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EXHIBIT 4(a)
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AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
BRUSH WELLMAN INC.
AND
FOUR BANKS
AND
NATIONAL CITY BANK, AGENT
$20,000,000 2/5 NATIONAL CITY BANK
$10,000,000 1/5 NBD BANK, N.A.
$10,000,000 1/5 SOCIETY NATIONAL BANK
$10,000,000 1/5 THE BANK OF NOVA SCOTIA
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$50,000,000 Total
December 13, 1994
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TABLE OF CONTENTS
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1A. CROSS-REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1B. SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2A. SUBJECT COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2A.01 AMOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2A.02 TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2A.03 OPTIONAL REDUCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2A.04 COMMITMENT FEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2A.05 EXTENSION OF SUBJECT COMMITMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2B. LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2B.01 COMPETITIVE BID RATE BORROWINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2B.02 SUBJECT NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2B.03 LOAN MIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2B.04 AMOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2B.05 CONTRACT PERIODS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2B.06 MATURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2B.07 ROLLOVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2B.08 INTEREST: PRIME RATE LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2B.09 INTEREST: FIXED-RATE LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2B.10 PREPAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2C. GENERAL TERMS AND CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2C.01 CREDIT REQUESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2C.02 CONDITION: NO DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2C.03 CONDITION: PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2C.04 PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2C.05 NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2C.06 LIBOR LOANS: UNAVAILABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2C.07 LIBOR LOANS: ILLEGALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3A. INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3A.01 FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3A.02 NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3B. GENERAL FINANCIAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3B.01 TANGIBLE NET WORTH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3B.02 LEVERAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3B.03 CURRENT RATIO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3B.04 INTEREST COVERAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3B.05 FUNDED DEBT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3C. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3C.01 TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3C.02 FINANCIAL RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3C.03 VISITATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3C.04 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3C.05 CORPORATE EXISTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3C.06 COMPLIANCE WITH LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3C.07 PROPERTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3C.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3D. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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3D.01 CREDIT EXTENSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3D.02 BORROWINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3D.03 LIENS, LEASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3D.04 EQUITY TRANSACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4A. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4A.01 SUBJECT NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4A.02 RESOLUTIONS AND INCUMBENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4A.03 LEGAL OPINION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4A.04 FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4B. WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4B.01 EXISTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4B.02 GOVERNMENTAL RESTRICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4B.03 CORPORATE AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4B.04 LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4B.05 TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4B.06 TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4B.07 LAWFUL OPERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4B.08 ERISA COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4B.09 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4B.10 FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4B.11 DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4B.12 INVESTMENT COMPANY ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5A. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5A.01 PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5A.02 WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5A.03 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5A.04 CROSS-DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5A.05 SUBSIDIARY'S SOLVENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5A.06 BORROWER'S SOLVENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5A.07 CHANGE IN CONTROL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5B. EFFECTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5B.01 OPTIONAL DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5B.02 AUTOMATIC DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5B.03 OFFSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5B.04 EQUALIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6A. INDEMNITY: STAMP TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6B. INDEMNITY: GOVERNMENTAL COSTS/FIXED RATE LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6C. INDEMNITY: FUNDING COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6D. INDEMNITY: CREDIT REQUESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6E. INDEMNITY: UNFRIENDLY TAKEOVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6F. INDEMNITY: CAPITAL REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6G. INDEMNITY: COLLECTION COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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6H. CERTIFICATE FOR INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7A. BANKS' PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7B. NCB-AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7B.01 NATURE OF APPOINTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7B.02 NCB AS A BANK; OTHER TRANSACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7B.03 INSTRUCTION FROM BANKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7B.04 BANKS' DILIGENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7B.05 NO IMPLIED REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7B.06 SUB-AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7B.07 NCB-AGENT'S DILIGENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7B.08 NOTICE OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7B.09 NCB-AGENT'S LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7B.10 COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7B.11 DISBURSEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7B.12 NCB-AGENT'S INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7B.13 RESIGNATION; SUCCESSOR AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.01 WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.02 CUMULATIVE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.03 BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.04 SURVIVAL OF PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.05 IMMEDIATE U.S. FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.06 CAPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.07 SUBSECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.08 ILLEGALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.09 OHIO LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.10 INTEREST/FEE COMPUTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.11 NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.12 ACCOUNTING TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
9. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
10. EXECUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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AMENDED AND RESTATED
CREDIT AGREEMENT
----------------
Amended and Restated Credit Agreement made as of December 13, 1994 by
and among Brush Wellman Inc., an Ohio corporation ("Borrower"), the banks named
in subsection 2A.01 below (collectively, the "Banks"), and National City Bank,
as agent (in that capacity, "NCB-Agent") for the Banks for the purposes
indicated in this Agreement and the Related Writings (as hereafter defined):
PRELIMINARY STATEMENTS:
A. The Banks, NCB-Agent and Borrower entered into a Credit Agreement
dated as of December 23, 1991 (as the same has been amended, the "Original
Credit Agreement"); and
B. Borrower and the Banks desire to amend certain terms and provisions
of the Original Credit Agreement, including, among other reasons, to increase
the Subject Commitments and to extend the Expiration Date, and the Banks are
agreeable to such amendments.
NOW, THEREFORE, for and in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1A. CROSS-REFERENCE. Certain capitalized terms used herein are defined in
Section 9.
1B. SUMMARY. This Agreement sets forth the terms and conditions upon
which, at Borrower's request, the Banks will Ratably make loans to Borrower on
a revolving basis until the Expiration Date (as defined in Section 2A.02).
This Agreement also sets forth covenants and warranties made by the parties to
induce each other to enter into this Agreement and contains other material
provisions.
2A. SUBJECT COMMITMENTS. The basic terms of the Subject Commitments and
the compensation therefor are as follows:
2A.01 AMOUNTS. The aggregate amount of the Subject Commitments shall be
fifty million dollars ($50,000,000), but that amount may be reduced from time
to time pursuant to subsection 2A.03 and the Subject Commitments may be
terminated pursuant to Section 5B. The amount of each Bank's Subject
Commitment (subject to such reduction or termination), and the
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proportion (expressed as a fraction) that it bears to all of the Subject
Commitments, is set forth opposite the Bank's name below, to-wit:
$20,000,000 2/5 National City Bank
$10,000,000 1/5 NBD Bank, N.A.
$10,000,000 1/5 Society National Bank
$10,000,000 1/5 The Bank of Nova Scotia
----------- -----------------------
$50,000,000 Total
2A.02 TERM. Each Subject Commitment shall commence as of the date of
this Agreement and shall remain in effect on a revolving basis until April 30,
1998 (the "Expiration Date"), except that a later Expiration Date may be
established from time to time pursuant to subsection 2A.05 and except that the
Subject Commitments shall end in any event upon any earlier reduction thereof
to zero pursuant to subsection 2A.03 or any earlier termination pursuant to
Section 5B.
2A.03 OPTIONAL REDUCTIONS. Borrower shall have the right, at all
times and without the payment of a premium, to permanently reduce all of the
Subject Commitments in whole or in part by giving NCB-Agent notice (to be given
not later than 12:00 noon Cleveland, Ohio time of the Banking Day next
preceding the effective date of the reduction and either to be given in writing
or to be promptly confirmed in writing) of the aggregate amount by which the
Subject Commitments are to be reduced and the effective date thereof, subject,
however, to the following:
(a) Each such reduction of the Subject Commitments shall
aggregate one million dollars ($1,000,000) or any multiple thereof.
(b) Each reduction shall be allocated Ratably among the
Subject Commitments.
(c) Concurrently with each reduction Borrower shall make a
principal payment on each Bank's Subject Loans then outstanding in a
principal amount equal to the excess, if any, of the amount of that
Bank's then Credit Exposure over that Bank's Subject Commitment as so
reduced. Subsection 2B.10 and Section 6C shall apply to each such
prepayment.
2A.04 COMMITMENT FEE. Each Bank shall, so long as its Subject
Commitment remains in effect, earn a commitment fee
(a) based on the average daily difference between the amount
of that Bank's Subject Commitment from time to time in effect and the
then amount of that Bank's Credit Exposure (as to each Bank, the
"Unused Commitment"),
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(b) computed (in accordance with subsection 8.10) at the
Applicable Rate set forth below that corresponds to the Interest
Coverage Ratio as of the last day of the immediately preceding fiscal
quarter of the Companies; provided, however, that the Applicable Rate
from the date of this Agreement through and including March 31, 1995,
will be .15%:
Interest Coverage Ratio Applicable Rate
----------------------- ---------------
less than 4.0 to 1.0; .25%
equal to or greater than 4.0 to 1.0 .20%
but less than 5.0 to 1.0
equal to or greater than 5.0 to 1.0 .15%, and
(c) payable in arrears by Borrower to NCB-Agent for the
account of the Banks on April 1, 1995, and quarter-annually thereafter
and at the end of the Subject Commitment.
Each Bank shall be entitled to such commitment fee on its Unused Commitment, if
any, irrespective of the principal amount of any outstanding Competitive Loans
made by any or all of the other Banks from time to time.
2A.05 EXTENSION OF SUBJECT COMMITMENTS. Annually, beginning in 1996,
Borrower may request the Banks to extend the Expiration Date for a period of
one (1) year from the later of April 30, 1998, or such other Expiration Date as
may have been previously established pursuant to this subsection 2A.05, by
delivering to the Banks a written request for such extension in the form of
Exhibit A hereto and Borrower's audited financial statements delivered pursuant
to subsection 3A.01 hereof. The Banks shall have until thirty (30) days after
receipt of such written request and financial statements to agree to such
extension and if the Banks do not so notify Borrower in writing of their
agreement to such extension, the Expiration Date shall not be extended. If the
Banks do agree to such extension, NCB-Agent shall so notify Borrower, and
Borrower shall then promptly deliver to the Banks Subject Notes, executed by
Borrower, in the form and substance of Exhibits C-1 and C-2, but bearing the
extended Expiration Date, together with a certified copy of the resolution of
Borrower's Board of Directors authorizing such extension and the execution and
delivery of the new Subject Notes. The Banks, upon receipt of the new
substitute Subject Notes, shall endorse thereon all Subject Loans then
outstanding, together with the dates thereof, and shall return to Borrower the
Subject Notes bearing the no longer correct Maturity date, such returned
Subject Notes marked "Expiration Date extended to
__________________________".
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2B. LOANS. Each Bank (for itself only and not for the other) agrees,
subject to the conditions of this Agreement, that so long as that Bank's
Subject Commitment remains in effect it will grant Borrower such loan or loans
pursuant to this Agreement as Borrower may from time to time request.
2B.01 COMPETITIVE BID RATE BORROWINGS.
(a) THE COMPETITIVE BID OPTION. Subject to the terms and conditions
of this Agreement, Borrower may, as set forth in this subsection, request the
Banks to make offers to make Competitive Loans to Borrower. The Banks may, but
shall have no obligation to, make such offers, and Borrower may, but shall have
no obligation to, accept any such offers in the manner set forth in this
subsection.
(b) COMPETITIVE BID REQUEST. When Borrower wishes to request offers
to make Competitive Loans under this subsection, it shall transmit to each Bank
by telex or telecopy a Competitive Bid Request substantially in the form of
Exhibit B hereto or may request such offers orally of the Banks, in any case so
as to be received no later than 12:00 noon (Cleveland, Ohio, time) on the date
of the borrowing proposed therein, specifying:
(i) the proposed date of borrowing, which shall be a Banking
Day,
(ii) the aggregate amount of such borrowing, which shall be
three million dollars ($3,000,000) or any greater amount that is a
multiple of five hundred thousand dollars ($500,000), and
(iii) the duration of the Contract Period applicable thereto.
In the case of an oral request to any Bank for Competitive Loans, such Bank
shall be entitled to rely thereon, and Borrower shall assume the risk of
misunderstanding.
(c) SUBMISSION AND CONTENTS OF COMPETITIVE BIDS.
(i) Each Bank may submit a Competitive Bid containing an offer
or offers to make Competitive Loans in response to any invitation for
Competitive Bids. Each Competitive Bid must comply with the
requirements of this subsection (c) and must be submitted to Borrower
by telex or orally (or by such other means as to which Borrower and
that Bank may agree) not later than 12:00 noon (Cleveland, Ohio time)
on the proposed date of borrowing.
(ii) Each Competitive Bid shall be in writing or may be
conveyed orally and shall in any case specify:
(A) the proposed date of borrowing,
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(B) the principal amount of the Competitive Loan for which
each such offer is being made, which principal amount (y) may be
greater than or less than the Subject Commitment of the quoting
Bank, and (z) may not exceed the principal amount of Competitive
Loans for which offers were requested,
(C) the rate of interest per annum (rounded to the nearest
1/100th of 1%) (the "Competitive Bid Rate") offered for each such
Competitive Loan, and
(D) the identity of the quoting Bank.
(d) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 12:00 noon
(Cleveland, Ohio, time) on the proposed date of borrowing (or such other time
and date as to which Borrower and that Bank may agree), Borrower shall notify
the particular quoting Bank(s) of its acceptance of the offer(s) so received by
it pursuant to subsection (c). Borrower's failure to notify a quoting Bank of
its acceptance of that Bank's Competitive Bid on a timely basis shall be deemed
to be an indication of Borrower's nonacceptance of said quote. In the case of
acceptance, such notice shall specify the aggregate principal amount of offers
for each Contract Period that are accepted. Borrower may accept any
Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Competitive Loan
may not exceed the applicable amount set forth in the related
Competitive Bid Request, and
(ii) the principal amount of each Competitive Loan must be
three million dollars ($3,000,000) or any greater amount that is a
multiple of five hundred thousand dollars ($500,000).
