party or any Guarantor's ability to perform any
Guaranty, Pledge Agreement or other Loan Documents to which it is a party.
There are no actions or proceedings filed or pending or (to the best knowledge
of each Borrower) investigations pending or threatened against Baldwin, any
Borrower or any of their Subsidiaries which questions the validity or legality
or seeks damages in connection with this Agreement, the Notes or any other Loan
Document or any action taken or to be taken with respect to any of the
foregoing or any of the transactions contemplated hereby or thereby.
6.4. TITLE TO PROPERTIES. Each of Baldwin, the Borrowers and their
Subsidiaries has good title to its respective real properties (other than
properties which it leases) and good title to all of its other respective
properties and assets, including the properties and assets reflected in the
balance sheets as of June 30, 1993 included in the Financial Statements (other
than properties and assets disposed of in the ordinary course of business),
subject to no Lien of any kind except Liens permitted by Section 8.3(a). All
leases necessary in any material respect for the conduct of the respective
businesses of Baldwin, the Borrowers and their Subsidiaries are valid and
subsisting and are in full force and effect. As of the date of this Agreement,
all of the outstanding capital stock of the Borrowers, each of the Sector
Subsidiaries, each of the BAM Subsidiaries, and each of the other Baldwin
Subsidiaries listed in Schedule 6.1 is validly issued, fully paid and
non-assessable, is owned by the Persons and in the amounts listed on Schedule
6.1, which Persons collectively own 100% of the issued and outstanding shares
of capital stock of such Borrower and each such Subsidiary, and all such
capital stock owned by Baldwin, any Borrower or their Subsidiaries is owned
free and clear of any Lien of any kind and Baldwin, such Borrower or such other
Subsidiary has the right,
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subject only to limitations imposed by applicable law to receive dividends and
distributions on such capital stock.
6.5. TAX RETURNS AND PAYMENTS. Each of Baldwin, the Borrowers and
their Subsidiaries has filed all Federal, State, local and foreign income tax
returns, franchise tax returns, real and personal property tax returns and
other tax returns required by law to be filed by or on behalf of them or with
respect to their respective properties or assets other than those which the
failure to file in the aggregate do not and will not have a Material Adverse
Effect on Baldwin, any Significant Subsidiary or the Consolidated Group, and
all taxes, assessments and other governmental charges imposed upon any of
Baldwin, the Borrowers or their Subsidiaries or any of their respective
properties, assets, income or franchises which are due and payable have been
paid, other than those presently payable without penalty or interest, those
presently being contested in good faith by appropriate proceedings diligently
conducted and for which such reserves or other appropriate provisions, if any,
as may be required by GAAP have been made and those which in the aggregate with
all other unpaid taxes, assessments and governmental charges do not and will
not have a Material Adverse Effect on Baldwin, any Significant Subsidiary or
the Consolidated Group.
6.6. CONFLICTING AGREEMENTS AND OTHER MATTERS. None of Baldwin, the
Borrowers or any of their Subsidiaries is in violation of any term of its
charter or by-laws, or in breach of any term of any agreement (including any
agreement with stockholders), instrument, indenture, order, judgment, decree,
statute, law, rule or regulation to which it is subject, the consequences of
which violation or breach are reasonably likely to have a Material Adverse
Effect on Baldwin, any Significant Subsidiary or the Consolidated Group or
impair any Borrower's ability to perform this Agreement, the Notes, the
Borrowers Pledge Agreement or any other Loan Document to which it is a party,
Baldwin's ability to perform the Baldwin Guaranty or the other Loan Documents
to which it is a party or any Guarantor's ability to perform any Guaranty,
Pledge Agreement or other Loan Document to which it is a party. None of
Baldwin, the Borrowers or any of their Subsidiaries is a party to any contract
or agreement or subject to any charter or other corporate restriction which has
a Material Adverse Effect on Baldwin, any Significant Subsidiary or the
Consolidated Group. Neither the execution and delivery of this Agreement, the
Notes and the Loan Documents, nor fulfillment of nor compliance with the terms
and provisions of this Agreement, the Notes and the Loan Documents, will
conflict with the provisions of, or constitute a default under, or result in
any violation of, or result in the creation of any Lien upon any of the
properties or assets of Baldwin, any Borrower or any of their Subsidiaries
pursuant to, its charter or bylaws, any award of any arbitrator or any
agreement (including
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any agreement with stockholders), instrument, order, judgment, decree, statute,
law, rule or regulation to which it is subject. None of Baldwin, the Borrowers
or any of their Subsidiaries is a party to, or otherwise subject to any
provision contained in, any instrument evidencing Indebtedness, any agreement
relating thereto or any other contract or agreement (including its charter)
which limits the amount of, or otherwise imposes restrictions on the incurring
of, the Funded Debt to be evidenced by the Notes.
6.7. ERISA.
(a) To the best of each Borrower's knowledge, neither Baldwin
nor any Borrower nor any Related Person has breached any of the fiduciary rules
of ERISA or engaged in any prohibited transaction in connection with which
Baldwin, any Borrower or any Related Person could be subjected to (in the case
of any such breach) a suit for damages or (in the case of any such prohibited
transaction), either a civil penalty assessed pursuant to section 502(i) of
ERISA, a tax imposed under such section 4975 of the Code or a lien imposed
under section 412(n) of the Code, in any such case which would have a Material
Adverse Effect on Baldwin, any Significant Subsidiary or the Consolidated
Group.
(b) No Plan subject to Title IV of ERISA or any trust
created under any such Plan has been terminated since September 2, 1974 which
termination may reasonably be expected to have a Material Adverse Effect on
Baldwin, any Significant Subsidiary or the Consolidated Group. Neither Baldwin
nor any Borrower nor any Related Person has within the past six years
contributed, or had any obligation to contribute, to a single employer plan
that has at least two contributing sponsors not under common control or ceased
operations at a facility under circumstances which could result in liability
under the Code or ERISA that may reasonably be expected to have a Material
Adverse Effect on Baldwin, any Significant Subsidiary or the Consolidated
Group. No liability to the PBGC has been or is expected by Baldwin, any
Borrower or any Related Person to be incurred with respect to any Plan by
Baldwin, any Borrower or any Related Person which may reasonably be expected to
have a Material Adverse Effect on Baldwin, any Significant Subsidiary or the
Consolidated Group. There has been no reportable event (within the meaning of
section 4043(b) of ERISA) or any other event or condition with respect to any
Plan which presents a risk of termination of any such Plan by the PBGC under
circumstances which in any case could result in liability which may reasonably
be expected to have a Material Adverse Effect on Baldwin, any Significant
Subsidiary or the Consolidated Group.
(c) Except to the extent failure to do so would not
result in liability which may reasonably be expected to have a
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Material Adverse Effect on Baldwin, any Significant Subsidiary or the
Consolidated Group, (i) full payment has been made (or will be made within the
period described in section 412 of the Code) of all amounts which Baldwin, any
Borrower or any Related Person is required under the terms of each Plan to have
paid as contributions to such Plan as of the last day of the most recent fiscal
year of such Plan ended prior to the date hereof (or will be made within the
period described in section 404 of the Code), (ii) no accumulated funding
deficiency (as defined in section 302 of ERISA and section 412 of the Code),
whether or not waived, exists with respect to any Plan, and (iii) each Plan
satisfies the minimum funding standard of section 412 of the Code.
(d) (i) neither Baldwin nor any Borrower nor any Related
Person has been obligated to contribute to any Multiemployer Plan the
withdrawal from which has given rise or could give rise to liability that may
reasonably be expected to have a Material Adverse Effect on Baldwin, any
Significant Subsidiary or the Consolidated Group, and (iii) neither Baldwin nor
any Borrower nor any Related Person has been notified by the sponsor of a
Multiemployer Plan to which Baldwin, any Borrower or any Related Person is
obligated or has been obligated to contribute that such Multiemployer Plan has
been terminated or is in reorganization and no Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated if such reorganization or
termination could result in liability which may reasonably be expected to have
a Material Adverse Effect on Baldwin, any Significant Subsidiary or the
Consolidated Group.
(e) Neither Baldwin nor any Borrower nor any Related
Person has, or is expected to incur, any liability for post retirement benefits
under any and all welfare benefit plans (as defined in section 3(1) of ERISA),
whether written or unwritten, which are or have been established or maintained,
or to which contributions are or have been made, by Baldwin, any Borrower or
any Related Person which may reasonably be expected to have a Material Adverse
Effect on Baldwin, any Significant Subsidiary or the Consolidated Group.
(f) Neither Baldwin nor any Borrower nor any Related
Person has engaged in any transaction that could result in the incurrence of
any liabilities under section 4069 or section 4212 of ERISA which may
reasonably be expected to have a Material Adverse Effect on Baldwin, any
Significant Subsidiary or the Consolidated Group.
(g) The execution and delivery of this Agreement and the
making of the Loans will not involve any transaction which is subject to the
prohibitions of section 406 of ERISA or in connection with which a tax could be
imposed pursuant to section 4975 of the Code. The foregoing representation in
this paragraph
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(g) is made in reliance upon the representation and warranty of the Lenders set
forth in section 11.10 hereof.
6.8. ENVIRONMENTAL MATTERS. Each of Baldwin, the Borrowers and their
Subsidiaries has obtained all permits, licenses and other authorizations that
are required and is in compliance with all terms and conditions of all permits,
licenses, and other authorizations required to be obtained by it under all
applicable Environmental Laws, and is also in compliance with all other
applicable limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules, and timetables contained in any
Environmental Laws or in any regulation, ordinance, code, plan, order, decree,
judgment, injunction, notice, or demand letter issued, entered, promulgated, or
approved thereunder, except to the extent that failure so to comply does not
have a Material Adverse Effect on Baldwin, any Borrower or any of their
Subsidiaries. The Borrowers and Baldwin are not aware of any prior use of any
of the owned or leased properties of Baldwin, the Borrowers or any of their
Subsidiaries by any Person, that constitutes a violation of any Environmental
Laws, except to the extent that such violation does not have a Material Adverse
Effect on Baldwin, any Borrower, or any of their Subsidiaries. Neither any
Borrower nor Baldwin is aware of any event, condition, or activity which may
interfere with or prevent continued compliance by Baldwin, the Borrowers and
their Subsidiaries with all Environmental Laws, except to the extent that
failure so to continue to comply would not have a Material Adverse Effective on
Baldwin, Borrower or any of their Subsidiaries.
6.9. LABOR RELATIONS. There is not now pending, nor to the
knowledge of any Borrower or any Borrower Subsidiary threatened, any strike,
work stoppage, work slow-down, or material grievance or other dispute between
Baldwin, any Borrower or any of their Subsidiaries and any bargaining unit or
significant number of its respective employees.
6.10. DISCLOSURE. Neither this Agreement, the Notes, the other Loan
Documents nor any other document, certificate or statement furnished to the
Agent or any Lender by or on behalf of Baldwin, any Borrower or any Guarantor
in connection herewith contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein, in light of the circumstances under which they
were made, not misleading; provided that, an Event of Default shall not occur
solely because the Borrowers inadvertently include among the Eligible Accounts
referred to in any Borrowing Base Certificate an Account that fails to be an
Eligible Account because it is subject to a Lien (of which no Borrower has
knowledge or notice) or the inventory, goods, property, services or
consideration of which such Account
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constitutes proceeds is subject to any Lien (of which no Borrower has knowledge
or notice); provided further, in each case, upon any Borrower obtaining
knowledge or receiving notice that any such Account is not an Eligible Account,
the Borrowers shall promptly notify the Agent and the Lenders and shall
promptly deliver to the Agent a corrected Borrowing Base Certificate with such
Account removed from the Eligible Accounts. There is no fact peculiar to
Baldwin, any Borrower or any of their Subsidiaries which has a Material Adverse
Effect on Baldwin, any Significant Subsidiary or the Consolidated Group and
which has not been set forth in this Agreement, the Notes, the other Loan
Documents or in other documents, certificates and statements furnished to the
Agent and the Lenders by or on behalf of Baldwin, any Borrower or any Guarantor
prior to the date hereof in connection with the transactions contemplated by
this Agreement.
6.11. STATUS UNDER CERTAIN FEDERAL STATUTES. Neither Baldwin nor any
Borrower nor any of their Subsidiaries is (a) an "investment company" or a
company "controlled" by an "investment company" or an "open-end investment
company" or a "unit investment trust" or a "face-amount certificate company",
within the meaning of the Investment Company Act of 1940, as amended, (b) a
"holding company" or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act
of 1935, as amended, or (c) a "carrier", as defined in section 11,301(a)(1) of
Title 49 of the United States Code and subject to the provision of such Title.
Neither Baldwin nor any Borrower nor any of their Subsidiaries is a "national
of any designated foreign country", within the meaning of the Foreign Assets
Control Regulations or the Cuban Assets Control Regulations of the United
States Treasury Department, 31 C.F.R., Subtitle B, Chapter V, as amended, or
any regulations or rulings issued thereunder. Neither the making of the Loans
nor the use of such proceeds by the Borrowers as required by this Agreement
will violate the Foreign Assets Control Regulations, the Foreign Funds Control
Regulations, the Transaction Control Regulations, the Cuban Assets Control
Regulations, the Iranian Assets Control Regulations, the Libyan Sanctions
Regulations, the Iranian Transactions Regulations, the Iraqi Sanctions
Regulations, the Haitian Transactions Regulations, or any other regulations of
the U.S. Treasury Department (as set forth in 31 C.F.R., Subtitle B, Chapter V,
as amended), or any of Executive Orders 12,722, 12,724, 12,808 and 12,810 of
the President of the United States.
6.12. MARGIN STOCK. Neither Baldwin nor any Borrower nor any of their
respective Subsidiaries is engaged principally in, or has as one of its
important activities, the business of extending credit for the purpose of
purchasing or carrying any
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"margin stock" as such terms is defined in Regulation U, as amended (12 C.F.R.
