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EXHIBIT 10.1
U.S. $400,000,000
MULTICURRENCY CREDIT AGREEMENT
Dated as of
January 13, 1997
Among
GENERAL BINDING CORPORATION,
THE BANKS PARTY HERETO,
And
HARRIS TRUST AND SAVINGS BANK,
as Administrative Agent
And Each of
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Syndication Agent and Co-Agent
And
THE BANK OF NEW YORK
And
CAISSE NATIONALE DE CREDIT AGRICOLE
And LASALLE NATIONAL BANK
as Co-Agents
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CREDIT AGREEMENT
To each of the Banks signatory hereto
Ladies and Gentlemen:
The undersigned, General Binding Corporation, a Delaware corporation
(the "Company"), applies to you for your several commitments, subject to all
the terms and conditions hereof and on the basis of the representations and
warranties hereinafter set forth, to make available to the Company and each
Borrowing Subsidiary (as defined in Section 5.10 hereof) a revolving credit
available in the form of loans and letters of credit, all as more fully
hereinafter set forth. Each of you is hereinafter referred to as a "Bank", all
of you are hereinafter referred to collectively as the "Banks", Harris Trust
and Savings Bank in its capacity as agent hereunder is hereinafter referred to
as the "Administrative Agent", and LaSalle National Bank, The First National
Bank of Chicago, The Bank of New York and Caisse Nationale de Credit Agricole
in their respective capacities as Co-Agents hereunder are hereinafter referred
to as the "Co-Agents". The Company and each Borrowing Subsidiary are
hereinafter referred to individually as a "Borrower" and collectively as the
"Borrowers".
SECTION 1. THE COMMITTED FACILITY
Section 1.1. The Revolving Credit Commitments. The Committed
Loans. Subject to the terms and conditions hereof, each Bank, by its
acceptance hereof, severally agrees, before the Revolving Credit Termination
Date, to make a loan or loans (individually a "Committed Loan" and collectively
"Committed Loans") to each and any Borrower from time to time on a revolving
basis in U.S. Dollars and Alternative Currencies in an aggregate outstanding
Original Dollar Amount for all the Borrowers (taken together) up to the amount
of its commitment to make Committed Loans set forth on the applicable signature
page hereof or pursuant to Section 17.12 hereof (its "Revolving Credit
Commitment" and cumulatively for all the Banks the "Revolving Credit
Commitments"), subject to any reductions thereof pursuant to the terms hereof.
At no time shall the aggregate Original Dollar Amount of outstanding Loans
(whether Committed Loans, Bid Loans or Swing Line Loans) and L/C Obligations to
all Borrowers (taken together) exceed the Revolving Credit Commitments then in
effect, which Revolving Credit Commitments on the date hereof total
$400,000,000. Each Borrowing of Committed Loans shall be made ratably from the
Banks in proportion to their respective Percentages. The relevant Borrower may
elect, through the Company, that each Borrowing of Committed Loans denominated
in U.S. Dollars be made available by means of either Domestic Rate Loans or
Eurocurrency Loans. All Loans denominated in an Alternative Currency shall be
Eurocurrency Loans.
Section 1.2. Letters of Credit. (a) General Terms. Subject to
the terms and conditions hereof, as part of the Revolving Credit, the
Administrative Agent or Multicurrency Swing Line Bank (each an "Issuing Agent")
shall from time to time issue commercial and standby letters of credit (each a
"Letter of Credit") for the account of any one or more of the Borrowers
(whether or not also for the account of any other Subsidiary of the Company as
well) prior to the Revolving Credit Termination Date, provided that (x) the
aggregate Original Dollar Amount of L/C Obligations at any time outstanding
shall not exceed the difference between the Revolving Credit Commitments in
effect at such time and the aggregate Original Dollar Amount of Loans (whether
Committed Loans, Bid Loans or Swing Line Loans) then outstanding, (y) the
aggregate Original Dollar Amount of Committed L/C Obligations at any time
outstanding shall not exceed the L/C Commitment then in effect and (z) the
aggregate Original Dollar Amount of Foreign Credit L/C Obligations and
Multicurrency Swing Line Loans at any time outstanding shall not exceed the
Multicurrency Swing Line Commitment in effect at such time. Notwithstanding
anything herein to the contrary, that
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certain standby letter of credit dated April 17, 1996 issued by Harris Trust
and Savings Bank to Comerica Bank, as Trustee under an Indenture of Trust dated
April 1, 1996 between the Maryland Industrial Development Financing Authority
and such Trustee (the "Maryland IRB Indenture"), in the original amount of
$9,609,316 shall constitute a "Letter of Credit" herein for all purposes of
this Agreement to the same extent, and with the same force and effect as if
such Letter of Credit had been issued under this Agreement at the request of
the Company. Each Letter of Credit shall be issued by an Issuing Agent, but
each Bank (other than the Bank which issued such Letter of Credit) shall be
obligated to reimburse the relevant Issuing Agent for its Percentage of the
amount of each drawing thereunder and, accordingly, the undrawn face amount of
each Letter of Credit shall constitute usage of the Revolving Credit Commitment
of each Bank pro rata in accordance with each Bank's Percentage.
(b) Term. Each Letter of Credit issued hereunder shall expire not
later than the earlier of (i) one year from the date issued (or be cancelable
not later than one year from the date of issuance and each renewal) and (ii)
the Revolving Credit Termination Date.
(c) General Characteristics. Each Letter of Credit issued
hereunder by the Administrative Agent shall be payable in U.S. Dollars or an
Alternative Currency, shall conform to the general requirements of the
Administrative Agent for the issuance of commercial or standby letters of
credit (as appropriate) as to form and substance and shall be a letter of
credit which the Administrative Agent may lawfully issue. Each Letter of
Credit issued hereunder by the Multicurrency Swing Line Bank shall be a standby
letter of credit issued solely for the purpose of supporting credit extended by
a foreign Affiliate of the Multicurrency Swing Line Bank to a Foreign
Subsidiary (it being understood that the face amount of such a Letter of Credit
may when issued exceed the U.S. Dollar Equivalent of the maximum amount of
credit it is supporting to the extent the lender providing such credit so
requires) and shall be payable in U.S. Dollars, shall conform to the general
requirements of the Multicurrency Swing Line Bank for the issuance of standby
letters of credit as to form and substance and shall be a letter of credit
which the Multicurrency Swing Line Bank may lawfully issue.
(d) Applications. At the time the Company (acting on behalf of
the applicable Borrower) requests an Issuing Agent to issue a Letter of Credit
(or prior to the first issuance of a Letter of Credit, in the case of a
continuing application) for the account of any Borrower, such Borrower (jointly
with any other Borrower if such other Borrower elects in its discretion) shall
execute and deliver to such Issuing Agent an application for such Letter of
Credit in the form customarily prescribed by such Issuing Agent for a Letter of
Credit of the type requested (individually an "Application" and collectively
the "Applications"). The current forms of each Issuing Agent's Applications
are attached as Schedule 1.2 (Commercial) and Schedule 1.2 (Standby) hereto.
Each Issuing Agent shall provide the Company and each Bank with copies of any
new form of Application that may, from time to time, be adopted by such Issuing
Agent. Notwithstanding anything contained in any Application to the contrary,
(i) each Borrower executing the Application for a Letter of Credit shall be
jointly and severally liable for all L/C Obligations in respect of such Letter
of Credit (nothing herein contained to impair or otherwise affect the joint and
several liability under Section 16 hereof of the Guarantors), (ii) the
Borrowers shall pay fees in connection with each Letter of Credit as set forth
in Section 6.3 hereof, (iii) before the occurrence of an Event of Default,
neither Issuing Agent will call for the funding by a Borrower of any amount
under a Letter of Credit, or any other form of collateral security for such
Borrower's obligations in connection with such Letter of Credit, before being
presented with a drawing thereunder, (iv) upon the occurrence of
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the Revolving Credit Termination Date, the full amount then available for
drawing under all outstanding Letters of Credit shall be immediately due and
payable in the manner described in Section 13.4 hereof, and (v) if an Issuing
Agent is not timely reimbursed in accordance with Section 1.2(e) hereof
(whether out of the proceeds of a Loan, including a Committed Loan made
pursuant to Section 1.4(c) hereof or otherwise) for the amount of any drawing
paid by such Issuing Agent under a Letter of Credit on the date such drawing is
paid, the joint and several obligation of the applicable Borrowers (determined
as set forth in clause (i) of this sentence) to reimburse such Issuing Agent
for the amount of such drawing shall bear interest (which such Borrowers hereby
promise to pay) from and after the date such drawing is paid at a rate per
annum equal to (x) in the case of a drawing under a Letter of Credit
denominated in U.S. Dollars or a Letter of Credit denominated in an Alternative
Currency as to which the relevant Issuing Agent has requested reimbursement for
such drawing in U.S. Dollars, (i) from the date such Issuing Agent paid such
drawing to and including the date two (2) Business Days after such payment, the
sum of the Domestic Rate Margin plus the Domestic Rate from time to time in
effect and (ii) from the date two (2) Business Days after the date such Issuing
Agent paid such drawing to the date such Issuing Agent is reimbursed by a
Borrower therefor, the sum of 2% plus the Domestic Rate Margin plus the
Domestic Rate from time to time in effect, and (y) in the case of a drawing
under a Letter of Credit denominated in an Alternative Currency as to which
such Issuing Agent has requested reimbursement for such drawing in such
Alternative Currency, (i) from the date such Issuing Agent paid such drawing to
and including the date two (2) Business Days after such payment, the sum of the
Eurocurrency Margin plus the Overnight Foreign Currency Rate and (ii) from the
date two (2) Business Days after the date such Issuing Agent paid such drawing
to the date such Issuing Agent is reimbursed by a Borrower therefor, the sum of
2% plus the Eurocurrency Margin plus the Overnight Foreign Currency Rate. If
an Issuing Agent issues any Letters of Credit with expiration dates that are
automatically extended, unless such Issuing Agent gives notice that the
expiration date will not so extend beyond its then scheduled expiration date,
such Issuing Agent will give such notice of non-renewal before the time
necessary to prevent such automatic extension if before such required notice
date (i) the expiration date of such Letter of Credit if so extended would be
after the Revolving Credit Termination Date, (ii) the Revolving Credit
Commitments have been terminated or (iii) a Default or Event of Default exists
and the Required Banks have given the Administrative Agent and relevant
Issuing Agent instructions not to so permit the extension of the expiration
date of such Letter of Credit. At least thirty (30) Business Days before the
date on which an Issuing Agent is required to give notice of the non-renewal of
such a Letter of Credit in order to prevent its automatic extension, the
Issuing Agent (other than an Issuing Agent then serving as Administrative
Agent) shall give notice to the Administrative Agent of such circumstance and
the Administrative Agent shall promptly notify each Bank thereof. Each Issuing
Agent agrees to issue amendments to the Letter(s) of Credit increasing the
amount, or extending the expiration date, thereof at the request of the Company
(acting on behalf of itself or pursuant to Section 5.10 hereof, a Borrowing
Subsidiary) subject to the conditions of Section 11 and the other terms of this
Section 1.2. Each Issuing Agent (other than an Issuing Agent then serving as
Administrative Agent) shall promptly notify the Administrative Agent of each
request received by such Issuing Agent for the issuance of a Letter of Credit
or any extension, increase in the amount of or other modification to a Letter
of Credit and promptly furnish the Administrative Agent with a copy of the
completed Application for each Letter of Credit or in the case of any such
modification, a copy of the written request therefor. Each Issuing Agent
(other than an Issuing Agent then serving as Administrative Agent) shall
promptly notify the
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Administrative Agent of the issuance of each Letter of Credit and each
extension, increase in the amount or other modification of a Letter of Credit
and promptly furnish the Administrative Agent with a copy of each Letter of
Credit or modification thereof, as the case may be. The Administrative Agent
will promptly notify each Bank of each issuance of a Letter of Credit and each
extension or increase in the amount of a Letter of Credit. To the extent so
required by any Bank, each Issuing Agent shall furnish to such Bank copies of
Letters of Credit issued by such Issuing Agent and amendments thereof. In the
case of each such issuance, or increase in the amount of, any Letter of Credit,
the Administrative Agent shall determine and notify the relevant Issuing Agent
whether such amount would exceed any restriction in this Section 1 on the
aggregate face amount of Letters of Credit as set forth in Section 11.2 hereof.
(e) The Reimbursement Obligations. Subject to Section 1.2(d)
hereof, the joint and several obligations of the applicable Borrowers
(determined as set forth in clause (i) of the fourth sentence of Section 1.2(d)
hereof) to reimburse the relevant Issuing Agent for all drawings under a Letter
of Credit (a "Reimbursement Obligation") shall be governed by the Application
related to such Letter of Credit, except that (i) payments of drawings shall be
made to the Administrative Agent, not the Issuing Agent, and the Administrative
Agent shall promptly thereafter remit such payment in like funds as received to
the relevant Issuing Agent, (ii) the reimbursement by such Borrowers of
drawings made under a Letter of Credit denominated in U.S. Dollars shall be
made in U.S. Dollars and (iii) the reimbursement by such Borrowers of drawings
made under a Letter of Credit denominated in an Alternative Currency shall be
made by payment in U.S. Dollars of the U.S. Dollar Equivalent, calculated on
the date the relevant Issuing Agent paid such draws, of the amount paid by such
Issuing Agent pursuant to such drawing, or, if such Issuing Agent shall elect
by notice to the Company and the Administrative Agent, by payment in the
Alternative Currency which was paid by such Issuing Agent pursuant to such
drawing in an amount equal to such drawing and (iv) reimbursement in U.S.
Dollars of a drawing paid shall be made by no later than 1:30 p.m. (Chicago
time) on the date when each drawing is paid and reimbursement in an Alternative
Currency of a drawing paid shall be made by no later than 12:00 noon local time
at the place of payment or if earlier, such local time as is necessary for such
funds to be received and transferred to the relevant Issuing Agent for same day
value on the day such Reimbursement Obligation is due; any payment of a
Reimbursement Obligation received after such time shall be deemed to have been
received by the relevant Issuing Agent on the next Business Day. If the
applicable Borrowers do not make any such reimbursement payment on the date due
and the Participating Banks fund their participations therein in the manner set
forth in Section 1.2(f) below, then all payments thereafter received by the
Administrative Agent in discharge of any of the relevant Reimbursement
Obligations shall be distributed in accordance with Section 1.2(f) below.
The joint and several obligations of the applicable Borrowers to the
Issuing Agents under this Section 1.2 shall be absolute, irrevocable and
unconditional under any and all circumstances whatsoever (except, without
limiting such Borrowers' joint and several obligations under each Application,
to the extent that a Borrower is relieved under applicable law (including as
such, to the extent applicable to a particular Letter of Credit, the then
current Uniform Customs and Practice for Documentary Credits of the
International Chamber of Commerce) from its obligation to reimburse an Issuing
Agent for a drawing under a Letter of Credit because of such Issuing Agent's
failure to determine that documents received under the Letter of Credit comply
on their face with the terms thereof).
(f) The Participating Interests. Each Bank (other than the
Issuing Agent for the applicable Letter of Credit), by its acceptance hereof,
severally agrees to purchase from the relevant Issuing Agent,
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and such Issuing Agent hereby agrees to sell to each such Bank (in this
Section, a "Participating Bank"), an undivided percentage participating
interest (a "Participating Interest"), to the extent of its Percentage, in each
Letter of Credit issued by, and each Reimbursement Obligation owed to, such
Issuing Agent. Upon any failure by the applicable Borrowers to pay any
Reimbursement Obligation at the time required on the date the related drawing
is paid, as set forth in Section 1.2(e) above, or if an Issuing Agent is
required at any time to return to a Borrower or to a trustee, receiver,
liquidator, custodian or other Person any portion of any payment of any
Reimbursement Obligation, each Participating Bank shall, not later than the
Business Day it receives a certificate in the form of Exhibit E hereto from the
relevant Issuing Agent (given directly or through the Administrative Agent) to
such effect, if such certificate is received before 1:00 p.m. (Chicago time),
or not later than the following Business Day, if such certificate is received
after such time, pay to the Administrative Agent for the account of the
relevant Issuing Agent (i) in the case of a Reimbursement Obligation payable by
the applicable Borrowers in U.S. Dollars (including a Reimbursement Obligation
payable in U.S. Dollars by virtue of the Issuing Agent's election in Section
1.2(e) above to be reimbursed in U.S. Dollars for a drawing it paid in an
Alternative Currency), an amount equal to such Participating Bank's Percentage
of such unpaid or recaptured Reimbursement Obligation, such payment to be made
in lawful money in the United States, in immediately available funds at the
Administrative Agent's principal office in Chicago, Illinois, together with
interest on such amount accrued from the date the related payment was made by
the relevant Issuing Agent to the date of such payment by such Participating
Bank at a rate per annum equal to (x) from the date the related payment was
made by such Issuing Agent to and including the date two (2) Business Days
after payment by such Participating Bank is due hereunder, the Federal Funds
Rate for each such day and (y) from the date two (2) Business Days after the
date such payment is due from such Participating Bank to the date such payment
is made by such Participating Bank, the Domestic Rate in effect for each such
day and (ii) in the case of a Reimbursement Obligation payable by the
applicable Borrowers in an Alternative Currency, an amount equal to such
Participating Bank's Percentage of such unpaid or recaptured Reimbursement
Obligation, such payment to be made in such Alternative Currency in such funds
which are then customary for the settlement of international transactions in
such currency, together with interest on such amount accrued from the date the
related payment was made by the relevant Issuing Agent to the date of such
payment by the Participating Bank at a rate per annum equal to (x) from the
date the related payment was made by such Issuing Agent to and including the
date two (2) Business Days after payment by such Participating Bank is due
hereunder, the Overnight Foreign Currency Rate for each such day and (y) from
the date two (2) Business Days after the date such payment is due from such
Participating Bank to the date such payment is made by such Participating Bank,
the sum of 1% plus the Overnight Foreign Currency Rate for each such day. Each
such Participating Bank shall thereafter be entitled to receive its Percentage
of each payment received in respect of the relevant Reimbursement Obligation
and of interest paid thereon, with the relevant Issuing Agent retaining its
Percentage as a Bank hereunder.
The several obligations of the Participating Banks to the Issuing
Agents under this Section 1.2 shall be absolute, irrevocable and unconditional
under any and all circumstances whatsoever (except, without limiting the
applicable Borrowers' joint and several obligations under each Application, to
the extent that such Borrowers are relieved under applicable law (including as
such, to the extent applicable to a particular Letter of Credit, the then
current Uniform Customs and Practice for Documentary Credits of the
International Chamber of Commerce) from their obligation to reimburse an
Issuing Agent for a
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drawing under a Letter of Credit because of such Issuing Agent's failure to
determine that documents received under the Letter of Credit comply on their
face with the terms thereof) and shall not be subject to any set-off,
counterclaim or defense to payment which any Participating Bank may have or
have had against the Borrowers, an Issuing Agent, the Administrative Agent, any
other Bank or any other Person whatsoever. Without limiting the generality of
the foregoing, such obligations shall not be affected by any Default or Event
of Default or by the amount of any Commitment of any Bank, and each payment by
a Participating Bank under this Section 1.2 shall be made without any offset,
abatement, withholding or reduction whatsoever. The Administrative Agent and
Issuing Agents shall be entitled to offset amounts received for the account of
a Bank under this Agreement against unpaid amounts due from such Bank to the
Administrative Agent hereunder (whether as fundings of participations or
otherwise), but shall not be entitled to offset against amounts owed to the
Administrative Agent or any Issuing Agent by any Bank arising outside the
Credit Documents.
(g) Indemnification. The Participating Banks shall, to the extent
of their respective Percentages, indemnify each Issuing Agent (to the extent
not reimbursed by the Borrowers and without in any way impairing or otherwise
affecting the Borrowers' joint and several obligations to do so) against any
cost, expense (including reasonable counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result from the Issuing
Agent's gross negligence or willful misconduct) that the Issuing Agent may
suffer or incur in connection with any Letter of Credit. The obligations of
the Participating Banks under this Section 1.2(g) and all other parts of this
Section 1.2 shall survive termination of this Agreement and of all other L/C
Documents.
(h) Outstanding Amount of Letters of Credit. For all purposes of
this Agreement, Letters of Credit shall be deemed outstanding as of any time in
an amount equal to the aggregate undrawn amount then available thereunder
(determined in accordance with Section 5.9 hereof) plus all unpaid
Reimbursement Obligations then outstanding. For such purposes, the undrawn
amount available under a Letter of Credit shall be the maximum amount which can
be drawn thereunder under any circumstances and over any period of time.
Section 1.3. Applicable Interest Rates. (a) Domestic Rate Loans.
Each Domestic Rate Loan made by a Bank shall bear interest (computed on the
basis of a 365 or 366 day year, as applicable, and actual days elapsed) on the
unpaid principal amount thereof from the date such Loan is made until maturity
(whether by acceleration or otherwise) at a rate per annum equal to the sum of
the Domestic Rate Margin plus the Domestic Rate from time to time in effect,
payable on the last day of the applicable Interest Period and at maturity
(whether by acceleration or otherwise).
"Domestic Rate" means for any day the greater of:
(i) the rate of interest announced by the Administrative
Agent from time to time as its prime commercial rate, or equivalent,
as in effect on such day, with any change in the Domestic Rate
resulting from a change in said prime commercial rate to be effective
as of the date of the relevant change in said prime commercial rate;
and
(ii) the sum of (x) the rate determined by the
Administrative Agent to be the prevailing rate per annum (rounded
upward, if necessary, to the next higher 1/100 of 1%) at approximately
10:00 a.m. (Chicago time) (or as soon thereafter as is practicable) on
such day (or, if such day
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is not a Business Day, on the immediately preceding Business Day) for
the purchase at face value of overnight Federal funds in an amount
comparable to the principal amount owed to the Administrative Agent
for which such rate is being determined, plus (y) 1/2 of 1% (0.50%).
"Domestic Rate Margin" means 0.0% per annum until the first Pricing
Date and thereafter from one Pricing Date to the next a percentage determined
in accordance with the following schedule:
Level: Domestic Rate Margin:
------ ---------------------
Level I 0.00%
Level II 0.00%
Level III 0.00%
Level IV 0.00%
Level V 0.25%
(b) Eurocurrency Loans. Each Eurocurrency Loan made by a Bank
shall bear interest during each Interest Period it is outstanding (computed on
the basis of a year of 360 days and actual days elapsed) on the unpaid
principal amount thereof from the date such Loan is made until maturity
(whether by acceleration or otherwise) at a rate per annum equal to the sum of
the LIBOR plus the Eurocurrency Margin applicable to such Loan, payable on the
last day of the applicable Interest Period and at maturity (whether by
acceleration or otherwise), and, if the applicable Interest Period is longer
than three months, on each day occurring every three months after the date such
Loan is made. A Eurocurrency Loan shall bear additional interest in the
events, on the terms and in the amount set forth in the immediately following
paragraph.
In addition to the interest on a Eurocurrency Loan to a Borrower
described in the immediately preceding paragraph, such Borrower shall pay to
each affected Bank, so long as (a) such Bank shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Loans and (b) as a result the cost to such Bank (or its applicable
Lending Office) of making or maintaining its Eurodollar Loans is increased,
additional interest on the unpaid principal amount of each affected Loan of
such Bank from the date of such Loan until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (a) the LIBOR for such Interest Period for such
Eurocurrency Loan from (B) the rate obtained by dividing such LIBOR by a
percentage equal to one hundred percent (100%) minus the Eurocurrency Reserve
Percentage of such Bank for such Interest Period, payable on each date on which
interest is payable on such Eurocurrency Loan. Any Bank wishing to require
payment of such additional interest (x) shall so notify the Company and the
Administrative Agent, in which case such additional interest on the Eurodollar
Loans of such Bank shall be payable to the Administrative Agent for the account
of such Bank at the place indicated in such notice with respect to each
Interest Period commencing at least five (5) Business Days after the giving of
such notice and (y) shall furnish to the Company at least five (5) Business
Days prior to each date on which interest is payable on the Eurodollar Loans a
certificate setting forth the amount to which such Bank is then entitled under
this Section (which shall be consistent with such Bank's good faith estimate of
the level at which the related reserves are maintained by it and generally
consistent with such Bank's application of such requirement to other similarly
situated borrowers obligated under similar provisions in their loan agreements
to provide such compensation). Such certificate shall be conclusive and
binding absent demonstrable error.
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"Eurocurrency Margin" means (a) for each Eurocurrency Bid Loan the
percentage agreed to pursuant to Section 2.4 hereof and (b) for each Committed
Eurocurrency Loan 0.375% per annum until the first Pricing Date and thereafter
from, and including, one Pricing Date to, but not including, the next a rate
per annum determined in accordance with the following schedule:
Level: Eurocurrency Margin:
------ --------------------
Level I 0.375%
Level II 0.425%
Level III 0.475%
Level IV 0.625%
Level V 0.750%
"LIBOR" means, for an Interest Period for a Borrowing of Eurocurrency
Loans, (a) for a Committed Borrowing or Multicurrency Swing Line Borrowing in
each case in an Original Dollar Amount of $10,000,000 or more or a Eurocurrency
Bid Borrowing of any amount, the LIBOR Index Rate for such Interest Period, if
such rate is available, and (b) for smaller Committed Borrowings and
Multicurrency Swing Line Borrowings, or if the LIBOR Index Rate cannot be
determined, the average rate of interest per annum (rounded upwards, if
necessary, to the nearest one hundred-thousandth of a percentage point) at
which deposits in U.S. Dollars or the relevant Alternative Currency, as
appropriate, in immediately available and freely transferable funds are offered
to the Reference Banks at 11:00 a.m. (London, England time) two (2) Business
Days before the beginning of such Interest Period by major banks in the
interbank eurocurrency market for delivery on the first day of and for a period
equal to such Interest Period in an amount equal or similar to the principal
amount of the Eurocurrency Loan scheduled to be made by (x) in the case of
Committed Eurocurrency Loans, the relevant Reference Bank as part of such
Borrowing, (y) in the case of the Bid Eurocurrency Loans, each Bank scheduled
to make such Bid Loan and (z) in the case of Multicurrency Swing Line Loans,
the Multicurrency Swing Line Bank.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars or the relevant Alternative
Currency, as appropriate, for a period equal to such Interest Period, which
appears on the appropriate Telerate Page, as of 11:00 a.m. (London, England
time) on the day two (2) Business Days before the commencement of such Interest
Period.
"Reference Banks" means (a) in the case of Committed Eurocurrency
Loans, the Administrative Agent, Comerica Bank and The Bank of New York and (b)
in the case of Multicurrency Swing Line Loans, the Multicurrency Swing Line
Bank alone.
"Telerate Page" means the page designated on the Telerate Service (or
such other service as may be nominated by the British Bankers' Association as
the information vendor) for the purpose of displaying British Bankers'
Association Interest Settlement Rates for deposits of U.S. Dollars, currently
displayed on Page 3750, or of the appropriate Alternative Currency.
(c) Alternative Currencies. On the date the Company (acting on
behalf of the applicable Borrower) requests a Borrowing of Eurocurrency Loans
in an Alternative Currency to any Borrower, as provided in Section 1.4(a)
below, the Administrative Agent shall promptly notify each Bank of the currency
in which such Borrowing is requested. If such Alternative Currency is not
available to a Bank in sufficient amount and for a sufficient term to enable it
to make the Loan requested of it as part of such Eurocurrency Borrowing and
such Bank so notifies the Administrative Agent no later than 3:00 p.m. (Chicago
time) on the same day it receives notice from the Administrative Agent of such
requested Loan, the
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Administrative Agent shall promptly so notify the Company. If the Company or
any Borrowing Subsidiary nevertheless desires such Borrowing, the Company
(acting on behalf of the applicable Borrower) must notify the Administrative
Agent by no later than 4:00 p.m. (Chicago time) on such day. If the
Administrative Agent does not receive such notice from the Company by 4:00 p.m.
(Chicago time), the Company shall automatically be deemed to have revoked on
behalf of such Borrower that Borrower's request for the Borrowing of
Eurocurrency Loans and the Administrative Agent will promptly notify the Banks
of such revocation. Such revocation shall not require any payment under the
funding indemnity set forth in Section 5.8 hereof. If the Company (acting on
behalf of the applicable Borrower) gives such notice by 4:00 p.m. (Chicago
time), each Bank that did not notify the Administrative Agent by 3:00 p.m.
(Chicago time) that the requested Alternative Currency is unavailable to it to
fund the requested Loan shall, subject to Section 11 hereof, make its Loan in
the requested Alternative Currency in accordance with Section 1.4(d) hereof.
Each Bank that did so notify the Administrative Agent by 3:00 p.m. (Chicago
time) that it would not be able to make the Loan requested from it shall,
subject to Section 14 hereof, make a Eurocurrency Loan denominated in U.S.
Dollars in the Original Dollar Amount of, and with the same Interest Period as,
the Eurocurrency Loan such Bank was originally requested to make. Such
Eurocurrency Loan denominated in U.S. Dollars shall be made by the affected
Bank on the same day as the other Banks make their Eurocurrency Loans
denominated in the applicable Alternative Currency as part of the relevant
Borrowing of Eurocurrency Loans, but shall bear interest with reference to the
LIBOR applicable to U.S. Dollars rather than the relevant Alternative Currency
for the applicable Interest Period and shall be made available in accordance
with the procedures for disbursing U.S. Dollar Loans under Section 1.4(d)
hereof. Such an affected Bank's making of a Eurocurrency Loan in U.S. Dollars
rather than in the Alternative Currency shall not require any payment under the
funding indemnity set forth in Section 5.8 hereof. Any Loan made in an
Alternative Currency shall be advanced in such currency, and all payments of
principal and interest thereon shall be made in such Alternative Currency.
(d) Rate Quotations. Each Reference Bank agrees to use its best
efforts to furnish quotations to the Administrative Agent as contemplated by
this Section. If any Reference Bank does not furnish a timely quotation, the
Administrative Agent shall determine the relevant interest rate on the basis of
the quotation or quotations furnished by each remaining Reference Bank or, if
no such quotation is provided on a timely basis, the provisions of Section 14.2
shall apply.
Section 1.4. Manner of Borrowing Committed Loans. (a) Notice to
the Administrative Agent. In order for any Borrower to borrow any Committed
Loans, the Company (acting on behalf of the applicable Borrower) shall give
telephonic or telecopy notice to the Administrative Agent (which notice shall,
except as provided in Section 1.3(c) hereof, be irrevocable once given and, if
by telephone, shall, except as provided in Section 1.3(c) hereof, be promptly
confirmed in writing) (i) by no later than 2:00 p.m. (Chicago time) on the date
at least four (4) Business Days before the date of each requested Borrowing of
Eurocurrency Loans denominated in an Alternative Currency, (ii) by no later
than 2:00 p.m. (Chicago time) on the date at least three (3) Business Days
before the date of each requested Borrowing of Eurocurrency Loans denominated
in U.S. Dollars, and (iii) by no later than 10:00 a.m. (Chicago time) on the
date of each requested Borrowing of Domestic Rate Loans. Each such notice
shall specify the date of the requested Borrowing (which shall be a Business
Day), the amount of the requested Borrowing, the type of Loans to comprise such
Borrowing, if such Borrowing is to be comprised of Eurocurrency Loans, the
Interest Period applicable thereto and the currency in which such Loan is to be
denominated and, if such Borrowing is to
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be made by a Borrowing Subsidiary, the Borrowing Subsidiary for whose account
such Loan shall be disbursed. Each Borrower agrees that the Administrative
Agent may rely on any such telephonic or telecopy notice, and any notice under
Section 2, given by any person who identifies himself or herself as being an
Authorized Representative without the necessity of independent investigation
and, in the event any telephonic notice conflicts with the written
confirmation, such notice shall govern if the Administrative Agent has acted in
reliance thereon.
(b) Notice to the Banks. The Administrative Agent shall give
prompt telephonic or telecopy notice to each Bank of any notice from the
Company received pursuant to Section 1.4(a) above. The Administrative Agent
shall give notice to the Company and each Bank by like means of the interest
rate applicable to each Borrowing of Eurocurrency Loans and, if such Borrowing
is denominated in an Alternative Currency, shall give notice by such means to
the Company and each Bank of the Original Dollar Amount thereof.
(c) Borrower's Failure to Notify. If the Company fails to give
notice of the reborrowing of any outstanding principal amount of a Borrowing by
any Borrower of Committed Loans denominated in U.S. Dollars before the last day
of its Interest Period within the period required by Section 1.4(a) and has not
notified the Administrative Agent by 10:00 a.m. (Chicago time) on such last day
of the Interest Period that the Company or such Borrower intends to repay such
Borrowing through funds not borrowed hereunder, such Borrowing shall
automatically be repaid through a Borrowing by the same Borrower of Committed
Domestic Rate Loans, subject to Section 11.2 hereof. If the Company fails to
give notice pursuant to Section 1.4(a) above of the reborrowing of the
outstanding principal amount of a Borrowing by any Borrower of Eurocurrency
Loans denominated in an Alternative Currency before the last day of its
Interest Period within the period required by Section 1.4(a) and has not
notified the Administrative Agent within the period required by 10:00 a.m.
(Chicago time) on the Business Day four (4) Business Days prior to the day such
Borrowing matures that the Company or such Borrower intends to repay such
Borrowing through funds not borrowed hereunder, such Borrowing shall
automatically be repaid through a Borrowing by the same Borrower of Committed
Eurocurrency Loans in the same Alternative Currency with an Interest Period of
one month, subject to Section 11.2 hereof, including the application of Section
5.2 and of the restrictions contained in the definition of Interest Period. In
the event the Company fails to give notice pursuant to Section 1.4(a) above of
a Borrowing equal to the amount of a Reimbursement Obligation of any Borrower
payable in U.S. Dollars and has not notified the Administrative Agent by 10:00
a.m. (Chicago time) on the day such Reimbursement Obligation becomes due that
it intends to repay such Reimbursement Obligation through funds not borrowed
under this Agreement, the Company shall be deemed to have requested a Borrowing
by the Company of Domestic Rate Loans on such day in the amount of the
Reimbursement Obligation then due, subject to Section 11 hereof, which
Borrowing shall be applied to pay the Reimbursement Obligation then due.
(d) Disbursement of Committed Loans. Not later than 12:00 noon
(Chicago time) on the date of any Borrowing of Committed Loans (other than a
Refunding Borrowing) denominated in U.S. Dollars, subject to Section 11 hereof,
each Bank shall make available its Loan comprising part of such Borrowing in
funds immediately available in Chicago, Illinois at the principal office of the
Administrative Agent or, if such Borrowing is denominated in an Alternative
Currency, each Bank shall, subject to Section 1.3(c) and Section 11 hereof,
make available its Loan comprising part of such Borrowing at such office as the
Administrative Agent has previously specified in a notice to each Bank, in such
funds as are then customary
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for the settlement of international transactions in such currency and no later
than such local time as is necessary for such funds to be received and
transferred to the relevant Borrower for same day value on the date of the
Borrowing. The Administrative Agent shall make Loans available to the relevant
Borrower at such office as the Administrative Agent has previously agreed to
with the Company (acting on behalf of such Borrower), in each case in the type
of funds received by the Administrative Agent from the Banks. To the extent a
Borrowing is a reborrowing, in whole or in part, of the principal amount of a
maturing Borrowing by the same Borrower of Committed Loans (a "Refunding
Borrowing"), each Bank shall record the Loan made by it as a part of such
Refunding Borrowing on its books and records or on a schedule to its Committed
Loan Note, as provided in Section 5.6(e) hereof, and shall effect the
repayment, in whole or in part, as appropriate, of its maturing Loan through
the proceeds of such new Loan.
SECTION 2. THE COMPETITIVE BID FACILITY
Section 2.1. The Bid Loans. At any time before the Revolving
Credit Termination Date, the Company (acting on behalf of the applicable
Borrower) may request the Banks to offer to make uncommitted loans denominated
in U.S. Dollars or an Alternative Currency (each a "Bid Loan" and collectively
the "Bid Loans") to the Company or any other Borrower in the manner set forth
in this Section 2 and in amounts such that (i) the aggregate Original Dollar
Amount of all Loans (whether Committed Loans, Bid Loans or Swing Line Loans)
and L/C Obligations at any time outstanding hereunder shall not exceed the
Revolving Credit Commitments then in effect and (ii) no Bid Loan shall be made
if, at the time thereof or after giving effect thereto, the aggregate amount of
Bid Loans would exceed the Bid Loan Limit then in effect. The Banks may, but
shall have no obligation to, make such offers and the Company (acting on behalf
of the applicable Borrower) may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section 2. Each Bank may offer to
make Bid Loans in any amount (whether greater than, equal to, or less than its
Revolving Credit Commitment), subject to (a) the limitations that (i) the
aggregate Original Dollar Amount of all Loans and L/C Obligations outstanding
at any time may not at any time exceed the Revolving Credit Commitments then in
effect and (ii) no Bid Loan shall be made if, at the time thereof or after
giving effect thereto, the aggregate amount of Bid Loans would exceed the Bid
Loan Limit then in effect and (b) the other conditions of this Agreement. Bid
Loans may bear interest either at a stated rate per annum ("Stated Rate Bid
Loans") or at a margin above or below the applicable Adjusted LIBOR
("Eurocurrency Bid Loans"); provided that there may be no more than ten (10)
different Interest Periods for both Stated Rate Bid Loans and Eurocurrency Bid
Loans outstanding at the same time.