Upon Borrower's acceptance of any Competitive Bid hereunder, Borrower shall
promptly notify each Bank which responded to the Competitive Bid Request in
question of (x) the range of interest rates bid with respect thereto, (y) the
aggregate amount of Competitive Loans taken by the Borrower thereunder, and (z)
the duration of the loan Contract Period with respect thereto.
(e) NOTICE TO NCB-AGENT; FUNDING OF COMPETITIVE LOANS.
(i) Upon Borrower's determination to accept a Competitive Bid
under this subsection, Borrower shall promptly notify NCB-AGENT (but
in no case later than 12:00 noon Cleveland, Ohio, time on the proposed
date of borrowing) of the identity of the Bank or Banks making such
Competitive Loan and the terms thereof.
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(ii) Not later than 12:00 noon (Cleveland, Ohio time) on the
date a Competitive Loan is to be obtained, each Bank participating
therein shall (except as provided in subpart (iii) of this subsection)
make available the amount of its Competitive Loan in federal or other
funds immediately available in Cleveland, Ohio, to Borrower in
accordance with such instructions, as Borrower shall give such Bank or
Banks.
(iii) If any Bank makes a new Competitive Loan hereunder on a
day on which Borrower is to repay all or any part of an outstanding
Competitive Loan from such Bank, such Bank shall apply the proceeds of
its new Competitive Loan to make such repayment and only an amount
equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Bank.
2B.02 SUBJECT NOTES. Each Bank's Subject Loans shall be evidenced by
two Subject Notes payable to the order of that Bank, with respect to Prime Rate
Loans and LIBOR Loans, in the principal amount equal to the dollar amount of
that Bank's Subject Commitment as then in effect, and with respect to
Competitive Loans, equal to the aggregate amount of all the Subject
Commitments, as then in effect, each note being in the form and substance of
Exhibits C-1 and C-2, respectively, with the blanks appropriately filled.
(a) Whenever Borrower shall obtain a Series of Subject Loans,
each Bank shall endorse an appropriate entry on the appropriate
Subject Note or make an appropriate entry in a loan account in that
Bank's books and records, or both. Each entry shall be prima facie
evidence of the data entered; but such entries shall not be a
condition to, or in any way affect, Borrower's obligation to pay.
(b) Whenever Borrower shall obtain a Series of Prime Rate
Loans or LIBOR Loans, each Bank shall disburse the proceeds in
immediately available funds from any office selected by that Bank to
Borrower's general checking account with NCB not later than 12:00 noon
(Cleveland, Ohio time) on the Banking Day specified in the Credit
Request or in accordance with such other instructions, if any, as
Borrower may give the Banks in writing or orally and immediately
confirmed in writing.
(c) No holder of any Subject Note shall transfer a Subject
Note, or seek a judgment or file a proof of claim based on a Subject
Note without in each case first endorsing the Subject Note to reflect
the true amount owing thereon.
2B.03 LOAN MIX. The Subject Loans may include Prime Rate Loans or
Competitive Loans or LIBOR Loans or any combination thereof, all as Borrower
may from time to time duly elect, except
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that each Series of Subject Loans shall at all times consist of only Prime Rate
Loans or only Competitive Loans or only LIBOR Loans and, in the case of
Fixed-Rate Loans, shall have identical Contract Periods.
2B.04 AMOUNTS. Each Series of Prime Rate Loans and LIBOR Loans shall
be divided Ratably among the Banks and shall be in such aggregate principal
amount as Borrower may request, subject, however, to the following:
(a) In the case of Prime Rate Loans, the aggregate principal
amount shall be five hundred thousand dollars ($500,000) or any
multiple thereof.
(b) In the case of LIBOR Loans, the aggregate principal
amount shall be two million dollars ($2,000,000) or any greater amount
that is a multiple of five hundred thousand dollars ($500,000).
(c) In no event shall any Bank's Credit Exposure at any time
exceed the then amount of that Bank's Subject Commitment, except in
respect of Competitive Loans to the extent agreed upon by that Bank
with Borrower.
2B.05 CONTRACT PERIODS. Each Series of Fixed-Rate Loans shall have
applicable thereto a Contract Period to be duly elected by Borrower in the
Credit Request therefor. Each Contract Period shall begin on the date of
borrowing and shall end on such date, not later than the Expiration Date, as
Borrower may select, subject, however, to the following:
(a) The Contract Period for each Series of LIBOR Loans shall
end one or two or three or six or twelve months after the date of
borrowing, except that
(1) if any such Contract Period otherwise would end on a day
that is not a Banking Day, it shall end instead on the next
following Banking Day unless that day falls in another calendar
month, in which case it shall end instead on the next preceding
Banking Day, and
(2) if the Contract Period commences on a day for which there
is no numerical equivalent in the calendar month in which the
Contract Period is to end, it shall end on the last Banking Day
of that calendar month.
(b) The Contract Period for each Series of Competitive Bid
Loans shall end not less than seven days, but in any event shall end
on or prior to one hundred eighty days, after the date of borrowing,
except that if the Contract Period otherwise would end
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on a day not a Banking Day, it shall end on the next following
Banking Day.
2B.06 MATURITIES. The stated Maturity of each Prime Rate Loan shall
be the Expiration Date. The stated Maturity of each Fixed-Rate Loan shall be
the last day of the Contract Period applicable thereto, except that in no event
shall the stated Maturity be later than the Expiration Date.
2B.07 ROLLOVER. If
(a) any Series of Subject Loans shall not be paid in full at
the stated Maturity thereof and
(b) no Default Under This Agreement shall then exist,
Borrower shall be deemed to have duly given NCB-Agent a timely Credit Request
to obtain (and at that Maturity the Banks shall make) a Series of Prime Rate
Loans in an aggregate principal amount equal to the aggregate unpaid principal
of the Subject Loans then due and the proceeds of those Prime Rate Loans shall
be applied to the payment in full of the Subject Loans then due; provided, that
no such Prime Rate Loan shall of itself cure any then-existing Default Under
This Agreement.
2B.08 INTEREST: PRIME RATE LOANS. The principal of and overdue
interest on the Prime Rate Loans shall bear interest payable in arrears on the
first Banking Day of each January, April, July and October and at Maturity and
computed (in accordance with subsection 8.10)
(a) prior to Maturity, at a fluctuating rate equal to the
Prime Rate from time to time in effect and
(b) after Maturity (whether occurring by lapse of time or by
acceleration) and upon the occurrence of an Event of Default, at a
fluctuating rate equal to the Prime Rate from time to time in effect
plus two percent (2%) per annum,
with each change in the Prime Rate automatically and immediately changing the
rate thereafter applicable to the Prime Rate Loans; provided, that in no event
shall the rate applicable to the Prime Rate Loans after the Maturity thereof be
less than the rate applicable thereto immediately before Maturity.
2B.09 INTEREST: FIXED-RATE LOANS. The principal of and overdue
interest on each Fixed-Rate Loan shall bear interest computed (in accordance
with subsection 8.10) and payable as follows:
(a) Prior to Maturity, each LIBOR Loan shall bear interest
with respect to any Contract Period commencing
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on or after April 1, 1995, at a rate equal to the LIBOR Rate in effect
at the start of the applicable Contract Period plus the margin
indicated below that corresponds to the Interest Coverage Ratio as of
the start of the applicable Contract Period:
Interest Coverage Ratio Margin
- ----------------------- ------
less than 4.0 to 1.0 5/8%
equal to or greater than 4.0 to 1.0
but less than 5.0 to 1.0 1/2%
equal to or greater than 5.0 to 1.0 3/8%;
provided, however, that from the date of this Agreement through and including
March 31, 1995, the margin will be 3/8%.
(b) Prior to Maturity, each Competitive Loan shall bear
interest at a rate equal to the Competitive Bid Rate.
(c) After Maturity (whether occurring by lapse of time or by
acceleration), each Fixed-Rate Loan shall bear interest computed and
payable in the same manner as set forth in subsection 2B.08(b) for
Prime Rate Loans, except that in no event shall any Fixed-Rate Loan
bear interest after Maturity at a lesser rate than that applicable
thereto immediately before Maturity.
(d) Interest on each Fixed-Rate Loan shall be payable in
arrears on the last day of the Contract Period applicable thereto and
at Maturity and, in the case of any Contract Period having a longer
term than ninety (90) days or three (3) months, as the case may be,
shall also be payable every ninety (90) days (in the case of
Competitive Loans) and every three (3) months (in the case of LIBOR
Loans) after the first day of the Contract Period.
2B.10 PREPAYMENTS. Borrower may from time to time prepay the
principal of the Prime Rate Loans in whole or in part and may from time to time
prepay the principal of any given Series of Fixed-Rate Loans in whole or in
part, subject to the following:
(a) Borrower shall give NCB-Agent an appropriate notice not
later than 12:00 noon (Cleveland, Ohio time) on the Banking Day next
preceding any such prepayment, which notice, if not originally given
in writing, shall be promptly confirmed in writing. NCB-Agent shall
promptly report the notice to each Bank.
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(b) Each prepayment of Prime Rate Loans shall aggregate the
principal amount of five hundred thousand dollars ($500,000) or any
multiple thereof or an amount equal to the then aggregate principal
outstanding and shall be allocated thereto Ratably. Each prepayment
of a Series of Competitive Loans shall aggregate three million dollars
($3,000,000) or any greater amount that is a multiple of five hundred
thousand dollars ($500,000) or an amount equal to the aggregate unpaid
principal balance of that Series and shall be applied Ratably to the
Subject Loans comprising the Series.
(c) Each prepayment of a Series of LIBOR Loans shall
aggregate two million dollars ($2,000,000) or any greater amount that
is a multiple of five hundred thousand dollars ($500,000) or an amount
equal to the aggregate unpaid principal balance of that Series and
shall be applied Ratably to the Subject Loans comprising the Series.
(d) Each prepayment of the Prime Rate Loans may be made
without penalty or premium. Any prepayment of any Fixed-Rate Loan
(regardless of the reason for the prepayment) shall be subject to the
payment of any indemnity required by Section 6C.
(e) No prepayment shall of itself reduce any Subject
Commitment.
(f) Concurrently with each prepayment, Borrower shall prepay
the interest accrued on the prepaid principal.
2C. GENERAL TERMS AND CONDITIONS. The Subject commitments shall be
subject to the following additional terms and conditions:
2C.01 CREDIT REQUESTS. Whenever Borrower desires to obtain a
Series of Subject Loans other than by a Competitive Bid Request, Borrower shall
give NCB-Agent an appropriate notice (a "Credit Request") to be in the form of
Exhibit D (or in other form and detail satisfactory to NCB-Agent) with the
blanks appropriately filled. The Credit Request shall be irrevocable, shall be
given to NCB-Agent not later than 12:00 noon (Cleveland, Ohio time)
(a) on the Banking Day next preceding the date on which Prime
Rate Loans are to be obtained,
(b) three (3) Banking Days prior to the date any LIBOR Loans
are to be obtained, and
(c) shall either be made in writing or orally and immediately
confirmed in writing.
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In the case of any oral Credit Request, NCB-Agent shall be entitled to rely
thereon and Borrower shall assume the risk of misunderstanding. NCB-Agent
shall give each Bank prompt notice of each Credit Request.
2C.02 CONDITION: NO DEFAULT. Borrower shall not be entitled to
obtain any Subject Loan if
(a) any Default Under This Agreement shall then exist or
would thereupon begin to exist or
(b) any representation or warranty made in subsections 4B.01
through 4B.12 (both inclusive) shall have ceased to be true or
complete in any Material respect or
(c) there shall have occurred any Material adverse change in
the consolidated financial condition, properties or business of the
Companies since the date of Borrower's Most Recent 4A.04 Financial
Statements or of its then most recent financial statements, if any,
furnished to the Banks pursuant to subsection 3A.01 or
(d) Borrower has not complied with or caused compliance with
Section 4A.
Each Credit Request, both when made and when honored, shall of itself
constitute a continuing representation and warranty by Borrower to NCB-Agent
for the benefit of the Banks that Borrower is entitled to make the Credit
Request and that the Banks are obligated to honor it.
2C.03 CONDITION: PURPOSE. Borrower shall not use the proceeds of any
Subject Loan in any manner that would violate or be inconsistent with
Regulation U or X of the Board of Governors of the Federal Reserve System; nor
will it use any such proceeds for the purpose of financing the acquisition of
any corporation or other business entity if the acquisition is publicly opposed
by the latter's management and if any Bank deems that its participation in the
financing of the acquisition would involve it in a conflict of interest.
Borrower will use such proceeds only for general corporate purposes.
2C.04 PAYMENTS. All payments (including prepayments) of any Subject
Indebtedness (excluding payments on Competitive Loans) shall be made by
Borrower to NCB-Agent for the account of the Banks in immediately available
funds, which payment to NCB-Agent shall constitute payment to the Banks. Any
payment received by NCB-Agent after 1:30 p.m. (Cleveland, Ohio time) shall be
deemed to have been made and received on the next following Banking Day;
provided that if Borrower shall have given one of its depositories instructions
before 12:00 noon (Cleveland, Ohio time) to transfer "federal funds" that day
to NCB-Agent and shall have received and provided to NCB-Agent a
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Federal Reserve reference number for the transfer, the payment shall be deemed
to have been timely even if received after 1:30 p.m. that day. NCB-Agent shall
distribute to each Bank its Ratable share of each such payment in immediately
available funds forthwith upon NCB-Agent's receipt thereof. All payments
(including prepayments) of any Competitive Loans shall be made by Borrower
directly to the Bank or Banks making such Competitive Loans in immediately
available funds.