Part 221), of the Board. The proceeds of the borrowings made pursuant to
Section 2.1 hereof will be used by the Borrowers only for the purposes set
forth in Section 2.6 hereof. None of such proceeds will be used by any
Borrower or any Borrower Subsidiary, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 224) of the Board. Neither any Borrower nor
any agent authorized to act, and acting, in its behalf (other than the other
parties to this Agreement) has taken or will take any action which would cause
this Agreement or any of the Loan Documents to violate any regulation of the
Board or to violate the Exchange Act or any state securities laws, in each case
as in effect on the date hereof.
6.13. NO CONSENTS, ETC. Neither the respective businesses or
properties of Baldwin, any Borrower, any Borrower Subsidiary, any Sector
Subsidiary or any Baldwin Subsidiary nor any relationship between Baldwin, any
Borrower, any Borrower Subsidiary, any Sector Subsidiary or any of Baldwin
Subsidiary and any other Person, nor any circumstance in connection with the
execution, delivery and performance of the Loan Documents and the transactions
contemplated thereby is such as to require a consent, approval or authorization
of, or filing, registration or qualification with, any governmental or other
authority or any other Person on the part of Baldwin, any Borrower, any
Borrower Subsidiary, any Sector Subsidiary or any Baldwin Subsidiary as a
condition to the execution, delivery and performance of, or consummation of the
transactions contemplated by, this Agreement or the other Loan Documents,
except where such consent, approval, authorization, filing, registration or
qualification has been obtained or effected, or will be obtained or effected in
the ordinary course or where the failure to obtain or effect the same could not
reasonably be expected to have a Material Adverse Effect on Baldwin, any
Significant Subsidiary or the Consolidated Group.
6.14. SOLVENCY. Baldwin, each Borrower, each Guarantor, and each of
their Subsidiaries is Solvent after giving effect to the transactions
contemplated by this Agreement and the other Loan Documents.
6.15. RESTRICTIONS ON DIVIDENDS. Except as set forth in this
Agreement, there are no restrictions on the ability of any Subsidiary to pay
dividends to Baldwin or any Borrower.
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6.16. NO SENIOR OR EQUAL DEBT. Neither Baldwin nor any Borrower, nor
any Borrower Subsidiary nor any Sector Subsidiary is directly or indirectly
liable with respect to (i) any Indebtedness that is senior to the Obligations,
or (ii) any Indebtedness for Money Borrowed (other than the Existing
Capitalized Leases and other than the Indebtedness under the Senior Note
Documents) that ranks equal to or pari passus with the Obligations.
6.17. SURVIVAL OF WARRANTIES AND REPRESENTATIONS. Each Borrower
covenants, warrants and represents to the Agent that all representations and
warranties of the Borrowers contained in this Agreement and the other Loan
Documents shall survive the execution, delivery and acceptance hereof and
thereof by the parties hereto and thereto and the closing of the transactions
described herein or related hereto and any investigation at any time made by or
on behalf of the Agent shall not diminish the Agent's right to reply thereon.
ARTICLE VII
AFFIRMATIVE COVENANTS
Until all principal and interest on the Loans are paid in full, all
fees, charges and other expenses then due and owing are paid in full and the
Total Commitment has been terminated in accordance with the terms hereof,
unless the Required Lenders shall otherwise consent in writing, each Borrower
and Baldwin will:
7.1. FINANCIAL REPORTING. Deliver or cause to be delivered to the
Agent and each Lender:
(a) as soon as practicable and in any event not more than 45
days after the end of each Fiscal Quarter of Baldwin (except the fourth
quarter), (i) a consolidated (and upon the request of the Agent or any Lender,
consolidating) balance sheet of Baldwin and its Subsidiaries, and a balance
sheet of each of BAM and BTL, in each case as at the end of such Fiscal Quarter
and for the Fiscal Year to date, and (ii) the related consolidated (and, with
respect to statements of income and changes in shareholders' equity, upon the
request of the Agent or any Lender, consolidating) statements of income, of
changes in shareholders' equity and of cash flows of Baldwin and its
Subsidiaries, and the respective statements of income and of changes in
shareholders' equity of each of BAM and BTL, in each case for such period(s)
setting forth, in each case in comparative form, figures for the corresponding
period(s) in the preceding Fiscal Year of Baldwin, all in reasonable detail and
in accordance with GAAP and certified by the chief accounting officer or chief
financial officer of Baldwin, BAM and BTL as
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fairly presenting the consolidated (and, if requested, consolidating) financial
condition of Baldwin and its Subsidiaries, and the financial condition of each
of BAM and BTL, as at the dates indicated and the consolidated results of their
operations and cash flows, in each case for the periods indicated, in
conformity with GAAP (except as disclosed in the certificate of such chief
accounting officer or chief financial officer with any changes in accounting
policies discussed in reasonable detail), subject to changes resulting from
year-end adjustments not material in scope or amount;
(b) as soon as practicable and in any event not more than
90 days after the end of each Fiscal Year of Baldwin, (i) a consolidated and
consolidating balance sheet of Baldwin and its Subsidiaries, and a balance
sheet of each of BAM and BTL, in each case as of the end of such Fiscal Year
and (ii) the related consolidated (and with respect to statements of income and
changes in shareholders' equity, upon the request of the Agent or any Lender,
consolidating) statements of income, of cash flows and of changes in
shareholders' equity of Baldwin and its Subsidiaries, and the respective
statements of income and of changes in shareholders' equity of each of BAM and
BTL, for such Fiscal Year, and setting forth in each case, in comparative form,
corresponding figures for the preceding Fiscal Year of Baldwin, all in
reasonable detail and in accordance with GAAP and (i) in the case of such
consolidated financial statements accompanied by a report thereon of Price
Waterhouse or other independent certified public accountants of recognized
national standing selected by Baldwin, which report shall be without
limitations to the scope of the audit and shall state that such consolidated
financial statements present fairly the financial condition of Baldwin and its
Subsidiaries as at the dates indicated and the consolidated results of their
operations and cash flows for the periods indicated in conformity with GAAP
(except as otherwise specified in such report) and that the audit by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards and (ii) in the
case of the financial statement of each of BAM and BTL, accompanied by a review
report with respect to such financial statements prepared by the same
independent certified public accountants that prepared the report referred to
in clause (i) above for such Fiscal Year;
(c) together with each delivery of financial statements
of Baldwin and its Subsidiaries pursuant to subparagraphs (a) and (b) of this
Section 7.1, a certificate of the chief financial officer of Baldwin and each
Borrower (i) stating that (A) the signer has reviewed the terms of this
Agreement and the Notes and has made, or caused to be made under his
supervision, a review in reasonable detail of the transactions and condition of
Baldwin and its Subsidiaries during
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the fiscal period covered by such financial statements and that such review has
not disclosed the existence during or at the end of such fiscal period, and
that to the best of his knowledge after reasonable investigation the signer has
no knowledge of the existence as at the date of such certificate, of any
condition or event which constitutes a Default or Event of Default or, if any
such condition or event existed or exists, specifying the nature and period of
existence thereof and what action Baldwin and the Borrowers have taken, are
taking or propose to take with respect thereto and (ii) Baldwin, the Borrowers
and their Subsidiaries are in compliance with the provisions of Sections 8.1,
8.2, 8.3 and 8.4 hereof and (B) demonstrating (with computations in reasonable
detail) compliance by Baldwin, the Borrowers and their Subsidiaries with the
provisions of Sections 8.1, 8.2, 8.3 and 8.4;
(d) together with each delivery of financial statements
of Baldwin and its Subsidiaries pursuant to subparagraph (b) of this Section
7.1, a certificate by Baldwin's independent public accountants stating (i) that
their audit examination has included a review of the terms of this Agreement
and the Notes as they relate to accounting matters and that such review is
sufficient to enable them to make the statement referred to in clause (iii) of
this subparagraph (d), (ii) whether, in the course of their audit examination,
there has been disclosed the existence during the Fiscal Year covered by such
financial statements (and whether they have knowledge of the existence as of
the date of such accountants' certificate) of any condition or event which
constitutes a Default or Event of Default under Sections 8.1, 8.2, 8.3 (other
than 8.3(a) or 8.3(g)) and 8.4 hereof, and if during their audit examination
there has been disclosed (or if they have knowledge of) such a condition or
event, specifying the nature and period of existence thereof (it being
understood, however, that such accountants shall not be liable to any Person by
reason of their failure to obtain knowledge of any Default or Event of Default
which would not be disclosed in the course of an audit conducted in accordance
with generally accepted auditing standards), and (iii) that based on their
annual examination nothing came to their attention which causes them to believe
that the information contained in the certificate of Baldwin's and each
Borrower's chief financial officer delivered pursuant to subparagraph (c) of
this Section 7.1 insofar as it relates to accounting or auditing matters is not
correct or that the matters set forth in such certificate are not stated in
accordance with the terms of this Agreement (it being understood that such
independent public accountants' examination was not primarily directed toward
determining the accuracy of such information);
(e) promptly after receipt thereof by Baldwin or any
Borrower, copies of all material reports submitted to Baldwin or
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such Borrower by independent public accountants and consultants in connection
with each annual, interim or special audit of the books of Baldwin or any
Significant Subsidiary made by such accountants;
(f) promptly after any officer of Baldwin, any Borrower or
any of their Subsidiaries obtains knowledge (i) that a condition or event
exists that constitutes a Default or Event of Default, (ii) that the Agent or
any Lender has given any notice or taken any other action with respect to a
claimed Default or Event of Default under this Agreement, (iii) of any
condition or event peculiar to Baldwin, any Borrower or any of their
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect on Baldwin, any Significant Subsidiary or the Consolidated Group, (iv)
that any Person has given any notice to Baldwin, any Borrower or any of their
Subsidiaries or taken any other action with respect to a claimed default or
event or condition of the type referred to in Section [9.1(j)], (v) of the
institution of any litigation involving claims against Baldwin, any Borrower or
any of their Subsidiaries equal to or greater than $500,000 with respect to any
single cause of action or $1,000,000 in the aggregate, (vi) of the assertion
by any Person of a claim for breach or violation of any Environmental Law or
for damages resulting from such breach or violation against Baldwin, any
Borrower or any of their Subsidiaries which if adversely determined against
Baldwin or such Borrower or Subsidiary would have a Material Adverse Effect on
Baldwin or such Borrower or Subsidiary or on the Consolidated Group, (vii) of
the assertion of any claim by any Person seeking injunctive relief against
Baldwin, any Borrower or any of their Subsidiaries which would impair the
conduct by Baldwin, any Borrower or any of their Subsidiaries of its business
in the ordinary course or the performance of this Agreement, the Notes or any
Loan Document or (viii) the occurrence of any default or any event of default
under any Senior Note Document or any other agreement, instrument or note
evidencing or pursuant to which any other Indebtedness, the outstanding
principal amount of which exceeds $1,000,000, has been issued by Baldwin, any
Borrower or any of their Subsidiaries, specifying the nature and period of
existence of any such condition or event, or specifying the notice given or
action taken by the Agent or such Lender or Person and the nature of such
claimed Default, Event of Default, event or condition, and what action the
Borrowers have taken, are taking or propose to take with respect thereto;
(g) promptly after any officer of Baldwin, any Borrower
or any of their Subsidiaries obtains knowledge of the occurrence of any (i)
"reportable event", as such term is defined in section 4043 of ERISA, with
respect to any Plan, (ii) "prohibited transaction" as such term is defined in
section 4975 of the Code, in connection with any Plan or any trust created
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thereunder which is not otherwise exempt under a statutory, class or
administrative exemption, (iii) event described in Section 8.5, (iv)
reorganization or termination of any Multiemployer Plan to which Baldwin, any
Borrower or any Related Person is obligated or has been obligated to
contribute, (v) termination of any Plan, or proceedings to terminate any Plan
which are pending or threatened, (vi) liability to or on account of any Plan
under section 4062, 4063 or 4064 of ERISA which will or may be incurred by
Baldwin, any Borrower or a Related Person, a written notice specifying the
nature thereof, what action Baldwin, such Borrower or any Related Person has
taken, is taking or proposes to take with respect thereto, and, when known, any
action taken or threatened by the Internal Revenue Service or the PBGC with
respect thereto;
(h) promptly after the transmission thereof, copies of
all such financial statements, proxy statements, notices and reports as
Baldwin, any Borrower or any of their Subsidiaries shall send to its public
debtholders or public stockholders and copies of all registration statements
(without exhibits) and all reports which Baldwin, any Borrower or any of their
Subsidiaries files with the SEC;
(i) promptly after the transmission thereof, copies of
all such financial statements, notices, certificates and reports as Baldwin,
any Borrower or any of their Subsidiaries shall send to any holder under the
Senior Note Documents or to any other lender, or group of lenders, if the
aggregate Debt outstanding to such lender, or group of lenders, (x) from
Baldwin, the Borrowers and their Subsidiaries (other than the Sector
Subsidiaries and their Subsidiaries) exceeds $1,000,000 or (y) from the Sector
Subsidiaries and their Subsidiaries exceeds $3,000,000;
(j) promptly after receipt thereof, copies of all
reports, statements and notices Baldwin, any Borrower or any of their
Subsidiaries may receive in accordance with Section 13(d) or 14(d) of the
Exchange Act and the rules and regulations promulgated thereunder by the SEC;
(k) promptly upon any such occurrence, written notice of
any event resulting in a mandatory reduction in the Total Commitment, an
increase in the Unavailable Commitment Amount, or prepayment of the Loans, and
of the net proceeds, if any, realized by any Borrower in connection therewith
or as a result thereof;
(l) as soon as practicable and in any event not more than
60 days after the end of each Fiscal Year (each, a "Prior Fiscal Year") of
Baldwin, a copy of consolidating financial projections (including consolidating
projected balance sheets and income statements) and consolidated projected cash
flow
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statements, for Baldwin, each Borrower, each Sector Subsidiary and any other
direct Subsidiary of Baldwin, in each case with respect to the Fiscal Year
immediately following such Prior Fiscal Year;
(m) as soon as practicable and in any event within
thirty (30) days of the end of each calendar quarter, a Borrowing Base
Certificate as at the end of such calendar quarter together with a summary of
Accounts aging and schedule of Inventory, and accompanied by a certificate of
an Authorized Officer that, at no time since the delivery of the previous
Borrowing Base Certificate to the Agent, was the Borrowing Base less than the
aggregate principal amount of Loans outstanding;
(n) with reasonable promptness, such other information
and data with respect to Baldwin, any Borrower or any of their Subsidiaries as
from time to time may be reasonably requested by the Agent or any Lender.