Section 2.2. Requests for Bid Loans. (a) Requests and
Confirmations. In order to request a Borrowing of Bid Loans (a "Bid Loan
Request"), the Company (acting on behalf of the applicable Borrower) shall give
telephonic notice to the Administrative Agent no later than (i) 10:00 a.m.
(Chicago time) on the date at least five (5) Business Days before the date of
the requested Bid Borrowing (the "Borrowing Date") in the case of a request for
Eurocurrency Bid Loans or for both Eurocurrency Bid Loans and Stated Rate Bid
Loans and (ii) 2:00 p.m. (Chicago time) on the date at least one (1) Business
Day before the Borrowing Date in the case of a request solely for Stated Rate
Bid Loans. Each such request may be for up to three maturities and shall be
followed on the same day by a duly completed confirmation (a "Bid Loan Request
Confirmation"), delivered by telecopy or other means of facsimile
communication, substantially in the form of Exhibit F hereto or otherwise
containing the information required by this Section 2.2, to be received by the
Administrative Agent no later than 2:30 p.m. (Chicago time) on such day. Bid
Loan Request Confirmations that do not conform substantially to the format of
Exhibit F or otherwise contain
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the information required by this Section 2.2 shall be rejected by the
Administrative Agent, and the Administrative Agent shall give telephonic notice
to the Company of such rejection promptly after it determines (which
determination shall be conclusive) that the Bid Loan Request Confirmation does
not substantially conform to the format of Exhibit F or otherwise contain the
information required by this Section 2.2. Requests for Bid Loans shall in each
case refer to this Agreement and specify (i) the proposed Borrowing Date (which
must be a Business Day), (ii) the currency of each Bid Loan (which shall be
either U.S. Dollars or an Alternative Currency), (iii) the aggregate principal
amount thereof (which shall not be less than an Original Dollar Amount of
$3,000,000 and shall be in integral multiples of 100,000 units of the relevant
currency) and (iv) each (up to three) proposed Interest Period therefor (the
maturity date thereof), which in the case of Stated Rate Bid Loans shall be 1
to 180 days after the proposed Borrowing Date and in the case of Eurocurrency
Bid Loans shall be 1, 2, 3, 4, 5 or 6 calendar months after the proposed
Borrowing Date, but with no Interest Period (maturity) to extend beyond the
Revolving Credit Termination Date, (v) the proposed Borrower and (vi) the
jurisdiction in which such Loan is to be disbursed.
(b) Invitation to Bid. Upon receipt by the Administrative Agent
of a Bid Loan Request Confirmation that conforms substantially to the format of
Exhibit F hereto or otherwise contains (in a manner acceptable to the
Administrative Agent) the information required by this Section 2.2, the
Administrative Agent shall, by a telecopy or other form of facsimile
communication in the form of Exhibit G hereto (no later than 3:30 p.m. (Chicago
time) on the same day the Administrative Agent receives a Bid Loan Request
Confirmation), invite each Bank to bid, on the terms and conditions of this
Agreement, to make Bid Loans pursuant to the Bid Loan Request; provided,
however, that the Administrative Agent need not invite a Bank to bid if and so
long as such Bank has notified the Administrative Agent that such Bank does not
wish to make Bid Loans.
(c) Bids. Each Bank may, in its sole discretion, offer to make a
Bid Loan or Loans (a "Bid") to the relevant Borrower responsive to the Bid Loan
Request. Each Bid by a Bank must be received by the Administrative Agent in
the form of Exhibit H (each, a "Confirmation of Bid") delivered by telecopier
not later than (i) 9:30 a.m. (Chicago time) on the proposed Borrowing Date in
the case of a bid for a Stated Rate Bid Loan and (ii) 1:00 p.m. (Chicago time)
four Business Days prior to the proposed Borrowing Date in the case of a bid
for a Eurocurrency Bid Loan; provided, however, that any Bid made by the
Administrative Agent must be made by telecopy to the Company by no later than
fifteen minutes prior to the time that bids from the other Banks are required
to be received. Each Bid and each Confirmation of Bid shall refer to this
Agreement and specify (i) the principal amount of each Bid Loan that the Bank
is willing to make to the applicable Borrower and the type of Bid Loan (i.e.,
Stated Rate or Eurocurrency), (ii) the interest rate (which shall be computed
on the basis of a year of 365 or 366 days, as applicable, for the actual number
of days elapsed in the case of Stated Rate Bid Loans and, in the case of a
Eurocurrency Bid Loan, shall be computed on the basis of a year of 360 days and
actual days elapsed and expressed in terms of a percentage margin to be added
to or subtracted from the applicable LIBOR for the Interest Period to be
applicable to such Eurocurrency Bid Loan) at which the Bank is prepared to make
each Bid Loan, (iii) the currency of such Bid Loan (which shall be denominated
in either U.S Dollars or an Alternative Currency), (iv) the Interest Period
applicable thereto, (v) the jurisdiction in which such Bid Loan is to be
disbursed and (vi) the jurisdiction in which payments on such Bid Loan are to
be made. The Administrative Agent shall reject any Bid if such Bid (i) does
not specify all of the information
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specified in the immediately preceding sentence, (ii) contains any qualifying,
conditional, or similar language, (iii) proposes terms other than or in
addition to those set forth in the Bid Loan Request to which it responds, or
(iv) is received by the Administrative Agent later than the time required for
such Bid Loan. Any Bid submitted by a Bank pursuant to this Section 2.2 shall
be irrevocable. Each offer contained in a Bid to make a Bid Loan of a certain
type in a certain amount, in a certain currency, to a certain Borrower, at a
certain interest rate, and for a certain Interest Period is referred to herein
as an "Offer".
Section 2.3. Notice of Bids; Advice of Rate. The Administrative
Agent shall give telecopy notice to the Company of the number of Bids made, the
interest rate(s) and Interest Period(s) applicable to each Bid, the maximum
principal amount bid at each interest rate for each Interest Period, and the
identity of the Bank making such Bid such notice to be given by (i) 10:00 a.m.
(Chicago time) on the Borrowing Date in the case of Bid Loan Requests solely
for Stated Rate Bid Loans or (ii) 3:00 p.m. (Chicago time) four Business Days
before the proposed Borrowing Date in the case of Bid Loan Requests for
Eurocurrency Bid Loans or for both Stated Rate Bid Loans and Eurocurrency Bid
Loans.
Section 2.4. Acceptance or Rejection of Bids. The Company (acting
on behalf of the relevant Borrower) may in its sole and absolute discretion,
subject only to the provisions of this Section, irrevocably accept or reject,
in whole or in part, any Offer contained in a Bid. The Company shall give
telecopy notice to the Administrative Agent of whether and to what extent it
has decided to accept or reject any Offers contained in the Bids made in
response to a Bid Loan Request to be received by the Administrative Agent by no
later than (i) 10:30 a.m. (Chicago time) on the proposed Borrowing Date, in the
case of Stated Rate Bid Loans or (ii) 10:00 a.m. (Chicago time) three Business
Days before the proposed Borrowing Date, in the case of Eurocurrency Bid Loans;
provided, however, that (A) the Company shall accept offers for any particular
maturity specified by the Company in the Bid Loan Request Confirmation solely
on the basis of ascending interest rates for each such Interest Period for a
particular currency, (B) if the Company declines to borrow, or if such Borrower
is restricted by any other condition hereof from borrowing, the maximum
principal amount of Bid Loans for which Offers at a particular interest rate
for a particular Interest Period have been made, then the Company shall accept
a pro rata portion of each such Offer, based as nearly as possible on the ratio
of the maximum aggregate principal amounts of Bid Loans for which each such
Offer was made by each Bank (provided that, if the available principal amount
of Bid Loans to be so allocated is not sufficient to enable Bid Loans to be so
allocated to each relevant Bank in integral multiples of not less than an
Original Dollar Amount of $1,000,000, then the Administrative Agent may round
allocations up or down in integral multiples of 100,000 units of the relevant
currency as it shall deem appropriate), (C) the aggregate principal amount of
all Offers accepted by the Company shall not exceed the maximum amount
contained in the related Bid Loan Request Confirmation, (D) subject to clause
(B) above no Offer of a Bid Loan shall be accepted in a principal amount less
than an Original Dollar Amount of $3,000,000 and thereafter in integral
multiples of 100,000 units of the relevant currency and (E) no offer of a Bid
Loan shall be accepted if, at the time thereof or after giving effect thereto,
(x) the aggregate principal amount of all outstanding Loans (whether Committed
Loans, Swing Line Loans or Bid Loans) and L/C Obligations would exceed the
Revolving Credit Commitments then in effect or (y) the aggregate amount of Bid
Loans would exceed the Bid Loan Limit then in effect.
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Section 2.5. Notice of Acceptance or Rejection of Bids.
(a) Notice to Banks Making Successful Bids. The Administrative
Agent shall give telephonic notice to each Bank if any of the Offers contained
in its Bid have been accepted (and if so, in what amount, in what currency, at
what interest rate and for what Interest Period) no later than (i) 11:00 a.m.
(Chicago time) on the proposed Borrowing date in the case of Stated Rate Bid
Loans and (ii) 10:30 a.m. (Chicago time) three Business days before the
proposed Borrowing Date in the case of Eurocurrency Bid Loans, and each
successful bidder will thereupon become bound, subject to Section 11 and the
other applicable conditions hereof, to make each Bid Loan in the amount for
which its Offer has been accepted. As soon as practicable thereafter the
Administrative Agent shall send written notice substantially in the form of
Exhibit I hereto to each such successful bidder; provided, however, that
failure to give such notice shall not affect the obligation of such successful
bidder to disburse its Bid Loans as herein required.
(b) Notice to all Banks. As soon as practicable after each
Borrowing Date for Bid Loans, the Administrative Agent shall notify each Bank
(whether or not any of its Offers were accepted) of the aggregate amount and
types of Bid Loans advanced pursuant to a Bid Loan Request on such Borrowing
Date, the maturities thereof, the currencies, and the lowest and highest
interest rates at which Bid Loans were made for each maturity.
(c) Disbursement of Bid Loans. Not later than 12:00 noon (Chicago
time) on the Borrowing Date for each Borrowing of a Bid Loan(s), each Bank
bound to make Bid Loan(s) in accordance with Section 2.5(a) shall, subject to
Section 11, make available to the Administrative Agent the principal amount of
each such Bid Loan in immediately available funds in Chicago, Illinois at the
Administrative Agent's payment office in Chicago, Illinois, except that if such
Bid Loan is denominated in an Alternative Currency each such Bank shall,
subject to Section 11, make available its Bid Loan at such office in the
jurisdiction specified in the relevant Confirmation of Bid as the
Administrative Agent has previously specified in a notice to such Bank, in such
funds as are then customary for the settlement of international transactions in
such currency and no later than such local time as is necessary for such funds
to be received and transferred in such jurisdiction to the applicable Borrower
for same day value on the date of the Borrowing. The Administrative Agent
shall make Loans available to the applicable Borrower at such office in the
jurisdiction specified in the applicable Bid as the Administrative Agent has
previously agreed to with the Company (acting on behalf of such Borrower) in
the type of funds received by the Administrative Agent from the Banks.
Section 2.6. Interest on Bid Loans. Each Stated Rate Bid Loan
made by a Bank shall bear interest (computed on the basis of a year of 365 or
366 days, as applicable, for the actual number of days elapsed) on the unpaid
principal amount thereof from time to time outstanding from the date of the
Borrowing of such Loan to but excluding its maturity date (whether by
acceleration or otherwise) at the rate per annum determined for such Stated
Rate Bid Loan pursuant to Section 2.5 hereof, payable on its maturity date
(whether by acceleration or otherwise) and if such Stated Rate Bid Loan has a
maturity of longer than 90 days then on the day occurring every 90 days after
the Borrowing Date for such Stated Rate Bid Loan. Each Eurocurrency Bid Loan
made by a Bank shall bear interest, which interest shall be payable, as
provided in Section 1.3(b) hereof.
Section 2.7. Telephonic Notice. Each Bank's telephonic notice to
the Administrative Agent of its Bid pursuant to Section 2.2(c), and the
Company's telephonic acceptance of any Offer contained in a Bid pursuant to
Section 2.4, shall be irrevocable and binding on such Bank and the Company and
applicable Borrower and shall not be altered, modified, or in any other manner
affected by any inconsistent terms contained in, or missing from, any telecopy
or other confirmation of such telephonic notice. It is
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understood and agreed by the parties hereto that the Administrative Agent shall
be entitled to act, or to fail to act, hereunder in reliance on its records of
any telephonic notices provided for herein and that the Administrative Agent
shall not incur any liability to any Person in so doing if its records conflict
with any telecopy or other confirmation of a telephonic notice or otherwise,
provided that the Administrative Agent has acted, or failed to act, in good
faith. It is further understood and agreed by the parties hereto that the
times of day as set forth in this Section 2 are for the convenience of all the
parties for providing notices and that no party shall incur any liability or
other responsibility for any failure to provide such notices within the
specified times; provided, however, that the Administrative Agent shall have no
obligation to notify the Company or any other Borrower of any Bid received by
the Administrative Agent later than the deadline expressed in Section 2.2
hereof for the Administrative Agent's receipt of such Bid, and no acceptance by
the Company or any Borrower of any Offer contained in a Bid shall be effective
to bind any Bank to make a Bid Loan, nor shall the Administrative Agent be
under any obligation to notify any Person of an acceptance, if notice of such
acceptance is received by the Administrative Agent later than the deadline
expressed in Section 2.4 hereof for such acceptance.
SECTION 3. THE DOMESTIC SWING LINE LOANS
Section 3.1. The Domestic Swing Line Loans. Subject to all of the
terms and conditions hereof, the Bank then acting as Administrative Agent (the
"Domestic Swing Line Bank") agrees to make loans in U.S. Dollars to each and
any Borrower ("Domestic Swing Line Loans") which shall not in the aggregate
(for all the Borrowers taken together) at any time outstanding exceed the
lesser of (i) the Domestic Swing Line Commitment or (ii) the difference between
(x) the Revolving Credit Commitments in effect at such time and (y) the
aggregate Original Dollar Amount of all Loans (whether Committed Loans, Bid
Loans or Swing Line Loans) and L/C Obligations then outstanding. The Domestic
Swing Line Commitment shall be available to each and any Borrower and may be
availed of by each Borrower from time to time and Borrowings thereunder may be
repaid and used again during the period ending on the Revolving Credit
Termination Date. Without regard to the face principal amount of the Domestic
Swing Line Note issued by a given Borrower, the actual principal amount at any
time outstanding and owing by such Borrower on account of such Domestic Swing
Line Note on any date during the period ending on the Revolving Credit
Termination Date shall be the sum of all Domestic Swing Line Loans then or
theretofore made thereon through such date less all payments actually received
thereon through such date.
Section 3.2. Interest on Domestic Swing Line Loans. Each Domestic
Swing Line Loan shall bear interest (computed on the basis of a year of 360
days and actual days elapsed) for the Interest Period selected therefor at the
Domestic Swing Line Rate for such Interest Period, provided that if any
Domestic Swing Line Loan is not paid when due (whether by lapse of time,
acceleration or otherwise), such Domestic Swing Line Loan shall bear interest
whether before or after judgment, until payment in full thereof through the end
of the Interest Period then applicable thereto at the rate set forth in Section
5.5 hereof. Interest on each Domestic Swing Line Loan shall be due and payable
on the last day of each Interest Period applicable thereto, and interest after
maturity (whether by lapse of time, acceleration or otherwise) shall be due and
payable upon demand.
Section 3.3. Requests for Domestic Swing Line Loans. The Company
(acting on behalf of the applicable Borrower) shall give the Domestic Swing
Line Bank prior notice (which may be written or oral) no later than 12:00 Noon
(Chicago time) on the Business Day upon which the applicable Borrower requests
that any Borrowing of a Domestic Swing Line Loan be made to such Borrower, of
the name of such Borrower,
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the amount and date (which must be a Business Day) of such Domestic Swing Line
Loan and the Interest Period selected therefor. Within thirty (30) minutes
after receiving such notice, the Domestic Swing Line Bank shall quote an
interest rate per annum (computed on the basis of a year of 360 days and actual
days elapsed) determined in its discretion (but in no event to be greater than
the sum of the Federal Funds Rate then in effect plus the Applicable
Eurocurrency Margin) to the Company at which the Domestic Swing Line Bank would
be willing to make the Borrowing of such Domestic Swing Line Loan available to
the applicable Borrower for such Interest Period (the rate so quoted for the
Borrowing of a given Domestic Swing Line Loan being herein referred to as the
"Domestic Swing Line Rate" for such Loan). Each Borrower acknowledges and
agrees that the interest rate quote is given for immediate and irrevocable
acceptance by the Company (acting on behalf of the applicable Borrower), and if
the Company does not so immediately accept the Domestic Swing Line Rate for the
full amount requested for the Borrowing of such Domestic Swing Line Loan, the
Domestic Swing Line Rate shall be deemed immediately withdrawn and the
Borrowing of such Domestic Swing Line Loan shall not be made. Subject to all
of the terms and conditions hereof, the proceeds of each Borrowing of a
Domestic Swing Line Loan shall be made available to the applicable Borrower on
the date so requested at the offices of the Administrative Agent in Chicago,
Illinois. Anything contained in the foregoing to the contrary notwithstanding,
(i) the obligation of the Domestic Swing Line Bank to make Domestic Swing Line
Loans shall be subject to all of the terms and conditions of this Agreement and
(ii) the Domestic Swing Line Bank shall not be obligated to make more than one
Domestic Swing Line Loan during any one day.
Section 3.4. Refunding Domestic Swing Line Loans. In its sole and
absolute discretion, the Domestic Swing Line Bank may at any time, on behalf of
the applicable Borrower (each Borrower hereby irrevocably authorizing the
Domestic Swing Line Bank to act on its behalf for such purpose), request each
Bank to make a Committed Domestic Rate Loan to such Borrower (as the Domestic
Swing Line Bank elects in its discretion) in an amount equal to such Bank's
Percentage of the amount of the Domestic Swing Line Loans outstanding on the
date such notice is given. Whether or not any of the conditions of Section
11.2 are fulfilled on such date, unless a Bank is legally precluded from doing
so (because, for example, of the applicable Borrower's bankruptcy), such Bank
shall make the proceeds of its requested Committed Domestic Rate Loan available
to the Domestic Swing Line Bank, in immediately available funds, at the
principal office of the Domestic Swing Line Bank in Chicago, Illinois, before
12:00 noon (Chicago time) on the Business Day following the day such notice is
given. The proceeds of such Committed Domestic Rate Loans shall be immediately
applied to repay the outstanding Domestic Swing Line Loans.
Section 3.5. Participations. If any Bank (other than the Domestic
Swing Line Bank) fails for any reason to make a Committed Domestic Rate Loan
when requested by the Domestic Swing Line Bank pursuant to Section 3.4 above,
or if the Domestic Swing Line Bank is required at any time to return to a
Borrower or to a trustee, receiver, liquidator, custodian or other Person any
portion of any payment of any Domestic Swing Line Loan, each such Bank (in this
Section, a "Participating Bank") will, by the time and in the manner such
Committed Loan was to have been funded to the Domestic Swing Line Bank,
purchase from the Domestic Swing Line Bank an undivided participating interest
in the outstanding Domestic Swing Line Loans in an amount equal to such
Participating Bank's Percentage of the aggregate principal amount of Domestic
Swing Line Loans that were to have been repaid with such Committed Loans or
such recaptured Domestic Swing Line Loans, as the case may be. Each
Participating Bank's obligation to fund such participation shall bear interest
from the date due until funded at the rate per annum equal to (i) from the date
the related payment was due from such Participating Bank to the date two (2)
Business Days thereafter, the Federal Funds Rate
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for each such day and (ii) from the date two (2) Business Days after the date
such payment is due from such Participating Bank to the date such payment is
made by such Participating Bank, the Domestic Rate in effect for each such day.
Each Participating Bank that so purchases a participation in a Domestic Swing
Line Loan shall thereafter be entitled to receive its Percentage of each
payment of principal received on the relevant Domestic Swing Line Loan and of
interest received thereon accruing from the date such Participating Bank funded
to the Domestic Swing Line Bank its participation in such Loan.
The several obligations of the Participating Banks under this Section
3.5 shall be absolute, irrevocable and unconditional under any and all
circumstances whatsoever and shall not be subject to any set-off, counterclaim
or defense to payment which any Participating Bank may have or have had against
any Borrower, any other Bank or any other Person whatever. Without limiting
the generality of the foregoing, such obligations shall not be affected by any
Default or Event of Default or by any reduction or termination of any
Commitment of any Bank, and each payment made by a Participating Bank under
this Section 3.5 shall be made without any offset, abatement, withholding or
reduction whatsoever. The Domestic Swing Line Bank shall be entitled to offset
amounts received for the account of a Bank under this Agreement against unpaid
amounts due hereunder from such Bank to the Domestic Swing Line Bank or the
Administrative Agent (whether as fundings of participations or otherwise), but
shall not be entitled to offset against amounts owed to the Domestic Swing Line
Bank or the Administrative Agent by any Bank arising outside the Credit
Documents.
Section 3.6. Indemnification. The Participating Banks shall, to
the extent of their respective Percentages, indemnify the Domestic Swing Line
Bank (to the extent not reimbursed by the Borrowers and without in any way
impairing or otherwise affecting the Borrowers' joint and several obligations
to do so) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from the Domestic Swing Line Bank's gross negligence or willful misconduct)
that the Domestic Swing Line Bank may suffer or incur in connection with any
Domestic Swing Line Loan. The obligations of the Participating Banks under
this Section 3.6 and all other parts of this Section 3 shall survive
termination of this Agreement.
SECTION 4. THE MULTICURRENCY SWING LINE LOANS
Section 4.1. The Multicurrency Swing Line Loans. Subject to all
of the terms and conditions hereof, LaSalle National Bank (the "Multicurrency
Swing Line Bank") agrees to make loans denominated in Alternative Swing Line
Currencies to each and any Borrower ("Multicurrency Swing Line Loans") in
amounts such that the Original Dollar Amount of (i) all Multicurrency Swing
Line Loans and Foreign Credit L/C Obligations outstanding hereunder shall not
exceed the Multicurrency Swing Line Commitment and (ii) all Loans (whether
Committed Loans, Bid Loans or Swing Line Loans) and L/C Obligations at any time
outstanding hereunder shall not exceed the Revolving Credit Commitments then in
effect. The Multicurrency Swing Line Commitment shall be available to each and
any Borrower and may be availed of by each Borrower from time to time and
Borrowings thereunder may be repaid and used again during the period ending on
the Revolving Credit Termination Date. Each Multicurrency Swing Line Loan
shall be a Eurocurrency Loan subject to Section 1.3(b) hereof and the other
terms and provisions hereof applicable to Eurocurrency Loans denominated in the
same Alternative Swing Line Currency, other than the provisions of Section 1.1
applicable only to Committed Loans and the provisions of Section 1.4.
Section 4.2. Requests for Multicurrency Swing Line Loans. No
later than 9:00 a.m. (Chicago time) on the Business Day three (3) Business Days
prior to any Borrowing of a Multicurrency Swing Line
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Loan, the Company (acting on behalf of the applicable Borrower) shall give
telephonic or telecopy notice to the Administrative Agent and the Multicurrency
Swing Line Bank (which notice, if by telephone, shall be promptly confirmed by
telecopy or other written notice) of the currency and principal amount of such
Multicurrency Swing Line Loan, the Borrower to whom such Multicurrency Swing
Line Loan is to be made, the Interest Period of such Multicurrency Swing Line
Loan and the date (which must be a Business Day) on which such Multicurrency
Swing Line Loan is to be made. Promptly after receipt of such notice (but in
no event later than 11:00 a.m. (Chicago time) on the date the Administrative
Agent receives such notice), the Administrative Agent shall notify the
Multicurrency Swing Line Bank whether such requested Multicurrency Swing Line
Loan is permitted under the limitations on credit available hereunder expressed
in the first sentence of Section 4.1 hereof. Subject to all of the terms and
conditions hereof, the proceeds of the Borrowing of such Multicurrency Swing
Line Loan shall be made available to the applicable Borrower on the date so
requested at such office of the Multicurrency Swing Line Bank or Affiliate
thereof as the Multicurrency Swing Line Bank has previously agreed to with the
Company (acting on behalf of the applicable Borrower), in such funds as are
then customary for the settlement of international transactions in such
currency and no later than such local time as is necessary for such funds to be
received and transferred to the applicable Borrower for same day value on the
date of such Borrowing. The Multicurrency Swing Line Bank agrees to use
reasonable efforts to make its Multicurrency Swing Line Loans from lending
offices in jurisdictions in which the liability for taxes of the type described
in Section 17.1(a) hereof will be eliminated or minimized, unless to do so
would, in the judgment of the Multicurrency Swing Line Bank, be impractical or
disadvantageous in any material respect to the Multicurrency Swing Line Bank.
The parties hereto understand and agree that such agreement by the
Multicurrency Swing Line Bank is an agreement by such Bank only and not binding
on any Affiliates of such Bank. Anything contained in the foregoing to the
contrary notwithstanding, (i) the obligation of the Multicurrency Swing Line
Bank to make Multicurrency Swing Line Loans shall be subject to all of the
terms and conditions of this Agreement and (ii) the Multicurrency Swing Line
Bank shall not be obligated to make more than one Multicurrency Swing Line Loan
during any one day
Section 4.3. The Participating Interests. Each Bank (other than
the Multicurrency Swing Line Bank), by its acceptance hereof, severally agrees
to purchase from the Multicurrency Swing Line Bank, and the Multicurrency Swing
Line Bank hereby agrees to sell to each such Bank (in this Section, a
"Participating Bank"), an undivided percentage participating interest, to the
extent of its Percentage, in each Multicurrency Swing Line Loan. Upon the
occurrence of an Event of Default and (except in the case of any Event of
Default described in Section 13.1(f) or 13.1(g) hereof) the acceleration of the
maturity of the Notes pursuant to Section 13.2 or 13.3 hereof, or if the
Multicurrency Swing Line Bank is required at any time to return to a Borrower
or to a trustee, receiver, liquidator, custodian or other Person any portion of
any payment of any Multicurrency Swing Line Loan, in each case if any
Multicurrency Swing Line Loans are then outstanding, each Participating Bank
shall, to the extent necessary, not later than the second Business Day after
the date on which such Participating Bank receives written demand from the
Multicurrency Swing Line Bank to such effect, if such demand is received before
12:00 noon (Chicago time), or not later than the third Business Day after the
date on which such Participating Bank receives such demand, if such demand is
received by it after 12:00 noon (Chicago time), pay to the Multicurrency Swing
Line Bank an amount equal to such Participating Bank's Percentage of such
unpaid or recaptured Multicurrency Swing Line Loan, in the currency of such
Loans so that, after giving effect to such
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adjustment, the outstanding principal amount of Loans of all the Banks,
calculated using quotations of the U.S. Dollar Equivalent of such Loans
received on the date of acceleration, shall be pro rata based on the Banks'
Percentages. Such purchase price shall be paid in the respective currencies of
such outstanding Loans in such funds which are then customary for the
settlement of international transactions in such currency, together with
interest on such amount accrued from the date the related payment was due from
such Participating Bank to the date of such payment by the Participating Bank
at a rate per annum equal to (x) from the date the related payment was due from
such Participating Bank to the date two (2) Business Days thereafter, the
Overnight Foreign Currency Rate for each such day and (y) from the date two (2)
Business Days after the date such payment is due from such Participating Bank
to the date such payment is made by such Participating Bank, the sum of 1% plus
the Overnight Foreign Currency Rate for each such day. Each such Participating
Bank shall thereafter be entitled to receive its Percentage of each payment
received in respect of the relevant Multicurrency Swing Line Loan and of
interest paid thereon accruing from the date such Participating Bank funded to
the Multicurrency Swing Line Bank its participation in such Loan.
The several obligations of the Participating Banks to the
Multicurrency Swing Line Bank under this Section 4.3 shall be absolute,
irrevocable and unconditional under any and all circumstances whatsoever and
shall not be subject to any set-off, counterclaim or defense to payment which
any Participating Bank may have or have had against the Borrowers, the
Multicurrency Swing Line Bank, any other Bank or any other Person whatsoever.
Without limiting the generality of the foregoing, such obligations shall not be
affected by any Default or Event of Default or by the amount of any Commitment
of any Bank, and each payment by a Participating Bank under this Section 4.3
shall be made without any offset, abatement, withholding or reduction
whatsoever. The Multicurrency Swing Line Bank shall be entitled to, or
entitled to direct the Administrative Agent to, offset amounts received under
this Agreement for the account of a Participating Bank against unpaid amounts
due hereunder from such Participating Bank to the Multicurrency Swing Line Bank
or the Administrative Agent (whether as fundings of participations or
otherwise), but shall not be entitled to offset against amounts owed to the
Multicurrency Swing Line Bank or the Administrative Agent by any Participating
Bank arising outside these Credit Documents.
Section 4.4. Indemnification. The Participating Banks shall, to
the extent of their respective Percentages, indemnify the Multicurrency Swing
Line Bank (to the extent not reimbursed by the Borrowers) against any cost,
expense (including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from the Multicurrency Swing
Line Bank's gross negligence or willful misconduct) that the Multicurrency
Swing Line Bank may suffer or incur in connection with any Multicurrency Swing
Line Loan. The obligations of the Participating Banks under this Section 4.4
and all other parts of this Section 4 shall survive termination of this
Agreement.
SECTION 5. GENERAL PROVISIONS APPLICABLE TO ALL LOANS
Section 5.1. Interest Periods. As provided in (w) Section 1.4
hereof, in the case of Committed Loans, (x) Section 2.2 hereof, in the case of
Bid Loans, (y), Section 3.3 hereof, in the case of Domestic Swing Line Loans,
and (z) Section 4.2 hereof, in the case of Multicurrency Swing Line Loans, at
the time of each request for the Borrowing of Loans hereunder (other than
Domestic Rate Loans) the Company (acting on behalf of the applicable Borrower)
shall select the Interest Period applicable to such Loans from among the
available options. The term "Interest Period" means the period commencing on
the date a Borrowing of Loans is made and ending: (i) in the case of Domestic
Rate Loans, on the last day of the
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calendar month in which such Loan is made or, if earlier, on the Revolving
Credit Termination Date; (ii) in the case of Committed Eurocurrency Loans, the
date, as the Company (acting on behalf of the applicable Borrower) may select,
one, two, three or six calendar months thereafter or (unless any Bank notifies
the Administrative Agent that deposits of the type, currency and maturity
appropriate to match fund the Eurocurrency Loan in question are not available
to it) the date, as the Company (acting on behalf of the applicable Borrower)
may select, nine or twelve calendar months thereafter; (iii) in the case of
Eurocurrency Bid Loans, the date, as the Company (acting on behalf of the
applicable Borrower) may select, one, two, three, four, five or six calendar
months thereafter; (iv) in the case of Stated Rate Bid Loans, the date, as the
Company (acting on behalf of the applicable Borrower) may select, 1-180 days
thereafter; (v) in the case of Domestic Swing Line Loans, the date as the
Company (acting on behalf of the applicable Borrower) may select, 1 - 7 days
thereafter; and (vi) in the case of Multicurrency Swing Line Loans, the date as
the Company (acting on behalf of the applicable Borrower) may select, one, two,
three or six calendar months thereafter; provided, however, that:
(a) for any Borrowing of Fixed Rate Loans, the Company or
applicable Borrower may not select an Interest Period that extends
beyond the Revolving Credit Termination Date;
(b) whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day of such
Interest Period shall be extended to the next succeeding Business Day,
provided that, in the case of an Interest Period for a Borrowing of
Eurocurrency Loans, if such extension would cause the last day of such
Interest Period to occur in the following calendar month, the last day
of such Interest Period shall be the immediately preceding Business
Day; and
(c) for purposes of determining the Interest Period for a
Borrowing of Eurocurrency Loans, a month means a period starting on
one day in a calendar month and ending on the numerically
corresponding day in the next calendar month; provided, however, that
if there is no numerically corresponding day in the month in which
such an Interest Period is to end or if such an Interest Period begins
on the last Business Day of a calendar month, then such Interest
Period shall end on the last Business Day of the calendar month in
which such Interest Period is to end.
Section 5.2. Minimum Borrowing Amounts. Each Borrowing of
Domestic Rate Loans (other than a Borrowing of Domestic Swing Line Loans) shall
be in an amount not less than $3,000,000 and in integral multiples of
$1,000,000. Each Borrowing of Domestic Swing Line Loans shall be in a minimum
amount of $100,000. Each Borrowing of Eurocurrency Loans (other than a
Borrowing of Multicurrency Swing Line Loans) shall be (x) if denominated in
U.S. Dollars, in an amount not less than $10,000,000 and in integral multiples
of $1,000,000 and (y) if denominated in an Alternative Currency, in an amount
not less than an Original Dollar Amount of $5,000,000 and in integral multiples
of 100,000 units of the relevant currency. Each Borrowing of Multicurrency
Swing Line Loans shall be in an amount not less than an Original Dollar Amount
of $500,000 and in integral multiples of 100,000 units of the relevant
currency. Each Borrowing of Bid Loans shall be in an amount not less than an
Original Dollar Amount of $3,000,000 and shall be in integral multiples of
100,000 units of the relevant currency.
Section 5.3. Maturity of Loans. Each Loan shall mature and become
due and payable by the relevant Borrower on the last day of the Interest Period
applicable thereto.
Section 5.4. Prepayments. (a) Committed Loans. Each Borrower
shall have the privilege of prepaying Committed Loans without premium or
penalty and in whole or in part (but, if in part, then: (i)
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if such Committed Borrowing is of Domestic Rate Loans, in an amount not less
than $3,000,000, (ii) if such Committed Borrowing is of Eurocurrency Loans
denominated in U.S. Dollars, in an amount not less than $10,000,000, (iii) if
such Committed Borrowing is denominated in an Alternative Currency, an amount
for which the U.S. Dollar Equivalent is not less than $5,000,000 and (iv) in an
amount such that the minimum amount required for a Borrowing of such type
pursuant to Section 5.2 hereof remains outstanding) any Committed Borrowing at
any time upon notice delivered to the Administrative Agent no later than 10:00
a.m. (Chicago time) on the date (x) in the case of a Committed Borrowing of
Eurocurrency Loans denominated in U.S. Dollars, no later than three (3)
Business Days' prior to the date of such prepayment or (y) in the case of a
Committed Borrowing of Eurocurrency Loans denominated in an Alternative
Currency, no later than four (4) Business Days prior to the date of such
prepayment or (z) in the case of a Committed Borrowing of Domestic Rate Loans,
on the date of such prepayment. Each such prepayment shall be made by the
payment of the principal amount to be prepaid and accrued interest thereon to
the date fixed for prepayment and, in the case of Committed Eurocurrency Loans,
any compensation required by Section 5.8 hereof. The Administrative Agent will
promptly advise each Bank of any such prepayment notice it receives from any
Borrower. Any amount paid or prepaid before the Revolving Credit Termination
Date may, subject to the terms and conditions of this Agreement, be borrowed,
repaid and borrowed again.
(b) Bid and Swing Line Loans. No Borrower may prepay any Bid or
Swing Line Loan before the last day of its Interest Period, except as required
pursuant to Section 5.4(c), Section 13 or Section 14.1 hereof, or in the case
of a Swing Line Loan, as permitted in the discretion of the relevant Swing Line
Bank, or in the case of a Bid Loan, as permitted in the discretion of the Bank
that made the relevant Bid Loan.
(c) Mandatory Prepayment. If the aggregate Original Dollar Amount
of outstanding Loans and L/C Obligations shall at any time for any reason
exceed the Revolving Credit Commitments then in effect, the Company shall,
within two (2) Business Days, pay the amount of such excess to the
Administrative Agent for the ratable benefit of the Banks as a prepayment of
Loans (to be applied to such Loans as the Company shall direct at the time of
such payment) and, if necessary, a prefunding of Letters of Credit.
Immediately upon determining the need to make any such prepayment, the Company
shall notify the Administrative Agent of such required prepayment. Each such
prepayment shall be accompanied by a payment of all accrued and unpaid interest
on the Loans prepaid and shall be subject to Section 5.8.
Section 5.5. Default Rate. If any payment of principal on any
Loan is not made when due (whether by acceleration or otherwise), the principal
of such Loan shall bear interest (computed on the basis of a year of 360 days
and actual days elapsed or, if based on the Domestic Rate, on the basis of a
year of 365 or 366 days, as applicable, and the actual number of days elapsed)
from the date such payment was due until paid in full, payable on demand, at a
rate per annum equal to:
(a) for any Domestic Rate Loan, the sum of two percent
(2%) plus the Domestic Rate from time to time in effect; and
(b) for any Fixed Rate Loan, the sum of two percent (2%)
plus the rate of interest in effect thereon at the time of such
default until the end of the Interest Period applicable thereto and,
thereafter, if such Loan is denominated in U.S. Dollars, at a rate per
annum equal to the sum of two percent (2%) plus the Domestic Rate from
time to time in effect or, if such Loan is denominated in an
Alternative Currency, at a rate per annum equal to the sum of two
percent (2%) plus the Eurocurrency Margin plus the Overnight Foreign
Currency Rate.