2C.05 NOTICE. NCB-Agent shall give Borrower and the Banks prompt
notice of the fixed rate initially applicable to each Series of Fixed- Rate
Loans and of each change in NCB's Prime Rate. In making interest payments,
Borrower shall be entitled to rely upon the most recent such notice received by
it; provided, that if any interest payment shall be made in the wrong amount by
reason of Borrower's failure to receive a timely notice for any reason or by
reason of any error in computation, the difference between the correct amount
and the erroneous amount shall be promptly paid by Borrower or promptly
refunded to Borrower (in either case with interest computed at the Prime Rate
on the amount of the difference), whichever is applicable.
2C.06 LIBOR LOANS: UNAVAILABILITY. If at any time
(a) any of the Banks shall determine that dollar deposits of
the relevant amount for the relevant Contract Period are not available
in the London Interbank Eurodollar Market (in the case of LIBOR Loans)
for the purpose of funding the LIBOR Loans in question, or
(b) NCB-Agent shall determine that circumstances affecting
the relevant market make it impracticable for NCB-Agent to ascertain
the rate or rates applicable to such Fixed-Rate Loans, or
(c) any of the Banks shall give NCB-Agent written notice that
the costs of that Bank in funding any one or more Series of LIBOR
Loans are equal to or greater than the interest payable by Borrower in
respect thereof,
then and in each such case NCB-Agent shall, by written notice to Borrower and
the Banks, suspend Borrower's right thereafter to obtain Fixed- Rate Loans of
the kind in question, which suspension shall remain in effect until such time,
if any, as NCB-Agent may give written notice to Borrower that the condition
giving rise to the suspension no longer prevails.
2C.07 LIBOR LOANS: ILLEGALITY. If any Bank shall give NCB-Agent
written notice that it is, or any governmental authority has asserted that it
is, unlawful for that Bank to fund, make or maintain (other than by reason of a
change in
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Capital Requirements, the effect of which is dealt with in Section 6F) the
LIBOR Loans in question,
(a) NCB-Agent shall give Borrower and the other Banks prompt
written notice thereof, and
(b) Borrower shall promptly pay in full the principal of and
interest on the LIBOR Loans in question and make the reimbursement, if
any, required by Section 6C.
3A. INFORMATION. Borrower agrees that so long as the Subject
Commitments remain in effect and thereafter until all the Subject Indebtedness
shall have been paid in full, Borrower will perform and observe each of the
following:
3A.01 FINANCIAL STATEMENTS. Borrower will furnish to each Bank
(a) within forty-five (45) days after the end of each of the
first three quarter-annual periods of each of Borrower's fiscal years,
balance sheets of the Companies as at the end of that period and their
income statements and surplus reconciliations for the year to the end
of that period, all prepared (but unaudited) on a consolidated basis,
on a comparative basis with the prior year (as to the consolidated
statements only), in accordance with GAAP (except as disclosed
therein) and in form and detail reasonably satisfactory to the Banks;
(b) as soon as available (and in any event within ninety (90)
days after the end of each of Borrower's fiscal years), a complete
copy of the annual audit report (including without limitation the
consolidated financial statements of the Companies and notes thereto)
of Borrower for that year, which shall be
(1) prepared on a consolidated basis, on a comparative basis with
the prior year, in accordance with GAAP (except as disclosed
therein) and in form and detail reasonably satisfactory to the
Banks, and
(2) certified (without qualification as to GAAP) by
independent public accountants selected by Borrower and
reasonably satisfactory to the Banks;
(c) concurrently with each delivery of financial statements
pursuant to clause (a) or (b), a certificate, substantially in the form
of Exhibit E, by Borrower's chief financial officer
(1) certifying that to the best of such officer's knowledge
and belief, (i) those financial
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statements fairly present in all Material respects the financial
condition and results of operations of the Companies in
accordance with GAAP, subject, in the case of interim financial
statements, to routine year-end audit adjustments and (ii) no
Default Under This Agreement then exists or, if any does, a brief
description of such default and Borrower's intentions in respect
thereof, and
(2) setting forth the calculations necessary to determine
whether or not the Companies are in compliance with the general
financial standards set forth in Section 3B;
(d) promptly when filed (in final form) or sent, a copy of
(1) each registration statement, Form 10-K annual report,
Form 10-Q quarterly report, Form 8-K current report or similar
document filed by Borrower with the Securities and Exchange
Commission (or any similar federal agency having regulatory
jurisdiction over Borrower's securities) or with any securities
exchange, and
(2) each proxy statement, annual report, certificate, notice
or other document sent by Borrower to the holders of any of its
securities (or any trustee under any indenture which secures any
of its securities or pursuant to which such securities are
issued); and
(e) forthwith upon any Bank's written request such other
information about the financial condition, properties and operations
of the Companies and their Pension Plans as that Bank may from time to
time reasonably request.
3A.02 NOTICE. Borrower will cause its chief financial officer, or in
his absence another officer designated by Borrower, to give each Bank prompt
written notice whenever any officer of any Company
(a) reasonably believes any Reportable Event (as defined in
ERISA) to have occurred in respect of any Pension Plan or receives
notice of any ERISA Regulator's allegation of a Default under ERISA by
any Company,
(b) receives from the Internal Revenue Service or any other
federal, state, local or foreign taxing authority any allegation of
any default or defaults by any Company in the payment of any tax or
notice of any
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assessment in respect thereof in an amount in excess of five hundred
thousand dollars ($500,000),
(c) learns there has been brought against any Company before
any court, administrative agency or arbitrator any litigation or
proceeding which, if successful, might have a Material adverse effect
on the Companies on a consolidated basis,
(d) receives from any governmental agency or authority notice
alleging that any Company has violated, is required to take corrective
action, or is otherwise liable under or in respect of any
Environmental Law, or
(e) reasonably believes that any representation or warranty
made in subsections 4B.01 through 4B.12 (both inclusive) shall for any
reason have ceased in any Material respect to be true and complete or
that any Default Under This Agreement shall have occurred.
3B. GENERAL FINANCIAL STANDARDS. Borrower agrees that so long as the
Subject Commitments remain in effect and thereafter until the Subject
Indebtedness shall have been paid in full, Borrower will observe each of the
following:
3B.01 TANGIBLE NET WORTH. Borrower will not suffer or permit the
consolidated Tangible Net Worth of the Companies at any time to be less than
one hundred fifty-five million dollars ($155,000,000) plus an amount equal to
forty percent (40%) of Borrower's annual earnings for the four fiscal quarters
ending December 31, 1994 and each December 31 thereafter; provided, that if
annual earnings for any fiscal year are a negative figure, the annual earnings
for the fiscal year in question shall be treated as zero (0) for the purposes
of this subsection.
3B.02 LEVERAGE. Borrower will not suffer or permit the Companies'
Total Liabilities at any time to exceed an amount equal to one and one- quarter
(1.25) times the Companies' Tangible Net Worth, all as determined on a
consolidated basis.
3B.03 CURRENT RATIO. Borrower will not suffer or permit the Current
Assets of the Companies at any time to fall below an amount equal to one and
one-half (1.5) times their Current Liabilities (including, without limitation,
the outstanding amount of all Subject Loans), all as determined on a
consolidated basis.
3B.04 INTEREST COVERAGE. Borrower will not at any time suffer or
permit the ratio (the "Interest Coverage Ratio") of (a) the aggregate of the
Net Income, interest expense and income taxes (whether federal, state or local)
of the Companies for the four consecutive fiscal quarters then ended, to (b)
the aggregate interest expense of the Companies for that period (in calculating
such interest expense, there shall be included
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capitalized interest of the Companies in excess of $900,000 at any fiscal year
end), to be less 3.00 to 1:00, all as determined on a consolidated basis.
3B.05 FUNDED DEBT. Borrower will not suffer or permit the Funded
Indebtedness of the Companies, at any time, to exceed an amount equal to
one-half (0.5) times the sum of the Funded Indebtedness of the Companies plus
the Tangible Net Worth of the Companies, all as determined on a consolidated
basis.
3C. AFFIRMATIVE COVENANTS. Borrower agrees that so long as the
Subject Commitments remain in effect and thereafter until the Subject
Indebtedness shall have been paid in full, Borrower will perform and observe,
and will cause each Subsidiary to perform and observe, each of the following
provisions on their respective parts to be complied with, namely:
3C.01 TAXES. Each Company will pay in full
(a) prior in each case to the date when penalties for the
nonpayment thereof would attach, all taxes, assessments and
governmental charges and levies for which it may be or become subject
and
(b) prior in each case to the date the claim would become
delinquent for non-payment, all other lawful claims (whatever their
kind or nature) which, if unpaid, might become a lien or charge upon
its property;
PROVIDED, that no item need be paid so long as and to the extent that (i) it is
contested in good faith and by timely and appropriate proceedings which are
effective to stay enforcement thereof or (ii) with respect to items not
exceeding five hundred thousand dollars ($500,000) in the aggregate, it is
being negotiated in good faith with the relevant governmental authority.
3C.02 FINANCIAL RECORDS. Each Company will at all times keep true and
complete financial records in accordance with GAAP and, without limiting the
generality of the foregoing, make appropriate accruals to reserves for
estimated and contingent losses and liabilities.
3C.03 VISITATION. Each Company will permit each Bank at all
reasonable times
(a) to examine that Company's properties and its financial
records and to make copies of and extracts from such records and
(b) to consult with that Company's officers, employees,
accountants, actuaries, trustees and plan administrators in respect of
its financial condition,
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properties and operations and the financial condition of its Pension
Plans, each of which parties is hereby authorized to make such
information available to each Bank to the same extent that it would to
that Company.
3C.04 INSURANCE. Each Company will
(a) keep itself and all of its insurable properties insured
at all times to such extent, with such deductibles, by such insurers
and against such hazards and liabilities as is generally and prudently
done by other business enterprises respectively similar to the
Companies, except that if a more specific standard is provided in any
Related Writing, the more specific standard shall prevail and
(b) forthwith upon any Bank's written request, cause an
appropriate officer to deliver to each of the Banks a certificate
setting forth, in form and detail satisfactory to the Banks, such
information about that insurance, all as any Bank may from time to
time reasonably request.
3C.05 CORPORATE EXISTENCE. Each Company will at all times maintain
its corporate existence, rights and franchises; provided, however, that this
subsection shall not prevent any dissolution and liquidation of any Subsidiary
or any merger or consolidation permitted by subsection 3D.04.
3C.06 COMPLIANCE WITH LAW. Each Company will comply with all
applicable occupational safety and health laws and Environmental Laws and every
other law (whether statutory, administrative, judicial or other and whether
federal, state or local) and every lawful governmental order if non-compliance
with such law or order would Materially and adversely affect the business,
properties or financial condition of the Companies viewed on a consolidated
basis; provided, that in the event of any alleged non-compliance, no Company
shall be in default under this subsection if and to the extent that it notifies
the Banks and
(a) within thirty (30) days after the non-compliance becomes
apparent or is alleged, appropriate corrective measures are commenced
and such measures are diligently pursued to the satisfaction of the
Banks, or
(b) the alleged non-compliance is contested in good faith by
timely and appropriate proceedings which are effective to stay
enforcement thereof.
No Company will cause or permit the release or disposal of hazardous waste,
solid waste or other wastes on, under or to any real property in which such
Company holds any interest, or performs any of its operations, in violation of
any Environmental
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Law. Borrower shall defend, indemnify and hold the Banks harmless from and
against any and all liabilities, losses, damages, costs and expenses of any
kind (including, without limitation, the reasonable fees and disbursements of
counsel) arising out of or resulting from any Company's non-compliance with any
Environmental Law.
3C.07 PROPERTIES. Each Company will maintain all fixed assets
necessary to its continuing operations in good working order and condition,
ordinary wear and tear excepted.
3C.08 ERISA. If any Company shall at any time receive notice from any
ERISA Regulator that a Default under ERISA exists in respect of any of its
Pension Plans, or receive written notice from the Required Banks that they have
determined to their reasonable satisfaction that such a default exists,
Borrower will
(a) thereafter, so long as the default has not been corrected
to the satisfaction of the Banks, treat as a current liability (if not
otherwise so treated) all liability of the Company that would arise by
reason of the termination of the Pension Plan or Plans in question if
they were then terminated and
(b) within forty-five (45) days of the receipt of the initial
such notice, furnish to each Bank a current consolidated balance sheet
of the Companies with the amount of the aforesaid current liability
certified by an independent actuary selected by Borrower and
satisfactory to the Required Banks.
3D. NEGATIVE COVENANTS. Borrower agrees that so long as the Subject
Commitments remain in effect and thereafter until the Subject Indebtedness
shall have been paid in full, Borrower will observe, and will cause each
Subsidiary to observe, each of the following provisions on their respective
parts to be complied with, namely:
3D.01 CREDIT EXTENSIONS. No Company will
(a) make or keep any investment in any notes, bonds or other
obligations of any kind for the payment of money or make or have
outstanding at any time any advance or loan to anyone or
(b) be or become a Guarantor of any kind;
provided, that this subsection shall not apply to
(i) any existing or future advance to an officer or employee
of any Company in the normal course of business and
consistent with past practice,
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(ii) any endorsement of a check or other medium of payment for
deposit or collection, or any similar transaction in the normal
course of business,
(iii) any investment in an existing or future Subsidiary,
(iv) any guaranty by Borrower of indebtedness of any Company otherwise
permitted by this Agreement,
(v) investments in notes, bonds or other obligations of
persons (other than Subsidiaries) in which Borrower has an equity
investment, provided that the aggregate amount of such
investments, excluding any equity investments permitted by
Section 3D.04, do not exceed fifteen million dollars
($15,000,000),
(vi) guarantees not otherwise permitted hereby, in an amount
not to exceed twenty million dollars ($20,000,000) outstanding at
any time,
(vii) any existing or future Receivable of any Company so long
as such Receivable arises from the sale of goods or services in
the normal course of such Company's business and is consistent
with such Company's past practice, or
(viii) any existing or future investment in Eligible Investments.