7.2. INSPECTION OF PROPERTY. Permit any Person designated by the
Agent or any Lender, at the Agent's or such Lender's expense (unless such
inspection shall be made during the continuance of a Default or after the
occurrence of an Event of Default, in which event the reasonable expense of
such inspection shall be borne by the Borrowers, jointly and severally), to
visit and inspect any of the properties of itself or any of its Subsidiaries,
to examine the corporate books and financial records of itself or any of its
Subsidiaries and make copies thereof or extracts therefrom and to discuss the
affairs, finances and accounts of itself or any of its Subsidiaries with the
principal officers of it or such Subsidiary, and (prior to the occurrence and
continuance of a Default or Event of Default), upon consent of any Borrower
(which consent shall not be unreasonably withheld) and at the expense of the
Agent or such Lender (and during the continuance of a Default or after the
occurrence of an Event of Default without the consent of Baldwin or any
Borrower and at the expense of the Borrowers) Baldwin's and each Borrower's
independent public accountants (and by this provision the Borrowers authorize
such accountants to discuss with any Person so designated the affairs, finances
and accounts of Baldwin, the Borrowers and their Subsidiaries), all at such
reasonable times and as often as the Agent or such Lender may reasonably
request.
7.3. CORPORATE EXISTENCE, ETC. At all times preserve and keep in full
force and effect its, and their Subsidiaries', corporate existence, and rights
and franchises material to the business of Baldwin, any Significant Subsidiary
or the Consolidated Group except as otherwise specifically permitted by Section
8.3(d), and qualify, and cause each of its Subsidiaries to qualify, to do
business in any jurisdiction where the failure
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to do so would have a Material Adverse Effect on Baldwin, any Significant
Subsidiary or the Consolidated Group.
7.4. PAYMENT OF TAXES AND CLAIMS. Pay, and cause each of their
Subsidiaries to pay, (i) all income taxes before the same shall become
delinquent, except where such income taxes are contested in good faith by
appropriate proceedings promptly instituted and diligently conducted, and only
if adequate reserves therefor have been established on its books of account in
accordance with GAAP, and (ii) all other taxes, assessments and other
governmental charges imposed upon it or any of its properties or assets or with
respect to any of its franchises, business, income or profits before any
penalty or interest accrues thereon, and all claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable, except where such tax, assessment, charge or claim
is being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted and only if such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made therefor,
and except, in either case, for income taxes, other taxes, assessments, and
other charges which in the aggregate with all other unpaid taxes, assessments
and governmental charges do not and will not have a Material Adverse Effect on
Baldwin, any Significant Subsidiary or the Consolidated Group.
7.5. COMPLIANCE WITH LAWS, ETC. Comply, and cause each of their
Subsidiaries to comply, with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority (including, without
limitation, the Occupational Safety and Health Act of 1970, as amended, ERISA
and all Environmental Laws), the violation of which would have a Material
Adverse Effect on Baldwin, any Significant Subsidiary or the Consolidated
Group.
7.6. MAINTENANCE OF PROPERTIES. Maintain or make adequate
arrangements for the maintenance of, and cause each of their Subsidiaries to
maintain or make adequate arrangements for the maintenance of, in good repair
and working order and condition, subject to reasonable wear and tear and
obsolescence, all properties used or useful in its or their business, and from
time to time make or cause to be made all appropriate repairs, renewals and
replacements thereof.
7.7. INSURANCE. Maintain, and cause each of their Subsidiaries to
maintain, with financially sound and reputable insurers, insurance with respect
to its properties and business and the properties and business of Baldwin and
such Subsidiaries in such forms and amounts and against such risks customarily
insured against by corporations of established reputation engaged
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in the same or similar business and similarly situated, and notify the Agent
promptly of any event or occurrence causing a material loss thereof and the
estimated (or actual, if available) amount of such loss.
7.8. SCOPE OF BUSINESS. Engage, and cause each of their Subsidiaries
to engage, only in Businesses in substantially the same fields as the
businesses conducted on the date of this Agreement.
7.9. ENVIRONMENTAL COMPLIANCE. (i) Obtain and maintain, and cause
each of their Subsidiaries to obtain and maintain, all permits, licenses, and
other authorizations that are required under all Environmental Laws, (ii)
comply, and cause each of their Subsidiaries to comply, with all terms and
conditions of all such permits, licenses, and authorizations and with all other
applicable limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules, and timetables contained in all
Environmental Laws or in any regulation, ordinance, code, plan, order, decree,
judgment, injunction, notice, or demand letter issued, entered, promulgated, or
approved thereunder, except to the extent that failure to do so does not have a
Material Adverse Effect on Baldwin, any Borrower, or any of their Subsidiaries,
and (iii) operate, and cause each of their Subsidiaries to operate, all
property owned or leased by it such that no claim or obligation, including a
clean-up obligation, which could have a Material Adverse Effect on Baldwin, any
Borrower or any of their Subsidiaries, shall arise under any Environmental Law,
and if any claim is made against Baldwin, any Borrower or any of their
Subsidiaries or any such obligation of Baldwin, any Borrower or any of their
Subsidiaries, which would have a Material Adverse Effect on Baldwin, any
Borrower, any of their Subsidiaries or the Consolidated Group, arises under any
Environmental Law, the party against whom such claim is made shall timely
satisfy such claim or obligation.
7.10. MAINTENANCE OF BOOKS AND RECORDS. Do, and cause each of their
Subsidiaries to do, the following: (i) keep proper records and books of
account with respect to its business activities in which proper entries are
made in the ordinary course of all dealings or transactions of or in relation
to its business and affairs; (ii) set up on its books adequate reserves with
respect to all taxes, assessments, charges, levies and claims; and (iii) set up
on its books reserves against doubtful accounts receivable, advances and all
other proper reserves (including reserves for depreciation, obsolescence or
amortization of its property). All determinations pursuant to this Section
7.10 shall be made in accordance with, or as required by, GAAP.
Notwithstanding the foregoing, Baldwin, any Borrower or any of their
Subsidiaries may make adjustments and
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changes in the manner in which their books and records are kept; provided,
that:
(a) all such adjustments and changes shall be required or
permitted by GAAP but need not conform with its prior accounting practice;
(b) the Agent and each Lender shall be given (i) written
notice from Baldwin and each Borrower of all such changes or adjustments with
the delivery of the financial statements required by Section 7.1(a) or 7.1(b),
as the case may be, for the fiscal period in which such adjustment or change
was first put into effect, and (ii) with the delivery of the financial
statements required by Section 7.1(b) a description by the independent
certified public accountants who audited such financial statements of the
effect of all such changes and adjustments put into effect in the preceding
Fiscal Year on such financial statements (i) which are required by GAAP to be
referred to in such financial statements or such independent certified public
accountants' opinions thereon, or (ii) if not required by GAAP, with respect to
which the Agent has reasonably requested a description;
(c) the financial covenants and ratios set forth in Section
8.1 and the ratios set forth in Section 8.4(a) shall continue to be calculated
without regard to such adjustments or changes unless and until the Agent and
each Lender has consented thereto.
7.11. PAYMENT OF TRADE PAYABLES. Pay, and cause each of its
Subsidiaries to pay, all trade payables promptly (i) in accordance with their
terms or (ii) in accordance with prior practice, if paying trade payables in
accordance with such prior practice (and not in accordance with their terms)
would not, in each circumstance or in the aggregate, have a Material Adverse
Effect on Baldwin, any Significant Subsidiary or the Consolidated Group.
7.12. PAY INDEBTEDNESS TO LENDERS AND PERFORM OTHER COVENANTS. (a)
Make full and timely payment of the principal of and interest on the Notes and
all other Obligations whether now existing or hereafter arising; and (b) duly
comply with all terms and covenants contained in all other Loan Documents.
7.13. ENVIRONMENTAL REPORTS. Promptly provide to the Agent true,
accurate and complete copies of any and all material documents, including
reports, submissions, notices, orders, directives, findings and correspondence
made or received by Baldwin, any Borrower or any Subsidiary to or from the
United States Environmental Protection Agency ("EPA") or any other federal,
state or local authority pursuant to any federal, state
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or local law, code or ordinance and all rules and regulations promulgated
thereunder which require informational submissions pursuant to Environmental
Laws regarding or in connection with any matter or situation that would
reasonably be likely to result in a Material Adverse Effect on Baldwin, any
Significant Subsidiary or the Consolidated Group.
7.14. NOTICE OF DISCHARGE OF HAZARDOUS MATERIAL OR ENVIRONMENTAL
COMPLAINT. Give to the Agent immediate written notice of any complaint, order,
directive, claim, citation or notice by any governmental authority or any other
Person to Baldwin, any Borrower or any of their Subsidiaries regarding or in
connection with any matter that is reasonably likely to result in a Material
Adverse Effect on Baldwin, any Significant Subsidiary or the Consolidated
Group, with respect to (a) air emissions, (b) spills, releases or discharges to
soils or improvements located thereon, surface water, groundwater or the sewer,
septic system or waste treatment, storage or disposal systems servicing
property owned or leased by Baldwin, any Borrower or any of their Subsidiaries,
(c) noise emissions, (d) solid or liquid waste disposal, or (e) the use,
generation, storage, transportation or disposal of Hazardous Material. Such
notices shall include, among other information, the name of the party who filed
the claim, the nature of the claim and the actual or potential amount of the
claim. Each Borrower shall, and shall cause Baldwin and each of their
Subsidiaries to, promptly comply in all material respects with its obligations
under law with regard to such matters. However, no Borrower shall be obligated
to give such notice to the Agent or any Lender of any use, generation, storage,
transportation, disposal, discharge or existence of any Hazardous Material
which occurs legally.
7.15. INDEMNIFICATION. Each Borrower and Baldwin hereby agrees,
jointly and severally, to defend, indemnify and hold the Agent and the Lenders
harmless from and against any and all claims, losses, liabilities, damages and
out-of-pocket expenses (including, without limitation, cleanup costs and
reasonable attorneys' fees including those arising by reason of any of the
aforesaid or an action against Baldwin, any Borrower or any of their
Subsidiaries under this indemnity) of or against the Agent or any Lender
arising directly or indirectly from, out of or by reason of the handling,
storage, treatment, emission, leakage, spillage, discharge, release or disposal
of any Hazardous Material by or in respect of Baldwin, any Borrower or any
Subsidiary or on property owned or leased by Baldwin, any Borrower or any
Subsidiary. This indemnity shall apply notwithstanding any negligent or other
contributory conduct by or on the part of the Agent or any Lender or any one or
more other Persons (excluding the gross negligence or willful misconduct of the
Agent or any Lender). The provisions of this Section 7.15 shall survive
repayment of the Obligations, occurrence of the
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Revolving Credit Termination Date and expiration or termination of this
Agreement.
7.16. FURTHER ASSURANCES. At its cost and expense, upon request of
the Agent, duly execute and deliver or cause to be duly executed and delivered,
to the Agent such further instruments, documents, certificates, financing and
continuation statements, and do and cause to be done such further acts as may
be reasonably necessary to carry out more effectively the provisions and
purposes of this Agreement and the other Loan Documents.
7.17. USE OF PROCEEDS. Use the proceeds of the Loans solely for the
purposes set forth in Section 2.6 of this Agreement.
7.18. NEW SUBSIDIARIES. Promptly following the formation or
acquisition of any Subsidiary of any Borrower or any direct Subsidiary of
Baldwin (other than a BAM Foreign Subsidiary, a BTL Foreign Subsidiary or a
Baldwin Foreign Subsidiary) subsequent to the Closing Date, cause to be
delivered to the Agent for the benefit of the Lenders each of the following,
each in form reasonably acceptable to the Agent:
(a) a guaranty agreement pursuant to which such
Subsidiary guarantees all of the Obligations;
(b) an opinion of counsel to each Borrower and such
Subsidiary dated as of the date of delivery of the guaranty agreement provided
in the foregoing clause (a) and addressed to the Agent and the Lenders, in form
and substance reasonably acceptable to the Agent, substantially to the effect
that:
(1) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its incorporation and has
the requisite corporate power and authority to execute and deliver the guaranty
agreement described in clause (a) of this Section 7.18; and
(2) with respect to such Subsidiary, its execution,
delivery and performance of the guaranty agreement delivered pursuant to clause
(a) of this Section 7.18 to which such Subsidiary is a signatory has been duly
authorized by all requisite corporate action (including any required
shareholder approval), such document has been duly executed and delivered by it
and constitutes its valid and binding obligation, enforceable against such
Subsidiary in accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization, fraudulent
transfer or conveyance or other similar laws affecting the enforceability of
creditors' rights generally and to the effect of general principles of equity
which
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may limit the availability of equitable remedies (whether in a proceeding at
law or in equity); and
(c) current copies of the charter and bylaws of such
Subsidiary and resolutions of the Board of Directors (and, if required by such
charter, bylaws or by applicable laws, of the shareholders) of such Subsidiary
authorizing the actions and the execution, delivery and performance of this
guaranty agreement described in clause (a) of this Section 7.18 and a
certificate or certificates of the Secretary of State, Department of Revenue or
appropriate government authority certifying that such Subsidiary is duly
qualified to transact business as a foreign corporation in such jurisdiction
from each jurisdiction in which the failure to be so qualified would have a
Material Adverse Effect on Baldwin, any Significant Subsidiary or the
Consolidated Group.
ARTICLE VIII
NEGATIVE COVENANTS
Until all principal and interest on the Loans are paid in full, all
fees, charges and other expenses then due and owing are paid in full and the
Total Commitment has been terminated in accordance with the terms hereof,
unless the Required Lenders shall otherwise consent in writing, each Borrower
and Baldwin covenants and agrees that:
8.1. FINANCIAL COVENANTS. It will not:
(a) Consolidated Net Worth. Permit Consolidated Net
Worth, calculated as of the last day of any Fiscal Quarter of Baldwin
after June 30, 1993, to be less than (i) $70,000,000, plus (ii) an
amount equal to 50% of the aggregate of the Consolidated Net Income
(without deduction for quarterly losses) in each Fiscal Quarter
thereafter.