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Section 5.6. The Notes. (a) All Committed Loans made to a
Borrower by a Bank shall be evidenced by a promissory note of such Borrower in
the form of Exhibit A hereto (individually a "Committed Loan Note" and
collectively the "Committed Loan Notes"), each such Committed Loan Note to be
dated the date hereof (or, if issued by a Borrowing Subsidiary, the date of
issuance thereof), payable to the order of the applicable Bank in the principal
amount of all Committed Loans to each Borrower and otherwise in the form of
Exhibit A hereto.
(b) All Bid Loans made to a Borrower by a Bank shall be evidenced
by a promissory note of such Borrower in the form of Exhibit B hereto
(individually a "Bid Note" and collectively the "Bid Notes"), each such Bid
Note to be dated the date hereof (or, if issued by a Borrowing Subsidiary, the
date of issuance thereof), payable to the order of the applicable Bank in the
principal amount of its outstanding Bid Loans to such Borrower and otherwise in
the form of Exhibit B hereto.
(c) All Domestic Swing Line Loans made to a Borrower by the
Domestic Swing Line Bank shall be evidenced by a promissory note of such
Borrower in the form of Exhibit C hereto (individually a "Domestic Swing Line
Note" and collectively the "Domestic Swing Line Notes"), each such Domestic
Swing Line Note to be dated the date hereof (or, if issued by a Borrowing
Subsidiary, the date of issuance thereof), payable to the order of the Domestic
Swing Line Bank in the principal amount of the Domestic Swing Line Commitment
and otherwise in the form of Exhibit C hereto.
(d) All Multicurrency Swing Line Loans made to a Borrower by the
Multicurrency Swing Line Bank shall be evidenced by a promissory note of such
Borrower in the form of Exhibit D hereto (individually a "Multicurrency Swing
Line Note" and collectively, the "Multicurrency Swing Line Notes"), each such
Multicurrency Swing Line Note to be dated the date hereof (or, if issued by a
Borrowing Subsidiary, the date of issuance thereof), payable to the order of
the Multicurrency Swing Line Bank in the principal amount of all Multicurrency
Swing Line Loans to such Borrower and otherwise in the form of Exhibit D
hereto.
(e) Each Bank shall record on its books and records or on a
schedule to the appropriate Note the amount of each Loan made by it to a
Borrower, all payments of principal and interest and the principal balance from
time to time outstanding thereon, the type of such Loan, for any Fixed Rate
Loan, the Interest Period and interest rate applicable thereto and, for any
Eurocurrency Loan, the currency in which such Loan is denominated; provided
that prior to the transfer of any Note such information relating to any
outstanding Loans made by such Bank shall be recorded on the back of such Note
or on a schedule to such Note or otherwise provided in writing to the
transferee. The record thereof, whether shown on such books and records of a
Bank or on a schedule to any Note, shall be prima facie evidence as to all such
matters; provided, however, that the failure of any Bank to record any of the
foregoing or any error in any such record shall not limit or otherwise affect
the obligation of each Borrower to repay all Loans made to it hereunder
together with accrued interest thereon. At the request of any Bank and upon
such Bank tendering to the relevant Borrower the Note to be replaced, such
Borrower shall furnish a new Note to such Bank to replace any outstanding Note
and at such time the first notation appearing on a schedule on the reverse side
of, or attached to, such new Note shall set forth the aggregate unpaid
principal amount of all Loans, if any, then outstanding thereon.
Section 5.7. Commitment Terminations. The Company (acting on
behalf of the applicable Borrower) shall have the right at any time and from
time to time, upon five (5) Business Days' prior written notice to the
Administrative Agent, to terminate without premium or penalty, in whole or in
part,
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the Revolving Credit Commitments, any partial termination to be in an amount
not less than $10,000,000 or any larger amount that is an integral multiple of
$1,000,000, and to reduce ratably each Bank's Revolving Credit Commitment;
provided, however, that (x) the Revolving Credit Commitments may not be reduced
to an amount less than the sum of the Original Dollar Amount of all Loans
(whether Committed Loans, Bid Loans or Swing Line Loans) and all L/C
Obligations then outstanding and (y) any reduction of the Revolving Credit
Commitments to an amount less than a Swing Line Commitment or L/C Commitment
shall automatically reduce such Swing Line Commitment or L/C Commitment, as the
case may be, to such amount as well. The Administrative Agent shall give
prompt notice to each Bank of any such termination of Commitments. Any
termination of Commitments pursuant to this Section 5.7 may not be reinstated.
Section 5.8. Funding Indemnity. If any Bank shall incur any loss,
cost or expense (including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or re-employment of deposits or other
funds acquired by such Bank to fund or maintain any Fixed Rate Loan or the
relending or reinvesting of such deposits or amounts paid or prepaid to such
Bank, but in any event excluding loss of profit) as a result of:
(a) any payment or prepayment of a Fixed Rate Loan on a
date other than the last day of its Interest Period,
(b) any failure (because of a failure to meet the
conditions of Section 11 or otherwise) by any Borrower to borrow a
Fixed Rate Loan on the date specified in a notice given pursuant to
Section 1.4, 2.2, 3.3 or 4.2 hereof (other than any such failure due
to timely revocation by the Company under Section 1.3(c) hereof of a
Borrower's request for a Borrowing of Eurocurrency Loans denominated
in an Alternative Currency),
(c) any failure by any Borrower to make any payment of
principal on any Fixed Rate Loan when due (whether by acceleration or
otherwise), or
(d) any acceleration of the maturity of a Fixed Rate Loan
as a result of the occurrence of any Event of Default hereunder,
then, upon the demand of such Bank, the relevant Borrower shall pay to such
Bank such amount as will reimburse such Bank for such loss, cost or expense.
If any Bank makes such a claim for compensation, it shall provide to the
relevant Borrower, with a copy to the Administrative Agent, a certificate
executed by an officer of such Bank setting forth the amount of such loss, cost
or expense in reasonable detail (including an explanation of the basis for and
the computation of such loss, cost or expense) and the amounts shown on such
certificate shall be conclusive in the absence of demonstrable error.
Section 5.9. Rate and Original Dollar Amount Determinations. The
Administrative Agent shall determine each interest rate or other rate
applicable to Obligations (other than interest rates applicable to Bid Loans)
and the Original Dollar Amount of Loans and Letters of Credit denominated in
Alternative Currencies, and its determination thereof shall be conclusive and
binding except in the case of manifest error or willful misconduct. The
Original Dollar Amount of each Eurocurrency Loan denominated in an Alternative
Currency shall be determined effective as of the first day of the Interest
Period applicable to such Loan. The Original Dollar Amount of a Reimbursement
Obligation shall be calculated on the date of the Administrative Agent's
payment of the drawing giving rise to such Reimbursement Obligation and subject
to the last sentence of this Section, on the last day of each calendar quarter.
The Original Dollar Amount of each Letter of Credit shall be determined or
redetermined, as applicable, on the date of issuance, increase or extension of
such Letter of Credit and subject to the last sentence of this Section,
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on the last day of each calendar quarter. At the request of any Bank or the
Company, the Administrative Agent shall redetermine the Original Dollar Amount
of any L/C Obligation at such additional times, and from time to time, as may
be requested for such L/C Obligation.
Section 5.10. (a) Designation of Borrowing Subsidiaries. Any
Wholly-Owned Subsidiary may elect (with the Company's consent) to become a
Borrower hereunder (each a "Borrowing Subsidiary") by delivering to the
Administrative Agent an Election to Participate in the form of Exhibit L hereto
executed by the Borrowing Subsidiary and, through an Authorized Representative,
by the Company; provided, however, that if any such proposed Borrowing
Subsidiary is incorporated under the laws of, or principally located in, any
jurisdiction other than an Approved Jurisdiction, the consent of each Bank
shall be required prior to the effectiveness of such designation. Each
Borrowing Subsidiary shall cease to be a Borrower hereunder upon the delivery
to the Administrative Agent of an Election to Terminate in the form of Exhibit
M hereto or such Borrowing Subsidiary ceasing to be a Wholly-Owned Subsidiary.
Upon ceasing to be a Borrower pursuant to the preceding sentence, a Borrower
shall lose the right to request Borrowings hereunder (whether Refunding
Borrowings or otherwise), but such circumstance shall not affect any obligation
of a Borrowing Subsidiary theretofore incurred. The Administrative Agent shall
promptly give notice to the Banks of the receipt of any Election to Participate
or Election to Terminate.
(b) Appointment of Company as Agent for Borrowing Subsidiaries.
Each Borrowing Subsidiary irrevocably appoints the Company as its agent
hereunder to issue requests for Borrowings and Letters of Credit on its behalf
under Sections 1, 2, 3 and 4 hereof, to accept offers for Bid Loans on its
behalf for Borrowings to be made by such Borrowing Subsidiary, to terminate the
Revolving Credit Commitments and (subject to clause (iii) of Section 17.13
hereof) to take any other action contemplated by the Credit Documents with
respect to credit extended hereunder to such Borrowing Subsidiary.
SECTION 6. FEES
Section 6.1. Facility Fees. The Company shall pay to the
Administrative Agent for the ratable account of the Banks, based on their
Revolving Credit Commitments, a facility fee (the "Facility Fee") on the
average daily amount of the Revolving Credit Commitments hereunder (whether
used or unused) at the rate (the "Facility Fee Rate") of 0.100% per annum from
the Effective Date to, but not including, the first Pricing Date and thereafter
from, and including, one Pricing Date to, but not including, the next at the
rate per annum determined in accordance with the schedule below, payable in
arrears on the last day of each March, June, September, and December,
commencing on March 31, 1997, and on the Revolving Credit Termination Date
unless the Revolving Credit Commitments are terminated in whole on an earlier
date, in which event the Facility Fee for the period to the date of such
termination in whole shall be paid on the date of such termination:
Level: Facility Fee Rate:
------ ------------------
I 0.100%
II 0.125%
III 0.150%
IV 0.250%
V 0.300%
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Section 6.2. Letter of Credit Fees. On the date of issuance or
extension, or increase in the amount, of any Standby Letter of Credit pursuant
to Section 1.2 hereof, the Company and each Borrowing Subsidiary (if any) for
whose account such Standby Letter of Credit was issued, jointly and severally,
shall pay to the Administrative Agent for the account of the relevant Issuing
Agent an issuance fee equal to 1/8 of 1% (0.125) per annum of the face amount
of (or of the increase in the face amount of) such Standby Letter of Credit.
Quarterly in arrears, on the last day of each calendar quarter, commencing on
March 31, 1997, the Company and each Borrowing Subsidiary (if any) for whose
account the relevant Letter of Credit was issued, jointly and severally, shall
pay to the Administrative Agent, for the ratable benefit of the Banks in
accordance with their Percentages, a letter of credit fee at a rate per annum
equal to the Eurocurrency Margin in effect during each day of such quarter
applied to the daily average undrawn face amount of each Letter of Credit
(whether Standby or Commercial) outstanding during such quarter. In addition,
the Company and each Borrowing Subsidiary (if any) for whose account the
relevant Letter of Credit was issued, jointly and severally, shall pay to the
Administrative Agent for the account of the relevant Issuing Agent (i) such
Issuing Agent's standard issuance fee for each Commercial Letter of Credit
issued by such Issuing Agent and (ii) such Issuing Agent's standard drawing,
negotiation, amendment, and other administrative fees for each Letter of Credit
issued by such Issuing Agent. Such standard fees referred to in the preceding
clauses (i) and (ii) may be established by each such Issuing Agent from time to
time.
Section 6.3. Administrative Agent Fees. The Company shall pay to
the Administrative Agent the fees agreed to in a letter exchanged between them.
Section 6.4. Closing Fees. The Company shall pay to the
Administrative Agent for the account of the Banks the closing fees agreed to in
a letter or letters exchanged between them.
Section 6.5. Fee Calculations. All fees payable hereunder shall
be computed on the basis of a year of 365 or 366 days, as applicable, for the
actual number of days elapsed.
SECTION 7. PLACE AND APPLICATION OF PAYMENTS
Section 7.1. Place of Payments. All payments of amounts payable
under this Agreement to the Banks in U.S. Dollars shall be made to the
Administrative Agent by no later than 12:00 noon (Chicago time) (or in the case
of payments on Swing Line Loans, 2:00 p.m. (Chicago time)) at the principal
office of the Administrative Agent in Chicago, Illinois (or such other location
in the State of Illinois as the Administrative Agent may designate to the
Company or the relevant Borrower) or, if such payment is to be made in an
Alternative Currency, no later than 12:00 noon local time (or in the case of
payments on Multicurrency Swing Line Loans, 2:00 p.m. local time, or in case of
any Loan payable in an Alternative Currency, such earlier time as the
Administrative Agent may notify to the Company as is necessary for such funds
to be received for same day value on the date of such payment) at the place of
payment to such office as the Administrative Agent has previously agreed to
with the Company (acting on behalf of the applicable
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Borrower) for the benefit of the Person or Persons entitled thereto. Any
payments received after such time shall be deemed to have been received by the
Administrative Agent on the next Business Day and shall bear interest for such
additional day or days, as the case may be, in accordance with the provisions
of this Agreement.
Section 7.2. Funds and Remittance. All such payments shall be
made (i) if in U.S. Dollars, in immediately available funds at the place of
payment, or (ii) if in an Alternative Currency, in such Alternative Currency in
funds then customary for the settlement of international transactions in such
currency, in each case without setoff or counterclaim. The Administrative
Agent will promptly thereafter (and in any case, for U.S. Dollars, before the
close of business on the day the Administrative Agent receives such funds, if
timely received by the Administrative Agent) cause to be distributed like funds
relating to the payment of principal or interest on Committed Loans, or
Reimbursement Obligations in which the Banks have purchased participating
interests, or Facility Fees or letter of credit participation fees, ratably to
the Banks and like funds relating to the payment of any other amount payable to
any Person to such Person, in each case to be applied in accordance with the
terms of this Agreement.
SECTION 8. DEFINITIONS; INTERPRETATIONS
Section 8.1. Definitions. The following terms when used herein
have the following meanings:
"Account" is defined in Section 13.4(b) hereof.
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which the
Company or any of the Subsidiaries (i) acquires any going business, line of
business or all or substantially all of the assets of any firm, corporation or
division thereof, whether through purchase of assets, merger or otherwise, or
(ii) directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation or other firm which have ordinary
voting power for the election of the board of directors or similar governing
body of such corporation or firm (other than securities having such power only
by reason of the happening of a contingency).
"Administrative Agent" means Harris Trust and Savings Bank and any
successor pursuant to Section 15.7 hereof.
"Affiliate" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled by,
such Person. As used in this definition, "control" (including, with their
correlative meanings, "controlled by" and "under common control with") means
possession, directly or indirectly, of power to direct or cause the direction
of management or policies of a Person (whether through ownership of securities
or partnership or other ownership interests, by contract or otherwise),
provided that, in any event for purposes of this definition: (i) any Person
which owns directly or indirectly 20% or more of the securities having ordinary
voting power for the election of directors or other governing body of a
corporation or 20% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person; and (ii) each director and
executive officer of the Company or any Subsidiary shall be deemed an Affiliate
of the Company and each Subsidiary.
"Agents" means the Administrative Agent, each Issuing Agent and each
Swing Line Bank, in each case in its capacity as such.
"Alternative Currency" means any of Belgian Francs, Deutsche Marks,
Dutch Guilders, Japanese Yen, Pound Sterling, Spanish Pesetas, Australian
Dollars, Canadian Dollars, French Francs, Italian Lira, Swiss
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Francs, Austrian Shillings and any other currency (each such other
non-designated currency being hereinafter referred to as an "Other Alternative
Currency") available to each Bank, in each case for so long as such designated
Alternative Currency and Other Alternative Currency is freely transferable and
freely convertible to U.S. Dollars and the Dow Jones Telerate Service or
Reuters monitor Money Rates Service (or any successor to either) reports a
LIBOR for such currency for interest periods of one, two, three and six
calendar months; provided, however, that availability of each Other Alternative
Currency is subject to the additional conditions that (a) none of the Banks has
notified the Administrative Agent that in the judgment of such Bank, it is
impossible, illegal or impracticable for such Bank to make or participate in
Loans in such Other Alternative Currency or that in the judgment of such Bank,
additional costs or expenses will be incurred by such Bank or additional taxes,
charges or other impositions will be imposed on such Bank (such as withholding
taxes of the type described in Section 17.1(a) hereof) as a result of making or
participating in Loans in such Other Alternative Currency disbursed or payable
in the United States or any Approved Jurisdiction and (b) such amendments,
modifications or supplements are made to this Agreement as the Administrative
Agent determines are necessary or appropriate to give effect to the borrowing
and funding of Loans in such Other Alternative Currency.
"Alternative Swing Line Currency" means any of Deutsche Marks, Dutch
Guilders, Pound Sterling, French Francs, Swiss Francs and Austrian Shillings,
in each case for so long as such currency constitutes an Alternative Currency;
provided, however, that availability of each Alternative Swing Line Currency is
subject to the additional conditions that (a) the Multicurrency Swing Line Bank
has not notified the Administrative Agent that in the judgment of the
Multicurrency Swing Line Bank, it is impossible, illegal or impracticable for
such Bank to make Multicurrency Swing Line Loans in such Alternative Swing Line
Currency or that in the judgment of the Multicurrency Swing Line Bank,
additional costs or expenses will be incurred by such Bank or additional taxes,
charges or other impositions will be imposed on such Bank (such as withholding
taxes of the type described in Section 17.1(a) hereof) as a result of making
Multicurrency Swing Line Loans in such Alternative Swing Line Currency
disbursed or payable in the United States or any Approved Jurisdiction and (b)
such amendments, modifications or supplements are made to this Agreement as the
Administrative Agent and Multicurrency Swing Line Bank determine are necessary
or appropriate to give effect to the borrowing and funding of Multicurrency
Swing Line Loans in such Alternative Swing Line Currency.
"Applications" is defined in Section 1.2(d) hereof.
"Approved Jurisdictions" means Austria, Belgium, Germany, Holland,
Italy, Japan, Spain, Switzerland and the United Kingdom.
"Australian Dollars" means the lawful currency of Australia.
"Austrian Shillings" means the lawful currency of Austria.
"Authorized Representative" means any person shown on the list of
officers provided by the Company pursuant to Section 11.1(f) hereof, or any
other person shown on any updated such list provided by the Company to the
Administrative Agent, or any further or different officer(s) or employee(s) of
the Company so named by any Authorized Representative in a written notice to
the Administrative Agent.
"Bank" means each bank signatory hereto, and its successors, and any
assignee of a Bank pursuant to Section 17.12 hereof and includes each Issuing
Agent in its capacity as issuer of Letters of Credit and holder of L/C
Obligations after giving effect to each Participating Bank's interest therein
and also includes each Swing Line Bank in its capacity as the lender on its
Swing Line Loans after giving effect to each Participating Bank's interest
therein.
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"Base Outside Investment Amount" means $86,000,000 unless and until
the Quartet Acquisition occurs, in which event the Base Outside Investment
Amount shall be increased to $91,000,000 or such lesser amount as shall be
reflected on the first Outside Investment List submitted in accordance herewith
giving effect to the Quartet Acquisition.
"Belgian Francs" means the lawful currency of the Kingdom of Belgium.
"Bid" is defined in Section 2.2(c) hereof.
"Bid Loan" is defined in Section 2.1 hereof.
"Bid Loan Limit" shall mean an amount (x) equal to the Revolving
Credit Commitments if and so long as Level I Status, Level II Status or Level
III Status exists, (y) equal to 50% of the Revolving Credit Commitments if and
so long as Level IV Status exists and (z) equal to $0 at all other times.
"Bid Loan Request" is defined in Section 2.2(a) hereof.
"Bid Loan Request Confirmation" is defined in Section 2.2(a) hereof.
"Bid Note" is defined in Section 5.6(b) hereof.
"Borrower" is defined in the introduction hereto.
"Borrowing" means the total of Loans of a single type made by one or
more Banks to the same Borrower on a single date and for a single Interest
Period. Borrowings of Committed Loans are made ratably from each of the Banks
according to their Revolving Credit Commitments. Borrowings of a Bid Loan or
Bid Loans are made from a Bank or Banks in accordance with the procedures of
Section 2 hereof. Borrowings of Domestic Swing Line Loans are made from the
Domestic Swing Line Bank in accordance with the procedures of Section 3 hereof.
Borrowings of Multicurrency Swing Line Loans are made from the Multicurrency
Swing Line Bank in accordance with the procedures of Section 4 hereof. The
term "Committed Borrowing" shall mean a Borrowing of Committed Loans advanced
pursuant to Section 1.4 hereof, the term "Bid Borrowing" shall mean a Borrowing
of Bid Loans advanced pursuant to Section 2 hereof and the term "Swing Line
Borrowing" shall mean a Borrowing of Swing Line Loans advanced pursuant to
Section 3 or Section 4 hereof.
"Borrowing Date" is defined in Section 2.2(a) hereof.
"Borrowing Subsidiary" is defined in Section 5.10 hereof.
"Business Day" means any day other than a Saturday or Sunday on which
banks are not authorized or required to close in Chicago, Illinois and, if the
applicable Business Day relates to the borrowing or payment of a Eurocurrency
Loan, on which banks are dealing in U.S. Dollar deposits or the relevant
Alternative Currency in the interbank market in London, England and, if the
applicable Business Day relates to the borrowing or payment of a Eurocurrency
Loan denominated in an Alternative Currency, on which banks and foreign
exchange markets are open for business in the city where disbursements of or
payments on such Loan are to be made.
"Canadian Dollars" means the lawful currency of Canada.
"Capital Lease" of a Person means at any date any lease of property by
such Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Change of Control Event" means that at any time Lane Industries,
Inc., a Delaware corporation, fails to own and control, either directly or
indirectly through one or more of its subsidiaries, a
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sufficient number of shares of the Company's outstanding Voting Stock to elect
a majority of the Board of Directors of the Company.
"Co-Agents" is defined in the introductory paragraph hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commercial Letter of Credit" means a Letter of Credit that finances a
commercial transaction by paying part or all of the purchase price for goods
against delivery of a document of title covering such goods and any other
required documentation.
"Committed L/C Obligations" means L/C Obligations owed to the
Administrative Agent.
"Committed Loan" is defined in Section 1.1 hereof.
"Committed Loan Notes" is defined in Section 5.6(a) hereof.
"Commitments" means the Revolving Credit Commitments, the L/C
Commitment, the Domestic Swing Line Commitment and the Multicurrency Swing Line
Commitment, and the term "Commitment" means any of the foregoing unless the
context in which such term is used shall otherwise require.
"Company" means General Binding Corporation, a Delaware corporation.
"Compliance Certificate" means a duly completed certificate in the
form of Exhibit H hereto.
"Confirmation of Bid" is defined in Section 2.2(c) hereof.
"Consolidated Current Ratio" means, at any time the same is to be
determined, the ratio of current assets of the Company and its Subsidiaries to
current liabilities of the Company and its Subsidiaries, all as determined on a
consolidated basis in accordance with GAAP consistently applied, but in any
event excluding the Loans from current liabilities for such purposes.
"Consolidated Debt" means all Debt of the Company and its Subsidiaries
determined (without duplication) on a consolidated basis in accordance with
GAAP; provided, however, that it is understood that to avoid duplication in
calculating Consolidated Debt, only Guaranties of third parties' obligations
and of other obligations not otherwise included in the Debt of the Company or
of a consolidated Subsidiary shall be included.
"Consolidated EBITDA" means, for any period, determined on a
consolidated basis for the Company and its Subsidiaries in accordance with
GAAP, (i) earnings before income taxes for such period, plus (ii) Consolidated
Interest Expense for such period, plus (iii) the amount of all depreciation and
amortization expense deducted in determining earnings for such period, plus
(iv) the amount (not to exceed $5,000,000) of any decrease in earnings during
such period due solely to any write-up of inventory resulting from application
of purchase accounting methods to account for the Quartet Acquisition, minus
(v) net earnings for such period of any unconsolidated Person in which the
Company or any Subsidiary has an ownership interest, unless such earnings are
received in cash pursuant to a dividend distribution (or equivalent
distribution in the event of one made by a Person other than a corporation)
received by the Company, any Borrower or any Guarantor, plus (vi) net losses
for such period of any unconsolidated Person in which the Company or any
Subsidiary has an ownership interest to the extent such losses are deducted in
determining earnings for such period in an amount in excess of any increase
during such period in Investments of the Company and its Subsidiaries in such
Person; provided, however, that if the Quartet Acquisition occurs at any time
during such period, Consolidated EBITDA shall be calculated on a proforma basis
to include earnings of Quartet for the entire period as if the Quartet
Acquisition had taken place, and Quartet had been a Subsidiary, on the first
day of such period, all as reasonably calculated by the Company based on
historical operations (including, but not limited to, operations conducted
during such quarter) and reasonably calculated adjustments due to anticipated
operational changes.
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"Consolidated Interest Expense" means, for any period, an amount equal
to interest expense during such period on Consolidated Debt, as determined on a
consolidated basis in accordance with GAAP; provided, however, that if the
Quartet Acquisition occurs at any time during such period, Consolidated
Interest Expense shall be equal to the product of (x) interest expense on
Consolidated Debt, as reasonably determined on a consolidated basis, from and
including the date of such Acquisition through the close of such period,
multiplied by (y) a fraction, the numerator of which is the number of days in
such period and the denominator of which is the number of those days in such
period including and following the date of such Acquisition.
"Consolidated Shareholder's Equity" means, as of any date the same is
to be determined, the total shareholder's equity (including capital stock,
additional paid-in-capital and retained earnings after deducting treasury
stock, but excluding minority interests in Subsidiaries) which would appear on
a balance sheet of the Company and its Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Consolidated Total Assets" shall mean as of the date of any
determination thereof, the total amount of all assets of the Company and its
Subsidiaries as determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking
to which such Person is a party or by which it or any of its Property is bound.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"Credit Documents" means this Agreement (including each Election to
Participate and Election to Terminate issued hereunder), the L/C Documents and
the Notes.
"Credit Event" means the advancing of any Loan, or the issuance of, or
extension of the expiration date or increase in the amount of, any Letter of
Credit.
"Debt" means, for any Person, any Indebtedness of such Person of the
type described in clauses (i) through (vi) of the definition of such term.
"Default" means any event or condition the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an Event
of Default.
"Deutsche Marks" means the lawful currency of the Federal Republic of
Germany.
"Domestic Borrower" means each Borrower which is a Domestic
Subsidiary.
"Domestic Rate" is defined in Section 1.3(a) hereof.
"Domestic Rate Loan" means a Loan bearing interest prior to maturity
at the rate specified in Section 1.3(a) hereof.
"Domestic Rate Margin" is defined in Section 1.3(a) hereof.
"Domestic Subsidiary" means each Subsidiary of the Company which is
organized under the laws of the United States of America or any State thereof.
"Domestic Swing Line Bank" is defined in Section 3.1 hereof.
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"Domestic Swing Line Commitment" means $25,000,000, as such amount may
be reduced pursuant to Section 5.7 hereof.
"Domestic Swing Line Loans" is defined in Section 3.1 hereof.
"Domestic Swing Line Note" is defined in Section 5.6(c) hereof.
"Domestic Swing Line Rate" is defined in Section 3.3 hereof.
"Dutch Guilder" means the lawful currency of the Kingdom of The
Netherlands.
"Effective Date" means the date on which the Administrative Agent has
received signed counterpart signature pages of this Agreement from each of the
signatories (or, in the case of a Bank, confirmation that such Bank has
executed such a counterpart and dispatched it for delivery to the
Administrative Agent) and the conditions in Section 11.1 hereof have been
fulfilled.
"Election to Participate" means a letter to the Administrative Agent
in the form of Exhibit L hereto executed by a Borrowing Subsidiary and an
Authorized Representative and acknowledged by the Administrative Agent.
"Election to Terminate" means a letter in the form of Exhibit M hereto
executed by a Borrowing Subsidiary and an Authorized Representative and
acknowledged by the Administrative Agent.
"Environmental and Health Laws" means any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, judgments, permits
and other governmental rules or restrictions relating to human health, safety
(including without limitation occupational safety and health standards), or the
environment or to emissions, discharges or releases of pollutants,
contaminants, hazardous or toxic substances, wastes or any other controlled or
regulated substance into the environment, including without limitation ambient
air, surface water, ground water or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous or toxic
substances, wastes or any other controlled or regulated substance or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Loan" means a Loan bearing interest prior to maturity at
the rate specified in Section 1.3(b) hereof and "Committed Eurocurrency Loan"
means a Eurocurrency Loan made pursuant to the provisions of Section 1.4 hereof
and "Eurocurrency Bid Loan" means a Eurocurrency Loan made pursuant to the
provisions of Section 2 hereof. A Multicurrency Swing Line Loan is a
Eurocurrency Loan.
"Eurocurrency Loans" shall include both Committed Eurocurrency Loans
and Eurocurrency Bid Loans unless the context otherwise requires.
"Eurocurrency Margin" is defined in Section 1.3(b) hereof.
"Eurocurrency Reserve Percentage" means, for any Borrowing of
Eurocurrency Loans, the daily average for the applicable Interest Period of the
maximum rate, expressed as a decimal, at which reserves (including, without
limitation, any supplemental, marginal and emergency reserves) are imposed
during such Interest Period by the Board of Governors of the Federal Reserve
System (or any successor) on "eurocurrency liabilities", as defined in such
Board's Regulation D (or in respect of any other category of liabilities that
includes deposits by reference to which the interest rate on Eurocurrency Loans
is determined or any category of extensions of credit or other assets that
include loans by non-United States offices of any Bank to United States
residents), subject to any amendments of such reserve requirement by such Board
or its successor, taking into account any transitional adjustments thereto.
For purposes of this definition, the Eurocurrency Loans shall be deemed to be
"eurocurrency liabilities" as defined in Regulation D without benefit or credit
for any prorations, exemptions or offsets under Regulation D.
"Event of Default" means any of the events or circumstances specified
in Section 13.1 hereof.
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"Facility Fee" means any of the fees payable by the Company to the
Banks under Section 6.1 hereof.
"Facility Fee Rate" is defined in Section 6.1 hereof.
"Federal Funds Rate" means the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Domestic Rate in
Section 1.3(a) hereof.
"Fixed Rate Loans" means Eurocurrency Loans, Bid Loans and Swing Line
Loans.
"Foreign Borrower" means each Borrower which is a Foreign Subsidiary.
"Foreign Credit L/C Obligations" means L/C Obligations owed to the
Multicurrency Swing Line Bank.
"Foreign Subsidiary" shall mean each Subsidiary that is not a Domestic
Subsidiary.
"French Francs" means the lawful currency of the Republic of France.
"GAAP" means generally accepted accounting principles, from time to
time in effect, consistently applied.
"Guarantor" means the Company and each Domestic Subsidiary of the
Company that is a signatory hereto or that executes and delivers to the
Administrative Agent a Subsidiary Guarantee Agreement in the form of Exhibit O
hereto along with the accompanying closing documents required by Section 12.1
hereof.
"Guaranty" of a Person means any agreement by which such Person
assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes liable upon, the obligation of any
other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person or otherwise assures any creditor of
such other Person against loss, including, without limitation, any comfort
letter, operating agreement, take-or-pay contract or letter of credit.
"Hazardous Material" means and includes (a) any asbestos, PCBs or
dioxins or insulation or other material composed of or containing asbestos,
PCBs or dioxins and (b) any petroleum product or derivative or other
hydrocarbon, and any hazardous or toxic waste, substance or material defined as
such in (or for purposes of) CERCLA, any so-called "Superfund" or "Superlien"
law, or any other applicable federal, state, local or other statute, law,
ordinance, code, rule, regulation, order or decree regulating or pertaining to
any such waste, substance or material, as in effect now or at any time
hereafter.
"Incremental Outside Investment Amount" means as of any time, 10% of
Consolidated Total Assets as of the close of the then most recent fiscal
quarter of the Company for which a Compliance Certificate is available;
provided, however, that if (i) Level I, Level II or Level III was in effect for
the most recent Pricing Date, the Company wishes to make an Investment
subsequent to such Pricing Date and the Company has demonstrated that on a
proforma basis (as if such Investment had been made as of the close of the then
most recent fiscal quarter of the Company for which a Compliance Certificate is
available) Level I, Level II or Level III would have existed as of the end of
such fiscal quarter or (ii) Level I, Level II or Level III was in effect for
the two most recent Pricing Dates, the Incremental Outside Investment Amount
shall then be set at 15% of Consolidated Total Assets as of close of the most
recent fiscal quarter of the Company for which a Compliance Certificate is
available.
"Indebtedness" means and includes, for any Person, all obligations of
such Person, without duplication, which are required by GAAP to be shown as
liabilities on its balance sheet, and in any event shall include all of the
following whether or not so shown as liabilities: (i) obligations of such
Person for borrowed money, (ii) obligations of such Person representing the
deferred purchase price of property or services other than accounts payable
arising in the ordinary course of business on terms customary in the trade,
(iii) obligations of such Person evidenced by notes, acceptances, or other
instruments of such
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Person, (iv) obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from Property now or hereafter owned or
acquired by such Person, (v) Capitalized Lease Obligations of such Person and
(vi) obligations for which such Person is obligated pursuant to a Guaranty.
"Interest Coverage Ratio" means, for any period of four consecutive
fiscal quarters of the Company ending with the most recently completed such
fiscal quarter, the ratio of Consolidated EBITDA for such period to
Consolidated Interest Expense for such period.
"Interest Period" is defined in Section 5.1 hereof.
"Investment" is defined in Section 12.14 hereof.
"Issuing Agent" is defined in Section 1.2(a) hereof.
"Italian Lira" means the lawful currency of Italy.
"Japanese Yen" means the lawful currency of Japan.
"L/C Commitment" means $25,000,000, as such amount may be reduced
pursuant to Section 5.7 hereof.
"L/C Documents" means the Letters of Credit, any draft or other
document presented in connection with a drawing thereunder, the Applications
and this Agreement.
"L/C Obligations" means the aggregate undrawn face amounts of all
outstanding Letters of Credit and all unpaid Reimbursement Obligations.
"Lending Office" is defined in Section 14.4.
"Letter of Credit" is defined in Section 1.2(a) hereof.
"Level I" means the Borrower's Leverage Ratio as of the end of the
Borrower's fiscal quarter ending immediately prior to the most recent Pricing
Date is less than 2.00 to 1.00.
"Level II" means the Borrower's Leverage Ratio as of the end of the
Borrower's fiscal quarter ending immediately prior to the most recent Pricing
Date is greater than or equal to 2.0 to 1.00 and less than 2.50 to 1.00.
"Level III" means the Borrower's Leverage Ratio as of the end of the
Borrower's fiscal quarter ending immediately prior to the most recent Pricing
Date is greater than or equal to 2.50 to 1.00 and less than 3.00 to 1.00.
"Level IV" means the Borrower's Leverage Ratio as of the end of the
Borrower's fiscal quarter ending immediately prior to the most recent Pricing
Date is greater than or equal to 3.00 to 1.00 and less than 3.50 to 1.00, or
that Level IV is deemed to exist as set forth below in the definition of
Pricing Date.
"Level V" means the Borrower's Leverage Ratio as of the end of the
Borrower's fiscal quarter ending immediately prior to the most recent Pricing
Date is greater than or equal to 3.50 to 1.00.
"Leverage Ratio" means, as of any time the same is to be determined,
the ratio of Consolidated Debt at such time to Consolidated EBITDA for the four
most recently completed fiscal quarters of the Company.
"LIBOR" is defined in Section 1.3(b) hereof.
"Lien" of a Person means any security interest, mortgage, pledge,
lien, claim, charge, encumbrance, title retention agreement, lessor's interest
under a capitalized lease or analogous instrument, in, of or on any property of
such Person.
"Loan" means and includes Committed Loans, Bid Loans, Domestic Swing
Line Loans and Multicurrency Swing Line Loans, and each of them singly, and the
term "type" of Loan refers to its status as a Committed Loan, Bid Loan,
Domestic Swing Line Loan or Multicurrency Swing Line Loan or, if a Committed
Loan, to its status as a Domestic Rate Loan or Eurocurrency Loan, or if a Bid
Loan, to its status as a Stated Rate Bid Loan or Eurocurrency Bid Loan.
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"Loan Documents" means this Agreement (including each Election to
Participate and Election to Terminate issued hereunder), the Subsidiary
Guarantee Agreements, the L/C Documents and the Notes.
"Maryland IRB Indenture" is defined in Section 1.3(a) hereof.