3D.02 BORROWINGS. No Company will create, assume or have outstanding
at any time any indebtedness for borrowed money or any Funded Indebtedness of
any kind if after giving effect to such indebtedness or Funded Indebtedness,
Borrower would be in non-compliance with any of the financial standards set
forth in subsections 3B.01 to 3B.05, inclusive.
3D.03 LIENS, LEASES. No Company will
(a) lease any property as lessee or acquire or hold any
property subject to any land contract, inventory consignment (except
for any Company that deals in precious metals which are subject to any
consignment arrangement in effect as of the date of this Agreement,
and replacements, renewals or extensions thereof) or other title
retention contract,
(b) sell or otherwise transfer any Receivables, whether with
or without recourse or
(c) suffer or permit any property (whether real, personal or
mixed and whether tangible or intangible, including, without
limitation, inventory and accounts
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receivable) now owned or hereafter acquired by it to be or become
encumbered by any mortgage, security interest, lien or financing
statement;
PROVIDED, that this subsection shall not apply to
(i) any tax lien, or any lien securing workers' compensation or
unemployment insurance obligations, or any mechanics', carrier's or
landlord's lien, or any lien arising under ERISA, or any security
interest arising under article four (bank deposits and collections) or
five (letters of credit) of the Uniform Commercial Code, or any
similar security interest or other lien, except that this clause (i)
shall apply only to security interests and other liens arising by
operation of law (whether statutory or common law) and in the ordinary
course of business and shall not apply to any security interest or
other lien that secures any indebtedness for borrowed money or any
guaranty thereof or any obligation that is in Material default in any
manner (other than any default contested in good faith by timely and
appropriate proceedings effective to stay enforcement of the security
interest or other lien in question),
(ii) zoning or deed restrictions, public utility easements, minor title
irregularities and similar matters having no adverse effect as a
practical matter on the ownership or use of any of the property in
question,
(iii) any lien securing or given in lieu of surety, stay, appeal or
performance bonds, or securing performance of contracts or bids
(other than contracts for the payment of money borrowed), or
deposits required by law or governmental regulations or by any
court order, decree, judgment or rule or as a condition to the
transaction of business or the exercise of any right, privilege or
license, except that this clause (iii) shall not apply to any lien
or deposit securing an obligation that is in Material default in
any manner (other than any default contested in good faith by
timely and appropriate proceedings effective to stay enforcement of
the security interest or other lien in question),
(iv) any mortgage, security interest or other lien securing only the
Subject Indebtedness,
(v) any mortgage, security interest or other lien (each, a "Purchase Money
Security Interest") which
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is created or assumed in purchasing, leasing, constructing or
improving any real property or equipment or to which any such
property is subject when purchased, provided that (A) the
Purchase Money Security Interest shall be confined to the aforesaid
property, (B) the indebtedness secured thereby does not exceed the
total cost of the purchase, construction or improvement, (C) any
such indebtedness, if repaid in whole or in part, cannot be
reborrowed and (D) the aggregate amount of such indebtedness
incurred in any fiscal year cannot exceed ten million dollars
($10,000,000),
(vi) any lease other than any capitalized lease (it being agreed that a
capitalized lease is a lien rather than a lease for the purposes of
this Agreement), so long as the aggregate annual rentals under all
such leases of all the companies do not exceed five million dollars
($5,000,000),
(vii) any mortgage, security interest or other lien which (together with
the indebtedness secured thereby) is fully disclosed in Borrower's
Most Recent 4A.04 Financial Statements or in the Supplemental
Schedule,
(viii) any financing statement perfecting a security interest that would
be permissible under this subsection, or
(ix) the sale by Brush Wellman Japan Ltd. of any of its Receivables
provided the sale of such Receivables occurs in the normal course
of its business and is consistent with its past practice and that
any indebtedness arising in connection therewith is permitted by
subsection 3D.02.
3D.04 EQUITY TRANSACTIONS. No Company will
(a) be a party to any merger or consolidation,
(b) be or become a party to any joint venture or
partnership, or make or keep any investment in any other stocks
or other equity securities of any kind or otherwise acquire all or
substantially all of the assets of another person, except that this
clause (b) shall not apply to (i) Borrower's existing investments
in the stocks and other equity securities of existing or future
Subsidiaries, (ii) any other investment reflected in Borrower's
Most Recent 4A.04 Financial Statements or in the Supplemental
Schedule, or (iii) acquisitions of assets of persons or equity
investments made in persons, other than Subsidiaries, after the
date of this Agreement in an aggregate amount,
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excluding investments permitted by subsection 3D.01(v), not to exceed
twenty million dollars ($20,000,000) in the aggregate during any
fiscal year of Borrower, or
(c) lease as lessor, sell, sell-leaseback or otherwise
transfer (whether in one transaction or a Series of transactions) all
or any substantial part of its fixed assets (other than chattels that
shall have become obsolete or no longer useful in its present business
with a fair market value not exceeding ten million dollars
($10,000,000) in the aggregate during any fiscal year);
PROVIDED, that if no Default Under This Agreement shall then exist and if none
would thereupon begin to exist, this subsection shall not apply (A) to any
merger or consolidation not involving Borrower, or (B) to any dissolution and
liquidation of a Subsidiary, or any transfer of assets between Companies.
4A. CLOSING. Prior to or at the execution and delivery of this
Agreement and, with respect to Section 4A.03, prior to the obtaining of any
Subject Loan, Borrower shall have complied or caused compliance with each of
the following:
4A.01 SUBJECT NOTES. Borrower shall have executed and delivered a
Subject Note to each Bank in accordance with subsection 2B.01.
4A.02 RESOLUTIONS AND INCUMBENCY. Borrower's secretary or assistant
secretary shall have certified to each Bank (i) a copy of resolutions duly
adopted by Borrower's board of directors in respect of this Agreement and the
Related Writings and (ii) the names and true signatures of the officers of
Borrower authorized to sign this Agreement and Related Writings on behalf of
Borrower.
4A.03 LEGAL OPINION. Borrower's counsel shall have rendered to each
Bank their written opinion in respect of the matters referred to in subsections
4B.01, 4B.02, 4B.03 and 4B.04, which opinion may be subject to such
qualifications and exceptions, if any, as shall be satisfactory to the Banks.
4A.04 FINANCIAL STATEMENTS. Borrower shall have furnished to each
Bank at least one true and complete copy of each of the following: Borrower's
annual audit report (including, without limitation, all financial statements
therein and notes thereto and the accompanying accountants' certificate)
prepared as at December 31, 1993, and annual audit reports for each of
Borrower's two next preceding fiscal years (each having been certified by Ernst
& Young) and Borrower's unaudited interim financial statements prepared as at
September 30, 1994.
4B. WARRANTIES. Subject only to such exceptions, if any, as may be
set forth in the Supplemental Schedule or in Borrower's
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Most Recent 4A.04 Financial Statements, Borrower represents and warrants as
follows:
4B.01 EXISTENCE. Borrower is a duly organized and validly existing
Ohio corporation in good standing. Exhibit F sets forth the name of each of
Borrower's Subsidiaries, the address of its chief executive office and the
jurisdiction in which it is incorporated. Each Subsidiary is a duly organized
and validly existing corporation in good standing where incorporated, and all
of its outstanding stock is fully paid and non-assessable and owned by Borrower
free from any security interest, option, equity or other right of any kind
except to the extent, if any, set forth in Exhibit G. Each Company is duly
qualified to transact business in each state or other jurisdiction in which it
owns or leases any real property or in which the nature of the business
conducted makes such qualification necessary or, if not so qualified, such
failure to qualify will have no Material adverse effect upon the financial
condition of the Companies and their ability to transact business, all on a
consolidated basis.
4B.02 GOVERNMENTAL RESTRICTIONS. No registration with or approval of
any governmental agency of any kind is required on the part of any Company for
the due execution and delivery or for the enforceability of this Agreement or
any Related Writing.
4B.03 CORPORATE AUTHORITY. Borrower has all requisite corporate power
and authority to enter into and perform this Agreement and to borrow and repay
the Subject Loans in accordance with this Agreement. Each officer executing
and delivering this Agreement or any Related Writing on behalf of Borrower has
in each case been duly authorized by Borrower to do so. Neither any such
execution and delivery nor any performance and observance by the Companies of
such of the respective provisions of this Agreement and those Related Writings
as are on their respective parts to be complied with will violate any existing
provision in their respective articles of incorporation, regulations or by-laws
or any applicable law or violate or otherwise constitute a default under any
contract or other obligation now existing and binding upon that Company. This
Agreement and each such Related Writing will, upon the execution and delivery
thereof, become a valid and binding obligation enforceable against Borrower
according to its tenor against Borrower, subject, however, to any applicable
insolvency or bankruptcy law and general principles of equity.
4B.04 LITIGATION. No litigation or proceeding is pending against any
Company before any court, administrative agency or arbitrator which might, if
successful, have a Material adverse effect on the Companies on a consolidated
basis.
4B.05 TAXES. Each Company has filed all federal, state and local tax
returns which are required to be filed by it and paid all taxes due as shown
thereon (except to the extent, if
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any, permitted by subsection 3C.01 or as set forth in the Supplemental
Schedule). The Internal Revenue Service has audited (or the relevant
limitations period has expired with respect to) Borrower's tax returns through
the year ended December 31, 1988 and the Internal Revenue Service has not
alleged any Material default by Borrower in the payment of any tax Material in
amount or threatened to make any assessment in respect thereof which has not
been reflected in Borrower's Most Recent 4A.04 Financial Statements.
4B.06 TITLE. The Companies have good and marketable title to all
assets reflected in Borrower's Most Recent 4A.04 Financial Statements except
for changes resulting from transactions in the ordinary course of business and
except with respect to precious metals held in inventory by any Company that
deals in precious metals pursuant to a consignment arrangement described on the
Supplementary Schedule. All such assets are clear of any mortgage, security
interest or other lien of any kind other than any permitted by subsection
3D.03.
4B.07 LAWFUL OPERATIONS. Each Company's operations are in full
compliance with all Material requirements imposed by law, whether federal,
state or local, and whether statutory, regulatory or other, including (without
limitation) all occupational safety and health laws and zoning ordinances but
excluding Environmental Laws. Each Company is in compliance in all Material
respects with all Environmental Laws including, without limitation, all
Environmental Laws in all jurisdictions in which any Company owns or operates,
or has owned or operated, a facility or site, arranges or has arranged for
disposal or treatment of hazardous substances, solid waste or other wastes,
accepts or has accepted for transport any hazardous substances, solid waste or
other wastes or holds or has held any interest in real property. Except as set
forth on the Supplemental Schedule or as otherwise disclosed in writing to
NCB-Agent prior to the execution and delivery of this Agreement by Borrower,
(i) no litigation or proceeding arising under, relating to or in connection
with any Environmental Law is pending or threatened against any Company, or any
real property in which any Company holds or has held an interest or which is or
has been operated by any Company, and (ii) no investigation or inquiry which
would subject any Company to any liability under any Environmental Law by any
governmental agency or authority, individual or other person or entity is
pending or, to the best knowledge of any Company, threatened against any
Company, or any real property in which any Company holds or has held an
interest or which is or has been operated by any Company. No release,
threatened release or disposal of hazardous waste, solid waste or other wastes
is occurring, or has occurred, on, under or to any real property in which any
Company holds any interest or performs any of its operations, in violation of
any Environmental Law or which would subject any Company to any liability under
any Environmental Law, which violation or liability, together with other
outstanding liabilities of the Companies in respect of Environmental Laws,
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would Materially and adversely affect the business, properties or financial
condition of the Companies viewed on a consolidated basis. Further, no
release, threatened release or disposal of any hazardous substance is
occurring, or has occurred, on, under or to any real property in which any
Company holds any interest or performs any of its operations, in violation of
any Environmental Law which violation or liability, together with other
outstanding liabilities of the Companies in respect of Environmental Laws,
would Materially and adversely affect the business, properties or financial
condition of the Companies viewed on a consolidated basis. As used in this
subsection, "litigation or proceeding" means any Material demand, claim,
notice, suit, suit in equity, action or administrative action whether brought
by any governmental agency or authority, individual or other person or entity
or otherwise.
4B.08 ERISA COMPLIANCE. No Material Accumulated Funding Deficiency
exists in respect of any of the Companies' Pension Plans. No Reportable Event
has occurred in respect of any such Pension Plan which is continuing and which
constitutes grounds either for termination of the plan or for court appointment
of a trustee for the administration thereof.
4B.09 INSURANCE. The Companies' insurance coverage complies with the
standards set forth in subsection 3C.04.
4B.10 FINANCIAL STATEMENTS. Each of the financial statements referred
to in subsection 4A.04 has been prepared in accordance with GAAP applied on a
basis consistent with those used by it during its then next preceding full
fiscal year except to the extent, if any, specifically noted therein and fairly
presents in all Material respects (subject to routine year end audit
adjustments in the case of the unaudited financial statements) the consolidated
financial condition of the Companies as of the date thereof (including a full
disclosure of Material contingent liabilities, if any) and the consolidated
results of their operations, if any, for the fiscal period then ended. There
has been no Material adverse change in the financial condition, properties or
business of the Companies viewed on a consolidated basis since the date of
Borrower's Most Recent 4A.04 Financial Statements nor any change in their
accounting procedures or fiscal year since the end of Borrower's latest full
fiscal year covered by those statements.