(b) Current Ratio. Permit the Current Ratio, calculated
as of the last day of any Fiscal Quarter after June 30, 1993, to be
less than 1.3 to 1.0.
(c) Funded Debt to Cash Flow. Permit as of the last day
of any Fiscal Quarter of Baldwin after September 30, 1993, the ratio
of Consolidated Funded Debt to Consolidated Cash Flow for the period
indicated below ending as of such Fiscal Quarter end to be greater
than the ratio set forth opposite such period below:
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Required Ratio of Funded Debt
Period to Consolidated Cash Flow
------ -------------------------
Each period of four 2.75 to 1.00
consecutive Fiscal
Quarters ended
December 31, 1993,
March 31, 1994,
June 30, 1994, and
September 30, 1994
Each period of four 2.10 to 1.00
consecutive Fiscal
Quarters ended
December 31, 1994
March 31, 1995,
June 30, 1995,
September 30, 1995, and
each December 31,
March 31, June 30 and
September 30 thereafter.
(d) Fixed Charge Ratio. Permit the Consolidated Fixed
Charge Ratio for the period indicated below to be less than the ratio
set forth below opposite such period below:
Required Consolidated
Period Fixed Charge Ratio
------ ------------------
Each period of four 2.00 to 1.00
consecutive Fiscal
Quarters ended
December 31, 1993,
March 31, 1994,
June 30, 1994, and
September 30, 1994
Each period of four 2.50 to 1.00
consecutive Fiscal
Quarters ended
December 31, 1994,
March 31, 1995,
June 30, 1995,
September 30, 1995, and
each December 31,
March 31, June 30 and
September 30 thereafter
8.2. RESTRICTED PAYMENTS. (a) Baldwin will not make, and the
Borrowers will not permit Baldwin to make, any Restricted Payments, unless the
aggregate of all such Restricted Payments made by Baldwin after June 30, 1993
does not exceed the sum of
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(x) $3,000,000; plus (y) the net cash proceeds received by Baldwin from the
issuance of shares of Eligible Capital Stock; plus (z)(A) 50% of the
Consolidated Net Income from June 30, 1993 through Baldwin's Fiscal Quarter
most recently ended for which financial statements have been (or are required
to have been) furnished to the Agent or any Lender in accordance with Section
7.1(a) or 7.1(b), as the case may be, taken as a single accounting period or,
(B) in the event Consolidated Net Income for such period shall be a negative
number, 100% of such amount (expressed as a negative number); provided,
further, however, that no Restricted Payment shall be permitted by Baldwin if
an Event of Default or Default exists immediately before or immediately after
such payment or would otherwise reasonably be anticipated to result therefrom.
(b) No Borrower will make, and neither Borrower nor Baldwin
will permit any Baldwin Subsidiary or any Borrower Subsidiary to make, any
Restricted Payments (other than dividends by any Baldwin Subsidiary or
distributions on any other securities of any Baldwin Subsidiary held by either
Borrower or Baldwin) if an Event of Default or Default exists immediately
before or immediately after such payment or would otherwise reasonably be
anticipated to result therefrom.
8.3. LIENS AND OTHER RESTRICTIONS. It will not, and will not
permit any Borrower Subsidiary or any Baldwin Subsidiary to:
(a) Liens. Create, assume or suffer to exist any Lien on
its or any Borrower Subsidiary's or Baldwin Subsidiary's property or
assets, whether now owned or hereafter acquired or upon any income or
profits therefrom, or transfer any property for the purpose of
subjecting the same to the payment of obligations in priority to the
payment of its general creditors except for:
(i) Liens on fixed assets incurred by Baldwin,
any Borrower or any of their Subsidiaries in the ordinary
course of business in connection with the acquisition or
construction thereof, which secure all or part of the purchase
price thereof (including Capitalized Leases) and Liens
existing on property at the time of its purchase or
construction thereof; provided, however, that (A) each such
Lien is confined solely to the property so purchased or
constructed, improvements thereto and proceeds thereof, (B)
such Liens secure only the purchase price for such property
and the amount of the Debt secured by such Lien does not
exceed 80% of the cost of such property, (C) the Indebtedness
secured by such Lien is incurred at the time of the
acquisition, or within one hundred twenty (120) days following
the date of acquisition, of the
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fixed assets subject thereto, and (D) the Indebtedness
secured thereby would otherwise be permitted by Section 8.4;
(ii) Liens representing any renewal, refunding or
extension of any Lien permitted by clause (i) of this Section
8.3(a) provided that the principal amount secured and then
outstanding is not increased, the Lien is not extended to
other property and the Indebtedness secured thereby would be
permitted under Section 8.4;
(iii) Liens, and other charges incidental to the
conduct of its business, or the ownership of its property
(including charges for taxes or otherwise arising by operation
of law, mechanics', carriers', workers', repairmen's,
warehousers' or other similar liens), which are not incurred
in connection with the borrowing of money or the securing of
Indebtedness, provided in each case the obligation secured is
not overdue or is being contested in good faith by appropriate
actions or proceedings promptly instituted and diligently
conducted and such reserves as shall be required by GAAP shall
have been made therefor and which in the aggregate do not
materially diminish the value of the property or assets of
Baldwin, any Significant Subsidiary or the Consolidated Group;
(iv) Liens existing as of this date securing
Indebtedness listed on Schedule 8.3(a);
(v) deposits or pledges to secure worker's
compensation, unemployment insurance, old age benefits or
other social security obligations or retirement benefits;
(vi) Liens arising out of deposits in connection
with, or to secure the performance of, bids, tenders, trade
contracts not for the payment of money or leases, or to secure
statutory obligations or surety or appeal bonds, performance
bonds or other pledges or deposits for purposes of like nature
in the ordinary course of business;
(vii) Liens arising under Title IV of ERISA which
would not have a Material Adverse Effect on Baldwin, any
Significant Subsidiary or the Consolidated Group;
(viii) survey exceptions or encumbrances, easements
or reservations, or rights of others for rights-of-way,
utilities and other similar purposes, or zoning or other
restrictions as to the use of real
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properties, which are necessary for the conduct of the
activities of Baldwin and its Subsidiaries or which customarily
exist on properties of Persons engaged in similar activities
and similarly situated and which do not in any event have a
Material Adverse Effect on, or materially impair their use in
the operation of the business of, Baldwin, any Significant
Subsidiary or the Consolidated Group;
(ix) Liens arising from judgments or decrees not
constituting a Default or Event of Default unless such lien
remains undischarged, unstayed on appeal, unbonded and
undismissed for a period of sixty (60) consecutive days;
(x) Liens on receivables and inventory of Baldwin,
the Borrowers and their Subsidiaries if the aggregate
principal amount of the Indebtedness (exclusive of any
Indebtedness set forth on Schedule 8.3(a)), secured by all
such Liens does not at any time exceed $10,000,000, and the
aggregate book value of such receivables and inventory does
not at any time exceed $15,000,000; and
(xi) Liens on any capital stock of the Borrowers,
the Borrower Subsidiaries and the Sector Subsidiaries securing
the Indebtedness under the Senior Note Documents, provided
that the aggregate principal amount of such Indebtedness
secured by all such Liens does not at any time exceed
$25,000,000 and provided further that the Notes hereunder are
secured by all such Liens at least equally and ratably with
such Indebtedness under the Senior Note Documents, pursuant to
a written agreement in form and substance satisfactory to the
Agent and the Lenders and their counsel, the enforceability of
which has been confirmed to the satisfaction of the Agent and
the Lenders and their counsel.
(b) Loans, Advances and Investments. Make or permit to
remain outstanding any loan or advance to, or extend credit to, or
own, purchase or acquire any stock (including that of Baldwin),
obligations or securities of, or any other interest in, or make any
capital contribution to any Person (other than the present investment
of Baldwin and its Subsidiaries in their respective Subsidiaries),
except that Baldwin and (except as set forth below) any of its
Subsidiaries may:
(i) make or permit to remain outstanding loans or
advances to any wholly-owned Subsidiary of Baldwin
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provided that any such loans to a Borrower are
subordinated to the payment of the Obligations and any such
loans to a Guarantor are subordinated to such Guarantor's
obligations under its Guaranty, in each case pursuant to a
subordination agreement in a form satisfactory to the Agent and
the Lenders and the enforceability of which has been confirmed
to the reasonable satisfaction of the Agent and the Lenders and
their counsel (a "Subordination Agreement"), provided, however,
that no Borrower may make or permit to remain outstanding any
such loan or advance, except (A) a loan by a Borrower to one of
its Subsidiaries or (B) a loan by BAM to Baldwin or a Sector
Subsidiary, or (C) a loan by BTL to a Subsidiary of a Sector
Subsidiary if and only if such loan is reflected by a
promissory note that (i) is signed by such Subsidiary of a
Sector Subsidiary, (ii) has a term of not more than one year,
(iii) is payable in United States dollars (or as to which
arrangements for currency conversion that are reasonably
acceptable to the Agent have been made), (iv) is governed by
New York law, (v) is otherwise reasonably acceptable to the
Agent, and (vi) has been (prior to or on the same day as the
making of such loan) pledged and delivered by BTL to the Agent
(along with a respective pledge agreement executed by BTL in a
form reasonably acceptable to the Agent) as additional
Collateral securing the Obligations, or (D) the loan in the
principal amount of $16,750,000 from BTL to Baldwin German
Capital Holding GmbH existing on the date thereof.
(ii) acquire and own stock, obligations or
securities received in settlement of debts (created in the
ordinary course of business) owing to Baldwin or such
Subsidiary;
(iii) own, purchase or acquire: (A) securities
issued or directly and fully and unconditionally guaranteed or
insured by the United States of America, Japan or any country
which is a member of the European Economic Community or any
agency thereof backed by the full faith and credit of the
United States of America, Japan or any country which is a
member of the European Economic Community and maturing within
one (1) year from the date of acquisition; (B) demand deposits
in banks in the ordinary course of business (not for
investment purposes); (C) time deposits, or certificates of
deposit maturing within one (1) year from the date of
acquisition issued by commercial banks which are members of
the Federal Reserve System and chartered under the laws of the
United States of
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America or any state or the District of Columbia or
Japan or any country which is a member of the European Economic
Community whose short-term securities are rated at least A-1
(or then existing equivalent) by Standard & Poor's Corporation
and at least P-1 (or then existing equivalent) by Moody's
Investors Service, Inc.; (D) prime commercial paper maturing
not more than 270 days from the date of acquisition, having as
at any date a rating of at least A-1 (or the existing
equivalent) from Standard & Poor's Corporation or at least P-1
(or then existing equivalent) from Moody's Investors Service,
Inc. and issued by a corporation organized in any state of the
United States of America or the District of Columbia or Japan
or any country which is a member of the European Economic
Community; and (E) securities of the type described in clause
(A) of this subparagraph but issued or directly and fully and
unconditionally guaranteed or insured by any country (or agency
backed by the full faith and credit thereof) other than the
United States of America, Japan or a member of the European
Economic Community and investments of the type described in
clauses (C) and (D) of this subparagraph of a bank chartered or
a corporation organized in any jurisdiction other than the
United States of America, any state thereof or the District of
Columbia, Japan or a member of the European Economic Community,
provided that the aggregate of all such securities and
investments, together with the aggregate amount of demand
deposits in banks located in all countries other than the
United States of America, Japan or a member of the European
Economic Community does not exceed at any time
$5,000,000,provided, however, that BAM may not own, purchase or
acquire any securities, investments or demand deposits
described in this subparagraph (E);
(iv) endorse negotiable instruments for collection in
the ordinary course of business;
(v) purchase or acquire stock of any Person if
immediately after such purchase or acquisition such Person
will be an 80% Subsidiary of Baldwin, provided that if, after
giving pro forma effect to such purchase or acquisition as if
it had occurred as of the first day of the most recently
completed Fiscal Quarter for which financial statements were
delivered pursuant to Section 6.1, such 80% Subsidiary would
have been a Significant Subsidiary as of such date, then such
80% Subsidiary shall have become a Guarantor;
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(vi) make or permit to remain outstanding loans or
advances to their employees other than advances to employees
for expenses incurred in the ordinary course of business and
loans to employees provided the aggregate principal amount of
all such loans by Baldwin and its Subsidiaries does not at any
time exceed $2,500,000 less the principal amount of any such
loans which has been repaid as of the date of determination
and provided further (i) the proceeds of such loans are used
solely by such employees to acquire common stock of Baldwin;
(ii) such loans are secured by a pledge by the employee of the
stock so acquired; and (iii) such loans are otherwise made on
terms no less favorable to the Person making such loan than
those which might be obtained at arm's length between
unaffiliated parties;
(vii) make capital contributions to any Borrower,
Borrower Subsidiary, any Guarantor or any Subsidiary of a
Sector Subsidiary; and
(viii) make Restricted Payments to the extent permitted
by Section 8.2;
(c) Sale of Stock and Indebtedness of Subsidiaries.
Either directly or indirectly by the issuance of rights, options for
or securities convertible into such shares, issue, sell or otherwise
dispose of, or part with control of, any shares of capital stock
(other than directors' qualifying shares) or Indebtedness of any
Borrower, any Borrower Subsidiary or any Baldwin Subsidiary, except
for (i) the issuance, sale or other disposition of (A) shares of the
capital stock of any Borrower or any Sector Subsidiary to Baldwin or
any Sector Subsidiary,provided, that in the case of such an issuance,
sale or disposition of shares to a Sector Subsidiary, the Borrowers
and Baldwin shall immediately cause such Sector Subsidiary to pledge
and deliver such shares to the Agent (pursuant to a pledge agreement
substantially similar to the form of the Baldwin Pledge Agreement to
be executed by such Sector Subsidiary at such time) together with
stock powers executed in blank, as Collateral securing payment and
performance of the Obligations, (B) shares of the capital stock of any
Borrower Subsidiary to the respective Borrower, or (C) shares of the
capital stock of any other Baldwin Subsidiary to Baldwin, or (ii)
sales of shares of then issued capital stock of a Baldwin Subsidiary
(other than the capital stock of any Borrower or any Guarantor, and
other than any Subsidiary of a Sector Subsidiary to whom any capital
contribution has been made pursuant to Section 8.3(b)(vii), and other
than any stock pledged, or required to be pledged, to the Agent
pursuant to this Agreement or any other Loan Document), if
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immediately after such sale the issuer of such capital stock is no
longer a Baldwin Subsidiary and the sale would otherwise be permitted
under Section 8.3(d).