"Material Adverse Effect" means (i) any materially adverse change in
the business, operations, financial condition or Properties of the Company and
its Subsidiaries, taken as a whole, or (ii) any fact or circumstance which
singly or in the aggregate causes a materially adverse change described in
clause (i) with respect to the Company and its Subsidiaries, taken as a whole,
or (iii) the inability of any Borrower or Guarantor to perform in any material
respect its obligations under the Credit Documents or the inability of any of
the Banks or any Agent to enforce in any material respect their rights under
the Loan Documents.
"Material Domestic Subsidiary" means (i) each Domestic Subsidiary
which is a Borrowing Subsidiary, (ii) each Domestic Subsidiary whose
consolidated total assets (directly and together with its subsidiaries), as of
the close of the current or any subsequent fiscal year of the Company for which
audited financial statements are available, were greater than $5,000,000, (iii)
each Domestic Subsidiary whose consolidated gross sales (directly and together
with its subsidiaries), for the current or any subsequent fiscal year of the
Company for which audited financial statements are available, were greater than
$5,000,000 and (iv) each Domestic Subsidiary which becomes a Domestic
Subsidiary by reason of the following proviso; provided, however, that each
Domestic Subsidiary which would (but for the application of this proviso to
such Subsidiary) constitute a Non-Material Domestic Subsidiary with the
greatest total assets shall constitute a Material Domestic Subsidiary if (i)
the consolidated gross sales of such Domestic Subsidiary (directly and together
with its subsidiaries), when taken together with the consolidated gross sales
of all other Non-Material Domestic Subsidiaries (directly and together with
their respective subsidiaries), in each case for the most recently completed
fiscal year of the Company for which audited financial statements are
available, equal or exceed 3% of consolidated gross sales of the Company and
its Subsidiaries for such fiscal year or (ii) the consolidated total assets of
such Domestic Subsidiary (directly and together with its subsidiaries), when
taken together with the consolidated total assets of all other Non-Material
Domestic Subsidiaries (directly and together with their respective
subsidiaries), in each case as of the date of such financial statements, equal
or exceed 3% of Consolidated Total Assets as of such date. Once a Domestic
Subsidiary is a Material Domestic Subsidiary, it shall remain a Material
Domestic Subsidiary unless and until the Required Banks agree otherwise.
"Material Plan" is defined in Section 13.1(i) hereof.
"Multicurrency Swing Line Bank" is defined in Section 4.1 hereof.
"Multicurrency Swing Line Commitment" means $25,000,000, as such
amount may be reduced pursuant to Section 5.7 hereof.
"Multicurrency Swing Line Loan" is defined in Section 4.1 hereof.
"Multicurrency Swing Line Note" is defined in Section 5.6(d) hereof.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Company or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Non-Material Domestic Subsidiary" means each Domestic Subsidiary that
is not a Material Domestic Subsidiary.
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"Note" means and includes the Committed Loan Notes, the Bid Notes, the
Domestic Swing Line Note and Multicurrency Swing Line Note and each
individually, unless the context in which such term is used shall otherwise
require.
"Offer" is defined in Section 2.2(c) hereof.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans and L/C Obligations, all accrued and unpaid facility fees
and letter of credit fees and all other payment obligations of any one or more
of the Borrowers to any one or more of the Agents or Banks in each case arising
under any one or more of the Credit Documents.
"Original Dollar Amount" means the amount of any Obligation
denominated in U.S. Dollars and, in relation to any Loan denominated in an
Alternative Currency, the U.S. Dollar Equivalent of such Loan on the first day
of its Interest Period and, in relation to any L/C Obligation denominated in an
Alternative Currency, the U.S. Dollar Equivalent of such L/C Obligation on the
day such amount is being computed.
"Outside Investment List" means a duly completed certificate from the
Company in the form of Exhibit P hereto describing in reasonable detail (by
item and amount) the Outside Investments as of a specified date.
"Outside Investments" means Investments of the type permitted solely
by reason of Section 12.14(h) hereof.
"Overnight Foreign Currency Rate" shall mean for any amount payable in
a currency other than U.S. Dollars, the rate of interest per annum as
determined by the Administrative Agent (or in the case of any amount payable on
a Multicurrency Swing Line Loan, the Multicurrency Swing Line Bank) (rounded
upwards, if necessary, to the nearest whole multiple of one-hundredth of one
percent (1/100 of 1%)) at which overnight or weekend deposits of the
appropriate currency (or, if such amount due remains unpaid more than three
Business Days, then for such other period of time not longer than six months as
the Administrative Agent (or if applicable as aforesaid, the Multicurrency
Swing Line Bank) may elect in its absolute discretion) for delivery in
immediately available and freely transferable funds would be offered by the
Administrative Agent (or if applicable as aforesaid, the Multicurrency Swing
Line Bank) to major banks in the interbank market upon request of such major
banks for the applicable period as determined above and in an amount comparable
to the unpaid principal amount of the related Loan or Reimbursement Obligation
(or, if the Administrative Agent (or if applicable as aforesaid, the
Multicurrency Swing Line Bank) is not placing deposits in such currency in the
interbank market, then the cost of funds to the Administrative Agent or
Multicurrency Swing Line Bank, as applicable, in such currency for such
period).
"Participating Bank" is defined in Sections 1.2(f), 3.5 and 4.3
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and its
successors and assigns.
"Percentage" means, for each Bank, the percentage of the Revolving
Credit Commitments represented by such Bank's Revolving Credit Commitment or,
if the Revolving Credit Commitments have been terminated, the percentage held
by such Bank (including through participation interests as a Participating Bank
in Swing Line Loans and Reimbursement Obligations) of the aggregate principal
amount of all outstanding Committed Loans, Swing Line Loans and L/C
Obligations.
"Permitted Liquid Investments" means investments that would reasonably
be considered cash equivalents or other short-term, high quality, liquid
investments.
"Person" means any corporation, natural person, firm, joint venture,
partnership, limited liability company, trust, unincorporated organization,
enterprise, government or any department or agency of any government.
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"Plan" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Internal Revenue Code as to which the Company or any Subsidiary may have
any liability.
"Pound Sterling" means the lawful currency of the United Kingdom.
"Pricing Date" means, for any fiscal quarter of the Company ended
after the date hereof (except for the last such fiscal quarter in each fiscal
year of the Company), the sixtieth day after the last day of such fiscal
quarter and for the last such fiscal quarter, the ninetieth day after the last
day of such fiscal quarter; provided, however, that if the Quartet Acquisition
occurs, the date of the closing of the Quartet Acquisition shall constitute an
additional Pricing Date, at which time Level IV shall be deemed to exist until
the next Pricing Date (unless the Company is then more than five (5) Business
Days late in delivering the most recent Compliance Certificate required by this
Agreement, in which event the following provisions of this paragraph shall
govern). The Domestic Rate Margin, the Eurocurrency Margin and the Facility
Fee Rate established on a Pricing Date shall remain in effect until the next
Pricing Date (and for the next five (5) Business Days in the event set forth in
the immediately following sentence). If the Company has not delivered a
Compliance Certificate by the fifth Business Day following the date such
Compliance Certificate is required to be delivered under Section 12.6(b)
hereof, until a Compliance Certificate is delivered before the next Pricing
Date, the Domestic Rate Margin, the Eurocurrency Margin and the Facility Fee
Rate shall be set from (but not including) such fifth Business Day as if Level
V existed. If the Company subsequently delivers such a Compliance Certificate
before the next Pricing Date, the Domestic Rate Margin, the Eurocurrency Margin
and the Facility Fee Rate established by such late-delivered Compliance
Certificate shall take effect from the date of delivery until the next Pricing
Date. In all other circumstances, the Domestic Rate Margin, the Eurocurrency
Margin and the Facility Fee Rate established by a Compliance Certificate shall
be in effect from the Pricing Date that coincides with the deadline for
delivery of the corresponding Compliance Certificate until the next Pricing
Date.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible, whether now owned
or hereafter acquired.
"Quartet" means Quartet Manufacturing Company, a Delaware corporation.
"Quartet Acquisition" shall mean the Acquisition by the Company of
certain assets of Quartet Manufacturing Company, a Delaware corporation,
pursuant to the Quartet Purchase Agreement.
"Quartet Purchase Agreement" shall mean the certain Asset Purchase
Agreement dated as of November 12, 1996 between the Company and Quartet
relating to the Quartet Acquisition.
"Refunding Borrowing" is defined in Section 1.4(d) hereof.
"Reimbursement Obligation" is defined in Section 1.2(e) hereof.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such Section, with respect to a
Plan, excluding, however, such events as to which the PBGC by regulation has
waived the requirement of Section 4043(a) of ERISA that it be notified within
30 days of the occurrence of such event (provided that a failure to meet the
minimum funding standard of Section 412 of the Code or of Section 302 of ERISA
shall be a reportable event regardless of the issuance of any such waivers in
accordance with Section 412(d) of the Code).
"Required Banks" means, as of the date of determination thereof, those
Banks holding at least 60% of the Percentages.
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"Responsible Officer" means the individuals (if any) holding the
following offices in the Company or performing the following functions for the
Company: chief executive officer, chief financial officer, chief operating
officer, treasurer, assistant treasurer and general counsel.
"Revolving Credit Commitments" is defined in Section 1.1 hereof.
"Revolving Credit Termination Date" means January 13, 2002.
"Set-off" is defined in Section 17.7 hereof.
"Significant Subsidiary" means (i) each Subsidiary except a Subsidiary
that neither (a) has (together with its subsidiaries) consolidated total assets
that constitute more than 3% of Consolidated Total Assets as of the close of
the current or any subsequent fiscal year of the Company for which audited
financial statements are available, nor (b) has (together with its
subsidiaries) consolidated gross sales that constitute more than 3% of
consolidated gross sales of the Company and its Subsidiaries as of the close of
the current or any subsequent fiscal year of the Company for which audited
financial statements are available, (ii) each Borrowing Subsidiary and (iii)
each Guarantor (other than the Company). Assets and sales of Foreign
Subsidiaries shall be converted into U.S. Dollars at the U.S. Dollar Equivalent
as of the date of the most recent audited financial statements furnished to the
Banks pursuant to Section 12.6(a) hereof. Once a Subsidiary is a Significant
Subsidiary, it shall remain a Significant Subsidiary unless and until the
Required Banks agree otherwise.
"Single Employer Plan" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of
the Controlled Group.
"Spanish Pesetas" means the lawful currency of Spain.
"Standby Letter of Credit" means a Letter of Credit that is not a
Commercial Letter of Credit.
"Stated Rate Bid Loan" is defined in Section 2.1 hereof.
"Subsidiary" means, as to the Company, any corporation or other Person
of which more than fifty percent (50%) of the outstanding stock or comparable
equity interests having ordinary voting power for the election of the Board of
Directors of such corporation or similar governing body in the case of a
non-corporation (irrespective of whether or not, at the time, stock or other
equity interests of any other class or classes of such corporation or other
entity shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned by the Company or by
one or more of its Subsidiaries.
"Subsidiary Guarantee Agreement" means a letter to the Administrative
Agent in the form of Exhibit O hereto executed by a Domestic Subsidiary whereby
it acknowledges it is party hereto as a Guarantor under Section 16 hereof.
"Swing Line Banks" means the Domestic Swing Line Bank and the
Multicurrency Swing Line Bank, and the term "Swing Line Bank" shall mean each
of the Swing Line Banks individually, unless the context in which such term is
used shall otherwise require.
"Swing Line Loans" means the Domestic Swing Line Loans and the
Multicurrency Swing Line Loans, and the term "Swing Line Loan" shall mean each
of the Swing Line Loans individually, unless the context in which such term is
used shall otherwise require.
"Swiss Francs" means the lawful currency of Switzerland.
"Unfunded Vested Liabilities" means, (i) in the case of Single
Employer Plans, the amount (if any) by which the present value of all vested
nonforfeitable benefits under such Plan exceeds the fair market value of all
Plan assets allocable to such benefits, all determined as of the then most
recent valuation
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date for such Plan, and (ii) in the case of Multiemployer Plans, the withdrawal
liability of the Company or other member of the Controlled Group under such
Multiemployer Plan.
"Unused Revolving Credit Commitments" means as of any time, the
difference between (x) the Revolving Credit Commitments then in effect and (y)
the greater of the (i) Original Dollar Amount and (ii) U.S. Dollar Equivalent,
as the case may be, of the aggregate principal amount of all Loans (whether
Committed Loans, Swing Line Loans or Bid Loans) and L/C Obligations then
outstanding.
"U.S. Dollars" and "$" each means the lawful currency of the United
States of America.
"U.S. Dollar Equivalent" means the amount of U.S. Dollars which would
be realized by converting a foreign currency into U.S. Dollars in the spot
market at the exchange rate quoted by the Administrative Agent (or the
Multicurrency Swing Line Bank, for the sole purpose of determining the amount
of Multicurrency Swing Line Loans or Foreign Credit L/C Obligations if such
determination would result in a larger amount and the Multicurrency Swing Line
Bank so informs the Administrative Agent) at approximately 11:00 a.m. (London
time) two Business Days prior to the date on which a computation thereof is
required to be made, to major banks in the interbank foreign exchange market
for the purchase of U.S. Dollars with such foreign currency.
"Voting Stock" of any Person means capital stock of any class or
classes or other equity interests (however designated) having ordinary voting
power for the election of directors or similar governing body of such Person,
other than stock or other equity interests having such power only by reason of
the happening of a contingency.
"Wholly-Owned" when used in connection with any Subsidiary of the
Company means a Subsidiary of which all of the issued and outstanding shares of
stock or other equity interests (other than directors' qualifying shares as
required by law) shall be owned by the Company and/or one or more of its
Wholly-Owned Subsidiaries.
Section 8.2. Interpretation. The foregoing definitions shall be
equally applicable to both the singular and plural forms of the terms defined.
All references to times of day herein shall be references to Chicago, Illinois
time unless otherwise specifically provided. Where the character or amount of
any asset or liability or item of income or expense is required to be
determined or any consolidation or other accounting computation is required to
be made for the purposes of this Agreement, the same shall be done in
accordance with GAAP except where such principles are inconsistent with the
specific provisions of this Agreement.
SECTION 9. REPRESENTATIONS AND WARRANTIES OF COMPANY
The Company hereby represents and warrants to each Bank as to itself
and, where the following representations and warranties apply to Subsidiaries,
as to each of its Subsidiaries, as follows:
Section 9.1. Corporate Organization and Authority. The Company is
duly organized and existing in good standing under the laws of the State of
Delaware; has all necessary corporate power to carry on its present business;
and is duly licensed or qualified and in good standing in each jurisdiction in
which the nature of the business transacted by it or the nature of the Property
owned or leased by it makes such licensing, qualification or good standing
necessary and in which the failure to be so licensed, qualified or in good
standing would have a Material Adverse Effect.
Section 9.2. Subsidiaries. Schedule 9.2 (as updated from time to
time pursuant to Section 12.6(a)) hereto identifies, as of the date of the most
recent such Schedule delivered to the Administrative Agent, each Subsidiary,
the jurisdiction of its incorporation, the percentage of issued
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and outstanding shares of each class of its capital stock owned by the Company
and the Subsidiaries and, if such percentage is not 100% (excluding directors'
qualifying shares as required by law), a description of each class of its
authorized capital stock and the number of shares of each class issued and
outstanding. Each Subsidiary is duly incorporated and existing in good
standing as a corporation under the laws of the jurisdiction of its
incorporation, has all necessary corporate power to carry on its present
business, and is duly licensed or qualified and in good standing in each
jurisdiction in which the nature of the business transacted by it or the nature
of the Property owned or leased by it makes such licensing or qualification
necessary and in which the failure to be so licensed or qualified would have a
Material Adverse Effect. All of the issued and outstanding shares of capital
stock of each Subsidiary are validly issued and outstanding and fully paid and
nonassessable except as set forth on Schedule 9.2 hereto. All such shares
owned by the Company are owned beneficially, and of record, free of any Lien.
Each Subsidiary that is a Significant Subsidiary is so noted Schedule 9.2
hereto. Each Material Domestic Subsidiary is a Guarantor except to the extent
(i) Section 12.1 does yet require such Subsidiary be a Guarantor and (ii) in
the case of those Subsidiaries established or acquired after the date hereof,
the Required Banks have agreed pursuant to Section 12.1 hereof that the same
need not be Guarantors.
Section 9.3. Corporate Authority and Validity of Obligations. The
Company has full right and authority to enter into this Agreement and the other
Credit Documents to which it is a party, to make the borrowings herein provided
for, to issue its Notes in evidence thereof, to apply for the issuance of the
Letters of Credit, and to perform all of its obligations under the Credit
Documents to which it is a party. Each Guarantor has full right and authority
to enter into this Agreement as a signatory hereto or pursuant to a Subsidiary
Guarantee Agreement and to perform all of its obligations hereunder or
thereunder. Each Credit Document to which the Company or any Guarantor is a
party has been duly authorized, executed and delivered by the Company or such
Guarantor, as the case may be, and constitutes a valid and binding obligation
of the Company or such Guarantor, enforceable in accordance with its terms,
subject to general principles of equity and bankruptcy, reorganization,
insolvency and similar laws of general application to enforcement of creditors'
rights. No Credit Document, nor the performance or observance by the Company
or any Guarantor of any of the matters or things therein provided for,
contravenes any provision of law or any charter or by-law provision of the
Company or any Guarantor or any Contractual Obligation of or affecting the
Company or any Guarantor or any of their respective Properties which if
breached would reasonably be expected to have a Material Adverse Effect or
results in or requires the creation or imposition of any Lien on any of the
Properties or revenues of the Company or any Subsidiary.
Section 9.4. Financial Statements. All audited financial
statements heretofore delivered to the Banks showing historical performance of
the Company for each of the Company's fiscal years ending on or before December
31, 1995, and the unaudited interim financial statements heretofore delivered
to the Banks for the three fiscal quarters ending September 30, 1996, in each
case, have been prepared in accordance with generally accepted accounting
principles applied on a basis consistent, except as otherwise noted therein,
with that of the previous fiscal year. Each of such financial statements
fairly presents on a consolidated basis the financial condition of the Company
and its Subsidiaries as of the dates thereof and the results of operations for
the periods covered thereby. The Company and its Subsidiaries have no material
contingent liabilities other than those disclosed in such financial statements
referred to in this Section 9.4 or in comments or footnotes thereto, or in any
report supplementary thereto, heretofore furnished to the Banks. The Company
and its Subsidiaries have no
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material Outside Investments other than those disclosed in the most recent
Outside Investment List furnished to the Banks. Since December 31, 1995, there
has occurred no event which has had or would reasonably be expected to have a
Material Adverse Effect.
Section 9.5. No Litigation; No Labor Controversies. (a) There is
no litigation or governmental proceeding pending, or to the knowledge of the
Company or any Subsidiary threatened, against the Company or any Subsidiary
which would reasonably be expected to be adversely determined and which, if
adversely determined, would have a Material Adverse Effect.
(b) There are no labor controversies pending or, to the best
knowledge of the Company or any Subsidiary, threatened against the Company or
any Subsidiary which would be reasonably expected to have a Material Adverse
Effect.
Section 9.6. Taxes. The Company and its Subsidiaries have filed
all United States federal and state income tax returns, and all other material
tax returns, required to be filed and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company or any
Subsidiary, except (i) such taxes, if any, as are being contested in good faith
and for which adequate reserves have been provided and (ii) the taxes listed on
Schedule 9.6 hereto. The United States income tax returns of the Company and
the Subsidiaries, on a consolidated basis, have been audited by the Internal
Revenue Service through the fiscal year ended December 31, 1990. No tax liens
have been filed and no claims are being asserted concerning any such taxes,
which liens or claims are material to the financial condition of the Company
and its Subsidiaries on a consolidated basis taken as a whole. To the best of
the Company's knowledge, the charges, accruals and reserves on the books of the
Company and its Subsidiaries for any taxes or other governmental charges are
adequate.
Section 9.7. Approvals. No authorization, consent, license,
exemption, filing or registration with any court or governmental department,
agency or instrumentality, nor any approval or consent of the stockholders of
the Company or any Subsidiary or from any other Person, in either case which
has not yet been made or obtained, is necessary for the valid execution,
delivery or performance by the Company or any Subsidiary of any Credit Document
to which it is a party.
Section 9.8. ERISA. Except as set forth on Schedule 9.8 hereto,
(i) each Plan complies in all material respects with all applicable
requirements of law and regulations to the extent noncompliance therewith would
reasonably be expected to create a liability to the Company or any Subsidiary
aggregating in excess of $10,000,000, (ii) no Reportable Event has occurred
with respect to any Plan, (iii) neither the Company nor any of its Subsidiaries
has withdrawn from any Plan or initiated steps to do so, and (iv) no steps have
been taken to terminate any Plan except as disclosed in writing by the Company
to the Banks.
Section 9.9. Government Regulation. Neither the Company nor any
Subsidiary is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or 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", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
Section 9.10. Margin Stock. Neither the Company nor any Subsidiary
is engaged principally, or as one of its primary activities, in the business of
extending credit for the purpose of purchasing or carrying margin stock
("margin stock" to have the same meaning herein as in Regulation U of the Board
of Governors of the Federal Reserve System). The Company will not use the
proceeds of any Loan or Letter of Credit in a manner that violates any
provision of Regulation U or X of the Board of Governors of the Federal Reserve
System.
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Section 9.11. Licenses and Authorizations; Compliance with
Environmental and Health Laws. (a) The Company and each of its Subsidiaries
has all necessary licenses, permits and governmental authorizations to own and
operate its Properties and to carry on its business as currently conducted and
contemplated, except to the extent the failure to have such licenses, permits
or authorizations would not have a Material Adverse Effect.
(b) To the best of the Company's knowledge, the business and
operations of the Company and each Subsidiary comply in all respects with all
applicable Environmental and Health Laws, except where the failure to so comply
would not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any Subsidiary has given, nor is it
required to give, nor has it received, any notice, letter, citation, order,
warning, complaint, inquiry, claim or demand to or from any governmental entity
or in connection with any court proceeding which would reasonably be expected
to result in a Material Adverse Effect claiming that: (i) the Company or any
Subsidiary has violated, or is about to violate, any Environmental and Health
Law; (ii) there has been a release, or there is a threat of release, of
Hazardous Materials from the Company's or any Subsidiary's Property,
facilities, equipment or vehicles; (iii) the Company or any Subsidiary may be
or is liable, in whole or in part, for the costs of cleaning up, remediating or
responding to a release of Hazardous Materials; or (iv) any of the Company's or
any Subsidiary's property or assets are subject to a Lien in favor of any
governmental entity for any liability, costs or damages, under any
Environmental and Health Law arising from, or costs incurred by such
governmental entity in response to, a release of Hazardous Materials.
Section 9.12. Ownership of Property; Liens. Schedule 9.12 lists
all principal real property locations used as of the date hereof by the Company
or any Subsidiary in the conduct of their respective businesses. The Company
and each Subsidiary has good record and marketable title in fee simple to, or
valid leasehold interests in, all such real property, as specified in Schedule
9.12, and good title to or valid leasehold interests in all its other Property.
Section 9.13. No Burdensome Restrictions; Compliance with
Agreements. Neither the Company nor any Subsidiary is (a) party or subject to
any law, regulation, rule or order, or any Contractual Obligation that has a
Material Adverse Effect or (b) in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
agreement to which it is a party, which default has a Material Adverse Effect.
Section 9.14. Full Disclosure. All information heretofore
furnished by the Company or any Subsidiary to the Administrative Agent or any
Bank for purposes of or in connection with the Credit Documents or any
transaction contemplated thereby is, and all such information hereafter
furnished by the Company or any Subsidiary to the Administrative Agent or any
Bank will be, true and accurate in all material respects and not misleading on
the date as of which such information is stated or certified. Notwithstanding
the foregoing, the Administrative Agent and Banks acknowledge that as to any
projections furnished to them, the Company only represents that the same were
prepared on the basis of information and estimates the Company believed to be
reasonable.
Section 9.15. Quartet Acquisition. The Company has heretofore
delivered to the Banks a true and correct copy of the Quartet Purchase
Agreement and all exhibits thereto and the same has not been amended or
modified in any material respect, except for such amendments and modifications
for which true and correct copies have been furnished to the Banks. The
Company has all necessary corporate right, power
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and authority to consummate the Quartet Acquisition and the other transactions
contemplated by the Quartet Purchase Agreement and to perform and observe all
of its obligations thereunder. Neither the Company nor Quartet is in default
in any material respect in any of their respective representations or
obligations under the Quartet Purchase Agreement. To the Company's knowledge,
(i) the financial statements accompanying the annual audit report for Quartet
for its fiscal year ended December 31, 1995 have been prepared in accordance
with generally accepted accounting principles applied on a basis consistent,
except as otherwise noted therein, with that of the previous fiscal year and
(ii) such annual financial statements, and the interim unaudited balance sheet
of Quartet as of September 30, 1996 and income statement of Quartet for the
nine months then ended, in each case fairly present the financial condition of
Quartet as of the dates thereof and the results of operations for the periods
covered thereby.
SECTION 10. REPRESENTATIONS AND WARRANTIES OF BORROWING SUBSIDIARIES
By its execution and delivery of its Election to Participate, each
Borrowing Subsidiary severally represents and warrants to each Bank as to
itself as follows:
Section 10.1. Corporate Organization and Authority. Such Borrowing
Subsidiary is duly organized and existing in good standing under the laws of
the jurisdiction of its incorporation; has all necessary corporate power to
carry on its present business; and is duly licensed or qualified and in good
standing in each jurisdiction in which the nature of the business transacted by
it or the nature of the Property owned or leased by it makes such licensing,
qualification or good standing necessary and in which the failure to be so
licensed, qualified or in good standing would have a Material Adverse Effect.
Section 10.2. Corporate Authority and Validity of Obligations.
Such Borrowing Subsidiary has full right and authority to enter into this
Agreement, its Election to Participate and the other Credit Documents to which
it is a party, to make the borrowings herein provided for, to issue its Notes
in evidence thereof, to apply for the issuance of the Letters of Credit, and to
perform all of its obligations under the Credit Documents to which it is a
party. Each Credit Document to which such Borrowing Subsidiary is a party has
been duly authorized, executed and delivered by such Borrowing Subsidiary and
constitutes a valid and binding obligation of such Borrowing Subsidiary
enforceable in accordance with its terms, subject to general principles of
equity and bankruptcy, reorganization, insolvency and similar laws of general
application to enforcement of creditors' rights. No Credit Document, nor the
performance or observance by such Borrowing Subsidiary of any of the matters or
things therein provided for, contravenes any provision of law or of any charter
or by-law (or any comparable constituent document) of such Borrowing Subsidiary
or any Contractual Obligation of or affecting the Company or such Borrowing
Subsidiary or any of their respective Properties which if breached would
reasonably be expected to have a Material Adverse Effect or results in or
requires the creation or imposition of any Lien on any of the Properties or
revenues of the Company or any Borrowing Subsidiary.
SECTION 11. CONDITIONS PRECEDENT
The obligation of each Bank to make any Loan hereunder, or of an
Issuing Agent to issue, extend the expiration date (including by not giving
notice of non-renewal) of or increase the amount of any Letter of Credit, shall
be subject to the following conditions precedent:
Section 11.1. Initial Borrowing. Prior to the making of the
initial Credit Event hereunder:
(a) The Administrative Agent shall have received for each
Bank the favorable written opinions of Steven Rubin, general counsel
to the Company and each Domestic Subsidiary, and Sidley & Austin,
outside counsel to the Company and each Domestic Subsidiary, in
substantially the forms
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of Exhibits J-1 and J-2, respectively, hereto, and otherwise in form
and substance satisfactory to the Required Banks;
(b) The Administrative Agent shall have received for each
Bank (i) certified copies of resolutions of the Board of Directors of
the Company authorizing the execution, delivery and performance of
this Agreement and the Company's Notes, indicating the authorized
signers of this Agreement and the Company's Notes and all other
documents relating thereto and the specimen signatures of such signers
and (ii) copies of the Company's Certificate of Incorporation and
by-laws certified by the Secretary or other appropriate officer of the
Company together with a certificate of good standing certified by the
appropriate governmental officer in the jurisdiction of the Company's
incorporation;
(c) The Administrative Agent shall have received for each
Bank (i) certified copies of resolutions of the Board of Directors of
each Material Domestic Subsidiary authorizing the execution, delivery
and performance of this Agreement, indicating the authorized signers
of this Agreement and all other documents relating thereto and the
specimen signatures of such signers and (ii) copies of such Material
Domestic Subsidiary's Certificate or Articles of Incorporation and
by-laws certified by the Secretary or other appropriate officer of
such Material Domestic Subsidiary together with a certificate of good
standing certified by the appropriate governmental officer in the
jurisdiction of such Material Domestic Subsidiary's incorporation;
(d) The Administrative Agent shall have received for each
Bank such Bank's duly executed Committed Loan Note and Bid Note of the
Company dated the date hereof and otherwise in compliance with the
relevant provisions of Section 5.6 hereof and shall have received for
each Swing Line Bank its Swing Line Note of the Company dated the date
hereof and otherwise in compliance with the relevant provisions of
Section 5.6 hereof;
(e) Each Material Domestic Subsidiary as of the Effective
Date shall have executed this Agreement as a Guarantor;
(f) The Administrative Agent shall have received an
Outside Investment List completed as of the most recently completed
fiscal quarter of the Company and such an Outside Investment List
shall reflect Outside Investments as of such date to be not less than
the Base Outside Investment Amount; and
(g) The Administrative Agent shall have received from the
Company a list of the Authorized Representatives.
Section 11.2. All Credit Events. As of the time of each Credit
Event hereunder (including the initial Credit Event):
(a) In the case of a Borrowing, the Administrative Agent
shall have received the notice required by Section 1.4 hereof
(including any deemed notice under Section 1.4(c)) or 2.4 or 3.3 or
4.2 hereof, as applicable, and the Note of the relevant Borrower
required by Section 5.6 hereof for a Borrowing of such type; in the
case of the issuance of any Letter of Credit the relevant Issuing
Agent shall have received a duly completed Application for a Letter of
Credit; and in the case of an extension or increase in the amount of a
Letter of Credit, a written request therefor, in a form acceptable to
the relevant Issuing Agent;
(b) In the case of a Credit Event other than a Refunding
Borrowing, each of the representations and warranties of the Company
and Borrowing Subsidiaries set forth in Sections
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9 (other than the last sentence of Section 9.4) and 10 hereof shall be
and remain true and correct in all material respects as of said time,
except that if any such representation or warranty relates solely to
an earlier date it need only remain true as of such date;
(c) In the case of a Credit Event other than (i) a
Refunding Borrowing in Domestic Rate Loans and (ii) a Refunding
Borrowing in Eurocurrency Loans (refunding a Borrowing denominated in
an Alternative Currency) in the same Alternative Currency with an
Interest Period not exceeding one (1) calendar month, no Default or
Event of Default shall have occurred and be continuing or would occur
as a result of such Credit Event;
(d) In the case of a Credit Event (including a Refunding
Borrowing), after giving effect to such Credit Event, (i) neither the
Original Dollar Amount nor the U.S. Dollar Equivalent of the aggregate
principal amount of all Loans (whether Committed Loans, Swing Line
Loans or Bid Loans) and L/C Obligations outstanding hereunder shall
exceed the Revolving Credit Commitments then in effect, (ii) the
aggregate Original Dollar Amount of Committed L/C Obligations shall
not exceed the L/C Commitment then in effect, (iii) the aggregate
principal amount of Domestic Swing Line Loans outstanding hereunder
shall not exceed the lesser of the Unused Revolving Credit Commitments
and the Domestic Swing Line Commitment, (iv) neither the aggregate
Original Dollar Amount nor the U.S. Dollar Equivalent of the aggregate
principal amount of Multicurrency Swing Line Loans and Foreign Credit
L/C Obligations outstanding hereunder shall exceed the lesser of the
Unused Revolving Credit Commitments and the Multicurrency Swing Line
Commitment, and (v) the aggregate Original Dollar Amount of all Bid
Loans outstanding hereunder shall not exceed the lesser of the Unused
Revolving Credit Commitments and the Bid Loan Limit; and
(e) Such Borrowing shall not violate any order, judgment
or decree of any court or other authority or any provision of law or
regulation applicable to any Bank (including, without limitation,
Regulation U of the Board of Governors of the Federal Reserve System)
as then in effect.
Each request for a Borrowing hereunder shall be deemed to be a
representation and warranty by the Company on the date of such Borrowing as to
the facts specified in paragraphs (b), (c) and (d) of this Section 11.2.
Section 11.3. First Borrowing by Each Borrowing Subsidiary. In the
case of the first Borrowing by each Borrowing Subsidiary hereunder:
(a) The Administrative Agent shall have received an
opinion of counsel for such Borrowing Subsidiary acceptable to the
Administrative Agent, substantially in the form of Exhibit N hereto
(with appropriate assumptions, exceptions and qualifications
reasonably acceptable to the Administrative Agent reflecting the laws
of the relevant jurisdiction) and covering such additional matters as
the Required Banks may reasonably request; and
(b) The Administrative Agent shall have received for each
Bank (i) certified copies of resolutions of the Board of Directors (or
comparable authorizing documents) of such Borrowing Subsidiary
authorizing the execution, delivery and performance of this Agreement,
including the execution and delivery of an Election to Participate,
and the Borrowing Subsidiary's Notes, indicating the authorized
signers of this Agreement, through the Election to Participate, and
the Borrowing Subsidiary's Notes and all other documents relating
thereto and the specimen signatures of such signers and (ii) copies of
such Borrowing Subsidiary's charter and by-laws (or other
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comparable constituent documents) certified by the Secretary or other
appropriate officer of such Borrowing Subsidiary together with (if
available in the relevant jurisdiction) a certificate of good standing
(or similar document) certified by the appropriate governmental
officer in the jurisdiction of such Borrowing Subsidiary's
incorporation.
The documents referred to in this Section 11.3 shall be delivered to
the Administrative Agent by the Borrower no later than the date of the first
Borrowing by such Borrower. The opinion referred to in clause (a) above shall
be dated on or prior to the date of the first Borrowing by such Borrower
hereunder.
Section 11.4. Additional Conditions to Credit Events other than
Refunding Borrowings. In addition to the conditions set forth in Sections
11.1, 11.2 and 11.3 hereof, as of the time of each Credit Event other than a
Refunding Borrowing, the representations and warranties set forth in the last
sentence of Section 9.4 hereof shall be true as of said time, and the request
for such Credit Event, as referred to in Section 11.2(a), shall be and
constitute a representation and warranty as to such matters specified in the
last sentence of Section 9.4 hereof; provided, however, that the reference in
such sentence to financial statements shall be deemed a reference to the date
of the most recent annual financial statements submitted pursuant to Sections
12.6(a)(ii) hereof.
Section 11.5. Termination of Existing Credit Agreement. The
Company and each of the Banks hereunder that is a party to the $140,000,000
Credit Agreement dated as of July 25, 1995 (the "Existing Credit Agreement")
among General Binding Corporation, the Banks signatory thereto, and Harris
Trust and Savings Bank, as agent, consent to the termination of the
"Commitments" thereunder effective on the Effective Date, notwithstanding the
notice requirements for such termination set forth in Section 3.6 of the
Existing Credit Agreement. Because such Banks hereunder constitute the
"Required Banks" under the Existing Credit Agreement, the Existing Credit
Agreement shall terminate (but with this Agreement to constitute, for purposes
only of the Maryland IRB Indenture, an amendment and restatement in its
entirety of the Existing Credit Agreement) and except as set forth in the last
sentence of this Section, all amounts payable thereunder, including accrued and
unpaid facility fees payable under Section 4.1 thereof, shall be payable, and
the Facility Fee payable under Section 4.1 hereof shall begin to accrue, on the
Effective Date. If there are any "Eurodollar Loans" or "Bid Loans" (as such
terms are defined in the Existing Credit Agreement) outstanding on the
Effective Date which, if prepaid, would require the relevant Borrower to make a
payment under the funding indemnity in Section 3.7 of the Existing Credit
Agreement, then if and to that extent, such Eurocurrency and Bid Loans shall,
upon the initial Credit Event, for all purposes be deemed to be Stated Rate Bid
Loans outstanding hereunder made by the same Bank (but with an increase in the
interest rate on each such Loan of 1/4 of 1% per annum from and after the date
of the Quartet Acquisition and with interest (absent default) to be due and
payable thereon on the dates set forth in the Existing Credit Agreement).