4B.11 DEFAULTS. No Default Under This Agreement exists, nor will any
exist immediately after the execution and delivery of this Agreement.
4B.12 INVESTMENT COMPANY ACT. Borrower is not an "investment
company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
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5A. EVENTS OF DEFAULT. Each of the following shall constitute an Event of
Default hereunder:
5A.01 PAYMENTS. If any Subject Indebtedness or any other Debt of the
Companies or any thereof to the Banks and NCB-Agent or any thereof shall not be
paid in full promptly when the same becomes due and payable and shall remain
unpaid for five (5) consecutive days thereafter or, if earlier, on the
Expiration Date.
5A.02 WARRANTIES. If any representation, warranty or statement made
in this Agreement or in any Related Writing referred to in subsection 4A shall
be false or erroneous in any Material respect; or if any representation,
warranty or statement hereafter made by or on behalf of any Company in any
Related Writing not referred to in section 4A shall be false or erroneous in
any Material respect.
5A.03 COVENANTS. If anyone (other than the Banks and NCB-Agent and
their respective agents) shall fail or omit to perform and observe any
agreement (other than those referred to in subsection 5A.01) contained in this
Agreement or any Related Writing that is on its part to be complied with, and
that failure or omission shall not have been fully corrected within thirty (30)
days after the giving of written notice to Borrower by any Bank that it is to
be remedied.
5A.04 CROSS-DEFAULT. If, in respect of any existing or future
indebtedness for borrowed money (regardless of maturity) or Funded Indebtedness
now owing or hereafter incurred by any Company, there should occur or exist
under its original provisions (except for any amendment made prior to the date
of this Agreement but without giving effect to any amendment, consent or waiver
after the date of this Agreement) any event, condition or other thing which
constitutes, or which with the giving of notice or the lapse of any applicable
grace period or both would constitute, a default which accelerates (or permits
any creditor or creditors or representative of creditors to accelerate) the
maturity of any such indebtedness; or if any such indebtedness (other than any
payable on demand) shall not be paid in full at its stated maturity; or if any
such indebtedness payable on demand shall not be paid in full on demand
therefor.
5A.05 SUBSIDIARY'S SOLVENCY. If (a) any Subsidiary shall commence any
Insolvency Action of any kind or admit (by answer, default or otherwise) the
Material allegations of, or consent to any relief requested in, any Insolvency
Action of any kind commenced against that Subsidiary by its creditors or any
thereof, or (b) any creditor or creditors shall commence against that
Subsidiary any Insolvency Action of any kind which shall remain in effect
(neither dismissed nor stayed) for thirty (30) consecutive days.
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5A.06 BORROWER'S SOLVENCY. If (a) Borrower shall discontinue
operations, or (b) Borrower shall commence any Insolvency Action of any kind or
admit (by answer, default or otherwise) the Material allegations of, or consent
to any relief requested in, any Insolvency Action of any kind commenced against
Borrower by its creditors or any thereof, or (c) any creditor or creditors
shall commence against Borrower any Insolvency Action of any kind which shall
remain in effect (neither dismissed nor stayed) for thirty (30) consecutive
days.
5A.07 CHANGE IN CONTROL. If any person or group of persons acting in
concert shall beneficially own more than twenty percent (20%) of Borrower's
outstanding voting capital stock except that this subsection shall not apply to
any person who, with the associates and affiliates of that person, is the
record and beneficial owner of not less than five percent (5%) of Borrower's
outstanding voting capital stock at the date of this Agreement.
5B. EFFECTS OF DEFAULT. Notwithstanding any contrary provision or
inference in this Agreement or in any Related Writing:
5B.01 OPTIONAL DEFAULTS. If any Event of Default referred to in
subsection 5A.01 shall occur and be continuing, any Bank in its reasonable
discretion, or if any Event of Default referred to in subsections 5A.02 through
5A.05 (both inclusive) or subsection 5.07 shall occur and be continuing, the
Required Banks in their discretion shall, in either case, have the right,
(a) to terminate the Subject Commitments (if not already
expired or reduced to zero pursuant to Section 2A or terminated
pursuant to this Section) and no Bank shall have any obligation
thereafter to grant any Subject Loan, and
(b) to accelerate the Maturity of all of the Subject
Indebtedness and all other Debt, if any, then owing to the Banks and
NCB-Agent or any thereof (other than Debt, if any, already due and
payable), and all such Debt shall thereupon become and thereafter be
immediately due and payable in full without any presentment or demand
and without any further or other notice of any kind, all of which are
hereby waived by Borrower.
5B.02 AUTOMATIC DEFAULTS. If any Event of Default referred to in
subsection 5A.06 shall occur,
(a) the Subject Commitments shall automatically and
immediately terminate (if not already expired or reduced to zero
pursuant to Section 2A or terminated pursuant to this Section) and no
Bank shall have any obligation thereafter to grant any Subject Loan,
and
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(b) all of the Subject Indebtedness and all other Debt, if
any, then owing to the Banks and NCB-Agent or any thereof (other than
Debt, if any, already due and payable) shall thereupon become and
thereafter be immediately due and payable in full, all without any
presentment, demand or notice of any kind, which are hereby waived by
Borrower.
5B.03 OFFSETS. If there shall occur or exist any Default Under This
Agreement referred to in subsection 5A.05 or 5A.06 or if the Maturity of any
Subject Indebtedness is accelerated, each Bank shall, so long as that Default
Under This Agreement exists, have the right at any time to set off against and
to appropriate and apply toward the payment of the Subject Indebtedness then
owing to it, whether or not the same shall then have matured, any and all
deposit balances then owing by that Bank to or for the credit or account of the
Companies or any thereof, all without notice to or demand upon Borrower or any
Subsidiary or any other person, all such notices and demands being hereby
expressly waived.
5B.04 EQUALIZATION. Each Bank agrees with the other Banks that if at
any time it shall obtain any advantage over the other Banks or any Bank in
respect of the Subject Loans it will purchase from such other Bank or Banks,
for cash and at par, such additional participation in the Subject Loans owing
to the other or others as shall be necessary to nullify the advantage. If any
such advantage resulting in the purchase of an additional participation as
aforesaid shall be recovered in whole or in part from the Bank receiving the
advantage, each such purchase shall be rescinded, and the purchase price
restored (with interest and other charges if and to the extent actually
incurred by the Bank receiving the advantage) Ratably to the extent of the
recovery. During the existence of any Default Under This Agreement, any
payment (whether made voluntarily or involuntarily, by offset of any deposit or
other indebtedness or otherwise) of any indebtedness for borrowed money owing
by Borrower to any Bank shall be applied to the Subject Loans owing to that
Bank until the same shall have been paid in full before any thereof shall be
applied to other indebtedness for borrowed money owing to that Bank.
6A. INDEMNITY: STAMP TAXES. Borrower will pay all stamp taxes and
similar taxes, if any, including interest and penalties, if any, payable in
respect of the issuance of the Subject Indebtedness. Further, Borrower shall
pay upon demand to NCB-Agent, for NCB-Agent's sole account, a documentation fee
for costs incurred in preparing this Agreement.
6B. INDEMNITY: GOVERNMENTAL COSTS/FIXED RATE LOANS. If
(a) there shall be introduced or changed any treaty, statute,
regulation or other law, or there shall be any change in the
interpretation or
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administration thereof, or there shall be made any request from any
central bank or other lawful governmental authority, the effect
of any of which events shall be to (1) impose, modify or deem
applicable any reserve or special deposit requirements against assets
held by or deposits in or loans by any national banking association or
other commercial banking institution (whether or not applicable to any
Bank) or (2) subject any Bank to any tax, duty, fee, deduction or
withholding or (3) change the basis of taxation of payments due to any
Bank from Borrower (otherwise than by a change in taxation of that
Bank's overall net income), or (4) impose on any Bank any penalty in
respect of any Fixed-Rate Loans and
(b) in that Bank's sole opinion any such event increases the
cost to that Bank of making, funding or maintaining any Fixed-Rate
Loan or reduces the amount of any payment to be made to that Bank in
respect of the principal or interest on any Fixed-Rate Loan or other
payment under this Agreement,
then, upon that Bank's demand, Borrower shall pay to that Bank from time to
time such additional amounts as will compensate that Bank for and indemnify it
against such increased costs or reduced payment, as the case may be.
6C. INDEMNITY: FUNDING COSTS. Borrower agrees to indemnify each
Bank against any loss relating in any way to its funding of any Fixed- Rate
Loan paid before its stated Maturity (whether a prepayment or a payment
following any acceleration of Maturity) and to pay that Bank, as liquidated
damages for any such loss, an amount (discounted to the present value in
accordance with standard financial practice at a rate equal to the Treasury
Yield) equal to interest computed on the principal payment from the payment
date to the respective stated maturities thereof at a rate equal to the
difference of the contract rate less the Treasury Yield, all as determined by
that Bank in its reasonable discretion. "TREASURY YIELD" means the annual
yield on direct obligations of the United States having a principal amount and
Maturity similar to that of the principal being paid.
6D. INDEMNITY: CREDIT REQUESTS. Whenever Borrower shall revoke any
Credit Request for a Fixed-Rate Loan or shall for any other reason fail to
borrow pursuant thereto or shall fail otherwise to comply therewith, or shall
fail to honor any prepayment notice, then, in each case on any Bank's demand,
Borrower shall pay that Bank such amount as will compensate it for any loss,
cost or loss of profit incurred by it by reason of its liquidation or
reemployment of deposits or other funds.
6E. INDEMNITY: UNFRIENDLY TAKEOVERS. Borrower agrees to indemnify
each Bank and NCB-Agent and their directors, officers, employees, attorneys and
other agents (each, an "Indemnitee") and
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hold each indemnitee harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind (including, without limitation, the
reasonable fees and disbursements of counsel for any Indemnitee in connection
with any investigative, administrative or judicial proceeding, whether or not
such Indemnitee shall be designated a party thereto) which may be incurred by
any Indemnitee relating to or arising out of any actual or proposed use of
proceeds of the Subject Loans or any thereof in connection with the financing
of an acquisition of any corporation or other business entity, provided that no
Indemnitee shall have the right to be indemnified hereunder for its own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
6F. INDEMNITY: CAPITAL REQUIREMENTS. If
(a) at any time any governmental authority shall require any
Bank (or any corporate shareholder of that Bank), whether or not the
requirement has the force of law, to maintain, as support for that
Bank's Subject Commitment, capital in a specified minimum amount that
either is not required or is greater than that required at the date of
this Agreement, whether the requirement is implemented pursuant to the
"risk-based capital guidelines" (published at 12 CFR 3 in respect of
"national banking associations", 12 CFR 208 in respect of "state
member banks" and 12 CFR 225 in respect of "bank holding companies")
or otherwise, and
(b) as a result thereof the rate of return on capital of that
Bank or its shareholder or both (taking into account their then
policies as to capital adequacy and assuming full utilization of their
capital) shall be directly or indirectly reduced by reason of any new
or added capital thereby allocable to that Bank's Subject Commitment,
((a) and (b) above collectively, "Capital Requirements") then and in each such
case Borrower shall, on that Bank's demand, pay that Bank as an additional fee
such amounts as will in that Bank's reasonable opinion reimburse that Bank or
its shareholder for any such reduced rate of return.
6G. INDEMNITY: COLLECTION COSTS. If any Event of Default shall occur
and shall be continuing, Borrower will pay the Banks and NCB-Agent such
further amounts, to the extent permitted by law, as shall cover their
respective costs and expenses (including, without limitation, the reasonable
fees, interdepartmental charges and disbursements of counsel for the Banks and
NCB-Agent or any thereof) incurred in collecting the Subject Indebtedness or in
otherwise enforcing their respective rights and remedies in respect thereof.
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6H. CERTIFICATE FOR INDEMNIFICATION. Each demand by NCB-Agent or a
Bank for payment pursuant to Section 6A, 6B, 6C, 6D, 6E, 6F or 6G shall be
accompanied by a certificate setting forth the reason for the payment, the
amount to be paid, and the computations and assumptions in determining the
amount, which certificate shall be presumed to be correct so long as it is
undertaken in good faith. In determining the amount of any such payment, each
Bank may use reasonable averaging and attribution methods.
7A. BANKS' PURPOSE. Each Bank represents and warrants to the other
Banks and to Borrower that such Bank is familiar with the Securities Act of
1933, as amended, and the rules and regulations thereunder and that it is not
entering into this Agreement with any intention to violate that Act or any rule
or regulation thereunder, it being understood, however, that each Bank shall at
all times retain full control over the disposition of its assets subject only
to this Agreement and to all applicable law.
7B. NCB-AGENT. Each Bank irrevocably appoints NCB to be its agent
(in that capacity, NCB-Agent) with full authority to take such actions, and to
exercise such powers, on behalf of the Banks in respect of this Agreement and
the Related Writings as are therein respectively delegated to NCB-Agent or as
are reasonably incidental to those delegated powers.
7B.01 NATURE OF APPOINTMENT. NCB-Agent shall have no fiduciary
relationship with any Bank by reason of this Agreement, nor shall NCB-Agent
have any duty or responsibility whatever to any Bank except those expressly set
forth in this Agreement and the Related Writings. Without limiting the
generality of the foregoing, each Bank acknowledges that NCB-Agent is acting as
such solely as a convenience to the Banks and not as a manager of the Subject
Commitments or Subject Indebtedness. This Section 7B does not confer any
rights upon Borrower or anyone else (except NCB-Agent and the Banks), whether
as a third party beneficiary or otherwise.