(d) Merger and Sale of Assets. Merge or consolidate with
any other Person or sell, lease or transfer or otherwise dispose of
its assets to any Person or Persons, except, that:
(i) any wholly-owned Subsidiary of Baldwin (other
than a Borrower) may merge with Baldwin (provided that Baldwin
shall be the continuing or surviving corporation) or merge or
consolidate with any one or more other wholly-owned
Subsidiaries of Baldwin (provided if any Borrower or any
Guarantor is a party to such merger or consolidation it shall
be the continuing or surviving corporation except in the case
of a merger or consolidation involving any Borrower and any
Guarantor, in which case such Borrower shall be the
controlling or surviving corporation);
(ii) any wholly-owned Subsidiary of Baldwin (other
than any Borrower or any Guarantor) may sell, lease, transfer
or otherwise dispose of any of its assets to Baldwin or
another wholly-owned Subsidiary of Baldwin provided that
immediately after giving effect to such transaction, no
Default or Event of Default would result therefrom or
otherwise exist immediately before or immediately after such
transaction;
(iii) Baldwin may merge or consolidate with any
other corporation, provided that (A) Baldwin shall be the
continuing or surviving corporation; (B) immediately after
giving effect to such transaction, were Baldwin or any of its
Subsidiaries to incur additional Debt of $1.00, no Default or
Event of Default would result therefrom; (C) no Default or
Event of Default would otherwise exist immediately before or
immediately after such merger or consolidation; and (D) the
aggregate book value of the assets acquired by Baldwin and its
Subsidiaries as a result of mergers or consolidations
permitted by Sections 8.3(d)(iii) and 8.3(d)(iv) shall not
exceed $15,000,000 in any one year;
(iv) a wholly-owned Subsidiary of Baldwin (other
than a Borrower) may merge or consolidate with any other
corporation (other than a Borrower ), provided that (A) such
Subsidiary shall be the continuing or surviving corporation,
except that if either such Subsidiary or the other corporation
is a Guarantor, the
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continuing or surviving corporation shall be a
Guarantor; (B) subject to the exception in clause (A), such
Subsidiary shall continue to be a wholly-owned Subsidiary of
the Company; (C) immediately after giving effect to such
transaction, were Baldwin or any of its Subsidiaries to incur
additional Debt of $1.00, no Default or Event of Default would
result therefrom; (D) no Default or Event of Default would
otherwise exist immediately before or immediately after such
merger or consolidation; and (E) the aggregate book value of
the assets acquired by Baldwin and its Subsidiaries s a result
of mergers or consolidations permitted by Section 8.3(d)(iii)
and 8.3(d)(iv) shall not exceed $15,000,000 in any one year;
(v) Baldwin, any Borrower or any of their
Subsidiaries may sell, transfer or otherwise dispose of some
or all of its properties or assets for such consideration as
may be determined to be fair and adequate by the Board of
Directors of Baldwin, such Borrower or such Subsidiary (a
"Disposition"); provided, however, that (A) no Default or
Event of Default exists immediately before or immediately
after and giving effect to such Disposition or would otherwise
reasonably be anticipated to result therefrom, and (B)
immediately after and giving effect to any such Disposition,
the aggregate book value, as reflected on the most recent
balance sheet of Baldwin furnished to the Agent and the
Lenders pursuant to Section 7.1(a) or 7.1(b), as the case may
be, of all such properties and assets so sold by Baldwin, the
Borrowers and their Subsidiaries (which, in the case of a sale
of capital stock of a Subsidiary, shall equal the seller's
share of the aggregate book value of the properties and assets
of such Subsidiary and its Subsidiaries, calculated on a
consolidated basis) ("Assets Sold") during the then current
Fiscal Year, (less the aggregate amount of Qualifying
Reinvestments then made by Baldwin, the Borrowers and their
Subsidiaries during such Fiscal Year,) does not exceed 10% of
Consolidated Net Tangible Assets at the end of the Fiscal Year
immediately preceding such Disposition; and
(vi) Baldwin, any Borrower or any of their
Subsidiaries may sell inventory in the ordinary course of
business and Baldwin Japan Limited, a wholly-owned Subsidiary
of Baldwin Asia Pacific Corporation, may sell receivables in
the ordinary course of its business in accordance with its
past practices.
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For purposes of subparagraph (v) of this Section 8.3(d), a "Qualifying
Reinvestment" is the use of proceeds of Assets Sold to (A) purchase not more
than ninety (90) days prior to nor more than three hundred sixty-five (365)
days after the date of such Disposition (x) tangible, depreciable assets or
equipment or real property or depreciable improvements thereon usable in the
same business as the Assets Sold, or (y) either (1) purchase all of the
outstanding capital stock or other equity interests of such business, or (2)
purchase all or substantially all of the assets and business of a Person which
is engaged in any such business, or (B) permanently repay Consolidated
Indebtedness, if such repayment is made within 90 days after the date of such
Disposition.
(e) Subsidiary Dividend and Other Restrictions. Except
as set forth in this Agreement, enter into, or be otherwise subject
to, any contract or agreement (including its charter) which limits the
amount of, or otherwise imposes restrictions on the payment of,
dividends by any of the Baldwin Subsidiaries or Borrower Subsidiaries
or distributions on any other securities of any of the Baldwin
Subsidiaries or Borrower Subsidiaries held by any Borrower, any
Guarantor or Baldwin.
(f) Transactions with Affiliates. Except as set forth on
Schedule 8.3(f), directly or indirectly engage in any transaction
(including, without limitation, the purchase, sale or exchange of
assets or the payment of salary, bonuses and other compensation for
services rendered) with any present or former stockholder (other than
Persons who do not own and have not owned, directly or indirectly, any
shares of stock of any Subsidiary of Baldwin and who do not own and
have not owned, directly or indirectly, at any time more than ten (10)
shares of common stock of Baldwin and any shares of any other class of
capital stock of Baldwin), officer or Affiliate or to any successor,
assign, Affiliate or transferee thereof, except in the ordinary course
of business pursuant to the reasonable requirements of Baldwin's, the
Borrower's or their Subsidiaries' business and upon terms which might
be obtained at arms' length between unaffiliated parties.
(g) Sale and Leaseback. Enter into any sale and
leaseback transaction, unless the obligation incurred and evidenced by
such leasing arrangement would be a Capitalized Lease Obligation and
the Indebtedness incurred would be permitted to be incurred by Section
8.4.
8.4. INDEBTEDNESS.
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(a) Baldwin Indebtedness. Baldwin will not create,
incur, assume, suffer to exist, or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness, other than:
(i) its guaranty of the Obligations;
(ii) its guaranty of the Funded Debt from time to
time outstanding under the Senior Note Documents in an
aggregate principal amount not at any time to exceed
$25,000,000, which guaranty and Indebtedness shall at all
times rank equal to and pari passus with (or junior to) the
Obligations;
(iii) Indebtedness outstanding as of the Closing
Date that is set forth on Schedule 8.4(a), and all of which
Indebtedness shall at all times be junior and subordinate to
the Obligations;
(iv) other Funded Debt of Baldwin if, at the time of
incurrence thereof and after giving effect thereto, (A) no
Default or Event of Default exists or would otherwise
reasonably be anticipated to result from such transaction, (B)
the ratio of Consolidated Funded Debt to Consolidated Total
Capitalization, in each case calculated on the basis of the
most recently available financial information and giving pro
forma effect to the incurrence of such Funded Debt and the
application of the net proceeds therefrom, would not exceed
0.55 to 1.00, (C) the financial tests set forth in Section
8.1, calculated on the basis of the most recently available
financial information, would be satisfied on a pro forma
basis; (D) all such Indebtedness is and shall at all times be
junior and subordinate to the Obligations; and
(v) other Indebtedness of Baldwin if, at the time of
incurrence thereof and after giving effect thereto, (A) no
Default or Event of Default exists or would otherwise
reasonably be anticipated to result from such transaction, (B)
the ratio of Consolidated Indebtedness to Consolidated Total
Capitalization, in each case calculated on the basis of the
most recently available financial information and giving pro
forma effect to the incurrence of such Indebtedness and the
application of the net proceeds therefrom, would not exceed
0.60 to 1.00, and (C) the financial tests set forth in Section
8.1, calculated on the basis of the most recently available
financial information, would be satisfied on a pro forma
basis; (D) no such Indebtedness shall rank senior to the
Obligations; and
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(E) all such Indebtedness that constitutes Indebtedness
for Money Borrowed (other than Existing Capitalized Leases) is
and shall at all times be junior and subordinate to the
Obligations.
(b) Subsidiary Debt. The Borrowers will not, and the
Borrowers and Baldwin will not permit any of their Subsidiaries to, create,
incur, assume or otherwise become or remain directly or indirectly liable with
respect to Indebtedness other than:
(i) the Funded Debt represented by the Notes and
the Guaranties;
(ii) the Funded Debt of the Borrowers and the
guarantees of the Sector Subsidiaries and any other Guarantors
(as defined herein) from time to time outstanding under the
Senior Note Documents in an aggregate principal amount not at
any time to exceed $25,000,000, which Indebtedness shall at
all times rank equal to and pari passus with (or junior to) to
the Obligations;
(iii) Indebtedness of wholly-owned Subsidiaries of
Baldwin for loans permitted under Section 8.3(b)(i);
(iv) any other Indebtedness of the Borrowers, any
Borrower Subsidiary, any Sector Subsidiary, or any Subsidiary
of a Sector Subsidiary; provided, however, (A) at the time of
the incurrence of such Indebtedness and after giving effect
thereto, Baldwin would be able to incur an additional $1.00 of
Indebtedness without breach of Section 8.4(a)(v); (B) that the
sum of (1) the aggregate principal amount of all such
Indebtedness of the Borrowers, Borrower Subsidiary and Sector
Subsidiaries plus (2) the aggregate principal amount of all
such Indebtedness of any Subsidiaries of Sector Subsidiaries
that constitutes Indebtedness for Money Borrowed (other than
Existing Capitalized Leases) shall not at any time exceed
$15,000,000; (C) no such Indebtedness shall rank senior to the
Obligations; and (D) all such Indebtedness of any Borrower,
Borrower Subsidiary or Sector Subsidiary that constitutes
Indebtedness for Money Borrowed (other than Existing
Capitalized Leases) is and shall at all times be junior and
subordinate to the Obligations.
(c) Priority of Obligations. The foregoing
notwithstanding, the Borrowers and Baldwin will not, and will not permit any
Borrower Subsidiary, any Sector Subsidiary or any Guarantor, to create, incur,
assume, suffer to exist, or
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otherwise become or remain directly or indirectly liable with respect to any
Indebtedness that (i) is or would be senior to the Obligations, or (ii) to the
extent that it constitutes or would constitute Indebtedness for Money Borrowed
of Baldwin, any Borrower, any Borrower Subsidiary or any Sector Subsidiary
(other than Existing Capitalized Leases and other than the Indebtedness under
the Senior Note Documents), ranks or would rank equal to or pari passus with
the Obligations.
(d) Indebtedness Affecting Unavailable Commitment Amount.
The foregoing notwithstanding, the Borrowers and Baldwin will not, and will not
permit any Borrower Subsidiary, Sector Subsidiary or Subsidiary of a Sector
Subsidiary to, create, incur, assume, suffer to exist, or otherwise become
directly or indirectly liable with respect to any Indebtedness that would,
after giving effect to such Indebtedness in calculating the Unavailable
Commitment Amount pursuant to Section 2.14 hereof, reduce the Total Commitment
to an amount less than the then aggregate principal amount of outstanding
Loans.
8.5. COMPLIANCE WITH ERISA. It will not and will not permit any
Borrower Subsidiary or Baldwin Subsidiary or any Related person, if it will
have a Material Adverse Effect on Baldwin, any Significant Subsidiary or the
Consolidated Group to:
(a) engage in any transaction in connection with which
Baldwin or any Borrower or Related Person could be subject to either a
civil penalty assessed pursuant to section 502(i) of ERISA or a tax
imposed by section 4975 of the Code, terminate or withdraw from any
Plan in a manner, or take any other action with respect to any such
Plan (including, without limitation, a substantial cessation of
business operations or an amendment of a Plan within the meaning of
section 4041(e) or ERISA), which could result in any liability of
Baldwin or any Borrower or any Related Person to the PBGC, to a Plan,
to a Plan participant, to the Department of Labor or to a trustee
appointed under section 4042(b) or (c) or ERISA), incur any liability
to the PBGC or a Plan on account of a withdrawal from or a termination
of a Plan under section 4063 or 4064 of ERISA, incur any liability for
post-retirement benefits under any and all welfare benefit plans (as
defined in section 3(1) of ERISA), fail to make full payment when due
of all amounts which, under the provisions of any Plan or applicable
law, Baldwin, any Borrower or any Related Person is required to pay as
contributions thereto, or permit to exist any accumulated funding
deficiency, whether or not waive, with respect to any Plan (other than
a Multiemployer Plan);
(b) at any time permit the termination of any Single
Employer Plan intended to be qualified under Section 401(a)
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and Section 501(a) of the Code unless such Plan is funded so that the
value of all benefit liabilities upon the termination date does not
exceed the then current value of all assets in such Plan;
(c) if Baldwin, any Borrower or any Related Person
becomes obligated under a Multiemployer Plan, permit the aggregate
complete or partial withdrawal liability under Title IV of ERISA with
respect to Multiemployer Plans incurred by Baldwin, any Borrower or
any of their Subsidiaries or any Related Person to exceed any amount
the payment of which would have a Material Adverse Effect on Baldwin,
any Significant Subsidiary or the Consolidated Group.