SECTION 12. COVENANTS
The Company covenants and agrees that, so long as any Note or any L/C
Obligation is outstanding hereunder, or any Commitment is available to or in
use by any Borrower hereunder, except to the extent compliance in any case is
waived in writing by the Required Banks:
Section 12.1. Corporate Existence; Subsidiaries. The Company
shall, and shall cause each of its Subsidiaries to, preserve and maintain its
corporate existence, subject to the provisions of Section 12.12 hereof. Within
ten (10) days after establishing or acquiring any Material Domestic Subsidiary
or any Domestic Subsidiary becoming a Material Domestic Subsidiary, unless the
Required Banks
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otherwise agree or the Company elects otherwise as set forth in the immediately
following sentence, the Company shall (i) cause such Material Domestic
Subsidiary to execute a Subsidiary Guarantee Agreement and (ii) cause such
Material Domestic Subsidiary to deliver documentation similar to that described
in Section 11.1(a) through (c) relating to the authorization for, execution and
delivery of, and validity of such Material Domestic Subsidiary's obligations as
a Guarantor hereunder and under its Subsidiary Guarantee Agreement in form and
substance satisfactory to the Required Banks. Notwithstanding anything in the
immediately preceding sentence to the contrary, the Company need not cause a
Material Domestic Subsidiary to provide a Subsidiary Guarantee Agreement and
otherwise comply with such sentence if within such ten (10) day period, the
Company so requests the Administrative Agent (which shall promptly inform the
Banks) that such Material Domestic Subsidiary not be a Guarantor and no Default
or Event of Default has occurred and is continuing (it being understood that,
among other things, the Company's Investments in such Guarantor shall thereupon
become Outside Investments subject to the limitations of Section 12.14(h)
hereof). If concurrent with the closing of any sale or other disposition of a
Guarantor (other than the Company) permitted by Section 12.12 hereof, the
Company or such Guarantor fully pays all Loans (if any) made to such Guarantor
and the Company pays or assumes in a manner acceptable to the Banks the
liability for all L/C Obligations of such Guarantor and the Company requests
the Administrative Agent (which shall promptly inform the Banks) that such
Guarantor be released from its Obligations under its Subsidiary Guarantee
Agreement and no Default or Event of Default has occurred and is continuing,
the Banks will so release such Guarantor (it being understood and agreed that
any Borrowing Subsidiary shall, as provided in Section 5.10(a) hereof, cease to
be a Borrower hereunder upon ceasing to be a Wholly-Owned Subsidiary).
Section 12.2. Maintenance. The Company will maintain, preserve and
keep its plants, properties and equipment deemed by it necessary to the proper
conduct of its business in reasonably good repair, working order and condition
and will from time to time make all reasonably necessary repairs, renewals,
replacements, additions and betterments thereto so that at all times such
plants, properties and equipment shall be reasonably preserved and maintained,
and the Company will cause each of its Subsidiaries to do so in respect of
Property owned or used by it; provided, however, that nothing in this Section
12.2 shall prevent the Company or a Subsidiary from discontinuing the operation
or maintenance of any such Properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of the business of the
Company and its Subsidiaries taken as a whole and not disadvantageous to the
Banks or the holders of the Notes.
Section 12.3. Taxes. The Company will duly pay and discharge, and
will cause each of its Subsidiaries duly to pay and discharge, all federal and
state income taxes and other material taxes, rates, assessments, fees and
governmental charges upon or against it or against its Properties, in each case
before the same becomes delinquent and before penalties accrue thereon, unless
and to the extent that the same is being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP have been provided therefor on
the books of the Company.
Section 12.4. ERISA. The Company will, and will cause each of its
Subsidiaries to, promptly pay and discharge all obligations and liabilities
arising under ERISA of a character which if unpaid or unperformed might result
in the imposition of a Lien against any of its properties or assets and will
promptly notify the Administrative Agent of (i) the occurrence of any
reportable event (as defined in ERISA) affecting a Plan, other than any such
event of which the PBGC has waived notice by regulation,
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(ii) receipt of any notice from PBGC of its intention to seek termination of
any Plan or appointment of a trustee therefor, (iii) its or any of its
Subsidiaries' intention to terminate or withdraw from any Plan, and (iv) the
occurrence of any event affecting any Plan which could result in the incurrence
by the Company or any of its Subsidiaries of any material liability, fine or
penalty, or any material increase in the contingent liability of the Company or
any of its Subsidiaries under any post-retirement Welfare Plan benefit. The
Administrative Agent will promptly distribute to each Bank any notice it
receives from the Company pursuant to this Section 12.4.
Section 12.5. Insurance. The Company will insure, and keep
insured, and will cause each of its Subsidiaries to insure, and keep insured,
with good and responsible insurance companies, all insurable Property owned by
it of a character usually insured by companies similarly situated and operating
like Property. To the extent reasonably and in good faith deemed appropriate
by the Company, the Company will also insure, and cause each of its
Subsidiaries to insure, employers' and public and product liability risks with
good and responsible insurance companies. The Company will upon request of any
Bank furnish to such Bank a summary setting forth the nature and extent of the
insurance maintained pursuant to this Section 12.5.
Section 12.6. Financial Reports and Other Information. (a) The
Company will maintain a system of accounting in accordance with GAAP and will
furnish to the Banks and their respective duly authorized representatives such
information respecting the business and financial condition of the Company and
its Subsidiaries as any Bank may reasonably request; and without any request,
the Company will furnish each of the following to each Bank:
(i) Within 90 days after the close of each of its fiscal
years, an audit report certified by independent certified public
accountants acceptable to the Required Banks, unqualified as to scope
or going concern, prepared in accordance with GAAP on a consolidated
basis for itself and the Subsidiaries, including balance sheets as of
the end of such period, related profit and loss and reconciliation of
surplus statements, and a statement of cash flows, accompanied by a
certificate of said accountants that, in the course of their
examination necessary for their certification of the foregoing, they
have obtained no knowledge of any Default or Event of Default or if,
in the opinion of such accountants, any Default or Event of Default
shall exist, stating the nature and status thereof;
(ii) Within 60 days after the close of each quarterly
period of each of its fiscal years (except for the last such quarterly
period in each fiscal year), for itself and the Subsidiaries,
consolidated unaudited balance sheets as at the close of each such
period and consolidated profit and loss and reconciliation of surplus
statements and a statement of cash flows in accordance with GAAP for
the period from the beginning of such fiscal year to the end of such
quarter, all certified by its chief financial officer;
(iii) Within one year after the close of each fiscal year,
a statement of the Unfunded Vested Liabilities of each Single Employer
Plan, certified as correct by an actuary enrolled under ERISA;
(iv) As soon as possible and in any event within 10 days
after the Company knows that any Reportable Event has occurred with
respect to any Plan, a statement, signed by the chief financial
officer of the Company, describing said Reportable Event and the
action the Company proposes to take with respect thereto;
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(v) As soon as possible and in any event within 10 days
after any new Domestic Subsidiary is created or acquired, an updated
Schedule 9.2 showing such Domestic Subsidiary;
(vi) As soon as possible and in any event no later than 10
days following the close of each calendar quarter in which any new
Foreign Subsidiary is created or acquired, an updated Schedule 9.2
showing such Foreign Subsidiary; and
(vii) Promptly upon their becoming available, one copy of
each financial statement, report, notice or proxy statement sent by
the Company to stockholders generally and of each regular or periodic
report, registration statement or prospectus filed by the Company or
any Subsidiary with any securities exchange or the Securities and
Exchange Commission or any successor agency, and copies of any orders
in any proceedings to which the Company or any of its Subsidiaries is
a party, issued by any governmental agency, federal or state, having
jurisdiction over the Company or any of its Subsidiaries, which would
reasonably be expected to have a Material Adverse Effect.
(b) Each financial statement furnished to the Banks pursuant to
subsection (i) or (ii) of this Section 12.6 shall be accompanied by (A) a
written certificate signed by the Company's chief financial officer to the
effect that (i) no Default or Event of Default has occurred during the period
covered by such statements or, if any such Default or Event of Default has
occurred during such period, setting forth a description of such Default or
Event of Default and specifying the action, if any, taken or to be taken by the
Company to remedy the same, (ii) the representations and warranties contained
in Section 9 hereof are true and correct in all material respects as though
made on the date of such certificate (other than those representations (x) made
solely as of an earlier date, which need only remain true as of such date (y)
contained in Section 9.5 or (z) contained in the last sentence of Section 9.4)
taking into account any amendments to such Section (including without
limitation any amendments to the Schedules referenced therein) made after the
date of this Agreement in accordance with its provisions and except as
otherwise described therein, (B) a Compliance Certificate showing the Company's
compliance with the covenants set forth in Sections 12.14(h), 12.15, 12.16,
12.17, 12.18 and 12.21 hereof and (C) an Outside Investment List prepared as of
the close of the relevant fiscal quarter.
(c) The Company will promptly (and in any event within three
Business Days after a Responsible Officer of the Company has knowledge thereof)
give notice to the Administrative Agent and each Bank:
(i) of the occurrence of any Change of Control Event,
Default or Event of Default;
(ii) of any default or event of default under any
Contractual Obligation of the Company or any of its Subsidiaries,
except for any such default or event of default which is not
reasonably expected to have a Material Adverse Effect;
(iii) of any event which has or would reasonably be
expected to have a Material Adverse Effect;
(iv) of any litigation or governmental proceeding of the
type described in Section 9.5 hereof and of any notice of alleged
noncompliance with any laws or regulations of the type described in
Section 9.11 hereof which is reasonably expected to have a Material
Adverse Effect; and
(v) Within 30 days of becoming aware of such occurrence,
notice of any occurrence of the type described in Section 13.1(f) or
(g) hereof with respect to any Subsidiary that is not a Significant
Subsidiary.
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Section 12.7. Bank Inspection Rights. Upon reasonable notice from
the Administrative Agent, the Company will permit the Administrative Agent (and
such Persons as the Administrative Agent may designate) or any Bank during
normal business hours to visit and inspect, under the Company's guidance, any
of the properties of the Company or any of its Subsidiaries, to examine all of
their books of account, records, reports and other papers, to make copies and
extracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective officers, employees and, with the consent of
Company (which consent shall not be unreasonably withheld), independent public
accountants (and by this provision the Company authorizes such accountants to
discuss with the Banks (and such Persons as any Bank may reasonably designate)
the finances and affairs of the Company and its Subsidiaries) all at such
reasonable times and as often as may be reasonably requested; provided,
however, that except upon the occurrence and during the continuation of any
Default or Event of Default, the Company shall not be liable for the costs and
expenses of such visits and inspections, whether conducted by the
Administrative Agent, the Banks or their designees. Nothing contained in this
Section 12.7 shall be construed as an express or implied waiver or forfeiture
by the Company or any Subsidiary of any accountant-client or other privilege
belonging to or accruing to the Company and all information disclosed to any
Bank pursuant to this Section or inspected by any such Bank shall be subject to
the provisions of Section 17.23 of this Agreement.
Section 12.8. Conduct of Business. Neither the Company nor any
Subsidiary will engage in any line of business if, as a result, the general
nature of the business of the Company and its Subsidiaries taken as a whole
would be substantially changed from that conducted on the date hereof.
Section 12.9. Liens. The Company will not, and will not permit any
of its Subsidiaries to, create, incur, permit to exist or to be incurred any
Lien of any kind on any Property owned by the Company or any Subsidiary;
provided, however, that this Section 12.9 shall not apply to nor operate to
prevent:
(a) Liens arising by operation of law in connection with
worker's compensation, unemployment insurance, social security
obligations, taxes, assessments, statutory obligations or other
similar charges, good faith deposits, pledges or Liens in connection
with bids, tenders, contracts or leases to which the Company or any
Subsidiary is a party (other than contracts for borrowed money), or
other deposits required to be made in the ordinary course of business;
provided that in each case the obligation secured is not more than 30
days overdue or, if more than 30 days overdue, is being contested in
good faith by appropriate proceedings which prevent enforcement of the
matter under contest and for which reserves in conformity with GAAP
have been provided on the books of the Company; further provided,
however, that in no event is any action taken to foreclose on or
repossess or otherwise realize on the Property subject to such Lien;
(b) mechanics', workmen's, materialmen's, landlords',
carriers', repairmens' or other similar Liens arising in the ordinary
course of business (or deposits to obtain the release of such Liens)
securing obligations not more than 60 days overdue or, if more than 60
days overdue, being contested in good faith by appropriate proceedings
which prevent enforcement of the matter under contest and for which
reserves in conformity with GAAP have been provided on the books of
the Company; provided, however, that in no event is any action taken
to foreclose on or repossess or otherwise realize on the Property
subject to such Lien;
(c) Liens for taxes or assessments or other government
charges or levies on the Company or any Subsidiary of the Company or
their respective Properties, not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being contested in
good faith by
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appropriate proceedings and for which reserves in conformity with GAAP
have been provided on the books of the Company;
(d) Liens arising out of judgments or awards against the
Company or any Subsidiary of the Company, or in connection with surety
or appeal bonds in connection with bonding such judgments or awards,
the time for appeal from which or petition for rehearing of which
shall not have expired or with respect to which the Company or such
Subsidiary shall be prosecuting an appeal or proceeding for review,
and with respect to which it shall have obtained a stay of execution
pending such appeal or proceeding for review; provided that the
aggregate amount of liabilities (including interest and penalties, if
any) of the Company and its Subsidiaries secured by such Liens shall
not exceed $10,000,000 at any one time outstanding;
(e) Survey exceptions or encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and
other similar purposes, or rights of lessors or sublessors of real
property leased by the Company or any Subsidiary, or zoning or other
restrictions as to the use of real properties which are necessary for
the conduct of the activities of the Company and any Subsidiary of the
Company or which customarily exist on properties of corporations
engaged in similar activities and similarly situated and which do not
in any event materially impair their use in the operation of the
business of the Company or any Subsidiary of the Company;
(f) any Lien existing on any Property (other than
receivables and inventory) prior to the acquisition thereof by the
Company or any Subsidiary, provided that such Lien is not created in
contemplation of or in connection with such acquisition and the
aggregate principal amount of Indebtedness at any time outstanding,
secured by such Liens, shall not exceed $15,000,000;
(g) Any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in the foregoing subsection (f), provided, however, that
the principal amount of Indebtedness secured thereby shall not exceed
the principal amount of Indebtedness so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to the Property which was subject to the
Lien so extended, renewed or replaced; and
(h) Liens not otherwise permitted under this Section 12.9
on Property (other than receivables and inventory) securing
Indebtedness that, when combined with Capitalized Lease Obligations
permitted under Section 12.11, is in an aggregate principal amount not
exceeding 10% of Consolidated Total Assets as of the close of the most
recent fiscal quarter of the Company;
provided, further, that no Lien permitted under subsections (b), (e), (f), (g)
and (h) above may apply to any capital stock of any Subsidiary.
Section 12.10. Use of Proceeds; Regulation U. The proceeds of each
Borrowing, and the credit provided by Letters of Credit, will be used by the
Company for working capital, repayment of other Debt, and other general
corporate purposes including Acquisitions and other Investments permitted by
Section 12.14 hereof. The Company will not use any part of the proceeds of any
of the Borrowings or of the Letters of Credit directly or indirectly to
purchase or carry any margin stock (as defined in Section 9.10 hereof) or to
extend credit to others for the purpose of purchasing or carrying any such
margin stock. At no time will margin stock (as defined in Section 9.10 hereof)
constitute 25% or more of the assets of the Company or of the Company and its
Subsidiaries, taken as a whole.
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Section 12.11. Sales and Leasebacks. The Company will not, nor will
it permit any Subsidiary to, enter into any arrangement with any bank,
insurance company or other lender or investor providing for the leasing by the
Company or any such Subsidiary of any Property theretofore owned by it and
which has been or is to be sold or transferred by such owner to such lender or
investor, except to the extent the aggregate principal amount of Capitalized
Lease Obligations under such leases plus the outstanding principal amount of
Indebtedness secured by Liens permitted by Section 12.9(h) (and not separately
permitted by other provisions of Section 12.9) does not at any time exceed 10%
of Consolidated Total Assets as of the close of the most recent fiscal quarter
of the Company.
Section 12.12. Mergers, Consolidations and Sales of Assets. (a) The
Company will not, and will not permit any of its Subsidiaries to, (i)
consolidate with or be a party to a merger with any other Person or (ii) sell,
lease or otherwise dispose of all or a "substantial part" of the consolidated
assets of the Company and its Subsidiaries; provided, however, that:
(1) any Subsidiary of the Company may merge or
consolidate with or into or sell, lease or otherwise convey all or a
substantial part of its assets to the Company, any Wholly-Owned
Subsidiary or any Subsidiary of which the Company or any Wholly-Owned
Subsidiary holds at least the same percentage equity ownership after
any such event as it did immediately prior to the consummation of such
event; provided that in any such merger or consolidation involving the
Company, the Company shall be the surviving or continuing corporation;
and
(2) The Company or any Subsidiary of the Company may
consolidate or merge with any other Person if the Company or such
Subsidiary or, in the case of such a transaction involving the
Company, the Company is the surviving or continuing corporation and at
the time of such consolidation or merger, and after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing.
As used in this Section 12.12, a sale, lease, transfer or disposition of assets
shall be deemed to be of a "substantial part" of the consolidated assets of the
Company and its Subsidiaries if the fair market value of such assets, when
added to the fair market value of all other assets sold, leased, transferred or
disposed of by the Company and its Subsidiaries (other than inventory in the
ordinary course of business) during the 12-month period ending with the date of
such sale exceeds 10% of Consolidated Total Assets determined as of the last
day of the fiscal quarter most recently completed before the date of such sale;
provided that during any 12-month period the Company and its Subsidiaries may
sell, lease, transfer or otherwise dispose of up to 20% of Consolidated Total
Assets determined as of the last day of the fiscal quarter most recently
completed before the date of such sale if (i) all such assets sold, leased,
transferred or otherwise disposed of in excess of 10% of Consolidated Total
Assets at the end of the fiscal quarter most recently completed before the date
of such sale are so disposed of at fair market value as determined by the Board
of Directors of the Company, (ii) the proceeds from such disposition are
received in cash or cash equivalents or in Property that is readily usable in
the business of the Company and its subsidiaries or transferable in exchange
for Property that is readily usable in the business of the Company and its
Subsidiaries (provided that notes may be taken as deferred consideration for
such sales or other dispositions provided the aggregate principal amount
thereof does not exceed $10,000,000 at any one time outstanding), and (iii) all
such proceeds from such disposition are reinvested into the business of the
Company and its Subsidiaries and not used to pay dividends or make any other
distributions to shareholders.
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(b) The Company will not sell, transfer or otherwise dispose of,
and will not permit any Subsidiary to issue, sell, transfer or otherwise
dispose of, any shares of stock of any class (including as "stock" for purposes
of this Section, any warrants, rights or options to purchase or otherwise
acquire stock or other securities exchangeable for or convertible into stock)
of any Borrowing Subsidiary, (x) except to the Company or a Wholly-Owned
Subsidiary of the Company and (y) except for the purpose of qualifying
directors and (z) except for any such sale or other disposition not otherwise
prohibited by this Section 12.12 if the Company or such Borrowing Subsidiary
fully pays all Loans (if any) made to such Borrowing Subsidiary and the Company
pays or assumes in a manner acceptable to the Banks the liability for all L/C
Obligations of such Borrowing Subsidiary (it being understood and agreed that
any Borrowing Subsidiary shall, as provided in Section 5.10(a) hereof, cease to
be a Borrower hereunder upon ceasing to be a Wholly-Owned Subsidiary).
Section 12.13. Use of Property and Facilities; Environmental and
Health and Safety Laws. The Company will, and will cause each of its
Subsidiaries to, comply with the requirements of all Environmental and Health
Laws applicable to or pertaining to the Properties or business operations of
the Company or any Subsidiary to the extent that noncompliance would reasonably
be expected to have a Material Adverse Effect. Without limiting the foregoing,
the Company will not, and will not permit any Person to, except in accordance
with applicable law, dispose of any Hazardous Material into, onto or upon any
real property owned or operated by the Company or any of its Subsidiaries if
such disposal would reasonably be expected to have a Material Adverse Effect.
Section 12.14. Investments, Acquisitions, Loans, Advances and
Guaranties. The Company will not, nor will it permit any Subsidiary to,
directly or indirectly, make, retain or have outstanding any investments
(whether through purchase of stock or obligations or otherwise) in, or loans or
advances to, any other Person, or effect any Acquisition, or be or become
liable as endorser, guarantor, surety or otherwise (such as liability as a
general partner) for any debt, obligation or undertaking of any other Person,
or otherwise agree to provide funds for payment of the obligations of another,
or supply funds thereto or invest therein or otherwise assure a creditor of
another against loss, or apply for or become liable to the issuer of a letter
of credit which supports an obligation of another (cumulatively, all of the
foregoing, being "Investments"); provided, however, that the foregoing
provisions shall not apply to nor operate to prevent:
(a) Permitted Liquid Investments;
(b) ownership of stock, obligations or securities
received in settlement of debts (created in the ordinary course of
business) owing to the Company or any Subsidiary;
(c) endorsements of negotiable instruments for collection
in the ordinary course of business;
(d) loans and advances to employees in the ordinary
course of business;
(e) Acquisitions of all or any part of the assets or
business of any other Person or division thereof engaged in a line of
business related to that of the Company and its Subsidiaries, or of a
majority of the Voting Stock of such a Person, or of equity interests
in any partnership, joint venture or corporation which does not become
a Subsidiary as a result of such Acquisition but is engaged (or
promptly after such Acquisition will be engaged) in a line of business
related to that of the Company and its Subsidiaries, provided that (i)
no Default or Event of Default exists or would exist after giving
effect to such Acquisition, (ii) the Board of Directors or other
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governing body of such Person whose Property, or Voting Stock or other
interests in which, are being so acquired has approved the terms of
such Acquisition, (iii) the Company can demonstrate that on a proforma
basis after giving effect to such Acquisition it will continue to
comply through the Revolving Credit Termination Date with all the
terms and conditions of the Credit Documents and (iv) the Investments
made to effect such Acquisition are permitted by the other subsections
of this Section 12.14;
(f) Obligations of Guarantors hereunder;
(g) Investments (as defined above in this Section) in
Guarantors not otherwise permitted by this Section 12.14, provided
that Investments in each Guarantor that only becomes a Subsidiary and
Guarantor in each case through such Investment must also comply with
the provisions of Section 12.14(e) above; and
(h) Investments (as defined above in this Section) not
otherwise permitted by this Section 12.14, provided that (i) each such
Investment when made, when taken together with all other Outside
Investments then outstanding, does not exceed the sum of (x) the Base
Outside Investment Amount and (y) the Incremental Outside Investment
Amount and (ii) Investments in Subsidiaries that only become
Subsidiaries through such Investment, and Acquisitions of other
Persons, must also comply with the provisions of Section 12.14(e)
above.
In determining the amount of investments, acquisitions, loans,
advances and guarantees permitted under this Section 12.14, investments and
acquisitions shall always be valued at the net book value thereof (without
giving effect to (x) any subsequent market appreciation or depreciation therein
or (y) any non-cash adjustments), loans and advances shall be taken at the
principal amount thereof then remaining unpaid, and guarantees shall be taken
at the amount of obligations guaranteed thereby.
Section 12.15. Consolidated Shareholder's Equity. The Company will,
as of the close of each fiscal quarter of the Company, maintain a Consolidated
Shareholder's Equity of not less than the Minimum Required Amount. For
purposes of this section, the "Minimum Required Amount" shall mean $134,114,000
and shall increase (but not decrease) as of December 31, 1996 and each fiscal
quarter thereafter, by an amount equal to 50% of the cumulative positive
Consolidated Net Income earned for the fiscal quarter of the Company then ended
(but with each such fiscal quarter taken separately, without reduction in the
Minimum Required Amount for any negative Consolidated Net Income for any fiscal
quarter). For purposes of this Section, Consolidated Shareholder's Equity
shall be determined exclusive of changes from and after September 30, 1996 in
the foreign currency translation adjustment under Financial Accounting
Standards Board Statement No. 52 as in effect from time to time.
Section 12.16. Current Ratio. The Company will at all times
maintain the Consolidated Current Ratio of not less than 1.25 to 1.00.
Section 12.17. Leverage Ratio. The Company shall not, as of the
close of any fiscal quarter of the Company set forth below, permit the Leverage
Ratio to be more than the amount set forth to the right of such quarter:
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As of Close of Each Fiscal Quarter:
Leverage Ratio Shall
From and Including To and Including Not be More Than:
------------------ ---------------- -----------------
4th fiscal quarter of 3rd fiscal quarter of 4.00 to 1
fiscal year 1996 fiscal year 1997
4th fiscal quarter of 3rd fiscal quarter of 3.50 to 1
fiscal year 1997 fiscal year 1998
4th fiscal quarter 3rd fiscal quarter of 3.00 to 1
of fiscal year 1998 fiscal year 1999
4th fiscal quarter of 3rd fiscal quarter of 2.75 to 1
fiscal year 1999 2000 fiscal year
4th fiscal quarter of each fiscal quarter 2.50 to 1
fiscal year 2000 thereafter
Section 12.18. Interest Coverage Ratio. The Company shall not, as
of the close of any fiscal quarter of the Company set forth below, permit the
Interest Coverage Ratio to be less than the amount set forth to the right of
such period:
As of Close of Each Fiscal Quarter:
Interest Coverage Ratio Shall
From and Including To and Including Not be Less Than:
------------------ ---------------- -----------------
4th fiscal quarter of 3rd fiscal quarter of 2.50 to 1
fiscal year 1996 fiscal year 1998
4th fiscal quarter of each fiscal quarter 3.50 to 1
fiscal year 1998 thereafter
Section 12.19. Dividends and Other Shareholder Distributions. The
Company shall only declare or pay any dividends or make a distribution of any
kind (including by redemption or purchase) on its outstanding capital stock, if
no Event of Default exists prior to or would result after giving effect to such
action.
Section 12.20. Company as Domestic Operation. Notwithstanding
Sections 12.12 and 12.14 or any other provision of this Agreement, the assets
owned directly by the Company and its Wholly-Owned
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Subsidiaries which are Domestic Subsidiaries (without regard to their ownership
of equity interests in Subsidiaries) shall at all times constitute the majority
of the total consolidated assets of the Company and its Subsidiaries.
Section 12.21. Subsidiary Debt. No Domestic Subsidiary shall have
outstanding at any time any Debt other than:
(a) Debt of Wholly-Owned Domestic Subsidiaries to the
Company;
(b) Obligations as Guarantors hereunder; and
(c) Debt of Domestic Subsidiaries not otherwise permitted
by this Section aggregating not more than 5% of Consolidated Total
Assets as of the last day of the most recently completed fiscal
quarter of the Company.
Section 12.22. Transactions with Affiliates. Except as disclosed in
the Company's periodic reports to the Securities and Exchange Commission, the
Company will not, and will not permit any of its Subsidiaries to, enter into or
be a party to any material transaction or arrangement (where "material" means
material for the Company and its Subsidiaries taken as a whole) with any
Affiliate of such Person (other than the Company or any of its Subsidiaries),
including without limitation, the purchase from, sale to or exchange of
Property with, any merger or consolidation with or into, or the rendering of
any service by or for, any Affiliate, and except in the ordinary course of and
pursuant to the reasonable requirements of the Company's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Company or
such Subsidiary than would obtain in a comparable arm's-length transaction with
a Person other than an Affiliate to the extent that any such transaction or
arrangement would have a Material Adverse Effect.
Section 12.23. Compliance with Laws. Without limiting any of the
other covenants of the Company in this Section 12, the Company will, and will
cause each of its Subsidiaries to, conduct its business, and otherwise be, in
compliance with all applicable laws, regulations, ordinances and orders of any
governmental or judicial authorities; provided, however, that neither the
Company nor any Subsidiary of the Company shall be required to comply with any
such law, regulation, ordinance or order if (x) it shall be contesting such
law, regulation, ordinance or order in good faith by appropriate proceedings
and reserves in conformity with GAAP have been provided therefor on the books
of the Company or such Subsidiary, as the case may be, or (y) the failure to
comply therewith is not reasonably expected to have a Material Adverse Effect.
SECTION 13. EVENTS OF DEFAULT AND REMEDIES
Section 13.1. Events of Default. Any one or more of the following
shall constitute an Event of Default:
(a) default (x) in the payment when due of the principal
amount of any Loan or of any Reimbursement Obligation or (y) for a
period of ten (10) days in the payment when due of interest or of any
other Obligation;
(b) default by the Company or any Subsidiary in the
observance or performance of any covenant set forth in Sections 12.1,
12.6(c)(i), 12.9 through 12.12. or 12.14 through 12.22 hereof;
(c) default by the Company or any Subsidiary in the
observance or performance of any provision hereof or of any other
Credit Document not mentioned in (a) or (b) above, which is not
remedied within thirty (30) days after notice thereof to the Company
by the Administrative Agent;
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(d) (i) failure to pay when due Debt of the Company or
any Subsidiary in an aggregate principal amount of $10,000,000 or more
for the Company and its Subsidiaries, taken together, or (ii) default
shall occur under one or more indentures, agreements or other
instruments under which any Debt of the Company or any Subsidiary in
an aggregate principal amount of $10,000,000 or more for the Company
and its Subsidiaries, taken together, may be issued or created and
such default shall continue for a period of time sufficient to permit
the holder or beneficiary of such Debt or a trustee therefor to cause
the acceleration of the maturity of any such Debt or any mandatory
unscheduled prepayment, purchase or funding thereof;
(e) any representation or warranty made herein or in any
other Credit Document by the Company or any Subsidiary, or in any
statement or certificate furnished pursuant hereto or pursuant to any
other Credit Document by the Company or any Subsidiary, or in
connection with any Credit Document, proves untrue in any material
respect as of the date of the issuance or making, or deemed making or
issuance, thereof;
(f) the Company or any Significant Subsidiary shall (i)
have entered involuntarily against it an order for relief under the
United States Bankruptcy Code, as amended, or any analogous action is
taken under any other applicable law of any country or any political
subdivision thereof in each case relating to bankruptcy or insolvency,
(ii) fail to pay, or admit in writing its inability to pay, its debts
generally as they become due, (iii) make an assignment for the benefit
of creditors, (iv) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any substantial part of its Property, (v)
institute any proceeding seeking to have entered against it an order
for relief under the United States Bankruptcy Code, as amended, or any
analogous law of any country or any political subdivision thereof in
each case to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such
proceeding filed against it, (vi) take any corporate action (such as
the passage by the Company's board of directors of a resolution)
authorizing any matter described in parts (i)-(v) above, or (vii) fail
to contest in good faith any appointment or proceeding described in
Section 13.1(g) hereof;
(g) a custodian, receiver, trustee, examiner, liquidator
or similar official shall be appointed for the Company or any
Significant Subsidiary or any substantial part of any of their
Property, or a proceeding described in Section 13.1(f)(v) shall be
instituted against the Company or any Significant Subsidiary, and such
appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of forty-five (45) days;
(h) the Company or any Subsidiary shall fail within
thirty (30) days to pay, bond or otherwise discharge any judgment or
order for the payment of money (i) in an aggregate amount for the
Company and its Subsidiaries, taken together, equal to or greater than
$10,000,000 in excess of the amount covered by insurance from an
insurer who has acknowledged its liability thereon and (ii) not stayed
on appeal or otherwise being appropriately contested in good faith in
a manner that stays execution thereon;
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(i) the Company or any other member of the Controlled
Group shall fail to pay when due an amount or amounts aggregating in
excess of $10,000,000 which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to
terminate a Plan or Plans having aggregate Unfunded Vested Liabilities
in excess of $10,000,000 (collectively, a "Material Plan") shall be
filed under Title IV of ERISA by the Company or any Subsidiary or any
other member of the Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate or to cause a trustee to be
appointed to administer any Material Plan or a proceeding shall be
instituted by a fiduciary of any Material Plan against the Company or
any other member of the Controlled Group to enforce Section 515 or
4219(c)(5) of ERISA and such proceeding shall not have been dismissed
within thirty (30) days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated;
(j) the Company or any Subsidiary, or any Person acting
on behalf of the Company or a Subsidiary, or any governmental
authority challenges the validity of any Credit Document or the
Company's or a Subsidiary's obligations thereunder or any Credit
Document ceases to be in full force and effect (other than by reason
of action taken by the Administrative Agent or the Banks); or
(k) a Change of Control Event shall occur.
Section 13.2. Non-Bankruptcy Defaults. When any Event of Default
other than those described in subsections (f) or (g) of Section 13.1 hereof has
occurred and is continuing, the Administrative Agent shall, by written notice
to the Company: (a) if so directed by the Required Banks, terminate the
remaining Commitments and all other obligations of the Banks hereunder on the
date stated in such notice (which may be the date thereof); (b) if so directed
by the Required Banks, declare the principal of and the accrued interest on all
outstanding Notes to be forthwith due and payable and thereupon all outstanding
Notes, including both principal and interest thereon, shall be and become
immediately due and payable together with all other amounts payable under the
Credit Documents without further demand, presentment, protest or notice of any
kind; and (c) if so directed by the Required Banks, demand that the Company and
(subject to Section 17.19) the other Borrowers immediately pay to the
Administrative Agent, subject to Section 13.4, the full amount then available
for drawing under each or any Letter of Credit, and the Company and such
Borrowers agree to immediately make such payment and acknowledge and agree that
the Banks would not have an adequate remedy at law for failure by the Company
and such Borrowers to honor any such demand and that the Administrative Agent,
for the benefit of the Banks, shall have the right to require the Company and
such Borrowers to specifically perform such undertaking whether or not any
drawings or other demands for payment have been made under any Letter of
Credit. The Administrative Agent, after giving notice to the Company pursuant
to Section 13.1(c) or this Section 13.2, shall also promptly send a copy of
such notice to the other Banks, but the failure to do so shall not impair or
annul the effect of such notice.
Section 13.3. Bankruptcy Defaults. When any Event of Default
described in subsections (f) or (g) of Section 13.1 hereof has occurred and is
continuing, then all outstanding Notes shall immediately become due and payable
together with all other amounts payable under the Credit Documents without
presentment, demand, protest or notice of any kind, the obligation of the Banks
to extend further credit pursuant to any of the terms hereof shall immediately
terminate and the Company and (subject to Section 17.19) the other Borrowers
shall immediately pay to the Administrative Agent, subject to Section 13.4, the
full amount then available for drawing under all outstanding Letters of Credit,
the Company and such
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Borrowers acknowledging that the Banks would not have an adequate remedy at law
for failure by the Company and such Borrowers to honor any such demand and that
the Banks, and the Administrative Agent on their behalf, shall have the right
to require the Company and such Borrowers to specifically perform such
undertaking whether or not any draws or other demands for payment have been
made under any of the Letters of Credit.
Section 13.4. Collateral for Undrawn Letters of Credit. (a) If the
payment or prepayment of the amount available for drawing under any or all
outstanding Letters of Credit is required under Section 1.2(d) or Section
5.4(c) or under Section 13.2 or 13.3 above, the Company and (subject to Section
17.19) the other Borrowers shall forthwith pay the amount required to be so
prepaid, to be held by the Administrative Agent as provided in subsection (b)
below.
(b) All amounts prepaid pursuant to subsection (a) above shall be
held by the Administrative Agent in a separate collateral account (such
account, and the credit balances, properties and any investments from time to
time held therein, and any substitutions for such account, any certificate of
deposit or other instrument evidencing any of the foregoing and all proceeds of
and earnings on any of the foregoing being collectively called the "Account")
as security for, and for application by the Administrative Agent (to the extent
available) to, the reimbursement of any payment under any Letter of Credit then
or thereafter made by an Issuing Agent, and thereafter to the payment of the
unpaid balance of any Loans and all other Obligations. The Account shall be
held in the name of and subject to the exclusive dominion and control of the
Administrative Agent for the benefit of the Administrative Agent and the Banks.
If and when requested by the Company, the Administrative Agent shall invest
funds held in the Account from time to time in direct obligations of, or
obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America with a remaining maturity of one
year or less, provided that the Administrative Agent is irrevocably authorized
to sell investments held in the Account when and as required to make payments
out of the Account for application to Obligations then due and owing; provided,
however, that if (i) all the obligations referred to in subsection (a) above
shall have been paid and (ii) no Letters of Credit, Commitments, Loans or other
Obligations remain outstanding hereunder, then the Administrative Agent shall
repay to the Company any remaining amounts held in the Account.
Section 13.5. Notice of Default. The Administrative Agent shall
give notice to the Company under Section 13.1(c) hereof promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks
thereof.
Section 13.6. Expenses. The Company and (subject to Section 17.19
hereof) the other Borrowers agree to pay to the Administrative Agent and each
Bank, and any other holder of any Note outstanding hereunder, all reasonable
out-of-pocket expenses incurred or paid by the Administrative Agent and such
Bank or any such holder, including reasonable attorneys' fees (which in any
event may include allocated costs of in-house counsel) and court costs, in
connection with any Default or Event of Default or in connection with the
enforcement of any of the Credit Documents.
SECTION 14. CHANGE IN CIRCUMSTANCES
Section 14.1. Change of Law. Notwithstanding any other provisions
of this Agreement or any Note, if at any time after the date hereof any change
in applicable law or regulation or in the interpretation thereof makes it
unlawful for any Bank to make or continue to maintain Eurocurrency Loans or to
perform its obligations as contemplated hereby, such Bank shall promptly give
notice thereof to the
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Company (with a copy to the Administrative Agent) and such Bank's obligations
to make or maintain Eurocurrency Loans under this Agreement shall terminate
until it is no longer unlawful for such Bank to make or maintain Eurocurrency
Loans. The Company and (subject to Section 17.19) the other Borrowers shall
prepay on demand the outstanding principal amount of any such affected
Eurocurrency Loans, together with all interest accrued thereon at a rate per
annum equal to the interest rate applicable to such Loan; provided, however,
subject to all of the terms and conditions of this Agreement, the Company or
applicable Borrower may then elect to borrow the principal amount of the
affected Eurocurrency Loans from such Bank by means of Domestic Rate Loans from
such Bank, which Domestic Rate Loans shall not be made ratably by the Banks but
only from such affected Bank.