7B.02 NCB AS A BANK; OTHER TRANSACTIONS. NCB's rights under this
Agreement and the Related Writings shall not be affected by its serving as
NCB-Agent. NCB and its affiliates may generally transact any banking,
financial, trust, advisory or other business with the Companies (including,
without limitation, the acceptance of deposits, the extension of credit and the
acceptance of fiduciary appointments) without notice to the Banks, without
accounting to the Banks, and without prejudice to NCB's rights as a Bank under
this Agreement and the Related Writings.
7B.03 INSTRUCTION FROM BANKS. NCB-Agent shall not be required to
exercise any discretion or take any action as to matters not expressly provided
for by this Agreement and the Related Writings (including, without limitation,
collection and
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enforcement actions in respect of the Subject Indebtedness and any collateral
therefor), except that NCB-Agent shall take such action (or omit to take such
action) as may be reasonably requested of it in writing by the Required Banks,
which instructions and which actions and omissions shall be binding upon the
Banks; provided, that NCB-Agent shall not be required to act (or omit any act)
if, in its judgment, any such action or omission might expose NCB-Agent to
personal liability or might be contrary to this Agreement, any Related Writing
or any applicable law.
7B.04 BANKS' DILIGENCE. Each Bank
(a) represents and warrants that it has made its decision to
enter into this Agreement and the Related Writings and
(b) agrees that it will make its own decision as to taking or
not taking future actions in respect of this Agreement and the Related
Writings
in each case without reliance on NCB-Agent or the other Bank and on the basis
of its independent credit analysis and its independent examination of and
inquiry into such documents and other matters as it deems relevant and
Material.
7B.05 NO IMPLIED REPRESENTATIONS. NCB-Agent shall not be liable for
any representation, warranty, agreement or obligation of any kind of any other
party to this Agreement or anyone else, whether made or implied by any Company
in this Agreement or any Related Writing or by a Bank in any notice or other
communication or by anyone else or otherwise.
7B.06 SUB-AGENTS. NCB-Agent may employ agents and shall not be liable
(except as to money or property received by it or its agents) for any
negligence or misconduct of any such agent selected by it with reasonable care.
NCB-Agent may consult with legal counsel, certified public accountants and
other experts of its choosing (including, without limitation, NCB's salaried
employees, any employed by Borrower or any otherwise not independent) and shall
not be liable for any action or inaction taken or suffered in good faith by it
in accordance with the advice of any such counsel, accountants or other
experts.
7B.07 NCB-AGENT'S DILIGENCE. NCB-Agent shall not be required (a) to
keep itself informed as to anyone's compliance with any provision of this
Agreement or any Related Writing, (b) to make any inquiry into the properties,
financial condition or operations of any Company or any other matter relating
to this Agreement or any Related Writing, (c) to report to the Banks any
information (other than information which this Agreement or any Related Writing
expressly requires to be so reported) that NCB-Agent or any of its affiliates
may have or acquire in respect of any Company's properties, business or
financial condition or any
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other matter relating to this Agreement or any Related Writing or (d) to
inquire into the validity, effectiveness or genuineness of this Agreement or
any Related Writing.
7B.08 NOTICE OF DEFAULT. NCB-Agent shall not be deemed to have
knowledge of any Default Under This Agreement unless and until it shall have
received a written notice describing it and citing the relevant provision of
this Agreement or any Related Writing.
7B.09 NCB-AGENT'S LIABILITY. Neither NCB-Agent nor any of its
directors, officers, employees, attorneys and other agents shall be liable for
any action or omission on their respective parts except for gross negligence or
willful misconduct.
7B.10 COMPENSATION. From time to time after the execution and
delivery of this Agreement, Borrower shall pay NCB-Agent a fee. NCB-Agent
shall receive from Borrower such other compensation, if any, for its services
as agent of the Banks in respect of this Agreement and the Related Writings as
Borrower and NCB-Agent may from time to time agree, and Borrower shall
reimburse NCB-Agent periodically on its demand for out-of-pocket expenses, if
any, reasonably incurred by it as such.
7B.11 DISBURSEMENTS. Whenever NCB-Agent shall receive any funds in
respect of the Subject Indebtedness or otherwise in respect of this Agreement
or any Related Writing, whether from Borrower for the account of the Banks or
from the Banks for the account of Borrower, NCB-Agent shall disburse the funds
on the day the funds shall be deemed to have been received. NCB-Agent shall be
entitled (but not obligated) to make a timely disbursement of loan proceeds to
Borrower before actually receiving funds from the Banks (except if and to the
extent NCB-Agent shall have received written instructions to the contrary from
any Bank) and to make a timely disbursement of payments to the Banks before
actually receiving funds from Borrower. If the funds to be disbursed are not
received by NCB-Agent on a timely basis, NCB-Agent at its option may (a)
rescind the disbursement and require the recipient to return the funds in
question with interest or (b) require the party who failed to furnish the funds
for disbursement on a timely basis to pay NCB-Agent interest thereon, such
interest in each case to be computed at the Federal Funds Rate and to be paid
on demand.
7B.12 NCB-AGENT'S INDEMNITY. The Banks shall indemnify NCB-Agent (to
the extent NCB-Agent is not reimbursed by Borrower) from and against any loss
or liability (other than any caused by NCB-Agent's gross negligence or willful
misconduct) incurred by NCB-Agent as such in respect of this Agreement or any
Related Writing and from and against any out-of-pocket expenses incurred in
defending itself or otherwise related to this Agreement or any Related Writing,
including, without limitation, reasonable fees and disbursements of legal
counsel of its own
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selection (including, without limitation, the reasonable interdepartmental
charges of its salaried attorneys) in the defense of any claim against it or in
the prosecution of its rights and remedies as NCB-Agent; provided, that each
Bank shall be liable for only its Ratable share of the whole loss or liability.
7B.13 RESIGNATION; SUCCESSOR AGENT. NCB-Agent may resign as agent for
the Banks hereunder upon thirty (30) days written notice to the Banks and
Borrower. If NCB-Agent shall resign as agent under this Agreement, then the
Required Banks shall appoint from among the Banks a successor agent, which
successor agent shall be approved by Borrower, such approval not to be
unreasonably withheld (or, if the Required Banks and Borrower are unable to
select such successor agent within such thirty-day period, a successor agent
shall be selected by NCB-Agent), whereupon such successor agent shall succeed
to the rights, powers and duties of NCB-Agent under this Agreement, and the
term "NCB-Agent" shall mean such successor agent effective upon its
appointment. In such event, NCB-Agent's rights, powers and duties as agent
shall be terminated, without any other or further act or deed on the part of
NCB-Agent or any of the parties to this Agreement. After NCB-Agent's
resignation hereunder as agent, the provisions of this Agreement shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
the agent under this Agreement.
8. INTERPRETATION. This Agreement and the Related Writings shall be
governed by the following provisions:
8.01 WAIVERS. Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Banks; provided, however,
that no such agreement shall (i) change the principal amount of, or extend or
advance the Maturity of or any date for the payment of any principal of or
interest on, any note, or waive or excuse any such payment or any part thereof,
or change the rate of interest on any note, without the written consent of each
holder affected thereby, (ii) change the commitment of any Bank without the
written consent of such Bank, or (iii) amend or modify the provisions of this
subsection or the definition of Required Banks without the written consent of
each Bank. Without limiting the generality of the foregoing, Borrower agrees
that no course of dealing in respect of, nor any omission or delay in the
exercise of, any right, power or privilege by the Banks and NCB-Agent or any
thereof shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude any further or other
exercise thereof or of any other right, power or privilege (whether granted by
other contract or by operation of law or otherwise), as each right, power or
privilege may be exercised either independently or concurrently with others and
as often and in such order as the party or parties exercising the same may deem
expedient.
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8.02 CUMULATIVE PROVISIONS. Each right, power or privilege specified
or referred to in this Agreement is in addition to and not in limitation of any
other rights, powers and privileges that the Banks and NCB-Agent may
respectively otherwise have or acquire by operation of law, by other contract
or otherwise.
8.03 BINDING EFFECT. The provisions of this Agreement shall bind and
benefit Borrower, NCB-Agent and each Bank and their respective successors and
assigns, including each subsequent holder, if any, of the Subject Notes or any
thereof; provided, that no person other than Borrower shall have or acquire any
right to obtain any Subject Loan; and provided, further, that neither any
holder of any Subject Note nor assignee of any Subject Loan, whether in whole
or in part, shall thereby become obligated thereafter to grant Borrower any
Subject Loan.
8.04 SURVIVAL OF PROVISIONS. All representations and warranties made
in or pursuant to this Agreement shall survive the execution and delivery of
this Agreement and of the Subject Notes. The provisions of sections 6A, 6B,
6C, 6D and 6E and subsection 7B.12 shall survive the payment of the Subject
Indebtedness.
8.05 IMMEDIATE U.S. FUNDS. Any reference to money is a reference to
lawful money of the United States of America which, if in the form of credits,
shall be in immediately available funds.
8.06 CAPTIONS. The several captions to different Sections and to the
respective subsections thereof are inserted for convenience only and shall be
ignored in interpreting the provisions of this Agreement.
8.07 SUBSECTIONS. Each reference to a Section includes a reference to
all subsections thereof except where the context clearly does not so permit.
8.08 ILLEGALITY. If any provision in this Agreement or any Related
Writing shall for any reason be or become illegal, void or unenforceable, that
illegality, voidness or unenforceability shall not affect any other provision.
8.09 OHIO LAW. This Agreement and the Related Writings and the
respective rights and obligations of the parties hereto shall be construed in
accordance with and governed by the internal law of the State of Ohio.
8.10 INTEREST/FEE COMPUTATIONS. All interest and all fees for any
given period shall accrue on the first day thereof but not on the last day
thereof and in each case shall be computed on the basis of a 360-day year and
the actual number of days elapsed. In no event shall interest accrue at a
higher rate than the maximum rate, if any, permitted by law.
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8.11 NOTICE. A notice to or request of Borrower shall be deemed to
have been given or made under this Agreement or any Related Writing either upon
the delivery of a writing to that effect to an officer of Borrower, or five (5)
days after a writing to that effect shall have been deposited in the United
States mail and sent, with postage prepaid, by registered or certified mail,
addressed to Borrower (Attention: Borrower's chief financial officer), at the
address set forth below (or such other address as Borrower may hereafter
furnish to each Bank in writing for that purpose). No other method of giving
actual notice to or making a request of Borrower is hereby precluded. Every
notice required to be given to a Bank pursuant to this Agreement shall be
delivered at that Bank's address set forth below (or at such other address as
that Bank may furnish to Borrower and to the other Banks in writing for that
purpose) to an Account Officer of that Bank. Each Bank agrees to give prompt
notice to the other Banks whenever it gives any notice pursuant to Section 5A
or 5B or grants any waiver or consent as provided in subsection 8.01.
8.12 ACCOUNTING TERMS. Any accounting term used in this Agreement
shall have the meaning ascribed thereto by GAAP, subject, however, to such
modification, if any, as may be provided in section 9 or elsewhere in this
Agreement.
9. DEFINITIONS. As used in this Agreement and in the Related
Writings, except where the context clearly requires otherwise,
ACCOUNT OFFICER means that officer of the Bank in question who at the
time in question is designated by that Bank as the officer
having the primary responsibility for giving consideration to
Borrower's request for credit or, in that officer's absence, that
officer's immediate superior or any other officer who reports directly
to that superior officer;
ACCUMULATED FUNDING DEFICIENCY shall have the meaning ascribed thereto
in section 302(a)(2) of ERISA;
AGREEMENT means this Agreement and includes each amendment, if any, to
this Agreement;
BANK means one of the banking institutions that is a party to this
Agreement;
BANKING DAY means (a) in the case of a LIBOR Loan, a day on which
Banks in the London Interbank Market deal in United States
dollar deposits and on which banking institutions are generally open
for domestic and international business in Cleveland, Ohio and in New
York City and (b) in any other case, any day other than a Saturday or
a Sunday or a public holiday or other day on which banking
institutions in Cleveland, Ohio or Detroit, Michigan are generally
closed and do not conduct a banking business;
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BORROWER means Brush Wellman Inc., an Ohio corporation;
CAPITAL REQUIREMENTS is defined in subsection 6F;
COMPANY refers to Borrower or to a Subsidiary of Borrower, as the case
may be, and COMPANIES refers to Borrower and its Subsidiaries;
COMPETITIVE BID means an offer by a Bank to make a Competitive Loan
pursuant to Section 2B.01;
COMPETITIVE BID RATE means, as to any Competitive Bid made by a Bank
pursuant to Section 2B.01, the Fixed Rate of interest offered by
the Bank making such Competitive Bid and accepted by Borrower;
COMPETITIVE BID REQUEST means a request made pursuant to Section
2B.01, in the form of Exhibit B.
COMPETITIVE LOAN means a Subject Loan from a Bank to Borrower pursuant
to the bidding procedure described in Section 2B.01.