For the purposes of subparagraph (iii) of this Section 8.5, the amount of the
withdrawal liability of Baldwin, any Borrower, or any Related Person at any
date shall be the aggregate present value of the amount claimed to have been
incurred less any portion thereof as to which Baldwin and each Borrower
reasonably believes, after appropriate consideration of possible adjustments
arising under subtitle E of Title IV of ERISA, neither Baldwin, nor any
Borrower, nor any of their Subsidiaries nor any Related Person will have any
liability, provided that Baldwin and the Borrowers shall obtain promptly
written advice from independent actuarial consultants supporting such
determination. Each Borrower and Baldwin will (x) once in each calendar year,
beginning in 1993, request and obtain a current statement of withdrawal
liability from each MultiEmployer Plan to which Baldwin, any Borrower or any
Related Person is or has been obligated to contribute and (y) transmit a copy
of such statement to the Agent and each Lender within 15 days after Baldwin or
such Borrower receives the same.
As used in this Section8.5, the term "accumulated funding deficiency"
has the meaning specified in section 302 of ERISA and section 412 of the Code,
the terms "present value" and "current value" have the meanings specified in
section 3 of ERISA, the term "benefit liabilities" has the meaning specified in
section 4001(a)(16) of ERISA and the term "amount of unfunded liabilities" has
the meaning specified in section 4001(18) of ERISA.
8.6. TAX SHARING. It will not, and will not permit any Borrower
Subsidiary or Baldwin Subsidiary to, consent to or permit the filing of or be a
party to any consolidated income tax return with any Person (other than a
consolidated return of Baldwin and its Subsidiaries).
8.7. FISCAL YEAR. It will not, and will not permit any Borrower
Subsidiary or Baldwin Subsidiary to, change its Fiscal
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Year without the prior written consent of the Agent (which consent will not be
unreasonably withheld), provided that, notwithstanding the foregoing, the
fiscal year of any Baldwin Subsidiary organized under the laws of the Kingdom
of Sweden may be changed to end on May 31 of each year and the last days of its
first three fiscal quarters to end on the last day of the immediately preceding
August, November and February.
8.8. AMENDMENTS TO AGREEMENTS. It will not, and will not permit any
Borrower Subsidiary or Baldwin Subsidiary to, to amend, modify or supplement
(i) any of the Senior Note Documents, (ii) any other agreement if such
amendment, modification or supplement would have a Material Adverse Effect on
Baldwin, any Significant Subsidiary or the Consolidated Group.
8.9. OWNERSHIP OF BORROWER AND GUARANTOR STOCK. The foregoing
notwithstanding, none of the capital stock of any Borrower or any Guarantor
shall be owned by any Person other than a Borrower or Guarantor, except
pursuant to a foreclosure on or sale of such stock pursuant to a Pledge
Agreement or other pledge agreement expressly contemplated by a Loan Document.
ARTICLE IX
EVENTS OF DEFAULT AND ACCELERATION
9.1. EVENTS OF DEFAULT. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual
payment of the principal of any Loan when and as the same shall be due and
payable whether at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual
payment of any amount of interest on any Loan or of any fees payable under
this Agreement or amounts requested by the Agent pursuant to Section 3.4 hereof
on the date on which the same shall be due and payable and such default shall
continue for more than five days; or
(c) if default shall be made in the performance or
observance of any covenant set forth in Section 7.1(f), 7.14, 7.18, 8.1, 8.2,
8.3(d) or 8.3(e) hereof; or
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(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant or agreement contained in
this Agreement, the Notes, the Guaranties, the Pledge Agreements, or any other
Loan Document (other than as described in clauses (a), (b) or (c) above) and
such default shall continue for 30 or more days after the earlier of: (i) any
Borrower's knowledge of such default and (ii) receipt by any Borrower of notice
of such default from the Agent; or
(e) (i) if an event of default shall occur under any of
the Senior Note Documents; or (ii) if a default shall occur, which is not
waived, (A) in the payment of any principal, interest or premium with respect
to any Indebtedness (other than the Loans) of Baldwin, any Guarantor, any
Borrower or any Baldwin Subsidiary or (B) in the performance or observance of
any covenant contained in any agreement or instrument under or pursuant to
which any such Indebtedness may have been issued, created, assumed, guaranteed
or secured by Baldwin, any Guarantor, any Borrower or any Baldwin Subsidiary,
and such default shall continue for more than the period of grace, if any,
therein specified, and such default shall then permit the holder of any such
Indebtedness to accelerate the maturity thereof, provided that, in the case of
this subparagraph (ii), the aggregate unpaid principal amount of all such
Indebtedness as to which such default shall occur and be continuing exceeds at
any time $1,000,000; or
(f) if any representation or warranty of Baldwin, any
Borrower, any Guarantor or any other Baldwin Subsidiary contained herein or in
other Loan Document shall be false in any material respect on the date as of
which made or given; or
(g) (1) if Baldwin, any Guarantor, any Borrower or any
Baldwin Subsidiary shall be unable to pay its debts generally as they become
due; (2) file a petition to take advantage of any insolvency statute; (3) make
an assignment for the benefit of its creditors; (4) commence a proceeding for
the appointment of a receiver, trustee, liquidator or conservator of itself or
of the whole or substantially all of its property; (5) file a petition or
answer seeking reorganization or arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute of the United
States of America or any state or similar law of any other country; or
(h) (1) if a court of competent jurisdiction shall enter
an order, judgment or decree appointing a custodian, receiver, trustee, or
conservator of Baldwin, any Guarantor, any Borrower or any Baldwin Subsidiary
or of the whole or substantially all of its properties, or a liquidation of
Baldwin, any Guarantor, any Borrower or any Significant Subsidiary or of the
whole or substantially all of its properties, or approve a
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petition filed against Baldwin, any Guarantor, any Borrower or any Baldwin
Subsidiary seeking reorganization or arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute of the United
States of America or any state or similar law of any other country, or if,
under the provisions of any other law for the relief or aid of debtors, a court
of competent jurisdiction shall assume custody or control of Baldwin, any
Guarantor, any Borrower or any Baldwin Subsidiary or of the whole or
substantially all of its properties and such order, judgment, decree, approval
or assumption remains unstayed or undismissed for a period of thirty (30)
consecutive days; or (2) if there is commenced against Baldwin, any Guarantor,
any Borrower or any Baldwin Subsidiary any proceeding or petition seeking
reorganization, arrangement or similar relief under the federal bankruptcy laws
or any other applicable law or statute of the United States of America or any
state which proceeding or petition remains unstayed and undismissed for a
period of sixty (60) consecutive days; or (3) if Baldwin, any Guarantor, any
Borrower or any Baldwin Subsidiary takes any action to indicate its consent to
or approval of any such proceeding or petition; or
(i) if (1) any one or more judgments where the amount not
covered by insurance (or the amount as to which the insurer denies liability)
is in excess of $1,000,000 in aggregate amount is rendered against Baldwin, any
Guarantor, any Borrower or any Baldwin Subsidiary, or (2) there is any
attachment, injunction or execution against any of Baldwin, any Guarantor, any
Borrower's or any Baldwin Subsidiary's properties for any aggregate amount in
excess of $1,000,000; and in each event there shall be any period of thirty
(30) consecutive days during which a stay of enforcement of such judgment,
attachment, injunction or execution, by reason of a pending appeal or
otherwise, shall not be in effect unless such judgment, attachment, injunction
or execution shall have been vacated, satisfied or dismissed or bonded pending
appeal;
(j) if (1) Baldwin, any Guarantor, any Borrower or any
Baldwin Subsidiary shall engage in any prohibited transaction (as described in
Section 6.7(a) hereof) involving any employee pension benefit plan of Baldwin,
any Guarantor, any Borrower or any Baldwin Subsidiary, (2) any accumulated
funding deficiency (as referred to in Section 6.7(c) hereof), whether or not
waived, shall exist with respect to any Single Employer Plan, (3) a reportable
event (as referred to in Section 7.1(g)(i) hereof) shall occur with respect to,
or proceedings shall commence to have a trustee appointed, or a trustee shall
be appointed to administer or to terminate, any Single Employer Plan, which
reportable event or institution or proceedings is likely to result in the
termination of such Single Employer Plan for purposes of Title IV of ERISA, and
in the case of such a reportable event, the continuance of such reportable
event shall
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be unremedied for thirty (30) days after notice of such reportable event is
given, as the case may be, (4) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, or (5) Baldwin, any Guarantor, any Borrower or
any Baldwin Subsidiary shall withdraw from a Multi-employer Plan for purposes
of Title IV of ERISA, and, as a result of any such withdrawal, Baldwin, any
Guarantor, any Borrower or any Baldwin Subsidiary shall incur withdrawal
liability to such Multi-employer Plan; and in each case in clauses (1) through
(5) of this Section 10.1(k), such event or condition, together with all other
such events or conditions, if any, is reasonably likely to result in a Material
Adverse Effect; or
(k) if any Person, or group of related Persons or group
of Persons acting in concert (other than the Persons specified by name and
title in Schedule 9.1(k)), that does not hold (as of the Closing Date) at least
50% of the outstanding voting control (as measured by the total number of votes
able to be cast by all common stock holders) (the "Voting Control") of Baldwin,
acquires more than 49% of the Voting Control of Baldwin, unless, at the option
of the Agent and the Lenders (which option may be exercised in their sole
discretion within thirty (30) days after the Agent and each Lender receives
written notice from an Authorized Officer of such change in Voting Control,
such notice to expressly identify the Agent's and Lenders' rights under this
Section 9.1(k)), (i) the Notes and all Obligations are prepaid in full and the
Revolving Credit Facility is terminated, or (ii) the Agent and the Lenders
expressly consent to such change in the Voting Control of Baldwin;
then, and in any such event and at any time thereafter, if such Event of
Default or any other Event of Default shall then be continuing, (A) the Agent,
with the consent of the Required Lenders, may, and at the direction of the
Required Lenders shall, declare any obligation of the Lenders to make further
Loans terminated, whereupon the obligation of each Lender to make further Loans
hereunder shall terminate immediately; and (B) the Agent shall at the direction
of the Required Lenders, at their option, declare by notice to any Borrower any
or all of the Obligations to be immediately due and payable, and the same,
including all interest accrued thereon and all other Obligations of any
Borrower to the Lenders, shall forthwith become immediately due and payable
without presentment, demand, protest, further notice or other formality of any
kind, all of which are hereby expressly waived, anything contained herein or in
any instrument evidencing the Obligations to the contrary notwithstanding;
provided, however, that notwithstanding the above, if there shall occur an
Event of Default under clause (g)(2), (3), (4) or (5) or (h)(1) or (2) above,
then the obligation of the Lenders described in clause (A) above shall
automatically terminate and any and all of the Obligations shall be immediately
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due and payable without the necessity of any action by the Agent or the
Required Lenders or notice by the Agent or the Lenders.
9.2. AGENT TO ACT. In case any one or more Events of Default shall
occur and be continuing, the Agent may, and at the direction of the Required
Lenders shall, proceed to protect and enforce their rights or remedies either
by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or
in any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
9.3. CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or
remedies contained herein or in any other Loan Document, and every such right
or remedy shall be cumulative and shall be in addition to every other such
right or remedy contained herein and therein or now or hereafter existing at
law or in equity or by statute, or otherwise.
9.4. NO WAIVER. No course of dealing between any Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies hereunder shall operate as a waiver
of any rights or remedies hereunder and no single or partial exercise of any
rights or remedies hereunder shall operate as a waiver or preclude the exercise
of any other rights or remedies hereunder or of the same right or remedy on a
future occasion.
9.5. ALLOCATION OF PROCEEDS. If an Event of Default has occurred and
is continuing, and the maturity of the Notes has been accelerated pursuant to
Article IX hereof, all payments received by the Agent hereunder in respect of
any principal of or interest on the Obligations or any other amounts payable by
any Borrower hereunder shall be applied by the Agent in the following order:
(a) amounts due to the Agent and the Lenders, or any one
of them, pursuant to Sections 2.12, 3.1, 3.4, 7.15 and 11.5 hereof;
(b) amounts due to the Agent pursuant to Section 10.11
hereof;
(c) payments of interest, to be applied in accordance
with Section 2.8 hereof;
(d) payments of principal, to be applied in accordance
with Section 2.8 hereof; and
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(e) payments of all other amounts due under this
Agreement, if any, to be applied to the Lenders to whom such amounts are due,
pro rata in the proportion that the amount due to each Lender bears to the
amount due to all Lenders.
ARTICLE X
THE AGENT
10.1. APPOINTMENT. Each Lender (including NationsBank in its capacity
as Lender) hereby irrevocably designates and appoints NationsBank as the Agent
of the Lenders under this Agreement, and each of the Lenders hereby irrevocably
authorizes NationsBank as the Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers as are expressly delegated to the Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. The Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any of the
Lenders, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Agent.
10.2. ATTORNEYS-IN-FACT. The Agent may execute any of its duties
under this Agreement by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Agent shall not be responsible to the Lenders for the gross negligence or
willful misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
10.3. LIMITATION ON LIABILITY. Neither the Agent nor any of its
officers, directors, employees, agents or attorneys-in-fact shall be liable to
the Lenders for any action lawfully taken or omitted to be taken by it or them
under or in connection with this Agreement except for its or their own gross
negligence or willful misconduct. Neither the Agent nor any of its affiliates
shall be responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by Baldwin, any Borrower, any
Guarantor or any Baldwin Subsidiary, or any officer thereof contained in this
Agreement or in any of the other Loan Documents, or in any certificate, report,
statement or other document referred to or provided for in or received by the
Agent under or in connection with this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any of the other Loan Documents, or for any failure of Baldwin, any Borrower,
any Guarantor or any Baldwin Subsidiary to perform its obligations thereunder.
The Agent shall not be under any obligation to any of the Lenders to ascertain
or to inquire as to
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the observance or performance of any of the terms, covenants or conditions of
this Agreement or any of the other Loan Documents on the part of Baldwin, any
Borrower, or any Guarantor or to inspect the properties, books or records of
Baldwin, any Borrower, any Guarantor or any Baldwin Subsidiary.