Section 14.2. Unavailability of Deposits or Inability to Ascertain,
or Inadequacy of, LIBOR. If on or prior to the first day of any Interest
Period for any Borrowing of Eurocurrency Loans:
(a) the Administrative Agent (or in the case of a
Multicurrency Swing Line Loan, the Multicurrency Swing Line Bank)
determines that deposits in U.S. Dollars or the applicable Alternative
Currency (in the applicable amounts) are not being offered to it in
the eurocurrency interbank market for such Interest Period, or that by
reason of circumstances affecting the interbank eurocurrency market
adequate and reasonable means do not exist for ascertaining the
applicable LIBOR, or
(b) Banks having 25% or more of the aggregate amount of
the Revolving Credit Commitments reasonably determine and so advise
the Administrative Agent that LIBOR as reasonably determined by the
Administrative Agent will not adequately and fairly reflect the cost
to such Banks of funding their Eurocurrency Loans or Loan for such
Interest Period,
then the Administrative Agent shall forthwith give notice thereof to the
Company and the Banks, whereupon until the Administrative Agent notifies the
Company that the circumstances giving rise to such suspension no longer exist,
the obligations of the Banks to make Eurocurrency Loans in the currency so
affected shall be suspended.
Section 14.3. Increased Cost and Reduced Return. (a) If, on or
after the date hereof, the adoption of any applicable law, rule or regulation,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Bank (or its Lending Office), including (if applicable) in its capacity as an
Issuing Agent or Swing Line Bank hereunder, with any request or directive
(whether or not having the force of law but, if not having the force of law,
compliance with which is customary in the relevant jurisdiction) of any such
authority, central bank or comparable agency:
(i) shall subject any Bank (or its Lending Office) to any
tax, duty or other charge with respect to its Fixed Rate Loans, its
Notes, its Letter(s) of Credit, or its participation in any thereof,
any Reimbursement Obligations owed to it or its obligation to make
Fixed Rate Loans, issue a Letter of Credit, or to participate therein,
or shall change the basis of taxation of payments to any Bank (or its
Lending Office) of the principal of or interest on its Fixed Rate
Loans, Letter(s) of Credit, or participations therein or any other
amounts due under this Agreement in respect of its Fixed Rate Loans,
Letter(s) of Credit, or participations therein, any Reimbursement
Obligations owed to it, or its obligation to make Fixed Rate Loans,
issue a Letter of Credit, or acquire participations therein (except
for changes in the tax on the overall net
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income or profits of such Bank or its Lending Office imposed by the
jurisdiction in which such Bank or its Lending Office is incorporated
or in which such Bank's principal executive office or Lending Office
is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System or with respect to Obligations denominated in Pound
Sterling, the Bank of England, but excluding with respect to any
Eurocurrency Loans any such requirement to the extent such Bank has
already been compensated pursuant to the second paragraph of Section
1.3(b) hereof) against assets of, deposits with or for the account of,
or credit extended by, any Bank (or its Lending Office) or shall
impose on any Bank (or its Lending Office) or on the interbank market
any other condition affecting its Fixed Rate Loans, its Notes, its
Letter(s) of Credit, or its participation in any thereof, any
Reimbursement Obligation owed to it, or its obligation to make Fixed
Rate Loans, to issue a Letter of Credit, or to participate therein;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Fixed Rate Loan, issuing or
maintaining a Letter of Credit, or participating therein, or to reduce the
amount of any sum received or receivable by such Bank (or its Lending Office)
under this Agreement or under its Notes with respect thereto, by an amount
deemed by such Bank to be material, then, within fifteen (15) days after demand
by such Bank (with a copy to the Administrative Agent), the Company and
(subject to Section 17.19 hereof) the other Borrowers shall be jointly and
severally obligated to pay to such Bank such additional amount or amounts as
will compensate such Bank for such increased cost or reduction; provided,
however, that (a) such Bank shall promptly notify the Company of an event which
might cause it to seek compensation, and the Company shall be obligated to pay
only such compensation which is incurred or which arises after the date ninety
(90) days prior to the date such notice is given and (b) such Bank shall not be
entitled to make such a claim for compensation if the Bank has not generally
been making claims for compensation under similar circumstances from other
borrowers similarly situated under loan agreements with provisions comparable
to this Section entitling the Bank to make such a claim. In the event any law,
rule, regulation or interpretation described above is revoked, declared invalid
or inapplicable or is otherwise rescinded, and as a result thereof a Bank is
determined to be entitled to a refund from the applicable authority for any
amount or amounts which were paid or reimbursed by the Company to such Bank
hereunder, such Bank shall refund such amount or amounts to the Company without
interest.
(b) If, after the date hereof, any Bank (including in its capacity
as an Issuing Agent or Swing Line Bank hereunder) or the Administrative Agent
shall have determined that the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein (including,
without limitation, any revision in the Final Risk-Based Capital Guidelines of
the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix
A; 12 CFR Part 225, Appendix A) or of the Office of the Comptroller of the
Currency (12 CFR Part 3, Appendix A), or in any other applicable capital rules
heretofore adopted and issued by any governmental authority), or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Lending Office) with
any request or directive regarding capital adequacy (whether or not having the
force of law but, if not having the force of law,
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compliance with which is customary in the applicable jurisdiction) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Bank's capital, or on the capital of any
corporation controlling such Bank, as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for
such adoption, change or compliance (taking into consideration such Bank's
policies with respect to capital adequacy) by an amount deemed by such Bank to
be material, then from time to time, within fifteen (15) days after demand by
such Bank (with a copy to the Administrative Agent), the Company and (subject
to Section 12.17 hereof) the other Borrowers shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction;
provided, however, that (a) such Bank shall promptly notify the Company of an
event which might cause it to seek compensation, and the Company and (subject
to Section 17.19 hereof) the other Borrowers shall be obligated to pay only
such compensation which is incurred or which arises after the date ninety (90)
days prior to the date such notice is given and (b) such Bank shall not be
entitled to make such a claim for compensation if the Bank has not generally
been making claims for compensation under similar circumstances from other
borrowers similarly situated under loan agreements with provisions comparable
to this Section entitling the Bank to make such a claim.
(c) Each Bank that determines to seek compensation under this
Section 14.3 shall notify the Company and the Administrative Agent of the
circumstances that entitle the Bank to such compensation pursuant to this
Section 14.3 and will designate a different Lending Office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the judgment of such Bank, be otherwise impractical or disadvantageous
in any material respect to such Bank. A certificate of any Bank claiming
compensation under this Section 14.3 and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
demonstrable error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods. The protection of this Section
14.3 shall be available to each Bank regardless of any possible contention of
the invalidity or inapplicability of any law, regulation or other condition
which shall give rise to any demand by such Bank for compensation.
Section 14.4. Lending Offices. Subject to Sections 4.2, 14.3(c)
and 17.1(d) hereof, each Bank may, at its option, elect to make its Loans
hereunder at the branch office or affiliate specified on the appropriate
signature page hereof (each a "Lending Office") for each type of Loan available
hereunder or at such other of its branches, offices or affiliates as it may
from time to time elect and designate in a written notice to the Company and
the Administrative Agent. The Borrowers shall have no obligations under
Section 14.3 to indemnify a Bank for any cost or loss incurred by it which
results solely from such Bank's changing any applicable Lending Office other
than any such change which, in the judgment of such Bank, is required by this
Agreement.
Section 14.5. Discretion of Bank as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Bank shall be
entitled to fund and maintain its funding of all or any part of its Loans in
any manner it sees fit, it being understood, however, that for the purposes of
this Agreement all determinations hereunder shall be made as if each Bank had
actually funded and maintained each Eurocurrency Loan through the purchase of
deposits of U.S. Dollars or the applicable Alternative Currency in the
eurocurrency interbank market having a maturity corresponding to such Loan's
Interest Period and bearing an interest rate equal to LIBOR for such Interest
Period.
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SECTION 15. THE AGENTS
Section 15.1. Appointment and Authorization of Agents. Each Bank
hereby appoints Harris Trust and Savings Bank as the Administrative Agent under
the Credit Documents and hereby appoints the Administrative Agent and LaSalle
National Bank as Issuing Agents hereunder and hereby appoints each Swing Line
Bank to act as such hereunder. Each Bank hereby authorizes each Agent to take
such action as such Agent on its behalf and to exercise such powers under the
Credit Documents as are delegated to such Agent by the terms thereof, together
with such powers as are reasonably incidental thereto.
Section 15.2. Agents and Its Affiliates. Each Agent shall have the
same rights and powers under this Agreement and the other Credit Documents as
any other Bank and may exercise or refrain from exercising the same as though
it were not an Agent, and each Agent and its affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with any
Borrower or any Affiliate of the Company as if it were not an Agent under the
Credit Documents. The term "Bank" as used herein and in all other Credit
Documents, unless the context otherwise clearly requires, includes each Agent
in its individual capacity as a Bank. References in Sections 1, 2 or 3 hereof
to an Agent's Loans, or to the amount owing to such Agent for which an interest
rate is being determined, refer to such Agent in its individual capacity as a
Bank.
Section 15.3. Action by Agents. If the Administrative Agent
receives from the Company a written notice of an Event of Default pursuant to
Section 12.6(c)(i) hereof, the Administrative Agent shall promptly give each of
the Banks written notice thereof. The obligations of each Agent under the
Credit Documents are only those expressly set forth therein. Each Agent shall
be acting as an independent contractor hereunder and nothing herein shall be
deemed to impose on such Agent any fiduciary obligations to the Banks or the
Borrowers. Without limiting the generality of the foregoing, no Agent shall be
required to take any action hereunder with respect to any Default or Event of
Default, except as expressly provided in Sections 13.2 and 13.5. In no event,
however, shall any Agent be required to take any action in violation of
applicable law or of any provision of any Credit Document, and each Agent shall
in all cases be fully justified in failing or refusing to act hereunder or
under any other Credit Document unless it shall be first indemnified to its
reasonable satisfaction by the Banks against any and all costs, expense, and
liability which may be incurred by it by reason of taking or continuing to take
any such action. Each Agent shall be entitled to assume that no Default or
Event of Default exists unless notified to the contrary by a Bank or the
Company. In all cases in which this Agreement and the other Credit Documents
do not require an Agent to take certain actions, such Agent shall be fully
justified in using its discretion in failing to take or in taking any action
hereunder and thereunder.
Section 15.4. Consultation with Experts. Each Agent may consult
with legal counsel, independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken by it
in good faith in accordance with the advice of such counsel, accountants or
experts.
Section 15.5. Liability of Agents; Credit Decision. Neither any
Agent nor any of its directors, officers, agents, or employees shall be liable
for any action taken or not taken by it in connection with the Credit Documents
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither any Agent
nor any of its directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this Agreement, any other
Credit Document or any Credit Event; (ii) the performance or observance of any
of the covenants or
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agreements of any Borrower or Guarantor contained herein or in any other Credit
Document; (iii) the satisfaction of any condition specified in Section 11
hereof, except receipt of items required to be delivered to any Agent; or (iv)
the validity, effectiveness, genuineness, enforceability, perfection, value,
worth or collectibility hereof or of any other Credit Document or of any other
documents or writing furnished in connection with any Credit Document; and no
Agent makes any representation of any kind or character with respect to any
such matter mentioned in this sentence. Each Agent may execute any of its
duties under any of the Credit Documents by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Banks, any Borrower, or
any Guarantor or any other Person for the default or misconduct of any such
agents or attorneys-in-fact selected with reasonable care. No Agent shall
incur any liability by acting in reliance upon any notice, consent,
certificate, other document or statement (whether written or oral) believed by
it to be genuine or to be sent by the proper party or parties. In particular
and without limiting any of the foregoing, no Agent shall have any
responsibility for confirming the accuracy of any Compliance Certificate or
other document or instrument received by it under the Credit Documents. The
Administrative Agent may treat the Banks that are named herein as the holders
of the Notes and the other Obligations contemplated herein unless and until the
Administrative Agent receives notice of the assignment of the relevant Note and
other Obligations held by a Bank hereunder pursuant to an assignment
contemplated by Section 17.12 hereof. Each Bank acknowledges that it has
independently and without reliance on any Agent or any other Bank, and based
upon such information, investigations and inquiries as it deems appropriate,
made its own credit analysis and decision to extend credit to the Borrowers in
the manner set forth in the Credit Documents. It shall be the responsibility
of each Bank to keep itself informed as to the creditworthiness of the
Borrowers and the Guarantors, and no Agent shall have any liability to any Bank
with respect thereto.
Section 15.6. Indemnity. The Banks shall ratably, in accordance
with their respective Percentages, indemnify and hold each Agent, and its
directors, officers, employees, agents and representatives harmless from and
against any liabilities, losses, costs or expenses suffered or incurred by it
under any Credit Document or in connection with the transactions contemplated
thereby, regardless of when asserted or arising, except to the extent they are
promptly reimbursed for the same by the Borrowers (without in any way impairing
or otherwise affecting the Borrowers' joint and several obligations to do so)
and except to the extent that any event giving rise to a claim was caused by
the gross negligence or willful misconduct of the party seeking to be
indemnified. The obligations of the Banks under this Section 15.6 shall
survive termination of this Agreement.
Section 15.7. Resignation or Removal of Administrative Agent and
Successor Administrative Agent. The Administrative Agent may resign at any
time by giving written notice thereof to the Banks and the Company, and the
Administrative Agent may be removed at any time by written notice of removal
from the Required Banks to the Administrative Agent and the Company. Upon any
such resignation or removal of the Administrative Agent, the Required Banks
shall have the right to appoint a successor Administrative Agent with the
consent of the Company (which shall not be unreasonably withheld); provided,
however, the consent of the Company shall not be so required upon the
occurrence and during the continuance of an Event of Default hereunder. If no
successor Administrative Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within thirty (30) days after
the retiring Administrative Agent's giving of notice of resignation or the
Required Banks giving notice of the retiring Administrative Agent's removal,
then the retiring Administrative Agent may, on behalf of the Banks, with the
consent of
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the Company (which shall not be unreasonably withheld) appoint a successor
Administrative Agent, which shall be any Bank hereunder or any commercial bank
organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $200,000,000;
provided, however, the consent of the Company shall not be so required upon the
occurrence and during the continuance of an Event of Default hereunder. Upon
the acceptance of its appointment as the Administrative Agent hereunder, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights and duties of the retiring or removed Administrative Agent
under the Credit Documents, and the retiring Administrative Agent shall be
discharged from its duties and obligations thereunder. After any retiring
Administrative Agent's resignation or removal hereunder as an Agent, the
provisions of this Section 15 and all protective provisions of the other Credit
Documents shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent.
Section 15.8. Payments. (a) To Administrative Agent. Unless the
Administrative Agent shall have been notified by a Bank prior to the date on
which such Bank is scheduled to make payment to the Administrative Agent of the
proceeds of a Loan (which notice shall be effective upon receipt) that such
Bank does not intend to make such payment, the Administrative Agent may assume
that such Bank has made such payment when due and the Administrative Agent may
in reliance upon such assumption (but shall not be required to) make available
to the Borrower the proceeds of the Loan to be made by such Bank and, if any
Bank has not in fact made such payment to the Administrative Agent, such Bank
shall, on demand, pay to the Administrative Agent the amount made available to
the Borrower attributable to such Bank together with interest thereon in
respect of each day during the period commencing on the date such amount was
made available to the Borrower and ending on (but excluding) the date such Bank
pays such amount to the Administrative Agent at a rate per annum equal to the
Federal Funds Rate. If such amount is not received from such Bank by the
Administrative Agent immediately upon demand, the Borrower will, on demand,
repay to the Administrative Agent the proceeds of the Loan attributable to such
Bank with interest thereon at a rate per annum equal to the interest rate
applicable to the relevant Loan, but without such payment being considered a
payment or prepayment of a Loan, so that the Borrower will have no liability
under Section 5.8 hereof with respect to such payment.
(b) From Administrative Agent. On any Business Day that the
Administrative Agent receives a payment from a Borrower by the time required by
Section 7.1 hereof, the Administrative Agent shall be required to pay to each
Bank for whose account such payment is received its share of such amount before
the close of business on such day. If the Administrative Agent receives any
such payment after the time required by Section 7.1 hereof, the Administrative
Agent shall only be required to remit such payment to the Bank or Banks for
whose account such payment was received on the following Business Day. If the
Administrative Agent fails to remit a payment to a Bank on the Business Day
required in this Section 15.8(b), the Administrative Agent shall pay to such
Bank interest on the U.S. Dollar Equivalent of the amount it was required to
remit (as determined as of the day the Administrative Agent was required to
make such remittance) at the Federal Funds Rate for each day that such amount
is not so remitted.
Section 15.9. Co-Agents. Notwithstanding anything herein to the
contrary, nothing in this Agreement shall impose any obligation whatsoever on
any of LaSalle National Bank, The First National Bank of Chicago, The Bank of
New York or Caisse Nationale de Credit Agricole in their capacity as Co-Agents.
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SECTION 16. THE GUARANTEES
Section 16.1. The Guarantees. To induce the Banks to provide the
credits described herein and in consideration of benefits expected to accrue to
each Guarantor by reason of the Commitments and for other good and valuable
consideration, receipt of which is hereby acknowledged, each Guarantor hereby
unconditionally, irrevocably and jointly and severally guarantees to each
Agent, the Banks, and each other holder of an Obligation, the due and punctual
payment of all present and future indebtedness of the Borrowers and any one or
more of them evidenced by or arising out of the Credit Documents, including,
but not limited to, the due and punctual payment of principal of and interest
on the Notes and the due and punctual payment of all other Obligations now or
hereafter owed by the Borrowers and any one or more of them under the Credit
Documents as and when the same shall become due and payable, whether at stated
maturity, by acceleration or otherwise, according to the terms hereof and
thereof. If any Borrower fails to pay punctually any indebtedness or other
obligations guaranteed hereby, each Guarantor hereby unconditionally agrees
jointly and severally to make such payment or to cause such payment to be made
punctually as and when the same shall become due and payable, whether at stated
maturity, by acceleration or otherwise, and as if such payment were made by
such Borrower.
Section 16.2. Guarantee Unconditional. The obligations of each
Guarantor as a guarantor under this Section 16 shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise,
waiver or release in respect of any indebtedness or other obligation
of any Borrower or of any other Guarantor under this Agreement or any
other Credit Document or by operation of law or otherwise;
(b) any modification or amendment of or supplement to
this Agreement or any other Credit Document;
(c) any change in the corporate existence, structure or
ownership of, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting, any Borrower, any other Guarantor, or
any of their respective assets, or any resulting release or discharge
of any obligation of any Borrower or of any other Guarantor contained
in any Credit Document;
(d) the existence of any claim, set-off or other rights
which the Guarantor may have at any time against any Agent, any Bank
or any other Person, whether or not arising in connection herewith;
(e) any failure to assert, or any assertion of, any claim
or demand or any exercise of, or failure to exercise, any rights or
remedies against any Borrower, any other Guarantor or any other Person
or Property;
(f) any application of any sums by whomsoever paid or
howsoever realized to any obligation of any Borrower, regardless of
what obligations of any Borrower remain unpaid;
(g) any invalidity or unenforceability relating to or
against any Borrower or any other Guarantor for any reason of this
Agreement or of any other Credit Document or any provision of
applicable law or regulation purporting to prohibit the payment by any
Borrower or any other Guarantor of the principal of or interest on any
Loan or any other Obligations; or
(h) any other act or omission to act or delay of any kind
by any Agent, any Bank or any other Person or any other circumstance
whatsoever that might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the obligations of the
Guarantor under this Section 16.
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Section 16.3. Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances. Each Guarantor's obligations under this Section 16
shall remain in full force and effect until the Commitments are terminated and
the principal of and interest on the Loans and all other Obligations shall have
been paid in full. If at any time any payment of the principal of or interest
on any Loan or any other Obligations is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of a Borrower or
of a Guarantor, or otherwise, each Guarantor's obligations under this Section
16 with respect to such payment shall be reinstated at such time as though such
payment had become due but had not been made at such time.
Section 16.4. Waivers. (a) General. Each Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Agent, any Bank or any other Person against any Borrower, another
Guarantor or any other Person.
(b) Subrogation and Contribution. Unless and until the
Obligations have been fully paid and satisfied and the Commitments have
terminated, each Guarantor hereby agrees not to exercise or otherwise assert
any claim or other right it may now or hereafter acquire against any Borrower
or any other Guarantor that arises from the existence, payment, performance or
enforcement of such Guarantor's obligations under this Section 16 or any other
Credit Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, or any right to
participate in any claim or remedy of any Agent, any Bank or any other holder
of the indebtedness guaranteed hereby against any Borrower or any other
Guarantor whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from any Borrower or any other Guarantor directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other right.
Section 16.5. Limit on Recovery. Notwithstanding any other
provision hereof, the right to recovery of the holders of the Obligations
against each Guarantor under this Section 16 shall not exceed the amount which
would render such Guarantor's obligations under this Section 16 void or
voidable under applicable law, including without limitation fraudulent
conveyance law less $1.00.
Section 16.6. Stay of Acceleration. If acceleration of the time
for payment of any amount payable by any Borrower under this Agreement or any
other Credit Document is stayed upon the insolvency, bankruptcy or
reorganization of any Borrower, all such amounts otherwise subject to
acceleration under the terms of this Agreement or the other Credit Documents
shall nonetheless be payable jointly and severally by the Guarantors hereunder
forthwith on demand by the Administrative Agent made at the request of the
Required Banks.
Section 16.7. Benefit to Guarantors. The Company and all of the
other Guarantors are engaged in related businesses and integrated to such an
extent that the financial strength and flexibility of each Guarantor has a
direct impact on the success of each other Guarantor. Each Guarantor will
derive substantial direct and indirect benefit from the extension of credit
hereunder.
SECTION 17. MISCELLANEOUS
Section 17.1. Withholding Taxes. (a) Payments Free of Withholding.
Except as otherwise required by law and subject to Section 17.1(b) hereof, each
payment by each Borrower and Guarantor under this Agreement or the other Credit
Documents shall be made without withholding for or on account of any present or
future taxes (other than overall net income taxes on the recipient) imposed by
or within the
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jurisdiction in which such Borrower or Guarantor is domiciled, any jurisdiction
from which such Borrower or Guarantor makes any payment, or (in each case) any
political subdivision or taxing authority thereof or therein. If any such
withholding is so required, the relevant Borrower or Guarantor shall make the
withholding, pay the amount withheld to the appropriate governmental authority
before penalties attach thereto or interest accrues thereon and forthwith pay
such additional amount as may be necessary to ensure that the net amount
actually received by each Bank (including the Swing Line Banks) and each Agent
free and clear of such taxes (including such taxes on such additional amount)
is equal to the amount which that Bank or any Agent (as the case may be) would
have received had such withholding not been made. If any Agent or Bank pays
any amount in respect of any such taxes, penalties or interest the relevant
Borrower or Guarantor shall reimburse that Agent or Bank for that payment on
demand in the currency in which such payment was made. If any Borrower or
Guarantor pays any such taxes, penalties or interest, it shall deliver official
tax receipts evidencing that payment or certified copies thereof to the Bank or
Agent on whose account such withholding was made (with a copy to the
Administrative Agent if not the recipient of the original) on or before the
ninetieth day after payment. If any Bank or Agent determines it has received
or been granted a credit against or relief or remission for, or repayment of,
any taxes paid or payable by it because of any taxes, penalties or interest
paid by any Borrower or Guarantor and evidenced by such a tax receipt, such
Bank or Agent shall, to the extent it can do so without prejudice to the
retention of the amount of such credit, relief, remission or repayment, pay to
such Borrower or Guarantor as applicable, such amount as such Bank or Agent
determines is attributable to such deduction or withholding and which will
leave such Bank or Agent (after such payment) in no better or worse position
than it would have been in if the relevant Borrower or Guarantor had not been
required to make such deduction or withholding. Nothing in this Agreement
shall interfere with the right of each Bank and Agent to arrange its tax
affairs in whatever manner it thinks fit nor oblige any Bank or Agent to
disclose any information relating to its tax affairs or any computations in
connection with such taxes.
(b) U.S. Withholding Tax Exemptions. (i) Each Bank that is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) (a "Non-U.S. Person") shall submit to the Company and the Administrative
Agent on or before the earlier of the date the initial Borrowing is made
hereunder and thirty (30) days after the date hereof (or within thirty (30)
days after such Person becomes a Bank), two duly completed and signed copies of
either Form 1001 (relating to such Bank and entitling it to a complete
exemption from withholding under the Code on all amounts to be received by such
Bank, including fees, pursuant to the Credit Documents and the Loans) or Form
4224 (relating to all amounts to be received by such Bank, including fees,
pursuant to the Credit Documents and the Loans) of the United States Internal
Revenue Service or, in the case of any Bank exempt from United States Federal
withholding tax pursuant to Sections 871(h) or 881(c) of the Code, a Form W-8
or any successor applicable form (a "Form W-8") together with a statement under
penalty of perjury that such Bank is not a "bank" under Section 881(c)(3) of
the Code. Thereafter and from time to time, each such Bank shall submit to any
Borrower and the Administrative Agent such additional duly completed and signed
copies of one or the other of such Forms (or such successor forms as shall be
adopted from time to time by the relevant United States taxing authorities) as
may be (i) requested by the Company or such Borrower in a written notice,
directly or through the Administrative Agent, to such Bank and (ii) required
under then-current United States law or regulations to avoid or reduce United
States withholding taxes on payments in respect of all amounts to be received
by such Bank, including fees, pursuant to the Credit Documents or the Loans.
Each Bank that is a Non-U.S. Person and
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that is a party hereto as of the Effective Date hereby represents and warrants
that, as of the Effective Date, payments made to it hereunder are exempt from
the withholding of United States Federal income taxes (i) because such payments
are effectively connected with a United States trade or business conducted by
such Non-U.S. Person; (ii) pursuant to the terms of an income tax treaty
between the United States and such Non-U.S. Person's country of residence; or
(iii) because such payments are portfolio interest exempt pursuant to Sections
871(h) or 881(c) of the Code.
(ii) Each Bank agrees at the Company's expense to complete,
accurately and in a manner reasonably satisfactory to the Company and the
Administrative Agent, and to execute, arrange for any required certification
of, and deliver to the Company and the Administrative Agent (or to such
government or taxing authority as the Company or Administrative Agent
reasonably directs), any other form or document that may be required under the
laws of any jurisdiction outside the United States to allow any Borrower or
Guarantor to make a payment under this Agreement or the other Credit Documents
without any deduction or withholding for or on account of any taxes of the type
described in Section 17.1 hereof or with any such deduction or withholding for
or on account of such taxes at a reduced rate, in each case so long as such
Bank is (i) legally entitled to provide such certification and deliver such
form or document and (ii) such action is consistent with its overall tax
policies and is not otherwise, in the judgment of such Bank, impractical or
disadvantageous in any material respect to such Bank.
(c) Inability of Bank to Submit Forms. If any Bank determines, as
a result of any change in applicable law, regulation or treaty, or in any
official application or interpretation thereof, that it is unable to submit to
any Borrower or the Administrative Agent any form or certificate that such Bank
is obligated to submit pursuant to subsection (b) of this Section 17.1 or that
such Bank is required to withdraw or cancel any such form or certificate
previously submitted or any such form or certificate otherwise becomes
ineffective or inaccurate, such Bank shall promptly notify the Company or such
Borrower and the Administrative Agent of such fact and the Bank shall to that
extent not be obligated to provide any such form or certificate and will be
entitled to withdraw or cancel any affected form or certificate, as applicable.
(d) Lending Office. Each Bank will use reasonable efforts to make
its Loans from its Lending Offices in jurisdictions in which liability for
taxes with respect to the payments and remittances described in Section 17.1(a)
above will be eliminated or minimized unless to do so would, in the judgment of
such Bank, be impractical or disadvantageous to such Bank. The parties hereto
understand and agree that such agreement by each Bank is an agreement by such
Bank only and not binding on any Affiliates of such Bank.
(e) Change of Office or Failure to Provide Tax Forms.
Notwithstanding any provision of Section 17.1(a) above to the contrary, the
Borrower shall not have any obligation to pay any taxes or to indemnify any
Bank for such taxes pursuant to this Section 17.1 to the extent that such taxes
result from (i) the failure of any Bank to comply with its obligations pursuant
to Section 17.1(b) or (ii) any representation made on Form 1001, 4224 or W-8 or
successor applicable form or certification by any Bank incurring such taxes
proving to have been incorrect, false or misleading in any material respect
when so made or deemed to be made or (iii) such Bank changing its Lending
Office to a jurisdiction in which such taxes arise, except to the extent in the
judgment of such Bank such change was required by the terms of this Agreement.
Section 17.2. No Waiver of Rights. No delay or failure on the part
of any Agent, Bank or Borrower or on the part of the holder or holders of any
Note in the exercise of any power or right afforded
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such party under any Credit Document shall operate as a waiver thereof, nor as
an acquiescence in any default, nor shall any single or partial exercise
thereof preclude any other or further exercise of any other power or right, and
the rights and remedies hereunder of the Agents, the Banks, the Borrowers and
the holder or holders of any Notes are cumulative to, and not exclusive of, any
rights or remedies which any of them would otherwise have.
Section 17.3. Non-Business Day. If any payment of principal or
interest on any Loan or of any other Obligation shall fall due on a day which
is not a Business Day, interest or fees (as applicable) at the rate, if any,
such Loan or other Obligation bears for the period prior to maturity shall
continue to accrue on such Obligation from the stated due date thereof to and
including the next succeeding Business Day, on which the same shall be payable.
Section 17.4. Documentary Taxes. The Company and (subject to
Section 17.19 hereof) the other Borrowers agree that they will pay any
documentary, stamp or similar taxes payable in respect to any Credit Document,
including interest and penalties, in the event any such taxes are assessed,
irrespective of when such assessment is made and whether or not any credit is
then in use or available hereunder.
Section 17.5. Survival of Representations. All representations and
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and the other Credit Documents,
and shall continue in full force and effect with respect to the date as of
which they were made as long as any credit is in use or available hereunder.
Section 17.6. Survival of Indemnities. All indemnities and all
other provisions relative to reimbursement to the Banks of amounts sufficient
to protect the yield of the Banks with respect to the Loans, including, but not
limited to, Section 5.8, Section 14.3 and Section 17.15 hereof, shall survive
the termination of this Agreement and the other Credit Documents and the
payment of the Loans and all other Obligations.
Section 17.7. Sharing of Set-Off. Each Bank agrees with each other
Bank a party hereto that if such Bank shall receive and retain any payment,
whether by set-off or application of deposit balances or otherwise ("Set-off"),
on any of the Committed Loans or Reimbursement Obligations in excess of its
ratable share (in accordance with its Percentage) of payments on all such
Committed Obligations then outstanding to the Banks, then such Bank shall
purchase for cash at face value, but without recourse, ratably from each of the
other Banks such amount of the Committed Loans or Reimbursement Obligations, or
participations therein, held by each such other Banks (or interest therein) as
shall be necessary to cause such Bank to share such excess payment ratably with
all the other Banks; provided, however, that if any such purchase is made by
any Bank, and if such excess payment or part thereof is thereafter recovered
from such purchasing Bank, the related purchases from the other Banks shall be
rescinded ratably and the purchase price restored as to the portion of such
excess payment so recovered, but without interest. For purposes of this
Section 17.7, amounts owed to or recovered by, an Issuing Agent in connection
with Reimbursement Obligations in which Banks have been required to fund their
participation shall be treated as amounts owed to or recovered by such Issuing
Agent as a Bank hereunder.
Section 17.8. Notices. Except as otherwise specified herein, all
notices under the Credit Documents shall be in writing (including telecopy or
other electronic communication) and shall be given to a party hereunder at its
address or telecopier number set forth below or such other address or
telecopier number as such party may hereafter specify by notice to the
Administrative Agent and the Company, given by courier, by United States
certified or registered mail, or by other telecommunication
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device capable of creating a written record of such notice and its receipt.
Notices under the Credit Documents to the Banks and the Administrative Agent
shall be addressed to their respective addresses, telecopier or telephone
numbers set forth on the signature pages hereof, and to the Borrowers and the
Guarantors in all cases to:
General Binding Corporation
One GBC Plaza
Northbrook, Illinois 60062
Telephone: (847) 272-3700
Telecopy: (847) 272-7680
Attention: Edward J. McNulty, Vice President and
Chief Financial Officer
cc: Steven Rubin, Vice President, Secretary and General Counsel
Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the telecopier
number specified in this Section 17.8 or on the signature pages hereof and a
confirmation of receipt of such telecopy has been received by the sender, (ii)
if given by courier, when delivered, (iii) if given by mail, five (5) Business
Days after such communication is deposited in the mail, registered with return
receipt requested, addressed as aforesaid or (iv) if given by any other means,
when delivered at the addresses specified in this Section 17.8 or on the
signature pages hereof; provided that any notice given pursuant to Sections 1,
2, 3 or 4 hereof shall be effective only upon receipt and notices described in
clauses (i), (ii) and (iv) above that are received after normal business hours
will be deemed received at the opening of business on the next business day.
Section 17.9. Counterparts. This Agreement may be executed in any
number of counterpart signature pages, and by the different parties on
different counterparts, each of which when executed shall be deemed an original
but all such counterparts taken together shall constitute one and the same
instrument.
Section 17.10. Successors and Assigns. This Agreement shall be
binding upon the Borrowers and their respective successors and assigns, and
shall inure to the benefit of each of the Banks and the benefit of their
respective successors and assigns, including any subsequent holder of any Note.
No Borrower may assign any of its rights or obligations under any Credit
Document without the written consent of all of the Banks.
Section 17.11. Participants and Note Assignees. Each Bank shall
have the right (with or without the Company's consent, which if requested shall
not be unreasonably withheld) at its own cost to grant participations (to be
evidenced by one or more agreements or certificates of participation) in the
Loans made, and Reimbursement Obligations and/or Revolving Credit Commitments
held, by such Bank at any time and from time to time, and to assign its rights
under such Loans or Reimbursement Obligations or the Notes evidencing such
Loans; provided, however, that no (a) such participation or assignment shall
relieve any Bank of any of its obligations under this Agreement, and any
agreement pursuant to which such participation or assignment of a Note or the
rights thereunder is granted shall provide that the granting Bank shall retain
the sole right and responsibility to enforce the obligations of the Borrowers
under the Credit Documents, including, without limitation, the right to approve
any amendment, modification or waiver of any provision thereof, except that if
the Company consents to such participation, such agreement may provide that
such Bank will not agree to any modification, amendment or waiver of this
Agreement
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described in clause (i) of Section 17.13 hereof without the consent of such
participant or assignee; and (b) no such assignee or participant shall have any
rights under this Agreement except as provided in this Section 17.11, and no
Agent shall have any obligation or responsibility to such participant or
assignee, except that nothing herein provided is intended to affect the rights
of an assignee of a Note to enforce the Note assigned. Any party to which such
a participation or assignment has been granted shall have the benefits of
Sections 5.8, 14.3 and 17.1 hereof but shall not be entitled to receive any
greater payment under either such Section than the Bank granting such
participation or assignment would have been entitled to receive with respect to
the rights transferred. The Borrowers and Guarantors authorize each Bank to
disclose to any purchaser or prospective purchaser of an interest in its Loans
or Revolving Credit Commitment any financial or other information pertaining to
the Company and its Subsidiaries, subject to Section 17.23 hereof. Nothing
herein shall limit or otherwise affect the rights of a Bank to assign any of
its rights hereunder and under its Notes to any Federal Reserve Bank.
Section 17.12. Assignment of Revolving Credit Commitments by Banks.
(a) Each Bank shall have the right at any time, with the prior written consent
(which consent shall not be unreasonably withheld or delayed) of the Company
and the Administrative Agent, to assign all or any part of its Revolving Credit
Commitment (including the same percentage of its Committed Note, outstanding
Committed Loans and participations in Letters of Credit and Swing Line Loans)
to one or more other Persons; provided that each such assignment is in an
amount of at least $7,500,000 (or $1,000,000 in the case of an assignment to
another Bank) or the entire Revolving Credit Commitment of such assigning Bank,
and if such assignment is not for such Bank's entire Revolving Credit
Commitment, then such assigning Bank's Revolving Credit Commitment after giving
effect to such assignment shall not be less than $10,000,000; provided further
that no such consents from the Administrative Agent or Company shall be
required if the assignee is another Bank or an Affiliate of the assigning Bank
(provided that any such Affiliate of the assigning Bank complies with Section
17.1(b) hereof at the time of such assignment) and no such consent shall be
required from the Company for any such assignment made during the continuance
of any Event of Default. Each such assignment shall set forth the assignee's
address for notices to be given under Section 17.8 hereof hereunder and its
designated Lending Office pursuant to Section 14.4 hereof. Upon any such
assignment, delivery to the Administrative Agent and the Company of an executed
copy of such assignment agreement and the forms referred to in Section 17.1
hereof, if applicable, and, in the case of an assignment to a Person other than
an Affiliate of the assigning Bank, the payment of a $3,000 recordation fee to
the Administrative Agent, the assignee shall become a Bank hereunder, all
Loans, participations in Letters of Credit and Swing Line Loans and the
Revolving Credit Commitment it thereby holds shall be governed by all the terms
and conditions hereof and the Bank granting such assignment shall have its
Revolving Credit Commitment, and its obligations and rights in connection
therewith, reduced by the amount of such assignment. At the time of the
assignment the Company and other relevant Borrowers shall execute and deliver
new Notes to the assignor and/or assignee.