CONTRACT PERIOD is defined in subsection 2B.05;
CONTRACT RATE means the rate of interest applicable to a Fixed-Rate
Loan prior to Maturity;
CREDIT EXPOSURE, as applied to a given Bank, means the aggregate at
the time in question of the unpaid principal of the Subject
Loans then owing to it, and as applied to the Banks, means the sum at
the time in question of the aggregate unpaid principal of the Subject
Loans;
CREDIT REQUEST means a request made pursuant to subsection 2C.01;
CURRENT ASSETS means the net book value of all such assets (after
deducting applicable reserves, if any, and without consideration
to any reappraisal or write-up of assets) as determined in accordance
with GAAP;
CURRENT LIABILITIES means all such liabilities as determined in
accordance with GAAP and includes (without limitation) all accrued
taxes and all principal of any Funded Indebtedness maturing within
twelve months of the date of determination;
DEBT means, collectively, all liabilities of the person or persons in
question to the Banks and NCB-Agent or any thereof, whether owing by
one such party alone or with one or more others in a joint, several,
or joint and several capacity, whether now owing or hereafter arising,
whether owing absolutely or contingently, whether created by loan,
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overdraft, guaranty of payment or other contract or by quasi-contract
or tort, statute or other operation of law or otherwise, whether
incurred directly to the Banks and NCB-Agent or any thereof or acquired
by purchase, pledge or otherwise, and whether participated to or from
the Banks and NCB-Agent or any thereof in whole or in part; and in the
case of Borrower includes, without limitation, the Subject
Indebtedness;
DEFAULT UNDER ERISA means (a) the occurrence or existence of a Material
Accumulated Funding Deficiency in respect of any of the Companies'
respective Pension Plans, (b) any failure by a Company to make a full
and timely payment of premiums required by ERISA for insurance against
any employer's liability in respect of any such Pension Plan, (c) the
occurrence or existence of any Material breach of any fiduciary duty by
any fiduciary in respect of any such Pension Plan or (d) the
institution or existence of any action for the forcible termination of
any such Pension Plan;
DEFAULT UNDER THIS AGREEMENT means an event, condition or thing which
constitutes, or which with the lapse of any applicable grace period or
the giving of notice or both would constitute, any Event of Default
referred to in section 5A and which has not been appropriately waived
in writing in accordance with this Agreement or fully corrected, prior
to becoming an actual Event of Default, to the full satisfaction of the
Banks;
ELIGIBLE INVESTMENTS means any of the following investments (each
reference to a "rating category" of either Moody's or Standard & Poor's
shall refer to a rating category of such corporation without regard to
gradations within ratings):
(i) obligations issued or guaranteed as to full and timely
payment by the United States of America or by any person controlled or
supervised by or acting as an instrumentality of the United States of
America pursuant to authority granted by Congress;
(ii) obligations issued or guaranteed by any state or political
subdivision thereof and rated in the highest rating category (if rated
as short-term obligations) or the second highest rating category (if
rated as long-term obligations) by Moody's or Standard & Poor's;
(iii) commercial or finance paper rated in the highest rating
category by Moody's or Standard & Poor's;
(iv) deposit accounts, bankers' acceptances, certificates of
deposit or bearer deposit notes in any
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Bank or any bank affiliated with any Bank and with a reported capital
and surplus of not less than $50,000,000, the debt obligations (or, in
the case of the principal bank in a bank holding company, debt
obligations of the bank holding company) of which are rated by Moody's
or Standard & Poor's not lower than the second highest rating category
(if rated as long-term obligations) or the second highest rating
category (if rated as short-term obligations);
(v) repurchase agreements secured fully by obligations of the
type specified in clause (i) and issued by any government bond dealer
reporting to, trading with and recognized as a primary dealer by, the
Federal Reserve Bank of New York;
(vi) interests in a unit investment trust composed of
obligations rated in the highest rating category, whether rated as
short-term or long-term obligations, by Moody's or Standard & Poor's;
(vii) money market mutual funds, rated in the highest rating
category by Moody's or Standard & Poor's, and invested solely in
obligations or securities described in clause (i), (ii), (iii) and (v)
above; and
(viii) investment agreements other than repurchase agreements
with banks or bank holding companies or other qualified providers which
have ratings assigned to their long-term unsecured obligations by
Moody's or Standard & Poor's which are not lower than the second
highest rating category for long-term debt or which have ratings
assigned to their short-term obligations by Moody's or Standard &
Poor's in the highest rating category for short-term debt;
ENVIRONMENTAL LAWS mean all laws, ordinances, rules and
regulations pertaining to environmental matters, including, without
limitation, solid waste disposal, toxic substances, hazardous
substances, hazardous materials, hazardous waste, toxic chemicals,
pollutants, contaminants, and air or water pollution and to the
storage, use, handling, transportation, discharge and disposal
(including spills and leaks) of gaseous, liquid, semi-solid or solid
materials (all terms pertaining to Environmental Laws not defined in
this Agreement shall have the meanings ascribed thereto in the
respective Environmental Laws);
ERISA means the Employee Retirement Income Security Act of 1974
(P.L. 93-406) as amended from time to time; and in the event of any
amendment affecting any section thereof referred to in this Agreement,
that reference shall be a
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reference to that section as amended, supplemented, replaced or
otherwise modified;
ERISA REGULATOR means any governmental agency (such as the
Department of Labor, the Internal Revenue Service and the Pension
Benefit Guaranty Corporation) having any regulatory authority over any
of the Companies' Pension Plans;
EVENT OF DEFAULT is defined in section 5A;
EXPIRATION DATE means the date referred to as such in
subsection 2A.02;
FEDERAL FUNDS RATE means the rate of interest, as reasonably
determined by NCB-Agent, paid by NCB for the purchase of "federal
funds" at the time or times in question on a daily overnight basis;
FIXED-RATE LOAN means a Subject Loan that is not a Prime Rate
Loan;
FUNDED INDEBTEDNESS means indebtedness of the person or entity
in question which matures or which (including each renewal or
extension, if any, in whole or in part) remains unpaid for more than
twelve months after the date originally incurred and includes, without
limitation, (a) any indebtedness (regardless of its maturity) if it is
renewable or refundable in whole or in part solely at the option of
that person or entity (in the absence of default) to a date more than
one year after the date of determination, (b) any guaranty of Funded
Indebtedness owing by another person or entity and (c) any Funded
Indebtedness secured by a security interest, mortgage or other lien
encumbering any property owned or being acquired by the person or
entity in question even if the full faith and credit of that person or
entity is not pledged to the payment thereof; provided, that in the
case of any indebtedness payable in installments or evidenced by serial
notes or calling for sinking fund payments, those payments maturing
within twelve months after the date of determination shall be
considered current indebtedness rather than Funded Indebtedness for the
purposes of Section 3B but shall be considered Funded Indebtedness for
all other purposes;
GAAP means generally accepted accounting principles applied in
a manner consistent with those used in Borrower's latest fiscal
year-end financial statements referred to in subsection 4A.04;
GUARANTOR means one who pledges his credit or property in any
manner for the payment or other performance of the indebtedness,
contract or other obligation of another and includes (without
limitation) any Guarantor (whether of collection or payment), any
obligor in respect of a standby
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letter of credit or surety bond issued for the obligor's
account, any surety, any co-maker, any endorser, and anyone who agrees
conditionally or otherwise to make any loan, purchase or investment in
order thereby to enable another to prevent or correct a default of any
kind; and Guaranty means the obligation of a Guarantor;
INSOLVENCY ACTION means either (a) a pleading of any kind filed
by the person, corporation or entity (an "insolvent") in question to
seek relief from the insolvent's creditors, or filed by the insolvent's
creditors or any thereof to seek relief of any kind against that
insolvent, in any court or other tribunal pursuant to any law (whether
federal, state or other) relating generally to the rights of creditors
or the relief of debtors or both, or (b) any other action of any kind
commenced by an insolvent or the insolvent's creditors or any thereof
for the purpose of marshalling the insolvent's assets and liabilities
for the benefit of the insolvent's creditors; and "Insolvency Action"
includes (without limitation) a petition commencing a case pursuant to
any chapter of the federal bankruptcy code, any application for the
appointment of a receiver, trustee, liquidator or custodian for the
insolvent or any substantial part of the insolvent's assets, and any
assignment by an insolvent for the general benefit of the insolvent's
creditors;
INTEREST COVERAGE RATIO means the ratio described in subsection
3B.04;
LIBOR LOAN means a Subject Loan having a Contract Period
described in subsection 2B.05 and bearing interest in accordance with
clause (a) of subsection 2B.09;
LIBOR RATE means the rate per annum (rounded upwards, if
necessary, to the next higher 1/16 of 1%), as determined by NCB-Agent,
which is the average rate per annum at which deposits in United States
dollars are offered for deposits of the maturity and amount in
question, at 11:00 A.M. London time (or as soon thereafter as
practicable) two Banking Days prior to the first day of the Contract
Period in question, to NCB by prime banking institutions in any
eurodollar market reasonably selected by NCB-Agent;
MATERIAL means material as determined by the Banks in the
reasonable exercise of their discretion;
MATURITY means the date on which the Subject Indebtedness (or
portion thereof) in question is scheduled for payment in accordance
with this Agreement (without the benefit of any grace period), except
that in the event of any acceleration of Maturity pursuant to Section
5B, "Maturity" means the date as of which the sum becomes immediately
payable in full in accordance with subsection 5B;
-41-
46
MOODY'S means Moody's Investors Services Inc., and its
successors and assigns.
MOST RECENT 4A.04 FINANCIAL STATEMENTS means Borrower's most
recent financial statements that are referred to in subsection 4A.04;
NCB means National City Bank;
NET INCOME means net income as determined on a consolidated
basis in accordance with GAAP, after taxes and after extraordinary
items, but without giving effect to any gain from any re-appraisal or
write-up of any asset;
PENSION PLAN means a defined benefit plan (as defined in
section 3(35) of ERISA) of the Companies or any thereof and includes,
without limitation, any such plan that is a multi-employer plan (as
defined in section 3(37) of ERISA) applicable to any of the Companies'
employees;
PRIME RATE means the fluctuating rate, as in effect at the time
in question, that is publicly announced by NCB from time to time in
Cleveland, Ohio, as being its prime rate thereafter in effect;
PRIME RATE LOAN means a Subject Loan described in the first
sentence of subsection 2B.06 and bearing interest in accordance with
subsection 2B.08;
RATABLE and RATABLY mean in the proportion of the Subject
Commitments as set forth in subsection 2A.01, except that with respect
to Competitive Loans, RATABLE and RATABLY mean in proportion of the
Credit Exposure;
RECEIVABLE means a claim for money due or to become due,
whether classified as an account, instrument, chattel paper, general
intangible, incorporeal hereditament or otherwise, and any proceeds of
the foregoing;
RELATED WRITING means any note, mortgage, security agreement,
other lien instrument, financial statement, audit report, notice, legal
opinion, Credit Request, officer's certificate or other writing of any
kind which is delivered to the Banks and NCB-Agent or any thereof and
which is relevant in any manner to this Agreement or any Related
Writing and includes, without limitation, the Subject Notes and the
other writings referred to in sections 2A, 2B, 2C, 3A and 4A;
REPORTABLE EVENT has the meaning ascribed thereto by ERISA;
REQUIRED BANKS means (i) so long as any Bank has a commitment
to make Subject Loans hereunder, Banks representing 66-2/3% of the
commitments and (ii) after the
-42-
47
Expiration Date or the earlier termination of the commitments,
Banks representing 66-2/3% of the Subject Loans outstanding; PROVIDED,
HOWEVER, that for purposes of accelerating the loans pursuant to
subsection 5B, Required Banks means Banks representing 51% of the
Subject Loans outstanding.
SERIES means a borrowing consisting of Subject Loans made on
the same day pursuant to a single Credit Request and divided Ratably
among the Banks, if and to the extent (in the case of Competitive
Loans) appropriate, and includes, without limitation, a borrowing the
proceeds of which represent new money to Borrower and a borrowing the
proceeds of which are applied to other Subject Loans at the stated
Maturity thereof;
STANDARD & POOR'S means Standard & Poor's Corporation, and its
successors and assigns.
SUBJECT COMMITMENT means the commitment of a Bank to extend
credit to Borrower pursuant to sections 2A, 2B and 2C of this Agreement
and upon the terms, subject to the conditions and in accordance with
other provisions of this Agreement;
SUBJECT INDEBTEDNESS means, collectively, all principal of and
interest on the Subject Loans and all fees and other liabilities, if
any, incurred to the Banks and NCB-Agent or any thereof by Borrower
pursuant to this Agreement or any Related Writing;
SUBJECT LOAN means a LIBOR Loan, Competitive Loan or a Prime
Rate Loan, as the case may be;
SUBJECT NOTE means a note executed and delivered by Borrower
and being in the form and substance of Exhibit C-1 and C-2 with the
blanks appropriately filled;
SUBSIDIARY means a corporation or other business entity of
which shares constituting a majority of its outstanding capital stock
(or other form of ownership) or constituting a majority of the voting
power in any election of directors (or shares constituting both
majorities) are (or upon the exercise of any outstanding warrants,
options or other rights would be) owned directly or indirectly at the
time in question by the corporation in question or another "subsidiary"
of that corporation or any combination of the foregoing;
TANGIBLE NET WORTH means (a) book net worth, less (b) such
assets of the Companies, on a consolidated basis, as consist of good
will, costs of businesses over net assets acquired, patents,
copyrights, trademarks, mailing lists, catalogues, bond discount,
underwriting expense, organizational expenses and intangibles (except
that intangibles such as treasury
-43-
48
stock which shall have already been deducted from book net
worth shall not be deducted again);
TOTAL LIABILITIES means the aggregate (without duplication) of
all liabilities of the corporation or corporations in question and
includes, without limitation, (a) any indebtedness which is secured by
any mortgage, security interest or other lien on any of their property
even if the full faith and credit of none of them is pledged to the
payment thereof, (b) any indebtedness for borrowed money or Funded
Indebtedness of any kind if any such corporation or corporations is a
Guarantor thereof and (c) any subordinated indebtedness;
UNUSED COMMITMENT is defined in subsection 2A.04(a);
the foregoing definitions shall be applicable to the respective plurals of the
foregoing defined terms.