10.4. RELIANCE. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any Note, writing, resolution, notice, consent
certificate, affidavit, letter, cablegram, telegram, telecopy or telex message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any Borrower), independent accountants and other experts
selected by the Agent. The Agent may deem and treat the payee of any Note as
the owner thereof for all purposes unless an Assignment and Acceptance shall
have been filed with and accepted by the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement unless
it shall first receive advice or concurrence of the Lenders or the Required
Lenders as provided in this Agreement or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all present and future
holders of the Notes.
10.5. NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Lender or the Borrowers
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default." In the event that the Agent
receives such a notice, the Agent shall promptly give notice thereof to the
Lenders and the Borrowers. The Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Lenders; provided that, unless and until the 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 Event of
Default as it shall deem advisable in the best interests of the Lenders.
10.6. NO REPRESENTATIONS. Each Lender expressly acknowledges that
neither the Agent nor any of its affiliates has made any representations or
warranties to it and that no act by the Agent hereafter taken, including any
review of the affairs of
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Baldwin, any Borrower, any Guarantor or any Baldwin Subsidiary, shall be deemed
to constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the financial condition, creditworthiness, affairs, status and nature of
Baldwin, the Borrowers, any Guarantor and the Baldwin Subsidiaries and made its
own decision to enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Agent or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and to make such investigation
as it deems necessary to inform itself as to the status and affairs, financial
or otherwise, of Baldwin, any Borrower, any Guarantor and any Baldwin
Subsidiary. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Agent hereunder, the Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or business of Baldwin,
any Borrower, any Guarantor or any Baldwin Subsidiary which may come into the
possession of the Agent or any of its affiliates.
10.7. INDEMNIFICATION. The Lenders agree to indemnify the Agent in
its capacity as such (to the extent not reimbursed by the Borrowers and without
limiting any obligations of the Borrowers so to do), ratably according to the
respective principal amount of the Loans held by them (or, if no Loans are
outstanding, ratably in accordance with their respective Applicable Commitment
Percentages as then in effect) from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any
time (including without limitation at any time following the payment of the
Notes) be imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of this Agreement or any other document contemplated
by or referred to herein or the transactions contemplated hereby or any action
taken or omitted by the Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agent's gross
negligence or willful misconduct. The agreements in this Section 10.7 shall
survive the payment of the Obligations and the termination of this Agreement.
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10.8. LENDER. NationsBank and its affiliates may make loans to,
accept deposits from and generally engage in any kind of business with Baldwin,
the Borrowers, the Guarantors and the Baldwin Subsidiaries as though it were
not the Agent hereunder. With respect to its Loans made or renewed by it and
any Note issued to it, NationsBank shall have the same rights and powers under
this Agreement as any Lender and may exercise the same as though it were not
the Agent, and the terms "Lender" and "Lenders" shall, unless the context
otherwise indicates, include NationsBank in its individual capacity.
10.9. RESIGNATION. If the Agent shall resign as Agent under this
Agreement, then the Required Lenders may appoint a successor Agent for the
Lenders, which shall be a commercial bank organized under the laws of the
United States or any state thereof, having a combined surplus and capital of
not less than $500,000,000, which is acceptable to the Borrowers and as to
which the Borrowers will not unreasonably withhold their approval, whereupon
such successor Agent shall succeed to the rights, powers and duties of the
former Agent and the obligations of the former Agent shall be terminated and
canceled, without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement; provided, however, if the
Required Lenders cannot agree as to a successor Agent within ninety (90) days
after such resignation, the Agent shall appoint a successor Agent meeting the
qualifications set forth above, which is acceptable to the Borrowers and as to
which the Borrowers will not unreasonably withhold their approval and the
parties hereto agree to execute whatever documents are necessary to effect such
action under this Agreement or any other document executed pursuant to this
Agreement; provided, however, in such event, all provisions of this Agreement
and the Loan Documents shall remain in full force and effect. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
X shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement.
10.10. SHARING OF PAYMENTS, ETC. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, set-off, counterclaim
or otherwise, obtain payment with respect to the Obligations (other than any
payment pursuant to Section 2.14 or Article III) which results in its receiving
more than its pro rata share of the aggregate payments with respect to all of
the Obligations (other than any payment pursuant to Section 2.14 or Article
III), then (A) such Lender shall be deemed to have simultaneously purchased
from the other Lenders a share in their Obligations so that the amount of the
Obligations held by each of the Lenders shall be pro rata and (B) such other
adjustments shall be made from time to time as shall be equitable to insure
that the Lenders share such payments ratably; provided, however,
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that for purposes of this Section 10.10 the term "pro rata" shall be determined
with respect to both the Revolving Loan Commitment of each Lender and to the
Total Commitments after subtraction in each case of amounts, if any, by which
any such Lender has not funded its share of the outstanding Loans. If all or
any portion of any such excess payment is thereafter recovered from the Lender
which received the same, the purchase provided in this Section 10.10 shall be
rescinded to the extent of such recovery, without interest. The Borrowers
expressly consent to the foregoing arrangements and agree that each Lender so
purchasing a portion of the other Lenders' Obligations may exercise all rights
of payment (including, without limitation, all rights of set-off, banker's lien
or counterclaim) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
10.11. FEES. Each Borrower agrees, jointly and severally, to pay to
the Agent, for its individual account, in the event a financial institution
other than NationsBank becomes a Lender hereunder at any time, an Agent's fee
in such amount as shall be agreed to from time to time by the Borrowers and the
Agent, such fee to be paid in quarterly installments in arrears on each July
31, October 31, January 31 and April 30 with respect to the period commencing
with the Closing Date and continuing until and including the Revolving Credit
Termination Date.
ARTICLE XI
MISCELLANEOUS
11.1. ASSIGNMENTS AND PARTICIPATIONS.
(a) At any time after the Closing Date each Lender may,
with the prior consent of the Agent and the Borrowers (whose consent shall not
be unreasonably withheld), assign to one or more banks or financial
institutions all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of the Note payable
to its order); provided, that (1) each such assignment shall be of a constant,
and not a varying, percentage of all of the assigning Lender's rights and
obligations under this Agreement, (2) the assigning Lender shall execute an
Assignment and Acceptance and the Borrowers hereby agree to execute replacement
Notes to give effect to the assignment if it shall have consented to such
assignment, (3) the minimum Revolving Loan Commitment which shall be assigned
is $5,000,000, (4) after giving effect to such assignment the assignor shall
retain a Revolving Loan Commitment of not less than $5,000,000, (5) such
assignee shall have an office located in the United States and (6) such
assigning Lender, such assignee, the Agent and the Borrowers shall have
executed and delivered an Assignment and Acceptance. Upon such execution,
delivery, approval and acceptance, from and after the
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effective date specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder or under such Note have been assigned or negotiated to it
pursuant to such Assignment and Acceptance, have the rights and obligations of
a Lender hereunder as fully as if such assignee had been named as a Lender in
this Agreement and a holder of such Note and (y) the assignor thereunder shall,
to the extent that rights and obligations hereunder or under such Note have
been assigned or negotiated by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this
Agreement. No assignee shall have the right to further assign its rights and
obligations pursuant to this Section 11.1. Any Lender who makes an assignment
shall pay to the Agent a one-time administrative fee of $5,000.00 which fee
shall not be reimbursed by the Borrowers.
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (1) the
assignment made under such Assignment and Acceptance is made under such
Assignment and Acceptance without recourse to the assigning Lender; (2) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Baldwin, any
Borrower, any Guarantor or any Baldwin Subsidiary or the performance or
observance by Baldwin, any Borrower, any Guarantor or any Baldwin Subsidiary of
any of its obligations under any Loan Document or any other instrument or
document furnished pursuant hereto; (3) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements delivered pursuant to Section 6.2 hereof and such other Loan
Documents and other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment and
Acceptance; (4) such assignee will, independently and without reliance upon the
Agent, such assigning Lender or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (5)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement, the Note, any
Letter of Credit and the other Loan Documents as are delegated to the Agent by
the terms hereof and thereof, together with such powers as are reasonably
incidental thereto; and (6) such assignee agrees that it assumes, and will be
bound by and will perform in accordance with their terms all of the obligations
which by the terms of this Agreement are required to be performed by it as a
Lender and a holder of such Note.
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(c) The Agent shall maintain at its address referred to
herein a copy of each Assignment and Acceptance delivered to and accepted by
it.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender, the Agent shall give prompt notice thereof to
the Borrowers.
(e) No assignee Lender shall be entitled to receive any
greater payment under Article III than the assigning Lender would have been
entitled to receive in respect of the rights hereunder transferred to the
assignee Lender. The consent of the Borrowers to such transfer shall not
affect the preceding sentence.
(f) If, pursuant to this Section 11.1, any interest in
this Agreement or any Note is transferred to any assignee Lender which is
organized under the laws of any jurisdiction other than the United States or
any state thereof, the assigning Lender shall cause such assignee Lender,
concurrently with the effectiveness of such transfer, (1) to represent to the
assigning Lender (for the benefit of the assigning Lender, the Agent and the
Borrowers) that under applicable law and treaties no taxes will be required to
be withheld by the Agent, the Borrowers or the assigning Lender with respect to
any payments to be made to such assignee Lender in respect of the Loans, (2) to
furnish to the assigning Lender, the Agent and the Borrowers (x) either United
States Internal Revenue Service Form 4224 or United States Internal Revenue
Service Form 1001 or successor applicable form or other manner of certification
wherein such assignee Lender claims entitlement to complete exemption from
United States Federal withholding tax on all payments hereunder and (y) either
United States Internal Revenue Service Form W-8 or United States Internal
Revenue Service Form W-9 wherein such assignee Lender claims entitlement to
exemptions from United States information reporting and back up withholding and
(3) to agree (for the benefit of the assigning Lender, the Agent and the
Borrowers) to provide the assigning Lender, the Agent and the Borrowers further
or successor forms in accordance with Section 3.1(d), and to comply from time
to time with all applicable United States laws and regulations with regard to
such withholding tax exemption.
(g) Nothing herein shall prohibit any Lender from
pledging or assigning any Note to any Federal Reserve Bank in accordance with
applicable law.
(h) Each Lender may sell participations to one or more
banks or other entities as to all or a portion of its rights and obligations
under this Agreement; provided, that (1) such Lender's obligations under this
Agreement shall remain unchanged, (2) such Lender shall remain solely
responsible to the other
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parties hereto for the performance of such obligations and shall be solely
responsible for any withholding tax or other tax consequences caused by such
participation, (3) such Lender shall remain the holder of any Note issued to it
for the purpose of this Agreement, (4) such participations shall be in a
minimum amount of $1,000,000 and shall include an allocable portion of such
Lender's Participation, and (5) the Borrowers, the Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and with regard to
any and all payments to be made under this Agreement; provided, that the
participation agreement between a Lender and its participants may provide that
such Lender will obtain the approval of such participant prior to such Lender's
agreeing to any amendment or waiver of any provisions of this Agreement which
would (A) extend the maturity of the Note, (B) reduce the interest rate
hereunder, (C) increase the Revolving Loan Commitment of the Lender granting
the participation or (D) release all or any substantial part of the Collateral
other than in accordance with the terms of the Loan Documents, and (6) the sale
of any such participations which require any Borrower to file a registration
statement with the United States Securities and Exchange Commission or under
the securities regulations or laws of any state shall not be permitted.
11.2. NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective on the day on which delivered to
such party (against receipt therefor) at the address set forth below or such
other address as such party shall specify to the other parties in writing (or,
in the case of telephonic notice or notice by telecopy (where the receipt of
such message is verified by return) expressly provided for hereunder, when
received at such telephone or telecopy number as may from time to time be
specified in written notice to the other parties hereto or otherwise received),
or if sent prepaid by certified or registered mail return receipt requested on
the third Business Day after the day on which mailed, or if sent prepaid by a
national overnight courier service, on the first Business Day after the day on
which delivered to such service against receipt therefor, addressed to such
party at said address:
(a) If to BAM:
Baldwin Americas Corporation
c/o Baldwin Technology Company, Inc.
65 Rowayton Avenue
Rowayton, CT 06853
Attention: William J. Lauricella
Telephone: 203-838-7470
Telefacsimile: 203-852-7040
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(b) if to BTL:
Baldwin Technology Limited
c/o Baldwin Technology Company, Inc.
65 Rowayton Avenue
Rowayton, CT 06853
Attention: William J. Lauricella
Telephone: 203-838-7470
Telefacsimile: 203-852-7040
(c) If to Baldwin:
Baldwin Technology Company, Inc.
65 Rowayton Avenue
Rowayton, CT 06853
Attention: William J. Lauricella
Telephone: 203-838-7470
Telefacsimile: 203-852-7040
(d) if to NationsBank or the Agent:
NationsBank of North Carolina,
National Association
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255-0065
Attention: Michelle J. Kirby
Telephone: 704-386-8389
Telefacsimile: 704-386-8694
with a copy to:
NationsBank of North Carolina,
National Association
Corporate Banking
767 Fifth Avenue
5th Floor
New York, New York 10153-0083
Attention: Philip Cope
Telephone: 212-644-9333
Telefacsimile: 212-593-1083
(e) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature of each Assignment and
Acceptance.
11.3. SETOFF. Each Borrower agrees that all of the Borrower's
deposits or deposit accounts, of any kind, or any of the Borrower's interest in
any deposits or deposit accounts
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thereof, now or hereafter pledged, mortgaged, transferred or assigned to the
Agent or a Lender or otherwise in the possession or control of the Agent or
such Lender (other than any of the foregoing held in trust) for any purpose for
the account or benefit of the Borrower and including any balance of any deposit
account or of any credit of the Borrower with the Agent or such Lender, whether
now existing or hereafter established, shall be subject to the right of setoff
of the Agent and each Lender at any time or times during the continuance of an
Event of Default with or, to the extent permitted by applicable law, without
prior notice, to apply such deposits or any part thereof to such of the
Obligations of the Borrower to the Agent or such Lender then past due and in
such amounts as they may elect, and whether or not the Collateral or the
responsibility of other Persons primarily, secondarily or otherwise liable may
be deemed adequate. For the purposes of this paragraph, all remittances and
property shall be deemed to be in the possession of the Agent or such Lender as
soon as the same may be put in transit to it by mail or carrier or by other
bailee. All Lenders receiving any proceeds hereunder or applied to any
Obligations are subject to Section 10.10 hereof.