(b) Assignment of Commitments Under Certain Circumstances. If (a)
the Company receives a notice or certificate from a Bank requesting an amount
be paid to such Bank under Section 14.3 hereof and the Required Banks have not
similarly made requests for payment arising out of the same circumstances or
(b) the obligation of any Bank to make or maintain any Eurocurrency Loan has
terminated under Section 14.1 hereof and the obligations of the Required Banks
to make or maintain Eurocurrency Loans have not similarly terminated by reason
of the same circumstances or (c) any Bank shall fail or refuse to make or
participate
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in any Loan or L/C Obligation as and when required by the terms of this
Agreement or (d) any Borrower shall be required to make additional payments to
any Bank under Section 17.1 hereof (or would be required to make such
additional payments with respect to any future interest payment) or (e) any
Bank is unable to make or fund a participation in any Loan denominated in an
Alternative Currency and the Required Banks have not similarly been unable to
make or participate in Loans in the same Alternative Currency under the same
circumstances or (f) any Bank fails to consent to an Approved Jurisdiction to
which the Required Banks have consented, the Company shall have the right, but
not the obligation, at its own expense, upon notice to such Bank and the
Administrative Agent, to replace such Bank with an assignee (in accordance with
and subject to the restrictions contained in Section 17.12(a) hereof), and such
Bank hereby agrees to transfer and assign without recourse (in accordance with
and subject to the restrictions contained in Section 17.12(a) hereof) all of
such assigning Bank's interests, rights and obligations under this Agreement to
such assignee; provided, however, that (A) no such assignment shall conflict
with any law or any rule, regulation or order of any governmental authority,
(B) such assignee Bank shall pay to the affected Bank in immediately available
funds on the date of such assignment the principal of the Loans made and
Reimbursement Obligations funded by such Bank hereunder, (C) the Company must
exercise its right to replace such Bank within one hundred twenty (120) days of
the event giving rise to the Company's right to so replace such Bank, and (D)
the Borrowers shall pay to the affected Bank in immediately available funds on
the date of such assignment the interest accrued to the date of payment on the
Loans made by such Bank hereunder and all other amounts accrued for such Bank's
account or owed to it hereunder.
(c) The Administrative Agent, acting for this purpose as agent of
each Borrower, shall maintain at one of its offices in Chicago, Illinois a copy
of each assignment delivered to it pursuant to paragraphs (a) or (b) above and
a register for the recordation of the names and addresses of the Banks, and the
Revolving Credit Commitment of, and principal amount of the Loans and L/C
Obligations owing to, each Bank pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive in the
absence of manifest error, and the Borrowers, the Agents and the Banks shall
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Bank hereunder for all purposes of this Agreement. The Register
shall be available for inspection by each Borrower, Issuing Agent and Bank, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed assignment executed by an
assigning Bank and an assignee pursuant to paragraphs (a) or (b) above, the
recordation fee referred to in paragraph (a) above and the written consent of
the Administrative Agent (and if required, the Company) to such assignment, the
Administrative Agent shall (i) accept such assignment, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Banks and other Agents.
Section 17.13. Amendments. Any provision of the Credit Documents
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by (a) the Company (acting on behalf of all the
Borrowers) , (b) the Required Banks, (c) if the rights or duties of any Agent
are affected thereby, such Agent and (d) if the rights and duties of a Swing
Line Bank are affected thereby, such Swing Line Bank; provided, however, that:
(i) no amendment or waiver pursuant to this Section 17.13
shall (A) increase any Commitment or increase the obligations of any
Bank without the consent of such Bank or (B) reduce the amount of or
postpone any fixed date for payment of any principal of any Loan or
Reimbursement Obligation or of any fee payable hereunder without the
consent of each Bank or (C) reduce the
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stated rate at which any interest is calculated or postpone any fixed
date for payment of interest without the consent of each Bank;
(ii) no amendment or waiver pursuant to this Section 17.13
shall, unless signed by each Bank, change any provision of Section 11,
this Section 17.13, or the definitions of Required Banks or Revolving
Credit Termination Date, or affect the number of Banks required to
take any action under the Credit Documents, or release any Borrower or
Guarantor from its liability for any Obligations (except as permitted
by Sections 12.1 or 12.12(b) hereof); and
(iii) no amendment or waiver shall, unless signed by the
relevant Borrowing Subsidiary, (w) subject such Borrowing Subsidiary
to any additional obligation beyond its obligation as a Guarantor
hereunder, (x) increase the principal of or rate of interest on any
outstanding Loan of such Borrowing Subsidiary, (y) accelerate the
stated maturity of any outstanding Loan of such Borrowing Subsidiary
or (z) change this clause (iii).
The Banks acknowledge and agree that the Company may from time to time request
them to treat Acquisitions for purposes of determining Consolidated EBITDA
(including, as used in such determination, Consolidated Interest Expense) in
the same manner in which the Quartet Acquisition was treated in determining
Consolidated EBITDA. The Banks further acknowledge and agree that such
modifications to the computation of Consolidated EBITDA shall only require the
approval of the Required Banks.
Section 17.14. Headings. Section headings used in this Agreement
are for reference only and shall not affect the construction of this Agreement.
Section 17.15. Legal Fees, Other Costs and Indemnification. The
Company and (to the extent permitted by Section 17.19 hereof) the other
Borrowers agree, jointly and severally, to pay all reasonable out-of-pocket
costs and expenses of the Administrative Agent (which in any event may include
allocated costs of in-house counsel) in connection with the preparation and
negotiation of the Credit Documents, including without limitation, the
reasonable fees and disbursements of Chapman and Cutler, counsel to the
Administrative Agent, in connection with the preparation and execution of the
Credit Documents, and any amendment, waiver or consent related hereto, whether
or not the transactions contemplated herein are consummated. The Company and
(to the extent permitted by Section 17.19 hereof) the other Borrowers further
agree, jointly and severally, to indemnify each Bank, each Agent, and their
respective directors, officers and employees, against all losses, claims,
damages, penalties, judgments, liabilities and reasonable out-of-pocket
expenses (including, without limitation, all expenses of litigation or
preparation therefor, whether or not the indemnified Person is a party thereto
and in any event also including, without limitation, allocated costs of
in-house counsel) which any of them may incur or pay arising out of or relating
to any Credit Document or any of the transactions contemplated thereby or the
direct or indirect application or proposed application of the proceeds of any
Loan or Letter of Credit, other than those which arise from the gross
negligence or willful misconduct of the party claiming indemnification. The
Company and (to the extent permitted by Section 17.19 hereof) the other
Borrowers, upon demand on any one or more of them by any Agent or Bank at any
time, shall reimburse such Agent or Bank for any reasonable legal or other
out-of-pocket expenses (which in any event may include allocated costs of
in-house counsel) incurred in connection with investigating or defending
against any of the foregoing except if the same is directly due to the gross
negligence or willful misconduct of the party to be indemnified.
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Section 17.16. Set Off. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
during the continuance of any Event of Default and the acceleration of the
maturity of the Notes or L/C Obligations pursuant to Section 13.2 or 13.3
hereof, each Bank and each subsequent holder of any Note is hereby authorized
by each Borrower and Guarantor at any time or from time to time, without notice
to the Borrowers, to the Guarantors or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, including, but not limited to,
Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts, and in whatever currency
denominated) and any other Indebtedness at any time held or owing by that Bank
or that subsequent holder to or for the credit or the account of any Borrower
or Guarantor, whether or not matured, against and on account of the obligations
and liabilities of any Borrower or Guarantor to that Bank or that subsequent
holder under the Credit Documents, including, but not limited to, all claims of
any nature or description arising out of or connected with the Credit
Documents, irrespective of whether or not (a) that Bank or that subsequent
holder shall have made any demand hereunder or (b) the principal of or the
interest on the Loans or Notes and other Obligations shall have become due and
payable pursuant to Section 13 and although said obligations and liabilities,
or any of them, may be contingent or unmatured.
Section 17.17. Currency. Each reference in this Agreement to U.S.
Dollars or to an Alternative Currency (the "relevant currency") is of the
essence. To the fullest extent permitted by law, the obligation of each
Borrower and Guarantor in respect of any amount due in the relevant currency
under this Agreement shall, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the relevant currency that the Person entitled to receive such
payment may, in accordance with normal banking procedures, purchase with the
sum paid in such other currency (after any premium and costs of exchange) on
the Business Day immediately following the day on which such Person receives
such payment. If the amount of the relevant currency so purchased is less than
the sum originally due to such Person in the relevant currency, the relevant
Borrower or Guarantor agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such Person against such loss, and if the amount of
the specified currency so purchased exceeds the sum of (a) the amount
originally due to the relevant Person in the specified currency plus (b) any
amounts shared with other Banks as a result of allocations of such excess as a
disproportionate payment to such Person under Section 17.7 hereof, such Person
agrees to remit such excess to the Company.
Section 17.18. Unlawful Interest. In no event shall the amount of
interest due or payable hereunder or under the Notes or Applications exceed the
maximum rate of interest allowed by applicable law in any jurisdiction, and if
any such payment is inadvertently made to any Bank by any Borrower or
inadvertently received by any Bank, then such excess sum shall be credited as a
payment of principal, unless such Borrower shall notify such Bank in writing
that it elects to have such excess sum returned. It is the express intent of
the parties hereto that the Borrowers not pay and the Banks not receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may legally be paid by any Borrower under applicable law in any
jurisdiction.
Section 17.19. Several Liability of Foreign Borrowers.
Notwithstanding anything in this Agreement to the contrary:
(a) All Guarantors (including without limitation the
Company and the Domestic Borrowing Subsidiaries) are unconditionally
and absolutely liable for all Obligations, as set forth more fully in
Section 16 hereof.
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(b) Each of the Foreign Borrowers shall be severally
liable for its indebtedness and other Obligations under this Agreement
and the other Credit Documents, and no Foreign Borrower shall be
liable for the Obligations of any other Borrower under this Agreement
and the other Credit Documents. Each Foreign Borrower shall be
severally liable for all payments of the principal of and interest on
Loans to and L/C Obligations of such Foreign Borrower, any amounts due
with respect thereto pursuant to Sections 5.8 or 14.3 hereof and any
other amount due hereunder that is specifically allocable to such
Foreign Borrower or the Loans to or L/C Obligations of such Foreign
Borrower. With respect to any other amount due hereunder, including
fees, but excluding principal of and interest on any Loan or L/C
Obligation, that is not specifically allocable to a particular Foreign
Borrower, each Foreign Borrower shall be liable for such amount pro
rata in the same proportion as such Foreign Borrower's outstanding
Loans bear to the total of outstanding Loans to and L/C Obligations of
all Borrowers (both Foreign and Domestic).
Section 17.20. Entire Agreement. The Credit Documents constitute
the entire understanding of the parties thereto with respect to the subject
matter thereof and any prior or contemporaneous agreements, whether written or
oral, with respect thereto are superseded thereby.
Section 17.21. Governing Law. This Agreement and the other Credit
Documents, and the rights and duties of the parties hereto, shall be construed
and determined in accordance with the internal laws of the State of Illinois.
Section 17.22. Submission to Jurisdiction; Waiver of Jury Trial.
The Company and each Guarantor hereby submit to the nonexclusive jurisdiction
of the United States District Court for the Northern District of Illinois and
of any Illinois State court sitting in the City of Chicago for purposes of all
legal proceedings arising out of or relating to this Agreement, the other
Credit Documents or the transactions contemplated hereby or thereby. The
Company and each Guarantor irrevocably waive, to the fullest extent permitted
by law, any objection which any of them may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum. THE COMPANY, EACH BORROWER, EACH GUARANTOR, EACH AGENT, AND EACH BANK
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
Section 17.23. Confidentiality. Each Bank agrees to maintain in
confidence and not to disclose without the Company's consent (other than to its
employees, affiliates, auditors, counsel or other professional advisors, or to
another Bank, each of which shall also be bound by this Section 17.23) any
information concerning the Company or any of its Subsidiaries furnished
pursuant to this Agreement which such Bank would reasonably expect to be
confidential in nature; provided that any Bank may disclose any such
information (a) that has become generally available to the public, (b) if
required or appropriate in any report, statement or testimony submitted to any
regulatory body having or claiming to have jurisdiction over such Bank, (c) if
required or appropriate in response to any summons or subpoena or in connection
with any litigation, (d) in order to comply with any law, order, regulation or
ruling applicable to such Bank, or (e) to any prospective or actual participant
or assignee under Sections 17.11 or 17.12 hereof in connection with any
contemplated or actual transfer of an interest in such Bank's rights or
obligations hereunder; provided, that (i) such actual or prospective transferee
executes an agreement with such Bank containing provisions substantially
identical to those contained in this Section 17.23 and (ii) in the case of any
disclosure under subsection (c) above, such Bank shall (to the extent permitted
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by applicable law) notify the Company of such disclosure so that the Company
may seek an appropriate protective order or waive such Bank's compliance with
the provisions of this Section, it being understood that if the Company has no
right to obtain such a protective order or if the Company does not commence
procedures to obtain such a protective order within ten business days of the
receipt of such notice, such Bank's compliance with this Section shall be
deemed to have been waived with respect to such disclosure.
Dated as of January 13, 1997.
GENERAL BINDING CORPORATION
By /s/ EDWARD J. McNULTY
-----------------------------------
Name Edward J. McNulty
Title Vice President and Chief
Financial Officer
GBC BUSINESS EQUIPMENT, INC.
By /s/ EDWARD J. McNULTY
-----------------------------------
Name Edward J. McNulty
Title Vice President and Chief
Financial Officer
GBC INTERNATIONAL, INC.
By /s/ EDWARD J. McNULTY
-----------------------------------
Name Edward J. McNulty
Title Vice President and Chief
Financial Officer
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PRO-TECH ENGINEERING CO., INC.
By /s/ EDWARD J. McNULTY
-----------------------------------
Name Edward J. McNulty
Title Vice President and Chief
Financial Officer
SICKINGER COMPANY
By /s/ EDWARD J. McNULTY
-----------------------------------
Name Edward J. McNulty
Title Vice President and Chief
Financial Officer
U.S. RING BINDER CORP.
By /s/ EDWARD J. McNULTY
-----------------------------------
Name Edward J. McNulty
Title Vice President and Chief
Financial Officer
VELOBIND, INCORPORATED
By /s/ EDWARD J. McNULTY
-----------------------------------
Name Edward J. McNulty
Title Vice President and Chief
Financial Officer
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Accepted and Agreed to as of the day and year last above written.
111 West Monroe Street HARRIS TRUST AND SAVINGS BANK,
Chicago, Illinois 60690 in its individual capacity as a Bank and
Telecopy: (312) 461-2591 as Administrative Agent
Telephone: (312) 461-2800
Revolving Credit
Commitment: $40,000,000.00
By /s/ RICHARD P. BOTT
-----------------------------------
Name Richard P. Bott
Title Vice President
Lending Offices:
Domestic Rate Loans: 111 West Monroe Street
Chicago, Illinois 60690
Eurocurrency Loans: Nassau Branch
c/o 111 West Monroe Street
Chicago, Illinois 60690
Bid Loans: 111 West Monroe Street
Chicago, Illinois 60690
Accepted and Agreed to as of the day and year last above written.
135 South LaSalle Street LASALLE NATIONAL BANK,
Chicago, Illinois 60603 in its individual capacity as a Bank
Telecopy: (312) 606-8423 and as Co-Agent
Telephone: (312) 904-2121
Revolving Credit
Commitment: $27,500,000.00
By /s/ JAMES M. MINICH
-----------------------------------
James M. Minich
Vice President
Lending Offices:
Domestic Rate Loans: 135 South LaSalle Street
Chicago, Illinois 60603
Eurocurrency Loans: 135 South LaSalle Street
Chicago, Illinois 60603
Bid Loans: 135 South LaSalle Street
Chicago, Illinois 60603
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Accepted and Agreed to as of the day and year last above written.
One First National Plaza THE FIRST NATIONAL BANK OF CHICAGO, in its
Mail Suite 0088 individual capacity as a Bank, as Co-
Chicago, Illinois 60670-0088 Syndication Agent and as Co-Agent
Telecopy: (312) 732-1117 By /s/ JERRY KANE
Telephone: (312) 732-1614 -------------------------------
Jerry Kane
Revolving Credit Senior Vice President
Commitment: $35,000,000.00
Lending Offices:
Domestic Rate Loans: One First National Plaza
Mail Suite 0088
Chicago, Illinois 60670-0088
Eurocurrency Loans: One First National Plaza
Mail Suite 0088
Chicago, Illinois 60670-0088
Bid Loans: One First National Plaza
Mail Suite 0088
Chicago, Illinois 60670-0088
Accepted and Agreed to as of the day and year last above written.
One Wall Street, 19th Floor THE BANK OF NEW YORK,
Central Division in its individual capacity as a
New York, New York 10286 Bank and as Co-Agent
Telecopy: (212) 635-1208
Telephone: (212) 635-8204
Revolving Credit
Commitment: $35,000,000.00 By /s/ JOHN C. LAMBERT
----------------------------------
John C. Lambert
Vice President
Lending Offices:
Domestic Rate Loans: 101 Barclay Street
New York, New York 10286
ABA # 021000018
Commercial Loan Servicing Department
GLA#: 111556
Eurocurrency Loans: 101 Barclay Street
New York, New York 10286
ABA # 021000018
Eurodollar/Cayman Funding Area
GLA#: 111556
Bid Loans: 101 Barclay Street
New York, New York 10286
ABA # 021000018
Special Financial Products Department
Account # 803-329-7689
-80-
81
Accepted and Agreed to as of the day and year last above written.
55 East Monroe CAISSE NATIONALE DE CREDIT
Chicago, Illinois 60608-5702 Agricole, in its individual
Telecopy: (312) 372-2830 capacity as a Bank and as Co-Agent
Telephone: (312) 917-7446
Revolving Credit
Commitment: $30,000,000.00
By /s/ DEAN BALICE
----------------------------------
Dean Balice
Senior Vice President
Lending Offices:
Domestic Rate Loans: 55 East Monroe
Chicago, Illinois 60608-5702
Eurocurrency Loans: 55 East Monroe
Chicago, Illinois 60608-5702
Bid Loans: 55 East Monroe
Chicago, Illinois 60608-5702
-81-
82
Accepted and Agreed to as of the day and year last above written.
500 Woodward Avenue COMERICA BANK
Mail Code 3241
Detroit, Michigan 48226
Telecopy: (313) 222-5759
Telephone: (313) 222-9175 By /s/ JEFFREY P. BRADLEY
Revolving Credit -----------------------------------
Commitment: $35,000,000.00 Jeffrey P. Bradley
Lending Offices: Vice President
Domestic Rate Loans:
500 Woodward Avenue
Mail Code 3241
Eurocurrency Loans: Detroit, Michigan 48226
500 Woodward Avenue
Mail Code 3241
Bid Loans: Detroit, Michigan 48226
500 Woodward Avenue
Mail Code 3241
Detroit, Michigan 48226
Accepted and Agreed to as of the day and year last above written.
227 West Monroe Street BANK OF TOKYO-MITSUBISHI (CHICAGO)
Suite 2300
Chicago, Illinois 60606
Telecopy: (312) 696-4535
Telephone: (312) 696-4663 By /s/ NOBORU KOBAYASHI
Revolving Credit -----------------------------------
Commitment: $22,500,000.00 Noboru Kobayashi
Lending Offices: Senior Vice President
Domestic Rate Loans:
227 West Monroe Street
Suite 2300
Eurocurrency Loans: Chicago, Illinois 60606
227 West Monroe Street
Suite 2300
Bid Loans: Chicago, Illinois 60606
227 West Monroe Street
Suite 2300
Chicago, Illinois 60606
-82-
83
Accepted and Agreed to as of the day and year last above written.
25 Park Place, 24th Floor SUNTRUST BANK, ATLANTA
Mail Code 124, P.O. Box 4418
Atlanta, Georgia 30303
Telecopy: (404) 588-8505
Telephone: (404) 658-4918 By /s/ SHELLEY BROWNE
Revolving Credit -----------------------------------
Commitment: $22,500,000.00 Shelley Browne
Lending Offices: Vice President
Domestic Rate Loans:
25 Park Place, 24th Floor
Mail Code 124, P.O. Box 4418
Eurocurrency Loans: Atlanta, Georgia 30303
25 Park Place, 24th Floor
Mail Code 124, P.O. Box 4418
Bid Loans: Atlanta, Georgia 30303
25 Park Place, 24th Floor
Mail Code 124, P.O. Box 4418
Atlanta, Georgia 30303
-83-
84
Accepted and Agreed to as of the day and year last above written.
#1 Mercantile Center, 12th Floor MERCANTILE BANK NATIONAL
St. Louis, Missouri 63101 ASSOCIATION
Telecopy: (314) 425-2203
Telephone: (314) 425-1967 By /s/ DAVID HIGBEE
Revolving Credit -----------------------------------
Commitment: $17,500,000.00 David Higbee
Lending Offices: Vice President
Domestic Rate Loans:
#1 Mercantile Center, 12th Floor
Eurocurrency Loans: St. Louis, Missouri 63101
#1 Mercantile Center, 12th Floor
Bid Loans: St. Louis, Missouri 63101
#1 Mercantile Center, 12th Floor
St. Louis, Missouri 63101
-84-
85
Accepted and Agreed to as of the day and year last above written.
One First Union Center FIRST UNION NATIONAL BANK OF
NC 0745 NORTH CAROLINA
Charlotte, North Carolina 28288-0745
Telecopy: (314) 425-2203
Telephone: (704)383-1392 By /s/ THOMAS CAMBERN
Revolving Credit -----------------------------------
Commitment: $17,500,000.00 Thomas Cambern
Lending Offices: Vice President
Domestic Rate Loans:
One First Union Center
NC 0745
Eurocurrency Loans: Charlotte, North Carolina 28288-0745
One First Union Center
NC 0745
Bid Loans: Charlotte, North Carolina 28288-0745
One First Union Center
NC 0745
Charlotte, North Carolina 28288-0745
-85-
86
Accepted and Agreed to as of the day and year last above written.
1900 East Ninth Street NATIONAL CITY BANK
Cleveland, Ohio 44114
Diego Tobon
Locator 2104
Telecopy: (216) 575-9396
Telephone: (216) 575-3115 By /s/ DIEGO TOBON
Revolving Credit -----------------------------------
Commitment: $20,000,000.00 Diego Tobon
Lending Offices: Vice President
Domestic Rate Loans:
1900 East Ninth Street
Cleveland, Ohio 44114
Diego Tobon
Eurocurrency Loans: Locator 2104
1900 East Ninth Street
Cleveland, Ohio 44114
Diego Tobon
Bid Loans: Locator 2104
1900 East Ninth Street
Cleveland, Ohio 44114
Diego Tobon
Locator 2104
-86-
87
Accepted and Agreed to as of the day and year last above written.
227 West Monroe Street CREDIT LYONNAIS CHICAGO BRANCH
Suite 3800
Chicago, Illinois 60606
Telecopy: (312) 641-0527
Telephone: (312) 220-7317 By /s/ MARY ANN KLEMM
Revolving Credit -----------------------------------
Commitment: $17,500,000.00 Mary Ann Klemm
Lending Offices: Vice President and Group Head
Domestic Rate Loans:
227 West Monroe Street
Suite 3800
Eurocurrency Loans: Chicago, Illinois 60606
227 West Monroe Street
Suite 3800
Bid Loans: Chicago, Illinois 60606
227 West Monroe Street
Suite 3800
Chicago, Illinois 60606
-87-
88
Accepted and Agreed to as of the day and year last above written.
181 West Madison Street THE BANK OF NOVA SCOTIA
Suite 3700
Chicago, Illinois 60602
Telecopy: (312) 201-4108
Telephone: (312) 201-4125 By /s/ F.C.H. ASHBY
Revolving Credit -----------------------------------
Commitment: $22,500,000.00 F.C.H. Ashby
Lending Offices: Senior Manager, Loan Operations
Domestic Rate Loans:
Atlanta Agency
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
Eurocurrency Loans: Attn: Vicki Gibson
Atlanta Agency
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
Bid Loans: Attn: Vicki Gibson
New York Agency
1 Liberty Plaza
New York, New York 10006
Attn: Sarah Schramm
-88-
89
Accepted and Agreed to as of the day and year last above written.
181 West Madison SOCIETE GENERALE CHICAGO BRANCH
Suite 3400
Chicago, Illinois 60602
Telecopy: (312) 578-5099
Telephone: (312) 578-5005 By /s/ JOSEPH A. PHILBIN
Revolving Credit -----------------------------------
Commitment: $17,500,000.00 Joseph A. Philbin
Lending Offices: Vice President
Domestic Rate Loans:
181 West Madison
Suite 3400
Eurocurrency Loans: Chicago, Illinois 60602
181 West Madison
Suite 3400
Bid Loans: Chicago, Illinois 60602
181 West Madison
Suite 3400
Chicago, Illinois 60602
-89-
90
Accepted and Agreed to as of the day and year last above written.
190 South LaSalle Street THE LONG-TERM CREDIT BANK OF JAPAN,
Suite 800 LTD. CHICAGO BRANCH
Chicago, Illinois 60603
Telecopy: (312) 704-8505
Telephone: (312) 704-5482 By /s/ RICHARD E. STAHL
Revolving Credit ----------------------------------
Commitment: $17,500,000.00 Name Richard E. Stahl
Lending Offices: --------------------------------
Domestic Rate Loans: Title Senior Vice President and
Joint General Manager
190 South LaSalle Street
Eurocurrency Loans: Suite 800
Chicago, Illinois 60603
190 South LaSalle Street
Bid Loans: Suite 800
Chicago, Illinois 60603
190 South LaSalle Street
Suite 800
Chicago, Illinois 60603
-90-
91
Accepted and Agreed to as of the day and year last above written.
425 Lexington Avenue CIBC, INC.
New York, New York
Telecopy: (212) 856-3991
Telephone: (212) 856-3650 By /s/ TIMOTHY E. DOYLE
Revolving Credit -----------------------------------
Commitment: $22,500,000.00 Timothy E. Doyle
Lending Offices: Managing Director
Domestic Rate Loans:
Two Paces West
2727 Paces Ferry Road
Suite 1200
Eurocurrency Loans: Atlanta, Georgia 30339
Two Paces West
2727 Paces Ferry Road
Suite 1200
Bid Loans: Atlanta, Georgia 30339
Carol Kizzia
425 Lexington Avenue
New York, New York 10016
-91-
92
EXHIBIT A - Committed Loan Note
EXHIBIT B - Bid Note
EXHIBIT C - Domestic Swing Line Note
EXHIBIT D - Multicurrency Swing Line Note
EXHIBIT E - Notice of Payment Request
EXHIBIT F - Bid Note Request Confirmation
EXHIBIT G - Invitation to Bid
EXHIBIT H - Confirmation of Bid
EXHIBIT I - Notice of Acceptance of Bid
EXHIBIT J - Opinion of Counsel
EXHIBIT K - Compliance Certificate
EXHIBIT L - Form Election to Participate
EXHIBIT M - Form Election to Terminate
EXHIBIT N - Opinion of Counsel
EXHIBIT O - Subsidiary Guarantee Agreement
EXHIBIT P - Outside Investment List
SCHEDULE 9.2 - List of Subsidiaries
SCHEDULE 9.6 - Taxes
SCHEDULE 9.8 - ERISA
SCHEDULE 9.12 - Real Property
-92-
93
EXHIBIT A
COMMITTED LOAN NOTE
_______ __, ____
FOR VALUE RECEIVED, the undersigned, [General Binding Corporation]
[Borrowing Subsidiary], a ____________ corporation (the "Borrower"), promises
to pay to the order of [Name of Bank] (the "Bank") on the Revolving Credit
Termination Date of the hereinafter defined Credit Agreement, at the principal
office of Harris Trust and Savings Bank (the "Administrative Agent"), in
Chicago, Illinois, (or in the case of Committed Loans denominated in an
Alternative Currency, at such office as the Administrative Agent has previously
notified the Borrower) in the currency of such Committed Loan in accordance
with Section 1.1 of the Credit Agreement, the aggregate unpaid principal amount
of all Committed Loans made by the Bank to the Borrower pursuant to the Credit
Agreement, together with interest on the principal amount of such Committed
Loans from time to time outstanding hereunder at the rates, and payable in the
manner and on the dates, specified in the Credit Agreement.
The Bank shall record on its books or records or on a schedule
attached to this Committed Loan Note, which is a part hereof, each Committed
Loan made by it pursuant to the Credit Agreement, together with all payments of
principal and interest and the principal balances from time to time outstanding
hereon, whether the Committed Loan is a Domestic Rate Loan or a Eurocurrency
Loan, the currency thereof and the interest rate and Interest Period applicable
thereto, provided that prior to the transfer of this Committed Loan Note all
such amounts shall be recorded on a schedule attached to this Committed Loan
Note. The record thereof, whether shown on such books or records or on a
schedule to this Committed Loan Note, shall be prima facie evidence of the
same, provided, however, that the failure of the Bank to record any of the
foregoing or any error in any such record shall not limit or otherwise affect
the obligation of the Borrower to repay all Committed Loans made to it pursuant
to the Credit Agreement together with accrued interest thereon.
This Committed Loan Note is one of the Committed Loan Notes referred
to in the Credit Agreement dated as of January 13, 1997, among General Binding
Corporation, Harris Trust and Savings Bank, as Administrative Agent, and the
Banks party thereto (the "Credit Agreement"), and this Committed Loan Note and
the holder hereof are entitled to all the benefits provided for thereby or
referred to therein, to which Credit Agreement reference is hereby made for a
statement thereof. All defined terms used in this Committed Loan Note, except
terms otherwise defined herein, shall have the same meaning as in the Credit
Agreement. This Committed Loan Note shall be governed by and construed in
accordance with the internal laws of the State of Illinois.
Prepayments may be made hereon and this Committed Loan Note may be
declared due prior to the expressed maturity hereof, all in the events, on the
terms and in the manner as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
[BORROWER]
[BORROWING SUBSIDIARY]
By
Its
-93-
94
EXHIBIT B
BID NOTE
_____________, ____
FOR VALUE RECEIVED, the undersigned, [General Binding Corporation]
[Borrowing Subsidiary], a ____________ corporation (the "Borrower"), promises
to pay to the order of [Name of Bank] (the "Bank") on the Revolving Credit
Termination Date of the hereinafter defined Credit Agreement, at the principal
office of Harris Trust and Savings Bank (the "Administrative Agent"), in
Chicago, Illinois, (or in the case of Bid Loans denominated in an Alternative
Currency, at such office as the Administrative Agent has previously notified
the Borrower) in the currency of such Bid Loan in accordance with Section 2.1
of the Credit Agreement, the aggregate unpaid principal amount of all Bid Loans
made by the Bank to the Borrower pursuant to the Credit Agreement, together
with interest on the principal amount of each Bid Loan from time to time
outstanding hereunder at the rates, and payable in the manner and on the dates,
specified in the Credit Agreement.
The Bank shall record on its books or records or on a schedule
attached to this Bid Note, which is a part hereof, each Bid Loan made by it
pursuant to the Credit Agreement, together with all payments of principal and
interest and the principal balances from time to time outstanding hereon,
whether the Bid Loan is a Eurocurrency Bid Loan or a Stated Rate Bid Loan, the
currency thereof and the interest rate and Interest Period applicable thereto,
provided that prior to the transfer of this Bid Note all such amounts shall be
recorded on a schedule attached to this Bid Note. The record thereof, whether
shown on such books or records or on a schedule to this Bid Note, shall be
prima facie evidence of the same, provided, however, that the failure of the
Bank to record any of the foregoing or any error in any such record shall not
limit or otherwise affect the obligation of the Borrower to repay all Bid Loans
made to it pursuant to the Credit Agreement together with accrued interest
thereon.
This Bid Note is one of the Bid Notes referred to in the Credit
Agreement dated as of January 13, 1997, among General Binding Corporation,
Harris Trust and Savings Bank, as Administrative Agent, and the Banks party
thereto (the "Credit Agreement"), and this Bid Note and the holder hereof are
entitled to all the benefits provided for thereby or referred to therein, to
which Credit Agreement reference is hereby made for a statement thereof. All
defined terms used in this Bid Note, except terms otherwise defined herein,
shall have the same meaning as in the Credit Agreement. This Bid Note shall be
governed by and construed in accordance with the internal laws of the State of
Illinois.
Prepayments may be made hereon and this Bid Note may be declared due
prior to the expressed maturity hereof, all in the events, on the terms and in
the manner as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
[GENERAL BINDING CORPORATION] [BORROWING
SUBSIDIARY]
By
Its
-94-
95
EXHIBIT C
DOMESTIC SWING LINE NOTE
$25,000,000.00
January __, 1997
FOR VALUE RECEIVED, the undersigned, [General Binding Corporation]
[Borrowing Subsidiary], a ____________ corporation (the "Borrower"), promises
to pay to the order of Harris Trust and Savings Bank (the "Bank") on the
Revolving Credit Termination Date of the hereinafter defined Credit Agreement,
at the principal office of Harris Trust and Savings Bank, in Chicago, Illinois,
the principal sum of (i) Twenty Five Million and 00/100 Dollars
($25,000,000.00), or (ii) such lesser amount as may at the time of the maturity
hereof, whether by acceleration or otherwise, be the aggregate unpaid principal
amount of all Domestic Swing Line Loans owing from the Borrower to the Bank
under the Domestic Swing Line Commitment provided for in the Credit Agreement.
The Bank shall record on its books or records or on a schedule
attached to this Domestic Swing Line Note, which is a part hereof, each
Domestic Swing Line Loan made by it pursuant to the Credit Agreement, together
with all payments of principal and interest and the principal balances from
time to time outstanding hereon and the interest rates and Interest Period
applicable thereto, provided that prior to the transfer of this Domestic Swing
Line Note all such amounts, interest rates and Interest Periods shall be
recorded on a schedule attached to this Domestic Swing Line Note. The record
thereof, whether shown on such books or records or on a schedule to this
Domestic Swing Line Note, shall be prima facie evidence of the same; provided,
however, that the failure of the Bank to record any of the foregoing or any
error in any such record shall not limit or otherwise affect the obligation of
the Borrower to repay all Domestic Swing Line Loans made to it pursuant to the
Credit Agreement together with accrued interest thereon.
This Domestic Swing Line Note is one of the Domestic Swing Line Notes
referred to in the Credit Agreement dated as of January 13, 1997, among General
Binding Corporation, Harris Trust and Savings Bank, as Administrative Agent,
and the Banks party thereto (the "Credit Agreement"), and this Domestic Swing
Line Note and the holder hereof are entitled to all the benefits provided for
thereby or referred to therein, to which Credit Agreement reference is hereby
made for a statement thereof. All defined terms used in this Domestic Swing
Line Note, except terms otherwise defined herein, shall have the same meaning
as in the Credit Agreement. This Domestic Swing Line Note shall be governed by
and construed in accordance with the internal laws of the State of Illinois.
Prepayments may be made hereon and this Domestic Swing Line Note may
be declared due prior to the expressed maturity hereof, all in the events, on
the terms and in the manner as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
[GENERAL BINDING CORPORATION] [BORROWING
SUBSIDIARY]
By
Its
-95-
96
EXHIBIT D
MULTICURRENCY SWING LINE NOTE
January __, 1997
FOR VALUE RECEIVED, the undersigned, [General Binding Corporation]
[Borrowing Subsidiary], a ____________ corporation (the "Borrower"), promises
to pay to the order of LaSalle National Bank (the "Bank") on the Revolving
Credit Termination Date of the hereinafter defined Credit Agreement, at such
office as the Bank has previously notified the Borrower, in the currency of
such Multicurrency Swing Line Loan in accordance with Section 4.1 of the Credit
Agreement, the aggregate unpaid principal amount of all Multicurrency Swing
Line Loans made by the Bank to the Borrower pursuant to the Credit Agreement,
together with interest on the principal amount of each Multicurrency Swing Line
Loan from time to time outstanding hereunder at the rates, and payable in the
manner and on the dates, specified in the Credit Agreement.