[Remainder of page intentionally left blank]
-44-
49
10. EXECUTION. This Agreement may be executed in one or more
counterparts, each counterpart to be executed by Borrower, by NCB-Agent and by
one or any number of the Banks. Each such executed counterpart shall be deemed
to be an executed original for all purposes, but all such counterparts taken
together shall constitute but one agreement, which agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof.
Address: BRUSH WELLMAN INC.
17876 St. Clair Avenue
Cleveland, Ohio 44110
By:___________________________
Title:________________________
Address: NATIONAL CITY BANK,
Deliveries: Individually and as Agent
Metro/Ohio Division
1900 East Ninth Street
Cleveland, Ohio 44114-3484 By:___________________________
Fax: (216) 575-9396
Title:________________________
Mail:
Metro/Ohio Division
P.O. Box 5756
Cleveland, Ohio 44101
Address: SOCIETY NATIONAL BANK
127 Public Square
Cleveland, Ohio 44114 By____________________________
Title:________________________
Address: THE BANK OF NOVA SCOTIA
600 Peachtree St., NE
Suite 2700
Atlanta, GA 30308 By:___________________________
Title:________________________
Address: NBD BANK, N.A.
611 Woodward
Detroit, Michigan 48226 By____________________________
Title:________________________
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50
SUPPLEMENTARY SCHEDULE
(See Sections 3D.03, 3D.04(b), 4B, 4B.05, 4B.06, and 4B.07)
Section 4B.06
- -------------
Canadian Imperial Bank of Commerce Gold/Silver
Loan and gold, silver, platinum and palladium consignment; all subject to a
maximum market value of U.S.$27,000,000.
Section 4B.07
- -------------
The Company is currently in negotiations with the Ohio EPA regarding air,
hazardous waste and solid waste complaints. Settlement cost of such
complaints is expected to be not more than $265,000.
51
EXHIBIT A
EXTENSION REQUEST
_________________
_________________
_________________
Subject: Extension of Subject Commitments under Amended and Restated Credit
Agreement dated as of December ___, 1994
Greetings:
Reference is made to the Amended and Restated Credit Agreement by and among
you, the undersigned ("Borrower") and National City Bank as your agent (the
"Credit Agreement") which provides for, among other things, Subject Commitments
aggregating up to $50,000,000 and available to Borrower, upon certain terms and
conditions, on a revolving basis until ____________________, 19___ (the
"Expiration Date" now in effect) subject, however, to earlier reduction or
termination pursuant to the Credit Agreement.
Borrower hereby requests that the Credit Agreement be amended by deleting the
date "________________________, 199__" from subsection 2A.02 (captioned "Term")
and by substituting for that deleted date the date "___________________,
199__".
In all other respects the Credit Agreement shall remain in full effect.
This letter has been executed and delivered to each of you in triplicate. If
you assent to the extension, kindly send two copies of your assent to your
agent who will, if the extension becomes effective, forward one such copy to
Borrower and inform you of the extension.
BRUSH WELLMAN, INC.
By:________________________
Printed Name:______________
Title:_____________________
The undersigned hereby each assent to the foregoing.
National City Bank NBD Bank, N.A.
By:_______________________ By:______________________
Printed Name:_____________ Printed Name:____________
Title:____________________ Title:___________________
Society National Bank The Bank of Nova Scotia
By:_______________________ By:______________________
Printed Name:_____________ Printed Name:____________
Title:____________________ Title:___________________
52
EXHIBIT B
COMPETITIVE BID REQUEST
-----------------------
Cleveland, Ohio
_________, 19___
TO: _________________________________
SUBJECT: Amended and Restated Credit Agreement dated as of December ___, 1994
with National City Bank, four banks, and National City Bank, as agent
(the "Credit Agreement")
Gentlemen:
Each term in this Credit Request shall be defined in accordance with the
subject Credit Agreement. Pursuant to subsection 2C.01 of the Credit
Agreement, we request a Competitive Loan on the terms set forth below:
1. Date of borrowing: __________________________;
(which is a Banking Day)
2. Amount of borrowing: $_______________________;
3. Contract Period and the
last day thereof: _____________________________;
and to disburse the proceeds as follows: ______________________
_______________________________________________________________.
Address: Brush Wellman Inc.
17876 St. Clair Avenue
Cleveland, Ohio 44110
By:___________________________
Title: _______________________
53
EXHIBIT C-1
NOTE
----
$_______________ Cleveland, Ohio
___________, 19___
FOR VALUE RECEIVED, the undersigned, Brush Wellman Inc., an Ohio corporation,
promises to pay to the order of ______________, at the main office of National
City Bank ("NCB"), Cleveland, Ohio, the principal sum of
________________________________________________________ DOLLARS
(or, if less, the aggregate unpaid principal balance from time to time shown on
the reverse side hereof or in the books and records of the payee), together
with interest computed in the manner provided in the Credit Agreement referred
to below, which principal and interest are payable in accordance with
provisions in the Credit Agreement.
This Note is issued pursuant to an Amended and Restated Credit Agreement (the
"Credit Agreement") dated as of __________________, 1994 by and among Borrower,
four banks and NCB (as agent of the Banks for the purposes of the Credit
Agreement) which establishes "Subject Commitments" (one by each Bank)
aggregating fifty million dollars ($50,000,000) pursuant to which Borrower may
obtain Subject Loans from the Banks upon certain terms and conditions.
Reference is made to the Credit Agreement for the definitions of certain terms,
for provisions governing the making of Subject Loans, the acceleration of the
Maturity thereof, rights of prepayment, and for other provisions to which this
Note is subject. Any endorsement by the payee on the reverse side of this Note
(or any allonge thereto) shall be presumptive evidence of the data so endorsed.
Borrower hereby waives diligence, presentment, demand, protest and notice of
any kind whatsoever. The nonexercise by the holder of any of its rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any subsequent instance.
Address: Brush Wellman Inc.
17876 St. Clair Avenue
Cleveland, Ohio 44110
By:___________________________
Title: _______________________
54
EXHIBIT C-2
COMPETITIVE LOAN NOTE
---------------------
$____________ Cleveland, Ohio
_______________, 19__
FOR VALUE RECEIVED, the undersigned, Brush Wellman Inc., an Ohio corporation
("Maker"), promises to pay to the order of ______________ ("Payee"), at its
office located at the address set forth in the Credit Agreement referred to
below (or at such other address as it may furnish to maker from time to time)
the principal sum of ________________ dollars ($______________) (or, if less,
the aggregate unpaid principal balance of all competitive loans (as defined in
the Credit Agreement) made by Payee from time to time shown on the reverse side
hereof or in the books and records of Payee), together with interest computed
in the manner provided in the Credit Agreement referred to below, which
principal and interest are payable in accordance with provisions in the Credit
Agreement.
This note is issued pursuant to an Amended and Restated Credit Agreement (the
"Credit Agreement") dated as of December ___, 1994, by and among Borrower, four
banks and NCB (as agent of the Banks for the purposes of the Credit Agreement)
which establishes "Subject Commitments" (one by each Bank) aggregating fifty
million dollars ($50,000,000) pursuant to which Borrower may obtain Subject
Loans from the Banks upon certain terms and conditions.
Reference is made to the Credit Agreement for the definitions of certain terms,
for provisions governing the making of Subject Loans, the acceleration of the
maturity thereof, rights of prepayment, and for other provisions to which this
Note is subject. Any endorsement by the payee on the reverse side of this Note
(or any allonge thereto) shall be presumptive evidence of the data so endorsed.
Borrower hereby waives diligence, presentment, demand, protest and notice of
any kind whatsoever. The nonexercise by the holder of any of its rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any subsequent instance.
Address: Brush Wellman Inc.
17876 St. Clair Avenue
Cleveland, Ohio 44110
By:___________________________
Title: _______________________
55
EXHIBIT D
REVOLVING CREDIT REQUEST
------------------------
Cleveland, Ohio
_________, 19___
TO: National City Bank, as Agent
SUBJECT: Amended and Restated Credit Agreement dated as of December ___, 1994,
with four banks and National City Bank as agent (the "Credit
Agreement")
Gentlemen:
Each term in this Credit Request shall be defined in accordance with the
subject Credit Agreement. Pursuant to subsection 2C.01 of the Credit
Agreement, we request
( ) the Banks to grant us a Series of LIBOR Loans in the aggregate principal
sum of $_____________ to be made available to us on the _____ day of
_____________, 19___;
( ) the Banks to grant us a Series of Prime Rate Loans in the aggregate
principal sum of $_____________ to be made available to us on the _____ day
of _____________, 19___ and;
and to disburse the proceeds as follows: ______________________
_______________________________________________________________.
Address: Brush Wellman Inc.
17876 St. Clair Avenue
Cleveland, Ohio 44110
By:___________________________
Title: _______________________
56
EXHIBIT E
COMPLIANCE REPORT
-----------------
___________, 19__
To: National City Bank
__________________
__________________
__________________
Subject: Amended and Restated Credit Agreement dated as of December __, 1994,
with four banks and National City Bank as agent (the "Credit
Agreement")
Greetings:
Pursuant to subsection 3A.01 of the subject Credit Agreement and in my capacity
as the chief financial officer of Brush Wellman Inc., I hereby certify that to
the best of my knowledge and belief
(a) the financial statements of the Companies accompanying this letter
are true and complete and fairly present in all Material respects
their consolidated financial condition as of _____________________,
199_ (the "Closing Date") and the consolidated results of their
operations for the fiscal period then ending,
(b) no Default under the Credit Agreement exists *[except for those
which, together with our intentions in respect thereof, are set forth
in Exhibit One to this letter] and
(c) as indicated by the calculations below, the Companies are *[not]
in full compliance with subsections 3B.01 through 3B.04, both
inclusive.
[* - In (b) and (c), delete the bracketed language if inapplicable.]
3B.01 The actual amount of the Companies' Tangible Net Worth at the Closing
Date is equal to or is greater than the required amount.
$155,000,000
plus $__________ 40% of $_________ annual earnings accumulated from
December 31, 1994 to the end of the
preceding fiscal year (see Section
3B.01)
sum $__________ required amount
$__________ actual Tangible Net Worth
57
3B.02 The actual LEVERAGE of the Companies is equal to or less than the
maximum factor permitted, namely, 1.25 -- leverage being a factor equal to the
quotient of Total Liabilities divided by Tangible Net Worth.
$__________ Total Liabilities
divided by $__________ Tangible Net Worth
quotient __________% Actual Leverage
3B.03 The actual CURRENT RATIO of the Companies is greater than the minimum
factor required, namely, 1.5 -- the Current Ratio being a factor equal to the
quotient of Current Assets divided by Current Liabilities.
$_________ Current Assets
divided by $_________ Current Liabilities
quotient _________ Actual Current Ratio
3B.04 The actual INTEREST COVERAGE RATIO is greater than the minimum factor
(3:00 to 1:00) required, the Interest Coverage being a factor equal to the
quotient of the sum of items (a), (b) and (c) below divided by item (b).
(a) $__________ Net Income
plus (b) $__________ interest expense (including any required capitalized
interest)
plus (c) $__________ income taxes
sum (d) $__________ total
quotient(e) __________ Actual Interest Coverage--(d)/(b)
3B.05 The actual FUNDED DEBT of the Companies is equal to or less than the
maximum factor permitted, namely, 0.5 -- the Funded Debt being a factor equal
to the quotient of Funded Indebtedness divided by Funded Indebtedness plus
Tangible Net Worth.
$_________ Funded Indebtedness
divided by $_________ Funded Indebtedness plus Tangible Net Worth
quotient _________ Actual Funded Indebtedness
BRUSH WELLMAN INC.
By:______________________________
Title: __________________________
58
EXHIBIT F
LIST OF SUBSIDIARIES
Address of Jurisdiction
Name of its Chief Where Equity
Subsidiary Executive Office Incorporated Ownership
- ----------------- ----------------- ------------ --------
Egbert Corp. 17876 St. Clair Avenue Ohio 100.0%
Cleveland, Ohio 44110
S.K. Wellman Co. 17876 St. Clair Avenue Delaware 100.0%
of Delaware Cleveland, Ohio 44110
Technical Materials 17876 St. Clair Avenue Ohio 100.0%
Inc. Cleveland, Ohio 44110
Williams Advanced 17876 St. Clair Avenue New York 100.0%
Materials Inc. Cleveland, Ohio 44110
Tegman Corp. 17876 St. Clair Avenue New York 20.0%
Cleveland, Ohio 44110
Metals Engineering 17876 St. Clair Avenue Pennsylvania 100.0%
Co. Cleveland, Ohio 44110
Brush Wellman 17876 St. Clair Avenue Delaware 100.0%
Acquisition Co. Cleveland, Ohio 44110
Brush Wellman 17876 St. Clair Avenue U.S. Virgin 100.0%
Export Corp. Cleveland, Ohio 44110 Island
Brush Wellman GmbH 17876 St. Clair Avenue West Germany 100.0%
Cleveland, Ohio 44110
Brush Wellman Ltd. 17876 St. Clair Avenue England 100.0%
Cleveland, Ohio 44110
Brush Wellman 17876 St. Clair Avenue Japan 100.0%
(Japan) Ltd. Cleveland, Ohio 44110
William Advanced 17876 St. Clair Avenue Singapore 100.0%
Materials Far Cleveland, Ohio 44110
East PTE Ltd.
59
EXHIBIT G
Exceptions to Section 4B.01
---------------------------
None
RAS1372:01278:91004:RAS-01E.LOA
ras 12/12/94