11.4. SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the execution and delivery to the Lenders of this Agreement, the Notes and the
Loan Documents and shall continue in full force and effect until all principal
and interest on the Loans are paid in full and all fees, charges and other
expenses then due and owing are paid in full and no Lender has any Revolving
Loan Commitment hereunder. Whenever in this Agreement, any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of any Borrower which are contained in this
Agreement and the Notes shall inure to the benefit of the successors and
permitted assigns of the Lenders or any of them.
11.5. EXPENSES. Each Borrower agrees, jointly and severally, (a) to
pay or reimburse the Agent for all its out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation and execution of, and
any amendment, supplement or modification to, this Agreement or any of the
other Loan Documents, including, without limitation, the reasonable fees and
disbursements of counsel to the Agent, (b) to pay or reimburse the Agent and
the Lenders for all their out-of-pocket costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement (including without limitation any costs and expenses occurred in
connection with any workout, enforcement or bankruptcy proceeding), and
including without limitation, the reasonable fees and disbursements of counsel
to the Agent, (c) to pay, indemnify and
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hold the Agent and the Lenders harmless from any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any failure
of any Borrower to pay or delay by any Borrower in paying, documentary, stamp,
excise and other similar taxes, if any, which may be payable or determined to
be payable in connection with the execution and delivery of, or consummation of
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, (d) to pay, indemnify, and hold the Agent and
the Lenders harmless from and against any and all other out-of-pocket
liabilities, costs, expenses or disbursements of any kind or nature whatsoever
arising in connection with any claim or litigation by any Person (other than a
party hereto) resulting from the execution, delivery, enforcement, performance
and administration of this Agreement or the transactions contemplated hereby or
in any respect relating to any transaction financed or to be financed in whole
or in part, directly or indirectly, with the proceeds of any Loan (all the
foregoing, collectively, the "indemnified liabilities"); provided, however,
that the Borrowers shall have no obligation hereunder with respect to
indemnified liabilities arising from the willful misconduct or gross negligence
of any Lender or the Agent. The agreements in this Section 11.5 shall survive
repayment of the Notes and all other Obligations hereunder.
11.6. AMENDMENTS. No amendment, modification or waiver of any
provision of this Agreement or any of the Loan Documents and no consent by the
Lenders to any departure therefrom by any Borrower shall be effective unless
such amendment, modification or waiver shall be in writing and signed by the
Agent, but only upon having received the written consent of the Required
Lenders, and (with respect to amendments, modifications and waivers) by the
Borrowers, and the same shall then be effective only for the period and on the
conditions and for the specific instances and purposes specified in such
writing; provided, however, that, no such amendment, modification or waiver
(a) which changes, extends or waives any provision of
Section 10.10 or this Section 11.6, the amount of or the due date of any
scheduled installment of or the rate of interest payable on any Obligation,
changes the definition of Required Lenders, which increases or extends the
Revolving Loan Commitment of any Lender or which waives any Event of Default
under Section 9.1(h) or (i) shall be effective unless in writing and signed by
each of the Lenders affected thereby; or
(b) which affects the rights, privileges, immunities or
indemnities of the Agent, shall be effective unless in writing and signed by
the Agent.
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No notice to or demand on any Borrower in any case shall entitle any Borrower
to any other or further notice or demand in similar or other circumstances,
except as otherwise expressly provided herein.
11.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart. All
signatures need not be on one counterpart.
11.8. TERMINATION. The termination of this Agreement shall not affect
any rights of any Borrower, the Lenders or the Agent or any obligation of any
Borrower, the Lenders or the Agent, arising prior to the effective date of such
termination, and the Obligations arising prior to termination have been
irrevocably Fully Satisfied. The rights granted to the Agent for the benefit
of the Lenders hereunder and under the other Loan Documents shall continue in
full force and effect, notwithstanding the termination of this Agreement, until
all of the Obligations have been Fully Satisfied after the termination hereof
or the Borrowers have furnished the Lenders and the Agent with an
indemnification satisfactory to the Agent and each Lender with respect thereto.
All representations, warranties, covenants, waivers and agreements contained
herein shall survive termination hereof until the Obligations have been Fully
Satisfied unless otherwise provided herein. "Fully Satisfied" means, with
respect to the Obligations as of any date, that, on or before such date, (a)
all amounts then due and payable with respect to the Loan Documents on or
before such date shall have been paid in full in cash, (b) all principal,
interest, fees, expenses and other amounts then due and payable by any Borrower
to the Agent and the Lenders shall have been paid in full in cash, and (c) the
Revolving Loan Commitments of each Lender shall have expired or been
terminated. Notwithstanding the foregoing, if after receipt of any payment of
all or any part of the Obligations, any Lender is for any reason compelled to
surrender such payment to any Person because such payment is determined to be
void or voidable as a preference, impermissible setoff, a diversion of trust
funds or for any other reason, this Agreement shall continue in full force and
each Borrower, jointly and severally, shall be liable to, and shall indemnify
and hold such Lender harmless for, the amount of such payment surrendered until
such Lender shall have been finally and irrevocably paid in full. The
provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Lenders in
reliance upon such payment, and any such contrary action so taken shall be
without prejudice to the Lenders' rights under this Agreement and shall be
deemed to have been conditioned upon such payment having become final and
irrevocable.
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11.9. GOVERNING LAW. ALL DOCUMENTS EXECUTED PURSUANT TO THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING, WITHOUT LIMITATION, THIS AGREEMENT
AND EACH OF THE LOAN DOCUMENTS SHALL BE DEEMED TO BE CONTRACTS MADE UNDER, AND
FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND
JUDICIAL DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
11.10. REPRESENTATION AND WARRANTY OF THE LENDERS. Each Lender
hereby represents, and upon the request of a Borrower, each assignee and
participant pursuant to Section 11.1 will represent, that no part of any funds
used by such Lender to fund any Loan or other extension of credit to any
Borrower made by it constitutes or will constitute assets of any Plan.
11.11. AGREEMENT CONTROLS. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any term of this
Agreement, the terms and provisions of this Agreement shall control.
11.12. CONSENT TO JURISDICTION; OTHER WAIVERS. (A) IN THE EVENT THAT
ANY ACTION, SUIT OR OTHER PROCEEDING IS BROUGHT AGAINST ANY BORROWER BY OR ON
BEHALF OF THE AGENT OR ANY OF THE LENDERS TO ENFORCE THE OBSERVANCE OR
PERFORMANCE OF ANY OF THE PROVISIONS OF THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, INCLUDING WITHOUT LIMITATION THE COLLECTION OF ANY AMOUNTS OWING
HEREUNDER, EACH BORROWER HEREBY IRREVOCABLY (I) CONSENTS TO THE EXERCISE OF
JURISDICTION OVER SUCH BORROWER AND ITS PROPERTY BY THE UNITED STATES DISTRICT
COURT, WESTERN DISTRICT OF NORTH CAROLINA, AND BY THE NORTH CAROLINA GENERAL
COURT OF JUSTICE, SUPERIOR COURT DIVISION, TWENTY-SIXTH JUDICIAL DISTRICT, AND
(II) WAIVES ANY OBJECTION SUCH BORROWER MIGHT NOW OR HEREAFTER HAVE OR ASSERT
TO THE VENUE OF ANY SUCH PROCEEDING IN ANY COURT DESCRIBED IN CLAUSE (I) ABOVE.
(B) IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER LOAN
DOCUMENTS OR ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT,
OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF,
OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN ANY BORROWER AND THE
AGENT OR ANY OF THE LENDERS, EACH BORROWER, THE AGENT AND THE LENDERS HEREBY
WAIVE TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
(C) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO
IN SUBSECTION (B) OF THIS SECTION 11.12 ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES THAN, OR IN ADDITION TO, ACTUAL
DAMAGES.
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(D) EACH PARTY HERETO (I) CERTIFIES THAT NEITHER ANY
REPRESENTATIVE, AGENT OR ATTORNEY OF THE AGENT OR ANY OF THE LENDERS HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR ANY LENDER WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (II)
ACKNOWLEDGES THAT THE AGENT AND EACH OF THE LENDERS HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS HEREIN.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
BALDWIN AMERICAS CORPORATION
By:_______________________________
Name:_____________________________
Title: __________________________
BALDWIN TECHNOLOGY LIMITED
By:_______________________________
Name:_____________________________
Title: __________________________
BALDWIN TECHNOLOGY COMPANY, INC.
By:_______________________________
Name:_____________________________
Title: __________________________
NATIONSBANK OF NORTH CAROLINA,
NATIONAL ASSOCIATION,
as Agent for the Lenders
By:_______________________________
Name:_____________________________
Title: __________________________
SIGNATURE PAGE 1 OF 2
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105
NATIONSBANK OF NORTH CAROLINA,
NATIONAL ASSOCIATION, as Lender
By:_______________________________
Name:_____________________________
Title: __________________________
Lending Office:
NationsBank of North Carolina,
National Association
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina
28255-0065
Attention: Michelle J. Kirby
Telephone: 704-386-8389
Telefacsimile: 704-386-8694
Wire Transfer Instructions:
NationsBank of North Carolina,
National Association
Charlotte, North Carolina
ABA# 053000196
Reference: Account __________
Account Name: ____
Attention: __________________
SIGNATURE PAGE 2 OF 2
106
EXHIBIT E
Form of Note
_______________(1) [____________,___________](2)
November __, 1993
FOR VALUE RECEIVED, each of BALDWIN AMERICAS CORPORATION, a Delaware
corporation ("BAM") and BALDWIN TECHNOLOGY LIMITED, a Bermuda corporation
("BTL") (BAM and BTL being referred to collectively as the "Borrowers"), hereby
promises, jointly and severally, to pay to the order of
___________________________________(3)(the "Lender"), in its individual
capacity, at the office of NationsBank of North Carolina, National Association,
as agent for the Lenders (defined below) (the "Agent"), located at NationsBank
Corporate Center, 100 North Tryon Street, Charlotte, North Carolina 28255 (or
at such other place or places within the United States as the Agent may
designate) at the times set forth in the Revolving Credit Agreement dated as of
November __, 1993 among the Borrowers, Baldwin Technology Company, Inc.
("Baldwin"), the Lenders (as defined in the Agreement) and the Agent (all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of
[________________](4) DOLLARS ($__________)(1) or, if less than such principal
amount, the aggregate unpaid principal amount of all Loans made by the Lender
to the Borrowers pursuant to the Agreement and to pay interest from the date
hereof on the unpaid principal amount hereof, in like money, at said office, on
the dates and at the rates provided in Article II of the Agreement. The holder
of this Note is authorized to record the date and amount of each Loan made by
the Lender pursuant to Section 2.7 of the Agreement, and the date and amount of
each payment or prepayment of principal on such Lender's internal books and
records and then attach such information as a schedule to this Note, provided
that the failure of the Lender to make such recordation (or any error in such
recordation) shall not affect the obligations of any Borrower hereunder or
under the Agreement.
_______________________________
1 Insert Lender's Pro Rata Share of Total Revolving Commitment in arabic
numerals.
2 Insert name of city of Agent's Principal Office.
3 Insert name of Lender in capital letters
4 Insert Lender's Pro Rata Share of Total Commitment in words.
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If payment of all sums due hereunder is accelerated under the terms of
the Agreement, the then remaining principal amount and accrued but unpaid
interest shall bear interest which shall be payable on demand (i) in the case
of a LIBOR Loan, until the end of the Interest Period with respect to such
LIBOR Loan, at a rate of two percent (2%) per annum above such LIBOR Rate, and
(ii) thereafter, and with respect to Prime Loans, at a rate two percent (2%)
per annum in excess of the Prime Rate or the maximum rate permitted under
applicable law, if lower, until such principal and interest have been paid in
full. Further, in the event of such acceleration, this Note shall become
immediately due and payable, without presentation, demand, protest or other
notice of any kind, all of which are hereby waived by each Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, each Borrower, jointly and severally, agrees to pay, in
addition to the principal and interest, the reasonable out-of-pocket costs of
collection, including reasonable attorneys' fees, as provided in Section 11.5
of the Agreement.
Interest hereunder shall be computed on the basis of a 360-day year in
the case of a Prime Loan and a 365-day year in the case of a LIBOR Loan, each
for the actual number of days in the interest period.
This Note is secured by the Borrowers Pledge Agreement, the Baldwin
Pledge Agreement, the Baldwin Technology Pledge Agreement and the Enkel Pledge
Agreement, pursuant to which each Borrower, Baldwin, Baldwin Technology and
Enkel Corporation has assigned, transferred, pledged and set over unto the
Agent for the benefit of the Lenders the Pledged Stock, together with all
dividends paid upon, all securities received in addition to and in exchange
for, and all rights to subscribe for securities incident to, the Pledged Stock.
This Note is guaranteed by the Baldwin Guaranty, the Sector Subsidiary
Guaranty, and the BAM Subsidiary Guaranty , pursuant to which each of Baldwin,
each Sector Subsidiary, and each BAM Subsidiary has guaranteed the payment and
performance of the Obligations.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby
waive to the full extent permitted by law the benefits of all provisions of law
for stay or delay of execution or sale of property or other satisfaction of
judgment against any of them on account of liability hereon until judgment be
obtained and execution issued against any other of them and returned satisfied
or until it can be shown that the maker or any other party hereto had no
property available for the satisfaction of the debt evidenced by this
instrument, or until any other proceedings can be
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had against any of them, also their right, if any, to require the
holder hereof to hold as security for this Note any Collateral deposited by any
of said Persons as security. Protest, notice of protest, notice of dishonor or
diligence are hereby waived by all parties bound hereon.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized officer as of the date and year
first above written, all pursuant to authority duly granted.
BALDWIN AMERICAS CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
--------------------
BALDWIN TECHNOLOGY LIMITED
By:
-------------------------------
Name:
-----------------------------
Title:
--------------------
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