The Bank shall record on its books or records or on a schedule
attached to this Multicurrency Swing Line Note, which is a part hereof, each
Multicurrency Swing Line Loan made by it pursuant to the Credit Agreement,
together with all payments of principal and interest and the principal balances
from time to time outstanding hereon, the currency thereof and the interest
rate and Interest Period applicable thereto, provided that prior to the
transfer of this Multicurrency Swing Line Note all such amounts, currencies,
interest rates and Interest Periods shall be recorded on a schedule attached to
this Multicurrency Swing Line Note. The record thereof, whether shown on such
books or records or on a schedule to this Multicurrency Swing Line Note, shall
be prima facie evidence of the same; provided, however, that the failure of the
Bank to record any of the foregoing or any error in any such record shall not
limit or otherwise affect the obligation of the Borrower to repay all
Multicurrency Swing Line Loans made to it pursuant to the Credit Agreement
together with accrued interest thereon.
This Multicurrency Swing Line Note is one of the Multicurrency Swing
Line Notes referred to in the Credit Agreement dated as of January 13, 1997,
among General Binding Corporation, Harris Trust and Savings Bank, as
Administrative Agent, and the Banks party thereto (the "Credit Agreement"), and
this Multicurrency Swing Line Note and the holder hereof are entitled to all
the benefits provided for thereby or referred to therein, to which Credit
Agreement reference is hereby made for a statement thereof. All defined terms
used in this Multicurrency Swing Line Note, except terms otherwise defined
herein, shall have the same meaning as in the Credit Agreement. This
Multicurrency Swing Line Note shall be governed by and construed in accordance
with the internal laws of the State of Illinois.
Prepayments may be made hereon and this Multicurrency Swing Line Note
may be declared due prior to the expressed maturity hereof, all in the events,
on the terms and in the manner as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
[GENERAL BINDING CORPORATION] [BORROWING
SUBSIDIARY]
By
Its
-96-
97
EXHIBIT E
NOTICE OF PAYMENT REQUEST
[Name of Bank]
[Date]
[Address]
Attention:
Reference is made to the Credit Agreement, dated as of January 13,
1997 among General Binding Corporation, Harris Trust and Savings Bank, as
Administrative Agent, and the Banks party thereto (the "Credit Agreement").
Capitalized terms used herein and not defined herein have the meanings assigned
to them in the Credit Agreement. [[General Binding Corporation] [Borrowing
Subsidiary] has failed to pay its Reimbursement Obligation in the amount of
$__________. Your Bank's Percentage of the unpaid Reimbursement Obligation is
$____________] or [the Administrative Agent has been required to return a
payment by [General Binding Corporation] [Borrowing Subsidiary] of a
Reimbursement Obligation in the amount of $____________. Your Bank's
Percentage of the returned Reimbursement Obligations is $____________.]
Very truly yours,
HARRIS TRUST AND SAVINGS BANK, as
Administrative Agent for the Banks
By
Its
-97-
98
EXHIBIT F
BID LOAN REQUEST CONFIRMATION
[Date]
Harris Trust and Savings Bank,
as Administrative Agent for the Banks
party to the Credit Agreement
referred to below
111 West Monroe Street
Chicago, Illinois 60690
Attention: Agency Services
The undersigned, [General Binding Corporation] [Borrowing Subsidiary]
(the "Borrower") refers to the Credit Agreement dated as of January 13, 1997
(the "Credit Agreement"), among General Binding Corporation, the Banks named
therein, Harris Trust and Savings Bank as Administrative Agent for the Banks.
Capitalized terms used and not defined herein have the meanings assigned to
them in the Credit Agreement. The Borrower hereby confirms that it has, on the
date hereof, given you notice pursuant to Section 2.2 of the Credit Agreement
that it requests a Bid Loan Borrowing under the Credit Agreement, and in that
connection sets forth below the terms on which such Bid Loan Borrowing is
requested to be made:
(A) Type of Bid Loan Borrowing(1)
--------------
(B) Date of Bid Loan Borrowing(2) [Business Day]
--------------
(C) Currency
--------------
(D) Borrower
--------------
- ----------------
(1) Stated Rate or Eurocurrency.
(2) The Bid Loan Request Confirmation must be received on a Business Day by the
Agent not later than 2:30 p.m. (Chicago time) one (1) Business Day before
the proposed Borrowing Date in the case of Stated Rate Bid Loans and five
(5) Business Days before the proposed Borrowing Date in the case of
Eurodollar Bid Loans.
-98-
99
(E) Aggregate Principal Amount of Stated Rate Eurocurrency
----------- ------------
Bid Loan Borrowing(3)
--------------- ---------------
(F) Maturities(4)
--------------- ---------------
--------------- ---------------
--------------- ---------------
(G) If applicable, maximum amount
requested for each maturity
--------------- ---------------
--------------- ---------------
--------------- ---------------
(H) Place of disbursement
--------------- ---------------
Upon acceptance of any or all of the Bids offered by Banks in response to this
request, the Borrower shall be deemed to affirm as of such date the
representations and warranties made in the Credit Agreement to the extent
specified in Section 8 thereof.
Very truly yours,
[GENERAL BINDING CORPORATION] [BORROWING
SUBSIDIARY]
By
Its
- -----------------
(3) Not less than an Original Dollar Amount of $3,000,000 and in integral
multiples of 1,000,000 units of the relevant currency.
(4) List up to 3 maturities of 1 to 180 days in the case of Stated Rate Bid
Loans and 1, 2, 3, 4, 5 or 6 months in the case of Eurocurrency Bid Loans,
but never beyond the Termination Date.
-99-
100
EXHIBIT G
INVITATION TO BID
[Name of Bank]
[Date]
[Address]
Attention:
Reference is made to the Credit Agreement, dated as of January 13,
1997 (the "Credit Agreement") among General Binding Corporation, the Banks
named therein, Harris Trust and Savings Bank as Administrative Agent for the
Banks. Capitalized terms used and not defined herein have the meanings
assigned to them in the Credit Agreement. [The Borrower] [Borrowing
Subsidiary] made a Bid Loan Request on ______________, 19__ pursuant to Section
2.2 of the Credit Agreement, and in that connection you are invited to submit
a Bid by [Date](5) . Your Bid must comply with Section 2.2 of the Credit
Agreement and the terms set forth below on which the Bid Loan Request was made.
(A) Type (Stated Rate or Eurocurrency)
---------------------
(B) Date of Proposed Bid Loan Borrowing
---------------------
(C) Currency
---------------------
(D) Borrower
---------------------
Stated Rate Eurocurrency
----------- ------------
(E) Aggregate Principal Amount
of Bid Loan
----------------- ---------------------
(F) Maturities and maximum
amount, if different from
(E), for any maturity
----------------- ---------------------
(G) Place of disbursement
----------------- ---------------------
(H) Place of payment
----------------- ---------------------
Very truly yours,
HARRIS TRUST AND SAVINGS BANK,
as Administrative Agent for the Banks
By
Its
- -----------------
(5) The Bid must be received by the Agent not later than 10:00 a.m., Chicago
time, on the proposed Borrowing Date for Stated Rate Bid Loans and 3:00
p.m., Chicago time, four (4) Business Days prior to the proposed Borrowing
Date for Eurocurrency Bid Loans.
-100-
101
EXHIBIT H
CONFIRMATION OF BID
[Date]
Harris Trust and Savings Bank,
as Administrative Agent for the Banks party to the
Credit Agreement referred to below
111 West Monroe Street
Chicago, Illinois 60690
Attention: Agency Services
The undersigned, NAME OF BANK], refers to the Credit Agreement dated
as of January 13, 1997 (the "Credit Agreement") among General Binding
Corporation, the Banks named therein, Harris Trust and Savings Bank as
Administrative Agent for the Banks. Capitalized terms used and not defined
herein have the meanings assigned to them in the Credit Agreement. The
undersigned hereby confirms that on the date hereof it has made a Bid pursuant
to Section 2.2 of the Credit Agreement, in response to the Bid Loan Request
made by [General Binding Corporation] [Borrowing Subsidiary] on _____________,
19__, and in that connection sets forth below the terms on which such Bid is
made:
Type (Stated Rate or Eurocurrency):
-----------------------
Currency
-----------------------
Date of proposed Bid Loan Borrowing: (6)
-----------------------
Borrower
-----------------------
Place of disbursement/payment /
------------ ---------
Interest Rate or spread
Principal Amount(7) Maturity(8) above or below LIBOR(9)
- ---------------- -------- --------------------
Very truly yours,
[NAME OF BANK]
By
Its
- -----------------
(6) As specified in the related Invitation to Bid.
(7) Principal amount of bid for each maturity may not exceed the principal
amount requested by the Company or the maximum amount requested for that
maturity, whichever is less. Bids must be made in a minimum an Original
Dollar Amount of $3,000,000 and in integral multiples of 1,000,000 units of
the relevant currency.
(8) List each maturity of 1 to 180 days in the case of Stated Rate Bid Loans
and 1, 2, 3, 4, 5 or 6 months in the case of Eurocurrency Bid Loans.
(9) Specify rate of interest per annum for Stated Rate Bid Loans and percentage
to be added to or subtracted from LIBOR for Eurocurrency Bid Rate Loans.
-101-
102
EXHIBIT I
NOTICE OF ACCEPTANCE OF BID
[Name of Bank]
[Date]
[Address]
Attention:
Reference is made to the Credit Agreement, dated as of January 13,
1997 (the "Credit Agreement") among General Binding Corporation, the Banks
named therein, Harris Trust and Savings Bank as Administrative Agent for the
Banks. Capitalized terms used and not defined herein have the meanings
assigned to them in the Credit Agreement. [The Borrower] [Borrowing
Subsidiary] made a Bid Loan Request on _____________, 19__ pursuant to Section
2.2 of the Credit Agreement, and in that connection you have submitted a Bid.
Your Bid has been accepted as set forth below.
(A) Type of Bid Loan
---------------
(B) Date of Bid Loan Borrowing
---------------
(C) Borrower
---------------
(D) Place of disbursement/payment /
------- --------
(E) Aggregate principal amount Interest
of each Bid maturity and Rate or
interest rate Principal Spread above or
Amount Currency Maturity below LIBOR
------- -------- -------- ---------------
Very truly yours,
HARRIS TRUST AND SAVINGS BANK,
as Administrative Agent for the Banks
By
Its
-102-
103
EXHIBIT J-1
To each of the Banks named in the
hereinafter defined Credit Agreement
c/o HARRIS TRUST AND SAVINGS BANK,
as Administrative Agent for the Banks party to the
Credit Agreement referred to below
111 West Monroe Street
Chicago, Illinois 60690
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 11.1(a) of the Credit
Agreement, dated as of January 13, 1997 (the "Credit Agreement"), among General
Binding Corporation, a Delaware corporation, the Banks named therein and Harris
Trust and Savings Bank as Administrative Agent for the Banks. Unless otherwise
defined herein, all capitalized terms used and not defined herein shall have
the meanings assigned to them in the Credit Agreement.
I am the Vice President and General Counsel of the Company and have acted
as counsel for the Company and for GBC Business Equipment Inc., a Florida
corporation; GBC International, Inc., a Nevada corporation; Pro-Tech
Engineering Co., Inc., a Wisconsin corporation; Sickinger Company, a Michigan
corporation; U.S. RingBinder Corp., a Massachusetts corporation; and VeloBind,
Incorporated, a Delaware corporation (the "Guarantors") in connection with the
preparation, execution and delivery of the Credit Agreement.
In that connection, I have examined originals or copies, certified or
otherwise identified to my satisfaction, of:
(1) The Credit Agreement.
(2) The Notes executed by the Company on the date hereof.
(3) The Certificate or Articles of Incorporation of the Borrower and each
Guarantor, and all amendments thereto (the "Charters").
(4) The by-laws of the Borrower and the Guarantors and all amendments
thereto (the "By-laws").
(5) A Certificate of the Secretary of State of each jurisdiction in which
the Company or any Guarantor is organized, dated no earlier than
_________________, attesting to the continued corporate existence and good
standing of the Company or such Guarantor, as the case may be, in such
jurisdiction.
The Credit Agreement and the Notes are hereinafter referred to as the "Loan
Documents".
I have also examined the originals, or copies certified to my
satisfaction, of the documents listed in a certificate of the chief financial
officer of the Company, dated the date hereof the "Certificate"), certifying
that the documents listed in such certificate are all of the indentures, loan or
credit agreements, leases, guarantees, mortgages, security agreements, bonds,
notes and other agreements or instruments, and all of the orders, writs,
judgments, awards, injunctions and decrees, that affect or purport to affect the
Company's or any Guarantor's right to borrow money or the Company's or any
Guarantor's obligations under the Loan Documents. In addition, I have
104
January 13, 1997
Page 2
examined the originals, or copies certified to my satisfaction, of such (i)
certificates of public officials, (ii) certificates of officers and
representatives of the Company, and (iii) other documents and records, and I
have made such inquiries of officers and representatives of the Company and the
Guarantors, as I have deemed relevant or necessary as the basis for the opinions
expressed below. I have relied as to factual matters upon, and assumed the
accuracy of, such certificates and other statements, documents and records
supplied to me by the Company and the Guarantors, and I have assumed the
genuineness of all signatures (other than signatures of officers of the Company
and the Guarantors) and the authenticity of all documents submitted to me as
originals and the conformity to original documents of all documents submitted to
me as certified or photostatic copies.
My opinions expressed below are limited to the laws of the State of
Illinois, the General Corporation Law of the State of Delaware and the federal
law of the United States.
Based upon the foregoing and subject to the qualifications stated herein,
I am of the opinion that, as of the date hereof:
1. The Company and each Guarantor is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation, and has the corporate power to carry on its present business.
2. The execution, delivery and performance of the Loan Documents by the
Company and each Guarantor, and the consummation of the transactions
contemplated thereby, are within the Company's and each Guarantor's respective
corporate powers, have been duly authorized by all necessary corporate action,
and do not contravene (i) the Charters or the By-laws, or (ii) any contractual
or legal restriction contained in any document listed in the Certificate or, to
my knowledge, contained in any other similar document.
3. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance of the Loan Documents by the Company or
any Guarantor.
4. The Loan Documents have been duly executed and delivered on behalf of
the Company and each Guarantor.
5. To my knowledge, there are no pending or threatened actions or
proceedings against the Company or any of its Subsidiaries before any court,
governmental agency or arbitrator that purport to affect the legality,
validity, binding effect or enforceability of the Credit Agreement or any of
the Notes or the consummation of the transactions contemplated thereby, or that
could reasonably be expected to result in a Material Adverse Effect.
The opinions expressed herein are being delivered to you as of the date
hereof and are solely for your benefit in connection with the transactions
contemplated in the Credit Agreement and may not be relied on in any manner or
for any purpose by any other person, nor any copies published, communicated or
otherwise made available in whole or in part to any other person or entity
without my express prior written consent, except that you may furnish copies
thereof to each party that becomes a Bank after the date hereof pursuant to the
Credit Agreement, and such parties may rely on this opinion as if it had been
originally addressed to them. You may also furnish copies thereof to any
prospective participant or assignee, provided that such disclosure is subject to
Section 17.23 of the Credit Agreement.
105
January 13, 1997
Page 3
I do not express any opinion, either implicitly or otherwise, on any issue
not expressly addressed in numbered Paragraphs 1 through 5. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and I assume no obligation to revise or supplement
this opinion should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may affect the legal analysis or conclusions
contained in this opinion.
I am an employee, officer and stockholder of the Company.
Very truly yours,
106
EXHIBIT J-2
January 13, 1997
To each of the Banks named in the
hereinafter defined Credit Agreement
c/o HARRIS TRUST AND SAVINGS BANK,
as Administrative Agent for the Banks party to the
Credit Agreement referred to below
111 West Monroe Street
Chicago, Illinois 60690
Re: General Binding Corporation
Ladies and Gentlemen:
We have acted as counsel to General Binding Corporation, a Delaware
corporation (the "Company") and for GBC Business Equipment, Inc., a Florida
corporation; GBC International, Inc., a Nevada corporation; Pro-Tech
Engineering Co., Inc., a Wisconsin corporation; Sickinger Company, a Michigan
corporation; U.S. RingBinder Corp., a Massachusetts corporation; and VeloBind,
Incorporated, a Delaware corporation, in connection with the Credit Agreement
of even date herewith (the "Credit Agreement") among the Company, the financial
institutions parties thereto (the "Banks") and Harris Trust and Savings Bank,
as Administrative Agent, and the transactions contemplated thereby. The
Company and the Guarantors are collectively referred to herein as the "Loan
Parties".
This opinion is furnished to you at the request of the Company pursuant to
Section 11.1(a) of the Credit Agreement. Capitalized terms used herein and not
otherwise defined are used as defined in the Credit Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Credit Agreement,
and the Notes executed by the Company in favor of the Banks signatory to the
Credit Agreement on the date hereof (the "Notes"; and collectively with the
Credit Agreement, the "Loan Documents").
In rendering the opinions set forth herein, we have also examined
originals or copies, certified to our satisfaction, of such (i) certificates of
public officials, (ii) certificates of officers and representatives of the Loan
Parties, and (iii) other documents and records, and we have made such inquiries
of officers and representatives of the Loan Parties, as we have deemed relevant
or necessary as the basis for such opinions. We have relied as to factual
matters upon, and assumed the accuracy of, such certificates, the
representations and warranties of the Loan Parties made in the Loan Documents
and other statements, documents and records supplied to us by the Loan Parties,
and we have assumed the genuineness of all signatures and the authenticity of
all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as certified or photostatic copies.
107
Harris Trust and Savings Bank, et al.
January 13, 1997
Page 2
In rendering the opinions set forth herein, we have assumed that:
(i) all the parties to the Loan Documents are duly organized,
validly existing and in good standing under the laws of their respective
jurisdictions of organization and have the requisite corporate power to
enter into the Loan Documents; and
(ii) the execution and delivery of the Loan Documents have been
duly authorized by all necessary corporate action and proceedings on the
part of all parties thereto; the Loan Documents have been duly executed
and delivered by all parties thereto and constitute the valid and binding
obligation of all parties thereto other than the Loan Parties,
enforceable against such parties in accordance with their respective
terms.
To the extent that our opinions expressed below involve conclusions as to
the matters set forth or in paragraphs 1, 2, 3 and 4 of the opinion addressed
to you, of even date herewith, of Steven Rubin, the General Counsel of the
Company, we have assumed without independent investigation the correctness of
the matters set forth in such paragraphs, our opinion being subject to the
assumptions, qualifications and limitations set forth in such opinions with
respect thereto.
Based upon the foregoing and subject to the qualifications stated herein,
we are of the opinion that, as of the date hereof:
1. Each Loan Document constitutes the valid and binding obligation of the
Loan Party executing the same, enforceable against each such party,
respectively, in accordance with its terms.
2. The execution, delivery and performance of the Loan Documents by the
Loan Parties, and the consummation of the transactions contemplated thereby, do
not contravene any law, rule or regulation applicable to any Loan Party
(including, without limitation, any usury laws or Regulation U or Regulation X
of the Board of Governors of the Federal Reserve System).
3. Neither the Company nor any Guarantor is an "investment company" or a
company "controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended.
Our opinions above are subject to the following qualifications:
(a) Our opinions relating to validity, binding effect and enforceability
in Paragraph 1 above are subject to limitations imposed by any
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws affecting creditors' rights
generally. In addition, our opinions relating to enforceability in
paragraph 1 above are subject to (i) the effect of general principles
of equity (regardless of whether considered in a proceeding in equity
or at law) and (ii) limitations imposed by public policy under
certain circumstances on the enforceability of provisions
indemnifying a party against liability for its own wrongful or
negligent acts. In applying principles of equity referred to in
clause (i) above, a court, among other things, might not allow a
creditor to accelerate maturity of a debt upon the occurrence of a
default deemed immaterial. Such principles applied by a court might
include a requirement that a creditor act reasonably and in good
faith.
108
Harris Trust and Savings Bank, et al.
January 13, 1997
Page 3
(b) Certain remedial and waiver provisions of the Loan Documents
may be unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Loan Documents; however,
the unenforceability of such provisions may result in delays in the
enforcement of the Administrative Agent's and the Banks' rights and
remedies under the Loan Documents (and we express no opinion as to the
economic consequences, if any, of such delays).
(c) We express no opinion as to the effect of the compliance or
noncompliance of the Administrative Agent or any of the Banks with any
state or federal laws or regulations applicable to the Administrative
Agent or any of the Banks because of the Administrative Agent's or any of
the Banks' legal or regulatory status, the nature of the business of the
Administrative Agent or any of the Banks or the qualification of any such
party to conduct business in any jurisdiction.
The foregoing opinions are limited to the laws of the United States and
the State of Illinois, and we express no opinion with respect to the laws of
any other state or jurisdiction. In addition, except as otherwise specifically
set forth herein, we express no opinion herein as to any of the topics listed
under Section 19, "Specific Legal Issues," of the Third-Party Legal Opinion
Report, Including the Legal Opinion Accord, of the Section of Business Law,
American Bar Association, 47 Bus. Law. 167 (1991).
The opinions expressed herein are being delivered to you as of the date
hereof and are solely for your benefit in connection with the transactions
contemplated in the Credit Agreement and may not be relied on in any manner or
for any purpose by any other person, nor any copies published, communicated or
otherwise made available in whole or in part to any other person or entity
without our express prior written consent, except that you may furnish copies
thereof to each party that becomes a Bank after the date hereof pursuant to the
Credit Agreement, and such parties may rely on this opinion as if it had been
originally addressed to them. You may also furnish copies thereof to any
prospective participant or assignee, provided that such disclosure is subject
to Section 17.23 of the Credit Agreement.
We do not express any opinion, either implicitly or otherwise, on any
issue not expressly addressed in numbered Paragraphs 1 through 3. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and we assume no obligation to revise or supplement
this opinion should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may affect the legal analysis or conclusions
contained in this opinion.
Very truly yours,
109
EXHIBIT K
COMPLIANCE CERTIFICATE
To: The Banks parties to the
Credit Agreement
described below
This Compliance Certificate is furnished pursuant to that certain
Credit Agreement dated as of January 13, 1997, among General Binding
Corporation, the Banks signatory thereto and Harris Trust and Savings Bank, as
Administrative Agent for the Banks. Unless otherwise defined herein, the terms
used in this Compliance Certificate have the meanings ascribed thereto in the
Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _______________ of the Company;
2. I have reviewed the terms of the Credit Agreement and
I have made, or have caused to be made under my supervision, a
detailed review of the transactions and conditions of the Company and
its Subsidiaries during the accounting period covered by the attached
financial statements;
3. The examinations described in Paragraph 2 did not
disclose, and I have no knowledge of, the existence of any condition
or event which constitutes a Default or Event of Default during or at
the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set forth
below; and
4. Schedule I attached hereto sets forth financial data
and computations evidencing the Company's compliance with certain
covenants of the Agreement, all of which data and computations are
true, complete and correct.
Described below are the exceptions, if any, to Paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Company has taken, is taking, or proposes to
take with respect to each such condition or event:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this ____ day of
______________, 19__.
Name:
Title:
-105-
110
SCHEDULE I TO COMPLIANCE CERTIFICATE
GENERAL BINDING CORPORATION
Compliance Calculations for Credit Agreement
Dated as of January 13, 1997
Calculations as of ________________, 19__
A. CURRENT RATIO (SECTION 12.16 OF THE AGREEMENT)
1. Current Assets $
-----------------
A1
2. Current Liabilities (excluding Loans) $
-----------------
A2
3. Ratio of Line A1 to Line A2 ____: 1.0
A3
4. Line A3 Ratio must be greater than: 1.25: 1.0
5. Is Company in Compliance? (Circle Yes or No) Yes / No
B. CONSOLIDATED SHAREHOLDER'S EQUITY (SECTION 12.15 OF THE AGREEMENT)
1. Consolidated Shareholder's Equity $
-----------------
B1
2. Line B1 must be greater than or equal to
(the Minimum Required Amount):
$
-----------------
3. Is Company in Compliance? (Circle Yes or No) Yes / No
C. LEVERAGE RATIO (SECTION 12.17 OF THE AGREEMENT)
1. Total Consolidated Debt $
-----------------
C1
2. Consolidated Net Income for the specified fiscal quarter or $
quarters of the Company most recently completed -----------------
C2
-106-
111
3. Interest Expense for the same period $
-----------------
C3
4. Federal, state and local income taxes for the same period $
-----------------
C4
5. Deprecation of fixed assets for the same period $
-----------------
C5
6. Amortization for the same period $
-----------------
C6
7. Add Lines C2-C6 (Consolidated EBITDA) $
-----------------
C7
8. Ratio of Line C1 to C7 _____ : 1.0
9. Line C8 Ratio must be less than or equal to: _____ : 1.0
10. Is Company in Compliance? (Circle Yes or No) Yes / No
D. INTEREST COVERAGE RATIO (SECTION 12.18 OF THE AGREEMENT)
1. Interest Expense for the specified fiscal quarter or quarters of the $
Company most recently completed -----------------
D1
2. Consolidated EBITDA for the same period (from Line C7 above) $
-----------------
D2
3. Ratio of Line D2 to Line D1 _____ : 1.0
4. Line D3 ratio must not be less than: _____ : 1.0
5. Is Company in Compliance? (Circle Yes or No) Yes / No
-107-
112
E. LIMITATION ON OUTSIDE INVESTMENTS (SECTION 12.14(h) OF THE AGREEMENT)
1. Outside Investments as per Outside Investment List $
-----------------
E1
2. Base Outside Investment Amount $
-----------------
E2
3. Incremental Outside Investment Amount $
-----------------
E3
4. Line E2 plus Line E3 $
-----------------
E4
5. Is Company in Compliance (Is Line E1 less than Line E4)? (Circle Yes or No) Yes / No
-108-
113
EXHIBIT L
FORM OF ELECTION TO PARTICIPATE
___________, 19__
HARRIS TRUST AND SAVINGS BANK,
as Administrative Agent for the Banks party to the
Credit Agreement referred to below
111 West Monroe Street
Chicago, Illinois 60690
Dear Sirs:
Reference is made to the Credit Agreement, dated as of January 13,
1997 (the "Credit Agreement") among General Binding Corporation, the Banks
named therein, Harris Trust and Savings Bank as Administrative Agent for the
Banks. Capitalized terms used and not defined herein have the meanings
assigned to them in the Credit Agreement.
The undersigned, [name of Borrowing Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to be a Borrowing Subsidiary for
purposes of the Credit Agreement, effective from the date hereof until an
Election to Terminate shall have been delivered on behalf of the undersigned in
accordance with the Credit Agreement. The undersigned confirms that (i) it is
a Wholly-Owned Subsidiary of the Borrower hereunder, (ii) it has irrevocably
appointed the Borrower as its agent under Section 5.10 of the Credit Agreement;
(iii) the execution, delivery and performance by it of the Credit Agreement,
this Election to Participate and the Notes which it has executed and delivered
are within its corporate powers, have been duly authorized by all necessary
corporate action, requires no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of its charter
or by-laws or of any agreement or instrument to which it is a party or is
subject, or by which it, or its property, is bound, or of any judgment,
injunction, order, decree or other instrument binding upon it or result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries, (iv) the Credit Agreement and the Notes constitute valid and
binding obligations of the undersigned subject to general principles of equity
and bankruptcy, reorganization, insolvency and similar laws of general
application to enforcement of creditors' rights and (v) the representations and
warranties set forth in Section 9 of the Credit Agreement are true and correct
as to the undersigned as of the date hereof, and the undersigned hereby agrees
to perform all the obligations of a Borrowing Subsidiary under, and to be bound
in all respects by the terms of, the Credit Agreement, including without
limitation Section 17.16 thereof, as if the undersigned were a direct signatory
party thereto.
All notices to the undersigned under the Credit Agreement should be
directed to General Binding Corporation at its address for notices specified
pursuant to Section 17.8 of the Credit Agreement. This instrument shall be
construed in accordance with and governed by the internal laws of the State of
Illinois.
Very truly yours,
[NAME OF BORROWING SUBSIDIARY]
By
Name
Title
-109-
114
The undersigned hereby confirms that [name of Borrowing Subsidiary] is
a Borrowing Subsidiary for purposes of the Credit Agreement described above.
GENERAL BINDING CORPORATION
By
Name
Title
Receipt of the above Election to Participate is hereby acknowledged on
and as of _____________________.
HARRIS TRUST AND SAVINGS BANK,
as Administrative Agent for the Banks
By
Name
Title
-110-
115
EXHIBIT M
FORM OF ELECTION TO TERMINATE
___________, 19__
HARRIS TRUST AND SAVINGS BANK,
as Administrative Agent for the Banks party to the
Credit Agreement referred to below
111 West Monroe Street
Chicago, Illinois 60690
Dear Sirs:
Reference is made to the Credit Agreement, dated as of January 13,
1997 (the "Credit Agreement") among General Binding Corporation, the Banks
named therein, Harris Trust and Savings Bank as Administrative Agent for the
Banks. Capitalized terms used and not defined herein have the meanings
assigned to them in the Credit Agreement.
The undersigned, [name of Borrowing Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to terminate its status as a
Borrowing Subsidiary for purposes of the Credit Agreement, effective as of the
date hereof. The undersigned hereby represents and warrants that all principal
and interest on all Notes of the undersigned and all other amounts payable by
the undersigned pursuant to the Credit Agreement have been paid in full on or
prior to the date hereof. Notwithstanding the foregoing, this Election to
Terminate shall not affect any obligation of the undersigned under the Credit
Agreement or under any Note heretofore incurred.
This instrument shall be construed in accordance with and governed by
the internal laws of the State of Illinois.
Very truly yours,
[NAME OF BORROWING SUBSIDIARY]
By
Name
Title
-111-
116
The undersigned hereby confirms that the status of [name of Borrowing
Subsidiary] as a Borrowing Subsidiary for purposes of the Credit Agreement
described above is terminated as of the date hereof.
GENERAL BINDING CORPORATION
By
Name
Title
Receipt of the above Election to Terminate is hereby acknowledged on
and as of ______________________.
HARRIS TRUST AND SAVINGS BANK,
as Administrative Agent for the Banks
By
Name
Title
-112-
117
EXHIBIT N
To each of the Banks named in the
hereinafter defined Credit Agreement
c/o HARRIS TRUST AND SAVINGS BANK,
as Administrative Agent for the Banks party to the
Credit Agreement referred to below
111 West Monroe Street
Chicago, Illinois 60690
Gentlemen:
We have acted as counsel to [Name of Borrowing Subsidiary], a
_____________ corporation (the "Borrower"), in connection with the
authorization of and the execution and delivery of the Credit Agreement, dated
as of January 13, 1997 (the "Credit Agreement") among General Binding
Corporation, the Banks named therein, Harris Trust and Savings Bank as
Administrative Agent for the Banks. All capitalized terms used and not defined
herein shall have the meanings assigned to them in the Credit Agreement.
In our capacity as such counsel, we have made such investigations of
fact and have considered such questions of law as we have deemed necessary for
the purposes of this opinion, which is delivered to you pursuant to Section
11.3(a) of the Credit Agreement. Based on the foregoing, it is our opinion
that:
(i) the Borrower is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation; has the corporate power to carry on its present
business; is duly licensed or qualified in all states and
jurisdictions wherein the nature of the business carried on by it or
the assets and properties owned or leased by it requires such
qualification or licensing; and the Borrower has the corporate power
and authority to enter into the Credit Agreement, to make the
borrowings therein provided for, to issue its Notes, and to perform
each and all of the matters and things therein provided for.
(ii) The Credit Agreement and the Notes delivered on the
date hereof have been duly authorized, executed, and delivered by and
on behalf of the Borrower and all constitute legal, valid, and
enforceable obligations of the Borrower, except to the extent affected
by bankruptcy, insolvency or other similar laws relating to or
affecting the enforcement of creditors' rights and remedies generally
and general principles of equity.
(iii) The Credit Agreement and the Notes, do not, nor will
the performance or observance by the Borrower of any of the matters
and things therein provided for, contravene any provision of law
applicable to the Borrower, any judgment or decree applicable to the
Borrower, the Articles of Incorporation, or By-laws of the Borrower,
or, any indenture or material agreement to which the Borrower is a
party or by which it or any of its properties is bound.
(iv) All authorizations, consents, approvals, filings,
registrations, exemptions and regulatory approvals necessary to permit
execution of the Credit Agreement and performance of its obligations
thereunder by the Borrower, and to permit borrowings by the Borrower
under the Credit Agreement and the issuance of the Notes, have been
obtained and remain in full force and effect.
(v) There is no litigation or governmental proceeding
pending or to the best of our knowledge threatened, against the
Borrower which could reasonably be expected to (i) materially
adversely affect the business and properties of the Borrower on a
consolidated basis or (ii) impair the validity or enforceability of
the Credit Agreement or the Notes or materially impair the ability of
the Borrower to perform its obligations under the Credit Agreement or
the Notes.
-113-
118
[(vi) Except for ________, the execution and delivery of
the Agreement and the Notes are not subject to any tax, duty, fee or
other charge, including, without limitation, any registration or
transfer tax, stamp duty or similar levy, imposed by or within [insert
jurisdiction of incorporation] or any political subdivision or taxing
authority thereof or therein.
(vii) Neither the Borrower nor its property has any right
of immunity on grounds of sovereignty or otherwise from jurisdiction,
attachment (before or after judgment) or execution in respect of any
action or proceeding relating in any way to the Agreement or the Notes
that may be brought in the courts of [insert jurisdiction of
incorporation].
(viii) There are no legal impediments to your access to the
courts of [insert relevant jurisdiction] nor shall you be required to
qualify under any statute or law or pay any franchise tax, stamp tax
or similar fee to gain such access, whether in respect of a direct
suit on the Credit Agreement or a proceeding to register a judgment
obtained before a court in the United States, except for such fees as
would be required of plaintiffs, both resident and non-resident, in
seeking access to the courts of [insert relevant jurisdiction]; nor
except for ________, will you be resident, domiciled, carrying on
business or otherwise subject to taxation in [insert relevant
jurisdiction] by reason only of your execution, delivery or
performance the Credit Agreement or enforcement of the Credit
Agreement or the Notes;
(ix) The Borrower has the power to submit, and pursuant to
the Credit Agreement has legally, validly, effectively and irrevocably
submitted, to the jurisdiction of the courts of the State of Illinois
and of the United States for the Northern District of Illinois in
respect of any action or proceeding relating in any way to the Credit
Agreement or the Notes.
(x) The choice by the parties to the Credit Agreement of
the law of the State of Illinois as governing law should be recognized
by the courts of ___________ as legal, valid and binding.(10)
In rendering the opinions expressed above, we have examined originals,
or copies of originals certified to our satisfaction, of such agreements,
documents, certificates and other statements of government officials and
corporate officers and such other papers and evidence as we have deemed
relevant and necessary as a basis for this opinion.
Respectfully submitted,
- -----------------
(10) Insert for Non-U.S. Borrowing Subsidiaries.
-114-
119
EXHIBIT O
SUBSIDIARY GUARANTEE AGREEMENT
_____________, 19___
HARRIS TRUST AND SAVINGS BANK,
as Administrative Agent for the Banks party to the
Credit Agreement referred to below
111 West Monroe Street
Chicago, Illinois 60690
Dear Sirs:
Reference is made to the Credit Agreement, dated as of January 13,
1997 (the "Credit Agreement") among General Binding Corporation, the Banks
named therein, Harris Trust and Savings Bank as Administrative Agent for the
Banks. Capitalized terms used and not defined herein have the meanings
assigned to them in the Credit Agreement.
The undersigned, [name of Guarantor], a [jurisdiction of
incorporation] corporation, hereby elects to be a "Guarantor" for all purposes
of the Credit Agreement, effective from the date hereof and the undersigned
hereby agrees to perform all the obligations of a Guarantor under, and to be
bound in all respects by the terms of, the Credit Agreement, including without
limitation Section 16 thereof, as if the undersigned were a direct signatory
party thereto.
The undersigned confirms that (i) it is a Domestic Material Subsidiary
of the Company hereunder, (ii) the execution, delivery and performance by it of
this Subsidiary Guarantee Agreement is within its corporate powers, have been
duly authorized by all necessary corporate action, requires no action by or in
respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of its charter or by-laws or of any agreement or instrument to
which the Company or it is a party or is subject, or by which the Company or
it, or the Company's or its property, is bound, or of any judgment, injunction,
order, decree or other instrument binding upon it or result in the creation or
imposition of any Lien on any asset of the Company or any of its Subsidiaries
and (iii) the representations and warranties set forth in Section 9 of the
Credit Agreement are true and correct as to the undersigned as of the date
hereof.
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This Agreement shall be construed in accordance with and governed by
the internal laws of the State of Illinois.
Very truly yours,
[NAME OF GUARANTOR]
By
Name:
Title:
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EXHIBIT P
OUTSIDE INVESTMENT LIST
To: The Banks parties to the
Credit Agreement
described below
This Outside Investment List is furnished pursuant to that certain
Credit Agreement dated as of January 13, 1997, among General Binding
Corporation, the Banks signatory thereto and Harris Trust and Savings Bank, as
Administrative Agent for the Banks. Unless otherwise defined herein, the terms
used in this Compliance Certificate have the meanings ascribed thereto in the
Credit Agreement.
Value Description
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The undersigned hereby certifies that set forth below is an accurate
summary of Outside Investments as of _______________________.
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Name:
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Title:
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